Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES EX REL. ALLEN v. HARDY

January 20, 1984

UNITED STATES OF AMERICA EX REL. EARL ALLEN, PETITIONER,
v.
DR. STEPHEN L. HARDY, RESPONDENT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Earl Allen ("Allen") originally advanced four grounds for relief in his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Almost exactly a year ago this Court (in the "Opinion," 556 F. Supp. 464 (N.D.Ill. 1983)) granted the motion of respondent Dr. Stephen Hardy ("Hardy") for summary judgment on two of those grounds, deferring consideration of the other two pending the Illinois Supreme Court's decision on the further appeal of People v. Payne, 106 Ill.App.3d 1034, 62 Ill.Dec. 744, 436 N.E.2d 1046 (1st Dist. 1982).

Now Payne has been decided by that Court (Docket No. 56907, Dec. 1, 1983), so Allen's remaining claims are ready for further consideration. They assert (a) the prosecutor improperly exercised his peremptory challenges to exclude minorities from the jury, thus denying Allen his right to an impartial jury, and (b) Allen was [unlawfully] convicted by an all-white jury.

Allen now moves for an order authorizing discovery to present the proof needed to support those claims.*fn1 Dr. Hardy resists such discovery, contending:

    1. Allen failed to present evidence at trial in
  support of his claim, thus waiving that claim.
  Similarly, his argument on appeal attacked the
  peremptory challenges in his case rather than on a
  systematic basis, again waiving the right to present
  the latter argument here.
    2. Allen's request to subpoena state prosecutors to
  question them regarding use of peremptory challenges
  would encroach on the insulation the judiciary has
  historically given to the use of peremptory
  challenges.
    3. Allen's request for expenses under the Criminal
  Justice Act, 18 U.S.C. § 3006A(e)(1), should not be
  authorized until it has been shown Allen cannot get
  "free" help.

For the reasons stated in this memorandum opinion and order, the need for the parties' further amplification of Hardy's first argument prevents consideration of the remaining contentions at the time.

Facts*fn2

Allen is now confined in the Menard Correctional Center Psychiatric Unit, having been convicted of two murders and sentenced to two concurrent 100- to 300-year prison terms. On direct appeal his conviction was affirmed, People v. Allen, 96 Ill. App.3d 871, 52 Ill.Dec. 419, 422 N.E.2d 100 (1st Dist. 1981).

At trial Allen's defense counsel had moved to discharge the jury, detailing how the State had exercised its challenges to exclude 7 whites, 7 blacks and 2 Latinos and arguing "the systematic exclusion of all blacks and all Latinos from the jury is improper and in violation of Mr. Allen's constitutional right to have a fair jury selected from a cross section of the community" (R. 304). In reply the prosecutor gave his reasons for excluding 2 Latinos and said "the record will speak for itself" (R. 304-05). Allen's motion was denied.

On appeal Allen argued in part that the State's use of its peremptory challenges to exclude blacks and Latinos from the jury had deprived him of his right to an impartial jury. In response the Appellate Court adhered to the analysis in Swain v. Alabama, 380 U.S. 202, 227, 85 S.Ct. 824, 839, 13 L.Ed.2d 759 (1965), under which a defendant had to show systematic exclusion of minorities from actual jury service over a period of time before the burden shifted to the prosecutor to justify his actions.*fn3 Though Swain was an equal protection case, the Appellate Court applied its analysis to Allen's Sixth Amendment claim*fn4 as well as his equal protection argument. Because Allen had made no showing in the trial court of exclusion of minorities over time, the Appellate Court said, "it is clear that he has failed to establish the kind of systematic exclusion required by Swain." 96 Ill.App.3d at 875-76, 52 Ill. Dec. at 423, 422 N.E.2d at 104.

Waiver

Hardy first points to Allen's failure at his trial to present any evidence or to make an offer of proof of systematic exclusion of minorities over time. Under Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982) that failure is said to be a procedural default that bars federal habeas ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.