United States District Court, Northern District of Illinois, E.D
January 20, 1984
UNITED STATES OF AMERICA EX REL. EARL ALLEN, PETITIONER,
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
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
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
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.
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.
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 relief,
absent a showing of cause and actual prejudice. Allen offers a
1. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9
L.Ed.2d 770 (1963) allows for federal habeas
evidentiary hearings whenever there is not a full and
fair hearing in state court.
2. Because the Appellate Court decided the merits
of Allen's claim, the prior procedural default (if
any existed) would not bar habeas relief. See Engle,
456 U.S. at 135 n. 44, 102 S.Ct. at 1575 n. 44.
Hardy correctly urges the failure to make even an offer of
proof at trial on an evidentiary point is a state procedural
default. United States ex rel. Veal v. DeRobertis, 693 F.2d 642,
649-50 (7th Cir. 1982); United States ex rel. Broadnax v.
DeRobertis, 565 F. Supp. 327, 333 (N.D.Ill. 1983). And if Swain
states the constitutional rule, Allen's objection perforce
requires an evidentiary showing. To preserve the Swain issue for
a reviewing court, Allen's trial counsel should have made some
showing of exclusion of minorities over time. Absent that proof,
the reviewing court had no predicate for reversing the trial
court's decision.*fn5 Broadnax, 565 F. Supp. at 332-33.
Allen correctly says Townsend allows federal habeas courts to
hold evidentiary hearings. At the same time Townsend, 372 U.S. at
317, 83 S.Ct. at 759 defined the limits of that concept:
If, for any reason not attributable to the
inexcusable neglect of petitioner, see Fay v. Noia,
post [372 U.S. 391], p. 438
[83 S.Ct. 822 p. 848, 9 L.Ed.2d 837] (Part V),
evidence crucial to the adequate consideration of the
constitutional claim was not developed at the state
hearing, a federal hearing is compelled. The standard
of inexcusable default set down in Fay v. Noia
adequately protects the legitimate state interest in
orderly criminal procedure, for it does not sanction
needless piecemeal presentation of constitutional
claims in the form of deliberate by-passing of state
procedures. Compare Price v. Johnston, 334 U.S. 266,
291 [68 S.Ct. 1049, 1062, 92 L.Ed. 1356]: "The
primary purpose of a habeas corpus proceeding is to
make certain that a man is not unjustly imprisoned.
And if for some justifiable reason he was previously
unable to assert his rights or was unaware of the
significance of relevant facts, it is neither
necessary nor reasonable to deny him all opportunity
of obtaining judicial relief."
Since Townsend our Court of Appeals has determined the "cause
and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72
S.Ct. 2497, 53 L.Ed.2d 594 (1977) (as reaffirmed in Isaac) has
replaced Fay's "deliberate bypass" standard in determining the
effect of failure to raise an issue on appeal. Spurlark, 699 F.2d
at 357-61. Whether our Court of Appeals would also apply the
"cause and prejudice" standard in the Townsend context is
unresolved. See Thomas v. Zant, 697 F.2d 977
, 981-86 (11th Cir.
1983); Guice v. Fortenberry, 661 F.2d 496
, 507 n. 25 (5th Cir.
As the quoted Townsend language reflects, a federal evidentiary
hearing is dependent on a showing of no "inexcusable neglect."
Yet Allen's appointed counsel in this Court has suggested no
excuse for Allen's trial counsel's failure to make the offer of
proof.*fn6 Instead Allen contends no procedural default bars
habeas relief because the Appellate Court considered Allen's
claim on its merits.
Not so. All the Appellate Court decided was that no record
evidence supported Allen's claim under the Swain analysis, held
applicable to both his Sixth and his Fourteenth Amendment claims.
Indeed that was all the Appellate Court could do, given the lack
of record evidence and its refusal to change the constitutional
test. Broadnax, 565 F. Supp. at 332-33. If there is to be any
meaning to the notion a failure to offer evidence can be a state
procedural default, no "forgiveness" of that default can be found
in the Appellate Court's affirmance of the trial court based upon
the lack of such evidence.
In short Allen's failure to attempt any prima facie Swain
showing prevented the Appellate Court's decision about the
absence of such a showing from being a determination "on the
merits." In that context the Appellate Court cannot be deemed to
have "forgiven" Allen's failure to proffer evidence.
This Court is presently without the means to determine whether
Allen can show "excusable neglect" (Townsend) in the form of
"deliberate bypass" (Fay) or "cause and prejudice" (Spurlark and
Wainwright). Allen's counsel is ordered to address himself to
those issues promptly, on a schedule to be set at today's status
hearing. Allen's motion to authorize discovery must be deferred
pending resolution of that issue.