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United States District Court, Northern District of Illinois, E.D

January 20, 1984


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


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
  "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.


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.


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 twofold response:

    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, 97 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. 1981).

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.

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