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 ...