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UNITED STATES EX REL. GUILLEN v. DEROBERTIS

March 6, 1984

UNITED STATES OF AMERICA EX REL. JOSE GUILLEN, PETITIONER,
v.
RICHARD DEROBERTIS, ET AL., RESPONDENTS.



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

  OPINION

Petitioner Jose Guillen is an inmate at the Stateville Correctional Center in Joliet, Illinois. In a bench trial in the Circuit Court of Cook County held in December, 1974, he was convicted of one count of murder and two counts of attempted murder. He was sentenced to serve concurrent terms of 50 to 100 years for the murder and 10 to 30 years for each count of attempted murder. His conviction was affirmed by the Illinois Appellate Court in an unpublished order. People v. Guillen, 43 Ill.App.3d 1073, 4 Ill.Dec. 956, 360 N.E.2d 1389 (1st Dist. 1976). His appeal from the denial of a post-conviction hearing was also affirmed by the Illinois Appellate Court in an unpublished order. People v. Guillen, 108 Ill. App.3d 1209, 68 Ill.Dec. 583, 446 N.E.2d 317 (1st Dist. 1982).

Before the court is respondents' motion to deny and dismiss Guillen's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, respondent's motion to deny and dismiss is hereby granted. The assertions of the petitioner will be considered seriatim.

I. Guilt Beyond a Reasonable Doubt

Petitioner's first asserted ground for relief is that he was not proven guilty beyond a reasonable doubt. In support of this contention petitioner cites the trial testimony of six witnesses, which, he claims, shows that the state did not discharge its burden of proof.

Under § 2254, a state prisoner is entitled to a determination whether the record evidence could support a finding of guilt beyond a reasonable doubt, Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979). The standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Findings of fact are entitled to a presumption of correctness. Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

Under the facts of this case, it is clear that a rational trier of fact could have found petitioner guilty beyond a reasonable doubt. At trial, the testimony of two witnesses was received who identified the petitioner as the one who shot at the bartender, Julio Ortiz. There was also evidence which indicated that the petitioner shot Officer Wasco. However, direct evidence that the petitioner shot Officer Wasco was not necessary, because under Illinois law, the petitioner could be found accountable for the conduct of an accomplice under the felony murder doctrine. Ill.Rev.Stat. 1971, ch. 38, par. 9-1(a)(3). Since there was testimony that indicated that the petitioner was acting in concert with another shooter, there was ample evidence that would make petitioner accountable for the attempted murder of Officer Wasco. There is also sufficient evidence from which the finder of fact could hold petitioner accountable for the death of the second policeman, Officer Strugala. The record reveals testimony which supports the theory that petitioner set in motion a train of events which led to the death of Officer Strugala. As the Illinois Appellate Court noted, the fact that it may be impossible to determine who shot Officer Strugala is immaterial as the operation of the felony-murder statute imposes liability on individuals who are in the act of committing a forcible felony when the killing occurs if such felonious acts lead to the death. Viewing the evidence in the light most favorable to the prosecution, this court cannot say that no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. To the contrary, this court finds substantial evidence upon which the trier of fact could have based his conclusions. Accordingly, petitioner's first claim is dismissed.

II. Denial of Effective Assistance of Counsel

Petitioner's second assertion is that he was denied his right to effective assistance of counsel. The petitioner's bond had been set at $10,000. Later, that same day, the bond court proceeded with a hearing on the State's motion for vacation of bond. This was done in the absence of petitioner's private counsel. However, petitioner was represented by an assistant public defender at the second bond hearing. The court granted the State's motion and vacated the previously set bond.

The Illinois Appellate Court held that the order revoking bond was an appealable order under Ill.Rev.Stat. 1973, ch. 110A, ¶ 604(C), and that the petitioner's failure to timely appeal the order, precluded any consideration of the order's propriety. See People v. Henderson, 36 Ill.App.3d 355, 344 N.E.2d 239 (1st Dist. 1976).

A state prisoner, who is barred by procedural default from raising a constitutional claim on direct appeal, cannot litigate that claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Clearly, petitioner had the opportunity to appeal the bond revocation with the aid of his private counsel. His failure to comply with the state procedural rule requiring an appeal of bail orders before conviction waives petitioner's right to raise the issue in this proceeding. Petitioner has made no attempt to assert either the cause for the failure to appeal or the actual prejudice which resulted from his failure to appeal, nor does it appear that such assertions could successfully be made. Absent these essential elements, this court is without the power to consider petitioner's claim that he was denied effective assistance of counsel at the bond revocation hearing. Petitioner's allegation that he was denied effective assistance of counsel is hereby dismissed.

III. Denial of Request for New Counsel

Petitioner's third contention is that his Sixth and Fourteenth Amendment rights were violated when the trial court denied his request for new counsel and counsel's motion to withdraw.

The Illinois Appellate Court noted that the request for new counsel was made on the day of trial. The Court also found that the petitioner was represented by counsel for three months and had indicated no dissatisfaction until the time of trial. The petitioner had not indicated the source of his dissatisfaction or that he would be able to obtain other counsel. The case had been set for trial and witnesses had arrived from Texas and Mexico. The court found that counsel afforded the petitioner "very competent ...


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