The opinion of the court was delivered by: Bua, District Judge.
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Illinois Appellate Court in an unpublished order.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Appellate Court in an unpublished order.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.
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
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
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
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 ...