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 representation" at
trial and that there was no evidence that petitioner was
prejudiced by the trial court's denial of the motions.
There is no absolute right to counsel of one's choosing and
a mere denial of a continuance to substitute counsel does not
deprive a defendant of any constitutional right. U.S. ex rel.
Baskerville v. Deegan, 428 F.2d 714 (2d Cir. 1970). Courts must
carefully consider requests for appointment of new attorneys to
be sure that such requests are not interposed for delay. United
States v. Llanes, 374 F.2d 712 (2d Cir. 1967).
Where, as in this case, the request for new counsel was made
on the day trial was to begin and the petitioner had not
indicated his dissatisfaction with counsel prior to that time,
it cannot be said that the trial court abused its discretion
in denying petitioner's or his counsel's motion. It is more
likely that the motions were made to delay
the trial and thus were correctly denied. Petitioner's third
claim is thus dismissed.
IV. Improper Argument in Aggravation at the Sentencing
Petitioner next claims that his right to a fair sentencing
hearing in aggravation and mitigation was violated when the
prosecution presented a false summarization of trial testimony
to the court. Specifically challenged are the statements of
the prosecution that a police officer had testified that
petitioner had fired shots at him and that petitioner had a
handkerchief on his head when he walked out of the bar where
the incident occurred.
From the record, it is apparent that a lay witness, and not
a police officer, testified that petitioner fired shots at the
officer. Further, nowhere in the record is there any evidence
that petitioner did indeed have a handkerchief on his head
when he left the bar.
The inaccuracies of the summary notwithstanding, petitioner
has failed to state a claim based on improper argument at the
sentencing hearing. Under Illinois law, it must be apparent
that the sentence a defendant receives was affected by the
inadmissible statements to the substantial prejudice of the
defendant. People v. Flynn, 23 Ill.App.3d 730, 320 N.E.2d 138
(1974). In addition, it is presumed that, having heard the
trial testimony, the sentencing judge would disregard any
incompetent or otherwise improper evidence. People v.
McCullough, 5 Ill.App.3d 796, 283 N.E.2d 926 (1972). Plaintiff
has not specifically alleged any connection between the
misstatements and the length of his sentence and has wholly
failed to overcome the presumption that the sentencing judge
disregarded the improper statements.
Even if a connection had been shown between the improper
statements and the severity of petitioner's sentence, such a
showing would not be of constitutional magnitude. This is
especially so where, as here, there is no allegation of
prosecutorial misconduct so severe as to devastate the
fairness of the proceeding so as to constitute a denial of due
process. U.S. ex rel. Burnett v. State of Illinois,
619 F.2d 668 (7th Cir. 1980); Higgins v. Wainwright, 424 F.2d 177 (5th
The length of a sentence is purely a matter of legislative
prerogative. Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70
L.Ed.2d 556 (1982); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct.
1133, 63 L.Ed.2d 382 (1980). As the sentences given petitioner
in the case at bar are within the legislated limits, and as no
prejudicial prosecutorial misconduct is alleged, petitioner's
claim that he was unconstitutionally prejudiced by the
prosecution's improper argument at the sentencing hearing is
V. Denial of Motion for New Trial
Petitioner's fifth contention is that the trial court's
denial of his motion for a new trial based on newly discovered
evidence violated his right to due process of law.
Petitioner's motion was not supported by any affidavits.
Further, the proposed evidence relied on was the statement of
a relative of the petitioner who had given different testimony
when he appeared before the grand jury prior to petitioner's
The Illinois Appellate Court held that the evidence which
might have been introduced did not come under the category of
newly discovered evidence because the identity of the witness
was known to both sides at trial and, at best, would merely
contradict or impeach the evidence heard at trial. Saying that
the granting of the motion was discretionary with the trial
court and would only be reversed in cases of manifest abuse,
the court concluded that the denial of the motion by the trial
court was not an abuse of discretion.
The existence of newly discovered evidence relevant to the
guilt of a defendant is not a ground for relief in a federal
habeas corpus proceeding. Townsend v. Sain, 372 U.S. 293, 83
S.Ct. 745, 9 L.Ed.2d 770 (1963). Thus, even if petitioner's
discoveries could be classified as "newly discovered evidence,"
this court could not afford him relief. Petitioner, however,
attacks the denial of the motion as lacking due process.
The standard for determining whether or not a motion for a new
trial will be granted is a matter of state law and unless
there is a denial of fundamental fairness or the denial of a
specific constitutional right, no constitutional issue is
involved. See United States ex rel. Harris v. Illinois,
457 F.2d 191 (7th Cir. 1972), cert. denied, 409 U.S. 860, 93 S.Ct.
147, 34 L.Ed.2d 106 (1972); Cramer v. Fahner, 683 F.2d 1376
(7th Cir. 1982). Such rights are not implicated in the case at
bar. As no matter of constitutional magnitude is involved in
this issue, this Court will not disturb the ruling of the
Illinois Appellate Court. That court's ruling is based solely
on Illinois law and cannot be considered by this Court.
VI. Dismissal of Post-Conviction Petition
Petitioner's final contention is that he was denied due
process of law when the Circuit Court of Cook County dismissed
his post-conviction petition without a hearing. In the
post-conviction petition, the petitioner alleged that the
State, through threats and bribes, used perjured testimony to
convict him. He also alleged that the threats and bribes were
used to prevent potential witnesses from testifying on his
The Illinois Appellate Court, in an unpublished opinion,
People v. Guillen, 108 Ill. App.3d 1209, 68 Ill.Dec. 583,
446 N.E.2d 317 (1st Dist. 1982), held that the post-conviction
petition was properly dismissed. The court held that the
allegations of perjury were conclusory and that there was
therefore no need for an evidentiary hearing on the issue. With
regard to the allegation that threats and bribes were used to
prevent potential witnesses from testifying on his behalf, the
court held that one witness' testimony could not be considered
on res judicata grounds. As for the other two witnesses, the
court held that their testimony that the petitioner did not
shoot at any police officer would have made no difference since
the evidence also supported petitioner's conviction under the
felony-murder and accountability statutes.
Where the petitioner in a habeas corpus proceeding alleges
that perjured testimony was used against him to obtain his
conviction, he has the burden of proving the perjury and that
it was knowingly and intentionally used by the prosecution.
U.S. ex rel. Wilson v. Pate, 332 F.2d 886 (7th Cir. 1964). The
Illinois Appellate Court found that petitioner's perjury
allegations were conclusory and that therefore no evidentiary
hearing was required. This Court agrees and accordingly denies
petitioner's final contention.
The petitioner in the case at bar has, for the foregoing
reasons, failed to state a claim which is cognizable under
federal habeas review under 28 U.S.C. § 2254. Accordingly, the
petition for a writ of habeas corpus is denied and dismissed.
IT IS SO ORDERED.
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