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U.S. EX REL. BISHOP v. CHRANS

September 27, 1984

U.S. EX REL. SHAJDON BISHOP, A/K/A EARL WILSON, PLAINTIFF,
v.
JAMES A. CHRANS, WARDEN AND ATTORNEY GENERAL OF ILLINOIS, DEFENDANTS.



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

                             MEMORANDUM OPINION
                                 AND ORDER

Petitioner, Shajdon Bishop, a/k/a Earl Wilson ("Wilson") has filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. Wilson is currently serving two concurrent terms of twenty-two years for rape and deviate sexual assault at the Pontiac Correctional Institution. On appeal, the Illinois Appellate Court affirmed the convictions, People v. Wilson, 87 Ill. App.3d 693, 42 Ill.Dec. 729, 409 N.E.2d 344 (1st Dist. 1980), and the Illinois Supreme Court denied leave to appeal.

Wilson challenges his convictions on the following grounds:

    1. The identification procedure used by the police
  was unduly suggestive.
    2. He was denied his constitutional right to counsel
  during that identification procedure.
    3. He was denied his right to a preliminary
  hearing.

4. His trial counsel was ineffective.

  5. His appellate counsel was ineffective.
    6. The State's proof was insufficient to convict him
  beyond a reasonable doubt.

Presently before the Court is a motion to dismiss by respondents, James A. Chrans, et al. For reasons set forth below, the motion to dismiss is granted.

Review of the Record

After a jury trial, Earl Wilson was convicted of rape and deviate sexual assault, acquitted of armed robbery, and given concurrent sentences of twenty-two years for each conviction. Wilson appealed his conviction to the Illinois Appellate Court, raising four issues: (1) he did not receive a fair trial because of the State's presentation of a prejudicial "theme of flight and escape" throughout the trial; (2) the denial of a preliminary hearing deprived him of equal protection of the laws; (3) certain hearsay evidence was improperly admitted; and (4) he was prejudiced by comments made in the State's closing argument. People v. Wilson, 87 Ill. App.3d 693, 695, 42 Ill.Dec. 729, 731, 409 N.E.2d 344, 346 (1st Dist. 1980). The appellate court affirmed the convictions. A pro se petition for rehearing was denied.

Wilson next filed a pro se petition for post-conviction relief pursuant
to Ill.Rev. Stat., ch. 38, ¶ 122 et seq., 1983, in which he alleged
that the identification procedure employed by the police was unduly
suggestive, in that one of the police officers pointed his finger at
Wilson and asked the victim if Wilson was her assailant. Additionally,
Wilson alleged that he was denied his constitutional right to counsel
during that identification procedure. A public defender was then
appointed, and he filed a supplemental petition raising Wilson's first two
claims and also a claim of ineffective assistance of trial counsel. The
State moved to dismiss both petitions because the issues raised in the
post-conviction relief petition were taken from the trial record and
therefore res judicata. The trial court granted the State's motion. On
appeal, Wilson again acting pro se offered the same issues submitted in
the previous petitions, and also raised the issue that the victim failed
to give the arresting officers a detailed description of her assailant
prior to Wilson's arrest. The appellate court held that the issues
presented by Wilson in his petitions for post-conviction relief should
have been presented in his direct appeal and were therefore waived.
Further, the court held that the trial court properly imposed the
doctrine of res judicata as to all issues previously presented to the
trial and appellate courts. People v. Wilson, 109 Ill. App.3d 1213,  71
Ill.Dec. 887, 451 N.E.2d 1041 (1st Dist. 1982).

After careful review of the record in this case, we hold that since Wilson has failed to follow Illinois' procedural rules, he has waived the issues presented by the instant petition. Respondents ...


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