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UNITED STATES EX REL. NIEVES v. O'LEARY

April 19, 1985

UNITED STATES OF AMERICA EX REL. AMERICA NIEVES, PETITIONER.
v.
MICHAEL O'LEARY AND NEIL F. HARTIGAN, RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

Petitioner Americo Nieves seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondents are Michael O'Leary, warden of Stateville Correctional Center, Joliet, Illinois and Neil F. Hartigan, Attorney General of Illinois. This action arises out of petitioner's August, 1978 conviction for the unlawful delivery of more than 15 grams of a substance containing heroin. Petitioner is presently serving a thirty year sentence for this conviction. During both the trial and the sentencing hearing petitioner proceeded pro se. Petitioner argues that the writ should be granted because (1) certain tape recorded evidence introduced at trial should have been suppressed, and (2) his waiver of the right to counsel was not knowing, intelligent, and voluntary. Petitioner has exhausted his state remedies.

Presently before this Court are cross motions for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated below, respondents' motion for summary judgment is granted. Petitioner's motion for summary judgment is denied.

Factual and Procedural Background

The facts are uncontroverted. Petitioner's indictment and conviction arose out of a sale of heroin to an undercover narcotics officer, Joseph Andalina, on January 13, 1978. Pursuant to a court order, officer Andalina tape recorded conversations with petitioner on January 12 and again on January 13, 1978. In these conversations, petitioner agreed to sell Andalina five to eight ounces of heroin. After officer Andalina paid petitioner $1,300 in marked currency at the agreed time and place, other officers arrested petitioner and recovered an additional 99.5 grams of heroin in bags hidden near a garbage can.

Petitioner was indicted on four charges which arose out of the series of events culminating in his arrest on January 13, 1978. Petitioner was tried separately on each charge, with the present case tried last. Prior to the first trial, petitioner's motion to suppress the tape recorded conversations on which these cases rested was denied.

In petitioner's first three trials, he was represented by Mr. Kielian of the public defender's office. On April 26, 1978, petitioner was convicted of unlawful delivery of less than 15 grams of a substance containing heroin, a Class 2 felony. On May 11, 1978, petitioner was convicted of unlawful delivery of more than 15 grams of a substance containing heroin, a Class 1 felony. Ill.Rev.Stat. ch. 56 1/2, ¶¶ 1401(a)(1), (b) (1977). The May 11, 1978 conviction concerned the same type of offense as that in the instant case. Petitioner was acquitted of the third related charge.

On June 26, 1978, petitioner asked to proceed pro se in this case, and the trial court granted petitioner's request. At the time petitioner requested permission to proceed pro se, the judge did not recite the specific litany required under Illinois law. Ill.Rev.Stat. ch. 110A, ¶ 401(a) (1977). Instead, the court explained that petitioner would have to abide by the rules of the court, and that he could lose his right to be present in the courtroom if his conduct did not conform to the rules. The judge stated that based on the first three trials he was convinced petitioner was fully competent to conduct his defense, but he nonetheless recommended against it. The judge permitted petitioner to proceed pro se only after he appointed Mr. Kielian as stand-by counsel.

Petitioner appealed his conviction to the Illinois Appellate Court on two grounds. First, he claimed that suppression of the recorded conversations between petitioner and an undercover police officer was required by the Illinois Code of Criminal Procedure, Ill.Rev.Stat. ch. 38, ¶ 108A-1 et seq. (1977), because the tapes in question were not turned over to the trial judge for sixteen days. Second, petitioner claimed that he did not effectively waive his right to counsel because the trial judge failed to give him the specific admonishments required by Illinois Supreme Court Rule 401(a). Ill.Rev.Stat. ch. 110A, ¶ 401(a) (1977).

The Illinois Appellate Court reversed and remanded petitioner's conviction holding that the admission into evidence of the tape recorded phone conversations was error.*fn1 People v. Nieves, 99 Ill. App.3d 447, 54 Ill.Dec. 695, 425 N.E.2d 560 (1981). The Illinois Supreme Court reversed on the suppression issue. People v. Nieves, 92 Ill.2d 452, 65 Ill.Dec. 917, 442 N.E.2d 228 (1982). In addition, the Illinois Supreme Court held that under the facts of this case, the specific admonishments of Supreme Court Rule 401(a) were not required. Id. In his petition for a writ of habeas corpus, petitioner again raises these issues.

Tape Recorded Conversations as Evidence

Petitioner claims that the tape recorded conversations between himself and Officer Andalina should have been suppressed because the tapes were obtained by unlawful eavesdropping, which he asserts was an unconstitutional search and seizure in violation of the fourth amendment. Respondents assert that petitioner has waived any constitutional claim because at no time prior to this federal habeas petition did he suggest that introduction of the tapes into evidence violated the fourth amendment. Rather, in his initial motion to suppress and subsequent state court appeals, petitioner argued only that the tapes were inadmissible because they were not turned over to the trial judge "immediately," as required by Ill.Rev.Stat. ch. 38, § 108A-7(b).

The Seventh Circuit has established that a state prisoner is barred from bringing a federal habeas petition on any claim that was not brought on direct appeal in the state court, unless the petitioner presents an adequate explanation for his action and shows an injustice which would result from the preclusive effect given to the procedural default. United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1983) (en banc). Petitioner has made no attempt in his ...


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