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.
Prior to his trial in the instant case, petitioner was
sentenced to ten years for the Class 2 felony, and thirty
years for the
Class 1 felony. At the time of sentencing, the trial judge
fully explained the minimum and maximum sentencing
possibilities for the two convictions. Before the trial in
this case, the judge again acknowledged petitioner's knowledge
of courtroom procedure, but nonetheless recommended that
petitioner be represented by counsel. Petitioner, with the
court's encouragement, agreed to have Mr. Kielian sit at
counsel table in order to act as a technical advisor. In
August, 1978, petitioner was convicted in a jury trial. On
October 16, 1978 petitioner was sentenced to thirty years in
prison for the fourth charge.
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 ...