United States District Court, Northern District of Illinois, E.D
April 19, 1985
UNITED STATES OF AMERICA EX REL. AMERICA NIEVES, PETITIONER.
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.
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 habeas
petition to present any explanation of why he did not raise a
fourth amendment claim in the state court appeals.
It is possible, however, for a federal constitutional claim
to be preserved for purposes of a writ of habeas corpus
without being characterized as such. A habeas petitioner must
provide the state courts with a fair opportunity to apply
constitutional principles and correct any constitutional error
committed by the trial court. Anderson v. Harless, 459 U.S. 4,
103 S.Ct. 276, 74 L.Ed.2d 3 (1982). The Seventh Circuit,
however, has refused to apply a per se rule requiring a
petitioner to use certain magic words to alert the state court
to the constitutional ramifications of the alleged trial error.
United States ex rel. Sullivan v. Fairman, 731 F.2d 450 (7th
Cir. 1984). The court identified four alternate means of doing
. . where the argument presented to the state
court does not: "(a) rel[y] on pertinent federal
cases employing constitutional analysis; (b)
rel[y] on state cases
employing constitutional analysis in like fact
situations, (c) assert the claim in terms so
particular as to call to mind a specific right
protected by the Constitution, . . . [or] (d)
alleg[e] a pattern of facts that is well within
the mainstream of constitutional litigation,"
Daye v. Attorney General of New York, 696 F.2d 186,
194 (2d Cir. 1982) (en banc), we cannot say that
the state court has considered or had a fair
opportunity to consider and correct the
subsequently alleged constitutional violations.
Id. at 454.
In his argument to the state courts, petitioner never relied
on federal or state cases applying constitutional analysis to
similar fact situations. And neither the claim asserted nor
the pattern of facts alleged bring to mind a fourth amendment
violation. In his state court appeals, petitioner claimed only
a violation of Ill.Rev.Stat., ch. 38, ¶ 108A-5(a)(3). Section
108A-5(a)(3) requires that immediately after the expiration of
the period of a judicial order allowing eavesdropping, all
recordings shall be made available to the judge issuing the
order; the judge shall listen to the tapes, determine if the
conversations thereon are within his order, and seal the
recordings. Because there was a sixteen day delay in turning
over the tapes, petitioner claimed that the State failed to
adhere to the Section 108A-7 "immediacy" requirement and that
this violation required suppression.
The Illinois Supreme Court extensively analyzed the
immediacy issue, employing federal appellate court analysis of
the similarly worded federal counterpart to the Illinois act,
18 U.S.C. § 2518(8)(a). People v. Nieves, 92 Ill. at 457-61, 65
Ill.Dec. at 920-22, 442 N.E.2d at 231-33. The court held that
in the absence of any challenge to the integrity of the tapes,
and with the lack of any indication that tampering had
occurred, the legislative purpose of preserving the integrity
of the tapes had been achieved, despite the delay. Because the
legislative purpose had been fulfilled and because there was no
evidence of bad faith by the State or prejudice to Nieves by
the delay in review and sealing, the Illinois Supreme Court
held that the tapes were admitted properly at trial. Id. at
463, 65 Ill.Dec. at 922-23, 442 N.E.2d at 233-34.
The opinion of the state supreme court indicates that it
discerned no fourth amendment implications. The state court
focused its inquiry on whether, despite the delay in judicial
review and sealing, the tapes remained reliable evidence.
Conversely, fourth amendment analysis asks whether, regardless
of the reliability of the evidence, it should be suppressed as
the product of an unreasonable search and seizure. The focus
of the inquiry is whether the method of obtaining the evidence
violated the defendant's legitimate expectations of
privacy.*fn2 Therefore, it cannot be said that petitioner in
any way alerted the state court to his fourth amendment claim.
This Court holds that petitioner has waived any
constitutional claim with regard to the tape recorded
evidence. Thus, respondents' motion for summary judgment as to
petitioner's fourth amendment claim is granted.*fn3
Waiver of Counsel
Petitioner claims that he proceeded to trial pro se without
knowingly and intelligently waiving his right to counsel, in
violation of the sixth and fourteenth amendments.*fn4
Petitioner bases his claim on the trial judge's failure to
admonish him of the nature of the charge against him and the
minimum and maximum sentences prescribed by law, including the
impact of his prior convictions, in violation of Illinois
Supreme Court Rule 401(a), Ill.Rev.Stat. ch. 110A, ¶
The Illinois Supreme Court has held that, under the facts
and circumstances of this case, it was unnecessary for the
trial court to give the specific admonishments set forth in
Rule 401(a). People v. Nieves, 92 Ill.2d at 467, 54 Ill.Dec. at
925, 442 N.E.2d at 236 (1982). The court found that the record
revealed: that defendant recently had been tried on three
related charges; that prior to the fourth trial, the same trial
judge fully explained to defendant the minimum and maximum
sentencing possibilities for the other two convictions, one of
which was for a charge identical to that in the fourth trial;
that the defendant did not lack legal sophistication; and that
defendant sought and was granted the "technical assistance" of
stand-by counsel. Id. at 466, 54 Ill.Dec. at 924-25, 442 N.E.2d
at 235-36. On that basis, the court held that the record
disclosed that Nieves was fully cognizant of the charge, the
possible penalties to be imposed, and his right to counsel.
Id., 54 Ill.Dec. at 925, 442 N.E.2d at 236.
In his state court appeals, petitioner never specifically
raised a federal constitutional claim; rather, he argued
solely that the trial judge violated Illinois Supreme Court
Rule 401(a). The Illinois Supreme Court's interpretation of
this state law is, of course, binding on this Court, absent a
showing that the law conflicts with the Constitution or
federal law. Herb v. Pitcairn, 324 U.S. 117, 125-26, 65 S.Ct.
459, 463, 89 L.Ed. 789 (1945). This Court finds, however, that
petitioner preserved his federal constitutional claim for
purposes of this petition for a writ of habeas corpus, although
the claim was not characterized as such, because he alleged "a
pattern of facts that is well within the mainstream of
constitutional litigation." Sullivan, 731 F.2d at 454 (citation
It is well established in United States Supreme Court cases
. . waivers of counsel must not only be
voluntary, but must also constitute a knowing and
intelligent relinquishment or abandonment of a
known right or privilege, a matter which depends
in each case `upon the particular facts and
circumstances surrounding that case, including
the background, experience, and conduct of the
Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1884, 68
L.Ed.2d 378 (1981), quoting Johnson v. Zerbst, 304 U.S. 458,
464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The Supreme
Court has set forth certain information that a defendant should
be aware of in relinquishing his right to counsel:
To be valid such waiver must be made with an
apprehension of the nature of the charges, the
statutory offenses included within them, the range
of allowable punishments thereunder, possible
defenses to the charge and circumstances in
mitigation thereof, and all other facts essential
to a broad understanding of the whole matter.
Von Moltke v. Gillies, 332 U.S. 708
, 723-24, 68 S.Ct. 316, 323,
92 L.Ed. 309 (1948) (emphasis added).*fn6
The language of
these Supreme Court guidelines indicates that there is no per
se rule that failure to expressly inform a defendant of the
nature of the charge and the minimum and maximum sentence
renders his waiver of counsel unconstitutional. Rather, the
constitutionality of a waiver of counsel turns on the
particular facts and circumstances of the case, including
defendant's awareness of the consequences of his decision. The
case law bears out this conclusion.
The Seventh Circuit has held on several occasions that where
a defendant was acquainted with the criminal process, had past
experience with the consequences of a conviction, had
knowledge of the benefits of counsel from prior criminal
trials, and knew of the seriousness of the charge, that that
defendant's waiver of counsel was intelligently made despite
the fact that no one had expressly told him of the nature of
the charge and the range of possible punishments.
Creighbaum v. Burke, 398 F.2d 822 (7th Cir.), cert. denied,
393 U.S. 955, 89 S.Ct. 386, 21 L.Ed.2d 368 (1968) and Cox v. Burke,
361 F.2d 183 (7th Cir.), cert. denied, 385 U.S. 939, 87 S.Ct.
304, 17 L.Ed.2d 218 (1966).
As the court stated in Creighbaum: "It was reasonable for the
state trial court to conclude, under the circumstances, that
the petitioner fully appreciated the implications of his waiver
of counsel . . . without having been expressly reminded of the
precise range of punishment awaiting him. . . . A decision to
the contrary would represent a triumph of form over substance."
Creighbaum, 398 F.2d at 823, quoting Creighbaum v. Burke,
287 F. Supp. 463 (E.D.Wis. 1967). Accord Aiken v. United States,
296 F.2d 604 (4th Cir. 1961).
In the instant case, too, the circumstances indicate that
petitioner Nieves was fully cognizant of the implications of
his waiver of counsel, despite the absence of an express
warning of the possible sentence for the charge. He recently
had gone through three criminal trials on related charges,
involving many of the same witnesses and possible defenses,
represented by a public defender. Thus, Nieves had knowledge
of both the criminal process and the benefits of counsel.
Further, petitioner was fully aware of the nature and
seriousness of the charge: he had just been convicted of an
identical statutory offense. At the sentencing for that
charge, which was prior to his pro se trial, the minimum and
maximum sentences were fully explained to him. As for
petitioner's claim that his waiver of counsel could not be
voluntary unless the trial judge explained to him whether his
sentences would be concurrent or consecutive and the effect of
his prior convictions on his possible sentence, at least one
court has held that a defendant is not entitled to such
knowledge. Burch v. United States, 359 F.2d 69 (8th Cir. 1966).
In Burch, the Eighth Circuit held that the petitioner was
entitled to know only the range of potential penalties, which
fact, as here, petitioner "undoubtedly knew." Id. at 73. In
addition, it is interesting to note
that petitioner received an identical sentence for each of his
convictions for unlawful delivery of more than 15 grams of a
substance containing heroin: 30 years. It would indeed be
exalting form over substance to find that, because the trial
judge omitted several express statements, petitioner was
unaware of the nature of the charge or the range of possible
sentences, and this Court declines to do so.
Furthermore, while courts in several circuits have held
petitioners' waivers of counsel unconstitutional due to the
trial judges' failure to inform them of sentencing
possibilities, these cases are all distinguishable from the
instant petition. For example, in Evans v. Raines,
705 F.2d 1479 (9th Cir. 1983), the court held: "In the absence of some
knowledge of Evans' understanding of the seriousness of the
charges, it cannot be said that he intelligently waived
counsel." Id. at 1480 (emphasis added). In Evans, there was no
record evidence to indicate that petitioner would know the
seriousness of the charge without an express judicial warning.
Similarly, in Molignaro v. Smith, 408 F.2d 795 (5th Cir.
1969), the fifth circuit held that Molignaro's waiver of
counsel was not knowing because there was no evidence that he
was aware of the twenty year maximum sentence for his charge of
child molesting. The court took care to note: "We rule only
upon the specific circumstances of Molignaro's plea: his lack
of education, lack of previous criminal record, and the
unlikelihood that a layman would be able to anticipate the
length of the sentence for the crime of which he was accused."
Id. at 802.
In the instant case, unlike in Molignaro and Evans, the
record abounds with evidence that Nieves was fully aware of his
potential sentence. This Court finds that petitioner's waiver
was made with an apprehension of the nature of the charge and
the range of potential penalties. Therefore, this Court holds
that petitioner's waiver of counsel was voluntary, knowing, and
intelligent and grants summary judgment to respondents on
petitioner's sixth amendment claim.
For the reasons stated above, this Court grants respondents'
motion for summary judgment on Americo Nieves' petition for a
writ of habeas corpus. Petitioner's motion for summary
judgment is denied.