The opinion of the court was delivered by: Baker, Chief Judge.
The petitioner, currently incarcerated at the Pontiac
Correctional Center, seeks habeas corpus relief pursuant to
28 U.S.C. § 2254. The respondent has submitted an answer in
response to the petition for a writ of habeas corpus, and
requests this court to deny the petition. The court construes
this request as a motion for a judgment on the pleadings.
The petitioner was convicted of two counts of attempted
murder, one count of armed robbery, and one count of unlawful
use of weapons on April 11, 1983, in the Circuit Court of Cook
County. The petitioner was adjudged a habitual criminal and
sentenced to natural life imprisonment. On July 10, 1985, the
Illinois Appellate Court confirmed his conviction and
sentence. The Illinois Supreme Court, on February 5, 1986,
denied leave to appeal. It appears that the petitioner has
exhausted his available state court remedies.
In his petition for habeas relief, the petitioner raises
essentially three issues. In ground one of his petition, the
petitioner complains that ineffective assistance of counsel
and improper tactics by the prosecutor deprived him of his due
process rights. The court construes ground one as presenting
two separate issues: ineffective assistance of counsel and
prosecutorial misconduct. The third issue raised by the
petitioner is the constitutionality of the Illinois Habitual
Criminal Act under the Eighth and Fourteenth Amendments.
In ground two of his petition, Sylvester Robinson also
complains that the Illinois Habitual Criminal Act violates the
Illinois Constitution. This court is without jurisdiction to
decide such an issue. United States ex rel. Hoover v. Franzen,
669 F.2d 433, 443 (7th Cir. 1982).
The court finds, upon a thorough review of the record and
the documents submitted for review, that the petitioner fails
to present a claim meriting habeas relief. The petitioner's
request for habeas corpus relief is therefore denied. This
ruling is based upon the following findings.
In making its findings, the court has relied upon the
factual summaries contained in the appellate court opinion,
People v. Sylvester Robinson. See Green v. Greer, 667 F.2d 585
(7th Cir. 1981). Those factual summaries are presumed to be
correct. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101
S.Ct. 764, 66 L.Ed.2d 722 (1981).
The appellate court stated that the following facts have
At 3:00 a.m. on May 5, 1982, Albert Stiff
stopped his semi-trailer truck near a closed gas
station located at Harrison and Homan Streets in
Chicago to use an outside pay telephone. After a
man in a red T shirt approached Stiff and asked
for a light, defendant, who was holding a
sawed-off shotgun, stepped in front of Stiff and
announced a robbery. Stiff testified that
defendant was wearing a black leather jacket,
blue jeans and a dark shirt. The first man took
Stiff's watch, money clip containing $130, and a
diamond ring. Defendant took a gold chain and a
black orchid ring.
The men then walked Stiff to his truck and
instructed him to get into his cab. Defendant
tried to enter the truck on the passenger side,
but could not do so. Defendant stood outside on
the fuel tank and pointed his gun at Stiff. When
a police squad car passed, defendant fell from
the cab causing his gun to discharge. When the
police officer returned, Stiff informed him that
he had just been robbed. The officer drove in the
direction of the fleeing defendant. After the
officer returned, Stiff told him about the man in
the red T shirt.
Officer James Bland testified that he had just
passed the parked trailer truck when he saw
defendant jump from the passenger side of the
truck. The officer then heard an explosion when
defendant hit the ground. Bland turned the squad
car and saw defendant flee carrying a shotgun.
After Stiff informed him that he had been robbed,
Bland pursued defendant but lost sight of him.
Bland radioed that he was chasing a black man
about 5 feet 6 inches to 5 feet 8 inches in
height, weighing 160 to 180 pounds, wearing a
short black leather jacket, blue jeans, and a
dark shirt. Bland gave the direction of
defendant's flight and said that he was wanted
for armed robbery. Bland cruised the area and
apprehended two suspects, but Stiff stated that
they were not the robbers. Officers McGaha and
Bolling radioed that they had seen defendant and
that he had shot at each of them. When Bland
returned to his squad car, he saw defendant whom
he and another officer chased on foot. After
defendant was ordered to stop, he turned and
aimed his shotgun. Bland fired at defendant, and
defendant flinched. Bland fired a second shot and
defendant stumbled backward. Officer Bolling
approached defendant, placed his foot on the
shotgun which was still strapped to defendant's
shoulder, then picked up the gun. While Bolling
searched defendant, Bland unloaded the shotgun.
On April 11, 1983, in the Circuit Court of Cook County,
following a jury trial, the petitioner was convicted of armed
robbery, two counts of attempted murder, and unlawful use of
a weapon. He was found to be a habitual criminal and was
sentenced to a term of natural life in prison. The Illinois
Appellate Court, on July 10, 1985, affirmed the ...