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May 5, 1987


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 been determined.

    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 ...

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