United States District Court, Central District of Illinois, Danville Division
May 5, 1987
UNITED STATES EX REL. SYLVESTER ROBINSON, PETITIONER,
JAMES A. CHRANS, RESPONDENT.
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.
I. STATEMENT OF FACTS
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 convictions
and sentence. On February 5, 1986, the Illinois Supreme Court
denied leave to appeal.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
The petitioner contends that he was denied the benefit of
effective assistance of counsel. Specifically, the petitioner
complains that his trial attorney did not file a discovery
motion; that while the State's answer to discovery is a part
of the trial court record, R. 485, it is unclear that the
defense attorney ever received or studied that document; that
his defense attorney made no request for an update of the
State's discovery; that the defense attorney lacked in
pretrial preparation, had no clearcut theory of the case and
was, in effect, improvising as he went along; that the defense
attorney summoned Joseph Nichols, a firearms expert, at the
last minute, and allowed Nichols to give damaging testimony;
that defense counsel did not object to the State's motion to
add Willa Booker as a witness; and that the defense counsel
did not object to the State's Attorney's closing argument.
In order to establish a claim of ineffective assistance of
counsel, the defendant must first establish that counsel's
performance was deficient. Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). This
requires showing that counsel made errors so serious that he
was not functioning as "counsel" guaranteed the defendant by
the Sixth Amendment. Id. Second, the defendant must establish
that the deficient performance prejudiced his defense.
Counsel's errors must have been so serious as to deprive the
defendant of a fair trial. Id. In sum, "the benchmark for
judging any claim for ineffectiveness must be whether counsel's
conduct so undermined the proper functioning of the adversarial
process that the trial cannot be relied upon as having
produced a just result." Id. at 686, 104 S.Ct. at 2064. The
petitioner bears the burden of proof as to both components. Id.
at 687, 104 S.Ct. at 2064.
The petitioner has not shown that his counsel's performance
was deficient. The record reflects that the petitioner's
counsel was prepared and performed well in his defense of the
petitioner's case. It is not, however, necessary to rule
definitively on the question of counsel's performance in this
case. For even if counsel's performance could be deemed
deficient, which it was not, the petitioner has not shown that
he was prejudiced by the alleged deficient performance. As
noted above, in order to establish a Sixth Amendment
inefficient counsel claim, a petitioner must show both a
deficient performance and prejudice. The Supreme Court noted
in Strickland that a district court may determine prejudice
before determining performance.
[A] court need not determine whether counsel's
performance was deficient before examining the
prejudice suffered by the defendant as a result
of the alleged deficiencies. The object of an
ineffectiveness claim is not to grade counsel's
performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of
sufficient prejudice, which we expect will often
be so, that course should be followed.
Id. at 697, 104 S.Ct. at 2064; see also United States ex rel.
Cross v. DeRobertis, 811 F.2d 1008, 1013 (7th Cir. 1987).
In order to establish prejudice, the petitioner must show
that there is a reasonable probability that absent the alleged
errors of counsel, the factfinder would have had a reasonable
doubt respecting guilt. Strickland, 466 U.S. at 695, 104 S.Ct.
at 2068; Cross, 811 F.2d at 1015. No such showing is made here.
Had defense counsel done things differently, if he had
corrected his alleged deficiencies, there is no reasonable
probability that the result would have been different. The
evidence convicting Robinson was overwhelming. See Statement of
Facts, supra. The standard to show ineffective assistance of
counsel is quite rigorous; the petitioner has not met that
standard. Petitioner's complaints that he was denied effective
assistance of counsel are without substance.
III. PROSECUTORIAL MISCONDUCT
The petitioner raises numerous instances of allegedly
improper argument on the part of the prosecutors: the
prosecutors constantly stated that the petitioner, in their
opinion, was guilty; the prosecutors referred to the
"ridiculous" nature of the defense theory of the case; the
prosecutors improperly commented on the veracity and
credibility of the State's witnesses; the prosecutors touted
the "excellent" police work by veteran officers in the "finest
police department in the country"; the prosecutors argued the
facts incorrectly; and the prosecutors argued the speculative
nature of the harm that the victim was exposed to. The
petitioner argues that these remarks were improper, prejudiced
the petitioner, and denied him a fair trial.
The standard for determining whether prosecutorial comments
during closing argument violated a defendant's due process
rights was set forth by the Supreme Court in Darden v.
Wainwright, ___ U.S. ___, ___, 106 S.Ct. 2464, 2471, 91 L.Ed.2d
144 (U.S. 1986):
[I]t "is not enough that the prosecutor's remarks
were undesirable or even universally condemned."
Darden v. Wainwright, 699 F.2d 1031, 1036 (CA11
1983). The relevant question is whether the
prosecutor's comments "so infected the trial with
unfairness as to make the resulting conviction a
denial of due process." Donnelly v. DeChristoforo,
416 U.S. 637 [94 S.Ct. 1868, 40 L.Ed.2d 431]
The petitioner cites to many instances of impropriety, most
of which have been taken out of context. A review of the
record fails to show any statement or combination of
statements which so infected the trial with unfairness as to
make the resulting conviction of Sylvester Robinson a denial
of due process. The prosecutors did not misstate the evidence,
nor were their remarks prejudicial or inflammatory. The
petitioner's allegations of impropriety,
whether standing alone or together, simply do not amount to
IV. ILLINOIS HABITUAL CRIMINAL STATUTE
The petitioner argues that the Illinois Habitual Criminal
Act, Ill.Rev.Stat. ch. 38, ¶ 33B-1, under which he was
sentenced, is unconstitutional under the Eighth and Fourteenth
Amendments of the United States Constitution. In particular,
the petitioner challenges the statute because it gives the
prosecutor the discretion to decide which defendants will be
sentenced under the Act and it does not allow for the
consideration of mitigating factors.
The court notes at the outset the difficulty the petitioner
faces in challenging the constitutionality of the Habitual
Criminal Act. In Spencer v. Texas, 385 U.S. 554, 559, 87 S.Ct.
648, 651, 17 L.Ed.2d 606 (1967), a case concerning the
application of a recidivist statute, the Supreme Court stated,
"No claim is made here that recidivist statutes are themselves
unconstitutional, nor could there be under our cases. Such
statutes and other enhanced-sentence laws, and procedures to
implement their underlying policies have been enacted in all
the States, and by the Federal Government as well." (Footnotes
omitted.) Recidivist statutes and other enhanced-sentence laws
have been upheld by the Court over objections that they violate
constitutional strictures dealing with double jeopardy, ex post
facto laws, cruel and unusual punishment, due process, equal
protection, and privileges and immunities. See Rummel v.
Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980);
Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606
(1967); Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d
446 (1962); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92
L.Ed. 1683 (1948); Graham v. West Virginia, 224 U.S. 616, 32
S.Ct. 583, 56 L.Ed. 917 (1912); McDonald v. Massachusetts,
180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901); Moore v. Missouri,
159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301 (1895).
The petitioner challenges the constitutionality of Illinois
Revised Statute ch. 38, ¶ 33B-1 which provides that:
(a) Every person who has been twice convicted in
any state or federal court of an offense that
contains the same elements as an offense now
classified in Illinois as a class X felony or
murder, and is thereafter convicted of a class X
felony or murder, committed after the 2 prior
convictions, shall be adjudged an habitual
(e) Except when the death penalty is imposed,
anyone adjudged an habitual criminal shall be
sentenced to life imprisonment.
While this appears to be the first time this particular
provision of the Illinois Act has been challenged in the
federal courts, the Illinois courts have repeatedly upheld the
constitutionality of the Act over objections similar to those
raised here. See People v. Hartfield, 137 Ill. App.3d 679, 92
Ill.Dec. 281, 484 N.E.2d 1136
(1st Dist. 1985); People v.
Coleman, 128 Ill. App.3d 538, 83 Ill.Dec. 857, 470 N.E.2d 1277
(5th Dist. 1984); People v. Tobias, 125 Ill. App.3d 234, 80
Ill.Dec. 496, 465 N.E.2d 608
(1st Dist. 1984); People v.
Washington, 125 Ill. App.3d 109, 80 Ill.Dec. 554,
465 N.E.2d 666
(1st Dist. 1984); People v. Mason, 119 Ill. App.3d 516, 75
Ill.Dec. 43, 456 N.E.2d 864
(3d Dist. 1983); People v. Withers,
115 Ill. App.3d 1077, 71 Ill.Dec. 444, 450 N.E.2d 1323
Dist. 1983), cert. denied, 465 U.S. 1052
, 104 S.Ct. 1332
The petitioner first argues that the Illinois statute is
unconstitutional because it gives the prosecutor the
discretion to decide which defendants will be sentenced under
the Act. The petitioner's argument, however, ignores the
interpretation afforded the statute by the Illinois courts. In
People v. Withers, 115 Ill. App.3d at 1088, 71 Ill.Dec. 444,
450 N.E.2d 1323, the Illinois Appellate Court stated, "the
statute does not explicitly delegate to the State the power to
choose which defendants shall be made subject to its terms.
Rather, its provisions apply to `every person' who meets its
criteria." See also People
v. Coleman, 128 Ill.App.3d at 880-881, 83 Ill.Dec. 857,
470 N.E.2d 1277; People v. Tobias, 125 Ill.App.3d at 240-241, 80
Ill. Dec. 496, 465 N.E.2d 608; People v. Washington, 125
Ill.App.3d at 115, 80 Ill.Dec. 554, 465 N.E.2d 666; People v.
Mason, 119 Ill.App.3d at 522-523, 75 Ill.Dec. 43,
456 N.E.2d 864. The only discretion allowed the prosecutor is the manner
in which the defendant's prior conviction history is brought to
the attention of the court. People v. Withers, 115
Ill.App.3d at 1088, 71 Ill.Dec. 444, 450 N.E.2d 1323. The
interpretation of a state statute by a state appellate court is
generally accepted by a federal court and will not be disturbed
unless the court is convinced that the state supreme court
would decide the issue differently. In Re Air Crash Disaster
Near Chicago, Illinois, on May 15, 1979, 771 F.2d 338, 339 (7th
Cir. 1985). See also Commissioner v. Estate of Bosch,
387 U.S. 456, 87 S.Ct. 1776, 18 L.Ed.2d 886 (1967). There is nothing
present in the case at hand to convince the court that the
Illinois Supreme Court would interpret the Habitual Criminal
Statute in a manner inconsistent with the Illinois Appellate
courts' interpretation. In light of the Withers
interpretation, the petitioner's claim must fail in that the
prosecutor does not have the discretion to decide which
defendants will be sentenced under the Act.
Finally, the petitioner argues that the Illinois Habitual
Criminal Act is unconstitutional because it does not allow for
the consideration of mitigating factors. Under the Illinois
statutory scheme, once a defendant is adjudged an habitual
criminal, he or she is sentenced to life imprisonment.
See Ill.Rev.Stat. ch. 38, ¶ 33B-1(e). However, in order to be
adjudged an habitual criminal, the defendant must have been
thrice convicted of a Class X felony. The first two
adjudications afford the defendant the opportunity to present
mitigating evidence. Upon the third Class X felony conviction,
the presence of any mitigating factor is outweighed by
society's interest in being protected from criminal conduct.
See Rummel v. Estelle, 445 U.S. at 284-285, 100 S.Ct. at
1144-45; People v. Withers, 115 Ill.App.3d at 1090-1091, 71
Ill.Dec. 444, 450 N.E.2d 1323. See also People v. Hartfield,
137 Ill.App.3d at 691, 92 Ill.Dec. 281, 484 N.E.2d 1136; People
v. Coleman, 128 Ill.App.3d at 881-882, 83 Ill.Dec. 857,
470 N.E.2d 1277; People v. Tobias, 125 Ill.App.3d at 240-241, 80
Ill.Dec. 496, 465 N.E.2d 608; People v. Washington, 125
Ill.App.3d at 116, 80 Ill.Dec. 554, 465 N.E.2d 666; People v.
Mason, 119 Ill. App.3d at 523, 75 Ill.Dec. 43, 456 N.E.2d 864.
In Rummel, the Supreme Court, in upholding a mandatory life
sentence over Eighth and Fourteenth Amendment objections,
The purpose of a recidivist statute . . . is
not to simplify the task of prosecutors, judges,
or juries. Its primary goals are to deter repeat
offenders and, at some point in the life of one
who repeatedly commits criminal offenses serious
enough to be punished as felonies, to segregate
that person from the rest of society for an
extended period of time. This segregation and its
duration are based not merely on that person's
most recent offense but also on the propensities
he has demonstrated over a period of time during
which he has been convicted of and sentenced for
other crimes. . . . [T]he point at which a
recidivist will be deemed to have demonstrated
the necessary propensities and the amount of time
that the recidivist will be isolated from society
are matters largely within the discretion of the
Rummel, 445 U.S. at 284-285, 100 S.Ct. at 1144-45.
In enacting the Habitual Criminal Act, the Illinois
legislature has determined that, at least in Illinois, "the
point at which a recidivist will be deemed to have
demonstrated the necessary propensities," is upon the third
Class X felony conviction. At that point the societal interest
in protecting itself from criminal conduct is foremost; the
consideration of mitigating factors becomes irrelevant. This
legislative determination is constitutionally permissible.
See Rummel, 445 U.S. at 263, 100 S.Ct. at 1133. The
petitioner's claim that the Illinois Criminal Habitual Act is
because it does not allow for the consideration of mitigating
factors is meritless.
IT IS THEREFORE ORDERED that the petition for writ of habeas
corpus is denied. The Clerk is directed to enter judgment
© 1992-2003 VersusLaw Inc.