APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
539 N.E.2d 1376, 184 Ill. App. 3d 206, 132 Ill. Dec. 570 1989.IL.896
Appeal from the Circuit Court of Champaign County; the Hon. Donald R. Parkinson, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. McCULLOUGH, P.J., and GREEN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
On August 30, 1988, the circuit court of Champaign County, pursuant to the State's motion, dismissed the post-conviction petition of defendant Phillip Peeples. Defendant appeals. We affirm.
On September 16, 1980, defendant was convicted for committing the offense of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1). The crime involved the sexual assault and stabbing death of a teacher in the school library. At the sentencing hearing, the court found defendant qualified for an extended-term sentence since the crime was accompanied by "exceptionally brutal or heinous behavior indicative of wanton cruelty," which is one of the qualifying factors set forth in section 5-5- 3.2(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005-5-3.2(b)(2)). Accordingly, the court sentenced defendant to 80 years' incarceration.
On July 22, 1981, this court, in an unpublished order, affirmed defendant's conviction and sentence. The Illinois Supreme Court denied defendant's leave to appeal on November 30, 1981. (People v. Peeples (4th Dist. July 22, 1981,) No. 16759 (unpublished order under Supreme Court Rule 23), appeal denied (1981), 85 Ill. 2d 580, 426 N.E.2d 1288.) Defendant next turned to the Federal courts for relief. The district court denied defendant's petition for writ of habeas corpus. (United States ex rel. Peeples v. Greer (C.D. Ill. 1983), 566 F. Supp. 580.) This denial was affirmed by the court of appeals in United States ex rel. Peeples v. Greer (7th Cir. 1984), 739 F.2d 262.
Defendant returned to the Illinois courts in his quest on June 16, 1988, when he filed his present petition, pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122-1 et seq.). After appointment of counsel and filing of an amended petition, the State filed a motion to dismiss the petition. Defendant's petition contained numerous grounds for relief, but relied primarily on his assertion that the factor the court relied on to impose the extended-term sentence is vague and violates the constitutional prohibition against cruel and unusual punishment. The State contended that these issues were either raised, or could have been raised, in earlier appeals and, pursuant to the doctrine of res judicata, the petition should be dismissed. The court agreed.
It is well settled that, in evaluating post-conviction petitions, affirmance on the direct appeal is res judicata as to all issues that were raised, or could have been raised, on that appeal. (People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335.) This is equally true of issues raised in habeas corpus litigation. (People v. Peery (1982), 108 Ill. App. 3d 843, 845-46, 439 N.E.2d 1087, 1089.) There is a limited exception to strict application of res judicata where fundamental fairness dictates otherwise, as where the right relied on has been recognized for the first time after the direct appeal. (People v. Cowherd (1983), 114 Ill. App. 3d 894, 898, 449 N.E.2d 589, 591-92.) It is this exception upon which defendant relies.
Defendant argues the provisions of section 5 -- 5 -- 3.2(b)(2), which provide an extended-term sentence can be imposed if the offense is accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, is vague and violates the eighth amendment prohibition against cruel and unusual punishment because the sentence could be capriciously and arbitrarily imposed. He relies on the recent Supreme Court case of Maynard v. Cartwright (1988), 486 U.S. 356, 359, 100 L. Ed. 2d 372, 378, 108 S. Ct. 1853, 1856. There, the Court found that an Oklahoma statute, which provided the death penalty could be imposed when the murder was "especially heinous, atrocious, or cruel," violated the eighth amendment. The Court observed the language had not been defined by the Oklahoma courts and, consequently, did not sufficiently minimize the risk of wholly arbitrary and capricious action by the sentencer in imposing the death penalty.
Defendant maintains that, since Maynard was decided after his direct appeal and habeas corpus petition, the doctrine of res judicata should not be applied. However, the exception only applies where the right has been recognized for the first time after the direct appeal. (Cowherd, 114 Ill. App. 3d at 898, 449 N.E.2d at 591-92.) A review of Maynard and defendant's other actions establishes that, in fact, defendant did litigate this exact question in earlier proceedings.
In Maynard, the Court stated: "We think the Court of Appeals was quite right in holding that [ Godfrey v. Georgia ] controls this case." (Maynard, 486 U.S. at 363, 100 L. Ed. 2d at 382, 108 S. Ct. at 1859.) In Godfrey v. Georgia (1980), 446 U.S. 420, 428, 64 L. Ed. 2d 398, 406, 100 S. Ct. 1759, 1765, the Court held a Georgia statute, which allowed imposition of the death sentence when the murder was "outrageously or wantonly vile, horrible or inhuman," had been unconstitutionally applied because the quoted language had not been defined for the sentencing jury. The court concluded this vague construction gave the jury unchanneled discretion, violating the eighth amendment prohibition against cruel and unusual punishment.
It is apparent then that Maynard does not represent new law, but simply applies that set forth in Godfrey. The "right" defendant attempts to assert now was recognized in 1980, and not for the first ...