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BAUGH v. LANE

September 26, 1989

JACK ERNEST BAUGH, PETITIONER,
v.
MICHAEL P. LANE, DIRECTOR, DEPT. OF CORRECTIONS; STEVE MCEVERS, WARDEN, LOGAN CORRECTIONAL CENTER, RESPONDENTS.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

Habeas corpus.

Relief denied on procedural grounds.

Baugh has moved for federal relief from his 1977 state court guilty plea and conviction for murder and unlawful use of weapons. The State of Illinois has responded to the petition, and Petitioner has replied to the response. Pursuant to Rule 8(a) of the rules governing 28 U.S.C. § 2254 cases, we have determined that an evidentiary hearing is not required in this case, because we further hold that Petitioner has waived any entitlement to federal habeas corpus relief through a procedural default.

Accordingly, the petition is denied and the case is dismissed.

Factual and Procedural Background

The facts of this case and its procedural history are culled entirely from the petition and its accompanying exhibits. Along with the petition, Petitioner has filed excerpts from transcripts of several court proceedings, affidavits of several relatives, and letters from well-wishers and potential witnesses. Additionally, Respondent has filed complete transcripts of all the trial court hearings pertaining to Petitioner, save his sentencing.

The roots of this petition go back to the spring of 1977, when Jack Ernest Baugh resided with one Susan J. Hayes in East Peoria, Illinois. There, sometime in the evening on April 6, Ms. Hayes was murdered by means of a severe beating with some blunt instrument, possibly a cane. The police investigation focused on Baugh; the interest in Baugh stemmed as well from the fact that some 16 firearms were discovered during the investigation which apparently all belonged to Baugh — because he had a prior felony conviction, the guns placed him in violation of both state and federal law.

About a week after the murder Baugh surrendered to the police and was officially charged with Ms. Hayes' slaying. Baugh's counsel at the time he surrendered and at his arraignment and preliminary hearing was a Mr. Napoli; this attorney, however, had filed a limited entry of appearance stating that he would only represent Baugh through the preliminary hearing. Thus, following that hearing Attorney Napoli withdrew and the public defender was appointed on May 4, 1977. At some point following that, however, Mr. Napoli once again took the reins, and he represented Baugh at the time of the guilty plea on June 24, 1977.

Petitioner Baugh had been charged by the State of Illinois with four counts of murder and one count of unlawful use of weapons (3 blackjacks and 1 set of metal knuckles were also found at the scene of the murder). The guilty plea entered by Petitioner resulted from the state agreeing to dismiss three of the murder counts, leaving only one murder count and the unlawful use of weapons charge. The original plea and sentencing agreement called for a prison term of 20 to 40 years plus parole; the judge, however, rejected this plea without comment. The record reveals that "[a] brief recess was taken," following which the parties approached the judge with a nearly identical plea agreement which this time called for a 20 to 60 year period of incarceration, signed by Petitioner and both counsel. After expressly asking Petitioner if he had had time to review and consider both the original and the amended plea agreement, and also after being fully satisfied of the factual basis for the guilty plea, the judge accepted the plea agreement and entered a judgment of conviction on those charges. Petitioner was sentenced in accordance with the plea agreement on July 6, 1977, at which time he was also advised of his right to withdraw and to appeal his guilty plea.

The firearms discovered during the murder investigation were not forgotten; Petitioner's illegal possession of these was prosecuted in federal court concurrently with the state court proceeding. The United States charged Petitioner with 7 counts of violating 18 U.S.C. § 922(h), and on June 24, 1977, Petitioner pled guilty to those charges and agreed to be sentenced separately for each count. The total federal sentence came to 35 years, and this sentence ran concurrently with Petitioner's state sentence.

Petitioner never appealed his state court conviction, nor did he ever seek any other post-conviction remedy in the state courts. He did, however, appeal his federal conviction, and succeeded in getting 5 of the 7 counts vacated due to a defective plea agreement. United States v. Baugh, 787 F.2d 1131 (7th Cir.1986). As a result, Petitioner's federal incarceration period was substantially shortened; he has now served all his federal time, and his custody has been transferred to Illinois prison officials. Petitioner is currently incarcerated at Logan Correctional Center in Lincoln, Illinois.

The mandate vacating portions of Petitioner's federal conviction was entered on April 3, 1986. As previously noted, Petitioner never sought any state review of his state conviction. The only other review of this conviction sought by Petitioner is the instant petition, filed with this ...


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