The opinion of the court was delivered by: Baker, Chief Judge.
In March, 1981, Gibson was arrested in Nevada for the murder
of Stephen Butler, whose body had been found hidden in a
cesspool in Manito, Illinois. According to the police, Gibson
and Butler were itinerant iron workers who travelled from state
to state looking for work. In December, 1980, after passing
through Colorado, they were in the central Illinois area, each
visiting family members. The indictment charged that on
December 24, 1980, Gibson drove with Butler to a remote section
of an Illinois state forest, where he shot Butler with a .357
magnum pistol. According to the state, Gibson then sold
Butler's personal property before heading to a new job in
Gibson's defense at trial was that he and Butler were
involved in a drug deal which went sour. The men to whom they
were to sell the drugs, according to Gibson, shot and killed
Butler in the state forest, fleeing the scene with the drugs.
Gibson then disposed of Butler's body. He claimed that he did
not inform the police of the incident because he feared for his
family's safety and because the drug deal which precipitated
the murder was illegal. After staying in Illinois for a few
weeks, Gibson headed to Nevada for another job, where he was
Following a jury trial in the Circuit Court of Mason County,
Illinois, Gibson was sentenced to 25 years imprisonment for
murder. His conviction was affirmed by the Illinois Appellate
Court. People v. Gibson, 109 Ill. App.3d 316, 64 Ill.Dec. 787,
440 N.E.2d 339 (1982). The Illinois Supreme Court refused to
grant Gibson leave to appeal. In August, 1982, Gibson filed a
petition in the Illinois courts seeking post-conviction relief.
That petition was dismissed by the trial court after an
evidentiary hearing. The Illinois Appellate Court affirmed,
People v. Gibson, No. 4-84-0810, slip op. 137 Ill. App.3d 1163,
101 Ill.Dec. 813, 499 N.E.2d 180 (Ill. App.Ct. December 4,
1985), and the Illinois Supreme Court again refused to grant
Gibson leave to appeal.
In November, 1990, Gibson filed a petition for a writ of
habeas corpus in federal court. The respondents answered the
petition in April, 1991.
As the court has noted in its previous orders, Gibson
advances three grounds for habeas relief. After examining the
merits of the claims, the court denies both Gibson's Fourteenth
Amendment due process claim and his Sixth Amendment ineffective
assistance of counsel claim, and orders the parties to discuss
in more detail Gibson's remaining Sixth Amendment claim.
Gibson claims that several procedures employed during his
trial were so unfair that his Fourteenth Amendment right to due
process was violated. Because federal habeas courts do not sit
to correct state criminal procedures, only if Gibson proves
that the procedures employed by Illinois rendered his trial
fundamentally unfair is he entitled to relief. Lee v.
Flannigan, 884 F.2d 945, 952-53 (7th Cir. 1989). The court
concludes that Gibson has failed to sustain this burden.
First, Gibson claims that his right to due process was
violated when the state tried him in Mason County, Illinois,
even though the indictment charging him with murder was
delivered by a grand jury convened in Tazewell County,
Illinois. The Illinois Appellate Court spent most of its
opinion on Gibson's direct appeal discussing this issue,
concluding that, under state law, the issue was one of venue
only, not jurisdiction. Accordingly, the state appellate court
rejected Gibson's claim that Mason County was without
jurisdiction to try him. Gibson attempts to convert this issue
of Illinois criminal venue law into a federal constitutional
issue by claiming that by trying him in one county when the
indictment was delivered by a grand jury in an adjacent
county, the state denied him a fundamentally fair trial.
The court cannot agree. Precisely how a state divides its
judicial power is within the province of the state, not the
federal courts. The Constitution is only implicated if the
state's venue procedures are so arbitrary and inconvenient that
a fair trial is precluded.*fn1 Here, Gibson has not asserted
— and the court is hardpressed to see how he could have
plausibly asserted — that he was denied fundamental fairness
by being tried in an adjacent Illinois county. Because there
were no known witnesses to the murder and because the crime
occurred near the border of two rural counties, Illinois
officials could not determine with certainty which county had
proper venue. Gibson was not tried in a remote place where
venue was inconvenient or where witnesses and evidence could
not be procured easily. Cf. Platt v. Minnesota Mining &
Manufacturing Co., 376 U.S. 240, 245-46, 84 S.Ct. 769, 772-73,
11 L.Ed.2d 674 (1964) (under Sixth Amendment, federal defendant
cannot be tried ...