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July 31, 1991


The opinion of the court was delivered by: Baker, Chief Judge.


In November, 1990, Benjamin Gibson applied for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. As explained below, the court now dismisses two of Gibson's three claims and orders both parties to address his remaining claim in more detail.


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 Nevada.

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 later arrested.

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.

Due Process 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.

Venue Claim

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 ...

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