store lunch counter in Columbia, South Carolina. After the protesters had entered the restaurant and requested service, an employee of the store put up a no trespassing" sign. After being asked to leave the store and refusing, the protesters were arrested and convicted of criminal trespass. Under the South Carolina statute in effect at the time, a person must receive notice that entry was prohibited prior to entering a premises before he could be convicted of criminal trespass. In affirming the conviction of the protesters, the South Carolina Supreme Court apparently ignored 95 years of state court precedent and construed the notice requirement to cover cases in which a party was given warning that entry was prohibited after the party was already on the premises and then refused to leave. Id. at 363, 84 S. Ct. at 1707. The United States Supreme Court found that such a construction of a facially valid and precise statute amounted to an unforeseeable expansion and retroactive application of the criminal definition. Thus, the Court held that the protesters had been deprived of their right to notice under the Fourteenth Amendment. Id.
The respondents initially ask us not to consider Free's argument based on Bouie because, on appeal before the Illinois Supreme Court, Free did not alert the court to any applicable federal constitutional grounds for the claim. On direct appeal, Free argued that "the trial court erred in interpreting the death penalty statute in an improperly broad manner and in concluding that attempt could serve as an aggravating factor." Br. and Arg. of Def. at 87. Free therefore would appear to have only challenged the appropriateness of the trial court's construction of the statute as question of state law interpretation, thus barring the subsequent presentation of any federal claim in a habeas petition. See U.S. ex rel Sullivan v. Fairman, 731 F.2d 450 (7th Cir. 1984).
However, the Illinois Supreme Court's decision in Free I belies the respondents' assertion that the court did not consider any due process implications arising from Free's argument. The court characterized Free's argument in a manner that, in certain respects, parallels his present argument: "[Free] argues that the indictment did not sufficiently inform him that the death penalty would be sought. The basis for this argument is that . . . although he was charged with attempted rape, [Free] argues that an attempt is not an aggravating factor." Free I, 94 Ill. 2d at 418, 447 N.E.2d at 237. Thus, the court framed the issue in terms of the propriety of notice to Free regarding the circumstances under which he would be death eligible. Accordingly, although Free may have neither specifically, nor artfully, raised the federal constitutional issue, it would appear that the Illinois Supreme Court undertook to analyze Free's claim from a federal due process perspective (though without the benefit of the case law to which Free now cites).
Assuming that the Illinois Supreme Court's treatment of the issue overrides any procedural bar to our consideration of this claim, we nevertheless find Free's reliance on Bouie to be unavailing. The statute at issue in this case, and the construction given to it by the Illinois courts, presents a different picture than the situation before the Court in Bouie. Unlike Bouie, the Illinois death penalty statute that was in effect at the time in question, was not a "facially precise" piece of legislation. Though not so imprecise as to be deemed impermissibly vague, the statute was ambiguous as to what exactly was meant by rendering a perpetrator death eligible if a murder was committed "in the course of" a certain felony. That language did not expressly require that the defendant actually complete the underlying aggravating felony or be charged and convicted with that crime. But then neither did it clearly state that "in the course of" included acts falling short of the actual commission of the offense. The Illinois Supreme Court had the authority to construe that language so as to lend the statute added precision. Yet, unlike the construction applied to the criminal trespass statute by the South Carolina Supreme Court in Bouie, the interpretation given the Illinois death penalty statute in Walker was both reasonable and foreseeable.
From an adequacy of notice perspective, viewed at the time Free set about to commit the offenses for which he was ultimately convicted, we find that, had he engaged in the legal fiction of consulting the statute so as to order his behavior, he would have received "fair warning" of the possibly fatal consequences of his conduct.
In section C of Ground 3, Free also seeks a new sentencing hearing based on the "improper use of attempt rape as an aggravating factor." Reply at 19-20. As we read this particular aspect of Ground 3, it appears to present a different issue than the one just discussed. Indeed, it goes to the validity of the interpretation itself--clearly a question of state law. A writ of habeas corpus, however, will not be issued on the basis of a perceived error of state law. Jones v. Thieret, 846 F.2d 457 (7th Cir. 1988); Buford v. O'Leary, 727 F. Supp. 461 (N.D. Ill. 1989). The federal issue that Free purports to raise in connection with this claim, regarding the provision of procedures for "saving the death penalty," arises only when a certain aggravating factor has been invalidated or otherwise found inapplicable. Since we have no authority to replace our interpretation of the state statute with that of the Illinois Supreme Court, and since we have found that the state court interpretation of the statute was properly applicable in Free's case, we reject Section C of Ground 3 as well. Accordingly, we deny Free's petition based on Ground 3.
B. Use of Unindicted Offense of Burglary as Aggravating Factor
In a related argument, Free contends that the trial court violated his rights under the Sixth and Fourteenth Amendment by ruling that the prosecution could use the offense of burglary as an aggravating factor (Ground 4). Free's Sixth Amendment claim arises from the fact that the prosecution did not indict or try him for the offense of burglary, but sought only to later use the offense as an aggravating factor during sentencing. Thus, Free claims that he was deprived of his right to effective assistance of counsel because he did not receive adequate notice either that the death penalty would be sought or that the state would rely on the offense of burglary as an aggravating factor.
To the extent Free's argument rests on the purported requirement of "constructive notice" as to the possibility that the state might seek the death penalty, see Silagy, 905 F.2d at 995, we observe that there can be no doubt that burglary is clearly set forth as a statutory aggravating factor. In examining the circumstances surrounding the indicted murder, defense counsel was entirely capable of evaluating whether that conduct might give rise to the enumerated aggravating offense of burglary.
Thus, defense counsel, at a minimum, should have possessed constructive notice that the death penalty might be sought based on such circumstances alone.
Free nevertheless additionally maintains that the indictment should have specifically referred to, or even charged, the offense of burglary if the state intended to subsequently rely on it as an aggravating factor at sentencing. With respect to the substantive sufficiency of notice, however, if certain pretrial notice is not required as to whether or not the state will be seeking the death penalty in general, Silagy 905 F.2d at 994-96, then perforce, the state is under no constitutional obligation to provide certain pretrial notice, whether by indictment or otherwise, as to the particular aggravating offenses upon which it may ultimately rely.
In any event, Free's counsel did receive certain pretrial notice that the state would be relying on burglary as an aggravating factor (and thus, Free plainly received certain, not simply constructive, pretrial notice of the state's intention to seek the death penalty). The record discloses that at least as early as the third day of jury selection, Free was specifically aware that burglary would be proved as an aggravating factor. (C. 3958). Therefore, any lingering doubt on the part of defense counsel as to the potential use of burglary as an aggravating factor would have been resolved prior to trial.
For this reason in particular, Free's further and renewed reliance on the Supreme Court's decision Lankford decision is misplaced. Lankford, 111 S. Ct. 1723, 114 L. Ed. 2d 173. Unlike petitioner's counsel in Lankford, whom the Court found could reasonably have believed that the sentencing hearing had been limited so as to preclude the possibility that death sentence might be imposed, Free's counsel not only was well aware generally that the death penalty would be at issue in the sentencing hearing, but he also knew which specific grounds upon which the prosecution would rely in seeking the death penalty.
That fact does not end our consideration of Free's Sixth Amendment claim, however, since aspects of Free's argument may be read to challenge the sufficiency of the timing of any notice he received. Free's argument in this regard essentially is an "as applied" reiteration of the considerations central to the issue of the sufficiency of statutory notice in Ground Seven--namely that notice must be sufficient so as to permit defense counsel to make "informed decisions such as whether to waive any of numerous constitutional rights" and to enable defense counsel to "investigate an extraordinary array of factual issues relevant to the sentencing hearing." Reply at 22. Free, however, has failed to provide any basis in fact from which we might infer that the timing of the notice he received actually prejudiced his defense in the manner suggested. Accordingly, we reject his Sixth Amendment challenge.
Free next contends that the use of burglary as an aggravating factor deprived him of his equal protection rights under the Fourteenth Amendment. Free claims unequal treatment because he is subject to the death penalty for having committed murder during the course of a burglary, when the statute in effect at the time he committed the murder did not apply to persons who had committed murders during the "violent and more serious felony of home invasion." Reply at 22. The first problem with this argument is that Free failed to raise it both at trial and on direct appeal; therefore, he is procedurally barred from now raising the issue. The second problem with the argument, which perhaps explains Free's failure to raise the issue, is that, when Free committed his crimes in April 1978, home invasion was not a distinctly cognizable offense in Illinois. The crime of home invasion was added to the Illinois Criminal Code effective August 22, 1978. See Ill. Rev. Stat. ch 38, para. 12-11 (1978). Thus, in April 1978, there could not have been a class of persons who committed murders during the course of home invasion, but who received beneficially disparate treatment by not being subject to the death penalty. Therefore, the predicate for Free's equal protection claim did not yet exist. Accordingly, we reject Free's Fourteenth Amendment challenge, and thus deny Free's petition based on Ground 4.
IX. Access to Post-Conviction Review
Finally, Free contends in Ground 16 that the death penalty statute denies persons sentenced to death equal access under the Illinois Post-Conviction Hearing Act, Ill. Rev. Stat. ch. 38, para. 122.1 (1979) ("post-conviction act"). That act provided that "any person imprisoned" had the right for twenty years after final judgment in a criminal matter to file a petition in the trial court for post-conviction relief. The Illinois legislature subsequently reduced the time for filing under the act to ten years, an amendment which the Illinois Supreme Court has held to be retroactive. People v. Bates, 124 Ill. 2d 81, 529 N.E.2d 227, 124 Ill. Dec. 407 (1988).
Free's equal protection argument is that, if Illinois executes him before November 28, 1993--the ten-year anniversary of the date final judgment was entered in his case--he will be denied the right to the full statutory period to challenge defects in his trial, a right which other, similarly situated non-capital prisoners are able to exercise. Free posits that, although Illinois was under no constitutional duty to offer its citizens post-conviction relief, once the State extended this right, it must not discriminatorily limit access to it. In support of this proposition Free relies on Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956), and the line of cases following It.
Free's application of this principle to the interrelation of the death penalty statute and the post-conviction act poses several issues for consideration.
We first observe that, while Free presents the question in terms of something being wrong with the death penalty statute, the question may just as easily be framed in terms of there being a constitutional infirmity with the application of the post-conviction act. This variant in possible perspectives highlights the fact that, at root, this claim does not implicate the constitutional validity either of Free's conviction or his sentence of death under the death penalty statute. Instead, the claim simply challenges the timing of when a death sentence may be carried out.
Furthermore, in Free's particular case, by no means is it a foregone conclusion that his execution will occur prior to the expiration of the ten year period for bringing post-conviction claims. Thus, in a sense, this claim may not truly be ripe from a standing perspective--Free cannot be a member of the affected class he identifies until he has exhausted or waived all avenues of post-conviction redress, and his execution is scheduled to occur within the ten-year period.
In addition (and assuming that Free is certain to be executed within the ten-year period), as evidenced by Free III, any claims that could have been raised in an initial post-conviction petition are barred from further consideration in a subsequent petition. See also, Ill. Rev. Stat. ch. 38, para. 122-3. Thus, with respect to the bulk of any grounds for relief in the state court, Free has already exhausted his opportunity for further post-conviction relief.
On this point, Free nonetheless claims that he and other death row inmates, by virtue of a pending execution date, are necessarily compelled to immediately file a post-conviction petition and accordingly forego the opportunity of taking advantage of subsequent rulings in other cases that might arise within the ten-year period and that would afford relief under the post-conviction act. Free contends that non-capital inmates do not similarly have to operate in the "shadow of a needle or the electric chair," but may postpone their post-conviction filings if they so choose. The underlying premise of this point is problematic, however, since such a postponement would necessarily prolong the amount of time these non-capital prisoners might spend in jail. Therefore, it is hard to conceive that they would engage is such strategic behavior in the hope that a favorable circumstance might arise that is worth waiting for. Moreover, the right of any prisoner to rely on subsequent rulings in a post-conviction petition is limited to a large extent by the Illinois Supreme Court's holding that Teague, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 , applies to proceedings under the post-conviction act. See People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674, 149 Ill. Dec. 304 (1990). Thus, even if a non-capital prisoner chooses to delay the filing of his post-conviction petition, the purportedly beneficial chance of taking advantage of some later ruling of constitutional significance is quite remote. The only other opportunity that may prematurely be lost in a capital case is that some time after execution, but prior to the ten-year expiration period, facts bearing upon a prisoner's innocence come to light that would otherwise have permitted the filing of a subsequent post-conviction petition. Such a situation cannot be treated lightly. Yet, here too the possibility of its occurrence must be regarded as a exceedingly remote.
Countering the significance of these possibilities, and as justification for any unequal treatment, the respondents advance a paramount state interest in "the timely enforcement of justice . . . delivering justice as swiftly as is reasonable to the offender, future similar offenders and the victims." Amended Answer at 51-52. In considering this interest, we reject Free's claim to being a member of a suspect class for equal protection purposes. The respondents' interest in possibly placing capital defendants in a situation where their statutory time for seeking post-conviction relief may be cut short need only be rationally based to survive constitutional attack. Under that standard of review, we must reject Free's claim. Recent developments in the Supreme Court support the rationality of the state's interest in swiftly executing inmates under a sentence of death at the expense repeated and protracted opportunities for post-conviction relief. See. e.g., McCleskey v. Zant, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991). Accordingly, we deny Free's petition based on Ground 16.
We deny Free's petition based on Grounds 1-4, 6-9, 11-13, and 15-21. Magistrate Judge Weisberg is to conduct a hearing to assess (1) the validity of the Zeisel study, and (2) its impact on each of the grounds (5, 10 & 14) for which it is offered as support, and to file a Report and Recommendation regarding this inquiry on or before February 1, 1992. Accordingly, we reserve ruling on Free's petition with respect to Grounds 5, 10, and 14. This case is set for a status hearing before the court on March 10, 1992, at 10:30 a.m. It is so ordered.
MARVIN E. ASPEN
United States District Judge