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UNITED STATES EX REL. HUNTER v. GRAMLEY

July 18, 1994

UNITED STATES OF AMERICA ex rel. DOUGLAS F. HUNTER, Petitioner,
v.
RICHARD B. GRAMLEY, Respondent.


ASPEN


The opinion of the court was delivered by: MARVIN E. ASPEN

MARVIN E. ASPEN, District Judge:

 Presently before the court is Douglas Hunter's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Hunter asserts that the extended sentence he received was imposed in violation of the United States Constitution's prohibition against ex post facto laws and the Fourteenth Amendment's due process guarantee. In addition, he maintains that he should have received a new sentencing hearing in light of several errors that occurred during his original sentencing. For the reasons set forth below, we deny Hunter's petition.

 I. Background

 On November 4, 1980, petitioner Douglas Hunter abducted a woman in Chicago and drove her to a secluded area where he raped her. Some months later, on May 26, 1981, Hunter again accosted a woman, but was thwarted in his efforts by neighbors, who captured Hunter and released his victim. Hunter was subsequently indicted for both crimes. On November 9, 1981, Hunter pleaded guilty to rape, deviate sexual assault, aggravated kidnapping, unlawful restraint, and two counts of armed violence with respect to the first offense, and to aggravated kidnapping, unlawful restraint, and armed violence with respect to the latter offense. At the sentencing hearing, the sentencing judge concluded that Hunter was eligible to receive an extended term sentence under ILCS 5/38-1005-5-3.2(b)(1), and sentenced him accordingly. *fn1" That section allows the sentencing court to impose an extended term sentence

 
when a defendant is convicted of any felony, after having been previously convicted in Illinois of the same or greater class felony, within 10 years . . . and such charges are separately brought and tried and arise out of different series of acts.

 Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3.2(b)(1). In Hunter's case, the judge imposed an extended sentence on the abduction-related convictions based upon Hunter's earlier unrelated June 19, 1981 conviction for armed robbery. *fn2"

 Hunter subsequently filed for post-conviction relief, maintaining that the trial court erred in imposing an extended term sentence based upon the "previous" armed robbery conviction, since he committed and was convicted on the armed robbery charge after he committed at least the first abduction (but before he was convicted on that charge). *fn3" The court dismissed Hunter's petition, and he appealed. The Illinois Appellate Court affirmed, noting that two prior Illinois cases had construed the statute to allow imposition of extended term sentences without regard to the sequence of the commission of the offenses. People v. Hunter, No. 1-89-2583, slip op. at 3 (Ill. App. Ct.) (date unavailable). *fn4" Hunter then filed the present habeas petition.

 II. Discussion

 Under 28 U.S.C. § 2254, a habeas petitioner is required to exhaust all available state remedies before his petition will be considered by a federal court. Verdin v. O'Leary, 972 F.2d 1467, 1472 (7th Cir. 1992). One precondition to exhaustion is that the petitioner "fairly present" to the state court the federal issue he plans to raise in his habeas petition. Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971). The Seventh Circuit has adopted the following test to determine whether a petitioner has satisfied the requirement enunciated in Picard:

 
If the petitioner's argument to the state court did not: (1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation, then the court will not consider the state courts to have had a fair opportunity to consider the claim.

 Verdin, 972 F.2d at 1473-74 (citations and quotations omitted). *fn5" In the present case, Hunter's court appointed appellate attorney submitted a thirty page brief which focused almost exclusively on Illinois law; indeed, the basic argument proffered was that the sentencing court erred in its interpretation of the "extended term" statute. The only reference to or analysis of federal law whatsoever came in a single paragraph following the statutory interpretation argument:

 
Besides being improper under [prior Illinois case law interpreting a similar statute], the extended term sentencing was improper from other perspectives as well. First, as a matter of due process, it has been held that criminal statutes must give fair warning of the conduct prescribed as "the first essential of due process," and a statute may not be applied retroactively to a defendant. United States ex rel Reed v. Lane, 759 F.2d 618 (7th Cir. 1985). The Reed court found it improper for the trial court to apply a statue which came into effect after the murder in question, denying the compulsion defense to defendants in capital cases. So, too, here, when Mr. Hunter committed the crime at issue here, he was not fairly apprised that in committing that crime, he would ...

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