The opinion of the court was delivered by: MILTON I. SHADUR
Marcos Alcantar ("Alcantar") has tendered a 28 U.S.C. § 2254 ("Section 2254") Petition for Writ of Habeas Corpus ("Petition"), challenging both his conviction in the Circuit Court of Cook County and his 49-year sentence on the charge of delivery of a controlled substance in excess of 900 grams. Although Alcantar did not accompany the Petition with either the $ 5 filing fee or an appropriate in forma pauperis request, this opinion will cut through the delay that either of those steps would entail--because Alcantar's Petition must fail as a matter of law in all events.
Ground 1 of the Petition contends that Alcantar "was not proved guilty beyond a reasonable doubt." In that respect he faces the almost insurmountable hurdle that has been raised by Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) and that since then has been regularly repeated by other courts, including our own Court of Appeals:
Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
There is not the slightest question that what the Illinois Appellate Court set out at 240 Ill.App.3d at 430-32, 608 N.E.2d at 324-25 amply supports every element required for Alcantar's conviction for delivery of the four kilograms of cocaine referred to there.
Next Ground 2 of the Petition challenges the trial court's 49-year sentence as "excessive," principally pointing to the disparity between the length of that sentence and the 15-year custodial term that was imposed on Alcantar's codefendant (who pleaded guilty, while Alcantar chose to stand trial). But it must be remembered that Section 2254 addresses only constitutional violations, and nothing in what Alcantar advances in the Petition suggests anything even approaching that type of defect. In analytical terms the only possible candidates for the unconstitutionality of the 49-year term imposed upon Alcantar are the Eighth Amendment's
prohibition against cruel and unusual punishment and the Fourteenth Amendment's Equal Protection Clause. In the first respect Eighth Amendment jurisprudence plainly does not invalidate a prison term of that length for a substantial drug offense, and as for the second possibility Alcantar certainly has not stated an effective claim of a Fourteenth-Amendment-violative denial of equal protection of the laws. On that latter score the studied comparison of culpability and the sentence evaluation that were set forth in the Illinois Appellate opinion (240 Ill.App.3d at 433-34, 608 N.E.2d at 326) negate any such claim even under the apparently less demanding standard imposed by state law.
Alcantar's third and fourth grounds assert that he was deprived of effective representation by counsel both at the trial and the appellate levels (in the latter respect, the inadequacy that he urges is the same as what he ascribes to trial counsel, compounded by an asserted conflict of interest that allegedly inhibited the appellate lawyers' attack on the trial counsel's ineffectiveness).
In part Alcantar's criticism is that the trial lawyer's opening statement presented a theory of defense that was not then buttressed by the presentation of evidence, but that facet of his claim is obviously dependent on his descriptions of the trial lawyer's purported substantive delinquency (the following quotations are taken verbatim from Petition PP11(C) and (D)):
Trial counsel's failure to investigate and interview defense witnessess denied the petitioner the opportunity to establish his peripheral involvement if any, with the crimes charged.
Petitioner notified and informed his appellate attorney's that no defense witnessess were called by the trial attorney that would have supported his theory of defense and these same witnessess could have backed-up his appellate claims that he was not proved guilty beyond a reasonable doubt.
Alcantar faces two fundamental problems in advancing those arguments. For one thing, he has not identified any witness or witnesses who assertedly would have been able to present the kind of evidence to which he refers, nor has he said anything about the nature of that testimony (essential components of the showing of "prejudice" required to support an ineffective-assistance claim, as taught by the seminal Strickland v. Washington decision discussed a bit later). Even more fundamentally, that omission of any of the required particulars appears entirely understandable, because the evidence as to Alcantar's participation in the crimes was both direct and incontrovertible, reflecting anything but a "peripheral involvement" on his part. Here are the Illinois Appellate Court findings as to Alcantar, which follow the court's description of the prior negotiations between Illinois State Police Officer Frank Guerra ("Guerra"), playing the undercover role of a purchaser of cocaine, and Alcantar's co-defendant Juan Reyes ("Reyes")
(240 Ill.App.3d at 431-32, 608 N.E.2d at 324-25):
About fifteen minutes later, Officer Guerra called Reyes at the Alandra Club, and Reyes told him that the "material" (cocaine) was on its way. At 7:30 p.m. Reyes paged Officer Guerra and said they were ready. Officer Guerra told Reyes that he did not want to go to the parking lot behind the Alandra Club where Reyes wanted him to go. Then Officer Guerra spoke to the man that he had spoken to on the telephone earlier. Officer Guerra agreed to meet them in front of the Alandra Club and do the transaction on the street.
At approximately 8 p.m. Officer Guerra returned to the Alandra Club. Defendant and Reyes were standing on the street. Officer Guerra asked them if everything was ready, and defendant told the officer that the "guy with the four kilos" had already left because he was tired of waiting. Defendant stated that he could take the officer to Blue Island and Paulina Avenue, where the guy was waiting. Officer Guerra agreed to go, but would only take one of them in his car. Defendant got into the officer's car and they drove to the intersection of Blue Island Avenue and Paulina Street. As they crossed Paulina, defendant said, "There is the guy right there. There is his car." Defendant told the officer to pull over, and Officer Guerra pulled the car over to the south side of Blue Island. Defendant got out of the car and motioned for an individual standing by a Ford Pinto to come over to the officer's car. Roberto Valencia came over and the three men conversed. Defendant told Valencia to show the officer the cocaine. Valencia then said, "come with me," and Officer Guerra followed him to the Pinto. Valencia opened ...