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STEWART v. PETERS

March 8, 1995

WALTER STEWART, Petitioner,
v.
HOWARD PETERS, III, Warden, Pontiac Correctional Center, Respondent.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the petition of Walter Stewart ("Stewart") for habeas relief under 28 U.S.C. § 2254. For the following reasons, the petition is denied.

 I. BACKGROUND

 The Circuit Court of Cook County sentenced Stewart to death for two murders, an attempted murder, and other violations committed during a February 10, 1980, armed robbery of a jewelry store. He is currently under the supervision and custody of the Illinois Department of Corrections. The underlying facts describing the murders and armed robbery and the subsequent state court proceedings leading to the death penalty are fully detailed in the opinions of the Supreme Court of Illinois. See People v. Stewart, 101 Ill. 2d 470, 463 N.E.2d 677, 79 Ill. Dec. 123 (1984); see also People v. Stewart, 123 Ill. 2d 368, 528 N.E.2d 631, 123 Ill. Dec. 927 (1988). Accordingly, the court will not duplicate those facts.

 On November 27, 1989, Stewart filed the instant petition for habeas relief pursuant to 42 U.S.C. § 2254. Subsequently, Stewart filed an Amended Petition for habeas relief ("Petition"). On January 24, 1991, Respondent Howard Peters, III ("Respondent") filed his answer and supporting memorandum of law in response to the Petition. On March 15, 1991, Stewart filed his reply brief in further support of his Petition.

 On July 19, 1991, the court granted the Petition. Stewart v. Peters, 770 F. Supp. 416, 417 (N.D. Ill. 1991). The court determined that Stewart's general plea of guilty violated his due process rights under the Fourteenth Amendment because the record failed to affirmatively establish that his plea was voluntary and intelligent. In doing so, the court did not address the other issues Stewart raised in his Petition. On February 27, 1992, the Court of Appeals for the Seventh Circuit reversed, holding that the plea proceeding did not violate the Fourteenth Amendment. Stewart v. Peters, 958 F.2d 1379, 1388 (7th Cir. 1992). On April 17, 1992, the Seventh Circuit modified its decision to remand the case for further proceedings in this court upon learning that Stewart had presented alternative grounds for seeking habeas relief from his petition for rehearing. Id.1 Accordingly, the court now addresses those alternative grounds for habeas relief. *fn2"

 A. Denial of Request for Psychiatric Examination

 During the state court proceedings, when the State requested that a death penalty hearing be held, defense counsel requested that a presentence report be prepared and that, as part of the report, a mental examination of Stewart be performed. The judge granted the request for a presentence report; however, he denied the request for a mental examination. Stewart contends that the denial of his request for a mental examination denied him of his right to due process under Fourteenth Amendment, and his right to a reliable death sentence determination under the Fourteenth and Eight Amendments.

 1. Due Process and Eighth Amendment Right to a Reliable Death Sentence Determination

 The Supreme Court determined in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), that due process requires an indigent defendant be provided with the aid of a psychiatrist for the purpose of presenting mitigation evidence in a death penalty case if the defendant is able to make a threshold showing that his mental condition is a serious issue. Ake, however, was decided in 1985, after the Illinois Supreme Court affirmed Stewart's conviction and death sentence on February 22, 1984, and the United States Supreme Court denied his petition for certiorari on October 15, 1984. According to Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334 (1989), a habeas petitioner cannot get the benefit of decisions establishing new constitutional rules if the decisions were issued after direct appellate review of his case. Here, Ake established a new rule of constitutional criminal procedure and it does not fall within either of the two exceptions outlined in Teague.3 Bassette v. Thompson, 915 F.2d 932, 939 (4th 1990); see also Harris v. Vasquez, 949 F.2d 1497, 1518-22 (9th Cir. 1990) (holding that a similar rule allowing a petitioner to challenge the competence of a defense physiatrist on collateral review could not be applied retroactively under Teague). Thus, because Ake was decided after Stewart's conviction became final, Teague bars him from getting the benefit of the new rule. *fn4"

 Moreover, Stewart has not established a valid claim under Ake in any event. At the time that counsel made the request for a mental examination, there was nothing in the record that arguably put Stewart's mental condition at issue. Furthermore, nothing in Stewart's Petition supports his argument that a psychological examination would have revealed significant mitigating evidence. The Petition contains no evidence whatsoever that Stewart was, at the time of the crime, or is now, suffering from any sort of mental illness, defect, or disability. Simply put, his mental condition was not, and is not, an issue. *fn5" See Branscomb v. Norris, 47 F.3d 258, 1995 WL 36205 (8th Cir. 1995) (denying a habeas petition because petitioner had not presented trial court with evidence placing his sanity or mental functioning seriously in issue). Accordingly, the trial court did not violate his Fourteenth or Eight Amendment rights when it denied his motion for a mental examination.

 2. Equal Protection

 Stewart contends that the trial court's denial of his motion for a mental examination violated his rights under the Equal Protection Clause of the Fourteenth Amendment because he was financially unable to pay for an examination which a wealthy defendant would have been able to afford. However, as discussed above, Stewart has not established that his mental condition was seriously in issue at the time of the trial and, therefore, cannot establish that he was prejudiced by the denial of a mental examination.

 B. Ineffective Assistance of Counsel

 Stewart asserts that he was denied effective assistance of counsel by his trial counsels' *fn6" failure to request funds for obtaining a psychological examination pursuant to 725 ILCS 5/113-3(d) (1993), *fn7" by trial counsels' failure to insure that the court had an accurate picture of his delinquency and criminal history, and by trial counsels' failure to present evidence of his drug addiction, his character, and life history as mitigation evidence. To establish a claim for ineffective assistance of counsel, a petitioner must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that but for the deficient performance, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674 (1984). In reviewing an ineffective assistance of counsel claim, the court is highly deferential to trial counsel's performance, and the petitioner must "overcome the presumption that the challenged action or inaction could not fall within the broad range of sound trial strategy." United States v. McKinley, 23 F.3d 181, 185 (7th Cir. 1994).

 1. Counsel's Failure to Request Funds Pursuant to Section 113-3(d)

 Stewart's contention that trial counsel were ineffective for failing to request funds under Section 113-3(d) is meritless. In Illinois, an indigent defendant may be entitled to funds to pay for an expert witness if the expert testimony is deemed crucial to an adequate defense. People v. Clay, 19 Ill. App. 3d 296, 311 N.E.2d 384, 386 (Ill. App. 2d Dist. 1974); People v. Veal, 110 Ill. App. 3d 919, 443 N.E.2d 605, 610, 66 Ill. Dec. 679 (Ill. App. 1st Dist. 1982). After the trial court had denied Stewart's request for a mental examination pursuant to 730 ILCS 5/5-3-2(b) and 730 ILCS 5/5-3-3 (1993), *fn8" it was reasonable for counsel to assume that a request for funds for an expert to perform a mental examination pursuant to Section 113-3(d) would also be denied. This decision was a matter of trial strategy. Furthermore, as discussed above, Stewart cannot show prejudice from the denial of a mental examination because he has produced no evidence showing that his mental condition was ever seriously at issue.

 Stewart contends that trial counsel failed in their duty to insure the accuracy of information received by the court regarding Stewart's prior criminal record. As a consequence, Stewart asserts that the judge sentenced him based on a mistaken view of his criminal history. This is simply not the case. A review of the sentencing transcript reveals that the judge properly considered the totality of Stewart's prior criminal history, which is extensive, and considered all the mitigating and aggravating factors required under Illinois' death penalty statue, 720 ILCS 5/9-1 (1993), *fn9" in making his sentencing determination.

 During sentencing, the judge listed the history of Stewart's offenses contained in the presentence report. Among the offenses listed, the judge incorrectly stated that Stewart had been adjudicated delinquent for robbery in 1969 and convicted of theft as an adult in 1973. More accurately, the 1969 juvenile petition was disposed of by placing Stewart on ...


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