C. The Trial Court's Reliance on the Presentence Report
Without a single citation to authority in his Petition or reply memorandum, Stewart contends that his Eighth and Fourteenth Amendment rights were violated because the presentence report was not made available to him prior to sentencing. The presentence report was available on August 5, 1980, and sentence was imposed on August 8, 1980.
The record shows that a copy was tendered to trial counsel at the beginning of the proceedings on August 6, 1990, the day the court heard evidence in mitigation and aggravation. Thus, the report was available to counsel, and to Stewart through counsel, so that they could challenge any information in it that day. Neither Stewart nor trial counsel objected to anything in the report. Moreover, Stewart had two additional days prior to sentencing to bring any errors to the court's attention. At sentencing, the court asked Stewart whether he had anything to say. Stewart responded, "No sir." Stewart had ample opportunity to comment on any factual inaccuracies or explain any of the information contained within the report. Therefore, no constitutional violation occurred. See United States v. Brown, 785 F.2d 587, 592 (7th Cir. 1985) (holding that reversal was not required where defendant had an adequate opportunity to challenge the presentence report).
Stewart's assertion that he was never personally given a copy of the report does not further his cause. Stewart does not assert that counsel was ineffective for failing to discuss the report with him, and he has not presented any case law holding that tendering a copy of the presentence report to counsel and not to the defendant personally is constitutionally insufficient. Moreover, as discussed above in section II.B.2, any inaccuracies within the report were insignificant. Thus, even if he had not been given an opportunity to see the report, he is unable to establish that he was sentenced on the basis of information that was materially untrue. Cf. Townsend v. Burke, 68 S. Ct. at 1255.
D. The Court's View of Stewart's Criminal History
Stewart's next contention is that the trial court based his sentence on a mistaken view of his criminal history in violation of his right to a reliable death penalty determination under the Eighth and Fourteenth Amendments. However, as discussed in section II.B.2 and II.C above, this is not the case. Among other things, the trial court based his death sentence upon the unbridled violence of the crime, Stewart's greed which lead to the violence, and Stewart's extensive criminal history. The judge could properly consider the criminal activity underlying Stewart's 1969 juvenile robbery and 1973 adult theft which lead to probation and supervision respectively. The fact that the judge mistakenly thought that those two events resulted an adjudication of delinquency and a conviction respectively is not significant in light of the underlying criminality of the conduct, which the judge could properly take into account, United States v. Fonner, 920 F.2d at 1333; United States v. Plisek, 657 F.2d at 928; People v. Gromm, 517 N.E.2d at 723, and Stewart's significant criminal history not including those events. Accordingly, Stewart's claim must fail.
E. Weight Given to Mitigating Factors
Stewart asserts, without citation to anything in the transcript or to any legal authority, that the trial court erred in not giving the appropriate weight to mitigating factors presented at sentencing. Stewart contends that because the judge found no factors sufficiently mitigating to foreclose imposing the death penalty, he "erroneously concluded that absolutely no mitigation was present." (Pet. at 29.)
Contrary to Stewart's assertion, the record clearly reflects that the trial court considered all the evidence presented in aggravation and mitigation. He reviewed the presentence report, reread Stewart's statement, and examined the statutory factors for mitigation under the Illinois death penalty statute and those considered in noncapital cases. In addressing this argument, the Illinois Supreme Court stated:
Because the judge concluded that there was "nothing to mitigate the offense committed here" does not mean, as the defendant asserts, that the judge failed to give weight or improperly weigh any factors in mitigation. The judge stated, "I have indulged in many hours of reflective introspection seeking to find some factors in mitigation. . . . I have searched my conscience and my soul and I cannot find any basis in law or in fact that would preclude the death penalty in this case." We do not agree with defendant that the record demonstrates that the judge did not consider or failed to appropriately weigh factors in mitigation.
Stewart v. Peters, 463 N.E.2d at 689. Like the Illinois Supreme Court, this court finds that the record does not support Stewart's assertion. Accordingly, he is not entitled to relief based on his claim that the trial court failed to give proper weight to the mitigating evidence in the case.
F. Right to Testify at Sentencing
Stewart's claim that his constitutional rights were violated because the trial court lead him to believe that by pleading guilty he had forfeited his right to testify in mitigation is not well founded for several reasons. First, the claim is barred because it was never raised in the Illinois courts. Sotelo v. Indiana State Prison, 850 F.2d at 1252. Second, at the sentencing, the court did ask Stewart whether he had anything to say. (R. 669.) Lastly, "there is no constitutional right to testify at one's own sentencing." Milone v. Camp, 22 F.3d 693, 704 (7th Cir. 1994). Therefore, this claim cannot support habeas relief.
G. Facial Attack on Illinois Death Penalty Statute
Stewart contends that the Illinois death penalty statute, 720 ILCS 5/9-1(d) (1993), is unconstitutional because it leaves the determination of whether to seek the death penalty up to the discretion of the prosecutor with no statutory guidelines to assist the prosecutor in exercising his discretion. Stewart also contends that the statute is unconstitutional because the prosecutor does not have to inform the defendant of the State's intention to seek the death penalty until after a conviction has been obtained. Both of these arguments have been rejected by the Seventh Circuit. Silagy v. Peters, 905 F.2d 986, 990-97 (7th Cir. 1990). Accordingly, these arguments cannot form the basis of habeas relief.
H. As Applied Attack on the Illinois Death Penalty Statute
Stewart contends that the lack of objective standards in the statute has resulted in an uneven and arbitrary application of the death penalty, resting largely on the views and biases of the one hundred and two county State's Attorneys in Illinois. Stewart has presented no evidence to support this argument and essentially restates the contentions made in Section II.G regarding prosecutorial discretion. Thus, he is not truly making an "unconstitutional as applied" argument.
Notwithstanding its label, the argument is without merit. As the Seventh Circuit noted in Silagy, the "prosecutor's decision under § 9-1(d) of the Illinois statute to commence or forego a death sentence hearing is not a decision to 'impose' the death sentence. Rather, the prosecutor's role is limited to that of initiating the proceedings." Id. at 993 (footnote omitted). The court also noted that the prosecutor's discretion is guided in each case by whether he can prove one of the eight statutory aggravating factors beyond a reasonable doubt as required by the statute. Id. at 993-94. In addition, by allowing the prosecutor to delay the decision to seek the death penalty until after a conviction has been obtained, the statute gives the prosecutor the opportunity to consider the evidence offered in the guilt phase in making his determination. Id. at 994. "Thus, like the sentencing authority's ultimate decision to impose the death penalty, the prosecutor's preliminary decision to seek the death sentence in a particular case will be guided not only by the nature of the crime itself, but also by any individualized characteristics of the defendant which may come out during the course of the trial." Id. Accordingly, the court must reject Stewart's assertion that the statute is being applied in an unconstitutional manner.
I. Racially Discriminatory Application of the Illinois Death Penalty Statute
Stewart contends that the Illinois death penalty statute is applied in a racially discriminatory manner. He cites to a study by Samuel Gross and Robert Mauro, Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimization, 37 Stan. L. Rev. 27 (1984). However, a statistical study suggesting that there is a racial disparity in the imposition of the death penalty is insufficient to demonstrate a constitutional violation. McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 1770, 95 L. Ed. 2d 262 (1987); Davis v. Greer, 13 F.3d 1134, 1144 (7th Cir. 1994). Accordingly, Stewart is not entitled to relief under this claim.
J. Illinois Death Penalty Statute Does Not Require the State to Prove the Lack of Mitigating Factors Beyond a Reasonable Doubt
Stewart argues that the Illinois death penalty statute violates a defendant's Eighth and Fourteenth Amendment right to receive a reliable death penalty determination by failing to require that the State prove that there are no mitigating factors beyond a reasonable doubt. In Silagy, the Seventh Circuit held that placing the burden of persuasion on the defendant to show that mitigating factors sufficient to preclude imposition of the death penalty after the prosecution has already proved beyond a reasonable doubt that a statutory aggravating factor exists is constitutionally acceptable. Silagy, 905 F.2d at 998-99. Therefore, Stewart's Petition may not be granted pursuant to this claim.
K. The Illinois Death Penalty Statute Lacks Comparative Review Procedure
Stewart's claim that the Illinois death penalty statute is unconstitutional because it does not provide for comparative appellate review procedures is also foreclosed by Silagy. Id. at 1000.
L. The Illinois Death Penalty Statute Shifts the Burden of Proving the Existence of Mitigating Factors to Defendant
Contrary to Stewart's assertion, the Illinois death penalty statue does not unconstitutionally shift the burden of proving the existence of mitigating factors to the defendant. Id. at 998-99.
M. Ineffective Assistance of Appellate Counsel
Stewart contends that his appellate counsel was ineffective for failing to raise the constitutional challenge to the Illinois death penalty statute asserted in Section II.L above. Because the Seventh Circuit has rejected that challenge to the statute, Id., Stewart cannot show prejudice from counsel's failure to raise the issue.
N. Application of Stare Decisis to Uphold the Illinois Death Penalty Statute
Stewart asserts that the application of stare decisis to uphold the death penalty statute violates the Eighth Amendment and the Supremacy Clause. In People ex rel. Carey v. Cousins, 77 Ill. 2d 531, 397 N.E.2d 809, 34 Ill. Dec. 137 (1979), a four member majority of the Illinois Supreme Court upheld the constitutionality of the Illinois death penalty statute. Three Justices dissented. Subsequently, Justice Kluczinski, a member of the Cousins majority, retired, and was replaced with Justice Simon. In a dissenting opinion in People v. Lewis, 88 Ill. 2d 129, 430 N.E.2d 1346, 1370-77, 58 Ill. Dec. 895 (Ill. 1982), Justice Simon expressed agreement with the three dissenters in Cousins. However, the Cousins dissenters, relying on stare decisis, voted to uphold the death penalty. Id. at 1363-64. Stewart asserts that this application of stare decisis to uphold the death penalty violates the Eighth Amendment and the Supremacy Clause.
Stewart does not support his assertion of constitutional infirmity with any analysis or citation to legal authority. Since every court in this country uses the doctrine of stare decisis, this court is hard pressed to understand how application of this doctrine implicates the Eighth Amendment or the Supremacy Clause. The Illinois Supreme Court held that the statute was constitutional in Cousins, 77 Ill. 2d 531, 397 N.E.2d 809, 34 Ill. Dec. 137, and that case has not been overturned. Furthermore, the United States Supreme Court has not ruled to the contrary. Thus, Stewart has not made out a cognizable Eighth Amendment or Supremacy Clause challenge against the statute based upon the application of stare decisis. Accordingly, he is not entitled to habeas relief on this claim.
For the foregoing reasons, Stewart's Petition for a Writ of Habeas Corpus is denied.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court