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UNITED STATES EX REL. NEUMANN v. PAGE

April 21, 1995

UNITED STATES OF AMERICA ex rel. LAWRENCE NEUMANN, Petitioner,
v.
THOMAS PAGE, Warden, Menard Correctional Center, Respondent.1



The opinion of the court was delivered by: JAMES H. ALESIA

 Petitioner Lawrence Neumann, an Illinois state prisoner, seeks habeas corpus relief pursuant to 28 U.S.C. § 2254. Neumann alleges that, during jury selection at his trial, the state prosecutor exercised peremptory challenges in a discriminatory manner. As such, Neumann contends that the state violated the Sixth Amendment's guarantee to a petit jury composed of a fair cross section of the community (incorporated through the Fourteenth Amendment) and the Fourteenth Amendment's Equal Protection Clause. Respondent answers that petitioner's application is procedurally defaulted and insufficient on the merits. For the reasons set forth below, Neumann's petition is denied with prejudice.

 I. BACKGROUND

 Petitioner was tried by jury in the Circuit Court of Cook County, Criminal Division (Case No. 82 I 9855), for the September 25, 1979, murder of Robert Brown. On September 16, 1983, petitioner was convicted of murder, murder while committing armed robbery, and murder while committing burglary. Petitioner was sentenced to natural life imprisonment, and is currently in the custody of Thomas Page, Warden of the Menard Correctional Center, Menard, Illinois.

 Following his conviction, petitioner appealed to the Illinois Appellate Court, contending that: "(1) the trial court erred in denying his petition for discharge based on the denial of his right to a speedy trial; (2) the trial court erred in failing to disqualify itself from defendant's retrial after the original proceeding was declared a mistrial; (3) the State failed to prove defendant guilty of murder beyond a reasonable doubt; (4) the trial court erred in admitting certain evidence and excluding other evidence about the State's key witness ...; and (5) the prosecutor's remarks during closing and rebuttal arguments were prejudicial and constituted reversible error." People v. Neumann, 148 Ill. App. 3d 362, 365, 499 N.E.2d 487, 489, 101 Ill. Dec. 899 (1st Dist. 1986). The Illinois Appellate Court rejected each of petitioner's claims, thereby affirming his convictions and sentence. The appellate court initially decided the case August 27, 1986, and denied a petition for rehearing on November 12, 1986.

 Petitioner subsequently filed a Petition for Leave to Appeal to the Illinois Supreme Court, raising four of the five aforementioned issues. On February 6, 1987, the Illinois Supreme Court denied petitioner leave to appeal. People v. Neumann, 106 Ill. Dec. 53, 113 Ill. 2d 581, 505 N.E.2d 359, cert. denied, 481 U.S. 1051, 107 S. Ct. 2184, 95 L. Ed. 2d 840 (1987). Petitioner failed to seek state post-conviction relief pursuant to 725 ILCS 5/122-1 through 122-8, and now acknowledges that he may no longer file for state post-conviction relief as the statutory limitation period has expired. 725 ILCS 5/122-1.

 Petitioner brings the instant application for a writ of habeas corpus, asserting a single ground for relief. Petitioner contends he was deprived of a fair trial by the systematic exclusion of African-Americans from his petit jury pursuant to Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965). Specifically, petitioner alleges that, during the jury selection process, the prosecutor forewarned petitioner's defense attorney of the prosecutor's intention to challenge and excuse all African-Americans sitting in the jury venire. Petitioner further alleges that the prosecutor in fact did use his peremptory challenges to excuse eleven African-Americans. Finally, petitioner contends that, at the time of his trial, Cook County prosecutors commonly and systematically used peremptory challenges to dismiss potential jurors based on their race.

 In support of his allegations, petitioner offers the signed affidavit of Mr. Adam Bourgeois, petitioner's attorney at trial, and the signed affidavits of a number of local criminal defense attorneys. *fn2" In his affidavit, Mr. Bourgeois attests to the alleged statement made by the prosecutor prior to jury selection. Additionally, Mr. Bourgeois and the eleven local criminal defense attorneys allege that it was common practice, at the time of petitioner's trial, for Cook County prosecutors to exclude African-Americans from jury service based solely on their race. Petitioner further notes that Mr. Bourgeois unsuccessfully objected to the prosecutor's challenges during the jury selection process, arguing that they were "racist in design and motivation." (State R. at B-448; Habeas R. at 509).

 Petitioner admits that he failed to bring his current claim to the highest Illinois court. Petitioner, however, contends that he can show sufficient cause and prejudice to excuse his procedural default. Most importantly, petitioner, a Caucasian man, alleges that he lacked the requisite standing to raise a Swain challenge at the time of his trial and appellate proceedings and that such now constitutes sufficient cause to excuse his default. Petitioner further states that he has made a sufficient preliminary showing with respect to his claim, and asks this court to schedule a hearing through which he may expand upon his factual allegations and resolve his claim on the merits.

 Respondent urges this court to dismiss petitioner's writ as procedurally defaulted and as insufficient on the merits. Respondent states that petitioner failed to properly present his claims in state court proceedings and that he has failed to establish cause for such default or prejudice resulting therefrom. Respondent further contends that the case law in effect at the time of petitioner's trial and appellate proceedings clearly provided petitioner with a valid constitutional argument in relation to the prosecutor's alleged discriminatory conduct. Similarly, respondent contends that petitioner's current factual argument was available at the time of petitioner's trial and appellate proceedings.

 As for the merits of petitioner's claim, respondent asserts that petitioner has failed to set forth a sufficient factual basis to support his cause of action. Respondent specifically contends that petitioner's complaint, the affidavit of petitioner's counsel, and the supporting affidavits of local attorneys lack significant factual detail. Notwithstanding the factual or legal sufficiency of petitioner's attached affidavits, respondent further contends that the record in this case does not support petitioner's claim.

 II. DISCUSSION

 A. Waiver

 Neumann brings his petition pursuant to 28 U.S.C. § 2254, the federal habeas corpus provision for state prisoners. As such, this court may consider the merits of Neumann's habeas corpus petition only after ensuring that Neumann has overcome the two procedural hurdles of exhaustion and procedural default. Id. Coleman v. Thompson, 501 U.S. 722, 731, 111 S. Ct. 2546, 2554-55, 115 L. Ed. 2d 640 (1991); Jones v. Washington, 15 F.3d 671, 674 (7th Cir.), cert. denied, 129 L. Ed. 2d 870, 114 S. Ct. 2753 (1994).

 1. Exhaustion of State Court Remedies

 A state prisoner normally must exhaust all available state judicial remedies before a federal court will hear a petition for habeas corpus. Coleman, 501 U.S. at 731, 111 S. Ct. at 2554-55; Picard v. Connor, 404 U.S. 270, 275, 92 S. Ct. 509, 512, 30 L. Ed. 2d 438 (1971); White v. Peters, 990 F.2d 338, 341 (7th Cir. 1993). This exhaustion requirement, codified in the federal habeas statute itself, gives states the initial opportunity to correct any violations of prisoners' federal rights. 28 U.S.C. § 2254(b); Coleman, 501 U.S. at 731, 111 S. Ct. at 2555; Nutall v. Greer, 764 F.2d 462, 463 (7th Cir. 1985). However the exhaustion requirement applies only to remedies available at the time the habeas petition is filed. Verdin v. O'Leary, 972 F.2d 1467, 1483 (7th Cir. 1992); United States ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1196 (7th Cir. 1984). Thus, a petitioner seeking habeas corpus relief has exhausted his available state ...


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