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Steward v. Gilmore

April 5, 1996

LEVIE STEWARD, PETITIONER-APPELLANT,

v.

JERRY D. GILMORE, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 93 C 253--Ann Claire Williams, Judge.

Before BAUER, CUDAHY, and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

ARGUED SEPTEMBER 22, 1995

DECIDED APRIL 5, 1996

Levie Steward appeals the denial of his habeas corpus petition, in which he alleges ineffective assistance of trial, appellate and post-conviction counsel; invalidity of his guilty plea; cruel and unusual punishment; and judicial misconduct. From our review of the record, it appears that Steward may have had a colorable claim of ineffective assistance of counsel for failure to raise a patently meritorious state law claim. However, because this claim was not brought to the attention of the state courts, it may not be considered here. Therefore, we affirm the judgment of the district court with respect to the issues raised by Steward there.

I. Procedural History

A. Original State Court Proceedings

Steward's case has followed a long and tortuous path through the state courts and indigent defense system. On November 29, 1979, Steward pleaded guilty to murder, armed robbery and armed violence. He was represented in those proceedings by a public defender, George Miranda. On January 28, 1980, Steward was sentenced to an eighty-year "extended sentence" pursuant to Ill. Rev. Stat. ch. 38, para. 1005-8-2 (now at 730 ILCS 5/5-8-2 with modified minimum and maximum sentences):

Extended Term. (a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized . . . for the class of the most serious offense of which the offender was convicted unless the factors in aggravation . . . were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:

(1) for first degree murder, a term shall be not less than 40 years and not more than 80 years;

. . .

(b) If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant's knowledge that a sentence under this Section was a possibility. If it does not so appear on the record, the defendant should not be subject to such a sentence unless he is first given an opportunity to withdraw his plea without prejudice. (Emphasis added.)

Before entering his guilty plea, Steward was not admonished by the trial court that an extended term sentence was a possibility in his case. In fact, Steward contends that Miranda told him that the prosecution and the court had agreed to impose a twenty-year sentence on him in exchange for his guilty plea.

On February 27, 1980, Miranda filed on Steward's behalf a notice of appeal from Steward's conviction and sentence. Pet. App. at A-43. On the same day, in response to a January 30, 1980 letter from Steward, the State Appellate Defender's office filed a motion in the trial court to vacate Steward's guilty plea. Pet. App. at A738. The motion was filed without specifying the grounds on which Steward intended to rely, stating that an amended motion would be filed after counsel had been appointed. No amended motion was ever filed. A hearing was held on the motion on March 10, 1980, at which the motion was summarily denied. Steward was neither present nor represented at the hearing and no argument was presented on his behalf on the motion. Pet. App. at A940 & 47. Steward filed a notice of appeal from the denial of his motion on March 20, 1980. In the notice of appeal he stated that "Miranda told [him] that the court and the State[']s [A]ttorney had agreed to give [him] a 20 year sentence if [he] did not say anything during [the] proceeding." Pet. App. at A-44. On July 7, 1981, Steward, with the assistance of the State Appellate Defender, moved the Illinois Appellate Court either for permission to file a late notice of appeal *fn1 or to remand the case to the trial court for rehearing of the motion to vacate the guilty plea. The motion also asked for the appointment of counsel to represent him at rehearing. The Illinois Appellate Court granted the motion. Pet. App. at A-45, 49.

At a hearing on October 23, 1981, both a motion to vacate Steward's guilty plea and a motion to reduce his sentence were presented. Marianne Jackson was appointed to represent Steward at that hearing. Jackson focused her argument on the request for a reduction of sentence. The limited colloquy regarding the motion to vacate the guilty plea proceeded as follows:

Ms. Jackson: I would bring to the Court's attention the fact that [at] the time Mr. Steward entered the guilty plea he was not advised of the fact that there was a possibility an enhanced sentence would be imposed.

The Court: He was told what sentence he was going to get, wasn't he?

Ms. Jackson: No, your Honor.

The Court: Wasn't this a plea ...


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