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UNITED STATES EX REL. JONES v. GILMORE

November 13, 1996

UNITED STATES OF AMERICA ex rel. MARSHALL JONES, Petitioner,
v.
JERRY D. GILMORE, et al., Respondents.



The opinion of the court was delivered by: SHADUR

 This Court's September 26, 1996 memorandum opinion and order (the "Opinion," a copy of which is being transmitted to the Illinois Attorney General's Office together with a copy of this opinion) dealt in a number of preliminary respects with the 28 U.S.C. ยง 2254 ("Section 2254") Petition submitted by Marshall Jones ("Jones") to challenge his state court conviction on charges of murder and armed robbery. Since the issuance of the Opinion:

 
1. Jones has paid the $ 5 filing fee for the Petition, thus mooting (as the Opinion had anticipated) his originally-filed Application To Proceed In Forma Pauperis.
 
2. Jones has also tendered photocopies of several of the documents that he had submitted in the course of his proceedings through the Illinois state court system:
 
(a) his Petition for Leave To Appeal to the Illinois Supreme Court from the Appellate Court's 1992 decision (reported at 236 Ill. App. 3d 244, 603 N.E.2d 619, 177 Ill. Dec. 549 (1st Dist. 1992)) on his direct appeal (the "Supreme Court Direct Appeal Petition," a document bearing an October 20, 1992 "Filed" stamp of the Illinois Supreme Court);
 
(b) his Memorandum of Law tendered to the Circuit Court of Cook County in support of his Petition for Post-Conviction Relief (the "Circuit Court Post-Conviction Petition"), filed in that court in September 1993; and
 
(c) his Petition for Leave To Appeal to the Illinois Supreme Court from the Appellate Court's affirmance of the dismissal of his post-conviction petition (the "Supreme Court Post-Conviction Petition," that document having been transmitted to the Supreme Court in February 1995).

 Although those documents are not a complete set of Jones' state court filings, they are sufficient to call for the clearly-mandated dismissal of his current Section 2254 Petition without the need for any further proceedings.

 
1. Denial of due process and a fair trial. Petitioner was denied a fair trial, where the jury was allowed to view a gruesome close-up photograph of the victim's blood-covered face, even though this photograph had no probative value, and was merely introduced to inflame and prejudice the jury.
 
2. Abuse of discretion by the trial court. The trial court erred in finding that the petitioner's conduct was exceptionally brutal and heinous, indicative of wanton cruelty, where the evidence showed that the unpremeditated murder occurred only after the victim resisted the armed robbery and fought with the petitioner, and where the evidence snowed that immediately following the offense the defendants expressed regret that someone had been killed.
 
3. Ineffective assistance of appellate counsel. Appellate counsel committed plain error in that counsel on appeal failed to raise and argue issue of inadmissible evidence being submitted to jury that was preserved on the record, since it is the "duty" of appellate counsel to act as advocate of the defendant, and not merely as amicus curiae and to marshall all arguments on behalf of defendant, appellate counsel's failure to raise and argue the issue of submission of the inadmissible evidence constitutes the denial of effective representation of counsel on review.
 
4. Violation of due process and equal protection. The trial judge committed "plain error" in not granting petitioner's motion for new trial, where inadmissible evidence is submitted to the jury, and prosecution admits to submission of inadmissible evidence. Where question of law is not whether submission of inadmissible evidence was inadvertent, but rather was submission of evidence prejudicial to petitioner, in violation of due process of law and equal protection of the law.
 
5. The trial judge committed plain error in not granting petitioner's motion for new trial, where the submission of inadmissible evidence to the jury, whether inadvertent or not, was means by which petitioner suffered impeachment without taking the witness stand on his own behalf and where the jury was not questioned in open court as to the impact of the inadmissible ...

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