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UNITED STATES EX REL. HILLENBRAND v. PAGE

October 24, 1997

UNITED STATES OF AMERICA ex rel., HENRY C. HILLENBRAND, Petitioner,
v.
THOMAS F. PAGE, Warden of Menard Correctional Center, Respondent.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Petitioner's Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. For the following reasons, the petition is denied.

 I. BACKGROUND

 On October 19, 1970, Petitioner, Henry C. Hillenbrand ("Hillenbrand"), pleaded guilty to two counts of murder. For Hillenbrand's guilty plea, the State promised not to seek the death penalty. The State charged Hillenbrand for the murder of George Evans ("Evans") and Patricia Pence ("Pence"). At the plea hearing, Hillenbrand agreed with the State's recitation of the facts.

 Hillenbrand admitted that on June 29, 1970, he went to Evans' home around 7:00 in the morning, armed with a .22 caliber rifle. Hillenbrand found Evans in bed with his former girlfriend, Pence. Hillenbrand fatally shot Evans in the head, and then abducted Pence to his residence. At his house, Hillenbrand struck Pence over the head with the stock of the rifle with such force that the rifle's stock broke off. When Pence attempted to escape, Hillenbrand fatally shot her in the back. Several witnesses saw Hillenbrand shoot and kill Pence.

 Prior to his sentencing in October 1970, Hillenbrand escaped from the LaSalle County jail. On May 2, 1983, Hillenbrand was recaptured in St. Louis, Missouri, and returned to LaSalle County jail. Following his recapture, Hillenbrand filed a motion to withdraw his guilty plea and argued that: (1) his counsel failed to investigate and advise him of the possibility of a voluntary intoxication defense ("ineffective assistance of counsel"); and (2) his counsel's prior representation of Pence's parents on various occasions, and his counsel's alleged involvement with a related dram shop action caused his counsel to labor under a conflict of interest ("conflict of interest"). (See Resp't Answer at 3.)

 The trial court denied the motion to withdraw Hillenbrand's guilty plea and sentenced him on February 24, 1984, to a term of 80 to 240 years of imprisonment for the murder of Pence, to be served consecutively to a term of 50 to 150 years of imprisonment for the murder of Evans. Hillenbrand is currently in the custody of the Respondent, Warden Thomas F. Page ("Page"), at the Menard Correctional Center in Menard, Illinois.

 Hillenbrand then appealed to the Illinois Appellate Court and raised the following claims of error: (1) the trial court's refusal to withdraw his guilty plea based on ineffective assistance of counsel and conflict of interest; and (2) the trial court's imposition of aggregate minimum sentences exceeding twenty-eight years. See id. at 4.

 On August 22, 1986, the appellate court rejected Hillenbrand's claims of error based on ineffectiveness of counsel and conflict of interest, and affirmed the trial court's denial of Hillenbrand's motion to withdraw his guilty plea. See People v. Hillenbrand, 146 Ill. App. 3d 1075, 497 N.E.2d 798, 803, 100 Ill. Dec. 620 (Ill. App. Ct. 1986). However, the appellate court reversed the trial court's imposition of an aggregate sentence exceeding twenty-eight years, and remanded the case to the trial court with direction to impose concurrent sentences. Id. On October 2, 1986, the appellate court denied Hillenbrand's motion for rehearing. Id. at 798.

 Thereafter, both the State and Hillenbrand filed petitions for leave to appeal to the Illinois Supreme Court. On February 6, 1987, the Illinois Supreme Court granted both petitions. See People v. Hillenbrand, 106 Ill. Dec. 51, 505 N.E.2d 357 (Ill. 1987). In Hillenbrand's petition, he argued that the trial court erred in refusing to withdraw his guilty plea based on: (1) ineffective assistance of counsel; and (2) conflict of interest. See People v. Hillenbrand, 121 Ill. 2d 537, 521 N.E.2d 900, 902-04, 118 Ill. Dec. 423 (Ill. 1988). The State raised the claim that the appellate court erred in ordering concurrent sentencing. 521 N.E.2d at 909. On March 23, 1988, the Illinois Supreme Court affirmed the appellate court's judgment in its entirety, and remanded the case to the trial court for sentencing consistent with the appellate court's decision. Id. at 912.

 Hillenbrand then filed the instant petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus. In his petition, Hillenbrand argues that his conviction should be vacated and he should be allowed to withdraw his guilty plea based on: (1) ineffective assistance of counsel; and (2) conflict of interest.

 II. DISCUSSION

 Before a federal court can consider a petition for writ of habeas corpus, a petitioner must have exhausted all available state remedies. See Momient-El v. Detella, 118 F.3d 535, 538 (7th Cir. 1997). In addition, the petitioner must have raised all his claims during the course of the state proceedings, so as not to be procedurally defaulted. Id. at 541. If a petitioner ...


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