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UNITED STATES EX REL. THIRSTON v. GILMORE

November 18, 1997

UNITED STATES OF AMERICA ex rel. EDWARD THIRSTON, Petitioner,
v.
JERRY D. GILMORE, JAMES E. RYAN,1 Respondents.



The opinion of the court was delivered by: CASTILLO

 Following a bench trial, Petitioner Edward Thirston was convicted of first degree murder and sentenced to an extended term of 70 years' imprisonment. Thirston pursued state appellate and post conviction remedies without success, and now petitions this Court for a writ of habeas corpus under the newly amended 28 U.S.C. § 2254. *fn2" Thirston raises four issues in his pro se petition: 1) ineffective assistance of trial counsel; 2) ineffective assistance of appellate counsel; 3) insufficiency of the evidence; and 4) constitutionally excessive sentence. After careful review, we deny Thirston's petition.

 RELEVANT FACTS

 When considering a habeas corpus petition, the Court presumes that the factual determinations of the state court are correct. 28 U.S.C. § 2254(e)(1). Accordingly, we adopt the facts as set forth by the Illinois Appellate Court. See People v. Thirston, 167 Ill. App. 3d 1166, 538 N.E.2d 920, 131 Ill. Dec. 545 (Ill. App. Ct. 1988).

 Thirston was found guilty of fatally beating Keith Jones, the 22-month old son of Vernidette Jones, Thirston's live-in girlfriend. The following evidence was presented at trial. Thirston and Vernidette shared an apartment with Vernidette's three sons, Thirston's cousin, David Butler, and Butler's girlfriend, Lisa Brumfield *fn3" On the evening of July 15, 1985, Keith Jones, who wasn't wearing a diaper, defecated on himself and the bedroom floor. Vernidette testified that Thirston became enraged. Thirston picked up the infant by the collar and beat him with his fists. According to Vernidette, she, Lisa Brumfield, and David Butler tried to stop Thirston, but he continued, cursing the child as he hit him another 20 times with a buckled leather belt. Apparently unsatisfied that Keith had learned his lesson, Thirston began stomping on the child. Finally, Lisa Brumfield called for an ambulance. Vernidette accompanied her son to the hospital where he was pronounced dead. A review of the coroner's report revealed that the infant's injuries were consistent with Vernidette's description of the incident. On cross-examination, Vernidette claimed she was unaware whether Thirston had used drugs, but noticed that he smelled of alcohol the day of the incident.

 Gregory Morris, the paramedic responding to the call for help, testified that the infant was not showing any signs of life when Thirston brought Keith down to the ambulance. Morris recalled that Thirston explained that the child merely had the wind knocked out of him. When asked about Thirston's condition, Morris responded that Thirston neither appeared to be under the influence of a controlled substance, nor did he smell of alcohol. Officer Thomas Williams, who saw the ambulance and stopped to help, testified that Thirston admitted pushing the Keith into a door because the child had defecated on the floor. Also testifying was Detective Utter, who spoke with Thirston at the hospital and then later at Chicago's Area 1 headquarters. Utter stated that Thirston was sober and coherent. At the police station, Thirston gave a court-reported statement in the presence of an assistant state's attorney in which he confessed to striking Keith hard on at least five occasions and shoving the child into a door to punish him for his behavior.

 Thirston's trial testimony conflicted with the statement he gave to police. On direct examination, Thirston claimed that he struck Keith only once, causing the victim to fall into the door, and then left the apartment for almost an hour. Thirston denied having any intention to kill the child, stating that he was under the influence of drugs and alcohol at the time of the assault. Thirston testified that when he returned to the apartment he found Keith in bed. Distressed by the infant's condition, Thirston woke Lisa Brumfield and asked her to call an ambulance.

 Thirston further challenged Vernidette's version of the events, stating that only Vernidette and her three children were present at the time of the incident. Accordingly to Thirston, Lisa Brumfield wasn't in the room, and David Butler was out of the apartment entirely. Neither Lisa Brumfield nor David Butler were called to testify. On cross-examination, Thirston changed his testimony once again, admitting that he struck the victim three or four times.

 The court determined that Thirston was guilty of first degree murder. The court considered the manslaughter alternative, but found no mitigating factors that would warrant the lesser degree of homicide. At the sentencing hearing, the State presented the testimony of Thirston's sister, Ella Reynolds, and her common law husband, Willie Peoples. Reynolds and Peoples testified that Thirston and Vernidette physically disciplined their children. Reynolds further admitted that when Thirston spanked and whipped the children, he often used a belt. The State then offered evidence of Thirston's prior criminal history, including numerous adult convictions for robbery and theft.

 In mitigation, the defense told of Thirston's troubled youth and his drug and alcohol problems. Defense counsel requested that the court consider Thirston's rehabilitative potential, noting that Thirston's prior convictions were primarily for non-violent offenses, and that his violent behavior was limited to altercations with those close to him. While Thirston was given the opportunity to address the court, he declined to do so.

 After hearing the factors in aggravation and mitigation, the court determined that although the operative factors necessary to impose a death sentence were present, sufficient mitigating factors existed to avoid that disposition. The court then turned its attention to the statutorily designated sentencing factors. The judge observed that the adult Petitioner had beaten the infant in an exceptionally brutal and heinous manner. The court considered the need to protect others from Thirston's outrage, took note of his age and background, and sentenced Thirston to an extended term of 70 years imprisonment.

 PROCEEDINGS ON DIRECT APPEAL

 The appellate court was unmoved by Thirston's showing and affirmed his sentence. Upon review, the court noted the broad discretion afforded to sentencing courts in Illinois. See People v. LaPointe, 88 Ill. 2d 482, 431 N.E.2d 344, 59 Ill. Dec. 59 (1981). The court explained that the trial court was justified in imposing the extended term of imprisonment because Thirston was over the age of seventeen and the victim was under the age of twelve, and because the offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. Ill. Rev. Stat. 1983, ch. 38, par. 1005-3.2(b)(2) and (b)(3)(i). Accordingly, in the absence of evidence that the penalty constituted a substantial departure from the spirit and purpose of Illinois law, the appellate court refused to disrupt Thirston's sentence. People v. Thirston, No. 86-0669, slip op. at 6-7 (Ill. App. Ct. Mar. 9, 1988).

 In this regard, Thirston claimed that the imposition of such a lengthy sentence upon a man his age, 34, was the functional equivalent of a death sentence. Such an extensive incarceration, Thirston argued, defeated the Illinois Constitution's goal of rehabilitation. The appellate court rejected Thirston's contention that the trial court failed to give adequate consideration to his potential for rehabilitation. The record demonstrated that the trial court properly balanced the brutal nature of the crime against Thirston's rehabilitative potential. The appellate court refused to conclude that the trial court abused its discretion. See People v. Cabrera, 116 Ill. 2d 474, 508 N.E.2d 708, 108 Ill. Dec. 397 (1987).

 Thirston petitioned the Illinois Supreme Court for leave to appeal the appellate court's ruling, arguing that the appellate court erred in finding that his sentence of 70 years was not excessive. ...


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