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UNITED STATES EX REL. HUBBARD v. PAGE

November 25, 1997

UNITED STATES OF AMERICA ex rel. SHAWN HUBBARD, Petitioner,
v.
THOMAS F. PAGE, JAMES E. RYAN,1 Respondents.



The opinion of the court was delivered by: CASTILLO

 Following a jury trial, Petitioner Shawn Hubbard was convicted of two counts of first degree murder and three counts of armed robbery. The court sentenced Hubbard to natural life in prison without the possibility of parole on the murder counts, and a concurrent 30-year sentence on the armed robbery counts. While Hubbard pursued state appellate remedies without success, he failed to file a post conviction petition with the state courts. Hubbard now petitions this Court for a writ of habeas corpus under the newly amended 28 U.S.C. § 2254. *fn2" Hubbard raises only one issue in his pro se petition-- that his sentence is unconstitutional under the Eighth Amendment. *fn3" After careful review, we deny Hubbard'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. Hubbard, No. 93-4419 (Ill. App. Ct. Dec. 29, 1995).

 Hubbard was convicted in the murders of Kyong Pang and John Hoover, and the armed robbery that occurred at Pang's General Merchandise Store. Also charged, but tried separately, were Percy Hawkins, Darren Smith, and Rodney Williams. The following evidence was presented at Hubbard's trial.

 Michael King, an employee at Pang's store, testified that he, Hoover, and Pang were working at the store in the early evening of February 7, 1990, when a black male, later identified as Percy Hawkins, entered the store. Hawkins grabbed Pang in a headlock and, while holding a gun to Pang's head, ordered Hoover and King to go to the back room and lie face down on the floor. Hoover refused and Hawkins shot him. King complied with Hoover's instructions.

 From the backroom, King heard a struggle followed by a second gun shot. Almost immediately, the front door opened and two men, later identified as Hubbard and Rodney Williams, entered the store. King could not see them, but he could hear their conversation. One of the two asked "What happened?", while the other wanted to know "Why did you shoot him?" Hawkins told his two accomplices to "shut up and grab the loot." King heard the men breaking glass cases and removing jewelry. After the three men left the store, King sounded the store alarm. The police and paramedics arrived shortly thereafter.

 Following his indictment, Hubbard filed a motion to suppress the statement, claiming that he gave the statement under duress. In support of his motion, Hubbard stated that the police threatened that if Hubbard did not cooperate he would take the fall for the two murders and spend the rest of his life in prison, while the other participants would get off scot-free. The police allegedly informed Hubbard that if he signed the statement, he would be charged only with armed robbery and receive a ten-year sentence. Furthermore, Hubbard claimed the police convinced him that if he admitted keeping some of the jewelry, even though he did not, the admission would bolster the credibility of his statement. The trial court denied Hubbard's motion to suppress and read his statement to the jury.

 At trial, Hubbard described the events surrounding the crime. Hubbard explained that once the group arrived at Pang's store, the plan went awry. Within minutes of entering the store, Hawkins had shot two of the three employees. Hubbard testified that he never intended for anyone to be shot, and that the group never discussed the possibility that someone would be murdered. Hubbard acknowledged, however, that the group needed a gun to pull of their heist. Hubbard claimed that after Hawkins shot Hoover, Hawkins turned the gun on him and ordered Hubbard to steal the jewelry. As they ran out of the store, Hubbard stated that he didn't want to have anything to do with the robbery and therefore kept nothing. Hawkins allegedly threatened Hubbard and Williams that he would "have his brothers deal with [them]" if Hubbard and Williams didn't keep quiet about the incident. Hubbard further explained that his confession was the result of coercion.

 After hearing the testimony, the jury found Hubbard guilty on two counts of first degree murder and three counts of armed robbery. On September 9, 1993, the trial court denied Hubbard's motion for a new trial.

 At Hubbard's sentencing hearing, the State sought the death penalty on the grounds that Hubbard had committed felony murder and was guilty of murdering more than one person. The State called Officer Michael Glines of the Chicago Police Department to described the events leading up to Hubbard's arrest. The State also offered into evidence a copy of Hubbard's 1992 conviction for possession of a controlled substance with intent to deliver, for which he served a six month sentence and was placed on 20 months probation. In mitigation, Hubbard's sister and mother testified to Hubbard's close relationship with his family, his involvement with the church, and his strong employment background.

 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. Pursuant to section 5-8-1(a)(1)(c) of the Criminal Code, the court sentenced the 22-year-old Hubbard to life imprisonment without the possibility of parole. 730 ILCS 5/5-8-1(a)(1)(c) (1992) (mandating a minimum life sentence for multiple ...


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