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MARSH v. GILMORE

June 23, 1999

TERRY MARSH, PETITIONER,
v.
JERRY GILMORE, RESPONDENT.



The opinion of the court was delivered by: McCUSKEY, District Judge.

ORDER

This matter is before the court on Petitioner Terry Marsh's Petition for Writ of Habeas Corpus (# 1). In that petition, Marsh challenges his sentences for his 1993 state-court convictions for three counts of aggravated criminal sexual abuse. As ordered, the Respondent Jerry Gilmore has filed an answer to the petition (# 8), as well as a copy of the state court record (# 9).

Following a thorough review of the petition, answer, state court record, and supporting legal memoranda, this court concludes that the state appellate court rendered a reasonable decision regarding Marsh's claims, and DENIES the Petition for Writ of Habeas Corpus in its entirety.

FACTS

On March 1, 1993, Petitioner pleaded guilty in state court to three counts of aggravated criminal sexual abuse, for which he was sentenced to serve three consecutive seven-year prison terms. On appeal to the Appellate Court of Illinois, Fourth District, Marsh challenged his sentences as an abuse of discretion, arguing that a maximum term of seven years was excessive and that the imposition of consecutive sentences was improper. The Appellate Court affirmed Marsh's conviction and sentence on September 30, 1994. People v. Marsh, 263 Ill. App.3d 1129, 225 Ill. Dec. 384, 683 N.E.2d 552, No. 4-94-0005 (Ill.App.Ct. Sept. 30, 1994) (unpublished order).

Marsh filed a petition for leave to appeal to the Illinois Supreme Court in which he raised the following issues: 1) the Fourth District Appellate Court's decision conflicted with decisions of the First District Appellate Court; 2) the First District's comparative approach to sentencing is more appropriate than the Fourth District's; and 3) comparing Marsh's sentence to others convicted of similar offenses reveals that the trial court abused its discretion in sentencing Marsh. The Illinois Supreme Court denied Marsh's petition on February 23, 1995.

Marsh then filed a petition under the Illinois Post Conviction Hearing Act. 725 Ill.Comp.Stat. 5/122-1 et seq. (West 1995). In this petition, he alleged that the trial court's imposition of three consecutive seven-year sentences violated his right to due process and to be free from cruel and unusual punishment under the Fifth, Fourteenth, and Eighth Amendments to the United States Constitution. In addition, Marsh alleged that the trial court violated his right to due process and equal protection under the law when it based its sentencing decision on inadequate consideration of Marsh's background and an inaccurate diagnosis of him as a pedophile.

The trial court dismissed Marsh's petition, and Marsh appealed. On appeal, Marsh argued that the trial court erred when it dismissed his petition without an evidentiary hearing. The Appellate Court, Fourth District, affirmed that dismissal on April 17, 1997. People v. Marsh, 286 Ill. App.3d 1145, 237 Ill.Dec. 552, 709 N.E.2d 1021, No. 4-96-0643 (Ill.App.Ct. Apr. 17, 1997) (unpublished order). On October 1, 1997, the Illinois Supreme Court denied Marsh's petition for leave to appeal the appellate court's decision. This petition followed.

ANALYSIS

Marsh filed his Petition for a Writ of Habeas Corpus with this court on March 20, 1998(# 1); accordingly, review of this petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). 28 U.S.C. § 2254 (West 1999); Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996), rev'd on other grounds, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481(1997). Under amended section 2254, to establish that he is entitled to a writ of habeas corpus, the petitioner must show that his claims were adjudicated on the merits in state court and that the claims either: (1) resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). In reviewing a petition for a writ of habeas corpus, the federal court presumes that any determination of a factual issue made by a state court was correct unless the petitioner can rebut the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Marsh was convicted of three counts of aggravated criminal sexual abuse, a Class 2 felony punishable by a term of imprisonment of not less than three and not more than seven years. 730 Ill.Comp.Stat. 5/5-8-1(a)(5) (West 1992). The trial court sentenced Marsh to the maximum sentence of seven years for each offense. In addition, the court determined that consecutive sentences were necessary to protect the public from Marsh's criminal conduct, and ordered that the three seven-year sentences be served consecutively rather than concurrently under 730 Ill.Comp.Stat. 5/5-8-4(b).

In his petition, Marsh asserts the following two claims: 1) that the state trial court violated his constitutional rights to due process and equal protection under the law when it imposed the maximum sentence for each conviction and ordered the sentences to run consecutively, and 2) that the trial court imposed an excessive sentence in violation of the Eighth Amendment to the United States Constitution. In support of those claims, Marsh argues that the sentences were disproportionate to his culpability and to sentences imposed in similar cases.

Marsh asserts his first claim under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Seventh Circuit, however, has rejected similar attempts to challenge sentences under either of these clauses because the "Eighth Amendment explicitly addresses the constitutionality of punishments." Holman v. Page, 95 F.3d 481, 485 (7th Cir. 1996), cert. denied, 520 U.S. 1254, 117 S.Ct. 2414, 138 L.Ed.2d 179 (1997) (citing Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)). In Albright, the Supreme Court held that "[w]here a particular amendment [to the Constitution] `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.'" Albright, 510 U.S. at 273, 114 S.Ct. 807 (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)); see also Kernats v. O'Sullivan, 35 F.3d 1171, 1182 (7th Cir. 1994) (holding that "claims alleging substantive due process violations often are more appropriately analyzed under the more specific guarantees of the various provisions of the Bill of Rights"). In light of that precedent, this court declines to create a new way to challenge sentences under the Due Process or Equal Protection Clauses.

Moreover, Illinois has an interest in severely punishing adults who exploit juveniles for sexual gratification, both to deter others of similar tendencies from committing these crimes and to prevent repeat offenses. It has materially advanced that interest by incarcerating Marsh for a substantial period of time. Some rational connection between the sentence and the offense is all the Constitution requires under the Due Process and Equal Protection Clauses, and that requirement is clearly met ...


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