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