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O'MALLEY v. STERNES

November 17, 2004.

DUANE O'MALLEY, Petitioner,
v.
JERRY STERNES, Respondent.



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Petitioner Duane O'Malley's (hereinafter, "O'Malley") Amended Petition for Habeas Corpus relief pursuant to 28 U.S.C. § 2254 ("Section 2254"). In 1993, O'Malley was convicted of solicitation of murder for hire and sentenced to the statutory minimum of twenty years in prison. O'Malley's Petition challenges such conviction and sentence.

I. DISCUSSION

  O'Malley requests habeas relief on the following eight grounds:
1) He was not proven guilty beyond a reasonable doubt in violation of his constitutional rights under the Fourteenth Amendment;
2) He was sentenced under an unconstitutional sentencing statute in violation of the Eighth and Fourteenth Amendments;
3) Newly discovered evidence demonstrates that he is actually innocent, and such evidence would have been revealed but for ineffective assistance of counsel; 4) Newly discovered evidence shows that he was entrapped by the state's paid informant, and that trial counsel was ineffective for failing to investigate and discover this evidence;
5) He was denied a fair trial and due process of law because the key prosecution witness Larry Burke committed perjury before the Grand Jury and at trial;
6) He was denied due process and a fair trial because the state failed to disclose all evidence material to the impeachment of Larry Burke;
7) He received ineffective assistance of counsel at both the trial and appellate level; and
8) He was denied of his Fourth Amendment rights where the Circuit Court of Cook County refused to credit him with time spent in custody while awaiting trial.
  Before reaching O'Malley's claims, the Court first addresses the threshold issue of jurisdiction. O'Malley was in custody when he filed his original petition for habeas corpus relief in February 2001, but was released from prison on October 11, 2002 while his amended petition was still pending. However, the fact that O'Malley is no longer in prison does not necessarily render his habeas petition moot. The Supreme Court has identified this situation as an issue not of "mootness in the technical or constitutional sense, but whether the statute defining the habeas corpus jurisdiction of the federal judiciary in respect of a person in state custody is available here." Carafas v. LaVallee, 391 U.S. 234, 238 (1968). The Supreme Court concluded that "once the federal jurisdiction has attached in the District Court, it is not defeated by the release of the petitioner prior to completion on such application." Id. Moreover, the governing statute contemplates the possibility of relief other than immediate release from custody. Id. at 239. In essence, a petitioner's release from custody will not render the habeas petition moot if the underlying conviction continues to carry sufficient collateral consequences. Id. at 237; accord D.S.A. v. Circuit Court Branch I, 942 F.2d 1143, 1145-46 (7th Cir. 1991).

  Here, O'Malley was convicted of the serious felony of solicitation of murder for hire. Such a felony carries sufficient collateral consequences to maintain his requests for relief, particularly those that go to the merits of the case. Unlike the case of a misdemeanor contempt conviction, O'Malley could be prevented from "voting, serving on a jury, obtaining a license to practice law . . . [and could] expose [him] to the possibility of an enhanced sentence" for a later criminal act. D.S.A., 942 F.2d at 1146. He is suffering, and will likely continue to suffer, a serious stigma that would be contrary to justice if his claim that he has been illegally convicted is meritorious. Therefore, the Court concludes that O'Malley's amended habeas petition is not moot, and accordingly, addresses each of O'Malley's claims in turn.

  A. Not Proven Guilty Beyond a Reasonable Doubt

  O'Malley's first claim is that he was not proven guilty beyond a reasonable doubt, in violation of his due process rights. O'Malley specifically contends that he lacked the requisite intent to commit solicitation of murder for hire and he neither commanded, requested, nor encouraged the commission of the charged offense. Essentially, O'Malley asserts that the trial court got the facts wrong. The State argues that because O'Malley did not include this claim in his petition for leave to appeal beyond his direct appeal, the issue is procedurally defaulted under O'Sullivan v. Boerkel, 526 U.S. 838 (1999) (holding that failure to include an issue in a petition for leave to appeal to the Illinois Supreme Court precludes consideration of the claim in federal court on habeas review).

  Even if the issue were not defaulted, however, the Court must be extremely deferential to the trial court's fact finding role. A federal court may issue a writ of habeas corpus only where the state court's adjudication 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)(2). The record indicates that the State presented multiple witnesses that testified regarding O'Malley's intent and execution of the crime. The lone defense witness, Mrs. Wood, offered only circumstantial evidence meant to demonstrate that O'Malley was avoiding his hired hit man. A reasonable fact finder could have found that O'Malley both intended to commit and did commit the crime of solicitation of murder for hire. Accordingly, O'Malley's Petition is denied on the theory that he was not proven guilty beyond a reasonable doubt.

  B. Sentenced Under an Unconstitutional Statute

  O'Malley next claims that he was sentenced under an unconstitutional statute in violation of the Eighth and Fourteenth Amendments. O'Malley was sentenced pursuant to a statute establishing a twenty-year minimum sentence for solicitation of murder for hire. See 720 ILCS 5/8-1.2 ("Sentencing Statute"). O'Malley claims that the Sentencing Statute violates his due process and equal protection rights and the constitutional prohibition against cruel and unusual punishment. He argues that the Sentencing Statute, and therefore the sentence imposed on him, contravenes the constitutional mandate that all sentences be based upon the seriousness of the offense. He further claims that because the Sentencing Statute imposes a disproportionate sentence on individuals convicted of a solicitation of murder for hire offense compared to, for example, individuals convicted of attempted murder, individuals convicted of second-degree murder, or individuals convicted of accepting and attempting a solicitation of murder for hire, he is denied equal protection under the law. He notes that his sentence is also disproportionate to sentences imposed on individuals convicted of most specific-intent crimes involving bodily injury. Finally, he argues that the twenty-year sentence is disproportionate to the offense committed, and is therefore prohibited by the constitutional ban of cruel and unusual punishment. The State again contends that this claim is procedurally defaulted.

  Given that O'Malley is no longer in prison, this issue is most likely moot. However, even if the issue is not moot, the Court nonetheless finds O'Malley's arguments without merit. Arnold's other argument pertaining to the different sentences available to those who advertise, rather than receive, child pornography is unpersuasive. As a preliminary matter, the proper standard for a proportionality analysis is whether the sentence is "grossly disproportionate" to the crime. See Ewing v. California, 538 U.S. 11, 23 (2003). The sentencing scheme upheld in Ewing is instructive in illustrating the weakness of O'Malley's argument here. In Ewing, the defendant received a sentence of 25 years to life following his conviction for stealing three golf clubs worth $399 each. California's "three strikes" law accounted for the severity of the sentence.

  Here, the Sentencing Statute is nowhere near as disproportionate and onerous as the one upheld in Ewing. Given the cold-hearted calculation involved in solicitation of murder for hire, it is within the prerogative of the legislature to deem this offense more serious than others. For example, while a person who solicits murder for hire is motivated by malice, the person who accepts and attempts that murder is generally economically motivated. The legislature could reasonably believe the former is more culpable. Ewing instructs that courts must give great deference to reasonable legislative determinations. See id. Further, O'Malley's claim that his sentence is disproportionate to sentences imposed on individuals convicted of most specific intent crimes involving violence and/or bodily injury extraordinarily vague.

  Finally, the claim that a twenty-year sentence is unconstitutionally disproportionate to the offense committed, and therefore prohibited as cruel and unusual finds no support in the law. Whether a punishment is cruel and unusual depends on evolving standards of decency. In the past, where the Supreme Court has found a punishment to be cruel and unusual, they have relied on evidence of national consensus. See, e.g., Stanford v. Kentucky, 492 U.S. 361, 362 (1989). O'Malley has not provided a scintilla of evidence relating to a national consensus that twenty year sentences for soliciting murder for hire are cruel or unusual. Nor does ...


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