The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
This is a petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 by Marlon Porter, prisoner No. R30867, incarcerated at the Menard Correctional Center in Menard, Illinois. Petitioner Porter is serving sentences for first degree murder and personally discharging the firearm that caused the victim's death. He is sentenced to fifty years in prison for the homicide and a consecutive sentence of twenty-five years for firing the fatal bullet.
The details of the crime itself, while uncommon in real life, are the grist of the melodramas seen on made-for-cable-television movies. Petitioner Porter was seventeen years old when he shot a twelve year old boy in the back, killing him. No warning was given. The crime was perpetrated at the behest of a co-defendant named Lakesha Woodard, a woman a bit older than Porter. Woodard wanted to retaliate against another young man who was involved in a "prior altercation" in which Woodard's face had been cut. On the day of the murder in 2000, Woodard picked up Porter in a car, handed him a pistol, pointed out a young man on the street and told Porter to kill him. The boy, twelve-year-old Orlando Patterson, was not Woodard's target, she had mistaken him for the teenager who had harmed her.
Porter and Woodard were tried in a consolidated proceeding in which two separate juries sat, one to decide Porter's case and the other to decide Woodard's. Woodard was convicted and received a forty-year sentence for murder and a consecutive sentence of twenty years for solicitation to commit murder.*fn1
On his direct appeal, Petitioner did not contest the sufficiency of the evidence used to sustain his convictions. The Appellate Court noted the following defendant does not challenge his conviction, but contends that his sentence is excessive and should be reduced by this court based on his subordinate role in initiating and planning the offense, and due to his young age, limited criminal history, and significant potential for rehabilitation. Defendant also contends that his 75 year sentence is unreasonably disparate to the 45 year term imposed on co-defendant for the same offense because she had a greater share of culpability and demonstrated a lesser potential for rehabilitation.
People v. Porter, No. 1-05-1589 (Ill. App. filed Aug. 17, 2006). The Appellate Court also affirmed Woodard's appeal of her own conviction, noting that she was only twenty years old, had no prior criminal history herself and was seeking revenge against someone who had injured her by inflicting "a severe cut to her face, which required several stitches and reconstructive surgery." See People v. Woodard, 854 N.E.2d 674, 687 (Ill. App. Ct. 2006).
The judge who presided over the trial of both Porter and Woodard could conclude that an individual who murders in the course of seeking revenge for a serious personal injury is a bit less culpable then one who murders simply because a friend asked him to do so. To put it another way, killing in cold blood could be viewed as worse than hot-blooded violence.
Petitioner submits the same argument here with an increased emphasis on disparate sentencing. The argument fails for two reasons.
First, on direct appeal, the argument against the sentence was never based on federal constitutional claims, in particular under the Eighth Amendment. It was addressed to the state reviewing court's power to review sentences on the merits and reduce them as it saw fit. Possible grounds for the review include excessiveness or disparity between like defendants, an authority legislatively conferred on it some time in the mid 1900's. There is no ground for believing that a constitutional issue was even raised, given that the power to review (and reverse) sentencing decisions is committed to the state's reviewing courts by legislative action - not by constitutional compulsion, as is the case in federal courts. Construed this way, the argument fails as a non-cognizable issue on habeas review.
Even if it had been made as a federal constitutional claim, it would fail. There is no precedent supporting the proposition that seventy-five years is an unconstitutional sentence for a "cold-blooded execution" perpetrated by a seventeen year old personally shooting a twelve year old in the back for no better reason than someone asked him to do it.
Petitioner recognizes that an "excessive"sentence argument is weak and, so, places his emphasis on receiving seventy-five years for a murder while his co-defendant received forty-five years. This argument is based on an improper effort to equate apples with almonds. For the murder, Petitioner's sentence is fifty years, co-defendant's sentence is forty-five years, a relatively small difference. The same five-year difference exists between the two enhancement penalties. Petitioner was given a twenty-five year consecutive term for personally discharging the firearm that caused the boy's death, while Woodard was given a twenty-year add-on for solicitation. Thus, the final sentencing comparison is seventy five for Petitioner to sixty five for Woodard. In seeking leave to appeal from the Appellate Court to the Supreme Court of Illinois, petitioner limited his claim to disparity between Woodard and himself. The pure claim of excessive sentence was not presented to the state court and may not be relied upon here.
The state court judge who, on the record, considered petitioner's arguments that he deserved a lesser sentence and had the advantage of hearing the petitioner speak either in allocution or his taped confession concluded that the person who killed Patterson was more culpable than the person who recruited the killer. It is a reasonable finding within constitutional constraints on sentencing. The person who pulls the trigger can properly be found, in many cases, to be more culpable than the person who asked him to do it. Actions are often more important than words and a judge could fairly find in this case that actions were indeed more culpable than words. The petitioner cannot make a case that his sentence entitles him to the writ. See Williams v. Illinois, 399 U.S. 235, 243 (1970).
When the time came for post-conviction relief, Petitioner claimed trial counsel was ineffective for withdrawing a motion to suppress evidence due to arrest without probable cause and for testifying at the post-trial hearing on his pro se motion for a new trial which testimony was inconsistent with the facts related to petitioner's arrest. Petitioner also claimed that his appellate counsel on direct appeal was ineffective for failing to object that Porter was not allowed to cross-examine a witness. This is a pointless claim since the witness did not actually testify at trial. In a supplemental pleading Petitioner claimed his counsel at trial was ineffective for withdrawing a motion to suppress his involuntary confession as was his appellate counsel for failing to raise the issue on appeal.
All these claims failed in various ways and times and proceeding in circuit court, appellate court and on petition for leave to appeal in the Illinois Supreme Court. See ...