905 F.2d 986 (7th Cir. 1990), 89-2129, Silagy v. Peters

Docket Nº:89-2129, 89-2212 and 89-3117.
Citation:905 F.2d 986
Party Name:Charles SILAGY, Petitioner-Appellee, Cross-Appellant, v. Howard PETERS, III, Warden, Pontiac Correctional Center, Respondent-Appellant, Cross-Appellee.
Case Date:May 02, 1990
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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905 F.2d 986 (7th Cir. 1990)

Charles SILAGY, Petitioner-Appellee, Cross-Appellant,

v.

Howard PETERS, III, Warden, Pontiac Correctional Center,

Respondent-Appellant, Cross-Appellee.

Nos. 89-2129, 89-2212 and 89-3117.

United States Court of Appeals, Seventh Circuit

May 2, 1990

Argued Jan. 31, 1990.

As Amended July 6, 1990.

As Amended on Denial of Rehearing

and Rehearing En Banc

July 10, 1990.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Timothy M. Gabrielsen, Patricia G. Mysza, Office of the State Appellate Defender, Springfield, Ill., for Charles Silagy.

Neil F. Hartigan, Atty. Gen., Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for Howard Peters, III.

Terri L. Mascherin, Jenner & Block, Randolph N. Stone, Robert P. Isaacson, Office of the Public Defender of Cook County, Chicago, Ill., David J. Bradford, James P. Bailinson, Niles, Ill., for amicus curiae Office of the Cook County Public Defender and MacArthur Justice Center.

Kimball R. Anderson, Winston & Strawn, Chicago, Ill., for amicus curiae National Legal Aid and Defender Ass'n.

John P. Buckley, Chicago, Ill., for amicus curiae Illinois Attorneys for Criminal Justice.

Before COFFEY, EASTERBROOK and KANNE, Circuit Judges.

KANNE, Circuit Judge.

During the early morning hours of February 14, 1980, the body of Cheryl Block, the girlfriend of Petitioner, Charles Silagy, and that of Anne Budde-Waters were discovered in two separate locations in Vermillion County, Illinois. Each had been stabbed repeatedly and had died as a result of massive hemorrhaging caused by those stab wounds.

In a confession made to the police several days later, Silagy stated that he and Miss Block had been in an argument as they were driving from a local night club to another bar. Silagy recounted that he began to choke Miss Block during the course of this argument. He continued:

My truck done a spin-around, and killed itself, and I shut it off and started chokin' her some more, and kept chokin' her and a car come up from the south, and so I acted like we was makin' out, and the car was all clear, and I commenced chokin' her with my left hand, and then I decided I didn't have enough room ... so I fought with the door for a little bit, and I got it open from outside, ... because it will not open from the inside. Had to crank the window down and all this time I still got a hold of her throat. And chokin' her. And so I throwed her out on the ground and I got outta the truck, and I started a-stompin' on her and jumpin' up and down, and on her head, and then I drug her across the road, and she was still breathin', so I took out my pocket knife and opened it and pulled her coat and blouse away, and stabbed her approximately five or six times in the chest on the left-hand side and then I left her lay there, and went back and got into my truck and left.

After that had occurred, Petitioner went back to the apartment which he shared with Miss Block and Miss Budde-Waters to wash his hands and face. Shortly thereafter, Miss Budde-Waters arrived back at the apartment and refused to leave. As a response, Petitioner stated that he:

throwed her over toward the TV, ... and I, ... throwed her down, and her head hit the coffee table, and I went over, and kicked her a couple o' times in the head. And then I proceeded to go to a drawer, to where ... the big knives and butcher knives and utensils were kept.... And picked me out a knife that I knew would not bend, and I went back over and snatched her blouse on the left side and yanked it back, and stabbed her four times continuously in the chest.

These confessions led to Petitioner's prosecution and conviction for these murders. The same Illinois jury which found him guilty subsequently sentenced him to death under the provisions of the Illinois death penalty statute, Ill.Ann.Stat. ch. 38, p 9-1(d) (Smith Hurd 1979). The Supreme Court of Illinois affirmed Petitioner's conviction and sentence. People v. Silagy, 101 Ill.2d 147, 77 Ill.Dec. 792, 461 N.E.2d 415, cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984). Silagy subsequently filed a petition for post-conviction relief which was dismissed by the trial court. This dismissal was affirmed by the Illinois

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Supreme Court in People v. Silagy, 116 Ill.2d 357, 107 Ill.Dec. 677, 507 N.E.2d 830, cert. denied, 484 U.S. 873, 108 S.Ct. 212, 98 L.Ed.2d 163 (1987). Thereafter, he filed a petition for rehearing in the United States Supreme Court. This petition was denied. Silagy v. Illinois, 484 U.S. 972, 108 S.Ct. 476, 98 L.Ed.2d 413 (1987). In November of 1988, Silagy filed a petition for writ of habeas corpus in the United States District Court for the Central District of Illinois. In this petition, he raised various issues as to the propriety of both his conviction and sentence. The district court denied Petitioner's challenges to his conviction, but issued a writ to vacate the sentence of death based on its conclusion that the Illinois death penalty statute was violative of the sixth, eighth and fourteenth amendments. United States ex rel. Silagy v. Peters, 713 F.Supp. 1246 (C.D.Ill.1989). Both Silagy and the State appeal from this final decision.

I.

The primary issue which we must address is the constitutionality of the Illinois death penalty statute. The district court's conclusion that the Illinois death penalty statute is unconstitutional was based almost exclusively on the rationale of the dissenting opinion in People ex rel. Carey v. Cousins, 77 Ill.2d 531, 34 Ill.Dec. 137, 397 N.E.2d 809 (1979), cert. denied, 445 U.S. 953, 100 S.Ct. 1603, 63 L.Ed.2d 788 (1980). That dissent concluded that the Illinois statute's grant of prosecutorial discretion under Sec. 9-1(d) to request a separate sentencing hearing was violative of the eighth amendment's guarantee against the "arbitrary and capricious" imposition of the death penalty. In addition, the dissent concluded, although without much explication, that the statute's failure to provide pretrial notice to an accused that the death penalty will be sought in his case was violative of basic notions of due process. Id. 34 Ill.Dec. at 151-52, 397 N.E.2d at 823-24. 1 The district court adopted these conclusions as its own in its final order. Although not expressly stated in its holding, it appears that the district court further concluded that this lack of pretrial notice also implicates the sixth amendment right to "effective assistance of counsel." Finally, while not a basis for the district court's decision, Petitioner argues that the Illinois statute is unconstitutional in that the impact of its provisions is to raise a rebuttable presumption in favor of the imposition of the death penalty in violation of the eighth amendment.

We must also address various issues which Silagy raises in support of his prayer that this court reverse his conviction. We will discuss both the factual bases and the substance of those issues as they arise in the course of our review.

A. FACIAL ATTACK ON ILLINOIS STATUTE

Petitioner's attack on the constitutionality of the Illinois statute is both "facial" and "as applied." With regard to the argument that the Illinois statute is unconstitutional on its face, Petitioner's shotgun approach raises three arguments of consequence. First, he argues that the discretion afforded the prosecutor under Sec. 9-1(d) of the statute in deciding whether to seek the death penalty in a particular case violates the eighth amendment's guarantee against "cruel and unusual punishment." Second, Petitioner argues that the Illinois statute's failure to notify the accused prior to trial that the death penalty will be sought in his case violates both the sixth amendment right to effective assistance of counsel and the fourteenth amendment right to due process. Finally, Petitioner argues that the Illinois statute is unconstitutional in that the practical effect of its Sec. 9-1(g) is to establish a rebuttable presumption in favor of the death penalty in violation of the eighth amendment.

1. Prosecutorial Discretion under Sec. 9-1(d)

Petitioner's initial eighth amendment concern focuses on the discretion afforded

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Illinois prosecutors under Sec. 9-1(d) of the statute to request a separate sentencing hearing to consider the potential imposition of a death sentence for a convicted defendant. 2 Neither Sec. 9-1(d), nor any other section of the Illinois death penalty statute, provide for express legislative guidelines to assist the prosecutor in determining under what circumstances to request a separate sentencing hearing. Moreover, under the Illinois scheme a prosecutor need not make such a request until a conviction has been obtained. Categorizing this prosecutorial discretion as within the realm of post-conviction sentencing discretion which served as the focus of the Court's concern in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and its progeny, Petitioner argues that the failure of the Illinois statute to provide legislative guidelines to assist the prosecutor in exercising this discretion violates the eighth amendment. We do not agree.

In assessing Petitioner's claim, it is necessary to examine the Supreme Court's eighth amendment jurisprudence and, in so doing, focus on the Court's concerns as they are presented in those decisions. The Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), serves as the foundation of our analysis. The issue presented to the Court in Furman was whether "the imposition and carrying out of the death penalty in [the cases before the court] constitute[d] cruel and unusual punishment in violation of the eighth and fourteenth amendments." Id. at 239, 92 S.Ct. at 2727. While this issue was not resolved by the various concurring opinions presented in that decision, the Court later recognized in Gregg v. Georgia,...

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