Bloyer v. Peters

• Decision Date: 27 September 1993
• Docket Number: No. 92-3053,92-3053
• Parties: Rodger BLOYER, Petitioner-Appellant, v. Howard PETERS, III, Director, Illinois Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1093

5 F.3d 1093

Rodger BLOYER, Petitioner-Appellant, v. Howard PETERS, III, Director, Illinois Department of Corrections, Respondent-Appellee.

No. 92-3053.

United States Court of Appeals Seventh Circuit.

Argued June 3, 1993.

Decided Sept. 27, 1993.

Sherry R. Silvern, Aurora, IL (argued), for petitioner-appellant.

Steven J. Zick, Office of the Atty. Gen., Crim. Appeals Div., Chicago, IL (argued), for respondent-appellee.

Before POSNER, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

The petitioner, Rodger Bloyer, seeks federal habeas corpus review in a case arising out of the Illinois state courts. Mr. Bloyer contends that, in violation of his federal due process rights, he was convicted of an offense that the Illinois Supreme Court had declared unconstitutional six years prior to his conviction. The district court concluded that the judgment of the Illinois state courts was based entirely upon state law and was not cognizable on habeas. For the reasons that follow, we affirm the judgment of the district court.

I BACKGROUND

A. Statutory Framework

An individual commits the felony offense of unlawful restraint under Illinois law when he knowingly without legal authority detains another. Ill.Rev.Stat., ch. 38, p 10-3 (1987).

An individual commits armed violence under Illinois law when

while armed with a dangerous weapon, he commits any felony defined by Illinois law. Ill.Rev.Stat., ch. 38, p 33A-2 (1987).

In 1983, the Illinois Supreme Court held that a conviction for armed violence based on the predicate felony of unlawful restraint violated the Illinois constitutional assurances of proportionate penalties and due process. People v. Wisslead, 94 Ill.2d 190, 68 Ill.Dec. 606, 446 N.E.2d 512 (1983). In its analysis, the court compared the statutory offense of kidnapping with the statutory offense of unlawful restraint. It noted that, under the Illinois Criminal Code, kidnapping was a more serious felony and thus carried a greater sentence than unlawful restraint.

The court then compared the sentencing consequences of adding another element, use of a weapon, to each of the offenses. If a defendant was convicted of kidnapping with the use of a weapon, prosecution could be sought for aggravated kidnapping. However, because, in 1986, the Illinois Code did not contain the offense of aggravated unlawful restraint, the prosecutorial equivalent of seeking an enhanced unlawful restraint conviction was to seek a conviction for armed violence predicated on unlawful restraint.

The Illinois Supreme Court determined that this result created an unreasonable anomaly in the Illinois sentencing scheme. Specifically, if aggravated kidnapping and armed violence predicated on unlawful restraint were each committed with the same weapon, the less serious offense of unlawful restraint, elevated to armed violence, became a more serious class X felony than kidnapping, which when elevated to aggravated kidnapping became a class 1 felony. Aggravated kidnapping carried a lower sentencing range than armed violence predicated on unlawful restraint. The court also noted that, in similar fashion, unlawful restraint when committed with a weapon was a lesser included offense of forcible detention, but carried higher penalties under the Illinois sentencing scheme.

The Illinois court next observed that sections 2 and 11 of article I of the Illinois Constitution guarantee proportionate sentencing. Section 2 of article I of the Illinois State Constitution provides:

No person shall be deprived of life, liberty or property without due process of law nor be denied the equal protection of the laws.

Section 11 of article I of the Illinois State Constitution in part provides:

All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.

"The policy underlying these constitutional provisions would be violated if the penalty prescribed for an offense is not as great or greater than the penalty prescribed for a less serious offense." Wisslead, 68 Ill.Dec. at 608, 446 N.E.2d at 514. Accordingly, the court concluded that: "This sentencing scheme violates the constitutional assurances of proportionate penalties and due process...." Id. 68 Ill.Dec. at 609, 446 N.E.2d at 515.

In 1987, in apparent response to Wisslead, the Illinois legislature enacted the aggravated unlawful restraint statute. Under the new statute:

A person commits the offense of aggravated unlawful restraint when he knowingly without legal authority detains another while using a deadly weapon. Ill.Rev.Stat., ch. 38, p 10-3.1 (1987).

B. Prior State Proceedings

In 1989, in Illinois state court, Rodger Bloyer was convicted of armed violence predicated on unlawful restraint. Mr. Bloyer initially had been charged with: (1) unlawful restraint; (2) armed violence predicated on unlawful restraint; and (3) aggravated unlawful restraint. The charges alleged that Mr. Bloyer forced a young woman, at knifepoint, into his vehicle and threatened to harm her if she did not submit to his sexual demands. The young woman escaped the vehicle physically unharmed and telephoned the police. She gave the police the license plate number of the vehicle into which she had Mr. Bloyer has never contested the facts supporting the charges and, after a one-day bench trial, was found guilty on December 21, 1988. The court continued further proceedings to allow the parties to brief whether the unlawful restraint and the aggravated unlawful restraint counts "merged" with the armed violence count. After considering the parties' submissions, the court concluded that the three counts did merge and entered a conviction solely on the charge of armed violence predicated on unlawful restraint, a class X felony. Mr. Bloyer was sentenced to twelve years' imprisonment.

been forced and the police traced the vehicle to Mr. Bloyer. Upon the officers' request, Mr. Bloyer consented to a search of the vehicle. The officers found a hunting knife between the two front seats and, after the young woman identified the knife, Mr. Bloyer was arrested.

In 1990, on direct appeal, the Illinois appellate court affirmed Mr. Bloyer's conviction. Mr. Bloyer argued on appeal that the offense of armed violence predicated on unlawful restraint no longer existed after Wisslead was decided in 1983. The state appellate court nevertheless affirmed Mr. Bloyer's conviction because it had concluded that the 1987 addition of the statutory offense of aggravated unlawful restraint to the Illinois Criminal Code cured the constitutional concerns identified in Wisslead. People v. Bloyer, 200 Ill.App.3d 872, 146 Ill.Dec. 857, 558 N.E.2d 1056 (1990). In the view of the Illinois appellate court, the new statute created "a parallel and proportional structure between the various grades of unlawful restraint and kidnapping," id., 146 Ill.Dec. at 859, 558 N.E.2d at 1058, and, consequently, "the penalties for the offense are proportional, and the constitutional defect recognized in Wisslead has been cured." Id. The court went on to hold that it was permissible for the legislature to give the prosecutor the option of charging either crime under the armed violence provision of the code:

It remains true that, as is the case with any felony, where either a simple kidnapping or a simple unlawful restraint is accomplished with the use of a dangerous weapon, the prosecutor retains the option of prosecuting the offender for armed violence based on the underlying simple felony.

Id. In December 1990, the Illinois Supreme Court denied Mr. Bloyer's petition for review without comment. People v. Bloyer, 135 Ill.2d 559, 151 Ill.Dec. 386, 564 N.E.2d 841 (1990).

C. The Habeas Proceeding

In 1991, Mr. Bloyer filed a petition for a writ of habeas corpus in federal district court. He raised the sole issue of whether the conviction of armed violence predicated on unlawful restraint violated his federal due process rights because he had been convicted of an offense that the Illinois Supreme Court had declared unconstitutional six years before his conviction.

In June 1992, the district court denied Mr. Bloyer's petition on the ground that no federal right of his had been violated. Nevertheless, in dicta, the district court expressed the view that the 1987 amendments to the Illinois Criminal Code did nothing to cure the disproportionate sentencing problem identified in Wisslead and that therefore the Illinois court was "most likely erroneous" in deferring to prosecutorial discretion in charging an offense. R. 19, Mem. Op. at 7. The district court noted that, in People v. Christy, 139 Ill.2d 172, 151 Ill.Dec. 315, 564 N.E.2d 770 (1990), decided after the Illinois appellate court's decision in Bloyer, the Illinois Supreme Court considered the effect of allowing prosecutorial discretion to charge either aggravated kidnapping or armed violence predicated on kidnapping when kidnapping was committed with a weapon. In Christy, the Illinois Supreme Court held that it was unconstitutional for two different offenses to have identical elements and carry different penalties. The court rejected the rationale relied on by the appellate court in Bloyer and wrote that the offense with the stiffer penalty would "effectively nullify" the offense with the less severe penalty because a skilled prosecutor would always charge the offense with the stiffer penalty:

Generally, prosecutorial discretion is a valuable aspect of the criminal justice system. In the present case, however, prosecutorial Christy, 151 Ill.Dec. at 319, 564 N.E.2d at 774 (citation omitted).

discretion will effectively nullify the aggravated kidnapping statute, as skilled State's Attorneys will usually seek the more severe sentence and, therefore, charge defendants with armed violence rather than aggravated kidnapping. An ineffective aggravated kidnapping statute is not what the legislature intended when it enacted both the...