Bocian v. Godinez

• Citation: 101 F.3d 465
• Decision Date: 21 November 1996
• Docket Number: No. 95-3664,95-3664
• Parties: Jan BOCIAN, also known as Jan Gramo, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 465

101 F.3d 465

Jan BOCIAN, also known as Jan Gramo, Petitioner-Appellant, v. Salvador GODINEZ, Warden, Respondent-Appellee.

No. 95-3664.

United States Court of Appeals Seventh Circuit.

Argued Sept. 12, 1996.

Decided Nov. 21, 1996.

Patrick J. Calihan (argued), Chicago, IL, for Petitioner-Appellant.

Arleen Anderson, Steven Zick, Robert K. Villa (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before BAUER, FLAUM, and MANION, Circuit Judges.

BAUER, Circuit Judge.

Petitioner-appellant Jan Bocian ("Bocian") currently is serving consecutive extended-term prison sentences totaling 55 years after being convicted of multiple counts of residential burglary and related offenses. The Illinois Appellate Court affirmed the sentences in People v. Gramo, 251 Ill.App.3d 958, 191 Ill.Dec. 336, 623 N.E.2d 926 (1993), appeal denied, 155 Ill.2d 569, 198 Ill.Dec. 547, 633 N.E.2d 9 (1994). Bocian now appeals from a judgment of the district court denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.

Background

Bocian's petition does not challenge the Illinois Appellate Court's statement of facts. Those facts are entitled to a presumption of correctness, and we adopt them here. 28 U.S.C. § 2254(e)(1); Kines v. Godinez, 7 F.3d 674, 677 (7th Cir.1993), cert. denied, 510 U.S. 1200, 114 S.Ct. 1314, 127 L.Ed.2d 664 (1994).

On October 16, 1990, a City of Clinton police officer witnessed Bocian, accompanied by his wife, Ewa Bzoza ("Bzoza"), driving around a residential block several times. The vehicle eventually stopped, whereupon Bzoza ran out to several houses and attempted to open the front doors. After telephoning the police department to report this incident, the officer saw Bzoza move around the outside of Leita Jackson's home. The officer went to the back of Jackson's house, found the back door open, but did not find Bzoza inside. Bzoza had re-entered Bocian's vehicle, which took off.

Another police officer then pursued the vehicle on a high-speed chase. That officer stopped the vehicle and placed Bocian and Bzoza under arrest. During the inventory of Bocian's vehicle, officers found tools, wire cutters, a jeweler's magnifying glass, metal snips, a steel chisel, a "booster skirt" (an apron with an inside compartment), and a bag with a false bottom containing jewelry. An appraisal estimated the total value of all the items recovered from Bocian's vehicle at $25,810.

After Bocian's and Bzoza's arrests, the Clinton police issued a bulletin announcing the recovery of a large amount of jewelry and inviting inquiries regarding missing jewelry. The bulletin drew several responses. Earl Ewald, 81 years old, and his wife, Mildred, 82 years old, identified several of the items, including Mildred's wedding ring. The Ewalds noticed the jewelry missing on October 17, 1990, having last seen it the previous morning. Fern Caton, 78 years old, identified four rings, which she had last seen on the morning of October 15, 1990. Elmer Kohrt, 67 years old, and his wife Gladys, 66 years old, also identified several pieces of the inventoried jewelry. The Kohrts were not at home on October 16, 1990, and noticed the jewelry missing on October 19, 1990.

Bocian and Bzoza were tried together and convicted of several counts of residential burglary and related offenses. At Bocian's sentencing hearing, the trial court considered previous convictions from McHenry County, Illinois, Sweden, and Canada. The court noted that while Bocian did not use violence or weapons, the crimes he committed nonetheless involved entering the victims' homes and taking items of considerable financial and emotional value. The court described both Bocian and Bzoza as "extremely sophisticated thieves." The court sentenced Bocian to two consecutive prison terms, totaling 55 years, pursuant to section 5-5-3.2(b)(4)(ii) of the Unified Code of Corrections. At the time of Bocian's offenses, the relevant section of the sentencing statute read as follows:

(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 upon any offender:

* * * * * *

(4) When a defendant is convicted of any felony committed against:

* * * * * * (ii) a person 60 years of age or older at the time of the offense.

Ill.Rev.Stat.1989, ch. 38, para. 1005-5-3.2(b)(4)(ii) (current version at 730 ILL. COMP. STAT. 5/5-5-3.2(b)(4)(ii) (West 1992)). This statute was subsequently amended, effective January 1, 1991. At the time of Bocian's sentencing hearing, the statute read:

(b) The following factors may be considered by the court as reasons to impose an extended term sentence under Section 5-8-2 upon any offender:

* * * * * *

(4) When a defendant is convicted of any felony committed against:

* * * * * *

(ii) a person 60 years of age or older at the time of the offense or such person's property.

Ill.Rev.Stat.1991, ch. 38, para. 1005-5-3.2(b)(4)(ii) (current version at 730 ILL. COMP. STAT. 5/5-5-3.2(b)(4)(ii) (West 1992)) (emphasis added). Bocian currently is serving his sentence in Statesville Correctional Center, Joliet, Illinois.

Bocian appealed his sentence to the Illinois Appellate Court, arguing that: (1) the imposition of an extended-term sentence pursuant to the amended statute violated his right not to be punished under an ex post facto law, as guaranteed by the United States and Illinois Constitutions; (2) the extended-term sentence was improper because Bocian was not aware of the property owners' ages; and (3) the extended-term sentence was unwarranted and grossly and excessively severe. The Illinois Appellate Court affirmed Bocian's sentence. People v. Gramo, 251 Ill.App.3d 958, 191 Ill.Dec. 336, 623 N.E.2d 926 (1993). Bocian's leave to appeal to the Illinois Supreme Court was denied. People v. Gramo, 155 Ill.2d 569, 198 Ill.Dec. 547, 633 N.E.2d 9 (1994).

Bocian filed a petition for a writ of habeas corpus in federal district court, arguing that: (1) the sentencing statute, before it was amended, was unconstitutionally vague under the Due Process Clause of the Fourteenth Amendment; (2) the Illinois courts' interpretation that the 1991 amendment merely clarified, rather than changed, the previous sentencing statute violated his due process rights; and (3) an extended-term sentence for all offenses committed against property owned by persons 60 years or older amounted to cruel and unusual punishment under the Eighth Amendment. The district court denied the petition. United States ex rel. Bocian v. Godinez, No. 94 C 6147, 1995 WL 549020 (N.D.Ill. Sept. 12, 1995). Bocian raises the same three issues on appeal to this Court. We agree with the district court that Bocian is not entitled to habeas relief, and therefore affirm the denial of his petition.

Analysis

Federal courts may grant a writ of habeas corpus when a person is held in custody under a state court judgment in violation of the United States Constitution. 28 U.S.C. § 2254; Kavanagh v. Berge, 73 F.3d 733, 735 (7th Cir.1996). With respect to the district court's denial of habeas relief, we review the district court's findings of fact under a clearly erroneous standard and its legal conclusions de novo. Neumann v. Jordan, 84 F.3d 985, 987 (7th Cir.1996).

Before a federal court will consider a petition for a writ of habeas corpus on its merit, the petitioner must (1) exhaust all remedies available in state courts (28 U.S.C. § 2254(b)(1)(A)), and (2) fairly present any federal claims in state court first, or risk procedural default (Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971); Verdin v. O'Leary, 972 F.2d 1467, 1472-73 (7th Cir.1992)). Respondent concedes that Bocian has exhausted his state remedies. Respondent contends, however, that Bocian failed to fairly present his constitutional claims in state court. We agree with Respondent to the extent that one of Bocian's three arguments to this Court was not fairly presented to the Illinois courts. Specifically, we glean from the record that Bocian fairly presented his ex post facto and Eighth Amendment claims to the Illinois courts, and those claims are properly before this Court. Bocian failed, however, to fairly present his void for vagueness argument to the Illinois courts, and thus he is procedurally barred from raising the argument here. Fair Presentment

"A habeas petitioner must provide the state courts with a fair opportunity to apply constitutional principles and correct any constitutional error committed by the trial court." United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir.1984) (citations omitted). To this end, a habeas petitioner must present his claims in such a way as to "fairly alert the state court to any applicable [federal] constitutional grounds for the claim." Green v. Peters, 36 F.3d 602, 605 (7th Cir.1994) (quoting Sullivan, 731 F.2d at 453), cert. denied, --- U.S. ----, 115 S.Ct. 1703, 131 L.Ed.2d 565 (1995)). This means that both the operative facts and the controlling legal principles of a constitutional claim must be submitted to the state court. Verdin, 972 F.2d at 1474 (citing Picard, 404 U.S. at 277, 92 S.Ct. at 513). To determine whether a habeas petitioner has fairly presented a federal claim in state court, we follow the framework articulated in Verdin:

If the petitioner's argument to the state court did not: (1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation, then this court will not consider the state courts to have had a fair opportunity to consider the claim. However, the presence of any one of these factors, particularly factors (1) and (2), does not automatically avoid a waiver; the...