Gaines v. Thieret, 85 C 10386

• Decision Date: 05 August 1987
• Docket Number: No. 85 C 10386,85 C 10386
• Citation: 665 F. Supp. 1342
• Parties: Dickey GAINES, Petitioner, v. James THIERET, Warden, Respondent.
• Court: U.S. District Court — Northern District of Illinois

665 F. Supp. 1342

Dickey GAINES, Petitioner, v. James THIERET, Warden, Respondent.

No. 85 C 10386

United States District Court, N.D.Illinois, E.D.

August 5, 1987.

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David J. Bradford, Macarthur Justice Center, Niles, Ill., Jeffrey D. Colman, Terri L. Mascherin, Robert S. Markin, Jenner & Block, Chicago, Ill., for petitioner.

Mark Rotert, Atty. Gen. of Illinois, Chicago, Ill., Neil F. Hartigan, Joan Cherry, Richard M. Daley, Office of Cook County State's Atty., Richard J. Daley Center, Chicago, Ill., for respondent.

MEMORANDUM OPINION AND ORDER

PLUNKETT, District Judge.

Dickey Gaines, a/k/a Dickie Gaines ("Petitioner"), is currently incarcerated at the Menard Correctional Center under a sentence of death. He brought this habeas corpus action pursuant 28 U.S.C. § 2254 to redress what he claims are errors of constitutional magnitude at his trial and sentencing hearing. Petitioner raises some twenty-two alleged violations of his constitutional rights.¹ For the reasons set forth below, we conclude that Petitioner received ineffective assistance of counsel at his sentencing hearing, and that his sixth amendment rights were thus violated. Accordingly, Petitioner's sentence of death is vacated, and Petitioner is to be resentenced.

In October 1979, Petitioner was found guilty after a jury trial of the murders of Andre Davis and Causia McCall; the attempted murder of Lenious Thomas; armed violence against Davis, McCall, and Thomas; and the armed robbery of Davis and of Thomas.² A sentencing hearing was held at the State's request pursuant to Ill.Rev.Stat. ch. 38, § 9-1, after which the same jury that convicted Petitioner determined that Petitioner was to be sentenced to death.³ On appeal, the Illinois Supreme Court reversed Petitioner's conviction on one count of armed robbery but otherwise affirmed his conviction and death sentence. People v. Gaines, 88 Ill.2d 342, 58 Ill.Dec. 795, 430 N.E.2d 1046 (1981). On March 3, 1982, Petitioner petitioned to the United States Supreme Court for a writ of certiorari. This petition was denied. Gaines v. Illinois, 456 U.S. 1001, 102 S.Ct. 2285, 73 L.Ed.2d 1295 (1982).

On November 8, 1982, Petitioner filed a post-conviction petition in the Circuit Court of Cook County. The petition was denied on March 9, 1983, and this decision was affirmed by the Illinois Supreme Court on November 30, 1984. People v. Gaines, 105 Ill.2d 79, 85 Ill.Dec. 269, 473 N.E.2d 868 (1984). Petitioner again petitioned for a writ of certiorari, which petition was denied on May 28, 1985. Gaines v. Illinois, 471 U.S. 1131, 105 S.Ct. 2666, 86 L.Ed.2d 282 (1985).

On November 15, 1985, after the Supreme Court denied certiorari, but before the mandate had issued from the Illinois Supreme Court, Petitioner sought leave in the Illinois Supreme Court to file an amended or successive post-conviction petition asserting a newly discovered claim and certain newly-discovered evidence. The Illinois Supreme Court denied this motion, and stayed Petitioner's execution pending the filing by Petitioner of a habeas corpus petition in federal court and entry of judgment by the highest federal court to adjudicate the petition. The Illinois Supreme Court ordered that Petitioner file his petition by December 18, 1985, and Petitioner complied with that order.

The current petition raises claims that may be divided roughly into three categories: (1) alleged errors at trial, (2) alleged errors at the sentencing hearing, and (3) claims challenging the constitutionality of Illinois' death penalty statute. We address the issues in this order.

I. Trial Errors

A. Racial Discrimination in Voir Dire (Claim H)

Petitioner first contends that the State violated his fourteenth amendment rights⁴ by using peremptory challenges systematically and purposefully to exclude black members of the venire in Petitioner's case and in other capital cases in Cook County. Petitioner argues that the State's conduct deprived Petitioner of his rights enunciated by the Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) and in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The State argues that Petitioner is not entitled to the benefit of the Court's decision in Batson, and that Petitioner's Swain claim is barred by procedural default.

In Swain, the Supreme Court rejected an argument that the striking of blacks in a particular case could give rise to a claim of denial of equal protection of the laws. The Court acknowledged, however, that a state's deliberate exclusion of blacks as jurors in case after case might well constitute a violation of the Equal Protection Clause, indicating that a prima facie case of purposeful discrimination could be made out upon proof that in case after case, regardless of the circumstances, the prosecution was responsible for the removal of blacks who had been selected as qualified jurors and who would have survived challenges for cause, with the result that no blacks ever served on petit juries. A number of lower courts following Swain reasoned that proof of repeated striking of blacks over a number of cases was necessary to establish an equal protection violation. See Batson, 106 S.Ct. at 1720. The Court in Batson found that this interpretation of Swain "placed on defendants a crippling burden of proof," id., such that "prosecutors' peremptory challenges are now largely immune from constitutional scrutiny." Id. at 1720-21. Thus, the Court rejected this evidentiary burden and held that a defendant could make a prima facie showing of purposeful discrimination based solely upon the prosecutor's exercise of peremptory challenges at his own trial by showing (1) that the defendant is a member of a cognizable racial group, (2) that the prosecutor has exercised peremptory challenges to remove members of the defendant's race from the venire, and (3) that the facts and circumstances surrounding the use of the challenges raise an inference that the prosecutor used that practice to exclude members of the venire from the petit jury on account of their race. Id. at 1722-23.

Petitioner argues that he states a claim under both the Swain standard and the Batson standard. Petitioner's position under Batson must fail, however, as the Supreme Court has made clear that while the Batson decision does apply retroactively to cases pending on direct appeal at the time the Batson decision was issued, Griffith v. Kentucky, ___ U.S. ___, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), Batson does not apply to cases pending on collateral review of convictions that became final before that opinion was announced. Allen v. Hardy, ___ U.S. ___, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986) (per curiam).⁵ Accordingly, even if Petitioner could show that the State engaged in purposeful racial discrimination during the voir dire in his case, he would not be entitled to relief on this basis.

With respect to Petitioner's argument that he states a claim under the Swain standard, the State insists that Petitioner never presented this claim to the state courts. We find that the State is correct. On direct appeal, Petitioner did not argue that the prosecution was exercising its peremptory challenges to exclude blacks from the venire in case after case such as to give rise to a valid claim under Swain. Rather, Petitioner argued that Swain presented too difficult a standard to meet and that the Illinois Supreme Court, which followed Swain, see Gaines, 85 Ill. Dec. at 274, 473 N.E.2d at 873, should consider altering the standard to be applied to claims alleging violations of the state constitution, as other state supreme courts had done. The Illinois Supreme Court noted:

The defendant's remaining objection to the jury goes to its racial composition. The defendant, who is black, states that the jury contained no black persons, and that that circumstance resulted from the prosecution's having used some of its peremptory challenges to exclude veniremen who were black but were not subject to removal for cause. The defendant concedes that under Swain v. Alabama, ... the motives of the prosecution in exercising peremptory challenges are not subject to examination absent a showing that blacks have been systematically prevented from serving on particular juries or from jury service in the county or State, a showing not attempted here. ... A similar position has been taken by this court in People v. Harris (1959), 17 Ill.2d 446, 450-51, 161 N.E.2d 809, cert. denied (1960), 362 U.S. 928, 80 S.Ct. 755, 4 L.Ed.2d 747....

The defendant cites People v. Wheeler (1978), 22 Cal.3d 258, 583 P.2d 748, 148 Cal.Rptr. 890, and Commonwealth v. Soares (1979), 377 Mass. 461, 387 N.E.2d 499, cert. denied (1979), 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110, in which the supreme courts of California and of Massachusetts rejected Swain, and he urges that this court should follow their lead.

58 Ill.Dec. at 803, 430 N.E.2d at 1054 (emphasis added).⁶ It is clear, therefore, that Petitioner made no attempt to state a federal constitutional claim, but instead made a decision to try to change state law.⁷ This is thus not a situation in which Petitioner raised a constitutional claim but simply failed to prove it,⁸ but rather is a situation in which Petitioner, through his counsel, deliberately chose not to attempt to raise or prove the claim at all. It is settled law in Illinois that the failure to present a constitutional claim on direct appeal operates as a procedural default and hence a waiver of the claim. United States ex rel. Duncan v. O'Leary, 806 F.2d 1307, 1313 (7th Cir. 1986). See also Dently v. Lane, 712 F.2d 1172, 1176 (7th Cir.1983) (quoting Goins v. People, 103 Ill.App.3d 596, 59 Ill.Dec. 312, 313-14, 431 N.E.2d 1069, 1070-71 (1981)).

Upon review of the denial of Petitioner's post-conviction petition, the Illinois Supreme Court noted that Petitioner was making the same claim that he had made on appeal, i.e., that the...