U.S. ex rel. Owens v. Twomey

• Citation: 508 F.2d 858
• Decision Date: 31 December 1974
• Docket Number: No. 74-1122,74-1122
• Parties: UNITED STATES of America ex rel. Jesse OWENS, Petitioner-Appellant, v. John J. TWOMEY, Warden, Illinois State Penitentiary, Joliet Branch, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 858

508 F.2d 858

UNITED STATES of America ex rel. Jesse OWENS, Petitioner-Appellant, v. John J. TWOMEY, Warden, Illinois State Penitentiary, Joliet

Branch, Respondent-Appellee.

No. 74-1122.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 14, 1974.

Decided Dec. 31, 1974.

Gerald R. Turner, Milwaukee, Wis., for petitioner-appellant.

William J. Scott, Atty. Gen., Donald Hubert, Thomas Connors, Asst. Attys. Gen., Chicago, Ill., for respondent-appellee.

Before SWYGERT, Chief Judge, HASTINGS, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

HASTINGS, Senior Circuit Judge.

A federal district court denied, without an evidentiary hearing, the pro se petition for a writ of habeas corpus filed by a state court prisoner. The prisoner has appealed. We have elected to examine the underlying state court record in its entirety and determine the ultimate issues raised on their merits. This will require a rather detailed statement of the factual and procedural background of the underlying state court proceedings. The following narrative is fully supported by the record.

On the night of June 23, 1966, about 11:30 p.m., one Jesse Owens knocked on the door of an apartment occupied by Jimmy Lugo and his family in the City of Chicago. The family consisted of a large number of children, the youngest being one year old. One of the sons heard the knock and was falsely informed by the caller that he was a policeman. The boy reported this to his father who told him to admit the caller. The door was opened and Owens, not a policeman, entered with a drawn gun and demanded to know if the father, Jimmy Lugo, was a man named Gonzales. When told that no one by that name lived there, Owens again drew his gun and started searching the house. He pointed his gun at the one-year-old baby and threatened to shoot it. The mother became frightened and ran out the front door of the apartment followed by her husband and several of the older children. To no avail Owens ordered the mother to return. Except for several small children still in bed, the only other person remaining in the bedroom with the baby was the fourteen-year-old daughter, Lucy Lugo, dressed in her night clothes.

Owens grabbed Lucy by the arm and dragged her out the back way onto a porch and ordered her to jump to the ground where he had just alighted. She followed him as ordered. He took her with him by force into an alley behind the apartment.

In the meantime, the Lugos' son ran into the street from the apartment and stopped a passing police car. He gave the law enforcement officer a description of Owens. The officer entered the apartment shortly after Owens had fled with the daughter Lucy.

During this time Owens forcibly took Lucy down the alley and on to Augusta Boulevard where he came upon a man, Raymond Goveia, who was parking his car and about to enter his home. Owens asked for a 'lift' and Goveia inquired, 'where to?' Owens then pulled out his gun and ordered Goveia to get back into his car in the driver's seat and ordered Lucy to sit in the front seat beside the driver. Owens got in the back seat, pointed his gun to the back of Goveia's head and ordered him to start driving the car around, saying, 'Drive off and don't try nothing funny, or I'll blow your brains out.' Goveia replied, 'Mister you can have my car, clothes, anything you want, but don't get excited.'

The car proceeded in and out of alleys under demands by Owens. Owens asked Goveia if he had any tape, to which Goveia replied in the affirmative. Owens ordered Goveia to stop the car, and all three persons got out. Goveia produced some tape from the trunk of his car and handed it to Owens. After traveling through more alleys, Owens, holding the gun against the back of Goveia's head, ordered him to stop again in an alley. All three persons got out of the car again and Owens gave Lucy the tape and ordered her to tape Goveia's hands behind his back and to tape his mouth shut. After Owens said that he would kill Goveia if he was not taped tight around the wrists, Lucy put on more tape. They reentered the car; Owens ordered Goveia to lie on the floor of the back seat; Owens took the driver's seat and ordered Lucy to sit beside him.

The car was again driven through alleys and Owens ordered Lucy to undress, and then she began to cry. Owens said to her, 'You're not cooperating with me. I'm going to have to kill you.' She undressed. Owens stopped the car and sexually assaulted her. Periodically thereafter, throughout the night, Owens would stop the car and sexually attack Lucy, perhaps ten times, although such succeeding acts of sexual intercourse were not successfully completed. Thereafter, under Owens' orders, Lucy removed Goveia's wallet from his back pocket and handed it and the money in it (something more than $50) to Owens.

As dawn was approaching, Owens told them that the police would be looking for Lucy so he had to get them off the street. After two telephone calls from public phone booths, Owens told them he would take them to an apartment where his lady friend lived and told them to act friendly toward him. In the interim, he had Lucy wipe herself with a napkin taken from the glove compartment in the car. Also, Owens removed the tape which had been used to bind and gag Goveia. Goveia was permitted to sit erect in the back seat of the car, but with his hands up on top of the back seat.

About 6:00 a.m. they stopped and entered an apartment in Chicago where they were met by a woman, Marion Short. Owens was living there with Marion as his common-law wife. Goveia used the washroom under Owens' supervision. Lucy sat on a bed. Goveia believed he was going to be killed and asked for a Bible, which Marion gave him. Owens began listening to radio programs and finally heard a program broadcast that a search was in progress for Lucy and her abductor. Marion accidentally bumped into Owens and felt a hard object and asked what it was. Owens pulled out the gun and told her he would have to use it against Lucy and Goveia. Marion begged him not to do that and to let them go free. She also refused to accept any of the money taken from the wallet and told him to return it to Goveia. During this time Marion referred to Owens as Jesse.

About 6:30 a.m. Owens finally decided to let them go free, saying he was sorry for what had happened. Marion left to go to work and Lucy and Goveia drove away in Goveia's car. While driving home Goveia waved down a police car. Goveia and Lucy were taken to Lucy's home where there were about 20 police squad cars. Lucy was then taken to Mount Sinai Hospital for an examination. This physical examination revealed a tear on the hymen a few hours old.

Goveia was transported to the police station where for an hour he told what had happened, gave a description of Owens and the location of the Short apartment. Later Goveia was returned to the apartment building and interrogated by the police. While there, the police located the janitor of the apartment building, James Hussion, who told them that Marion Short was renting the apartment. Subsequently, she admitted that she was living there with Owens.

Later, during the trial, it was stipulated that Owens' fingerprint was the one taken from Goveia's car and that a pair of Owens' trousers and jockey shorts underwear were stained with blood.

Following a bench trial, Owens was convicted of the rape and aggravated kidnapping of Lucy Lugo and of the armed robbery and aggravated kidnapping of Raymond Goveia in the Circuit Court of Cook County, Illinois. Owens was sentenced to concurrent terms of not less than 30 nor more than 40 years in the Illinois state penitentiary on each offense. No appeal was taken from the convictions involving Goveia.

Owens' judgment of conviction for the rape and aggravated kidnapping of Lucy Lugo was affirmed on appeal, People v. Owens, 133 Ill.App.2d 44, 272 N.E.2d 858 (1971). The court held that Owens was proved guilty beyond a reasonable doubt on the charge of rape and aggravated kidnapping and that the sentence imposed was not excessive. The Supreme Court of Illinois denied leave to appeal. Subsequently, Owens appealed to the Illinois Supreme Court from the judgment of the Circuit Court of Cook County, dismissing without an evidentiary hearing his amended petition filed pursuant to the Post-Conviction Hearing Act, Ill.Rev.Stat.1967, ch. 38, P122-1 et seq. The Illinois Supreme Court held that the trial court did not err in denying Owens an evidentiary hearing, and affirmed. People v. Owens, 54 Ill.2d 286, 296 N.E.2d 728 (1973). There the affirmance and subsequent dismissal was grounded upon the merits of the unlawful search claim and harmless error. The court stated: 'We do not consider the question of waiver and elect to review the record and decide the issue on the merits.' 54 Ill.2d at 290, 296 N.E.2d at 731.

At this juncture it should be noted that Owens was competently represented throughout the state court proceedings by counsel.

Pursuant to leave granted, Owens filed his pro se petition, in forma pauperis, for a writ of habeas corpus in the United States District Court for the Northern District of Illinois, the Honorable James B. Parsons, Judge, presiding. The petition was fully completed in the form prescribed by the rules of the district court for persons in state custody. Owens also filed a supporting brief and argument.

On August 31, 1973, based on an examination of the habeas petition, without an evidentiary hearing, the district court denied Owens relief 'on the grounds that he failed to exhaust his state judicial remedies and had not stated a claim upon which relief in the federal district court could be granted.' On January 15, 1974, the court below denied petitioner's motions for rehearing and for a certificate of probable cause. The instant appeal followed.

We appointed competent counsel to represent petitioner in this appeal and he has exercised due diligence in discharging...