United States ex rel. Rock v. Pinkey

Citation430 F. Supp. 176
Decision Date15 April 1977
Docket NumberNo. 76 C 4246.,76 C 4246.
PartiesUNITED STATES ex rel. Anthony R. ROCK, Petitioner, v. Warden T. E. PINKEY, Illinois State Penitentiary, Pontiac, Illinois, Respondent.
CourtU.S. District Court — Northern District of Illinois

Irwin L. Frazin, Frazin & Frazin, Chicago, Ill., for petitioner.

Dale M. Bennett, Asst. Atty. Gen., William J. Scott, Atty. Gen., Chicago, Ill., for respondent.


ROBSON, Senior District Judge.

This cause is before the court on respondent's motion to dismiss petitioner's amended petition for a writ of habeas corpus for failure to state a claim upon which relief can be granted or in the alternative for summary judgment. For the reasons hereinafter stated, the motion shall be granted.


There is no dispute as to the facts and they are fully set forth in, inter alia, an Illinois Supreme Court opinion. People v. Hickman, 59 Ill.2d 89, 319 N.E.2d 511 (1974). Briefly, they are as follows:

Petitioner and two accomplices, one of whom was armed, were attempting to escape from the scene of a burglary. One of the pursuing officers mistakenly shot and killed another officer, Detective Loscheider, believing that officer to be one of the escaping burglars. After a jury trial, petitioner was found guilty of murder, burglary, and criminal damage to property. He was sentenced to a term of imprisonment of one year to one year and one day on the burglary charge. The trial court entered an order arresting the judgment of murder against petitioner and a co-defendant. The State appealed the arrest of judgment on the murder verdict and the Appellate Court for the Third District reversed. People v. Hickman, 12 Ill.App.3d 412, 297 N.E.2d 582 (3d Dist. 1973). Petitioner appealed the appellate court's decision, arguing that it had erroneously interpreted the felony-murder statute.1 The Illinois Supreme Court affirmed the judgment of the appellate court and remanded the cause to the trial court. On remand, the trial court sentenced petitioner to a term of imprisonment of 14 years to 14 years and one day. Petitioner's petition for certiorari was denied. Hickman et al. v. Illinois, 421 U.S. 913, 95 S.Ct. 1571, 43 L.Ed.2d 779 (1975).

On November 16, 1976, petitioner filed in this court a pro se application for a writ of habeas corpus alleging that his murder conviction under the Illinois felony-murder rule violated his Fourteenth Amendment rights to due process of law and equal protection. He also alleged that he was placed in double jeopardy. Finally, he claimed that he was subjected to cruel and unusual punishment.

On January 25, 1977, respondent submitted a motion to dismiss or for summary judgment. Subsequent thereto, petitioner retained counsel and moved for leave to file an amended petition. Leave was granted on February 14, 1977, respondent was given time to show cause, and petitioner was given time to answer respondent's pleading. On February 25, 1977, what purports to be an amended petition for a writ of habeas corpus was filed, however, its true nature appears to be more of a brief. The amended petition does not allege that petitioner was denied equal protection or that he was subjected to cruel and unusual punishment. On March 2, 1977, respondent submitted a response to the amended petition and incorporated by reference the motion to dismiss or for summary judgment previously filed with this court. Petitioner has not filed any papers in answer thereto.


Initially, the court must deal with respondent's argument that petitioner has waived the right to present the constitutional issues pressed here because he did not raise them in the state courts. It is certainly not the law, as respondent seems to suggest, that the mere failure to raise an issue in state court bars its consideration by a federal court in habeas corpus proceedings. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974). A claim will not be deemed waived for purposes of federal habeas corpus relief in the absence of a deliberately tactical decision to forego such claim. United States ex rel. Williams v. Brantley, supra at 1386-87. Respondent has not argued or shown that any such tactical maneuvers were involved in this case. While the court could fathom reasons why the constitutional claims were not raised in the state courts, such speculation is insufficient to warrant a conclusion that there has been a deliberate by-pass of state remedies barring collateral federal attack. Fay v. Noia, supra at 438-40, 83 S.Ct. 822.

Respondent also relies on Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), where the Supreme Court held that the substance of a federal habeas corpus claim must first be presented to the state courts. Respondent apparently argues that petitioner has failed to exhaust his state remedies since the state courts in this case were not presented with the claims now urged.

At first glance this argument is appealing, however, it cannot withstand analysis. The exhaustion requirements of 28 U.S.C. §§ 2254(b), (c) "are limited in their application to those state remedies still open to the habeas applicant at the time he files his application in federal court." Humphrey v. Cady, 405 U.S. 504, 516, 92 S.Ct. 1048, 1055, 31 L.Ed.2d 394 (1972). In Picard v. Connor, supra at 272 n. 3, 92 S.Ct. 509, 30 L.Ed.2d 438, the habeas petitioner still had available state (post-conviction) judicial remedies through which he could present his constitutional claim. In the case at bar, however, petitioner has an ineffective post-conviction remedy under Illinois law. See United States ex rel. Williams v. Brantley, supra at 1385-86; United States ex rel. Brown v. Warden, Pontiac State Correctional Center, 417 F.Supp. 970, 971 n. 1 (N.D.Ill.1976); United States ex rel. Hubbard v. Cannon, 403 F.Supp. 675, 676-77 (N.D.Ill.1975). A federal petition should be dismissed for failure to exhaust post-conviction remedies only if there is direct precedent indicating that such relief is available. United States ex rel. Williams v. Brantley, supra at 1386. The court has been unable to find a precedent applicable to the circumstances of this case. Accordingly, it concludes that when petitioner filed his application in federal court he had exhausted his state remedies.

Evidentiary Hearing Unnecessary

Petitioner concedes that the facts are not in dispute and that they are as stated in, inter alia, the Illinois Supreme Court's opinion. (Petitioner's Amended Petition at 2.) Petitioner asks the court to resolve questions of (constitutional) law, not questions of fact. There being no significant issue of fact bearing upon petitioner's constitutional claims, an evidentiary hearing is clearly not required. Grundler v. State of North Carolina, 283 F.2d 798, 802 (4th Cir. 1960). The court has not requested production of the state record because the facts are not in dispute and because the constitutional claims urged here were not raised in or considered by the state courts. Compare United States ex rel. Worlow v. Pate, 411 F.2d 972 (7th Cir. 1969), cert. denied sub nom, Lane v. Pate, 403 U.S. 921, 91 S.Ct. 2238, 29 L.Ed. 699 (1971). Of course, this court must apply the applicable federal law. Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Due Process

Petitioner's argument that the Illinois Supreme Court's interpretation of the felony-murder rule deprived him of his Fourteenth Amendment right to due process of law is two-fold. First, he contends that the judicial extension of the rule in the case at bar was arbitrary and not rationally related to any state interest sought to be protected. Second, he asserts that the application of the rule violated his right to procedural due process since the statute and related decisions did not afford him sufficient notice that his conduct was proscribed.

Before dealing with petitioner's arguments, the court must emphasize that its role is a limited one. It is not the function of this court to determine whether, as petitioner would seem to have it determine, the Illinois Supreme Court's application of the felony-murder rule was misguided. Nor is it this court's function to strike down the state law or its application because it might find it unwise or improvident. James v. Strange, 407 U.S. 128, 133-34, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972). All this court must decide is whether the application of the felony-murder rule to the facts of petitioner's case violated the Due Process Clause of the Fourteenth Amendment. The court concludes that it did not.

Due process requires that action taken by a state bear a rational relation to a constitutionally permissible objective. Williamson v. Lee Optical Co., 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563 (1955). Petitioner notes that the purpose of the Illinois felony-murder rule is to proscribe inherently dangerous activity such as forcible felonies. He even concedes that it is reasonable for a state to protect its citizens against such activity. However, petitioner argues that the Illinois Supreme Court's application of the felony-murder rule was irrational and arbitrary because he was held strictly liable for murder, regardless of any intervening act which caused the death. He argues that "to hold that the mere `setting in motion of the total events' will support a conviction for any death that results under any circumstance, is to deny all logic and ignore the legitimate societal interest that the statute was designed to protect." (Petitioner's Amended Petition at 8.)

The answer to petitioner's argument is that the Illinois Supreme Court did not hold what petitioner says it held. See discussion, infra. Moreover, the brief which petitioner filed with the Illinois Supreme Court reveals what, in fact, that court was asked to decide. The issue posed by petitioner before the Supreme Court—and for that matter...

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    ...if the state had incorrectly applied its own law it would not ordinarily warrant federal habeas relief. See United States ex rel. Rock v. Pinkey, 430 F.Supp. 176, 179 (N.D.Ill.1977), aff'd mem., 582 F.2d 1282 (7th Cir. 1978). See also McMichaels v. Hancock, 428 F.2d 1222 (1st Cir. 1970). Ho......
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