United States ex rel. Miller v. O'LEARY

• Decision Date: 15 December 1986
• Docket Number: No. 84 C 348.,84 C 348.
• Citation: 651 F. Supp. 174
• Parties: UNITED STATES of America ex rel. Joseph MILLER, Petitioner, v. Michael O'LEARY, Warden, Stateville Correctional Center, and Neil F. Hartigan, Attorney General of Illinois, Respondents.
• Court: U.S. District Court — Northern District of Illinois

651 F. Supp. 174

UNITED STATES of America ex rel. Joseph MILLER, Petitioner, v. Michael O'LEARY, Warden, Stateville Correctional Center, and Neil F. Hartigan, Attorney General of Illinois, Respondents.

No. 84 C 348.

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

December 15, 1986.

Patricia A. Brandin, Jeffrey Heller, Chicago, Ill., for respondents.

Terence M. Madsen, Asst. Atty. Gen., Chicago, Ill., for petitioner.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This habeas action was initiated by the petitioner pro se on January 17, 1984. On October 17, 1984, my former colleague, Judge McMillen, granted the respondents' motion for summary judgment on two of the petitioner's claims for relief but reserved ruling on the question whether petitioner was denied his right to a fair and impartial jury by the State's use of peremptory challenges. United States ex rel. Miller v. O'Leary, No. 84 C 348 (N.D.Ill. Oct. 17, 1984). The court appointed counsel to conduct a "searching inquiry" into the matter. Id. slip op. at 2. After the judge's retirement earlier this year, the case was reassigned to me. On March 3, 1986, I indicated to the parties that I would not rule on the petitioner's remaining claim until the Supreme Court rendered its decision in Batson v. Kentucky, which was then pending. 471 U.S. 1052, 105 S.Ct. 2111, 85 L.Ed.2d 476 (1985) (order granting certiorari). That decision was handed down by the Court on April 30, 1986. ___ U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Both sides have since moved for summary judgment.¹

FACTS

The respondents have neither submitted a statement of material, nondisputed facts in support of their motion for summary judgment nor offered this court a "statement of genuine issues" in opposition to petitioner's motion for summary judgment. Accordingly, the facts alleged in petitioner's "statement of material facts" are deemed admitted by the respondents and accepted as true by this court. See N.D. Ill.R. 12(e) and 12(f). The following is a brief summary of those facts.

I. The State Court Proceedings

Following a trial by jury, the petitioner was convicted of murdering William Staray, a white male found dead in the front seat of a Corvette on the south side of Chicago. Petitioner was also charged with and convicted of attempted armed robbery and armed violence predicated on the robbery. He was sentenced to 35 years on the murder count, 30 years on the armed violence count, and 15 years on the attempted robbery count.²

The venire producing the jury that convicted petitioner originally consisted of 69 jurors, of whom seventeen were black and the remaining were white. Because of the seriousness of the charges, both sides were allowed twenty peremptory challenges. The State used fourteen of its challenges to strike blacks from the pool of potential jurors; it used two other challenges to strike whites. Since three blacks had been removed for cause by the trial court, the result was an all-white jury. The two alternate jurors were also white.³

During the voir dire proceedings, defense counsel objected twice to the State's apparent use of peremptory challenges to exclude black jurors. On both occasions, the court took no action on the objections. Defense counsel reiterated its objection in its post trial motion, again to no avail.

On appeal, the petitioner claims to have argued that the exclusion of black jurors violated both the Illinois and United States Constitutions by depriving him of due process of law and an impartial jury. See Pet. Statement of Material Facts, at ¶ 11; Pet. Mem. in Support of Summary Judgment, at 4-5. Although the claim was made that "the Illinois and United States Constitutions require that his conviction be reversed and remanded for a new trial," petitioner's characterization of his argument before the Illinois Appellate Court is not quite accurate. Pet.Ex. 7, at 9.

There, the petitioner eloquently argued that "racial bias is a tragic reality of our society and if prosecutors are free to form a jury based on race, bias will taint the jury's ability to fairly evaluate evidence."⁴ Pet.Ex. 7, at 8-9. While noting that both the Illinois and United States Constitutions provide for the right to trial by an impartial jury, the petitioner argued that the test set forth by the United States Supreme Court in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), was "neither available nor realistic for the vast majority of criminal defendants." Pet.Ex. 7, at 4-5. Accordingly, petitioner called for "adoption of a State, as opposed to Federal, standard for a defense allegation of discriminatory jury selection" and urged the appellate court to follow dicta in other Illinois cases adopting the test set forth by the California Supreme Court in People v. Wheeler, 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748 (1978). Pet.Ex. 7, at 4-7. See also Pet.Ex. 8, at 7-10 (Pet. Reply Brief before the Appellate Court).

On March 11, 1982, the Appellate Court rejected petitioner's argument concerning the State's use of peremptories. Relying on state law authorities, the Court held:

Although the practice of using peremptory challenges to strike all blacks from the jury has been condemned, the evidence of purposeful exclusion must be apparent, and it is the responsibility of the trial court to determine whether the State has properly exercised its peremptory challenges. In the case at bar, the defense brought its contention to the trial court's attention. The trial court did not find the State was exercising its peremptory challenges improperly, and, on this record, we cannot say that the trial court abused its discretion.

Pet.Ex. 9 at 8-9 (People v. Miller, 104 Ill.App.3d 1205, 63 Ill.Dec. 296, 437 N.E.2d 945 (1982) (citations omitted)). The Appellate Court vacated the judgment of conviction for attempted armed robbery, but affirmed the trial court in all other respects.

Petitioner did not appeal his decision to the Illinois Supreme Court. His petition for certiorari to the United States Supreme Court was denied on August 23, 1984. Miller v. Illinois, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). Justices Brennan and Marshall dissented from the Court's denial to hear the case. Id., 461 U.S. at 963, 103 S.Ct. at 2439. Justices Blackman and Powell joined Justice Stevens' opinion calling for "further consideration of the substantive and procedural ramifications of the problem by other courts...." Id. 461 U.S. at 962, 103 S.Ct. at 2438.

II. Prior Proceedings on Petitioner's Federal Habeas Corpus Claims.

As noted at the outset of this opinion, the respondents' motion for summary judgment was granted in part and denied in part on October 17, 1984. On February 13 of the following year, in response to a motion to reconsider the denial of summary judgment on the peremptory challenge issue, Judge McMillen held that petitioner "did not waive his right to a Swain v. Alabama decision." Miller, slip op. at 2 (N.D.Ill. Feb. 13, 1985).

In response to further motions, however, the court held the Swain claim was barred on exhaustion grounds. It reasoned that a Swain claim raised a different legal theory, dependent on a different order of proof, than a claim for discriminatory use of peremptories in a single case. Miller, slip op. at 2 (N.D.Ill. June 3, 1985) (citing United States ex rel. Nance v. Fairman, 707 F.2d 936, 940 (7th Cir.1983)). Since both parties conceded that the petitioner's appeal to the Appellate Court "sought to establish a violation of right to fair trial by applying some test other than that laid down in Swain v. Alabama," Judge McMillen concluded that the petitioner could not raise a systematic discrimination theory in federal court without first exhausting the issue at the state court level. Id. at 1. See also Miller, Minute Order (N.D.Ill. Sept. 6, 1985) (denial of reconsideration motions concerning June 3, 1985 order).

These rulings left outstanding petitioner's claim that the prosecution used its peremptories unconstitutionally and discriminatorily in petitioner's case. The court, aware of the Second Circuit's opinion in McCray v. Abrams, 750 F.2d 1113 (2d Cir.1984) (later vacated and remanded, ___ U.S. ___, 106 S.Ct. 3289, 92 L.Ed.2d 705 (1986)), and the Supreme Court's intention to consider the issue in Batson, ordered the parties to proceed upon the single case discrimination theory.⁵

DISCUSSION OF LEGAL ISSUES

The petitioner essentially presents three alternative arguments which he claims entitled him to relief. Stated most briefly, these claims allege (1) that the State violated petitioner's constitutional rights by its use of peremptory challenges in his individual case, (2) that the State's use of peremptories unconstitutionally impaired petitioner's Sixth Amendment right to an impartial jury, and (3) that the State's discriminatory exclusion of black jurors violated petitioner's Fourteenth Amendment rights as articulated by Swain v. Alabama. Although I sympathize with petitioner's well-argued positions, I cannot accept them. I take up the questions in turn.

I. The Batson or Single Case Theory

In Batson, the Supreme Court overruled Swain to the extent that the earlier case required a challenger of a prosecutor's use of peremptories to prove systematic exclusion of blacks over a number of cases. ___ U.S. ___, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). In Allen v. Hardy, however, the Court held that Batson would not be applied retroactively. ___ U.S. ___, 106 S.Ct. 2878, 92 L.Ed.2d 199 (1986). The per curium opinion stated:

The rule in Batson v. Kentucky is an explicit and substantial break with prior precedent. In Swain v. Alabama, the Court held that, although the use of peremptory challenges to strike black jurors on account of race violated the Equal Protection Clause, a defendant could not establish such a violation solely on proof of the prosecutor's action at his own trial. Batson overruled that portion of Swa

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