United States ex rel. Sullivan v. Fairman

• Decision Date: 28 April 1983
• Docket Number: No. 82C613.,82C613.
• Citation: 564 F. Supp. 575
• Parties: UNITED STATES of America ex rel. Melvin H. SULLIVAN, Petitioner, v. James A. FAIRMAN and Attorney General of Illinois, Respondents.
• Court: U.S. District Court — Northern District of Illinois

564 F. Supp. 575

UNITED STATES of America ex rel. Melvin H. SULLIVAN, Petitioner, v. James A. FAIRMAN and Attorney General of Illinois, Respondents.

No. 82C613.

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

April 28, 1983.

Martha A. Mills, Sue A. Herrmann, Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., for petitioner.

Neil F. Hartigan, Atty. Gen. of Ill., Kenneth A. Fedinets, Asst. Atty. Gen., Chicago, Ill., for respondents.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Melvin H. Sullivan ("Sullivan") has brought this 28 U.S.C. § 2254 ("Section 2254") habeas corpus proceeding against Pontiac Correctional Center Warden James A. Fairman and the Attorney General of Illinois. Respondents now move to dismiss Sullivan's amended habeas corpus petition. For the reasons stated in this memorandum opinion and order, respondents' motion is granted.

Background

Sullivan was charged with the murder of Michael Grayson ("Grayson"), who was fatally shot at 2:30 a.m. March 18, 1979, in front of the Pepperbox Lounge (the "Pepperbox") in Chicago. At the bench trial the State's principal witness was Elnora Barnes ("Barnes"), a prostitute who had spent most evenings during the two weeks preceding the slaying with Sullivan at the Westlane Hotel. Barnes's version of events directly implicated Sullivan in the crime:

Late in the evening of March 17 Barnes went to the Pepperbox to find Sullivan. When she arrived she saw Sullivan and Grayson talking and drinking together. Sullivan (who had red hair and a beard) was wearing a long, grey coat. At some point she also noticed Sullivan still had the gun she had seen him hide in his pants that morning.

Some time after 1 a.m. Barnes left the tavern with Sullivan, Grayson and two other individuals named Cynthia and Cary. Outside the bar Sullivan confided to Barnes his plans to rob Grayson. As Barnes then crossed the street she heard a shot. Turning around, she saw Grayson collapse near Sullivan and Cary. Barnes then ran to her hotel room. When Sullivan arrived there about 30 minutes later, Barnes asked him what was wrong. Sullivan responded, "I just killed a nigger" at the corner. (Report of Proceedings ("R.") 57).

To buttress Barnes's account the State called two other witnesses, Pepperbox employee Sam Titus ("Titus") and Pepperbox patron Willie Davis ("Davis"). Titus testified he saw Sullivan at the lounge that night. However, he also acknowledged he neither witnessed the actual shooting nor recalled when Sullivan arrived or left the bar. Davis' testimony was more incriminating. Just before the killing occurred, Davis went outside the Pepperbox for some fresh air. At that time he heard the shot and saw two women running away. Davis also saw a person in a long grey coat fleeing the scene, but he could not identify that individual's sex. Davis recalled seeing Sullivan in the Pepperbox both after midnight and earlier in the evening.

Sullivan called three witnesses to establish an alibi defense: Sullivan himself, his aunt Kathleen Sullivan and his cousin Linda Lee Sullivan. Sullivan testified he left the Pepperbox by himself shortly before midnight. He walked two blocks to his aunt's home, where he was living, and rang the doorbell. His aunt looked out the upstairs window, saw Sullivan at the front steps and tossed him the door key. Sullivan then opened the door and went to bed. Sullivan also testified his intimate relationship with Barnes had degenerated into one of bitter animosity. Though he admitted seeing Barnes the morning of March 18, Sullivan insisted he had not seen her at the Pepperbox that previous evening.

Sullivan's aunt largely corroborated his story. According to her Sullivan came home at 1:00 a.m. on March 18, let himself in the door (after she threw down the key) and went directly to bed. Sullivan's cousin's testimony was of little assistance, for she was sound asleep when Sullivan supposedly came home.

After those defense witnesses testified, Sullivan's appointed counsel moved for a continuance to enable him to interview certain witnesses listed by the State in its discovery response as well as some other unidentified witnesses. That motion was denied. After closing arguments the court found Sullivan guilty and sentenced him to a 20-year term.

After retaining private counsel, Sullivan moved for a new trial on the basis of newly discovered evidence. That new evidence consisted of affidavits from the five occurrence witnesses identified in the State's response to discovery. In substance each affidavit indicated Sullivan was not the assailant. That motion too was denied, this time because the exculpatory evidence could have been discovered before trial had Sullivan (or more accurately his counsel) been diligent.

Next Sullivan (at that point represented by the state appellate defender) appealed his conviction. Three of the four issues presented for review concerned the five proposed witnesses:

1. whether the trial court erred in denying the post-trial motion without at least convening an evidentiary hearing;

2. whether the trial court erred in denying the motion for continuance; and

3. whether trial counsel's failure to interview those witnesses or secure their presence for trial denied Sullivan effective assistance of counsel, as guaranteed by the Sixth Amendment.¹

Unpersuaded by any of Sullivan's arguments, the Illinois Appellate Court affirmed his conviction. People v. Sullivan, 95 Ill. App.3d 571, 51 Ill.Dec. 60, 420 N.E.2d 474 (1st Dist.1981). Leave to appeal was denied by the Illinois Supreme Court.

Sullivan did not pursue any state remedies under the Illinois Post-Conviction Act (the "Act"), Ill.Rev.Stat. ch. 38, §§ 122-1 to 122-7. Instead he instituted this habeas corpus proceeding pro se. This Court obtained appointed counsel to represent him.

Motion To Dismiss

Counsel filed an amended petition to refine Sullivan's claims, asserting:

1. Two trial court actions infringed Sullivan's due process rights: denial of the motion for new trial without holding an evidentiary hearing, and denial of the motion for continuance.

2. Trial counsel's failure to interview and call the five occurrence witnesses violated Sullivan's Sixth Amendment right to counsel.

Defendants advance three grounds for dismissal:

1. Because both claims could be presented in a state post-conviction proceeding, Sullivan has not exhausted available state remedies, as required by Section 2254(b).

2. Sullivan's failure to raise his due process claims on direct appeal was a procedural default that bars habeas review under the cause-prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

3. Trial counsel's inaction did not impair Sullivan's Sixth Amendment rights.

These contentions will be examined in turn.

1. Exhaustion of State Remedies

Defendants' exhaustion argument is untenable. True enough, Sullivan could file a post-conviction petition under the Act, which confers standing on "any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States." Ill.Rev.Stat. ch. 38, § 122-1. But Illinois doctrines of res judicata and waiver would preclude post-conviction review of either habeas claim on the merits. People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970) held those concepts foreclosed consideration of any issues that were or could have been presented on direct appeal from a conviction. And it is well settled in this Circuit that "a petition for a writ of habeas corpus should be dismissed for failure to exhaust this post-conviction remedy `only if there is direct precedent indicating that under the particular circumstances of a prisoner's case the waiver and res judicata doctrines will be relaxed.'" Perry v. Fairman, 702 F.2d 119, 121 (7th Cir.1983), quoting United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1386 (7th Cir.1974) (first bracket added; second and third brackets in original).

Here res judicata and waiver squarely apply:

1. Sullivan's ineffective assistance claim was considered and rejected by the Illinois Appellate Court, bringing res judicata considerations into play.

2. Sullivan's due process claim implicates waiver notions, for it could have been but was not mentioned on direct appeal.² See infra at 578-579.

Moreover there is no "direct precedent" suggesting an Illinois court would ignore those threshold obstacles if Sullivan sought post-conviction relief:

1. Illinois' "non-record evidence" exception to the waiver and res judicata doctrines is unavailing, for both habeas claims rely exclusively on evidence contained in the appellate record. See United States ex rel. Williams v. Israel, 556 F.2d 865, 866 (7th Cir.1977) (claims "based in substantial part on evidence outside the record" are not waived for purposes of the Act). Sullivan's current Sixth Amendment claim is coextensive in factual terms with the ineffective counsel contentions previously raised on direct appeal. As for Sullivan's due process claim, that draws on the same factual matrix that bounded two other arguments posed to the Illinois Appellate Court — that the trial court abused its discretion in denying Sullivan's motions for a new trial and a continuance.

2. Illinois' "fundamental fairness" exception to the waiver rule is deemed inapposite, for none of the handful of cases invoking that concept involve circumstances "substantially the same as" Sullivan's situation. See Brantley, 502 F.2d at 1386.

Accordingly Sullivan has exhausted all available state remedies as to both habeas claims.

2. Applicability of Wainwright v. Sykes

Exhaustion only begins, rather than ends, the inquiry. Under Wainwright's "waiver" doctrine, a state prisoner who fails to comply with state procedural requirements for judicial review of an issue cannot assert that issue in a federal habeas proceeding unless he demonstrates just cause for...