United States ex rel. Lego v. Pate, No. 69 C 754.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Citation308 F. Supp. 38
Decision Date13 January 1970
PartiesUNITED STATES of America ex rel. Don Richard LEGO, Petitioner, v. Frank J. PATE, Warden, Respondent.
Docket NumberNo. 69 C 754.

308 F. Supp. 38

UNITED STATES of America ex rel. Don Richard LEGO, Petitioner,
v.
Frank J. PATE, Warden, Respondent.

No. 69 C 754.

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

January 13, 1970.


William Scott, Atty. Gen., Warren K. Smoot, Asst. Atty. Gen., State of Ill., Chicago, Ill., for respondent.

Don Richard Lego, pro se.

308 F. Supp. 39

MEMORANDUM OPINION

WILL, District Judge.

Petitioner is presently incarcerated in the Illinois State Penitentiary, Stateville Branch, pursuant to his conviction by the Criminal Court of Cook County for the offense of Armed Robbery. Petitioner was tried before a jury and found guilty on February 24, 1961. He was sentenced by the court to a term of not less than 25 or more than 50 years. Following his conviction, petitioner appealed directly to the Illinois Supreme Court. That Court affirmed the judgment of the trial court. People v. Lego, 32 Ill.2d 76, 203 N.E.2d 875 (1965). Petitioner has also sought post-conviction relief via both post-conviction and habeas corpus (federal and state) petitions.1 Petitioner has heretofore sought habeas corpus relief in this Court. We denied petitioner's latest petition on April 15, 1969, and he comes now upon a petition for rehearing, asking us to reconsider our order of April 15.

Petitioner reiterates that the identical issues raised in his earlier petition were presented to the Cook County Circuit Court. He further states that his post-conviction petition and state habeas corpus petition were denied on the ground that consideration of both the old and the new issues was precluded by the doctrine of res judicata because of the Illinois Supreme Court's affirmance of petitioner's conviction on direct appeal. People v. Lego, supra. Petitioner submits that he has exhausted his presently available state court remedies as required by 28 U.S.C. § 2254.

Upon reconsideration, we agree with petitioner We do so for two reasons. First, at the time the April opinion was filed we were of the opinion that, since petitioner raised only the question of the admissibility of his confession in his appeal to the Supreme Court of Illinois and not the issue raised here, he had not exhausted. We adopted this position because it was assumed at that time that petitioner could avail himself of Ill.Rev. Stats., ch. 38, section 122-7, and could seek review of the new issues by having the Illinois Supreme Court review the dismissal of the recent post-conviction hearing petition. After a more thorough examination of section 122-7 we realize that, although the section permits a review of any final judgment entered upon a petition for a post-conviction hearing, such review must proceed "as an appeal in civil cases," because a post-conviction hearing proceeding is civil in nature. Therefore, petitioner must file a notice of appeal within 30 days. (S.H.Ill.Ann.Stats., Ch. 110A, sec. 303(a)). This section allows an appeal only within its 30 day time limitation. It does not permit, as did an earlier section, an appeal within one year by order of the reviewing court entered within 14 months from the entry of the order, decree, judgment or other determination. Because petitioner did not prosecute a notice of appeal within the prescribed time, he no longer has available this state court remedy.

Second, because a petition for a State writ of habeas corpus may be filed either originally in the Supreme Court or in the Circuit Court, a denial of a habeas corpus petition by a state Circuit Court in Illinois is not reviewable by the Illinois Supreme Court. White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945), rehearing denied 326 U.S. 807, 66 S.Ct. 133, 90 L.Ed. 492. This rationale corroborates the enunciated intent of the Illinois post-conviction hearing remedy. This remedy is intended to be the complete post-conviction remedy for persons convicted of crimes and who claim that the proceedings contained constitutional violations. People v. Bragg, 16 Ill.2d 336, 157 N.E.2d 57 (1959). Thus, petitioner is presently

308 F. Supp. 40
without any available state remedy as he cannot appeal from either the Circuit Court's denial of his State habeas corpus petition or from the denial of his post-conviction hearing petition. Because petitioner is without any state court remedy we must consider the merits of his contentions

Petitioner alleges that the Illinois evidentiary procedure for determining the voluntariness of extra-judicial confessions is so unreliable as to contravene his Fourteenth Amendment right to due process. Specifically, petitioner contends that, since the trial judge in the preliminary determination of voluntariness outside the presence of the jury is not required to find beyond a reasonable doubt that the confession was voluntary, the procedure is unconstitutional. He further...

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4 practice notes
  • Lego v. Twomey 8212 5037, No. 70
    • United States
    • United States Supreme Court
    • 12 Enero 1972
    ...concluded that Lego had no state remedy then available to him and denied relief on the merits. United States ex rel. Lego v. Pate, 308 F.Supp. 38 (1970).5 The Court of Appeals for the Seventh Circuit affirmed. 6 I Petitioner challenges the judgment of the Court of Appeals on three grounds. ......
  • DaSilva v. One, Inc., CIVIL NO. 12-1286 (DRD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 31 Marzo 2015
    ...the whole.' Id. (emphasis ours) See Doral Mortg. Corp., 57 F.3d at 1176. In addition, and, as stated in Alvarez-Torres v. Ryder Memorial, 308 F.Supp. 38, 40-41 (D.P.R. 2004): The issue framed under supplemental [party] jurisdiction is the following: "[B]ut suppose there is some additional p......
  • Edwards v. Beto, No. 30816 Summary Calendar.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 22 Junio 1971
    ...seen fit to impose the reasonable doubt burden on admissibility of confessions. See United States ex rel. Lego v. Pate, N.D.Ill.1970, 308 F.Supp. 38, f. n. 2. The Supreme Court has declined to do so, however. See Jackson v. Denno, 1964, 378 U.S. 368, 405, 84 S.Ct. 1774, 12 L.Ed.2d 908 (diss......
  • Collins v. Sullivan, Civ. No. 69-550.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 15 Octubre 1970
    ...reasonable doubt. Neither the Oregon statutes nor the United States Constitution require such proof. United States ex rel. Lego v. Pate, 308 F.Supp. 38 Detective Burgstrom gave petitioner his warnings and petitioner waived his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.......
4 cases
  • Lego v. Twomey 8212 5037, No. 70
    • United States
    • United States Supreme Court
    • 12 Enero 1972
    ...concluded that Lego had no state remedy then available to him and denied relief on the merits. United States ex rel. Lego v. Pate, 308 F.Supp. 38 (1970).5 The Court of Appeals for the Seventh Circuit affirmed. 6 I Petitioner challenges the judgment of the Court of Appeals on three grounds. ......
  • DaSilva v. One, Inc., CIVIL NO. 12-1286 (DRD)
    • United States
    • United States District Courts. 1st Circuit. District of Puerto Rico
    • 31 Marzo 2015
    ...the whole.' Id. (emphasis ours) See Doral Mortg. Corp., 57 F.3d at 1176. In addition, and, as stated in Alvarez-Torres v. Ryder Memorial, 308 F.Supp. 38, 40-41 (D.P.R. 2004): The issue framed under supplemental [party] jurisdiction is the following: "[B]ut suppose there is some additional p......
  • Edwards v. Beto, No. 30816 Summary Calendar.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 22 Junio 1971
    ...seen fit to impose the reasonable doubt burden on admissibility of confessions. See United States ex rel. Lego v. Pate, N.D.Ill.1970, 308 F.Supp. 38, f. n. 2. The Supreme Court has declined to do so, however. See Jackson v. Denno, 1964, 378 U.S. 368, 405, 84 S.Ct. 1774, 12 L.Ed.2d 908 (diss......
  • Collins v. Sullivan, Civ. No. 69-550.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Oregon)
    • 15 Octubre 1970
    ...reasonable doubt. Neither the Oregon statutes nor the United States Constitution require such proof. United States ex rel. Lego v. Pate, 308 F.Supp. 38 Detective Burgstrom gave petitioner his warnings and petitioner waived his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.......

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