US ex rel. Boney v. Godinez, 92 C 6549.
| Decision Date | 17 November 1993 |
| Docket Number | No. 92 C 6549.,92 C 6549. |
| Citation | 837 F. Supp. 268 |
| Court | U.S. District Court — Northern District of Illinois |
| Parties | UNITED STATES of America, ex rel., Albert Michael BONEY, Petitioner, v. Salvador GODINEZ, Warden, Respondent. |
Albert Michael Boney, pro se.
Bradley P. Halloran, Terence Madsen, Illinois Atty. Gen.'s Office, Chicago, IL, for respondent.
Now before the court are petitioner's objections to Magistrate Judge Ronald Guzman's Report & Recommendation ("Report") regarding Albert Michael Boney's ("Boney") petition for a writ of habeas corpus. The Magistrate Judge recommended that Boney's petition be denied for (1) failure to comply with the procedural requirements of 28 U.S.C. § 2254(b) and (2) failure to demonstrate a Constitutional violation. For the reasons set forth below, this court agrees with the Report and denies Boney's petition.
In March of 1973, Boney was convicted of armed robbery, attempted murder and aggravated battery. While on parole for these offenses in 1980, Boney committed an armed robbery of the Ames family. Boney was found guilty of home invasion and three counts of armed robbery.
The trial judge sentenced Boney to 60 years. In sentencing Boney to the maximum term allowed under Illinois law, the trial judge focused extensively on Boney's prior armed robbery conviction and invoked the Illinois extended sentencing statute. ILL. REV.STAT. ch. 38, para. 1005-5-3.2(b)(1) (1979).1 To invoke this statute, a trial judge must find that the defendant committed a prior offense of the same or greater class as the pending offense. Id. When Boney committed the 1973 armed robbery, armed robbery was a Class 1 felony. In 1978, the Illinois legislature reclassified armed robbery as a Class X felony. 1977 Ill.Laws 80-1099. When sentencing Boney for the Ames robberies, the trial judge deemed the 1973 armed robbery a Class X felony, and therefore, an offense of the same class as the 1980 convictions. Accordingly, he sentenced Boney pursuant to the extended sentencing statute.
During sentencing, the trial court incorrectly stated that Boney had bound the victims. The trial court also incorrectly noted that Boney had ordered the victims to remain in a closet for the duration of the robbery, when in fact Boney had ordered them into a bathroom. The trial judge also mentioned that Boney was carrying a sawedoff shotgun.
Boney appealed his sentence to the Illinois Appellate Court, arguing that the trial judge committed error by imposing a sentence based upon aggravating factors that did not exist. The appellate court rejected his contention, because the record demonstrated that the judge relied on Boney's prior conviction to invoke the extended sentencing statute. People v. Davis, 124 Ill.App.3d 813, 823, 80 Ill.Dec. 167, 174-75, 464 N.E.2d 1150, 1157-58 (1st Dist.1984). The Illinois Supreme Court denied Boney leave to appeal. Boney has never filed for postconviction relief pursuant to the Illinois Post-Conviction Hearing Act. ILL.REV.STAT. ch. 38, para. 122-1.2
In his petition for writ of habeas corpus, Boney argues that the trial judge's invocation of extended sentencing violated the fourteenth amendment and the ex post facto clause. Boney further argues to this court that the appellate defender who represented Boney before the Illinois Appellate Court was ineffective, and thus, the State of Illinois violated Boney's 6th Amendment rights. See, e.g., Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Boney contends he is entitled to relief pursuant to 28 U.S.C. § 2254 because (1) the trial judge's sentence was so arbitrary and capricious as to violate his rights to due process under the fourteenth amendment and (2) the reclassification of his prior conviction to invoke extended sentencing violated the ex post facto clause. Petition for Writ of Habeas Corpus at 2.
An inmate of the state must exhaust state remedies before petitioning a federal court for a writ of habeas corpus. 28 U.S.C. § 2254(b) (1989). The Magistrate Judge found that Boney failed to exhaust state remedies. Report, at 22-23. This court must disagree. While it is true that Boney has failed to invoke the protection of the Post-Conviction Act, an Illinois inmate is not required to petition for post-conviction relief when such a petition is futile. United States ex rel. Avila v. Ahitow, 791 F.Supp. 197, 200 (N.D.Ill.1992) (citing Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380 (1989)). In Illinois, an issue that was or could have been raised on appeal is res judicata in a post-conviction proceeding. Gornick v. Greer, 819 F.2d 160, 161 (7th Cir.1987) (emphasis added); see, e.g., People v. Emerson, 153 Ill.2d 100, 107, 180 Ill.Dec. 46, 49, 606 N.E.2d 1123, 1126 (1992) (), cert. denied, ___ U.S. ___, 113 S.Ct. 1865, 123 L.Ed.2d 485 (1993). As noted by the Seventh Circuit Court of Appeals, "this rule has been applied strictly, virtually eliminating the post-conviction remedy for any prisoner who has taken a direct appeal." Id. Thus, it would be futile for Boney to file a post-conviction petition in state court because he could have raised the due process and ex post facto claims before the Illinois Appellate Court. Therefore, this Court finds that Boney has exhausted his state remedies regarding these issues pursuant to Section 2254(b).
The Magistrate Judge also concluded that Boney failed to demonstrate that his incarceration violates the Constitution. Report, at 8-17 (citing 28 U.S.C. § 2254(a)). This court agrees.
Boney alleges the trial court's sentence was arbitrary and capricious because the court erroneously relied upon facts which either did not exist or could not be used to aggravate a sentence. Petitioner's Mem. in Supp., at 16 ().
At sentencing, the trial judge mentioned, "There was threatened harm, a sawed-off shotgun was presented, people were placed in closets, bound, threatened, advised to remain silent." Davis, 124 Ill. App.3d at 823, 80 Ill.Dec. 167, 464 N.E.2d 1150. It is true that the trial judge incorrectly believed that Boney had bound his victims, and he mistook a bathroom for a closet. It is also true that under Illinois law, elements of an offense cannot be used to aggravate the sentence. People v. Saldivar, 113 Ill.2d 256, 271-72, 100 Ill.Dec. 776, 773, 497 N.E.2d 1138, 1145 (1986). Because an individual must have a weapon to commit armed robbery, the existence of this weapon cannot aggravate the sentence. 720 ILCS 5/18-2 (1992). Thus, the presence of Boney's shotgun does not suffice to aggravate the sentence.
However, this Court agrees with the Illinois Appellate Court and the Magistrate Judge in concluding that the trial judge did not rely on these facts. The trial judge expressly stated that Boney's prior conviction was the basis for his sentence:
Mr. Boney, it's true has been convicted three times simultaneously.... The previous conviction is sufficient ... in the Court's judgement to invoke the extended term sentencing ... The earlier conviction of the similar offense of armed robbery supports the finding that the extended term provision of the law applies and it is so ordered then, that the extended term sentencing will now be and is invoked against Michael Boney.
Trial Transcript, at 51, quoted in Petitioner's Mem. in Supp., at 2-3.
Thus, the transcript clearly demonstrates that the trial judge was primarily concerned with the petitioner's prior conviction. Because he did not rely upon the three aforementioned facts to sentence Boney, he did not deprive Boney of any Constitutional rights.
Further, even if the state court considered these facts to a limited degree, this error does not rise to the level of a Constitutional violation. See, e.g., Rose v. Hodges, 423 U.S. 19, 20, 96 S.Ct. 175, 175, 46 L.Ed.2d 162 (1975). Misapplication of state law results in a due process violation only if the subsequent sentence is "arbitrary and capricious." Richmond v. Lewis, ___ U.S. ___, ___, 113 S.Ct. 528, 536, 121 L.Ed.2d 411 (1992); Lewis v. Jeffers, 497 U.S. 764, 783, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990). To meet this standard, the petitioner must demonstrate that "no reasonable sentencer" could have found the existence of aggravating factors that justify the sentence length. Lewis, 497 U.S. at 783, 110 S.Ct. at 3102. Boney does not dispute the existence of his prior conviction. Petitioner's Mem. in Supp., at 2. Thus, Boney must demonstrate that no reasonable sentencer could conclude that this conviction justifies the length of his sentence.
A reasonable sentencer could have found that Boney's prior conviction justified the imposition of the maximum sentence allowed by law. A state does not violate a citizen's due process rights by imposing a longer prison term upon her because she is a habitual criminal. Gryger v. Burke, 334 U.S. 728, 731, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948). The Illinois Appellate Court concluded that the record clearly established that Boney had maintained a "career as a professional robber even after completing a prior penitentiary sentence." Davis, 124 Ill. App.3d at 824, 80 Ill.Dec. 167, 464 N.E.2d 1150. A reasonable sentencer could easily conclude that a defendant who has consistently revealed his intent to financially support himself by robbing others at gun-point deserves the maximum sentence.
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