United States Ex Rel. Sanders v. DeRobertis

538 F. Supp. 1390, 1982 U.S. Dist. LEXIS 12741

• Court: District Court, N.D. Illinois
• Decided: June 2, 1982
• Docket: 81 C 5449
• Status: Published

Opinion

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Plaintiff Allen Sanders (“Sanders”) is currently serving a 75-100 year, sentence in the Stateville Correctional Center in Joliet, Illinois, for the murder and armed robbery of a Chicago police officer and the attempted murder and armed robbery of another officer. Sanders filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254 alleging seven constitutional violations arising during his state trial. This matter is presently before the Court on respondents’ motion to dismiss, inter alia, for lack of subject matter jurisdiction.

Of the seven claims set forth in Sanders’ petition, six had been raised unsuccessfully before the Illinois Supreme Court in People v. Sanders, 56 Ill.2d 241, 306 N.E.2d 865 (1974). 1 Thus, Sanders has exhausted his state court remedies with respect to these six claims as required by 28 U.S.C. § 2254(b). Sanders’ seventh claim, however, was not previously raised before the state courts. That claim alleges that Sanders was denied the right to a fair and impartial jury at trial because blacks were under-represented on the voter registration lists from which the names of potential jurors were drawn.

Until recently, the United States Court of Appeals for the Seventh Circuit followed a majority of the circuit courts of appeals in permitting district courts to review the exhausted claims in a mixed habeas corpus petition containing both exhausted and unexhausted claims. See, e.g., Brown v. Wisconsin State Department of Public Welfare, 457 F.2d 257, 259 (7th Cir.), cert. denied, 409 U.S. 862, 93 S.Ct. 150, 34 L.Ed.2d 108 (1972). In Rose v. Lundy, - U.S. -, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), however, the United States Supreme Court held that a petition including both exhausted and unexhausted claims must be dismissed in its entirety. The Seventh Circuit recently applied this total exclusion rule in U. S. ex rel. Clauser v. Shadid, 677 F.2d 591 (7th Cir. 1982).

Accordingly, Sanders’ petition for a writ of habeas corpus is dismissed for lack of subject matter jurisdiction. 2 It is so ordered.

1 . In People v. Sanders, Sanders raised the following due process claims: (1) it was error to admit evidence of prior armed robbery convictions; (2) references made at trial to Sanders’ initial arrest were improper; (3) the prosecutor’s closing argument was prejudicial; (4) it was error to admit a prior inconsistent statement of a defense witness; (5) it was error to admit statements that Sanders improperly identified himself to two police officers; (6) it was error for the trial court to refuse to order polygraph examinations from Sanders and from an eye-witness police officer.

2 . Sanders may file a new petition for a writ of habeas corpus containing his six exhausted constitutional claims. In addition, he may seek review of his as yet unexhausted claim under the Illinois Post-Conviction Act, 28 Ill.Rev.Stat. ch. 38, §§ 122-1 — 122-7 (1977). It is so ordered.