Petition — Elrod v. Massarella

Supreme Court of the United States

Octroszr Term, 1982

CS en ee a

TYRONE O. FAHNER, Attorney General,

State of Illinois,

Petitioner,

vs.

BENEDETTO J. MASSARELLA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Tyrone C. Fanner

Attorney General, State of IIlinois

Micuaet B. WernsTern

Assistant Attorney General

188 West Randolph Street, Suite 2200

Chicago, Illinois 60601

(312) 793-2570

Counsel for Petitioner

E. James Grpea

Special Assistant Attorney General

401 North Michigan Avenue, Suite 3400

Chicago, IIlinois 60611

(312) 222-0800

Of Counsel

— — Üm-— —ʒꝛ•˙̃— n. —ę²—ii i —ᷣ

Printed by Authority of the State of Illinois (P. O. 31223—55— 11-12-82)

QUESTION PRESENTED FOR REVIEW

Whether the opinion of the court of appeals holding

that a habeas corpus petitioner’s voluntary election to be

sentenced under a statute enacted after his offense

violates the ex post facto clause conflicts with this Court’s

decisions in Francis v. Henderson, Wainwright v. Sykes,

and Engle v. Isaac.

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW . i

TABLE OF CONTENTS. ii

TABLE OF AUTHONMTIESS . Vv

OPINIONS BELOW W - 1

JURISDICTION 3

CONSTITUTIONAL tad al

AND STATUTES INVOLVED . 3

STATEMENT OF THE CASE. 7

REASONS FOR GRANTING THE PETITION

FOR WRIT OF CERTIORARI:

I.

THE OPINION BELOW IS IN CONFLICT

WITH THIS COURT’S HOLDINGS IN

FRANCIS v. HENDERSON, WAINWRIGHT

v. SYKES AND ENGLE v. ISAAC 10

II.

TH OPINION BELOW DEFIES CON-

TROLLING STATE DECISIONAL LAW AS

TO THE CONSTRUCTION OF ILLINOIS

STATUTES 11

III.

THE COURT SHOULD RECONSIDER

BROWN v. ALLEN AND FURTHER DE-

FINE THE SCOPE OF COLLATERAL RE-

VIEW UNDER 28 U.S.C. §2254 13

CONCLUSION

iii

IV.

THE COURT OF APPEALS ERRED IN

ITS CONSTRUCTION OF THE EX med

FACTO CLAUSE

V.

THE COURT OF APPEALS SHIFTED

1——— OF PROOF TO RESPOND-

VI.

THE COURT OF APPEALS ERRED WHEN

IT REVERSED WITHOUT MAKING A DE-

TERMINATION THAT THE DISTRICT

COURT'S FINDINGS OF FACT 2

CLEARLY ERRONEOUS

VII.

THE COURT OF APPEALS OPINION IS

UNCLEAR AND AMBIGUOUS AND IN-

VITES SUBSTANTIAL ADDITIONAL AP-

PELLATE LITIGATION

14

15

16

17

19

iv

APPENDICES:

A.

United States Of America ex rel. Benedetto

J. Massarella v. Richard J. Elrod, Sheriff

of Cook County, Illinois, and Tyrone Fahner,

Attorney General of Illinois ( F. ad . .)

(7th Cir. 1982) 1

Order of the United States Distriet Court

for the Northern Distriet of Illinois denying

petition for writ of habeas corpus .

Opinion of the Illinois ——* Court in

People v. Massarella, 80 Ill.App.3d 552, 400

„

Petition for Rehearing filed with the United

States Court of Appeals for the Seventh Cir-

111 J. Massarella on August

Motion for Stay of Mandate Pending Appli-

cation For Writ Of Certiorari To The United

States Supreme Court, filed by Benedetto

J. Massarella on October 1, 1982

Judgment Order of the Circuit Court of Cook

County, Illinois entered January 1, 1975

against Benedetto J. Massarella for the of-

fense of perjury

Excerpt of Count Three of Indictment No.

73-1758, of Circuit Court of Cook County,

Illinois charging Benedetto J. Massarel

with the offense of perjury ....... .

Order of United States Court of Appeals

for the Seventh Circuit denying petitions

for rehearing

PAGE

la

1b

le

ld

le

if

lh

—

TABLE OF AUTHORITIES

CASEs: PAGE(S)

Braxton v. Estelle, 641 F.2d 392 (5th Cir. 1981) ..... 15

Brown v. Allen, 344 U.S. 443 (1953) . 13, 14

Dobbert v. Florida, 482 U.S. 282 (1977) 15

Engle v. Isaac, ..... U. S. , 102 S.Ct. 1558 (1982)

oa 10, 16, 17, 18

Francis v. Henderson, 425 U.S. 538 (1976) 10

Frank v. Mangum, 237 U.S. 309 (1914) 15

James v. Twomey, 466 F. 2d 718 (7th Cir. 1972) ..... 12, 16

Marks v. United States, 430 U.S. 188 (1977) ....... 15

People v. Collins, 37 III. App. 3d 202, 345 N.E.2d

730 (Ist Dist. 1976) 12

People v. Liebling, 36 Ill.App.3d 1073, 344 N.E.2d

520 (Ist Dist. 1976) 12

People v. Massarella, 53 Ill.App.3d 744, 368 N. E.

2d 507 (Ist Dist. 1977) 9

9

People v. Massarella, 72 III. 2d 531, 382 N.E.2d 262

(1978)

People v. Massarella, 80 Ill.App.3d 552, 400 N. E.

2d 436 (ist Dist. 1979), appeal denied, 81 III.

2d 586 (1980), cert. denied, 449 U.S. 1077

(1981) ‘ 2,9

Shad v. Borough of Mount Ephraim, ..... 288

101 S.Ct. 2176 (1981) 12

United States ex rel. Crump v. Sain, 295 F 2d 699,

cert. denied 369 U.S. 830 (7th Cir. 1961) 16

United States ex rel. Massarella v. Elrod, 510 F.

Supp. 1082 (N.D. III. 1981), ..... F.2d ...... (7th

Cir. 1982) 2,9

Vendo Company v. Stoner, 58 IIl. 2d 289, 321 N. E.

2d 1 (1974) cert. denied 420 U.S. 975 (1975) 12

Wainwright v. Sykes, 434 U.S. 880 (1977) 1

Weaver v. Graham, ..... U.S. ....., 101 S.Ct. 980 15

Wolfrath v. LaValle, 576 F.2d 965, cert. denied

439 U.S. 933 (2nd Cir. 1978) 15

vi

CONSTITUTIONAL PROVISIONS:

United States Constitution, Article I, Section 10,

Cl. 1 3

STATUTES:

28 U.S.C. §2101(c) . 3

28 U.S.C. §1254(1) 3

28 U.S.C. §2254 13, 14

Ill. Rev. Stat. 1971, Ch. 38, 627 3

Ill. Rev. Stat. 1971, Ch. 38, 62-11. 3

Ill. Rev. Stat. 1971, Ch. 38, §32-2 3

Ill. Rev. Stat. 1973, Ch. 38, 682-2 4

Ill. Rev. Stat. 1973, Ch. 38, 61005-1444 4

Ill. Rev. Stat. 1973, 38, 51005-5-3 4

Ill. Rev. Stat. 1973, 38, $1005-7-1 1 5

Ill. Rev. Stat. 1973, Ch. 38, §1005-8-1 1 5, 14

Ill. Rev. Stat. 1973, Ch. 38, §1008-2-4 ............ 6, 10, 16

Ill. Rev. Stat. 1973, Ch. 131, §4 (presently III. Rev.

Stat. 1981, Ch. 1, 61103) 6, 10, 11, 12, 14, 16

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

OPINIONS BELOW

petitioner elected to be sentenced under subjected him to

~

enhanced collateral consequences, and it ordered the

state to resentence him under the former statute without

regard to the right of election provided for in the Illinois

statutes. United States ex rel. Massarella v. Elrod, ......

F.2d ...... (7th Cir. 1982). (Appendix A at 5a).

The court of appeals thereby reversed a decision of the

United States District Court for the Northern District of

Illinois which held that the petitioner’s election to be

sentenced under the laws in effect at the time of sentenc-

ing was in accordance with his desires and therefore not

violative of the ex post facto clause. United States ex rel.

Massarella v. Elrod, 510 F.Supp. 1082 (N.D. III. 1981).

(Appendix B at 3b).

Prior to the filing of the petition for writ of habeas

corpus, the Illinois Appellate Court had affirmed the

petitioner’s conviction for reasons similar to those ex-

pressed by the federal district court. People v. Massarella,

80 Ill.App.3d 552, 400 N.E.2d 436 (Ist Dist. 1979). (Ap-

pendix C at 5c). Also, the Illinois Supreme Court had

denied, without comment, a petition for leave to appeal

from the appellate court’s decision. People v. Massarella,

81 In. ad 586 (1980).

This Court previously denied a petition for writ of cer-

tiorari of the defendant seeking to reverse the decision of

the Illinois Appellate Court. Massarella v. Illinois, 449

US. 1077 (1981).

~~

JURISDICTION

The court of appeals’ decision was rendered on July 14,

1982. A petition for rehearing was denied September 23,

1982. This petition is sought to be filed within 90 days of

the date the court of appeals denied the petition for

rehearing as required by 28 U.S.C. §2101(c). This Court’s

jurisdiction is invoked pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

CONSTITUTIONAL PROVISIONS

United States Constitution

Article I, Section 10, Cl. 1:

“No State shail . . pass any . . ex post facto law.

STATUTES

Illinois Revised Statutes, 1971

Chapter 38, Section 2-7:

“Felony” means an offense punishable with death or

imprisonment in the penitentiary.” *

Chapter 38, Section 2-11:

Chapter 38, Section 32-2:

(a) A person commits perjury when, under oath or af-

ina or in any other matter where

by law such or affirmation is required, he makes a

*

false statement, material to the issue or point in question,

which he does not believe to be true.

pig st

A person convicted of perjury shall be fined not to ex-

ceed $1,000 or imprisoned in a penal institution other

than the penitentiary not to exceed one year or in the

penitentiary from one to 14 years, or both fined and im-

prisoned

Illinois Revised Statutes, 1973

Chapter 38, Section 32-2:

(a) A person commits perjury when, under oath or af-

firmation, in a — or in any other matter where

by law such affirmation is required, he makes a

false statement, material to the issue or point in question,

which he does not believe to be true.

(d) Sentence.

Per jury is a Class 3 felony.

Amended by P.A. 77-2638, § 1, eff. Jan. 1, 1973.

Chapter 38, Section as

“Conditional means a sentence or disposi-

tion of conditional revocable release without pro-

bationary supervision but under such conditions as

Chapter 38, Section 1005-5-3:

(a) Every person convicted of an offense shall be

sentenced as provided in this Section, except in cases

of murder to which Section 5-8-1A of this Code is

applicable.

(d) When a defendant is convicted of a felony or

demeanor, the court may sentence such defendant

mis-

to:

~~

(1) 0 parton rr rr

except in cases of murder, rape, armed robbery

violation of Sections 401(a), 402(a), 405(a) or 407 of

the Illinois Controlled Su ces Act or violation of

Section 9 of the Cannabis Control Act;

(2) a term of periodic imprisonment;

(3) a term of imprisonment;

(4) a fine. However, a fine shall not be the sole

disposition in felony cases but may be im in

such cases only in addition to another disposition un-

der paragraph (d) of this Section.

Chapter 38, Section 1005-7-1:

(a) A sentence of periodic imprisonment is a sentence

of imprisonment during which the committed

selena ir pena af A=

night or for periods of days, or both. Unless the court

0 otherwise, the icular times of release shall be

determined by the t of Corrections, the

sheriff, or the Superintendent of the house of corrections,

who is administering the program.

8 „ „*

(e) The court may impose a sentence of periodie im-

prisonment for a felony or misdemeanor on a person who

is 17 years of age or older. The court shall not impose a

sentence of periodic imprisonment if it imposes a

sentence of imprisonment upon the defendant.

(d) A sentence of periodic imprisonment be for a

basis of the actual days spent in confinement.

Chapter 38, Section 1005-8-1:

(a) A sentence of imprisonment for a felony shall be

F

an

Section.

—4—

(b) The maximum term shall be set according to the

following limitations:

(4) for a Class 3 felony, the maximum term shall

be any term in excess of one year not exceeding 10

years.

Chapter 38, Section 1008-2-4:

Prosecution for any violation of law occurring prior to

the effective date of this Act is not affected or abated

this Act. If the offense being prosecuted has not reached

the sentencing stage or a final adjudication, then for

KIU if

they are less than under the prior law upon whi

prosecution was commenced.

Chapter 131, Section 4:

is statute is presently located in Chapter 1,

1103 of the 1981 Illinois Revised Statutes, without

change.)

No new law shall be construed to repeal a former law,

whether such former law is expressly repealed or not, as

to any offense committed against the former law, or as to

any act done, any penalty, forfeiture o + ee in-

curred, or any right accrued, or claim ing under the

former law, or in any way whatever to affect any such

offense or act so committed or done, or any ty,

forfeiture or punishment so incurred, or any

crued, or claim arising III now law tebe alieet,

save only that the roceedings thereafter shall conform,

so far as practicable, to the laws in force at the time of

such ing. If any penalty, forfeiture or punishment

be m by any provisions of a new law, such provi-

to any j p

effect. 1e

express words or by implication, whether the repeal is in

the act making any new provision upon the same subject

or in any other act.

3

STATEMENT OF THE CASE

On August 26, 27 and 30, 1971, Benedetto J. Massarella

gave false testimony under oath in judicial proceedings

which he himself commenced against the Illinois Depart-

ment of Revenue and some of its employees in the Circuit

Court of Cook County, Illinois, for the purpose of en-

joining the defendants from continuing a criminal tax in-

vestigation of Massarella and his solely owned corpora-

tion, Bee Jay’s Truck Stop, Inc.

On the dates when he gave false testimony, perjury un-

der Illinois law was an offense that could be punished

by a fine and, or, a penitentiary term of from one to 14

years, or by incarceration in a penal institution other

than a penitentiary for up to one year. The alternative

feature of punishment other than incarceration in a peni-

tentiary resulted in the offense being classified a mis-

demeanor under III inois law.

In January, 1973, Illinois adopted a Unified Code of

Corrections (the “Code”) in which perjury was classified a

felony. This occurred 16 months after Massarella gave

the false testimony. The statute of limitations, both before

and after enactment of the Code, was 18 months for mis-

demeanors and 36 months for felonies.

Massarella was indicted along with several others for

conspiracy, perjury, and theft of $425,407 of state motor

fuel taxes on June 8, 1973, 22 months after his commis-

sion of perjury. He moved to dismiss the perjury charges,

alleging that the indictment was returned beyond the 18-

2 — of ahr not only 1 ee

as

ineareoration but as to the right to purus certain leensed oc-

cupations and to vote.

*

month statute of limitations. The trial judge held that the

statute had been extended to 36 months before it had run

as to Massarella’s criminal acts.

Massarella was tried by a jury in 1974, and verdicts of

guilty were returned against him for conspiracy, perjury

and theft of $425,407 in state motor fuel tax funds. II-

linois law requires the merger of substantive and in-

choate offenses at sentencing, and therefore the con-

epiracy conviction was vacated.

When Massarella appeared for sentencing on January

8, 1975, the trial judge, in accordance with the provisions

of the Code with respect to superseding mitigating

penalties, offered him the option of being sentenced un-

der the statutes in effect at the time his criminal acts

were committed or under the Code. The Code attempted

to unify and organize various statutes relating to crimes

and punishments. It provided for certain lesser alter-

native forms of punishments such as “conditional dis-

charge” and “periodic imprisonment” not found in the

prior statutes. It reduced the maximum penitentiary

term for the offense of perjury from 14 years to 10 years

but increased the possible fine from $1,000 to $10,000.

After conferring with his attorney, Massarella elected to

be sentenced under the provisions of the Code.

The trial judge sentenced Massarella on the cheft

charge to five years’ probation conditioned on his serving

two of those years in periodic imprisonment, imposed a

$10,000 fine, and ordered him to pay restitution to the

State in the amount of $425,407. As to the perjury con-

viction, the judge sentenced Massarella to a penitentiary

term of from one to three years and imposed a fine of

$10,000. The judge also ordered that the term of periodic

imprisonment for theft run concurrently with the peni-

tentiary sentence for perjury and that any time served

under periodic imprisonment be credited against the

penitentiary term.

—~o—

Massarella appealed the convictions and sentences to

the Illinois Appellate Court. That court first reversed,

holding that the Illinois Attorney General, who had

prosecuted the case, did not have statutory power to

prosecute such offenses under Illinois law. People v.

Massarella, 53 Ill.App.38d 774, 368 N.E.2d 507 (Ist

Dist. 1977). The Illinois Supreme Court subsequently re-

versed and remanded for consideration of other issues

which had not been decided by the appellate court. 72 III.

2d 531, 382 N.E.2d 262 (1978). On remand, the appellate

court affirmed all convictions in a 26 page opinion. 80 III.

App.3d 552, 400 N.E.2d 436 (Ist Dist. 1979). (Appen-

dix C). The Illinois Supreme Court denied Massarella’s

petition for leave to appeal. 81 III. 2d 586 (1980). This

Court denied a petition for writ of certiorari. 449 U.S.

1077 (1981).

Massarella then filed a petition for writ of habeas cor-

pus in the United States District Court for the Northern

District of Illinois. The district court judge denied the

petition. 510 F. Supp. 1082 (N. D. III. 1981) (Appendix B).

The United States Court of Appeals for the Seventh

Circuit, on July 14, 1982, reversed and remanded, hold-

ing that although there was no er post facto violation

resulting from the extension of the statute of limitations,

the reclassification of perjury under the Code meant that

Massarella stood convicted of a felony for which he was

subject to adverse collateral consequences. The court of

appeals ordered the district court to issue the writ and to

order the state to resentence Massarella under “the law

in place when [the] crime occurred.” ...... F.2d ...... (7th

Cir. 1982) (Appendix A at 5a). However, 'linois law still

gives Massarella the option to elect under which statute

he wishes to be sentenced. Thus an apparent conflict exists

between state law and the court of appeals’ mandate.

Both the petitioner and respondent filed petitions for

rehearing in banc, which were denied on September 23,

1982. (Appendix H)

—10—

REASONS FOR GRANTING PETITION

FOR WRIT OF CERTIORARI

THE OPINION BELOW IS IN CONFLICT WITH THIS

COURT'S HOLDINGS IN FRANCIS v. HENDERSON,

WAINWRIGHT v. SYKES AND ENGLE v. ISAAC.

When he denied the petition for writ of habeas corpus,

the district court judge held that Massarella, having been

afforded the option of being sentenced under either of two

statutes, had made a reasoned election to be sentenced

under the superseding one and therefore did not suffer

a deprivation of his constitutional! rights as regards the ex

post facto clause. (Appendix B at 1b-3b). The [Illinois

Appellate Court had also so held. (Appendix C at 5c).

Illinois statutes give a criminal defendant the right to

make an election of laws whenever an applicable statute

has been changed after commission of an offense but

before sentencing. III. Rev. Stat., 1973, Ch. 131, §4; see

also, III. Rev. Stat., 1973, Ch. 38, §1008-2-4. Thus Mas-

sarella’s voluntary election to be sentenced under the

Code was one that he shared with all other defendants

similarly situated.

This election on the part of Massarella should have

foreclosed federal habeas corpus review in this case.

When he elected to be sentenced under the Code, he

voluntarily rejected his right to be sentenced under the

repealed statute. Francis v. Henderson, 425 U.S. 538

(1976), Wainwright v. Sykes, 434 U.S. 880 (1977) and

Engle v. Isaac, ...... US. ......, 102 S.Ct. 1558 (1982) were,

and are, pertinent since even the court below recog-

nized that Massarella “rationally chose to be sentenced

under the later law, which set a higher fine but a lower

maximum sentence for perjury,” (Appendix A at 3a), and

a

the district court judge found that Massarella “must have

considered himself benefited by the sentencing regimen

of the new act or presumably he would have chosen the

old one.” (Appendix B at 3b).

Massarella’s voluntary selection of optionai sentencing

statutes should have been held to foreclose habeas corpus

relief.

II.

THE OPINION BELOW DEFIES CONTROLLING

STATE DECISIONAL LAW AS TO THE CONSTRUC-

TION OF ILLINOIS STATUTES.

The court below found that Massarella’s sentence

carried with it the consequences of a felony conviction un-

der Illinois law. Since the State of Illinois has never at-

tempted to assert any of the collateral consequences inci-

dent to felony convictions against Massarella, both he and

the court of appeals only speculate that such a result will

follow from the state criminal proceedings. This is patent-

ly erroneous. The court below ignored an Illinois stat-

ute which precludes retroactive application of enhanced

classifications of crimes. Former III. Rev. Stat., 1973, Ch.

131, §4 (presently III. Rev. Stat., 1981, Ch. 1, 51108) pro-

hibits any retroactive substantive legislative changes ex-

cept provisions mitigating penalties, forfeitures or punish-

ment when consented % hy the defendant. According to the

judgment order (See Appendix F), Massarella was con-

victed only as charged in the indictment, which was for

violating the 1970 statute classifying the offense of per-

jury as a misdemeanor. (Appendix G)

In another earlier opinion, the court below held that

the last mentioned statute precludes ex post facto applica-

tion of a criminal law and that it only allows for retroac-

tive application of mitigating effects, if consented to by

~~. we

the defendant. James v. Twomey, 466 F.2d 718, 721 (th

Cir. 1972). The opinion below is inconsistent with that

opinion.

Twomey correctly perceived Illinois law in the way that

the Illinois courts have interpreted it: People v. Collins,

37 Ill.App.38d 202, 345 N.E.2d 730, 732-3 (ist Dist.

1976) (holding that a misdemeanor cannot be retroactive-

ly made a felony); People v. Liebling, 36 Ill.App.3d 1073,

344 N.E.2d 520, 523 (Ist Dist. 1976) (holding that there

can be no ex post facto application of a new h. to

the detriment of a defendant); and Vendo Company v.

Stoner, 58 I11.2d 289, 310, 321 N.E.2d 1, 12, cert. denied

420 U.S. 975 (1974) (holding that no statute is retroactive

unless expressly made so). The Code was not expressly

made retroactive except as to mitigating punishments

(Ill. Rev. Stat., 1973, Ch. 38, §1008-2-4), and by virtue

of Ch. 131, §4, such retroactive application was further

conditioned on defendant’s consent. The court below

therefore erred in failing to defer to controlling Illinois

decisional and statutory law. Cf. Shad v. Borough of

Mount Ephraim, ....... 6 , 101 S. Ct. 2176, 2181

(1981).

This Court in Engle v. Isaac discussed the costs im-

posed on our federal system by improvident grants of

writs of habeas corpus. Massarella’s election to be

sentenced under one statute during state criminal pro-

ceedings and his subsequent complaint about alleged

incidental consequences of that election smack of

gamesmanship. Consider his strategy: 1) In his Petition

for Rehearing to the Court of Appeals he states:

Secondly, defendant was made to elect in the trial

court w to be sentenced under the new law or

the old law. . 2295-97, 2302). He chose the new

law. (See Sl. Op. p. fn. 3). The Court’s decision, re-

quiring that he be resentenced under the old law,

.

cannot be carried out without doing grave violence

to defendant’s most basic constitutional rights.

(Appendix D at 7d-8d). As part of a Motion for Stay of

Mandate Pending Application for Writ of Certiorari To

The Supreme Court, Massarella’s appellate counsel in an

affidavit states: [II resentence time comes at the State

level . . . [a]ppellant would argue that no sentence at all

could be imposed.” (Appendix E at 2e-3e).

These statements foretell that Massarella will, when

the case is returned for rezentencing, insist that state law

gives him the right to elect sentencing statutes and that

federal constitutional law restricts that right—at least as

interpreted by the court of appeals in this case—and

therefore the State of Illinois cannot sentence him under

any circumstances. The opinion below should be reversed

to prevent this type of abuse of the writ of habeas corpus.

III.

THE COURT SHOULD RECONSIDER BROWN v.

ALLEN AND FURTHER DEFINE THE SCOPE OF

COLLATERAL REVIEW UNDER 28 U.S.C. §2254.

Massarella had a full and complete review of the er

post facto question in the state courts. The adequacy and

fairness of the state process are unassailable; the only

meaningful issue brought over to the federal courts was

the correctness of the judicial conclusions as to the

application of the ex post facto clause to the cir-

cumstances in this case.

The court of appeals disagreed with both the state

courts and the district court judge as to whether there

was, in fact, an ex post facto violation. Regardless of the

correctness of the opposing conclusions, Massarella was

afforded an adequate and fair review of his constitutional

claims prior to filing his habeas corpus petition. The

0

issue upon which the court of appeals ordered the writ

did not involve the fact-finding process of determining

guilt or innocence.

This Court should reconsider the implications of its opin-

ion in Brown v. Allen, 344 U.S. 443 (1953), and in view of

the extent to which courts have gone in interpreting that

opinion, should formulate further guidelines, consistent

with the objectives of 28 U.S.C. §2254, which will avoid

excessive collateral review of state judicial proceedings.

IV

THE COURT OF APPEALS ERRED IN iTS CON-

STRUCTION OF THE EX POST FACTO CLAUSE.

The Illinois Uniform Code of Corrections states that

“(p)rosecution for any violation of law occurring prior to

the effective date of this Act is not affected or abated by

this Act.” Ill. Rev. Stat., 1973, Ch. 38, §1005-8-1. Also,

Chapter 131, §4 (presently Ch. 1, §1103) stated that:

If , forfeiture or punishment be miti-

29498. of ‘none law, such pro-

vision , the consent of the ‘

be lied to judgment p after the

new law takes

The court below in James v. Twomey, supra, at 721,

said as to the last mentioned statute: “Almost by defini-

tion, this prevents [a new criminal statute] from being a

constitutionally proscribed ex post facto law.” Thus, the

only basis for the court of appeals’ decision was that an

“ex post facto violation” occurred during the course of the

judicial proceedings and not by reason of the legislative

enactment of the Code.

But, judicial action does not implicate the ex post facto

clause. As this Cc art stated more than half a century ago:

[The constitutional : “No state shall.

r appli ny ae

Frank v. un 309, 344 (1944). See also

Marks v. United States, 430 U.S. 188, 191-92 (1977). The

subject to because he decided which of the two penalty

provisions he would be sentenced under. he was

the option either then or now would in

THE COURT OF APPEALS ERRONEOUSLY

SHIFTED THE BURDEN OF PROOF TO RESPOND-

cert. denied 489 U.S. 983 (2nd Cir. 1978); Brazton v.

—

Without requiring any other showing from Massarella

that felony convietion consequences attended the defen-

dant's election, the court of appeals ruled that it was

the state’s burden to prove the negative of the petitioner s

claims, that is, that Massarella would not suffer adverse

collateral consequences by virtue of the reclassification

aspect of the new statute. (Appendix A at 4a-5a). The

court of appeals’ holding erroneously shifted the burden

of proof to the respondents, while at the same time re-

jeet ing ir arguments as to the safeguards afforded by

Ill. Rev. . t., 1973, Ch. 131, §4, and Ch. 38, §1008-2-4.

VI.

THE COURT OF AP?EALS ERRED WHEN IT

habeas corpus in a six-page written order. (Appendix

B). In pertinent part, he found that the defendant, by

voluntarily electing to be sentenced under the new

statute, relinquished any ex post facto claims. Id. at 3b.

rr cade os

Twomey, 466 F. 2d 718, 720-21 (7th Cir. 1972); c, Engle v.

Isaac. . U.S. , 102 S.Ct. 1558, 1570-72 (1982).

*

VII

THE COURT OF APPEALS’ OPINION IS UNCLEAR

AND AMBIGUOUS AND INVITES SUBSTANTIAL AD-

DITIONAL APPELLATE LITIGATION.

The court of appeals’ opinion, considered in its entirety,

holds that the defendant’s conviction for perjury was

proper, but orders the case to be remanded for resentenc-

ing because of what it believes to be the possibility of ex

post facto felony consequences. The court ordered the case

remanded to the state trial court “to permit the state

court to apply, if possible, the law in place when his

crime occurred.” Appendix A at 5a.

Yet in the course of its opinion, the court states that:

We hold, therefore, that Massarella’s conviction of

the retroactively reclassified offense of perjury

violated the ex post facto clause.

(Emphasis added) Appendix A at 5a. In addition, the

court of appeals’ order to the state court to apply the law

in place when the crime occurred creates an apparent

conflict with state law, which requires that any miti-

gating provisions of superseding statutes be made avail-

able to defendants. Thus, no matter what sentence is im-

posed by the state court, the ambiguity of the court of

appeals’ opinion will cause years of additional state and

federal appellate litigation in addition to the eight years

that have already passed and creates unnecessary friction

in federal-state relations.

This Court recently warned that the writ of habeas cor-

pus entails significant costs to the state and federal

judicial systems, and that “the writ undermines the usual

principles of finality of litigation, . . . degrades the

prominence of the trial itself, . . . [and] frustrateſs] both

the states’ sovereign power to punish offenders, and their

—18—

good faith attempts to honor constitutional rights.” Engle

v. Isa, U.S. , 102 S.Ct. at 1570-72.

The defendant in this case was convicted eight years

ago and, as matters now stand, the only thing that can be

said is that the case will require even further examina-

tion to decide whether the Illinois courts can withhold the

right of election from this defendant as they have been

ordered to do by the court below. This result is not sensi-

ble.

The case does not involve “manifest injustice,” affecting

guilt or innocence. Massarella was fairly tried in the

state court and allowed to choose which of the two sentenc-

ing statutes he wanted to be sentenced under.

—19—

CONCLUSION

For the foregoing reasons, the State of Illinois respect-

fully urges this Court to grant this petition for writ of

certiorari and, upon review, to reverse the court of

appeals’ decision ordering the issuance of a writ of

habeas corpus.

Respectfully submitted,

Tyrone C. Fanner

Attorney General, State of Illinois

Micuast B. Wermsrem

401 North Michigan Avenue, Suite 3400

Chicago, Illinois 60611

(312) 222-0800

Of Counsel

November 12, 1982