John Szabo v. Jonathan R. Walls, Warden, Menard Correctional Center

Cir.1997). (7th For 768, 772-73 106 F.3d SZABO, Petitioner-Appellee, John have the force procedure rules of

federal 2072(b). id.; § 28 U.S.C. of statutes. See remains for discussion. One issue WALLS, Warden, Menard R. Jonathan far so have treated

Although we Center,* Respondent- Correctional attorneys’ concerned only issues as if the Appellant. fees, jury that the ver argues also Lenell No. 02-1800. judge set aside because dict should be open signaled Appeals, by his comments United States Court casé. There for Lenell’s jury thé his scorn Seventh Circuit. such comments drily

were couple Aug. 2002. Argued "however, more, outside (riiany sidebars 10, 2002. Decided Dec. hearing), and we do not think jury’s changed the outcome. they could have Rehearing En Banc Rehearing and judges should be But also think we Jan. Denied making about comments very cautious of a jury quality about the lawyers. signals For if he

party’s case or opinion as to how the case jury'

to the decided, he undermines the

should' be Kibort,

jury’s authority. Collins (7th Cir.1998); nationwide

F.3d Co., Ins. Co. v. Ford Motor

Mutual Fire (6th Cir.1999); see

174 F.3d Decker, Inc., & 977 F.2d

also Ross v. Black Cir.1992). (7th

1178, 1187 just reported

From what we have about during the trial and judge’s statements state-

from the tone of number other course of this

ments that he made

litigation, we think best the further ordering con-

proceedings that we are be judge, in accor-

ducted before a different R. 36.

dance with 7th Cir.

AFFIRMED IN REVERSED IN PART, PART,

and Remanded.

* respondent States District Courts. petition named as the Di- Cases in the United Department of the Illinois of Correc- light rector caption further modified in has been caption We have amended the to iden- tions. 12(b): seeking “Actions habe- of Circuit Rule tify proper respondent: the warden of the designated corpus be 'Petitioner v. as. shall prison Hogan Szabo is where confined. States ex rel. Peti- Custodian’ and not 'United Hanks, (7th Cir.1996); 97 F.3d tioner v. Custodian.'" 2(a) Governing Section 2254 Rules issued a § 2254 the district court

28 U.S.C. concluding that corpus after writ of habeas sentencing lawyer at his second by fail ineffective assistance had rendered witnesses to prison guards call ing to good conduct jurors of Szabo’s inform (when con he was prison between 1979 (when victed) resentencing occurred). Snyder, 2002 WL See Szabo 460792, Dist. LEXIS (N.D.Ill. 21, 2002), relying Hall v. on Mar. (7th 742, 749 Cir. Washington, 106 F.3d Thieret, 351, 1991), 867 F.2d and Kubat v. (Ar- Freedman, Gary Prichard Alan M. Cir.1989). (7th only argu The state’s Justice, for Chica- Midwest Center gued), on is that the ineffective- ment IL, Petitioner-Appellee. go, forfeited in the course assistance claim was (Argued), Office Michael M. Glick initial collateral attack —as the of Szabo’s IL, General, Chicago, for Re- Attorney of Illinois held in Szabo spondent-Appellant. implication the state con By negative IV. preserved, that the claim has been cedes if EASTERBROOK, RIPPLE, and Before sentencing a third then Szabo is entitled to MANION, Judges. Circuit and ask hearing. We shall do likewise open the claim remains only whether EASTERBROOK, Judge. Circuit decision. marijuana sell to two agreeing After raised, did not customers, In Szabo III Szabo but appeared John Szabo claim. exchange develop, with a an ineffective-assistance appointed for the site relief, henchman, pro knife, petition for collateral filed and a but no His gun, se, counsel’s challenged adequacy that marijuana. He stole the $700 hearing. sentencing in the second brought and murdered both work customers had judge appointed lawyer they risk that would The state of them to avert him, lawyer but neither identify represent has been sentenced to him. Szabo pro se to the claims made planned killings. The first added death for these produced nor affidavits back capital was reversed Su sentence up. the record did not re- of errors them Because preme Court of Szabo, testimony have guards 94 veal what would hearing, see given, they been called at the resen- Ill.Dec. 447 N.E.2d 193 Ill.2d . (Szabo (1983) I), tencing, judge af concluded but the second was Szabo, any constitutional vio- People v. 113 Ill.2d had not established firmed. See (1986) appeal in III his new 497 N.E.2d 995 lation. On 100 Ill.Dec. (Szabo II). conclusion; in- lawyer did not contest this Two efforts to obtain collater that, unavail he contended as a matter al relief in the state courts were stead Szabo, law, an- should be entitled to People v. 144 Ill.2d ing. See (1991) N.E.2d 173 other with better 163 Ill.Dec.

(Szabo III); Szabo, supplement pro se People v. Ill.2d counsel who would (1998) the essential affida- pleadings N.E.2d 1096 and secure (Szabo IV). guards. from the proceeding But in this vits rejected position.** of Illinois Szabo Yet the argued state had not that a prison- attack, filed a second er must then state collateral make an ineffective-assistance every claim in appeal. which was dismissed as Neither barred the Attor- ney Illinois) (representing General adverse outcome of the first. nor the highest

state’s court faulted Szabo for om- itting this contention Szabo II: it re- prisoner Under Illinois law a quired development by evidence not then entitled to one collateral-attack unless in the record. anyone Nor would proceeding is so defective because of faulted Szabo if he had developed the judicial shortcomings justice requires claim in Szabo III and then sought See, opportunity. e.g., second People v. present a different theory a successive Flores, 264, 273-74, 153 Ill.2d collateral attack. The state’s contention— 1, (1992). 1078, 606 N.E.2d 1083 Deficien holding of Szabo IV—is that the cies neglects attributable to errors and claim was forfeited because it was not petitioner’s lawyer do not justify a developed III, in Szabo when it should opportunity. 276, second Id. at 153 Ill.2d have been. The judge district did not 606 N.E.2d at 1084. In Szabo IV the come grips to with that contention. A Supreme Court of Illinois held that Szabo’s state is entitled treat as forfeited a develop failure to an ineffective-assistance proposition that presented was in the claim Szabo III was the fault of his court, right in the right way, and at the lawyer; judicial system state’s had of right time—as state rules define those opportunity, an fered which counsel had courts, ways, and times. Wainwright held, not used. Consequently, Szabo TV Sykes, 72, v. 433 2497, U.S. 97 S.Ct. the state’s forfeiture rules blocked Szabo’s (1977). L.Ed.2d 594 'Failure to comply effort to make a better ineffective-assis procedural with the state’s rules furnishes claim in proceeding. tance a new independent an and adequate ground of decision that blocks federal collateral Relying on the holding of Szabo Reed, 255, review. See v. Harris 489 U.S. IV, argued the state that Szabo’s sixth- 1038, (1989). 109 S.Ct. 103 L.Ed.2d 308 amendment claim was during forfeited No one could doubt that this for collateral attack that culminated in Szabo feiture independent decision is of federal All judge III the district in response said law, as that term is used collateral- is: jurisprudence. review See Stewart v. Petitioner’s principal ground for relief Smith, 536 U.S. 122 SlCt.

... properly is before this Court. The (2002); Oklahoma, L.Ed.2d 762 Ake v. fact that some of the claims were not U.S. 105 S.Ct. 84 L.Ed.2d 53 raised in all four appeals to the Illinois question Szabo does whether the not mean that ruling does adequate to block federal review. procedurally claims are defaulted. adequate, To be procedural state’s rule ** 651(c), trial, Szabo relied on Ill. R. perti- S.Ct. and has made amendments to the portion nent of which provides: petitions "The record pro necessary filed se that are for an appeal [on on a collateral shall adequate presentation attack] con- petitioner’s conten- showing, tain a by which be made tions.” III complied held petitioner's attorney, certificate of requirement by stating this that he had attorney petitioner has consulted with filings either examined Szabo's pro se and saw no person them, mail or in augment ascertain his conten- need to and that the lack of a deprivation tions of right, of constitutional formal certificate this effect was harmless has examined the proceedings record at the error. court. supreme by the state’s Rule regu in advance proclaimed must be all, Kemna, that court concluded After See, e.g., Lee larly followed. functionally with complied 151 L.Ed.2d 362, 122 S.Ct. (the lack of noncompliance formal and that Mississippi 486 (2002); Johnson certificate) does for- harmless. Nor 575 a was 100 L.Ed.2d U.S. failure appellate counsel’s Cooke, lie feiture 106 F.3d (1988); Liegakos on (7th claim a sixth-amendment pursue denied, F.3d 144 Cir. rehearing late, too by then was III —for 1997). law on 1964 the since Ever the road was avenue and the sensible pris that a specified has in Illinois books hearing at the taken, a new request only one oner is entitled had oc- level, the forfeiture where The deci trial ILCS proceeding. 5/122-3. counsel’s problem The root can curred. enforcing norm IV sion in Szabo review initial collateral failure on the and thus retroactive condemned not be claim ad- develop the sixth-amendment ir “inadequate” as is it inadequate. Nor call the ducing evidence failure unprin freakish, invoked regular, the second during the stand guards to against to discriminate way in order cipled impaired Szabo’s sentencing theory relief. the federal lenity. depended That obtaining chance of III, contended Szabo Szabo On if have said guards would on what the 651(c) his required Sup.Ct. R. that Ill. silent, Sza- the record was called—and as more than he lawyer to do post-conviction develop Failure to claim was sunk. bo’s develop the ineffective-assis had done invari- essential evidence the record with Court of Supreme contention. tance 651(c) played Rule forfeiture. ably means a mat proposition as rejected that Illinois III appeal in be- leading a role on Szabo thoughts, had second ter of state law but (asserted) lawyer’s cause Szabo used Johnson, Ill.2d with his duties noncompliance held N.E.2d 304 him to permit an that would rule as excuse do more counsel must post-conviction words, con- In other Szabo anew. start post- than Szabo’s satisfy Rule furnished state had not tended that Szabo IV had done. conviction quality a give not Szabo does held that Johnson Rule (through promised had the state to decide wheth If we had second chance. 651(c)) He asked supply. approach that that the er Johnson shows to use state Szabo III interpretation III Szabo took a a give him new law “regularly followed” we were vital procure the lawyer who would better Johnson decide whether would need to missing from the record. then evidence law, in whether change or was a not entitled decided that he was The state in the was an aberration stead Szabo III legal services he to that relief—that (That question law. application of settled standards of the state’s received met Illinois four Supreme Court of divided the quality. TV, majority with the three in had altered that Johnson taking the view wrong that this is suppose Let us way apply that did retro in a not the law (as justices concluded dissenting the three Szabo.) actively to TV) enjoy did not that Szabo legal services that high standard necessary enter this But it is not provide on not Illinois seeks to arena, does the forfeiture Still, mean is all that would review. interpretation stem from a contestable did not receive effective assis- as a matter of federal law because Szabo posf-eonviction tance it applied counsel—and II to him a doctrine that did not a matter poor settled as of federal firmly law become established in Illinois until post-conviction lawyering does not relieve after the second sentencing. The state prisoner of what is otherwise forfeiture defends Court’s forfeiture de- See, e.g., under state law. Coleman v. cision in Szabo II and adds that in its view Thompson, 722, 752-57, 501 U.S. question is not properly before us in (1991); Pennsylva- L.Ed.2d place, first because Szabo did not seek 551, 557, Finley, nia v. 107 S.Ct. or obtain a certificate of appealability au- 95 L.Ed.2d 539 also thorizing present him to for ap- issue 2254(i) (“The § U.S.C. ineffectiveness or pellate decision. incompetence during of counsel Federal or Since 1996 both state and federal State collateral proceed- prisoners have needed of ap certificates ings not a ground shall be for relief in a pealability to obtain appellate review of 2254.”). proceeding arising under section adverse decisions in collateral attacks. say, That is to ineffective assistance of § U.S.C. 2253. But the statute deals post-conviction counsel does supply not with appeals by prisoners; does cause-and-prejudice “cause” for the formu- mention arguments by prisoners appel la under which federal courts sometimes lees in support they offered of relief entertain claims that were not properly 2253(c)(1) obtained. begins: Section “Un presented to the state courts. Szabo less a justice judge circuit issues therefore cannot show a sufficient “cause” appealability, certificate of appeal may forfeiture. Because the last state not be taken to appeals the court of court to consider the unambiguously issue ”) added). (emphasis Szabo has not from— doctrine, invoked a forfeiture the lack of taken an appeal, nor did he need do so. at the trial in evidence Szabo III level appellee An judgment defend his on supplies independent and adequate any ground properly preserved in the dis ground of decision. Szabo’s ineffec- trict court. Compare Massachusetts Mu claim preserved

tive-assistance was not in tual Insurance Co. v. Ludwig, 426 Life state court and cannot furnish the basis for 479, 2158, U.S. 96 S.Ct. 48 784 L.Ed.2d a writ corpus. of habeas (1976), with El Paso Natural Gas v.Co. Neztsosie, offers an argu 473,

Szabo 479-81, additional 526 U.S. 119 S.Ct. support ment judgment: 1430, (1999). of his 143 L.Ed.2d 635 does during the second sentencing the judge relief, not ask for additional so he was violated the Confrontation Clause ad entitled to proceed exactly as he has done. mitting transcripts of five testi opinions—Ainsworth witnesses’ Two Woodford, . v mony (9th sentencing, from the first Cir.2001), even 268 F.3d 868 and Williams though Cain, (5th these witnesses Cir.1997)— were not shown to v. 125 F.3d 269 be unavailable at the time of the second assume that a appealability certificate of is sentencing. II prisoner’s needed for a cross-appeal, and Court of Illinois held that failure to make a this plausible is a understanding of post-sentencing § motion for a new (though neither court discussed , this forfeited see question). But no court has demanded contention 726, 999, 497 N.E.2d at and the district that a prisoner a ap obtain of certificate judge agreed. Szabo pealability contends to present order an extra state’s “inadequate” forfeiture decision was already issue a case the court on before 398 (1978), of 2954, 973 57 L.Ed.2d law are content we appeal,

the state’s sentencing changed has consider- capital a It serves it is written. § 2253 as apply Nonetheless, of Supreme Court function, ably. v. see Ramunno gatekeeping (7th Cir.2001), questioned has never States, 723 the United States 264 F.3d United v. New holding of Williams precise before properly is a case and once York, to do federal and we are not entitled so state and appeals —for sentence be- collateral attack. Szabo’s certificates need not obtain governments develop- App. post-1986 P. final in R. came see Fed. appealability, apply on collateral review 22(b)(3) remaining gates to could are no ments —there Teague v. under rare circumstances. guarded. be Lane, 103 109 S.Ct. 489 U.S. II, held that Sza which Cain, (1989); 533 Tyler L.Ed.2d 334 his Confrontation preserve failed bo 150 L.Ed.2d S.Ct. U.S. contention, as a is incontestable Clause 2254(d)(1) (to (2001). § See also 28 U.S.C. law; of state matter prisoner relief a state obtain collateral dispute about has resolved in a that his claim “resulted must show to do. required Szabo state law what to, contrary that was involved decision is, “adequate” is this decision Whether of, es- application clearly an unreasonable Rely however, law. question federal law, as determined tablished Federal that the Liegakos, Szabo contends ing on States”) the United require inadequate because decision added); Taylor, (emphasis Williams sentencing a new of a motion for ment 405-06, 412, S.Ct. U.S. announced until after hearing was not L.Ed.2d to make such late for his counsel was too engaged in an parties motion. sidestep Teague, Szabo Attempting to - Illinois re debate about what extended Patterson, Specht on relies mid- during the quired along these lines 1209, 18 L.Ed.2d which unnecessary to think it resolve We 1980s. ap Clause holds that the Confrontation Sza procedural point, this arcane sentencing during portions those plies on the mer legal position bo’s is defective to an proceeding that can lead increase that the Confron its. He contends Specht punishment. the maximum lawful five transcripts of the Clause the tation Jersey, Apprendi v. New precursor is a sentencing first testimony at the witnesses’ 2348, 466, L.Ed.2d 120 147 530 U.S. S.Ct. they if unavailable could be used were Arizona, (2000), Ring 536 U.S. and 435 sentencing hear the second at the time of 153 L.Ed.2d 556 122 S.Ct. that the does not demon ing record (2002), —and that facts increasing which hold unavailability. strate Yet punishment must be statutory maximum that the Confrontation Court has held satisfaction, jury’s beyond a proved, to the capital apply does not sentenc Clause doubt, procedures using the reasonable finding ing. applies It through per normally employed at a trial —which sentencing, even when guilt, but not to to confront opportunity includes Specht penalty. that sentence is the death accusers and one’s cross-examine York, U.S. 69 v. New 337 Williams Szabo, however, Unfortunately flesh. (1949). 1079, L.Ed. S.Ct. Apprendi capital sen apply in order to had to overrule Walton tencing, Ring first Georgia, 428 U.S. Gregg Since Arizona, 110 S.Ct. and v. 49 L.Ed.2d Teague, it Given Ohio, S.Ct. 111 L.Ed.2d Lockett v. U.S. Ring is and not governs Walton Sza- a rendered decision bo’s claims on collateral attack. See Cur- strongly supporting the perspec- state’s States, (7th tis v. United 294 F.3d 841 tive. Williams v. New York shows that in Cir.2002) (Apprendi apply does not retro- 1985 Illinois proceed was entitled to as it attack). actively on Specht collateral itself did.

just job. won’t do the It distinguished judgment reversed, is and the case Williams v. ground New York on the is entry remanded for of an denying order capital procedure Colorado’s sentencing for writ of habeas 'cor- (the in Specht) one issue can boost the pus. maximum punishment. lawful Illinois has such a proceeding too—but this is not the RIPPLE, Circuit Judge, dissenting. one at which the transcripts were used The State of proposes Illinois put to Mr. against Szabo. despite that, Szabo to death the fact in its capital handles cases three courts, own state he did not receive the phases. guilt phase First is the where the quality of legal representation required by jury occurred, decides whether a crime state law. Nor was his claim of ineffective next capital-eligibility is the phase where assistance of resentencing counsel ad- jury decides whether at least ag- one with precision dressed care Illi- gravating applies, courts., circumstance and finally nois Despite reality, stark we this comes the balancing phase, jury where the required are to limit inquiry our to the weighs aggravating mitigating and circum- complex question and difficult of whether stances to Specht select sentence. dealt the federal courts can afford him re- a proceeding of the second kind. lief. authority limited; Our we Szabo waived opportunity to have such inquire only as right, to whether a federal proceeding stipulated that he was properly preserved raised and in earlier (The eligible for death sentence. mul- proceedings, was so unreasonably ad- tiple-murder aggravating circumstance judicated in the state justify courts as to took, was all it and there point no our intervention. denying given the guilt outcome of the The State takes the view that we cannot

phase.) Only third, during the balancing reach the merits of Mr. Szabo’s ineffective phase of procedure the Illinois was the resentencing assistance of counsel claim. used, testimony transcribed phase view, In its procedurally Mr. Szabo has is outside the Specht ambit of because the My agree; defaulted claim. colleagues stipulation pretermitted the second they believe procedurally phase already had lifted the maximum defaulted his Sixth Amendment claim punishment to a sentence of death. he when failed to submit in sup- affidavits

We need not attempt predict how the of this port post-convic- claim his first Supreme Court’s jurisprudence will petition. view, devel- tion In their this forfeiture op; Apprendi and Ring may portend more analytically separate is from the changes may and eventually applied to be interpreta- Court Illinois’ “contestable” balancing phase capital sentencing, tion of Rule in Szabo III Mr. as Szabo they contends that should. But counsel “had complied functionally Szabo’s they applied (indeed, 651(c)” were so not did not though with Rule even that counsel exist) 1985, Specht, and pre- which did not attach necessary did affidavits to date sentencing, Szabo’s support does not conform require- state-law position. 1990, his Walton, As late as view, Op. my ments. See at 396. In Mr.

400 1981, 575 587, 100 L.Ed.2d 578, 108 S.Ct. affi- required to submit failure

Szabo’s review the first davits in of that treatment court’s the state and note, ques- is no there my colleagues As that determination from on

failure of the the decision tion that purposes for easily be unbundled cannot so in Szabo III —that of Illinois has been a there whether determining require- complied with review that bars federal default procedural independent of ments of —was resen- claim that federal of Mr. Szabo’s of ineffec- claim constitutional constitu- render failed tencing resentencing counsel. tive assistance counsel. assistance tionally effective determina- The state’s Op. at 395-96. forth I shall set following paragraphs, default, however, must procedural tion of my taking this reasons fully the more case law consis- Our adequate. also be view. that, in order to be required tently has ap- rule must be procedural

adequate, A. way.” principled and in a “consistent plied 1379, McCaughtry, 910 F.2d v. Prihoda by begin- sharpened will be Our focus Cir.1990). “con- (7th A rule is state 1383 prin- undisputed and some basic ning with “firmly it is when principled” sistent and the fundamental with begin ciples. We followed.” regularly and established question of address a that we shall not rule Gilmore, 877, F.3d 882 v. 188 Franklin petition if raised in habeas federal law Peters, v. (7th Cir.1999); 36 F.3d Rosa “ on ‘rests state the decision Johnson, (7th Cir.1994); see also 625, 633 independent is ground law 1981; James v. 587, 108 S.Ct. U.S. at 486 support adequate and question federal 341, 348-51, 104 S.Ct. Kentucky, 466 U.S. ” Kemna, 534 U.S. v. Lee judgment.’ (1984); Hamm v. 346 L.Ed.2d 80 820 151 L.Ed.2d 362, 375, 122 S.Ct. (10th Cir.2002); 1213, 1216 Saffle, 300 F.3d Thompson, 501 v. Coleman (2002) (quoting (5th Cain, 542 v. F.3d Duncan 2546, 115 L.Ed.2d 640 722, 111 S.Ct. U.S. Cir.2002). not avoid courts “State equal (1991)). force applies rule This by invoking proce- deciding federal issues proce- rule is substantive whether apply even they do dural rules 376, 122 Id. at S.Ct. nature. dural in claims.” Garcia v. to all similar handedly court did “if a state principle, Under this Cir.1999) (2d Lewis, (quoting 71, 77 188 F.3d ap- issue because federal not reach a Lovorn, 457 U.S. 255, 263, v. thorn Ha procedural a state evenhandedly, plied, (1982)); L.Ed.2d 824 federal to the rule, matter is closed Gibson, 239 F.3d Romano see also showing of cause absent habeas court denied, (10th Cir.2001), cert. Aiken, 8 F.3d Willis prejudice.” 151 L.Ed.2d 122 S.Ct. U.S. Cir.1993) Wainwright (7th (citing 556, 561 Willis, (2001); F.3d 561. We 72, 90-91, 97 S.Ct. Sykes, must whether Illinois’ determine therefore However, (1977)). the Su- 53 L.Ed.2d waiver doctrine of a state application consistently has made clear preme Court pre judgment support its adequate procedural an asserted that whether review. habeas clude federal adequate, and and independent ground is relief, a feder- to a bar federal therefore B. Mississippi, v. Henry al question. post-conviction first state In Mr. Szabo’s 13 L.Ed.2d 408 U.S. original his that both alleged petition, he Mississippi, 486 U.S. v. (1965); Johnson case, resentencing trial his counsel to those standards are counsel embodied 651(c). constitutionally However, were ineffective. re- Rule prior With even to the counsel, spect resentencing adoption to one of Mr. of.Rule the allegations that his Illinois had was counsel set forth the responsibilities mitigating post-conviction failed to evidence in introduce under the Illi- counsel testimony-of the form of nois prison Post-Conviction employees. Act in Hearing terms Mr. Szabo’s in the post- counsel first state are relevant to present our inquiry: proceeding conviction did not substantiate To the end that complaints the of a those claims sup- with affidavits or other prisoner respect with validity the port. Consequently, the state court trial his conviction might be adequately pre- dismissed those as unsubstantiated. sented, claims the contemplated statute by This decision was the Su- .reviewed the attorney appointed represent an preme Court of Szabo III. indigent petitioner would consult with appeal, argued Mr. Szabo that his him by either mail or in person, ascer- counsel in the post-convic- trial-level state tain alleged grievances, his examine the proceeding tion provided had not him with record of proceedings the at the trial representation required by state law and then amend the that had provided because he had not the court with se, been filed Pro so that it would ade- necessary support affidavits to his quately present prisoner’s constitu- claim that his resentencing had counsel tional contentions. The statute can not constitutionally been ineffective.1 Conse- perform its function attorney unless the submitted, quently, Mr. Szabo his pre-ex- appointed represent indigent peti- isting federal right competent counsel at tioner ascertains the' basis of his com- the resentencing hearing plaints, had not shapes been those complaints ap- into presented adequately propriate to the legal trial court at form and presents them the state hearing. Because the court. a determination that resentencing counsel People Slaughter, 39 Ill.2d constitutionally

was inadequate con- .would N.E.2d Applying this stitute “cause” develop failure to Garrison, standard in 43 Ill.2d at resentencing, case ar- 251 N.E.2d 200 gued that he entitled to post- was another Court of Illinois reversed circuit conviction at which counsel would dismissing petition order in which “[t]he establish, requisite support, with the record not affirmatively show” d[id] constitutional ineffectiveness of resentenc- appointed counsel had conferred with the ing counsel. prior filing post-convic defendant petition. tion Id. at 201.

Although right there is no federal counsel in proceed- adopted 1969 and re- ings, quires see Pennsylvania Finley, part: pertinent 551, 555, 107 S.Ct. L.Ed.2d [on record on a collateral (1987), Illinois require has chosen to shall contain showing, attack] which representing counsel defendants in such peti- be made certificate actions meet state-imposed certain stan- attorney, that attorney tioner’s has Today, dards. at all pertinent times consulted petitioner either mail Notably, argument his post- was not that fective assistance' of conviction been ineffective guaranteed by state law had been violated. sense, constitutional right but that his to ef- 402 Ill.Dec. Treadway, 186 People v. e.g., his contentions ascertain to person inor (re (Ill.App.Ct.1993) 890 N.E.2d 615 right, has of constitutional deprivation of pro post-conviction further for manding at proceedings of record the examined not “counsel did part because ceedings any amendments made trial, has the the claim present petition to the amend are that se filed Pro petition the to Alexander, Ill. 197 v. People adequately”); presentation adequate an necessary for 39, 554 571, 144 Ill.Dec. N.E.2d App.3d contentions. petitioner’s of (1990)(stating “[a]bsent that 1078, 1079-80 recently 651(c). the Applying R. Ill. S.Ct. record, we showing on the an affirmative Illinois of rule, the adopted coun post-conviction that presume cannot Brown, Ill.2d 287 People the to review obligation fulfilled his sel to the (1972), a case remanded N.E.2d to record,” is error holding “[i]t that trial coun post-conviction court because circuit the petition on post-conviction dismiss “examination” with the comply to sel failed here, been where, there has pleadings Brown, post-con In rule. of the portion adequate representation showing of no a letter from received had counsel

viction itself petition counsel, where the even that he believed stating the defendant constitution a substantial present to failed rely on I could grounds “other he had post- further claim,” remanding for al concerning records in the court they’re but Allen, People proceedings); conviction ” Id. hearing .... post-conviction my first 104 Ill.Dec. Ill.App.3d this assertion took at Counsel 664. (1987) peti (remanding N.E.2d complaints other petitioner’s that the mean failed to amend had when counsel tion an by way of presented already had been the from an affidavit to include and, con proceeding post-conviction initial defendant would explaining how defendant right had no petitioner sequently, the he not followed counsel’s had testified have ap On petition. current on the proceed silent). to remain advice Illinois stated: Court of peal, the cases, the other In necessity of considering the Without standard, con Illinois, the above applying petitioner concern- the with consultation counsel that post-conviction cluded the received letter contents ing the Rule requirements complied with the hear- morning of on the attorney Owens, instance, 651(c). For nothing in the there is it is clear ing, N.E.2d Ill.2d appointed counsel show record alleged his petitioner petitioner’s record of examined the obligations had not met counsel does not State The proceedings. trial 651(c) his counsel “failed Rule that there replies first dispute but support any such evidence introduce counsel did to indicate nothing claim.” Id. ineffective assistance There is no record. trial examine held otherwise: The court 1191. Rule ex- reply, for to this merit counsel consult- shows that record The showing that requires plicitly petitioner and filed ed trial record. examined has petition which post-conviction amended trial er- allegations of appellate courts numerous raised Id. at impossible trial court It would have been reversed ror. routinely have also these many of if raised petitions dismissals having examined meet without failed to counsel had errors at trial. consult, proceedings record requirements addition, See, petitioner’s claims. present to review fore, presented adequate counsel requires evidence that the record appeal on support of the appointed ineffective-assistance disclose that counsel took the evidentiary claim at the necessary steps on the adequate secure rep- post-conviction petition. For example, petitioner’s resentation of claims. Fail- Belford, questioned he peti- appointed the ure Scott counsel to file a Rule counsel, 651(c) tioner’s trial length regard- at certificate of compliance is harm- ing his to request failure less if hearing to error the record establishes that determine the defendant’s competency met requirements the to stand trial and be sentenced. Peti- rule. The record indicates that there questioned tioner’s counsel also Belford was considerable communication be- regarding his post-conviction failure to call the defen- tween counsel and de- fendant, dant’s testify mitigation, father to and that defendant received failure to introduce the defendant’s reasonable assistance of counsel as con- school records and his templated by failure intro- the rule. Transcripts in- duce evidence of the psy- clude by post-trial defendant’s comments counsel re- chological problems in mitigation garding his recent conversations with addition, sentencing. petitioner’s In defendant. Counsel called defendant’s counsel called petitioner testify, the testify father to hiring about Landau. so that he might advise the court Additionally, counsel secured investiga- mitigation witnesses who were not tive services from the court and con- explain called and to what those wit- an ducted exhaustive search for Lan- might nesses in mitigation. said dau. Looking beyond certification to Because the record demonstrates that attorney’s actions, the record clearly petitioner’s adequately supports the trial present- finding of effec- petitioner’s ed the tive ineffective-assistance assistance of appointed counsel. claim, reject petitioner’s we conten- III, 582 N.E.2d at tion that his counsel did (internal quotation marks and citations 651(c). not comply with Rule omitted). (parallel omitted). Id. at 1191 citation III, In Supreme Court of correctly stated the It standard it against background that the developed cases, in earlier Supreme but it failed Court of Illinois decided Sza- Mr. apply that standard properly to the posLconviction bo’s from his first claims above, raised. As noted relief, hearing. denying Illinois in III stated that Court stated that post-conviction counsel’s 651(c) Rule requires counsel to “ascer- failure to file the requisite affidavit under basis petitioner’s] tain[] the of [the com- was of no consequence because plaints, shape[] complaints those ap- into the record affirmatively demonstrated propriate legal form and present[ them] counsel had responsibilities: fulfilled these added). Id. (emphasis court.” Al- This court has held that Rule though the court properly recited the stan- in conjunction works with the PosNCon- plural dard applicable thus —and Hearing viction Act to ensure that coun- all of petitioner’s complaints did appointed sel —it represent indigent apply to each of standard petitioner ascertains the basis of his allegations in petition. complaints, shapes complaints those into appropriate form legal presents primary Szabo had two complaints 651(c), them to the court. Rule there- 1) his first petition: III in con failure to Szabo “had The decide attorney, Landau, his trial David body prece of formity with the established rendering effective from prevented been upon exami even clear dent becomes more due to to defendant counsel of assistance after this deviation. developments of nation Lan- led to which disciplinary problems III, in Shortly after its decision 2) disbarment”; and Mr. subsequent dau’s to the Illinois returned Supreme Court of assistance effective not receive did obligations question of counsel’s that coun- resentencing counsel Johnson, 154 Ill.2d People in Rule to employees prison called had not sel 609 N.E.2d 182 Ill.Dec. prison to adjustment testify to Mr. Szabo’s case, alleged that petitioner that however, court, did Id. at 174. life. did not ade “his counsel had fulfilled counsel analyze whether not he did not represent him because quately 651(c) with Rule responsibilities under in manner pro petition amend the se The court claims. each of these respect to peti necessary adequately present rule with the based compliance found Specifically, at 309. claims.” Id. tioner’s respect to the actions with on counsel’s failed to interview “post-conviction counsel claims: first of these in the any post- the witnesses named was con- there The record indicates marshaled no evidence petition, conviction post- between communication siderable contentions, petitioner’s support of the defendant, and counsel conviction other records to attached no affidavits or reasonable as- received that defendant explain petition, amended and failed by contemplated of counsel sistance supporting documentation.” absence Transcripts include comments the rule. Id. at 309-10. The regarding his re- counsel by post-trial had failed to com Illinois held with defendant. conversations cent rule; it requirements of the ply with the father to tes- called defendant’s Counsel stated: Additionally, hiring Landau. tify about case, ordinary a trial court In the investigative services counsel secured post- upon a to dismiss ruling motion an exhaus- conducted from the court and sup- not petition which is conviction Looking for Landau. be- tive search or other documents ported affidavits ac- attorney’s to the yond certification reasonably presume post-con- clearly supports tions, the record a concerted effort viction counsel made assistance finding of effective trial court support of the to obtain affidavits counsel. appointed claims, but was unable Notably, nothing is said about Id. at Here, however, presumption do so. present, failure to post-conviction counsel’s flatly by the record. is contradicted 651(c), contemplated by Rule in the fashion counsel filed an affidavit Post-conviction resentencing counsel appeal, the contention in this supplemental as a record constitutionally in a inade- performed unequivocally establishes which failing present avail- investigate manner quate made no effort respect post- to Mr. Szabo’s evidence with in the defendant’s able claims raised incarcerated. Because affidavits behavior while conviction obtain specifically III did not consider of the from witnesses pro peti- respect with in the se requirements of identified defendant’s claims, man- analysis To establish the adequately of Mr. Szabo’s its tion. to each post conviction counsel de- the standards it had ner in which comport does duties, necessary it from his viated set forth in its earlier cases. c. discuss some detail counsel’s as to actions each claim raised After the decision post-conviction petition. Flores, Illinois in 153 Ill.2d 606 N.E.2d 1078 that, is well-established general as a rule, affidavit, Post-conviction counsel’s cannot petitioner raise non-compli ance with Rule in court, a post- which was in second filed likewise petition. decision, cohviction Prior to that attempt states he made no to con- least two decisions of the Supreme parole tact two of officers in named Illinois, Court People Hollins, of post-conviction petition, and that he People Ill.2d (1972), 280 N.E.2d 710 was parole unable reach the third Slaughter, . 39 Ill.2d 235 N.E.2d v officer. failed to any Counsel take ac- suggested that, post- when tion to potential obtain the affidavits of conviction counsel performed had not witnesses whose identities were known responsibilities under Rule subse to him for years more than two during quent filings Flores, would be allowed. post-conviction which the petition was however, it very made clear under what pending. circumstances it would allow ineffective as sistance of counsel claims to be raised Id. at 311-12. post-conviction successive petition: Reviewing cases, it is apparent sum, these In where defendant files a second subsequent post-conviction Court of or Illinois has petition in which he claims sixth articulated a amendment inef- consistent rule concerning fective assistance of prior post-convic- the adequacy of post-conviction counsel’s counsel, tion is no right there 651(c). performance Those sixth amendment in post-convic- counsel that, cases have held absent a certification tion proceedings, such do claims not of compliance, there must -be evidence present upon a basis which relief be the record demonstrating that counsel has granted Further, under the Act. where performed the three distinct duties stated defendant files a subsequent or second consultation, in the rule: examination' of post-conviction petition wherein he the record and amendment of the petition. claims ineffective assistance his first If counsel performed has not these re- post-conviction proceeding, because the sponsibilities with respect to each- of the Act is confined to which errors occurred petitioner’s complaints, a remand for addi- original proceeding, only, such post-conviction tional proceedings is war- beyond are scope claims of the Act. III, however, In ranted. it failed to Where, however, a defendant files a apply this standard to each of the claims subsequent post-conviction pe- second raised Mr. It Szabo. did- not address tition which he raises meritorious application of this standard to cru- of claims ineffective assistance appel- cial matter of his counsel’s counsel, late which not could have been failure to make case that Mr. Szabo’s raised in a prior post-trial proceeding, resentencing constitutionally counsel was is defendant entitled to consideration by failing present ineffective of those claims. important evidence of Mr. Szabo’s behavior in- while Flores, 606 N.E.2d at 1086.2 carcerated. (which Consequently, after preced- Flores (Ill. See also 2002), No. Pitsonbarger, May 2002 WL 1038729 cert. III failed in Szabo of Illinois preme post- of his second filing

ed Mr. the matter. adjudicate perfor- substandard petition), conviction by state mance short, demonstrates In Szabo TV in a second relief for a basis longer no Ill’s, law apply the established failure petition. manner. Illinois in an evenhanded adjudication received never has event, the resen- that the failure post-con- of the contention second treatment Illinois’ informa- pertinent bring tencing if it should even petition, viction con- of the court attention tion to the graphical- entertained, demonstrates been inadequate representation stitutionally usual from its had deviated ly that purposes “cause” constitutes III. In Sza- in Szabo proceeding course in the federal default avoiding procedural of Illinois’ Court TV, Supreme the bo law, he had state context. Under habeas de- basis for principled find a struggle to part the of failure on have right the to that the claim demon- of review further nying atten- brought the counsel to resentencing by its earlier difficulty posed the strates through court post-conviction tion of the Mr. that justices believed decision. Three otherwise Although counsel. the of efforts a filing from precluded be should Szabo de- to other ensuring right that uniformly rely could not he because petition second Illinois of fendants, the in Johnson. intervening decision on the case in this protection case—a that denied that do not believe “We They wrote: part a vital at issue was the evidence when pres- the of the outcome Johnson controls convince the attempt of Mr. that we believe case, more than any ent life. spare his trier of fact post-conviction other governs Johnson long ago.” concluded that were matters IV, 708 N.E.2d Ill.Dec.

Szabo D. justices claiming were If 1096. rule procedural principles forth a new to the basic set now return Johnson us Let retroactively there, on collateral my A. As applicable in Part noted not set forth question identifies review, opinion quickly never can dismiss colleagues their Indeed, noted rule rule.3 of the state “adequacy” procedural new of the comfortably Mr. com- earlier, they fits within Szabo believe Johnson reme- setting incapable forth of a final forfeiture line of cases the entire mitted 651(c). jus- the inef- develop If counsel failed dy of Rule when requirements resentencing their convey, as two of assistance tices intended fective believed, first at the trial level claim appear to have colleagues Op. at 396. hearing. doctrine See post-conviction precluded Mr. Szabo in the cabining the artificially how forfeiture explain By they fail judicata, of res explain court, my colleagues need trial when applicable could be doctrine (with the consistent of the significance the issue raised squarely case) approach of of this exception Su- but the compliance lack of counsel’s IV, - of its subse- nor in -, denied, 3. Neither U.S. that, cases, (2002) Illinois (clarifying a absent has Court quent L.Ed.2d 525 ineligibility for innocence of whether claim of actual the issue really grappled with prejudice must penalty, cause rule,” the death why rep- it represents a "new Johnson entertain in order be shown rule, is. that rule new or what resents petition). post-conviction successive sis). Supreme Court of Illinois to afford 651(c)’s relief Failure to meet Rule re- post-conviction petitioners whose defi- quirements has consistently in a resulted petitions cient were attributable to their remand of the matter for additional consul- counsels’ comply failure to with Rule tation, proper review, or adequate presen- 651(c). tation of the claims. supra at Part B. Although the Illinois Supreme paid Court

I cannot share this artificial view the lip-service to requirements these nature of the state forfeiture. It is true III, it did not that, apply these law, standards to Illinois “a each Mr. petition may Szabo’s ineffective dismissed assistance be without evi- claims. dentiary Had the petition where the Illinois raises acted in conformity claims outside the law, record which are not case supported would affidavits or other documents.” have taken note of counsel’s fail- nson, Joh support 609 N.E.2d at ure to the claim of constitutionally However, infirmities ineffective assistance of counsel at resen- separated cannot be from the rest tencing with affidavits or other evidence. process. pro That Furthermore, present counsel’s failure to anticipates cess compe involvement of the claim adequately would resulted Indeed, tent counsel. the Supreme Court in a remand to require to fulfill 651(c) of Illinois stated that has “Rule obligation this under the rule. Because establishes level appoint of assistance Illinois deviated ed provide must from the ordinary and usual course of petitioners.” People Williams, 186 adjudication, application its was not even- 55, 112, Ill.2d 1152, Ill.Dec. 708 N.E.2d and, therefore, handed adequate (1999) added). (emphasis When the purposes for of barring federal habeas re- record, developed court, in the trial panel view. Because the sanctions this reveals that complied counsel has not with departure and consequent result his or responsibilities her under Rule Szabo, I respectfully dissent. 651(c), the has result been a remand for further proceedings. See

supra at Part B. Consistently, the Su

preme Court of Illinois has treated Rule

651(c) non-compliance as an exception to America, UNITED STATES general rule that unsupported petitions Plaintiff-Appellee, must be requires dismissed. Rule counsel to “make amendments to the petitions filed se pro necessary that are RUMSAVICH, Peter J. Defendant- adequate presentation petitioner’s Appellant. People contentions.” v. Kluppelberg, 327 No. 01-1672. 939, Ill.App.3d Ill.Dec. 764 N.E.2d (2002) (internal quotation marks United States Court Appeals, omitted). Furthermore, citations Circuit. Seventh requirement applies each claim raised Argued April 2002. petitioner. Johnson, 182 Ill. Dec. Decided 311-12; Dec. 609 N.E.2d at cf. Moore, 189 Ill.2d (2000) 727 N.E.2d (analyzing com

pliance with claim-by-claim on a ba-

Case Details

Case Name: John Szabo v. Jonathan R. Walls, Warden, Menard Correctional Center

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 24, 2003

Citation: 313 F.3d 392

Docket Number: 02-1800

Court Abbreviation: 7th Cir.