United States of America Ex Rel. Charles Pennington v. Frank J. Pate, Warden, Illinois State Penitentiary
409 F.2d 757
7th Cir.
1969
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*1 rel. of America ex UNITED STATES PENNINGTON, Petitioner- Charles Appellant, PATE, Warden, J. Illinois State

Frank Penitentiary, Respondent-Appellee.

No. 17018.

United States Court

Seventh Circuit.

Joseph Morency, N. Jr., Charles Pen- nington, Chicago, 111., appellant. Clark, Atty. William Gen., G. State of 111., Brannigan, Atty. Thomas E. Asst. Gen., 111., Chicago, appellee, John J. O’Toole, Atty. Gen., Asst. of counsel. CASTLE, Before Judge, Chief SWY- KERNER, Judges. GERT and Circuit SWYGERT, Judge. Circuit presents This case wheth- er the denial request petitioner, Illinois of the Pennington, Charles repre- for counsel to sent him from an adverse deci- sion of the Illinois Court was a violation of the clauses of the fourteenth amendment. This matter is before us on appeal from the district denial of court’s Pennington’s petition for a writ of ha- corpus. beas May 20, Pennington On 1964 Charles charges burglary was arrested on the burglary theft, intent to commit rape, rape. with the intent to commit A bench trial Criminal Division County, the Circuit Court of Cook nois resulted ington the conviction of Penn- burglary with intent charges. rape rape commit He sentenced to concurrent serve terms eight years charge. to fifteen on each Pennington, represented by Cook County Defender, appealed Public his con- but *2 People him of v. Penn Court denied benefit the affirmed. viction was ington, appeal on his was taken under the Ill.App.2d N.E.2d 879 which generally appellate procedure established in that Illinois available Under state. Pennington attempted appeal to the only procedure, the method of by filing Supreme a mo- Court Illinois judg- view in a criminal case in which per- proceed poor as a for leave tion 111.Sup. by appeal. entered is ment was appointment of counsel and for son 110A, 602, Ill.Rev.Stat.1967, c. Ct. Rule January represent in court. On that him Supreme Rule 603 602. Illinois Court Supreme Court Clerk the 1967 the of provides appeals to the Illinois direct pro- that leave notified the Supreme judgments final of Court from granted, person but involving ceed as in the Circuit Court cases request arising for the question that the under the federal or by It denial appeals denied. is counsel had been in the constitution and state appellate stage capital cas- sentence in defendant from question alleged There no process es. which be violative appeals the an absolute defendant has equal protection and right to counsel before the Su- Illinois Subsequent to the Illinois Douglas California, preme Court. appoint- of his motion for 814, 9 L.Ed.2d 83 S.Ct. counsel, ment (1963); Milani v. 12, pro the record. and abstract of brief se L.Ed.2d On Illinois any appeals other appeal dis- Criminal be Court ordered posture taken from the must first be : missed Appellate Court to the Illinois Circuit Ap- appeal direct from On this appellate It form Court. was this argued pellate that the it is Court appropriate for the which was that the dictment was insufficient ap presented. the first facts here Once establish was insufficient evidence by peal Appellate been decided guilt. conten- defendant’s These right Court, appeal as matter present consti- no tentions substantial only requirements of if the Su exists question no clear that and it is tutional met, namely, preme Rule 317 question time the first arose for such question or state if a under the federal On the court’s Court. the first time constitution arises for motion the is dismissed. own Ap as a of the action result appeals, pellate All other which raised Court.1 contention The first us, indigent peti fall deprived the one within includes before that Illinois Pennington ambit tioner ap provides rule 315.2 That of its laws when argument why provides: to the Su- 1. Rule 317 matter Court shall as a from lies why argument may a matter of as Court as also contain to the lie under should leave which a the alternative cases judicial dis- or of sound States as matter of of the United allowed the constitution procedure respects time in and for the first cretion. other this state arises by governed If the Court rule 315. result of the action of as a excerpts petition, from record shall be initiated allows Court. prescribed filing petition briefs shall be filed the form or an abstract and (a) petition 315, except provided leave the case rule Appeal “Petition under rule 315. be entitled shall (b) (1) Right”; item Matter part: provides state 2. Rule 315 shall may Appeal; (a) Leave Petition as a matter is taken ap- pray leave for leave to Grounds. A in the alternative (c) (5) peal ; shall item contain peals judicial cretionary appeal dis procedures, within “sound we read cretion” requiring these cases a constitutional gives clues rule to indi which the equal of free and access to cate the character of the reasons court. It was as a result of the hold- ings persuade court to invoke its dis in these cases that the Illinois Su- *3 general importance cretion are that the Court was to allow Pen- presented question nington proceed the exist and the poor to person as a with- ence of paying a conflict the decision requisite filing between out the fee or sought independently to procuring be reviewed and a decision transcript of proceedings the or another Court division the below. precise the The context consider, however, Douglas alleged in which the unconstitutional California, 353, 814, v. denial of counsel occurred in the instant (1963), signifi 9 L.Ed.2d 811 most the case was Court when the Illinois precedent right-to-counsel cant pe to refused counsel to aid the question. Douglas on its facts dealt perfection titioner the his with to counsel at first the appeal. when that existed aas matter of argu- two-pronged Petitioner asserts a right. explicitly The re First, ment in the area. question fused to decide the which now he claims the denial of was that before us: handicap indigent like serious an We are not here concerned with fully himself in he was not informed that problems might from arise the the difference between Rule counsel for the appeals, and Rule brief his discretionary of a or man- and unable abstract show that he was stage datory beyond review the lawyerlike showing the make a process appellate at claims discretion, court should exercise its presented lawyer have once been legal that he unable evaluate passed upon by appellate an court. significance of the Illinois dealing only We are with first Secondly, petition- Court’s decision. granted appeal, as a matter prior er asserts that case law ** * rich and alike from quires of coun- us to hold the denial a criminal need conviction. We not stage sel the direct now decide whether California would process error. is reversible provide have counsel for petitioner places great hearing seeking discretionary reliance from filing transcript fee cases California after Appeal as Griffin U.S. the District Court of had sus- * * (1956), *, L.Ed. 891 S.Ct. tained his conviction or Ohio, Burns v. whether must be Although indigent seeking appel- 3 L.Ed.2d 1209 of an ex- it Burns decision true that late affirmance of conviction in rights indigent peti- tends this Court as of or Griffin beyond tioners level for a writ of certiorari which rights dis- applies and also these within the But lies Court’s discretion. ap- any presented; case not existence of a conflict be- pealable sought Court as tween the decision to be reviewed peti- Supreme Court, right. Whether such a matter of and a decision or granted is a matter of sound division tion will be of another following, judicial Court; while discretion. need for the exercise of the measuring fully controlling authority ; supervisory nor neither discretion, interlocutory char- indicate or the court’s and the final character judgment sought which will be considered: reviewed. acter of reasons to be importance general appropriate claim which he heretofore observe has failed can, consistently assert, Four this claim has either been State Amendment, provide dif not under cir waived and so could teenth long presented does not ferences so result cumstances be appeal3 Court on or it concerns amount to a denial Wil such a fundamental that an ade an ‘invidious discrimination.’ Co., remedy Optical quate still the form of liamson Lee exists in Hearing Act, 99 L.Ed. Post-Conviction [75 * * 563]; seq. Ab *. ch. et v. Illinois Ill.Rev.Stat. 122-1 Griffin (1967). Concerning equality required; post-conviction lines solute hearing procedure, often are drawn and we can be Tigner Texas, held that sustain them. See *4 proceeding L.Ed. 84 a 310 141 is entitled to the assistance [60 Cleary, 1124]; lawyer presentation of original of in Goesaert v. petition But 93 L.Ed. 163]. [69 necessary. petition one and where the of the if Peo merits amended indigent ple Wilson, has as of 39 Ill.2d 235 N.E.2d of coun are decided without benefit sel, line think an unconstitutional we placing further reason for A not poor. rich and has been drawn between system court burden providing the Illinois 356-357, 816.

Id. at 83 S.Ct. appellants, counsel to such as petitioner, recognition is our explicit light In Court’s practical problems which would be Douglas refusal to extend the implementation volved such stage, of counsel to the second right. are not unmindful of unwilling hold Pen- we are nington to here that .experience implementing nois’ equal pro- has denied the been right-to-counsel requirements of iGideon tection of law. Douglas. limitations Institutional support We find for our decision important are also considerations. We present practice of the United States equal- that the distinction think between regard petitions Court with ity required as access the courts The United for of certiorari. writs Bums Griffin disposition of a Court’s States meaningful. appointment of counsel is petition for is as a writ certiorari practical merit This distinction has discretionary fully Su- the Illinois institutionally that the states are prepared better grant a Rule Court’s decision for the to waive fees and costs appeal. Both determinations they provide than free coun- are to has made after one sel. to hold occurred. If for we were conclusion, In note that at we two here, saying petitioner we would be stages here, proceeding of the Illinois present fortiori appeal, trial and first no constitutional granting practice counsel questions or decided and no were raised purpose preparing petitions certiorari were found. We are unable contrary errors equal protection under the equal protection. find unwilling This we are Constitution. do. petitioner’s counsel has invited imposing A reason for not on our case of La Faver v. second attention duty Turner, (D.Utah F.Supp. Court the every providing 1964), counsel for which he asserts extended seeking discretionary that, Douglas if us. to the facts before petitioner, Pennington, case, fact a such La Faver corpus does have a meritorious writ of habeas state dis- constitutional Johnson, See, g., People 3. e. Ill.2d N.E.2d asserting corpus petitions earlier that his trict habeas and related un- charge guilty plea robbery der had been U.S.C. I feel §§ bodily through harm. if more coerced threats careful examination were state made of each phases a denial of the case on After all its lawyer court, represent- appeal, who direct district fewer corrections post notice of would ed the filed a be needed in the conviction Before Court.4 Utah The assistance of com- petent further, however, proceeding court- counsel is essential the full appointed counsel examination of withdrew a conviction so as to raise Nonetheless, possible appealable all Utah during case. errors appeal. counsel and direct Court failed to new considera- without dismissed the provides sig- controlling perceive no tion. We defendants bbth at trial requir- since in that decision nificance appeal, and for the first whether ing appointment new Court or the Illinois District United States a situation as the Supreme Court. Since subsequently case is did right, is a matter of Douglas required Milani. California, second is that claim Petitioner’s 9 L.Ed.2d 811 *5 on for him counsel failure (1963). However, appeal if the first is process. appeal of due was a violation Appellate Court, the Illinois counsel agree an with appointed to be pros- aug- indigent’s right has been counsel appeal ecute an to the Illinois significantly de- the court since mented Court. Douglas. 378 v. Escobedo cided The the Illinois 478, 1758, 12 L.Ed.2d U.S. 84 S.C. may be a matter of under Entsminger Iowa, (1964); or a matter of discretion un 748, 1402, 18 L.Ed.2d regard der prosecution Rule 315. I 128, Rhay, (1967); Mempa stage” this “crucial (1967). 254, 19 L.Ed.2d S.Ct. requires the criminal light our Nonetheless, discussion appointment of counsel. McConnell v. especially account above Rhay, 21 L.Ed. practice analo- in the (1968). especially 2d 2 This is so since proce- gous petition of certiorari for writ may the absence of the advice of counsel dure, find we denial are unable law, prisoner, cause the unlearned failing by waive constitutional errors Joseph Mr. court to thank wishes properly raise them in a Morency, Illinois Bar N. Jr. fact, review under Rule In 317. thorough court- and able service probability is he will not even rec case. ognize such errors. judgment district court agree Also, I with the affirmed. beyond average expect reason to layman-prisoner showing to make a Judge (concurring). KERNER, Circuit why the Illinois Court should by my reached in the result I concur accept an basis brethren. general importance below, of the decision being innun- much less to show The federal courts conflict between Illi- ever-increasing Districts, number nois an dated under corpus cases, court district writ taken 4. habeas second level court power highest state, to issue which is the Utah has in the Code, Code, §2 ch. Utah title Court. Utah title writs. Utah ch. 2 An However, questions can and such issues which could Rule 315. stitutional have presented the briefs been should counsel in be raised Thus, regard proce- wheth- under Rule I will before they or not dealt dure as a sufficient substitute er usually they court, pe- opinion will assist of that part Rule 317. of the record before review under titions for its nois consideration pro petition for prisoner’s se on a

even justified in I feel we are

review. assuming Supreme Court conscientiously the record

will arguments raised

and consider the Court briefs. my read feel have I brethren CASTILLO, Appellant, Ignacio Wilkins narrowly. too new constitutional Since Court, arise America, UNITED STATES appeal arises a matter from which an Appellee. right, further I feel that a No. 26232. would to the Illinois merely United States Court portion the “one be another Circuit. Fifth has as right” Douglas. Id. at under at 816. As to the institutional difficulties decision, implementing such a volved

having of Illinois when been Governor *6 were decisions

the 'Gideon and budg- having dealt with rendered and involved, etary manpower problems brethren, my I, perhaps am more then problems in practical

well aware unwilling Yet, I to sacri- area. am this solely major fice a constitutional implementation be dif-

because its expensive.

ficult and

My the result based concurrence in my prisoner-petitioners belief that prejudiced by the fail- supply here due

ure post-conviction hear- Illinois’ existence of major-

ing procedures. As noted must ity, that counsel held has been indigents to aid of their presentation my petitions. It post-conviction

understanding afforded review to procedure is sufficient this any significant meritorious

view any of claims constitutional Until we prior proceedings. procedure

shown a case con-

inadequate unable