United States of America Ex Rel. Nathaniel Spurlark, Petitioner-Appellee-Cross-Appellant v. Dennis Wolff, Respondents-Appellants-Cross-Appellees

result, Thus, terms pursuant as a to the without the Veterans Administra- do so and contract the Veterans approval the installment Paymasters tion’s could repossessed the home Administration equitable their interest in the assign proper- Paymas- 1976 and terminated the April of such time the entire ty until as balance was was not interest in real estate. It ters’ closing. in full on date of the paid August five months later in until some Therefore, because the Veterans Adminis- that Crowel to enforce his attempted legal proper- tration retained interest in However, alleged property. interest paid unless the balance was ty and since alleged Crowel’s interest could because not) it their (which approval full Paymasters’ equitable out of the inter- arise assignment before the could be required and property, Pay- est in the because the effective, the Veterans Administration equitable interest in the property masters’ stranger be considered a could in April was terminated we hold standing thus had Letter of Direction and any interest Crowel claims to have had challenge its For all the above validity. in the real estate was also terminated at the reasons, magistrate the decision of the de- time the Veterans Administration repos- plaintiff’s summary motion for nying Paymasters’ Moreover, sessed home. the defendant’s mo- judgment granting Veterans Administration never summary judgment is Affirmed. tion for proved assumption Crowel’s of the Pay- mortgage with masters’ the Veterans Ad- pursuant

ministration to the terms of the Paymasters. contract with the Nor did pay Paymasters $4,500 ever Crowel payment required by down the terms of Thus, Offer to Purchase. Crowel never complied steps with the necessary to com- the real estate plete transaction. There- ex rel. STATES of America UNITED fore, agree magistrate we with the SPURLARK, Nathaniel not have a present does Crowel enforceable Petitioner-Appellee-Cross-Appellant, interest in the real estate and hold the was correct when he magistrate granted summary the defendant’s motion for judg- WOLFF, al., Respondents-Ap et Dennis ment. pellants-Cross-Appellees. point argument, As a final 81-2063, Nos. 81-2113. Crowel asserts that the plaintiff Veterans Administration lacks standing challenge Court Appeals, United States validity Paymasters’ of the assignment Circuit. Seventh equitable of their interest to Crowel be 19, 1982. Argued Oct. cause the Veterans Administration was a stranger to the Letter of Direction. How Decided Jan.

ever, argument ignores the fact that the Veterans Administration had a continu

ing legal property interest in the from the Paymasters’ purchase

time of their interest and never equitable relinquished Moreover, legal interest. the contract the Veterans Administration between Paymaster provided that if Paymaster as signed equitable interest without the approval of

prior the Veterans Administra tion, remaining unpaid mortgage bal immediately became due owing.

ance COFFEY, Judges, and

ESCHBACH Circuit FAIRCHILD, Judge. Senior Circuit and PELL, Judge. Circuit respondents of We reconsider will re- action.1 We in this those facts to our deci- only pertinent view sion.

I August was on arrested

Petitioner charged of co- possession and with continuances, to innumerable Due caine. granted request which were at the of most counsel, the trial retained did petitioner’s of until 1976. Be- begin November delays by petition- engendered cause required pe- retained counsel the court er’s represented by appointed to be titioner counsel, Petitioner Cornelius Toole. appeared sentencing rep- for convicted Toole. hear- by At the resented Adam, petitioner, ap- ing by retained Sam requested peared permission behalf. The court petitioner’s on denied to in- petitioner and sentenced request thirty for a term fifteen to of carceration years. appealed his conviction to the

Petitioner Illinois, raising of four is- Appellate only presented claim sues. choice denial of which concerned court stated: the trial “Whether counsel by deny- error committed reversible court non-indigent defendant his constitu- ing a by to be counsel defended tional choosing.” The arguments own Goodfriend, 111.,for re- Chicago, solely Neal B. of this contention dealt support erred in spondents-appellants-cross-appellees. the claim the court at tri- petitioner defend pointing Adam, Chicago, 111., petitioner- Sam for to denial of choice al. The reference appellee-cross-appellant. in one sentencing appeared of counsel CUMMINGS, PELL, Facts Judge, paragraph Before Chief Statement of BAUER, WOOD, POSNER, CUDAHY, brief read: defendant’s three-judge panel previously opinion rehearing, 1. A this court on court holds that all court, judgment by correctly petitioner district were affirmed the issues raised petitioner habeas relief district as indicated which denied decided exception opinion, prior panel raised with one which contains more all issues granted complete that relief as to that one issue of the facts than neces- which statement Wolff, only. opinion. Spurlark purpose sary rel. States ex of this United Cir.1982). banc 683 F.2d 216 In this en sentencing proceedings, ing petitioner

At the held on his choice of counsel at sen- 13, 1976, December Adam Attorney Sam arises from failure to tencing appearing request at the of the Defend- this claim to the state courts on ant, sought leave to file his appearance appeal. Under state law the failure of the Defendant pur- behalf for the appeal pre- this claim on direct poses post-trial proceedings. Attorney from it in raising vents Adam’s motion for leave to file his proceeding, thus the re- post-conviction pearance summarily was denied. petitioner that exhaust all avail- quirement appellate The state court affirmed peti- able state remedies is met as none are now court, conviction. tioner’s understand- failure raise the issue on available. The ably, did not address the issue of denial of possibility also raises the petitioner’s request that Adam represent the claim may brought not be before sentencing. him at People v. Spurlark, 67 court in a It is petition. federal habeas 186, Ill.App.3d 23 860, Ill.Dec. 384 N.E.2d comity principles well established that (1st Dist.1978). 767 Petitioner accorded a his require present state lack weight similar to this claim in his appropriate claims to the state tribunal be- for Petition Leave to Appeal filed in the seeking fore relief in federal court. Ex Supreme Court, Illinois which was denied. 734, 241, 117 6 29 parte Royall, U.S. S.Ct. Petitioner sought a then writ of habeas (1886); Lundy, L.Ed. 868 Rose v. 455 U.S. corpus under 28 U.S.C. 2254 in § federal 509, 1198, (1982). 102 71 L.Ed.2d 379 S.Ct. court. district That court entered summary consequences Petitioner seeks to avoid the judgment respondents on all issues ex- by arguing of his default that he cept petitioner’s the denial of request that present in fact did his claim the Adam Sam counsel during sen- courts. Whether petitioner’s presentation tencing. this Judge On stated, Moran “The adequate was to apprise the state courts of court believes that petitioner was enti- judged claimed error be must with the tled counsel his choice at sentencing. purpose of the exhaustion and waiver doc- court’s The state failure to allow petitioner trines in mind. The require- fundamental exercise that choice grounds is for requir- that a petitioner ment first his ing resentencing in state court.” We af- claims to the state court is in the rooted the decision of firmed the district court. belief that “it would unseemly be in our ex rel. Spurlark United States Wolff, v. 683 dual system government for a federal (7th Cir.1982). F.2d 216 In our previous district court to upset a state court convic- rejected respondents’ decision we claim that tion without an opportunity to the state had failed to exhaust state reme- courts to correct a constitutional violation.” noted that petitioner dies. We had not Burford, Darr v. 200, 204, 339 70 S.Ct. this claim to the state courts on 587, 590, 94 (1950); L.Ed. 761 see also Rose appeal and had therefore forfeited Lundy, 509, 1198, v. 455 U.S. 102 S.Ct. this claim for state collateral attack. 683 (1982). L.Ed.2d 379 This can goal only be F.2d at 222. We did not consider whether achieved when the issue presented petitioner’s failure to his claim to state courts in a manner that fairly allows similarly the state courts worked a forfei- the court to consider its merits. The Su- purposes of a ture for federal habeas action. preme Court has recognized merely now consider this issue in light We of the presenting facts of a case to a state recent decision United States Su- appellate court is insufficient. preme Isaac, Engle Court in 456 U.S. emphasize We L.Ed.2d 783 the federal claim pronouncements and other of that court. fairly presented must be to the state If the courts. exhaustion doctrine is to

II prevent “unnecessary conflict between possibility equally forfeiture or waiver of bound guard protect courts claim that the trial court in deny- Constitution,” erred rights by secured ... retrial, penalty sought that the federal death but later merely not sufficient it is corpus has habeas federal court under through been writ of applicant habeas 2254. The court denied Connor, district § Picard U.S.C. courts. because petition of his failure to Noia’s 275-76, 509, 512, 30 L.Ed.2d On certiorari Court (citation omitted.) (1971) “whether relief on 2254 barred § considered presented the state courts Petitioner the applicant where the trial court had violated claim that exhaust remedies no failed to had to be defended “constitutional available to him at the time the longer choosing.” (Emphasis of his own Id. at proceeding commenced.” added.) Even if the role at sen of counsel at 826. The weighed tencing “defending,” can be described as proce- interest in enforcement of its state’s as to the ambiguity basis of against interest dural rules arguments removed claim The bal- vindicating rights. solely ap which dealt with the presented, protection rights favored of federal ance of Toole as trial counsel for the pointment flouting in cases of of except intentional mentioned separate never the sentenc procedures. state hearing. Given it is ing presentation this ... of fully grant exigencies that the We the one paragraph clear that the state warrant a whereby limitation federalism facts that referred to the sentenc ment of judge has to federal the discretion the hearing meant, was not ing and did not to one deliberately relief who has deny serve, to issue to the state or orderly to subvert evade the sought Rather, “[wjhile hindsight with courts.2 of his federal defenses adjudication find in the can state court records seeds one no Surely court. stricter rule is a so argument, in the vigorously urged of the A necessity. man under convic- realistic courts, ... the seeds never came to federal has an for crime obvious inducement tion Scafati, fruition.” Needel v. 412 visible best his state very keep to to do 761, (1st Cir.1969), 765 cert. denied 396 F.2d and not his all on open, to stake remedies 861, 133, 113; 90 S.Ct. 24 L.Ed.2d see U.S. proceed- of the outcome King, 568, 627 (1st Katz v. 575 also which, less many may be ing respects, Cir.1980). We turn now to consider the to him than a state court advantageous of consequences failure to allow 433, Id. at 83 at 846. S.Ct. proceeding. pass courts to upon the merits of the phrased holding in Fay the Court its his claim. de- encompassed procedural all terms that faults, stating that “the federal habeas Ill to an may deny in his discretion relief judge determine whether petitioner’s To failure deliberately by-passed who has applicant issue on appeal to raise the bars him from of the state courts orderly procedure the that claim a federal court in a presenting reme- doing so has forfeited his state and in we must examine petition 438, 83 848. In Kauf- Id. at S.Ct. at dies.” vitality Noia, Fay continued of 372 the States, 217, 89 394 man v. United 822, 391, (1963). 83 S.Ct. L.Ed.2d 1068, (1969), L.Ed.2d 227 the Court of was convicted murder on the basis Noia fed- deliberate test to a plied Fay’s by-pass He objected confession. chose not to had the intro- of a who prisoner eral not receiving of the of the of evidence at trial had possibility because but duction then, Attorney Clearly, courts Petitioner cites Bisaccia v. General terms. the N.J., Cir.1980), (3d opportunity given for the consider whether an were merely proposition providing plea guilty the state In this was admissible. the opportunity the consider the state courts courts with the were all, is no facts of the case sufficient. Bisaccia at but rather with petitioner. help separate In Bisaccia the state courts claim of of counsel at choice the issue —admission of a co- had considered trial. plea guilty explicit conspirators —but Wainwright petitioner not- raised the issue on Court had failed to make ed, give contemporaneous objection “There is no reason ... to the introduc- preclusive required by effect to de- of his confession as tion greater apply Court refused to by federal defendants than to similar law. faults by-pass deliberate standard when deter- by state defendants.” Id. at defaults of federal habeas mining availability Fay at 1075. Neither nor Kaufman 89 S.Ct. Rather, rejected “the relief. Court indicated that the deliberate by-pass test Noia, sweeping language Fay going only applicable in failure-to-appeal eliciting it.” beyond far facts of the case cases. at 2507. The 433 U.S. Court Subsequent opinions Court have Fay encouraged had defense coun- felt that application narrowed the deliberate “sandbag” prosecution by with- sel to by-pass standard. In Davis v. United hope at trial in the holding objections 411 U.S. acquittal despite objectiona- an winning L.Ed.2d Court considered the material, knowledge that a ble but with 12(b)(2) of Rule effect of the Federal Rules attacked federal ha- conviction could be Procedure upon of Criminal ability of test Although by-pass the deliberate beas. to challenge on habeas the tactic the ma- preclude seem to would composition grand jury that indicted felt that a more strin- jority of the Court challenge when no him had been prior made test was needed. To this end gent pertinent trial. part 12(b)(2) Rule test cause-and-prejudice held that the objections reads: “Defenses and based on when a had applied should be defendant in the defects institution of prosecution objec- make a contemporaneous failed to or in indictment ... may be raised only Wainwright, specifically did tion. by motion before trial.” Failure to raise or Fay applied not overrule Kaufman as the issue before trial “constitutes a waiver only procedural in which the default cases thereof, but the court for cause may shown to raise an issue on was a failure grant relief from the waiver.” The Court in the incentive to “sand- situation which provision held that the waiver extended to Rather, the Court bag” great. is not as proceedings, recognizing that allow- the Francis rule “[wjhether that stated ing prisoner to raise the issue on habeas federal habeas review preclude should when foreclosed from other avenues of re- not made in accordance with claims lief due to his inaction negate would has where the criminal defendant procedure purpose of the rule. The Court concluded surrendered, tacti- other than for reasons of petitioner a habeas must demonstrate advantage, all of his cal have for his cause failure to make a timely mo- trial error considered a state claims of prejudice and actual resulting tion from the court, day.” we leave for another appellate claimed violation of his constitutional 12, n. 12. 433 at 88 n. 97 at 2507 S.Ct. rights. ar- Respondents urge day that this has The Court extended the cause-and-preju- recent decisions of rived and that most dice standard to prisoners who had have in fact overruled Supreme Court requisite failed make the pre-trial chal- failure-to-appeal Kaufman for Fay and lenge grand jury composition in Francis strenuously urged is the claim cases. Most Henderson, 536, 1708, v. 425 U.S. 96 48 S.Ct. Isaac, 107, 456 U.S. 102 that Engle v. L.Ed.2d 149 (1976). Citing Kaufman as 1558, (1982), requires 71 L.Ed.2d 783 S.Ct. support, the Court reasoned that federal cause-and-prejudice test apply that we prisoners subjected should be disposi- Engle case. We do not find in this scrutiny the same seeking when habeas af- Engle in point. on this Petitioners tive failing timely ter to make pre-trial motions. object jury at trial in- to certain failed Francis, In the term following the Court As required by state law. structions Wainwright 72, decided Sykes, Wainwright requir- 433 U.S. the interests in noted 2497, (1876). 53 594 at trial are contemporaneous objection L.Ed.2d ing protected by requiring from those Primarily upon basis of this language different an on to raise direct defendant recently this circuit held that “Frady casts Similarly, Frady, United States v. peal. doubt on the sufficient continued vitality of 1584, 152, 71 L.Ed.2d to allow us Kaufman to consider as an only holds (1982), cause-and-preju- original question whether the failure to ap- error, dice, plain than is the proper rather ground on a later peal raised in a section evaluating claims not raised at standard 2255 motion should bar the motion unless before brought later a federal trial but good cause for not appealing is shown.” habeas action. Rose v. Finally, court in a v. United Norris 687 F.2d Lundy, 455 U.S. (7th Cir.1982). Although recognize we provide does not L.Ed.2d Supreme Norris that Court had not as it guidance deals with the explicitly overruled Kaufman and that the procedure to be when a followed proper in Wainwright decisions and Engle were presents both exhausted and dispositive claims. as “the unexhausted failure to make a contemporaneous objection is a more seri- pronounce- While none of these recent ous default than splitting one’s gone has so far as overruling ments is,” we by-pass nevertheless applied deliberate standard as failure-to-appeal held that cases—and fact none of Government should not be cases even these issue—we shouldered with the burden of proving that not unmindful of the are Court’s a prisoner’s failure to appeal was a changing attitude toward federal habeas by-pass deliberate procedures. normal In Rose proceedings. Lundy, supra, the We held light of the Supreme expressed concern over Court federal inter- recent Court’s decisions the-cause-and-prej- in state criminal through vention matters test proper udice was the standard when a proceedings. held that raises a claim on habeas ensuring means of the best that state pris- that was not raised We noted first their oners claims to the state that: is a strict rule courts prohibiting federal holding that the prejudice cause and considering courts from unexhausted standard rather than the deliberate by- Similarly, in Engle claims. the majority pass standard is applicable to failures to expounded upon the costs imposed upon our appeal, we are not “overruling” Kaufman of federalism system federal ac- tions. .... Constitutional very largely law is prediction of how the possess

The Court will primary States authority for defining and enforcing particular the criminal law. decide issues when In criminal trials they also hold the initial it for decision. Ordinarily to the best responsibility vindicating constitu- predictor of how the Court will decide an rights. tional Federal intrusions into in a future case is how it issue decided state criminal trials frustrates both the case, past the same issue in a and when sovereign power State’s punish to offend- that is so the law is is what stated in the good ers and their faith attempts to hon- But earlier decision. sometimes later de- or rights. cisions, not though explicitly overruling 102 S.Ct. at 1571. In Frady the Court decision, mentioning or even an earlier considered, dicta, the damage done when very probably indicate that the Court will prisoner attacks a conviction after his way not decide the issue the same the opportunity appeal to has passed. “Once In such a to continue to next time. defendant’s chance appeal has been blindly case until it is follow earlier exhausted, or ... we waived are entitled to dead, formally apply overruled is to fairly he stands presume convicted.” 102 law. Id. living, not S.Ct. at With this interest in mind living is to determine what that task Court noted that “a collateral Our challenge Be- not do service for an Id. case is. may appeal.” applicable law post-conviction motions, are significant there differences be- he did so cause more of a state consequences prisoner’s tween than after years five his conviction. The raise an issue on appeal and those failure held that Third Circuit this de- from similar derelictions flowing on should be evaluated under cause- fault we prisoner simply of a cannot part test, and-prejudice although the interests our in Norris. upon analysis The Su- rely this state much protected by rule were that, recognized Frady un- preme protected by prohibiting same as those rules from prisoner a state foreclosed like untimely or While the piecemeal appeals. his to a claims federal district presenting willing Fay court was not to hold court, “already federal prisoner has had a controlling longer no in traditional failure- “ opportunity claims to a fair cases, it recognize did that Wain- to-appeal forum.” 1593. This wright’s rationale is easily reconcilable factor in our decision in one Norris. Fay, and reluctant with that of we are Against at 903. this factor we ignore the rationale of the more recent weigh sought values must be served Indeed, ascendancy case. of the cause of comity, impli- which are by principles prejudice standard is reflected in actual prisoner when a federal seeks habeas cated v. Isaac.” language Engle the broad against which counsel relief but entertain- F.2d at 442. prisoner that a state ing claims did not The Circuit considered Second present to the state deign to courts. analysis in a in Forman v. thoughtful considering question we not do do Smith, (2nd Cir.1980), F.2d 634 cert. background some without case law. so denied, 450 U.S. v. Bengston, In Guzzardo directly presented 204. Forman L.Ed.2d denied, Cir.1981), cert. 452 U.S. whether question Fay Wainwright or 3085, 69 L.Ed.2d we declined failure governed the to raise an issue on cause-and-prejudice extend test to a court examined four who had failed to present his Wainwright; (1) factors deemed relevant in of ineffective assistance of claim counsel to (2) finality; (3) comity; accuracy: review courts on direct who likely on direct more to be accu thereby waived state had remedies. Rath place a rate as it takes short time after the er, we denied claim on its mer trial, special importance a factor Norris, its. Unlike Guzzardo was assistance claims such ineffective without of Engle decided the benefit or cannot be easily by counsel that resolved Frady. We therefore decline to rely record; today. (4) the trial resort trial Guzzardo no integrity: should have induce guidance can be obtained Some from objections. ment to withhold claims or decisions of our sister recent circuits. recognized considerations of com Patton, Boyer (3rd Cir.1978), 579 F.2d 284 forcefully present ity apply to failure to Circuit, noting Third that the Court in a state court as appellate a claim to to Wainwright had explicitly not overruled contemporaneous objection to make failure by-pass applied test as deliberate to failure- court, however, not at trial. did think cases, concluded that to-appeal was still Fay appeal failure to that raise an issue position, law. This has good implicated society’s interest in the finality recently been reconsidered. In United The court that litigation. of concluded rel. Zelinsky, ex Caruso v. 689 F.2d States factors, remaining accuracy integ two (3rd Cir.1982), petitioner sought 435 rity, hampered prisoner are when a state relief claims upon based of ineffec- fails claim such as ineffective present to trial and counsel. appellate tive law State of counsel or of evi suppression that assistance required these claims be in post- raised prosecution, require motions no later than dence which years conviction five on the trial Although after conviction. factual determination not based these claims to state courts in decided transcript. On basis court

361 prejudice scrutiny presenting cause and standard and same when a feder- “the that application Sykes for its to with a claim through reasons al court otherwise lost specific per- of claims at trial default. Our decision is procedural forfeitures consist- also applies statement, us that that standard to our previous ent with albeit in suades specific appeal.” dicta, claims on that “we believe that forfeitures cause-and- [the principle governs F.2d at prejudice] 633 prisoners for state to the same proceedings The Fifth Circuit reached a similar prisoners it would control federal extent v. United 571 conclusion Sincox relief, 2255 seeking U.S.C. as Nor- § (5th Cir.1978), Mag and Evans v. F.2d 876 ex rel. Williams v. ris.” United States (5th Cir.1977). addi gio, 557 Franzen, (7th Cir.1982). tion, recently questioned Circuit the Fourth test is cause-and-prejudice well suit- vitality Fay in Cole v. the continued a case such as that before us today. ed to Stevenson, (4th Cir.1980), F.2d 1055 provide Petitioner did not the state courts denied, 1004, 101 cert. any meaningful opportunity to evalu- analyzing 301. After the factors L.Ed.2d ate his claim that the trial court erred in language in Forman and the discussed allowing Adam to sentencing. not Supreme recent Court decisions we a federal district court to examine For Fay’s that the rumors of death are agree relationship claim now undermines the be- exaggerated. Although we find greatly not tween state federal courts and only provided in Forman analysis persuasive, relegate serves state courts to the First, add two observations. in our we will second class status of citizens in the task of finality is an interest that will opinion, be rights. We refuse protecting by application of the cause-and- protected of this manner approve avoiding standard prejudice failure-to-appeal evaluation of In those claims. cases As the Court stated in cases. prisoner adequate a state has an in which defendant’s chance Frady, appeal “Once for his inaction in which explanation an waived or exhausted ... we are has been injustice give would result if we were to presume he stands convict fairly entitled effect default preclusive Second, at 1593. we per ed.” 102 S.Ct. cause-and-prejudice provides ample test there is a tactical reason for a ceive protection. not to prisoner present certain claims state courts on direct IV Fay when was decided. cause-and-prejudice of the Mata, Application 539, 101 Sumner simple. Regardless case is test to this L.Ed.2d 722 Court held that prong one defines “cause” that how determinations made a state ap factual is not met here. It is apparent test court are entitled to a pellate presumption did view the choice of counsel at In a claim such of correctness. as ineffec important as an simply issue and tive of counsel a assistance ignored appeal. it as an issue on This is not that it may believe his best interest not type justifies ignoring of cause that the issue appellate to the state petitioner’s failure to raise the issue on court, which will make a factual determina shortly tion after the trial that will be presumption correctness, to a

entitled Although the lack of cause is suffi to wait until memories have but rather denying basis for relief we think it cient his faded to claims to a federal the question prejudice to examine as best petition. on a habeas court that, well. We believe even if the deliber in supported We are our decision to ex- by-pass applied, ate standard is the district prisoners error, to state granting tend Norris Su- court erred in relief as the if admonition in Kaufman that beyond Court’s was harmless a reasonable preme any, prisoners given and federal are to be This is not a case in which a crimi- doubt. unrepresented by went trial. There is no that Toole failed nal defendant coun- evidence ineffective way representation petition- or received assistance in his sel in Nor is this a case in which a sentencing. counsel. Because of this lack of er at to accept representa- defendant forced and because failed to prejudice, objected. by counsel to whom he Rath- tion this claim to the state courts on Toole, er, ably represented by petitioner, we do not need to decide if appear to have Adam as an addi- wished the trial court erred in Adam leave denying counsel. In this situation the ques- tional sentencing. is, prejudice tion of relevant. rehearing granting virtue of en banc By Burton, In United States v. 584 F.2d 485 judgment original at the in this denied, 1069, (D.C.Cir.1978), cert. 439 exception was vacated. With the panel 837, 59 L.Ed.2d 34 defend in foregoing opinion, discussed had retained two one of attorneys, ant judgment of the district court is af- shortly before De whom withdrew trial. for the prior firmed reasons stated in the requested a fendant continuance to allow opinion. For the panel reasons stated to hire new co-counsel. The him continu opinion, portion the en banc ance was denied and defendant went judgment court granting petitioner district lawyer. with one On trial relief is reversed. prejudice that the absence of held was rele evaluating vant whether defendant was CUDAHY, Judge, concurring Circuit to a new trial. entitled part dissenting part. question ... is whether appellant In Norris v. United 687 F.2d his right was afforded (7th Cir.1982), concurring I filed opin- his own select counsel. In determining ion in which I took issue with the view of violated, whether the the exist- majority that the petitioner in that case prejudice ence of one of the fac- had waived his right to habeas relief as to tors to consider. The existence of preju- of his three claims because he failed to raise dice to the case is not prerequisite to a them on direct I concurred in the constitutional violation in this context. result, however, rejected Norris because I appraising But in particular factor, on their merits the three constitutional inability of appellant to prove preju- claims which majority there determined defense, dice to his and the absence of appeal. Norris, were waived failure to prejudice to us in the record suggests Judge points out, as Pell involved a federal district court properly balanced seeking relief under 28 U.S.C. competing considerations. Id. at 498. distinguished as pris- from a state § (Emphasis added) Spurlark oner like seeking federal habeas While Burton request involved a for a relief under Although, U.S.C. § continuance, which here, is not present for the reasons set length, forth there at I upon relied the lack of prejudice to justify Norris regard having do as been cor- post hoc the denial of that request, we think decided, I have rectly accepted it law as the the absence of prejudice is similarly dicta, of this circuit. I have also (appar- relevant when appearance of co-counsel is ently hastily) accepted too princi- the Norris denied for other reasons. The Second Cir ple applicable prisoners. to state See cuit is apparently in agreement, see United Williams Franzen, United States ex rel. Tortora, States 464 (2nd Cir. Cir.1982), which I 1972), denied, cert. 93 S.Ct. wrote for a panel. Judge unanimous Pell 554, 34 L.Ed.2d 516. (I has now seen fit think wisely, although I Petitioner has made no showing of any agree analysis) replow do prejudice, nor could he. Toole was familiar much of the Norris ground in this en banc with the relevant facts for the where, Norris, proceeding peti- unlike hearing, having represented petitioner represented tioner is by counsel and there FAIRCHILD, argument. Judge Pell also Judge, oral Senior Circuit dis- been has senting. is not as to controlling that Norris United Norris v. dealt, course,

Cir.1982) with collateral a federal conviction. It is here attack on to federal collateral being extended attack I not persuaded conviction. am on a state soundly decided. that Norris See id. at (Cudahy, Judge, Circuit concurring) 904—12 (Wood, Judge, joined id. at Circuit Bauer, Judge, Circuit dissenting from banc). hear the case en decision Under the circumstances and, think, need not I en banc court should question not reach whether to confirm and extend Norris.

I therefore dissent. respectfully GREEN, Jr., Carl

Clovis Plaintiff-Appellant, WARDEN, PENITENTIARY,

Defendant-Appellee.

No. 81-3067. United States Court of Appeals,

Seventh Circuit. Submitted Jan. 1983. Decided Jan. Certiorari May 31, 1983. Denied

See S.Ct. 2436. notes who have not had an oppor- prisoners, state to hold that failure majority appears to their claims a federal tunity raise on a state constitu- to factor, Pell Against Judge this as forum. a waiver the In the claim is of claim. tional notes, which weigh comity principles again case, moreover, the majority of this facts pris- when a arguably implicated state emphasize are that a failure to is a failure finds claim, as to which oner does to raise. relief, seeks federal habeas in state he appellate state brief recounted Spurlark’s dictum, in the Franzen Apparently, court. of denial of counsel of his choice at the fact comity on the considerations alone I focused although arguing his sentencing, Sixth that the rule applied assumed Norris the brief writer deprivation Amendment prisoners seeking fortiori to at separately address the denial did relief. sentencing. Spurlark’s petition to Su- Illinois, however, directly Court of preme argu- Pell has Judge again presented with the claim of denial of counsel of dealt to those advanced ments similar sentencing, calling at to that court’s choice (although in Norris in the some- majority appellate the failure of the attention different context of a prisoner). what the matter: to address Although I believe the issue here is better Neither would Court allow new our developed for consideration than it was represent Defendant at counsel Norris, the same basic considerations are either before or af- posh-trial proceedings Therefore, I my involved. must record dis- sentencing, successfully preclud- thus ter case, on this branch sent relying full, ing complete develop- fair and portions relevant of my Norris concur- Appellate ment of the record. The Court alia, at 687 F.2d 904. Inter rence as I opinion disregard aspect chose to my concurrence, out in Norris pointed trial court’s action.... Supreme Court Davis explicitly acknowl- at 15. Appeal Petition for Leave a distinction edged between a failure to opinion given the state courts were my claim at trial raise a and a failure petition ample opportunity address Davis was written by And Justice Rehn- claim, on appeal; both at trial and er’s certainly a leader in the quist, movement to scope to describe the attempts Spurlark’s jurisdiction. curtail habeas Fay, Kaufman choice, inart denial of counsel of while controlling and Davis are the cer ful, appellate court and precedents; they apply to failures supreme the state court with tainly they overruled; have not been finally addressed the federal same it is by no means clear to me that a require To that a do courts. majority of the Court now would abandon than raise the “substance of a federal more pertinent aspects. event, their I courts,” Pi claim ... to the state adopt portions the relevant concur- my Connor, 270, 278, card in point in Norris as rence here. 509, 513, (1971), unduly nar 30 L.Ed.2d inclined, however, scope I am believe that rows forum. have his claims reviewed in a federal judge, state trial under all the unusual Holbrook, 8-11 Williams v. Cf. circumstances did not commit Cir.1982). (1st constitutional error in exercising his discre- deny tion to Adam leave to at sen- moreover, state, failed to claim waiv- error, and, appears it tencing; if there was the claim of denial er of to have been harmless. See United States court; before the district Wolff, Spurlark ex rel. court the original panel of this before Cir.1982) (Pell, J., Concurring and dis- possibili- did no more than hint at the senting). I therefore concur in the result. a footnote. ty in

Case Details

Case Name: United States of America Ex Rel. Nathaniel Spurlark, Petitioner-Appellee-Cross-Appellant v. Dennis Wolff, Respondents-Appellants-Cross-Appellees

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jan 28, 1983

Citation: 699 F.2d 354

Docket Number: 81-2063, 81-2113

Court Abbreviation: 7th Cir.