754 F.2d 764 | 7th Cir. | 1985
Lead Opinion
The petitioner appeals the district court’s denial of his petition for habeas corpus. We affirm.
I.
The petitioner, Jerry Devine, was convicted of the crime of murder by a jury in the Circuit Court of Cook County Illinois and was sentenced to a term of imprisonment of not less than 60 years nor more than 150 years. The petitioner appealed to the Illinois Appellate Court arguing that the trial court erred by: (1) failing to strike alleged hearsay evidence; and (2) conducting an in camera examination of two prospective defense witnesses. The Illinois Appellate Court affirmed the conviction. People v. Devine, 55 Ill.App.3d 576, 13 Ill.Dec. 327, 371 N.E.2d 22 (1977).
Following the decision of the appellate court, the petitioner, represented by new counsel, filed a post-conviction petition in the Cook County Illinois Circuit Court pursuant to Ill.Rev.Stat. ch. 38, § 122-1 (West 1973). Devine argued that his trial counsel failed to competently represent him, pointing to six alleged errors: (1) improvidently using an alibi defense; (2) failing to object to the pathologist’s testimony that one wound in the decedent was made by a bullet fired six inches from his head; (3) foolishly attempting to prove a drug-related cause of death; (4) failing to plea bargain; (5) making frivolous motions; and (6) failing to investigate the criminal background of the alibi witnesses or to coordinate their testimony. The Circuit Court dismissed the petition and Devine appealed to the Illinois Appellate Court. In an unpublished order, the appellate court affirmed the judgment of the circuit court holding that “[t]he issue of the competency of defendant’s trial counsel could have been raised on direct appeal and failure to do so resulted in waiver of that point.” The appellate court further held that fundamental fairness did not mandate that the waiver rule be relaxed.
The petitioner filed his writ for habeas corpus in the district court alleging three grounds for relief: (1) he was denied effective assistance of counsel both at trial and on the direct appeal of his conviction to the Illinois Appellate Court; (2) he was improperly denied an evidentiary hearing on his post-conviction petition; and (3) the Illinois Appellate Court, in its review of the circuit court’s dismissal of his post-conviction petition, improperly applied the doctrine of waiver and erroneously failed to reach the merits of his allegation of ineffective assistance of counsel at trial. The district court granted a motion to dismiss the petition holding that because the petitioner had failed to show good cause for failing to raise the issue of competence of trial counsel in his direct appeal or of his appellate counsel in his post-conviction petition, he waived both of the incompetence issues for purposes of federal habeas corpus. The district court further found that the petitioner’s arguments that he was improperly
II.
In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a state prisoner, barred by a procedural default from raising a constitutional claim on direct appeal, could not litigate the barred claim in a § 2254 habeas corpus proceeding without showing cause for and actual prejudice from the default. In United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc), our court applied the Sykes “cause and prejudice” standard to a state prisoner’s failure to raise a claim on direct appeal. Our decision to apply the cause and prejudice standard to appellate waiver was based on principles of comity and federalism: “The fundamental requirement that a petitioner first present his claims to the state court is rooted in the belief that ‘it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.’ ” Id. at 356 (citing Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950)). Specifically, our court overruled Guzzardo v. Bengston, 643 F.2d 1300 (7th Cir.1981), in which we had “declined to extend the cause-and-prejudice test to a state prisoner who had failed to present his claim of ineffective assistance of counsel to the state courts on direct appeal, and who had thereby waived state remedies.” Wolff, at 360. In Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir.1984), we held that a state prisoner who fails to pursue on post-conviction an issue that could not have been properly presented on direct appeal has similarly waived the right to present the issue on habeas absent “cause” for the failure and “prejudice” resulting thereby.
The petitioner’s initial default was the failure to raise the ineffective assistance of trial counsel in his direct appeal to the Illinois Appellate Court. The rule in Illinois is that a defendant who neglects to raise a claim of inadequate representation on direct appeal may not later assert that claim in a petition for post-conviction relief.
The petitioner argues that he could not raise the issue of ineffectiveness of trial counsel on direct appeal because his direct appeal was handled by an associate of his trial counsel. However, the Illinois Appellate Court, as part of its determination that the issue had been waived, specifically found that, “both defendants’ direct appeals were prosecuted by attorneys other than trial counsel.” In a habeas corpus proceeding challenging the judgment of a state court, “a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct____” 28 U.S.C. § 2254(d). The presumption may be rebutted if the petitioner is able to establish one of the eight circumstances listed in the statute.
We turn now to the issue of whether the claim of ineffective assistance of appellate counsel was waived. The procedural facts of this case are on all fours with those presented in Williams v. Duckworth, 724 F.2d 1439 (7th Cir.1984). Like Devine, Williams failed to allege ineffective assistance of trial counsel in his direct appeal. After his appeal was denied, Williams filed a petition for post-conviction relief in which he alleged ineffective assistance of trial counsel but failed to allege ineffective assistance of appellate counsel. The Indiana court held that the claim of ineffective assistance of trial counsel had been waived because it had not been raised on direct appeal. Williams then filed a writ for habeas corpus alleging that both his trial and appellate counsel had been ineffective. Our court held that the claim to ineffective appellate counsel had been waived, ruling that under Indiana law, issues that could have been raised in an initial post-conviction petition are treated as waived for purposes of succeeding post-conviction proceedings. Indiana Post-Conviction Remedy Rule 1, § 8. Extending the cause and prejudice test to waiver of claims during post-conviction proceedings, id. at 1442, our court held that Williams had failed to establish cause for his failure to raise his ineffective assistance of appellate counsel claim in his post-conviction petition. Like Williams, Devine failed to argue in his post-conviction petition that his appellate counsel was ineffective in failing to press a claim of ineffective assistance of trial counsel. The Illinois rule is that “[a]ny claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” Petitioner fails to offer a “cause” for the omission of his ineffective assistance of appellate counsel claim' from his post-conviction petition. We, therefore, hold that Devine’s claim of ineffective assistance of appellate counsel was waived and may not be reviewed in a writ for habeas corpus.
The decision of the district court is AFFIRMED.
. See, e.g., People v. Mamolella, 42 Ill.2d 69, 245 N.E.2d 485 (1969); People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461 (1969); People v. Collins, 39 Ill.2d 286, 235 N.E.2d 570 (1969); People v. Ashley, 34 Ill.2d 402, 216 N.E.2d 126 (1966); People v. Churchill, 92 Ill.App.3d 1006, 48 Ill. Dec. 364, 416 N.E.2d 395 (1981); People v. Killion, 76 Ill.App.3d 862, 32 Ill.Dec. 448, 395 N.E.2d 678 (1979); People v. Carroll, 45 Ill.App.3d 1063, 4 Ill.Dec. 555, 360 N.E.2d 491 (1977); People v. Spicer, 42 Ill.App.3d 246, 355 N.E.2d 711 (1976); People v. Carlton, 31 Ill.App.3d 313, 333 N.E.2d 596 (1975); People v. Buckholz, 24 Ill.App.3d 324, 320 N.E.2d 421 (1974).
. “(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:”
Dissenting Opinion
dissenting.
I respectfully dissent. Devine’s ineffective assistance claim may or may not have merit, but I have no reason to believe it has been waived.
The record shows that on his initial appeal, Devine was represented by counsel from the same firm that represented him at trial.
Hence I do not believe Devine’s ineffectiveness of trial counsel claim has been waived. It should have been considered by the district court on the merits.
. Devine alleged in his habeas petition that he had the same attorney at trial and on appeal. The name of the trial attorney is in the habeas petition, the name of appellate counsel is in the state court opinion, 55 Ill.App.3d 576, 13 Ill.Dec. 327, 327, 371 N.E.2d 22, 22 (1977), and Sullivan’s Law Directory for 1975-1976 shows that they were in the same firm.
. I agree that the ineffective assistance of appellate counsel argument has been waived.