*1 684 rеply sur-reply. equitable the exercise of their powers, may Trunk filed
Grand summary judgment granted attorneys’ award fees The when the interests 30, 1983. Mulay September justice require.” so to vacate the sum- Trunk moved Grand trial court could have denied recon- 17, February 1984, mary judgment rely- granting summary sideration of the order deposition of principally on the NAT- ing judgment. op- Grand Trunk also had the manager, which was taken service paying lеtting CO’s tion of not the fees and summary judgment. grant of after the judgment stand, option that it under- deposition, manag- the NATCO service standably did not find attractive. locator may the . dowels er testified granting actually of feеs here benefited missing from the machine when have Having below, Grand Trunk. so benefited control; Trunk’s this in- it entered Grand Grand improve Trunk cannot further its provided the basis of a formation defense position here. liability. Carmack Amendment
The trial court concluded that Grand Y duty had “an affirmative Trunk breached above, For the judg- reasons stated opposing summary file material ... ment of the district court is judgment,” justifying denial of reconsidera Plastics, Mulay tion. Inc. v. Grand Co., 102 Trunk Western Railroad F.R.D.
130, (N.D.Ill.) (quoting O’Byrne 131-32 159, Co., Oil
Cheker Cir.1984)), dism’d, app. Cir.1984), 1037, denied, 470 cert. U.S. 1409, S.Ct. L.Ed.2d held that Grand Trunk had unreason HARRIS, if ably, deliberately, not failed to advance Petitioner-Appellant, defense earlier. Trunk hаd no Grand prior defense tice basis of the even filing complaint because the REED, al., Marvin et manager suggested NATCO service had Respondents-Appellees. damage prevention Grand Trunk’s officer No. 86-2032. might missing dowels searched with him. dowels Appeals, United States Court of But lapse Trunk’s Grand Seventh Circuit. willful, the court did not 9, Argued Feb. 1987. refusing sanction harsh reconsideration. equitable powers, invoking its Decided June 1987. “striking ground” decidеd for a middle Rehearing Rehearing En Banc the ruling vacated conditioned Grand July Denied payment Mulay’s Trunk’s attorney’s in handling fees the motion. The court an analogy permits
drew to Rule granted relief from a judgment final to be “upon such just.” terms as are The court also likened ruling granting volun-
tary 41(a)(2) upon dismissal under Rule
“such terms and conditions as the court proper.” deems The court drew its author- ity from Cole, statement Hall v. 1, 4-5, 1943, 1945-46, U.S. (1973), courts, that “federal *2 BAUER, Judge,
Before Chief POSNER, Circuit Judges.
BAUER, Judge. Chief Hаrris was convicted of in murder 1977 and received indeter- years prison. minate sentence of 50-100 upheld His on appeal conviction was challenge sufficiency filed evidence. Harris both petitions fеderal for relief. In his state for Harris ineffective assistance of trial This issue peti- Harris’ state tion for relief was denied. The Illinois Court affirmed the petition, although dismissal Harris’ unclear the dismissal was whether based thе weakness of Harris’ claim on the merits.
In his for a writ of habe as in the United States District Court, again Harris claimed ineffective as sistance of trial counsel. urged that Harris’ appeal precluded
the clаim on direct the court found that the state court had excused the default by addressing the merits post-conviction relief. United Reed, F.Supp. rel. Harris v. (N.D.Ill.1985). The district then dismissed claim on its merits. We affirm dismissal of Harris’ without since wе con clude that the state court did not excuse default at issue.
I. shooting
Harris was convicted of Ernest Chicago “Pete” side of Howard on the west identifying 1977. Howard died before was connected to assailants. Hаrris Poor, Strawn, King E. & Chica- Winston by testimony crime of Antonio Sla- go, III., petitioner-appellant. driving ter down the block near who was Donatelli, Gen., Chicago, the site the murder. Slater testified Atty. Jack Asst. 111., shot, jump into respоndents-appellees. heard a saw trial, away past At Failure raise an drive him. issue that
a car and Assistant Public have been raised Harris was waives Musberger Kathryn post-convic issue for the Defenders Todd statement, opening Edmonds, the de- review. Kuhlen. In the 79 Ill. App.3d that two promised to show witnesses N.E.2d 230 fense (1st Dist.1979). named man McWhorter An had identified a *3 fact, appellate the crime. In state from leaving addressing the scеne of court the LeRoy given claim, precludes Carter had merits of a also Alice Riles and a federal police corpus petition, to the on a statements to that effect habeas frоm courtroom, prepared addressing present, in to the merits of the the claim. Wain end, wright In the testify Sykes, for the defense. how- v. 433 U.S.
evér, no presented the defense United that the state resting Spurlark Wolff, on the had not rel. 699 F.2d belief v. beyond Cir.1983). If, however, proven ig a the its case state court doubt. nores the default and reasonable addresses merits, the claim on a is Harris did not claim assist- precluded reaching from the оf merits appeal.1 direct ance of counsel in his In the claim in a habeas post-conviction the re- relief. United States ex rel. v. Williams noted that an issue the state court Franzen, (7th Cir.1982). F.2d of waived for lief if it been raised on here, could have direct As the defendant in Williams appeal. Typically, a claim of ineffective present failed to claim a assistance of cannot be raised on counsel asserting first it in a state appeal direct its resolution often relief. Without requires is not waiver, evidence which contained in the state court reached the merits Here, however, the appeal. record on the review, of Williams’ On claim. habeas the grounds state court found that all of the district court noted: support the claim of ineffec- to policies underlying deference to a sufficiently assistance of counsel were inapplicable default are supported by the record to have been where the state itself does not appeal exception raised on thе direct —with enforce the rule. When a state court ground alleging the counsels’ failure to rely does not on a waiver of a constitu- investigate present alibi witnesses. goes beyond tional the this, noting proceeded After the waiver to rule on reach reject of Harris’ some claims on court can reach the merits of also merits—claims which could have cause-prejudice claim without the stan- raised on direct United States Sykes being dard of Wainwright v. met. three-day hearing District Court held a Id. at complete a state court’s examine Harris' claim ineffective assist- failure to note waiver allows a fedеral ance of counsel in his for habeas court to merits of a claim. In review the corpus relief and determined Prast, Farmer Cir. claim should rejected 1983), we addressed the effect of a state proce- court decision relied both on a II. dural default and on weakness of the urges appellant’s The state us to find that claim on the merits. There we in ruling district court erred that Har determined that a state сourt relies when right ris present rejection waived his both on waiver and claim claim of respect ineffective assistance trial coun court will merits—a federal by failing sel the issue on raise direct altеrnate judicata res Defenders, appears 1. It ap- making that Harris was Assistant Public thus it more peal by counsel from the State De- difficult to show cause for the failure to raise longer represented fеnders Office and no issue on direct from intention to the possible. extent that this is and will be Upon order, Phillips claim. See also review of the state court merits of the we (7th Cir.1986). Lane, disagree find must we with the district regard. сourt in this A full reading of the court order at appellate The state suggests to us that distinguishable the orders in court intended to find all waived Williams, Farmer. both Williams except pertaining to the alibi witness- waiver, ignored completely while proceeded, es. court then as an alter- Farmer, expressly relied, in reject holding, nate Harris’ claim on its The state court here did part, on waiver. circumstances, merits. Under these examining post-convic- neither. find that the order was closer to that in petition, the court noted that Farmer, where the state court relied on an issue on finding. alternate for its We can- unless the review not find that the state court intended to the issue is such that it could not nature *4 ignore According- default. have been ly, reviewing we are then examined the trial court district court argument petition, raised in the and thе grounds, and found that all save record dismissing corpus petition the habeas witnesses, relating to the alibi have been finding expressly that all other Without waived, pro- the court then Judge, concurring: Circuit general to a short discussion of ceeded judging a claim of standards I separately only my write to indicate Next, analyzed the court both view that the ineffective assistance of failure to call alibi trial counsеl’s counsel claim should not be treated as as well as other that could have majority notes, As the waived. the Illinois been raised on direct and concluded Appellate express Court made no determi- that Harris had received the effective as- nation that the claim had been waived. sistance of his trial counsel. The Illinois court considered the claim on attempting its merits. Rather than to di- The district сourt found the state court unspoken “intent” of that I vine Ross, analogous to that presumption should think we invoke a Ill.App.3d clearly found has been con- waiver (1st Dist.1978), N.E.2d in which the Waiver, particularly doned. of an ineffec- Illinois noted a Court waiver assistance claim on direct is an problem to examine the case on but decided essentially avoiding technical however, Boss, difficult, very very important very explicitly ignore stated its determination to Certainly issues on the merits. it is close Here, have no default. power protect courts’ within expression such clear intent. There is procedural requirements merely by their explicit finding neither an of waiver nor an findings making express petitioner that a expression ignore waiver. an intention to has waived. ambiguous The order is peti Judge struggled addressed the merits of some of Getzendanner with the clearly implied and, tioner’s claims had important which it af- and difficult issues hearing lasting days, been waived. ter a three denied the very petition. the matter explicit require While we do not close, I support her determination would finding of nor an explicit statement thereby result as the reach the same ignore waiver, clearly of intention to majority by a different route. helpful language. more to include such considering whether a state court chose procedural default, reviewing
condone a try court should to assess the court’s