U.S. ex rel. Devine v. Derobertis

Decision Date08 April 1985
Docket NumberNo. 83-1796,83-1796
PartiesUNITED STATES of America ex rel. Jerry DEVINE, Petitioner-Appellant, v. Richard DeROBERTIS and the Attorney General of the State of Illinois, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Robert L. Schroeder, Emory A. Tate & Associates, Chicago, Ill., for petitioner-appellant.

Kenneth A. Fedinets, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CUDAHY, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

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, Sec. 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 In an unpublished order, the appellate court affirmed the judgment of the circuit court holding that "[t]he issue of the competency of defendant's trial counsel could have been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 denied an evidentiary hearing on his post-conviction petition and that the Illinois Appellate Court improperly applied the waiver doctrine raised only state law issues under the Illinois Post-Conviction Hearing Act; the two alleged errors were not reviewable on a petition for habeas corpus. In his appeal to this court, the petitioner disagrees and argues that neither of his ineffective assistance of counsel arguments was waived.

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 Sec. 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. 1 An exception to the waiver rule has been made in a few cases in which the basis for the claim does not appear in the record. See, e.g., People v. Edmonds, 79 Ill.App.3d 33, 34 Ill.Dec. 555, 398 N.E.2d 230 (1979) (failure to call certain witnesses or to introduce certain evidence); People v. Owsley, 66 Ill.App.3d 234, 22 Ill.Dec. 795, 383 N.E.2d 271 (1978) (attorney convinced unsophisticated defendant not to disclose to trial court any misrepresentations made by him). If in fact the information pertinent to the ineffective assistance of counsel claim was available to the defendant at the time of trial, the ineffective assistance of counsel claim is deemed waived if not presented on direct appeal. See Goins v. People, 103 Ill.App.3d 596, 59 Ill.Dec. 312, 314-15, 431 N.E.2d 1069, 1071-72 (1981). In his post-conviction petition, Devine alleged that his trial counsel erred by presenting an alibi defense, by failing to object to the pathologist's testimony, by attempting to prove that the victim did not die as a result of a gunshot wound to the head, by failing to plea bargain, by making frivolous motions, and by failing to investigate the criminal background of the alibi witnesses or to coordinate the presentation of their testimony. All of the facts supporting these allegations of error appear in the record and were thus available to the defendant at trial. Therefore, it is evident the Illinois Appellate Court's ruling that the petitioner waived his ineffective assistance of trial counsel claim by failing to assert it on direct appeal was nothing more than a routine and proper application of its waiver rule.

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. Sec. 2254(d). The presumption may be rebutted if the petitioner is able to establish one of the eight circumstances listed in the statute. 2 "Section 2254(d) ... applies to factual determinations made by state courts, whether the court be a trial court or an appellate court." Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981). An appellate court's review of the record is a "hearing" within the meaning of Sec. 2254(d). Id. at 546, 101 S.Ct. at 768. In their motion to dismiss the petition for habeas corpus, the respondents referred the district court to the sections of the record pertinent to the issue of whether Devine had been represented by independent counsel on direct appeal. Devine's post-conviction petition challenged only the competency of his trial counsel; although he was represented by his present counsel during the post-conviction proceedings, he failed to allege that his appellate counsel was ineffective. In its answer to the post-conviction petition, the state, acknowledging that Devine's appellate counsel was from the same office as his trial counsel, argued that Devine had failed to present evidence or argument to show why his appellate counsel did not raise the ineffective assistance of trial counsel issue on direct appeal or to establish how and why the waiver rule should be relaxed. Although the petitioner filed two briefs in response to the State's brief, he failed to answer the...

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