Clay v. Director, Juvenile Div., Dept. of Corrections

• Decision Date: 18 December 1984
• Docket Number: No. 83-2950,83-2950
• Citation: 749 F.2d 427
• Parties: Ivie CLAY, a minor, Petitioner-Appellant, v. DIRECTOR, JUVENILE DIVISION, DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 427

749 F.2d 427

Ivie CLAY, a minor, Petitioner-Appellant, v. DIRECTOR, JUVENILE DIVISION, DEPARTMENT OF CORRECTIONS Respondent-Appellee.

No. 83-2950.

United States Court of Appeals Seventh Circuit.

Argued June 7, 1984.

Decided Nov. 16, 1984.

Rehearing and Rehearing En Banc Denied Dec. 18, 1984.

John S. Elson, Northwestern Univ. Legal Clinic, Chicago, Ill., for petitioner-appellant.

Terence M. Madsen, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before BAUER and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.

SWYGERT, Senior Circuit Judge.

Ivie Clay appeals from the district court's grant of summary judgment for the Director of the Juvenile Division of the State of Illinois Department of Corrections and dismissal of her petition for a writ of habeas corpus, and the denial of her motion for summary judgment. For the reasons set forth below we reverse the grant of summary judgment.

I

Clay, a juvenile, was arrested for aggravated assault after she waved a knife at Jose Garcia. According to Clay's undisputed version of events, Clay was standing by the window of her second floor apartment and saw Garcia climbing into the window of the vacant apartment below. Clay had previously seen Garcia try to set fire to her apartment by throwing gasoline and a lighted match on the rear porch. Clay asked Garcia why he was climbing in the window, and Garcia responded that he was going to retrieve his ball from the first floor apartment. Clay offered to retrieve the ball for Garcia, but Garcia persisted in entering the vacant apartment. Clay then went to the kitchen for a knife. From her apartment window, she waved the knife at Garcia who was still hanging onto the window ledge of the apartment below. Garcia then joined a group of boys outside the building who began throwing rocks at Clay and her apartment. Clay then called the police. The police came and arrested Clay after Garcia told them that Clay had a gun. Clay showed the police the knife she waved at Garcia and denied owning a gun. The police searched Clay's apartment and did not find a gun.

Friedman, a public defender, was appointed to represent Clay. Clay told Friedman of the events leading up to her arrest. Although these events might have supported certain legal defenses to the charge against Clay, Friedman did not apprise Clay of the availability of any defenses. Instead, he urged her to enter into a plea agreement. Unaware of any other option, Clay followed Friedman's recommendation to plead guilty with the understanding that she would receive no more than probation or supervision if she admitted guilt.

According to the affidavits of both Friedman and the assistant state's attorney, however, the only agreement was to amend the complaint to read that the weapon used was a knife rather than a gun. Because the amendment reflected the undisputed facts, Clay derived no benefit from the agreement. ¹

On September 28, 1977 Clay pled guilty before Cook County Circuit Judge Rogers. After Clay acknowledged that her guilty plea had been induced by a plea agreement, Judge Rogers advised Clay that the court could "refuse to accept the agreement and enter any order which the Court considers proper including commitment to the Department of Corrections." The judge further advised Clay that she had an unconditional right to withdraw her admission if the court refused to accept the agreement. In re Clay, No. 77 J 8657, Report of Plea Proceedings in Juvenile Court at 6 (Cook County, Ill.Cir.Ct. Sept. 28, 1977). On October 26, 1977 Judge Rogers found Clay guilty of delinquency and committed her to the Illinois Department of Corrections. Id., Report of Dispositional Proceedings in Juvenile Court (Oct. 26, 1977). Although the sentence represented a rejection of Clay's understanding of the plea bargain, Friedman neither moved to withdraw Clay's admission nor informed Clay of her right to do so.

Immediately after the dispositional hearing, Clay's mother telephoned Assistant Director John Elson of the Northwestern University Legal Clinic and asked for assistance. Mrs. Clay told Elson that her daughter had been promised probation in return for her guilty plea and that Friedman "had sold [Clay] down the river." Elson declined representation but called Friedman to inform him of Mrs. Clay's belief that her daughter had been misinformed. Friedman acknowledged to Elson that "there was a real problem with what Ivie Clay understood." Friedman assured Elson that he would file a motion to vacate Clay's plea and that he thought there would not be "a big problem with the matter."

In November 1977 Friedman filed a standard form motion to vacate which contained no specific factual allegations and no mention of Clay's understanding of the plea agreement. The federal district court found the motion "seriously deficient as a presentation of Clay's specific basis for relief." Clay v. Director, 564 F.Supp. 206, 208 (N.D.Ill.1983). At the hearing on the motion to vacate, Clay was represented by another public defender who was unfamiliar with the case and who presented no argument. Neither Clay nor her mother was informed about the motion or the hearing. Judge Rogers summarily denied the motion on February 24, 1978. Report of Proceedings on Motion to Vacate in Juvenile Court (Cook County, Ill.Cir.Ct. Feb. 24, 1978).

In March 1978 Elson learned that nothing had happened on the Clay matter and changed his earlier position declining direct representation of Clay. On March 10, 1978 Elson filed a petition to substitute himself for the Public Defender's Office as Clay's counsel and an amended motion to vacate judgment. On March 16, Elson entered an appearance in the case. The amended motion did not assert ineffective assistance of the public defenders representing Clay "apparently because Elson had not yet seen the original motion to vacate or learned of the manner in which it had been presented at the February 24 hearing. Elson learned of those developments when he appeared before Judge White to argue the amended motion." Clay v. Director, supra, 564 F.Supp. at 210. The hearing before Judge White occurred on March 16, 1978. At that time, Judge White ordered a transcript of the plea proceedings prepared at State expense and reset the motion for April 28, 1978 before Judge Rogers. Report of Proceedings on Amended Motion to Vacate before Judge White (Cook County, Ill.Cir.Ct. March 16, 1978).

At the April 28, hearing Elson urged ineffective assistance of counsel as a basis for considering the amended motion and vacating Clay's delinquency conviction. Judge Rogers ruled that the amended motion was untimely because more than thirty days had lapsed since the order of commitment, see Ill.Rev.Stat. ch. 110A, Sec. 604(d), and because res judicata principles precluded relitigation of claims that could have been raised in the first motion to vacate. Report of Proceedings on Amended Motion to Vacate in Juvenile Court (Cook County, Ill.Cir.Ct. April 28, 1978).

On April 16, 1979 Elson filed a federal habeas petition on behalf of Clay in the United States District Court for the Northern District of Illinois. The court dismissed the petition on respondent's summary judgment motion. Clay v. Director, No. 79 C 1491, Memorandum Opinion and Order (N.D.Ill. Oct. 18, 1979). This court reversed and remanded, finding inter alia (1) that Clay had not waived her constitutional claims by failing to appeal her conviction to the Illinois Appellate Court because there was no basis in the record on which the appellate court could have reversed, and (2) that Clay's failure to appeal was not fatal to her habeas claims because she did not deliberately bypass state procedures. Clay v. Director, supra, 631 F.2d at 523.

On remand the district court found that this court's opinion was not the law of the case because intervening changes in the law altered the standards for waiver. The court, applying the standards set forth in Engle v. Isaac, 456 U.S. 107, 128-35, 102 S.Ct. 1558, 1572-75, 71 L.Ed.2d 783 (1982), and United States ex rel. Spurlark v. Wolff, 699 F.2d 354, 357-61 (7th Cir.1983) (en banc), held that Clay had waived her constitutional claims by failing to present them to the Illinois Appellate Court and that Clay had no cause for her waiver. Clay v. Director, supra, 564 F.Supp. at 210-13. On a motion for reconsideration, the district court rejected Elson's argument that Elson's ineffectiveness was cause for Clay's failure to appeal her delinquency conviction. The court found that "Clay (through her counsel, Elson) deliberately chose to proffer the futility rationale as the sole justification for her procedural default" and refused to permit injection of this "new argument into the litigation at this late date." Clay v. Director, 570 F.Supp. 1322, 1325 (N.D.Ill.1983).

II

We agree with the district court that under current standards Clay must be deemed to have waived her claims by failing to present them to the Illinois Appellate Court. We find, however, that Elson's ineffectiveness is the cause for Clay's procedural default; therefore, habeas corpus relief is not barred.

In United States ex rel. Spurlark v. Wolff, supra, 699 F.2d at 357-61, a majority of this court held that failure to raise a claim on direct appeal from a state court conviction bars federal habeas corpus relief unless the petitioner shows cause for and prejudice from the procedural default. We find no persuasive reason for distinguishing between a failure to take an appeal and a failure to raise an issue on appeal. Cf. United States v. Correa-De Jesus, 708 F.2d 1283, 1285 (7th Cir.) (assuming that Spurlark applies to case involving a complete failure to appeal), cert. denied, --- U.S. ----, 104 S.Ct. 530, 78 L.Ed.2d 712 (1983). But see Crick v. Smith, 650 F.2d 860, 867-68 (6th Cir.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1281, 71 L.Ed.2d 464 (1982); Boyer v. Patton, 579 F.2d 284, 286 (3d Cir.1978). See generally ...