Cruz v. Warden of Dwight Correctional Center

• Decision Date: 16 July 1990
• Docket Number: No. 89-1962,89-1962
• Citation: 907 F.2d 665
• Parties: Arlene CRUZ, Petitioner-Appellant, v. WARDEN OF DWIGHT CORRECTIONAL CENTER and Neil F. Hartigan, Attorney General of the State of Illinois, 1 Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 665

907 F.2d 665

Arlene CRUZ, Petitioner-Appellant, v. WARDEN OF DWIGHT CORRECTIONAL CENTER and Neil F. Hartigan Attorney General of the State of Illinois,¹ Respondents-Appellees No. 89-1962.

United States Court of Appeals Seventh Circuit.

Argued March 6, 1990.

Decided July 16, 1990.

Frederick F. Cohn, Chicago, Ill., for petitioner-appellant.

Terence M. Madsen, Michele I. Lavin, Asst. Attys. Gen., Bradley P. Halloran, Office of the Atty. Gen., Chicago, Ill., for respondents-appellees.

Before WOOD, Jr., KANNE, Circuit Judges, and PELL, Senior Circuit Judge.

KANNE, Circuit Judge.

Petitioner-appellant, Arlene Cruz, appeals from the denial of her petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. The district court dismissed her petition for failure to exhaust state remedies. The issue on appeal is whether the district court properly dismissed Cruz's habeas petition on the ground that she did not fairly present her ineffective assistance of counsel claims to the state courts and that a remedy is available under the Illinois Post-Conviction Hearing Act. We affirm the decision of the district court.

I. PROCEDURAL HISTORY

On July 26, 1985, Cruz was convicted of aggravated battery of a minor child in the Circuit Court of Cook County. Cruz immediately appealed her conviction to the Appellate Court of Illinois contending, inter alia, ² that she was denied the effective assistance of trial counsel when counsel failed:

(1) to call her as a witness at the suppression hearing to establish that her confession had been involuntary; and

(2) to move to quash her arrest as illegal and to suppress her confession as a product of that arrest.

Contemporaneous with her direct criminal appeal, Cruz filed a petition for post- conviction relief alleging, inter alia, ³ that she was denied the effective assistance of trial counsel when counsel failed:

(1) to call her as a witness at the suppression hearing to establish that her confession had been involuntary; and

(2) to prepare adequately for the suppression hearing or for the trial which caused counsel to fail to move to suppress her confession as having been obtained in violation of the fourth amendment. ⁴

The trial court refused to rule on the petition for post-conviction relief pending the outcome of the direct appeal because the petition raised issues similar to those asserted in the direct appeal. The appellate court affirmed her conviction in People v. Cruz, 158 Ill.App.3d 1100, 121 Ill.Dec. 541, 525 N.E.2d 599 (1st Dist.1987). Cruz then filed a petition for rehearing in which she argued that she testified solely as a response to the admission of her confession, and consequently that the district court improperly resolved the question of whether her confession had been erroneously admitted by concluding that her testimony was incredible. The court denied her petition for rehearing on August 24, 1987. The Illinois Supreme Court denied her leave to appeal on December 22, 1987, 117 Ill.2d 547, 115 Ill.Dec. 403, 517 N.E.2d 1089, and the United States Supreme Court denied her petition for a writ of certiorari on May 2, 1988. 485 U.S. 1035, 108 S.Ct. 1595, 99 L.Ed.2d 910 (1988). Cruz never pursued the post-conviction petition or sought to have it dismissed after the trial court's initial refusal to hear it.

Cruz then filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 which is the subject of this appeal. In addition to the ineffective assistance of counsel claims Cruz raised in her direct appeal and post-conviction petition, she asserted in the habeas petition, as she had in the petitions for rehearing and for leave to appeal, that counsel's performance prejudiced her in that she would not have testified at trial had the court suppressed her confession. Respondents moved to dismiss the habeas petition on the ground that Cruz had failed to exhaust state remedies. The district court granted the motion to dismiss on April 19, 1989. The district court concluded that "[d]etermining whether Ms. Cruz's attorney performed deficiently in preparing and conducting the suppression hearing and whether this alleged deficiency prejudiced Ms. Cruz by forcing her to testify to counter the statement she provided to [the] police require an evaluation of the circumstances which preceded the suppression hearing and events which occurred outside the trial. Ms. Cruz therefore could not have raised these issues in her direct appeal. Ms. Cruz therefore may still raise these issues in a state post-conviction petition." Cruz appeals from this decision.

II. CASE LAW

A petition for a writ of habeas corpus must be dismissed if state remedies have not been exhausted as to any one of a petitioner's federal claims. Castille v. Peoples, 489 U.S. 346, ----, 109 S.Ct. 1056, 1059, 103 L.Ed.2d 380 (1989). In deciding whether Cruz has exhausted her state remedies, we must consider whether she "fairly presented" her claims to the state courts and whether a meaningful and presently available state remedy exists. See Varnell v. Young, 839 F.2d 1245, 1248 (7th Cir.1988). "A habeas petitioner has ' "fairly presented" a claim to a state court if he has clearly informed the state court of the factual basis of that claim and has argued to the state court that those facts constituted a violation of the petitioner's constitutional rights.' " Id. (quoting Toney v. Franzen, 687 F.2d 1016, 1021 (7th Cir.1982)). If a claim has not been fairly presented, a federal court may nonetheless consider a habeas petition if "there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. Sec. 2254(b). That is, the state remedies must be available to the petitioner at the time he files the federal habeas petition, and the remedy must be a meaningful one in that the outcome is not preordained or otherwise futile. Gray v. Greer, 707 F.2d 965, 967 (7th Cir.1983).

III. DISCUSSION

A. Cruz Has Not Fairly Presented Her Ineffective Assistance

of Counsel Claims to the State Courts

As a preliminary matter, we note the difference between the ineffective assistance claims as stated in the brief on appeal and the post-conviction petition. ⁵ The emphasis of claim (2) as presented in the direct appeal is on counsel's failure to make two specific motions at trial, that is, to move to quash the arrest as illegal and to move to suppress Cruz's confession as the product of an illegal arrest. The emphasis of claim (2) as presented in the post-conviction petition is on counsel's failure to prepare for the suppression hearing and to prepare for trial which caused counsel to fail to move to quash the arrest as illegal and to move to suppress Cruz's confession as the product of an illegal arrest. We do not think that these are equivalent for two reasons. First, claim (2) in the direct appeal addresses only counsel's deficiencies in conducting the trial; whereas, the post-conviction petition also addresses counsel's deficiencies at the suppression hearing. Nor do we think that the failure to prepare for the suppression hearing is subsumed in the statement of claim (1) on direct appeal which solely addresses counsel's failure to take a specific action at the suppression hearing, that is, to call Cruz as a witness. Second, the direct appeal addresses counsel's failure to make specific motions at trial; whereas, the post-conviction petition addresses the failure to prepare for trial which caused counsel to fail to make these motions at trial.

Given our conclusion that the claims as presented in the direct appeal and the post-conviction petition are not equivalent, the first issue we must consider is whether appending the post-conviction petition to the brief on direct appeal was sufficient to fairly present the failure to prepare claim to the state appellate court. Cruz argues that it was. We disagree.

The opinion of the appellate court does not address the failure to prepare claim, nor could it. The record before the court was not sufficiently developed to enable the court to consider this claim. While the appeal was pending, Cruz did attempt to obtain an evidentiary hearing in the trial court so to develop the record; however, the trial court refused to act until the appellate court ruled. It does not appear that Cruz renewed the request for an evidentiary hearing once the appellate court ruled. Despite Cruz's effort, without the necessary facts on record, we cannot say that the failure to prepare claim was "fairly presented" to the appellate court.

Even if, as a general matter, appending the post-conviction petition to the appellate brief would be sufficient to fairly present the failure to prepare claim, it is insufficient here because Cruz's habeas petition contained a claim that she did not present, and could not have presented, in the post-conviction petition since it was filed contemporaneously with her direct appeal. It was not until her petition for rehearing, in reaction to the appellate court's conclusion that her testimony was incredible, that Cruz began to argue that she was prejudiced by counsel's ineffectiveness in that she would not have testified had her confession been suppressed. Cruz contends that her petition for rehearing and appeal to the Illinois Supreme Court provided the state courts with an opportunity to consider her claim that counsel failed to prepare and that she was prejudiced by counsel's ineffectiveness. (We will refer to these contentions as Cruz's "expanded" claim.) Thus, we must decide whether the expanded claim was fairly presented by Cruz's petitioning for rehearing or appealing to the Illinois Supreme Court. The appellate court denied the petition for rehearing, and the Illinois Supreme Court denied her leave to appeal. Cruz argues that although "no proper review ever was had on the issue," the state courts had a full opportunity to...