Dently v. Lane

• Citation: 712 F.2d 1172
• Decision Date: 18 July 1983
• Docket Number: No. 82-2360,82-2360
• Parties: Clement DENTLY, Petitioner-Appellee, v. Michael P. LANE and The Attorney General of the State of Illinois, Respondents- Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1172

712 F.2d 1172

Clement DENTLY, Petitioner-Appellee, v. Michael P. LANE and The Attorney General of the State of Illinois, Respondents- Appellants.

No. 82-2360.

United States Court of Appeals Seventh Circuit.

Argued March 31, 1983.

Decided July 18, 1983.

Michael V. Accettura, Chicago, Ill., for respondents-appellants.

Gail A. Niemann, Jenner & Block, Chicago, Ill., for petitioner-appellee.

Before PELL and CUDAHY, Circuit Judges, and JAMESON, Senior District Judge. ^*

JAMESON, District Judge.

This is an appeal from an order granting the petition of Clement Dently for a writ of habeas corpus based on the denial of effective assistance of counsel in state proceedings where Dently was convicted of rape. We reverse.

Factual Background

On July 21, 1973, Janet Donaldson reported to the Danville, Illinois police that while hitchhiking she was picked up by two men who drove her out into the country and raped her. She described her attackers as two negro males, one with a scar on his face and the other wearing a red knit cap and a gold earring in one ear. Two suspects, Dently and Willie Logan, were arrested that evening. The next day they were placed in a lineup with three other men. Donaldson identified Dently, the only person in the lineup with a scar on his face, as an assailant. She thought Logan was the second assailant, but said she could not identify him with certainty because he wasn't wearing an earring and his hair looked different. Logan was represented at the lineup by a privately retained attorney. Dently was not represented.

On August 23, 1973, Dently and Logan appeared for their preliminary hearing. Edward Litak, the Public Defender of Vermilion County, was appointed to represent both. A deputy sheriff testified that Janet Donaldson had positively identified Dently in the lineup, but that she had difficulty identifying Logan. Litak advised Dently to plead guilty to the rape charge in exchange for having the charges of deviate sexual assault and robbery dropped.

On September 17, 1973, Dently and Logan were both charged in a three count indictment with rape, deviate sexual assault, and robbery. Litak represented both defendants at the arraignment on September 21 and advised the court that each defendant wished to enter a plea of not guilty. At the conclusion of the arraignment, Dently told the judge: "I am firing my attorney as of now. I don't want him as my attorney on the grounds he refuses to cooperate with me." The record contains no indication that the trial judge investigated Dently's complaint or questioned him or counsel about the request for a new attorney. The court questioned Dently about his assets and later that day appointed Kenneth Blan, the Assistant Public Defender of Vermilion County, to represent him. It does not appear that the judge told Dently that Blan was an assistant public defender.

Blan graduated from law school in 1971 and was admitted to the bar in November of 1972. He was hired by Litak as an assistant public defender in 1973 with the regular assignment of defending family and juvenile matters. In addition to being public defenders, Litak and Blan each maintained private offices in separate locations and had no other common or professional association. Dently was the first criminal defendant charged with a felony that Blan represented.

Blan first met Dently on September 26, 1973, at the Vermilion County jail. He did not tell Dently at that time or at two subsequent meetings that he was an assistant public defender. A letter to Dently dated October 15, 1973, however, indicated that he was an assistant public defender of Vermilion County.

The trial was first set for October 30, 1973. It was continued for sixty days for the reason that the complaining witness, Janet Donaldson, could not testify at that time because of severe emotional problems. Donaldson suffered from a psychotic condition that caused her to hallucinate and hear voices from inanimate objects. She also suffered from paranoia and had received treatment for hallucinations and paranoia for eight years. On December 26, 1973 Blan and Litak filed a joint motion for the appointment of a psychiatrist to examine Donaldson. The motion was continued to trial when it was denied. Neither attorney made any attempt to subpoena Donaldson's psychiatric records or her psychiatrist.

Dently told Blan on September 26, 1973 that three women could provide an alibi. Blan sent the investigator for the public defender's office to interview them. Blan did not speak with the women himself. They were not called as witnesses at the trial.

On October 24, 1973, Litak filed a motion on behalf of Logan to sever his trial from Dently's, asserting that because of the identification evidence, the defense of one of the defendants would prejudice the other. Blan joined Litak with a similar oral motion at trial, but made no written motion to sever on behalf of Dently. On January 9, 1974, the trial court denied the motion, and Dently and Logan proceeded to trial as co-defendants.

Trial and Subsequent Proceedings

Trial commenced on January 14, 1974. Blan did not make a pretrial motion to suppress the lineup identification of Dently. But at the close of the state's case-in-chief, he did attempt to suppress the lineup identification on the basis it was overly suggestive. The trial judge never ruled on Blan's oral motion because it was untimely, as noted at trial by Litak and the state's attorney.

Blan's principal defense was that the rape might have taken place in Champaign County rather than Vermilion County and thus the prosecution failed to prove the venue element of the crime. Logan was acquitted on all three charges. Dently was found guilty of rape, but acquitted on the charges of deviate sexual assault and robbery.

Blan continued to represent Dently after his conviction. Blan filed a motion for a new trial on January 30, 1974. He represented Dently at the sentencing on March 7, 1974, when Dently was sentenced to not less than ten nor more than thirty years in prison.

Following sentencing on March 7, the deputy defender of the office of state appellate defender was appointed to represent Dently on appeal. The appeal raised only two questions: (1) that the trial court erred in denying Dently's motion for appointment of a psychiatrist to examine Donaldson; and (2) that his sentence was excessive. On September 4, 1975, the Illinois Appellate Court, Fourth District, affirmed petitioner's conviction and sentence. People v. Dently, 31 Ill.App.3d 679, 334 N.E.2d 774 (1975). The Illinois Supreme Court denied Dently's petition for leave to appeal.

Dently then sought relief under the Illinois Post-Conviction Hearing Act (Ill.Rev.Stat.1975, Ch. 38, Par. 122-1). The State's motion to dismiss his petition for post-conviction review was granted on March 17, 1977. ¹ The appellate court affirmed the dismissal on April 14, 1978, in an unpublished order, noting that Dently argued on appeal "(1) that a conflict of interest existed because the public defenders' office represented both Dently and his co-defendant even though the two possessed antagonistic defenses; and (2) that Dently was denied effective assistance of counsel." In affirming the dismissal, the appellate court held that Dently's failure to raise these issues on direct appeal resulted in a waiver precluding post-conviction review.

On October 23, 1978, Dently filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Illinois, alleging that he was denied the effective assistance of counsel in the state proceedings. The State moved for summary judgment, and the district court granted the motion without conducting an evidentiary hearing. Dently appealed and counsel was appointed to represent him. In November 1981, this court reversed and remanded for an evidentiary hearing. Dently v. Lane, 665 F.2d 113 (7 Cir.1981). In an order dated July 27, 1982, the district court granted Dently's habeas petition. On August 4, 1982 the State moved the district court to reconsider the order. That motion was denied on August 12, 1982.

Contentions on Appeal

Appellants contend that the district court erred (1) in not dismissing Dently's petition for writ of habeas corpus based upon the waiver doctrine, since Dently failed to raise the issues of ineffective assistance of counsel and conflicting representation on direct appeal in state court; (2) in holding that Dently's "firing" of Litak should have alerted the trial judge to the possibility of a conflict of interest; (3) and in holding that Dently and his co-defendant were jointly represented and that such joint representation affected the adequacy of Dently's representation; and (4) that Blan's representation of Dently did not fall below the minimum professional standard.

Waiver Doctrine

It is appellants' primary contention on this appeal that since Dently did not raise the issues of ineffective assistance of counsel and conflicting representation on direct appeal, he was precluded under the waiver doctrine from doing so through his habeas corpus petition. At the outset, we note that on April 5, 1982, subsequent to the order of this court remanding for an evidentiary hearing, the Supreme Court decided Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783. On November 17, 1982, subsequent to the order of the district court on remand granting Dently's petition for habeas corpus, this court decided United States ex rel. Veal v. DeRobertis, 693 F.2d 642; and on January 28, 1983, we decided United States ex rel. Spurlark v. Wolff, 699 F.2d 354. We consider the waiver issue in the light of these cases.

As noted above, on direct appeal to the Appellate Court of Illinois, Fourth District, Dently argued unsuccessfully that the trial court should have appointed a psychiatrist to examine the complaining witness and that the sentence imposed was excessive. Dently then filed the petition...