Gornick v. Greer

• Decision Date: 13 May 1987
• Docket Number: No. 86-2458,86-2458
• Parties: James GORNICK, Petitioner-Appellant, v. James GREER, Warden, and Neil Hartigan, Attorney General of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 160

819 F.2d 160

James GORNICK, Petitioner-Appellant, v. James GREER, Warden, and Neil Hartigan, Attorney General of

Illinois, Respondents-Appellees.

No. 86-2458.

United States Court of Appeals, Seventh Circuit.

Argued April 28, 1987.

Decided May 13, 1987.

John Munday, Lane & Munday, Chicago, Ill., for petitioner-appellant.

Kevin Sweeney, Cook County State's Atty. Office, Chicago, Ill., for respondents-appellees.

Before BAUER, Chief Judge, and CUMMINGS and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

The only question before us is whether habeas petitioner, James Gornick, has exhausted his state court remedies on all his claims as required by 28 U.S.C. Sec. 2254(b). See Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). More specifically, the question is whether Gornick can still raise any of his ineffective assistance of counsel claims in a post-conviction proceeding in the state courts of Illinois. The district court determined that the record in Gornick's state trial was inadequate to raise the ineffective counsel claims on direct appeal and therefore those claims can still be raised in a state post-conviction proceeding. The district court therefore held that Gornick failed to fully exhaust his state court remedies and dismissed his federal habeas petition. We affirm.

In 1978, Gornick was convicted and sentenced in the Circuit Court of Cook County, Illinois on a charge of armed robbery of a Jewel Food Store located in River Forest. He was sentenced to thirty years' incarceration. Gornick subsequently filed a habeas corpus petition in federal court and the question of Gornick's exhaustion of his state court remedies is now before us for the fourth time. However, a detailed explication of our prior decisions, the substance of petitioner's claims, and the facts concerning Gornick's crime is unnecessary in resolving the exhaustion question before us.

The relevant facts for this appeal are that Gornick claims his counsel at his state criminal trial provided ineffective assistance of counsel because she failed to (a) pursue certain motions suggested by Gornick; (b) present witnesses suggested by Gornick; and (c) adequately investigate witnesses. She also allegedly suppressed exculpatory material contained in police documents. These issues were apparently presented to the state trial court in a pro se supplemental motion for a new trial that was summarily denied by the trial court. ¹ That motion, however, was not included in the appellate record for Gornick's direct appeal to the Illinois Appellate Court. On his direct appeal to the Illinois Appellate Court, Gornick argued other ineffective assistance of counsel claims, but not the claims contained in his supplemental new trial motion. The Illinois Appellate Court affirmed his conviction and the Illinois Supreme Court denied leave to appeal. ² Gornick has never sought relief through post-conviction proceedings. See Ill.Rev.Stat. ch. 38, Sec. 122-1 et seq. Gornick apparently did raise the pertinent issues in a state habeas corpus petition before the Illinois Supreme Court, but only jurisdictional issues (not the ineffective counsel issues raised by Gornick) can be properly raised in such a proceeding, see People v. Stewart, 66 Ill.App.3d 342, 23 Ill.Dec. 152, 161, 383 N.E.2d 1179, 1188 (1978), cert. denied, 441 U.S. 907, 99 S.Ct. 1998, 60 L.Ed.2d 376 (1979), so the state habeas petition can not be the basis of Gornick's having exhausted his state court remedies. See generally Wallace v. Duckworth, 778 F.2d 1215, 1220-25 (7th Cir.1985) (per curiam).

"The general rule in Illinois is that affirmance of a conviction on appeal acts as res judicata for purposes of a subsequent post-conviction proceeding concerning all issues that were raised or that could have been raised in that appeal." People v. Montgomery, 141 Ill.App.3d 428, 95 Ill.Dec. 733, 735, 490 N.E.2d 206, 208, cert. denied, --- U.S. ----, 107 S.Ct. 224, 93 L.Ed.2d 151 (1986). This rule has been applied strictly, virtually eliminating the post-conviction remedy for any prisoner who has taken a direct appeal. See United States ex rel. Buckhana v. Lane, 787 F.2d 230, 235 (7th Cir.1986); United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1385 (7th Cir.1974). Thus, it is the rule of this circuit "that a petition for a writ of habeas corpus should be dismissed for failure to exhaust [the Illinois post-conviction] remedy 'only if there is direct precedent indicating that under the particular circumstances of a prisoner's case the waiver [and res judicata] doctrine[s] will be relaxed.' " Perry v. Fairman, 702 F.2d 119, 121 (7th Cir.1983) (quoting Brantley, 502 F.2d at 1386). The district court found such a "direct precedent" in People v. Edmonds, 79 Ill.App.3d 33, 34 Ill.Dec. 555, 558, 398 N.E.2d 230, 233 (1979), and People v. Edsall, 94 Ill.App.3d 469, 49 Ill.Dec. 923, 418 N.E.2d 943 (1981) (Edsall II ).

In Perry we recognized that ineffective assistance of counsel claims often involve facts outside the record and therefore such claims can usually be raised in an Illinois post-conviction proceeding. 702 F.2d at 122-23 (collecting Illinois cases). More specifically, ineffective assistance of counsel claims involving failure to present certain witnesses or evidence generally meet the exception since they usually involve facts outside the trial record. See Montgomery, 95 Ill.Dec. at 735, 490 N.E.2d at 208; Edmonds, 34 Ill.Dec. at 558, 398 N.E.2d at 233; People v. Turner, 74 Ill.App.3d 840, 30 Ill.Dec. 400, 404, 393 N.E.2d 55, 59 (1979). These cases constitute "direct precedent" showing that at least one, if not all, of Gornick's ineffective counsel claims can still be raised in a post-conviction proceeding. Petitioner, however, argues that the fact that he raised the claims in his...