Liegakos v. Cooke, 96-2764
| Decision Date | 20 March 1997 |
| Docket Number | No. 96-2764,96-2764 |
| Citation | 108 F.3d 144 |
| Parties | Jon T. LIEGAKOS, Petitioner-Appellant, v. Maryanne COOKE, Warden, Kettle Moraine Correctional Institution, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Before FLAUM, EASTERBROOK, and EVANS, Circuit
On Petitions for Rehearing
Wisconsin contends, in a petition for rehearing, that our decision concerning the effect of State v. Escalona-Naranjo, 185 Wis.2d 168, 517 N.W.2d 157 (1994), is inconsistent with Gray v. Netherland, --- U.S. ----, ---- - ----, 116 S.Ct. 2074, 2080-81, 135 L.Ed.2d 457 (1996). Because the subject presented by this case is sure to recur, we briefly address this contention.
Our opinion holds that prisoners whose direct appeals came after Bergenthal v. State, 72 Wis.2d 740, 242 N.W.2d 199 (1976), but before Escalona-Naranjo, are entitled to raise constitutional arguments in federal court under 28 U.S.C. § 2254 without justifying their omission from the briefs on direct appeal. Bergenthal held that such a showing was unnecessary as a matter of Wisconsin practice, and we concluded that retroactive application of Escalona-Naranjo, which overruled Bergenthal, is not the sort of state procedural rule that forecloses collateral review in federal court. Relying on Ford v. Georgia, 498 U.S. 411, 424, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991), Trevino v. Texas, 503 U.S. 562, 566-68, 112 S.Ct. 1547, 1549-50, 118 L.Ed.2d 193 (1992), and Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363, 1380-81 (7th Cir.1994) (en banc), we held that only a procedural rule in force at the time of the acts done (or omitted) by the defendant establishes the sort of "independent and adequate state ground" that blocks collateral review under § 2254.
According to Wisconsin, this analysis is inconsistent with Gray. That contention is something of a surprise, for Gray did not discuss Trevino, Ford, or any of their predecessors. What Gray held is that a prisoner's failure to present an available constitutional claim to state court during an initial collateral attack, despite a state rule requiring such presentation, is a forfeiture that prevents collateral review in federal court unless the prisoner satisfies the standards of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Nothing in our opinion questions the proposition, reaffirmed in Gray, that a prisoner's failure to comply with a state's rules specifying the right time and court for...
To continue reading
Request your trial
-
Wisconsin ex rel. Toliver v. McCaughtry
..."establishes the sort of `independent and adequate state ground' that blocks collateral review under § 2254." Liegakos v. Cooke, 108 F.3d 144, 145 (7th Cir.1997) ("Liegakos II") (on petitions for rehearing describing holding of Liegakos I); see also Moore v. Parke, 148 F.3d 705, 709 (7th Ci......
-
Braun v. Powell
...state rule is "adequate to prevent federal collateral review." Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.), reh'g denied, 108 F.3d 144 (7th Cir.1997). A state rule is adequate to prevent federal review only if it was a "firmly established and regularly followed state practice" at the ......
-
Szabo v. Walls
...Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988); Liegakos v. Cooke, 106 F.3d 1381, rehearing denied, 108 F.3d 144 (7th Cir. 1997). Ever since 1964 the law on the books in Illinois has specified that a prisoner is entitled to only one post-conviction proceeding. ......
-
Braun v. Powell
...of Escalona-Naranjo is not an 'adequate' state ground for appeals briefed before its announcement."); see also Liegakos v. Cooke, 108 F.3d 144, 145 (7th Cir. 1997) (on petition for rehearing) (per curiam) ("Our opinion holds that prisoners whose direct appeals came after Bergenthal v. State......