U.S. ex rel. Bradley v. Lane

• Decision Date: 23 December 1987
• Docket Number: No. 85-2347,85-2347
• Citation: 834 F.2d 645
• Parties: UNITED STATES of America, ex rel. Frank BRADLEY, Petitioner-Appellant, v. Michael P. LANE, Director of the Illinois Department of Corrections, and Neil F. Hartigan, Attorney General of the State of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 645

834 F.2d 645

UNITED STATES of America, ex rel. Frank BRADLEY, Petitioner-Appellant, v. Michael P. LANE, Director of the Illinois Department of

Corrections, and Neil F. Hartigan, Attorney

General of the State of Illinois,

Respondents-Appellees.

No. 85-2347.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 15, 1986.

Decided Nov. 24, 1987.

Rehearing and Rehearing En Banc

Denied Dec. 23, 1987.

Lori S. Klingman, Glencoe, Ill., for petitioner-appellant.

Arleen C. Anderson, Office of Ill. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CUMMINGS and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

WILLIAM J. CAMPBELL, Senior District Judge.

Petitioner/appellant Frank Bradley appeals the district court's denial of his petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254. Petitioner raises several arguments, mainly along Sixth Amendment On June 16, 1982 Bradley was convicted by a jury in the circuit court for the State of Illinois of taking indecent liberties with a minor, in violation of Ill.Rev.Stat. ch. 38, Sec. 11-4(a)(3). He was sentenced to a four-year term of imprisonment. On direct appeal to the Appellate Court of Illinois, Fourth District, Bradley presented one argument--that he was entitled to a new sentencing hearing because the trial court had failed to consider "periodic imprisonment" as an alternative sentence. This argument was rejected and his conviction affirmed (see People v. Bradley, 113 Ill.App.3d 1172, 75 Ill.Dec. 384, 457 N.E.2d 174 (1983)). Leave to appeal was denied by the Illinois Supreme Court on October 4, 1983.

                ineffective assistance of counsel lines.  Respondents/appellees Michael Lane, Director of the Illinois Department of Corrections, and Neil Hartigan, Attorney General of the State of Illinois assert the arguments advanced by petitioner were waived by his failure to raise them during the state court appellate proceedings (see Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977)).  Petitioner Bradley counters that his failure to raise the relevant arguments was due to the ineffective assistance of counsel he received and, in essence, fulfills the "cause" requirement set forth in Wainwright.    Bradley also concludes he was prejudiced by his counsel's ineffective performance.  In the alternative, respondents argue petitioner's counsel met minimal Sixth Amendment--Due Process requirements as enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).  For the reasons set forth below, we will affirm the district court's denial of habeas corpus relief
                

Thereafter, Bradley filed a petition for relief under the Illinois Post-Conviction Hearing Act (Ill.Rev.Stat.1983, ch. 38, par. 122-1 et seq.). Petitioner presented a full panoply of arguments at this point: that he was convicted under an unconstitutionally vague statute; that the information charging him was defective, resulting in a lack of trial court jurisdiction; that he was unconstitutionally denied a prompt preliminary hearing as required by the Illinois Constitution; and that his constitutional guarantee against double jeopardy was violated. Bradley also advanced several arguments under a single ineffective assistance of counsel heading. Bradley argued errors at trial by his counsel deprived him of his due process rights and Sixth Amendment right to a fair trial. He concluded the cumulative effect of his counsel's errors amounted to ineffective assistance of counsel and warranted a new trial. The circuit court rejected these arguments. The Appellate Court of Illinois, Fourth District, also denied petitioner relief (see People v. Bradley, 128 Ill.App.3d 372, 83 Ill.Dec. 701, 470 N.E.2d 1121 (1984)). The Supreme Court of Illinois again denied leave to appeal.

Having properly exhausted his state remedies (see, for example, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)), Bradley petitioned the United States District Court for the Central District of Illinois for habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 raising many of the "post-conviction" arguments advanced above. The district court, 612 F.Supp. 795, denied the petition. Bradley appeals. As stated earlier, we affirm.

Although there is good reason to believe petitioner's post-conviction arguments were waived under the law of Wainwright v. Sykes, supra, and much time is spent arguing this point in the briefs, we will refrain from a Wainwright "cause-and-prejudice" analysis in this case, which could get rather cumbersome, and move directly to petitioner's post-conviction arguments, which we believe lack merit and can be dismissed rather quickly. In other words, assuming arguendo the Wainwright "cause and prejudice" test does not preclude us from hearing the post-conviction arguments of petitioner, we believe he would still not prevail.

Petitioner's main argument is that he was denied effective assistance of counsel at both the trial and appellate levels as guaranteed by the Sixth Amendment to the United States Constitution. Many examples are raised. Bradley claims his trial counsel failed to object to the trial court's On a separate but related front, Bradley claims his trial counsel was hindered by a conflict of interest. Bradley argues his counsel had a "negative mental disposition" or a negative "overall attitude" toward him, making counsel more an adversary than an advocate. This is evidenced, Bradley asserts, by the fact that the victim in this case, his daughter, was abused by petitioner's brother-in-law in a previous incident. At that time Bradley's trial counsel in the instant case "made accusations" about petitioner's dubious role in the protection of his daughter. Petitioner points out his trial counsel was the only public defender in Livingston County, Illinois during the time of his trial and suggests private counsel or a public defender from another county would have been more appropriate.

                questioning of a witness, which he concludes amounted to inappropriate judicial rehabilitation of a prosecutor's witness.  Bradley also argues his counsel failed to object "when the prosecuting attorney shifted the burden of proof to him."    He claims his counsel failed to assert his rights by waiving his opening statement, calling no witnesses, proffering no evidence and resting his case when the state finished its case-in-chief.  Petitioner claims his counsel should have warned him not to speak to a social worker who visited his home, a visit which ultimately produced incriminating statements by Bradley that the social worker brought out at trial.  Finally, petitioner notes his appellate counsel raised only one issue on direct appeal to the state appellate court, the propriety of his sentence, which petitioner believes is a nonissue
                

In Strickland, supra, the Supreme Court set forth the following guidelines and principles in analyzing a defendant's ineffective assistance of counsel claim:

The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.... A convicted defendant's claim that counsel's assistance was so defective as to require reversal ... has two components. First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.... [T]he proper standard for attorney preformance is that of reasonably effective assistance.... [T]he defendant must show that counsel's representation fell below an objective standard of reasonableness.... [E]very effort (must) be made to eliminate the distorting effects of hindsight ... [a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

104 S.Ct. at 2064-65 (citations omitted) (parenthesis added).

The Strickland court continued:

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.... Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Id. at 2066-67 (citations omitted).

The Court concluded:

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Id. at 2067-68.

We conclude defendant has failed to meet his burden under Strickland and a reversal along ineffective assistance of counsel grounds is unwarranted. Bradley's objection to the trial judge's questioning of his daughter, the victim in this case (see appendix), is without merit. The questioning As for Bradley's assertion that his trial counsel failed to aggressively defend him due to a lack of an opening statement, the failure to present witnesses, and the resting of his case when the state completed its case-in-chief, we conclude such trial tactics do not constitute an ineffective assistance of counsel under the circumstances of this case. The record reveals Bradley's counsel made repeated objections at trial, vigorously cross-examined several key witnesses including the complainant, moved for a directed verdict, and gave what the state appellate court described as a persuasive closing argument. Defense counsel moved to secure funds for a psychiatric examination of petitio...