U.S. ex rel. Spurlark v. Wolff

• Decision Date: 28 January 1983
• Docket Number: 81-2113,Nos. 81-2063,s. 81-2063
• Citation: 699 F.2d 354
• Parties: UNITED STATES of America ex rel. Nathaniel SPURLARK, Petitioner-Appellee-Cross-Appellant, v. Dennis WOLFF, et al., Respondents-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 354

699 F.2d 354

UNITED STATES of America ex rel. Nathaniel SPURLARK, Petitioner-Appellee-Cross-Appellant, v. Dennis WOLFF, et al., Respondents-Appellants-Cross-Appellees.

Nos. 81-2063, 81-2113.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 19, 1982.

Decided Jan. 28, 1983.

Neal B. Goodfriend, Chicago, Ill., for respondents-appellants-cross-appellees.

Sam Adam, Chicago, Ill., for petitioner-appellee-cross-appellant.

Before CUMMINGS, Chief Judge, PELL, BAUER, WOOD, CUDAHY, POSNER, ESCHBACH and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

PELL, Circuit Judge.

We reconsider the appeal of respondents in this habeas corpus action. ¹ We will review only those facts pertinent to our decision.

I

Petitioner was arrested on August 12, 1972, and charged with possession of cocaine. Due to innumerable continuances, most of which were granted at the request of petitioner's retained counsel, the trial did not begin until November 22, 1976. Because of the delays engendered by petitioner's retained counsel the court required petitioner to be represented by appointed counsel, Cornelius Toole. Petitioner was convicted and appeared for sentencing represented by Toole. At the sentencing hearing Sam Adam, retained by petitioner, appeared and requested permission to appear on petitioner's behalf. The court denied this request and sentenced petitioner to incarceration for a term of fifteen to thirty years.

Petitioner appealed his conviction to the Appellate Court of Illinois, raising four issues. The only claim presented to that court which concerned denial of choice of counsel was stated: "Whether the trial court committed reversible error by denying a non-indigent defendant his constitutional right to be defended by counsel of his own choosing." The arguments presented in support of this contention dealt solely with the claim that the court erred in appointing counsel to defend petitioner at trial. The only reference to denial of choice of counsel at sentencing appeared in one paragraph in the Statement of Facts of defendant's brief that read:

At the sentencing proceedings, held on December 13, 1976, Attorney Sam Adam appearing at the request of the Defendant, sought leave to file his appearance on behalf of the Defendant for the purposes of post-trial proceedings. Attorney Adam's motion for leave to file his appearance was summarily denied.

The state appellate court affirmed petitioner's conviction. The court, understandably, did not address the issue of denial of petitioner's request that Adam represent him at sentencing. People v. Spurlark, 67 Ill.App.3d 186, 23 Ill.Dec. 860, 384 N.E.2d 767 (1st Dist.1978). Petitioner accorded a similar lack of weight to this claim in his Petition for Leave to Appeal filed in the Illinois Supreme Court, which was denied.

Petitioner then sought a writ of habeas corpus under 28 U.S.C. Sec. 2254 in federal district court. That court entered summary judgment for respondents on all issues except the denial of petitioner's request that Sam Adam appear as counsel during sentencing. On this Judge Moran stated, "The court believes that the petitioner was entitled to counsel of his choice at sentencing. The state court's failure to allow petitioner to exercise that choice is grounds for requiring resentencing in state court." We affirmed the decision of the district court. United States ex rel. Spurlark v. Wolff, 683 F.2d 216 (7th Cir.1982). In our previous decision we rejected respondents' claim that petitioner had failed to exhaust state remedies. We noted that petitioner had not presented this claim to the state courts on direct appeal and had therefore forfeited this claim for state collateral attack. 683 F.2d at 222. We did not consider whether petitioner's failure to present his claim to the state courts similarly worked a forfeiture for purposes of a federal habeas action. We now consider this issue in light of the recent decision of the United States Supreme Court in Engle v. Isaac, --- U.S. ----, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and other pronouncements of that court.

II

The possibility of forfeiture or waiver of the claim that the trial court erred in denying petitioner his choice of counsel at sentencing arises from petitioner's failure to present this claim to the state courts on direct appeal. Under state law the failure to present this claim on direct appeal prevents petitioner from raising it in any state post-conviction proceeding, thus the requirement that petitioner exhaust all available state remedies is met as none are now available. The failure to raise the issue on appeal, however, also raises the possibility that the claim may not be brought before a federal court in a habeas petition. It is well established that principles of comity require a state prisoner to present his claims to the appropriate state tribunal before seeking relief in federal court. Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Petitioner seeks to avoid the consequences of his procedural default by arguing that he in fact did present his claim to the state courts. Whether petitioner's presentation was adequate to apprise the state courts of the claimed error must be judged with the purpose of the exhaustion and waiver doctrines in mind. The fundamental requirement that a petitioner first present his claims to the state court is rooted in the belief that "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation." Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950); see also Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). This goal can only be achieved when the issue is presented to the state courts in a manner that fairly allows the court to consider its merits. The Supreme Court has recognized that merely presenting the facts of a case to a state appellate court is insufficient.

We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent "unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution," it is not sufficient merely that the federal habeas applicant has been through the state courts. Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971) (citation omitted.)

Petitioner presented the state courts with the claim that the trial court had violated his "constitutional right to be defended by counsel of his own choosing." (Emphasis added.) Even if the role of counsel at sentencing can be described as "defending," any ambiguity as to the basis of petitioner's claim was removed by the arguments presented, which dealt solely with the appointment of Toole as counsel for the trial and never mentioned the separate sentencing hearing. Given this presentation it is clear that the one paragraph in the statement of facts that referred to the sentencing hearing was not meant, and did not serve, to present this issue to the state courts. ² Rather, "[w]hile with hindsight one can find in the state court records seeds of the argument, so vigorously urged in the federal courts, ... the seeds never came to visible fruition." Needel v. Scafati, 412 F.2d 761, 765 (1st Cir.1969), cert. denied 396 U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 113; see also Katz v. King, 627 F.2d 568, 575 (1st Cir.1980). We turn now to consider the consequences of petitioner's failure to allow the state courts to pass upon the merits of his claim.

III

To determine whether petitioner's failure to raise the issue on appeal bars him from presenting that claim to a federal court in a petition for habeas corpus we must examine the continued vitality of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Noia was convicted of murder on the basis of a confession. He chose not to appeal because of the possibility of receiving the death penalty on retrial, but later sought a writ of habeas corpus in federal court under 28 U.S.C. Sec. 2254. The district court denied Noia's petition because of his failure to appeal. On certiorari the Supreme Court considered "whether Sec. 2254 barred relief on federal habeas corpus where the applicant had failed to exhaust state remedies no longer available to him at the time the habeas proceeding was commenced." Id. at 397, 83 S.Ct. at 826. The Court weighed the state's interest in enforcement of its procedural rules against the federal interest in vindicating its constitutional rights. The balance favored protection of federal rights except in cases of intentional flouting of state procedures.

We fully grant ... that the exigencies of federalism warrant a limitation whereby the federal judge has the discretion to deny relief to one who has deliberately sought to subvert or evade the orderly adjudication of his federal defenses in state court. Surely no stricter rule is a realistic necessity. A man under conviction for crime has an obvious inducement to do his very best to keep his state remedies open, and not to stake his all on the outcome of a federal habeas proceeding which, in many respects, may be less advantageous to him than a state court proceeding. Id. at 433, 83 S.Ct. at 846.

In Fay the Court phrased its holding in terms that encompassed all procedural defaults, stating that "the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in doing so has forfeited his state remedies." Id. at 438, 83 S.Ct. at 848. In Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969), the Court applied Fay's deliberate by-pass test to a federal prisoner who had objected to the introduction of evidence at trial but had not raised the issue on appeal. ...