U.S. ex rel. Russo v. Attorney General of Illinois

• Decision Date: 07 January 1986
• Docket Number: 84-1721,Nos. 83-1520,s. 83-1520
• Citation: 780 F.2d 712
• Parties: UNITED STATES of America ex rel. Dudley James RUSSO, Petitioner-Appellant, v. ATTORNEY GENERAL OF ILLINOIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 712

780 F.2d 712

UNITED STATES of America ex rel. Dudley James RUSSO Petitioner-Appellant, v. ATTORNEY GENERAL OF ILLINOIS, Respondent-Appellee.

Nos. 83-1520, 84-1721.

United States Court of Appeals Seventh Circuit.

Argued May 23, 1985.

Decided Jan. 7, 1986.

Emanuel M. Krakauer, Chicago, Ill., for petitioner-appellant.

Kenneth A. Fedinets, Office of Illinois Atty. Gen., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and WYATT, Senior District Judge. ^*

PER CURIAM.

Petitioner-appellant Dudley James Russo, who initially was successful in his bid for habeas corpus relief, 28 U.S.C. Sec. 2254, appeals from a final order of the district court denying, upon reconsideration, Russo's petition for writ of habeas corpus.

I.

Russo's claims arise out of his pleas of guilty to state charges of armed robbery and murder, tendered one day after trial began. The state court, in sentencing Russo to concurrent terms of twenty to forty years incarceration, failed to inform him of the mandatory parole term which, by operation of law, attached to his sentence.

Notice of appeal from the circuit court judgment of conviction was filed on June 28, 1974, and a state appellate defender was appointed to represent Russo on December 12, 1974. One year later, Russo received a letter from the state appellate defender who introduced herself as Russo's attorney and attendantly informed him that she was filing with the court a motion for leave to withdraw as appellate counsel and an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel further informed Russo that he had thirty days within which to communicate to the court any errors he thought could have been raised. Counsel did not consult with Russo either in person or by mail prior to filing the Anders brief. In the Anders brief, counsel stated that the only argument that could possibly be raised on appeal was the trial court's failure to admonish Russo, pursuant to Ill.Sup.Ct.R. 402, Ill.Ann.Stat. ch. 110A, p 402 (Smith-Hurd 1985), of certain rights prior to the acceptance of his guilty plea. Russo claims that despite numerous requests he never received the transcript of the proceedings necessary to proceed with the appeal pro se.

In its Rule 23 order, the Illinois appellate court permitted counsel to withdraw and affirmed the convictions in an unpublished order. People v. Frustine, 36 Ill.App.3d 1079, 350 N.E.2d 375 (1st Dist.1976). Russo's first petition for a writ of habeas corpus was dismissed for failure to exhaust his state post-conviction remedies. He then sought post-conviction relief, Ill.Ann.Stat. ch. 38, p 122-1, raising two issues: (1) the trial court's acceptance of his guilty plea without holding a hearing on his competency to stand trial violated his due process rights; and (2) trial counsel's failure to request such a hearing constituted ineffective assistance of counsel. Russo was unsuccessful at the trial court level and on appeal. People v. Russo, 61 Ill.App.3d 1110, 21 Ill.Dec. 610, 381 N.E.2d 1057 (1st Dist.1978) (unpublished order).

Russo's second attempt to gain habeas corpus relief was successful--initially. The district court was persuaded that Russo was denied the effective assistance of appellate counsel:

In Russo's appeal, the State Appellate Defender did not afford the petitioner the level of conscientious investigation of facts, marshalling of the law and presentation of arguments which Anders requires before a motion to withdraw. The appellate defender failed to ever consult, confer or inquire of petitioner concerning any of the events and issues surrounding trial prior to the motion to withdraw. Any genuine opportunity that the petitioner may have had to show that his appeal had hidden merit was denied him because of the absence of essential attorney-client contact.

Citing Sutton v. Lash, 576 F.2d 738 (7th Cir.1978), the district court further found that Russo had been denied his right to appeal through the state's failure to provide him "transcripts and a trial record." ¹ The court ordered Russo's release but stayed the order to permit the state to provide a meaningful appeal.

The district court, pursuant to respondent's motion, subsequently reconsidered its decision. With respect to the Anders claim, the court concluded that actual consultation with the client prior to the filing of an Anders brief is desirable but not constitutionally compelled. Alternatively, if such consultation is constitutionally required, counsel's failure to consult with Russo was harmless error. Noting that a defendant who pleads guilty waives all constitutional challenges based on events that occurred prior to the entry of the plea, Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), the district court found that Russo's only challenge on direct appeal could have been to the trial court's failure to inform him of the mandatory parole term. According to the district court, when Russo appealed in 1974, this claim "could not have been made" because it was not until 1975 that the Illinois Supreme Court held that Illinois law requires that a defendant be informed of a mandatory parole term.

The district court further reconsidered its holding that Russo had been denied his right to appeal. Since only the voluntariness of the guilty plea could be challenged on direct appeal, only the transcript of the change of plea proceeding was necessary to pursue the appeal. The court found that this transcript had been forwarded to Russo.

Finding it necessary to address Russo's third claim, the district court held Russo was not entitled to relief under United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir.1977), because there was no evidence that the trial judge agreed to impose a specific sentence.

Russo's subsequent motion for relief from judgment was denied. A certificate of probable cause to appeal was issued. Russo tenders the same arguments on appeal and additionally claims that the district court erred in considering for the first time on a motion for reconsideration respondent's contention that Russo had indeed received the transcript of the change of plea proceeding.

II.

In Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), the Court, noting that appellate counsel must play the role of an active advocate rather than that of amicus curiae, set forth the appropriate procedure to be followed when counsel seeks to withdraw.

[I]f counsel finds his [client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court--not counsel--then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

As we read Anders, counsel renders constitutionally adequate assistance when he conscientiously examines the case; files a brief referring to anything in the record that might arguably support the appeal; forwards a copy of the brief to the defendant; and informs the defendant of his right to present to the court other issues which he feels have merit. We agree with the Court of Appeals for the Fourth Circuit that although actual consultation with the defendant prior to the filing of the request to withdraw and accompanying Anders brief is highly desirable, ² it is not constitutionally required. Smith v. Cox, 435 F.2d 453, 458-59 (4th Cir.1970), vacated on other grounds sub nom. Slayton, Penitentiary Supt. v. Smith, 404 U.S. 53, 92 S.Ct. 174, 30 L.Ed.2d 209 (1971) ³ Russo does not claim that he did not receive a copy of the Anders brief nor does he contend that he was not given adequate time to inform the court of any arguments he wished to raise. Rather, he contends that he was effectively denied his right to appeal because he never received the records and transcripts necessary to do so. We turn now to an examination of this due process-equal protection claim. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).

III.

Russo does not dispute the state's contention that, because one who pleads guilty "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea," Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973), the only relevant transcript was that of the change of plea proceeding. Russo claims only that he did not receive this transcript. In its second order, the district court found otherwise. ⁴ In a subsequent Rule 60(b) motion Russo contended that the district court's finding was erroneous. Attached to the motion were the respective certifications appearing at the end of Russo's copy of the common-law record and at the end of the record that was filed with the appellate court. The former certifies that the foregoing is a "perfect and complete copy of the common law record." The latter certifies that the foregoing is a "perfect and complete copy of the common law record" including the original of the report of proceedings filed pursuant to Ill.Sup.Ct.R. 608(b), Ill.Ann.Stat. ch. 110A, p 608 (Smith-Hurd 1985). The district court noted that although Exhibit AA, the certification appearing at the end of the record received by Russo, indicated that the "common law record" received by Russo did not include the transcript of the change of plea proceeding, the state, relying on Ill.Sup.Ct.R. 402(e), Ill.Ann.Stat. ch. 110A, p 402 (Smith-Hurd 1985), continued to maintain that Russo received the transcript as part of the common-law record. The district court found this factual dispute immaterial to resolution...