U.S. ex rel. Thomas v. O'Leary

• Decision Date: 20 October 1988
• Docket Number: No. 87-2538,87-2538
• Parties: UNITED STATES of America ex rel. Marlon THOMAS, Petitioner-Appellee, v. Michael O'LEARY, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1011

856 F.2d 1011

57 USLW 2200

UNITED STATES of America ex rel. Marlon THOMAS, Petitioner-Appellee, v. Michael O'LEARY, Respondent-Appellant.

No. 87-2538.

United States Court of Appeals Seventh Circuit.

Argued Feb. 17, 1988.

Decided Sept. 16, 1988.

Rehearing and Rehearing En Banc Denied Oct. 20, 1988.

Catherin L. Grahn, Grahn & Grahn, Ltd., Chicago, Ill., for petitioner-appellee.

Joan G. Fiekinger, Office of Ill., Atty. Gen., Chicago, Ill., for respondent-appellant.

Before BAUER, Chief Judge, and WOOD and COFFEY, Circuit Judges.

BAUER, Chief Judge.

Respondent-appellant Michael O'Leary, warden at Illinois's Stateville Correctional Center, appeals the district court's grant of petitioner-appellee Marlon Thomas's petition for a writ of habeas corpus. O'Leary contends that the district court erred in holding that Thomas was denied effective assistance of counsel on the State of Illinois's appeal from the state trial court's decision to suppress statements made by Thomas and a companion or, in the alternative, that any such denial was harmless error. For the following reasons, we affirm.

I.

Late in the evening of March 6, 1974, Gina Somodi and a friend, James Ward, were walking near the intersection of 92nd Street and Woodlawn Avenue in Chicago, where they passed two other youths. Racial slurs were exchanged, and Ward asked the two youths if there was a problem. To avoid a confrontation, Somodi pulled Ward away and the two continued walking. One of the two other youths then yelled "stop or you're dead." He meant it. The same youth fired two shots, one of which entered Somodi's head. The shooter and his companion fled south on Woodlawn Avenue.

By 10:20 p.m., when Chicago Police Officer Yucaitis arrived at the scene, Somodi was dead. Yucaitis talked to Ward, who described the shooter as a black male, five-foot-eight or -nine inches tall, between sixteen and nineteen years old, 150 pounds, and wearing dark clothes. Ward described the other youth as a black male, maybe five-foot-five, and on the skinny side. Yucaitis also talked to a man named Gopfert, who witnessed the shooting through the front window of a nearby tavern. According to Yucaitis, Gopfert's description of the taller of the two youths matched Ward's, but Gopfert described the other youth as a shorter female. Gopfert also said he believed the shots were either from a .32 or .38 caliber revolver.

Sometime later that night, police received an anonymous phone call identifying Somodi's killer as James Houston, who fit one of the youth's descriptions and lived at 96th Street and Woodlawn. When the police talked to Houston, however, he was able to verify that he was home all evening. But Houston also told police that, earlier, at about 9:00 p.m. that evening, Thomas and a shorter friend had come to his home and attempted to buy .38 caliber bullets from him. Houston said he did not sell or give them any bullets.

Houston then led about ten or eleven Chicago police officers to Thomas's residence at 9628 South Woodlawn--by now, it was about 3:00 a.m. on March 7--where they found Thomas home alone in his underwear. Thomas said he lived with his father, but that he did not know his father's whereabouts. After Thomas denied knowing Houston or anything about a shooting, police arrested him, informed him of his rights, and searched his home without a warrant or consent. Police then took Thomas, handcuffed, to the police station, where he was again informed of his rights, which Thomas said he understood.

At the station, police had four conversations with Thomas between 3:30 and 6:00 a.m. on March 7. The first conversation lasted five minutes, during which Thomas denied committing murder. The second occurred when two officers, after conferring with Houston, threatened Thomas with a confrontation with Houston. This time, Thomas again denied committing murder, but admitted that he and Louis Clark, a friend, had tried to purchase bullets from Houston. Police then found Clark, who identified Thomas as the shooter, and when police confronted Thomas a third time with Clark's statement, Thomas admitted involvement in the shooting. The final conversation between police and Thomas occurred at about 5:30 a.m. when, after being advised of his rights one more time, Thomas again admitted his involvement in the shooting.

At some point after bringing him to the police station, police learned that Thomas was only thirteen years old. At that time, the police called his home, did not reach anyone, and that was it. It was not until the fourth conversation between police and Thomas that Thomas's father, Samuel Thomas, arrived at the station. Throughout the questioning, Thomas was handcuffed to a restraining ring on the interview-room wall. He did not eat, and was not permitted to sleep. Police described him as belligerent and cocky during the interviews, but Thomas's self-confidence apparently waned by the last interview. After the fourth conversation, Samuel Thomas signed a consent-to-search form for his residence, where police recovered a .38 caliber revolver behind the furnace in the basement.

On April 1, 1974, the State of Illinois succeeded in transferring Thomas's case from the juvenile to the adult division of the Criminal Court of Cook County. After a probable cause hearing on April 30, 1974, a grand jury indicted Thomas for murder on May 27. Thomas was arraigned on June 17, 1974. On September 1, 1977, more than three years after the shooting, Thomas's attorneys moved to quash Thomas's arrest for lack of probable cause and to suppress all evidence derived from it. On September 1 and 2, 1977, Cook County Circuit Court Judge Aubrey Kaplan conducted a hearing on Thomas's motion, during which witnesses for both sides testified and were cross-examined. Judge Kaplan then granted Thomas's motion. Finding Thomas's arrest illegal, the judge suppressed Thomas's and Clark's statements, but denied Thomas's motion to suppress the physical evidence discovered at his father's residence.

The State of Illinois appealed Judge Kaplan's ruling suppressing the statements pursuant to Illinois Supreme Court Rule 604(a)(1), Ill.Rev.Stat. ch. 110A, p 604(a)(1), which provides that, in criminal cases, the State may appeal from an order quashing an arrest or suppressing evidence. The State sent a copy of the Notice of Appeal to Thomas and his attorneys, as well as copies of subsequent State motions and copies of the State's brief. On October 13, 1978, the State moved to set the case for oral argument, advising the Illinois Appellate Court that the defendant had not yet filed a brief. The Appellate Court denied the State's motion on October 20, 1978. On October 30, Illinois Appellate Court Justice Sullivan sent a letter addressed only to the State indicating that, after a review of the record and the State's brief, no oral argument was necessary.

A few days later, on November 2, 1978, Thomas's attorneys moved for an extension of time in which to file a brief on his behalf and to set the case for oral argument. On November 9, however, the appellate court, basing its decision solely on the record and the State's brief, reversed Judge Kaplan's ruling, holding Thomas's arrest valid and his statements voluntary. On November 17, eight days after the court had ruled on the merits, Justice Sullivan denied Thomas's motions for an extension of time in which to file a brief and to set a date for oral argument.

Thomas was tried and convicted of Gina Somodi's murder and sentenced to twenty-five to fifty years in prison. The Illinois Court of Appeals affirmed his conviction, People v. Thomas, 94 Ill.App.3d 895, 50 Ill.Dec. 372, 419 N.E.2d 480 (1st Dist.1981), and, on October 19, 1981, the Illinois Supreme Court denied Thomas's Petition for Leave to Appeal. Thomas then petitioned the state trial court for post-conviction relief, alleging, inter alia, that his attorneys' failure to file a brief on his behalf on the Rule 604(a)(1) appeal violated his Sixth and Fourteenth Amendment rights. After a hearing, however, Cook County Judge Vincent Bentivenga granted the State's motion to dismiss Thomas's petition. Thomas then appealed Judge Bentivenga's denial of his petition to the First District Appellate Court, Fifth Division, the same division that decided the State's Rule 604(a)(1) appeal in 1978 and his direct appeal in 1981. After Thomas unsuccessfully moved for a change of appellate court division, the court denied him relief. The Illinois Supreme Court then denied Thomas's petition for leave to appeal, over a written dissent filed by Justice Simon.

Thomas then petitioned the district court for a writ of habeas corpus, which the court granted, holding that Thomas was denied the effective assistance of counsel when his attorneys failed to file a brief on his behalf on the Rule 604(a)(1) appeal. Respondent O'Leary appeals from that ruling, claiming that the district court erred in holding that Thomas's counsel rendered constitutionally ineffective assistance or, alternatively, that any such denial was harmless error.

II.

A.

We begin by noting that the Sixth Amendment guarantees an accused the assistance of counsel not just at trial, but whenever it is necessary to assure a meaningful defense. United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). As the Supreme Court has stated,

a person accused of a crime "requires the guiding hand of counsel at every step in the proceedings against him," Powell v. Alabama, 287 U.S. 45, 69 [53 S.Ct. 55, 64, 77 L.Ed. 158] (1932), and ... that constitutional principle is not limited to the presence of counsel at trial. "It is central to the principle that in addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, supra [...