U.S. ex rel. Tonaldi v. Elrod, 85-2447

• Citation: 782 F.2d 665
• Decision Date: 24 January 1986
• Docket Number: No. 85-2447,85-2447
• Parties: UNITED STATES of America, ex rel. Ronald TONALDI, Petitioner-Appellant, v. Richard J. ELROD, et al., Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 665

782 F.2d 665

UNITED STATES of America, ex rel. Ronald TONALDI, Petitioner-Appellant, v. Richard J. ELROD, et al., Respondents-Appellees.

No. 85-2447.

United States Court of Appeals Seventh Circuit.

Argued Oct. 28, 1985.

Decided Jan. 24, 1986.

Julius Lucius Echeles, Chicago, Ill., for petitioner-appellant.

Scott Graham, Atty. Gen., Chicago, Ill., for respondents-appellees.

Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

CUMMINGS, Chief Judge.

This appeal comes to us from a denial of the habeas corpus petition of petitioner Ronald Tonaldi ("Tonaldi") by the district court. The issue raised here is whether petitioner's failure to raise on direct appeal the claim that his attorney's decision to represent co-defendants was inconsistent with the minimum standards of competent representation bars petitioner from now raising this claim in federal court. For the reasons set out below, we affirm the district court's determination that petitioner's failure to raise this claim in state court constituted a waiver of his right to pursue this claim in federal court. Because of the complex procedural history of this case, the prior proceedings of this case must be described in some detail.

I

In 1979 petitioner's car was stopped for running a red light. Petitioner was driving and had two passengers in his car: Dan Brissa and Carol Masorlian. A police officer approached the car and spotted a dark vinyl container on the front seat of the car. Inside this container was a clear plastic bag of white powder. Petitioner, Brissa, and Masorlian were all indicted for unlawful possession of cocaine. Petitioner and his two co-defendants retained the same trial counsel.

The preliminary hearing clearly raised serious doubts as to whether one counsel could properly represent all three defendants. At this hearing, Masorlian testified that the dark vinyl container did not belong to her, and that the container was already in the car when she entered it when petitioner was its sole occupant. Defense counsel heard this testimony of Masorlian, which was exculpatory with respect to her and Brissa and inculpatory with respect to petitioner, yet continued to represent all three defendants. The assistant State's attorney, cognizant of this conflict, initiated a colloquy with the court prior to trial, the relevant portions of which were cited on appeal of petitioner's first petition for habeas corpus. United States ex rel. Tonaldi v. Elrod, 716 F.2d 431, 432-433 (7th Cir.1983). In this exchange the trial court explained its concern to petitioner and asked him if he objected to defense counsel's joint representation; petitioner said no. At trial Masorlian testified in the same manner as she did at the preliminary hearing. Of the three defendants, only petitioner was found guilty of possessing cocaine. He received a four-year sentence.

Petitioner then began his long odyssey through the state and federal court systems. On his direct appeal to the Appellate Court of Illinois, petitioner claimed that because of the above conflict of interest, his trial counsel's assistance was constitutionally defective. The court concluded though that petitioner "made an intelligent and knowing waiver of his right to separate counsel" and affirmed his conviction. Tonaldi, 716 F.2d at 433-434, quoting People v. Tonaldi, 98 Ill.App.3d 528, 54 Ill.Dec. 297, 424 N.E.2d 1200 (1st Dist.1981).

Petitioner then filed his first habeas corpus petition in the court below, raising the same issue. In 1982 that court held an evidentiary hearing where petitioner testified that he relied on the advice of his trial counsel that he could properly represent all three defendants when petitioner declined to object to his trial counsel's joint representation of all three co-defendants, and that he "really didn't understand" the trial court's warning about a conflict of interest and question to petitioner regarding any objection to joint representation. The district judge found that petitioner's waiver was not knowing and intelligent and ordered petitioner released from custody. United States ex rel. Tonaldi v. Elrod, 541 F.Supp. 608, 610, 612-613 (N.D.Ill.1982).

Respondents appealed this determination to us. We reversed the district court and held that petitioner did indeed make a knowing and intelligent waiver of his Sixth Amendment right to counsel free from a conflict of interest. Tonaldi, 716 F.2d at 437-440. Significantly, and in dictum, we noted that there were two distinct Sixth Amendment claims which were not coextensive. One claim, which petitioner did raise, was that a conflict of interest adversely affected his trial counsel's performance. A second claim, which petitioner did not raise, was that his trial counsel's "decision to represent co-defendants was inconsistent with the minimum standards of competent representation." Id. at 436. We further noted that his second possible claim was "an issue not raised in the Appellate Court of Illinois and a claim involving facts outside of the trial court record," and "is therefore unexhausted." Id. at 436-437.

Not surprisingly, petitioner next returned to state court to pursue this second claim. At a hearing before the Circuit Court of Cook County, petitioner's trial counsel admitted that he "might have made a mistake" in continuing to represent all three defendants. People v. Tonaldi, 129 Ill.App.3d 183, 187, 84 Ill.Dec. 373, 472 N.E.2d 123 (1st Dist.1984). Nevertheless, the county circuit court dismissed petitioner's post-conviction petition, and the Appellate Court of Illinois affirmed this dismissal, holding that petitioner waived his claim of incompetent trial counsel by not raising it on direct appeal. Id. at 187-189, 84 Ill.Dec. 373, 472 N.E.2d 123; see also United States ex rel. Devine v. DeRobertis, 754 F.2d 764, 766 (7th Cir.1985) ("The rule in Illinois is that a defendant who neglects to raise a claim of inadequate representation on direct appeal may not later assert that claim in a petition for post-conviction relief;" court cites numerous Illinois cases). The Appellate Court noted that the one exception to the general rule that an issue which could have been raised on direct appeal is barred is "the situation where allegations of trial counsel's incompetence are based on facts which do not appear in the record." Tonaldi, 129 Ill.App.3d at 187-188, 84 Ill.Dec. 373, 472 N.E.2d 123, citing People v. Turner, 74 Ill.App.3d 840, 844, 30 Ill.Dec. 400, 403, 393 N.E.2d 55, 58 (1st Dist.1979), appeal denied, 79 Ill.2d 623 (1979); see also DeRobertis, 754 F.2d at 766. The Appellate Court concluded that this exception did not apply since all of the facts necessary for petitioner to raise this claim were contained in the trial court record.

Petitioner then paid his second visit to Judge Aspen who held this time that petitioner waived his claim of trial counsel incompetency by not raising it on direct appeal. United States ex rel. Tonaldi v. Elrod, 613 F.Supp. 768 (N.D.Ill.1985).

II

As an initial matter, it is useful to examine carefully precisely what is at issue on this appeal, for the coexistence of both state post-conviction relief and federal habeas corpus appears to have created some confusion. It is clear that as a matter of Illinois state law, a defendant who fails to raise a claim of inadequate representation on direct appeal may not later assert that claim in a petition in state court for post-conviction relief, except if the basis for his claim does not appear in the trial court record. DeRobertis, 754 F.2d at 766. It is equally clear that the issue of whether the state court in this case properly applied the Illinois waiver doctrine is a matter of state law which is not reviewable on a petition for habeas corpus. DeRobertis, 754 F.2d at 765-766. Instead, what is at issue here is whether petitioner's procedural default in state court (his failure to raise this claim on direct appeal in the state court system) constitutes a waiver which bars him from raising it in a habeas corpus petition in federal court. This situation involves a distinct waiver doctrine which takes its roots in federal law. The waiver doctrine for state post-conviction relief shares some of the policy concerns that have been articulated for the waiver doctrine for federal habeas corpus: the need for finality in criminal litigation, and the desire to focus attention on "the trial of a criminal case in state court as a decisive and portentous event." Wainright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594. However, the waiver doctrine for habeas corpus--whether a federal court should respect a state procedural default--raises additional concerns of comity and federalism. See, e.g., DeRobertis, 754 F.2d at 766.

The Supreme Court has held that "when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas corpus relief absent a showing of cause and prejudice." Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783. We have applied this "cause and prejudice" standard, first set forth by the Supreme Court in Sykes, to a state prisoner's failure to raise a claim on direct appeal. United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc), including when the claim not raised on direct appeal is inadequate representation by trial counsel. DeRobertis. Petitioner must therefore show cause for failure to raise this claim of inadequate representation on direct appeal, and actual prejudice from this default.

The precise contours of what constitutes a showing of cause under the Sykes cause and prejudice standard have not been rigidly delineated. We have previously noted, along with two other circuits, that cause should be given "a flexible definition that may change depending on the degree of prejudice shown." Clay v. Director, Juvenile Division, Department of Corrections, 749 F.2d 427, 434 (...