U.S. ex rel. Williams v. Israel

• Decision Date: 14 June 1977
• Docket Number: No. 76-2080,76-2080
• Citation: 556 F.2d 865
• Parties: UNITED STATES of America ex rel. Robert WILLIAMS, Petitioner-Appellant, v. Thomas ISRAEL, Warden, Illinois State Penitentiary, Menard, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 865

556 F.2d 865

UNITED STATES of America ex rel. Robert WILLIAMS, Petitioner-Appellant, v. Thomas ISRAEL, Warden, Illinois State Penitentiary, Menard,

Respondent-Appellee.

No. 76-2080.

United States Court of Appeals, Seventh Circuit.

Argued May 31, 1977.

Decided June 14, 1977.

Norman L. Marcus, Oak Park, Ill., Patrick D. McAnany, Dept. of Criminal Justice, Chicago, Ill., for petitioner-appellant.

Gerri Papushkewych, Asst. Atty. Gen., Springfield, Ill., William J. Scott, Atty. Gen., Chicago, Ill., for respondent-appellee.

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and GRANT, Senior District Judge. ^*

TONE, Circuit Judge.

Petitioner challenges his Illinois conviction for murder and intimidation in this habeas corpus proceeding under 28 U.S.C. § 2254 against the warden of the place of incarceration. The conviction was affirmed by the Illinois Appellate Court in People v. Williams, 14 Ill.App.3d 789, 303 N.E.2d 585 (1973), and the Illinois Supreme Court denied leave to appeal.

Petitioner alleged ineffective representation of counsel violative of the right guaranteed by the Sixth Amendment. (The petition contained other allegations of constitutional violations, but they are not urged on appeal.) The petition was dismissed by the District Court for failure to exhaust state remedies, appellant having sought no relief under the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, §§ 122-1, et seq. (1975). We affirm.

If petitioner's claim were based on facts "wholly within the record," the Illinois doctrines of res judicata or waiver would preclude relief through a state post-conviction remedy, and United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1386 (7th Cir. 1974), would excuse petitioner from exhausting that remedy as a condition to seeking relief under § 2254. Those Illinois doctrines apply only to constitutional claims based upon the record which could have been raised on direct appeal. Id. at 1385. Petitioner's contention of ineffectiveness of counsel is, as petitioner concedes, based in substantial part on evidence outside the record; it is therefore collaterally reviewable in a post-conviction review proceeding in the Illinois courts. People v. Stepheny, 46 Ill.2d 153, 263 N.E.2d 83 (1970).

Petitioner contends, however, that the Brantley rationale should be applied to excuse exhaustion whenever it appears that the state proceeding would be a mere formality. Because Illinois follows a less stringent standard than we do for judging effectiveness of retained counsel, he contends that his attempt to gain a new trial through a post-conviction hearing would necessarily be futile....