U.S. ex rel. Williams v. Twomey
Decision Date | 24 March 1975 |
Docket Number | No. 74--1071,74--1071 |
Citation | 510 F.2d 634 |
Parties | UNITED STATES of America ex rel. Countee WILLIAMS, Petitioner-Appellant, v. John J. TWOMEY, Warden, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Charles J. Averbook, Chicago, Ill., for petitioner-appellant.
William J. Scott, Atty. Gen., Chicago, Ill., Nolan Lipsky, Asst. Atty. Gen., Springfield, Ill., for respondent-appellee.
Before SWYGERT, Chief Judge, CUMMINGS, Circuit Judge, and WYZANSKI, Senior District Judge. *
This is an appeal from the District Court's denial after full hearing and findings, of release on a petition for habeas corpus attacking a sentence of imprisonment for ten to twenty years imposed by the Illinois Circuit Court for Cook County following a jury verdict finding petitioner guilty of the crime of burglary of a television set. The principal issue raised here and in the District Court is petitioner's claim that he, in violation of the due process clause of the Fourteenth Amendment to the United States Constitution, was denied the effective assistance of counsel.
In stating the facts, we are mindful of the strictness with which Rule 52 of the Federal Rules of Civil Procedure enjoins us to respect the findings of fact of the District Court unless they are clearly erroneous. Our reading of those findings reveals the following situation.
April 12, 1968, Countee Williams, petitioner, Alonzo Brock, and Juan Costillo were arrested on a charge of burglary of a television set from a furniture store. The arrests were made during the rioting and looting that followed the assassination of Dr. Martin Luther King, Jr., and in the atmosphere, noticed by the District Court, 'of Mayor Daley's order regarding looters and the widespread public displeasure over the destruction following the heinous assassination of Dr. King.'
The state court before which petitioner was immediately brought set bail at $5,000. Not meeting the bail, he was confined in Cook County Jail until the time of the trial.
July 24, 1968, petitioner having meanwhile been indicted for the aforesaid burglary, an arrest warrant was issued against petitioner, and his bail was temporarily increased to $10,000. Due to confusion at the Cook County Jail, the authorities did not locate him there, and his case was removed from the trial call of the Circuit Court. July 31, petitioner was arraigned, his case was assigned to Judge Wilson for trial, and the judge appointed Paul Bradley, Esq., a lawyer on the staff of the Public Defender who handled cases before Judge Wilson, to represent petitioner. On the same day, Mr. Bradley, although he had not then had an opportunity to discuss the case with petitioner, filed pretrial motions. The judge held the case on the trial call for Friday, August 2, 1968.
On July 31 and continuing through August 1, Mr. Bradley was engaged in the trial of a murder charge against another defendant before Judge Wilson, and seemingly had no conference with petitioner or concern with his case.
August 2, 1968, Judge Wilson called petitioner's case for trial. That was 112 days from the date he was taken into custody. Illinois Rev.Stat. ch. 38, § 103--5(a), (d) requires that a person charged with an offense and held in custody must be tried within 120 days from the date he was taken into custody or he must be discharged therefrom. If a defendant requests a continuance, the 120-day period commences to run again.
When called for trial, Mr. Bradley informed the court that, having been engaged in the murder trial of another defendant before Judge Wilson, counsel had only When the prosecutor stated (on what basis we are left to conjecture) that 'the defendant has indicated he wishes to proceed,' Mr. Bradley added, 'The defendant has indicated that but, as you know, I have to make certain determinations as to whether it is in our best interests, and to advise my client.' Then Judge Wilson stated, 'We will pass the case.' Thereupon there was a recess.
In what the District Judge found must have been the earlier ten minute conference in the bullpen, the petitioner had told Mr. Bradley 'that he had been with others and had just left a tavern prior to his arrest; that he was employed at the time of his arrest; and that he had a criminal record.' The District Judge also found that, it seems, at the hearing before him, the petitioner testified that
The District Judge also found that
(We are not informed as to how long a continuance would have been likely.)
Following one of the discussions between petitioner and Mr. Bradley, the latter indicated that 'petitioner decided to gamble on the fact that the state would not be able to present its witnesses for trial.'
When the trial was reconvened, on this same August 2, Mr. Bradley did not request a continuance, and 'indicated he wants to go to trial today.' On inquiry from the judge, the petitioner confirmed this. If the petitioner had requested a continuance, the judge, under Illinois law, could have postponed the case for 120 days. (But there is no indication how long the delay would actually have been.)
As an ultimate finding of fact, the District Court concluded that the
'Before the trial commenced on August 2, (the prosecutor) Mr. Friedman gave petitioner's attorney the names of the State's three witnesses.'
When the case began on that Friday, August 2, Mr. Bradley indicated that he couldn't be present the next week, and that there was present in court another lawyer from the Public Defender's office, a Mr. Cohan. Apparently, Judge Wilson authorized Mr. Cohan to act as a substitute, and appointed him as assigned counsel or co-counsel for petitioner. There is no indication as to whether Judge Wilson knew anything of Mr. Cohan except that he was from the office of the Public Defender. But in his findings, the United States District Judge states that Mr. Cohan 'had been engaged previously in representing defendants at preliminary hearings,' but this was 'Mr. Cohan's first felony trial.' We are not informed as to whether before the trial began, Mr. Cohan had participated in any conference with petitioner. We, however, have been told at our bar that during at least part of the trial proceedings on Friday, August 2, Mr. Bradley was in the state courtroom, although we do not know in what capacity.
The state offered apparently all its case in chief on Friday. The court recessed over Saturday and Sunday. We are not told what Mr. Cohan did during the weekend recess. On Monday, August 5, Mr. Cohan called as his only witness petitioner. Before the District Judge, petitioner testified, apparently accurately in the District Judge's opinion, that before taking the stand he had not been warned that if he took the stand his prior criminal record would be admissible. In any event, after petitioner did testify in the state court, the prosecutor introduced petitioner's conviction record, and also called one of the arresting officers as a rebuttal witness.
The jury having convicted petitioner, he was sentenced by the court to ten to twenty years imprisonment. Petitioner sought review in a higher state court. There his appointed counsel did not raise the issue of effective assistance of trial counsel...
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