United States ex rel. Milone v. Camp

• Decision Date: 20 June 1986
• Docket Number: No. 85 C 10098.,85 C 10098.
• Citation: 643 F. Supp. 679
• Parties: UNITED STATES of America ex rel. Richard MILONE, Petitioner, v. Aletha CAMP, Warden Graham Correctional Center, Respondent.
• Court: U.S. District Court — Northern District of Illinois

643 F. Supp. 679

UNITED STATES of America ex rel. Richard MILONE, Petitioner, v. Aletha CAMP, Warden Graham Correctional Center, Respondent.

No. 85 C 10098.

United States District Court, N.D. Illinois, E.D.

June 20, 1986.

Luis Kutner, Chicago, Ill., for petitioner.

Terence M. Madsen, Asst. Atty. Gen., Chicago, Ill., for respondent.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

Richard Milone has petitioned this court for a writ of habeas corpus pursuant to the habeas corpus statute, 28 U.S.C. §§ 2241 et seq. Respondent Aletha Camp, Warden of the Graham Correctional Center of the Illinois Department of Corrections, has moved to dismiss the petition on the grounds that Milone has failed to exhaust his state remedies for relief as required by law. For the reasons below, the motion to dismiss is granted.

Statement of the Case

For purposes of this motion to dismiss, the factual allegations of the petition are taken as true. On September 12, 1972, fourteen-year old Sally Kandel was murdered in DuPage County. The crime made headlines in the local and Chicago papers and was discussed on radio and television. There was a series of other killings of young women in the DuPage County area and the public was outraged. A reward fund for the capture of the murderer of Sally Kandel was established and reached the amount of $21,900.00. This fund was highly publicized.

Milone became a suspect when it was discovered that a shopping cart handle was the murder weapon. Milone was an employee of the warehouse where the shopping cart handle was noticed missing. The police accumulated further evidence purportedly establishing Milone's guilt, and on January 25, 1973, he was arrested for the murder of Sally Kandel. After a bench trial later that year, Milone was found guilty of murder and sentenced to 90 to 175 years in prison.

Petitioner appealed his conviction to the Illinois Appellate Court. The appellate court affirmed the conviction. People v. Milone, 43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350 (2d Dist.1976) (fully recounting the facts of the crime and the evidence against Milone). Leave to appeal to the Illinois Supreme Court was sought but denied. There was no petition for a writ of certiorari to the United States Supreme Court. Milone has not yet sought relief from the Illinois court system pursuant to any of the relevant post-conviction remedies provided by statute, and to be more fully elaborated below. Instead, Milone raises several contentions in this court through his petition for federal habeas corpus relief. These contentions challenge the legality of his confinement in prison on the grounds that he did not receive due process when tried for the murder of Sally Kandel.

Briefly, Milone argues his trial suffered from the following deficiencies. (1) The prosecutors engaged in intentional misconduct by knowingly using perjured testimony, by knowingly suppressing exculpatory evidence, and by paying the state's witnesses so as to bias them in the state's favor; (2) inflammatory publicity denied Milone a fair trial; (3) Milone was subject to an illegal search and seizure; (4) incompetent evidence was used at trial; (5) the evidence was insufficient to establish guilt beyond a reasonable doubt; (6) Milone did not receive effective assistance of counsel; (7) another person has confessed to the crime (as explained later, this claim does not challenge the legality of the conviction but merely its accuracy and therefore is not cognizable in a federal habeas petition); (8) a crucial state's witness has, since the trial, recanted her testimony (this claim seems to be offered to show both that the conviction is not accurate and that the prosecutor engaged in further misconduct by causing this witness to give perjurious testimony at the trial). On his appeal to the Illinois Appellate Court, Milone only raised three of these claims: the illegal search and seizure, the admission of incompetent evidence, and the insufficiency of evidence to establish guilt beyond a reasonable doubt. It is Milone's failure to raise the remaining five claims in the Illinois post-conviction courts that, according to respondent, establishes Milone's failure to exhaust state remedies for the correction of state errors and therefore justifies dismissal of this petition. The court now turns to the legal sufficiency of this defense.

Legal Discussion

It is undisputed that before a federal court can consider a state prisoner's petition for a writ of habeas corpus, considerations of federalism and comity normally require that the prisoner have exhausted the available state remedies for his claims. 28 U.S.C. § 2254 ("An application for a writ of habeas corpus ... shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State...."); Rose v. Lundy, 455 U.S. 509, 517, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982). This laudable policy gives the state courts a chance to correct their own constitutional errors. The exhaustion requirement refers only to state remedies still available at the time the federal petition is filed. Nutall v. Greer, 764 F.2d 462, 463 (7th Cir.1985); United States ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1196 (7th Cir.1984). Furthermore, the federal habeas corpus statute allows for nonexhaustion of state remedies where circumstances exist rendering state remedies ineffective to protect the rights of the state prisoner. Young v. Ragen, 337 U.S. 235, 238-39, 69 S.Ct. 1073, 1074-75, 93 L.Ed. 1333 (1949); Thompson v. Reivitz, 746 F.2d 397, 400 (7th Cir.1984), cert. denied, 471 U.S. 1103, 105 S.Ct. 2332, 85 L.Ed.2d 849 (1985). Thus, the question presented is whether Milone has exhausted the still-available remedies for his claims and, if not, whether that nonexhaustion can be excused on the grounds that they would be ineffective. If, as turns out to be the case here, Milone has filed a petition in which only some of his claims are satisfactorily exhausted, this court would be required to dismiss the entire petition and give Milone the choice of either refiling a petition based only on the currently exhausted claims or refiling an identical petition after all the claims have been exhausted. Rose v. Lundy, 455 U.S. at 520, 102 S.Ct. at 1204. Milone would also have the option of seeking leave to amend this habeas petition to delete the unexhausted claims. Id.

The chief Illinois remedy which respondent claims is still available and still unexhausted is the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, ¶ 122-1 et seq. That Act entitles a prisoner to the relief he seeks here if he establishes, in a post-conviction proceeding, that his criminal trial deprived him of rights secured under the Illinois or United States Constitutions. The Seventh Circuit has recently explained the circumstances in which a petitioner must resort to this post-conviction remedy to satisfy his exhaustion obligations, and alternatively, when he is excused from doing so.

This court has held that the Illinois Post-Conviction Hearing Act is an "ineffective remedy" in circumstances where the Illinois courts strictly apply the doctrine of res judicata or waiver in post-conviction motions. United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir.1974). (footnote omitted).

Gray v. Greer, 707 F.2d 965, 967 (7th Cir. 1983). The Court then explained the circumstances in which a petitioner is subject to this res judicata-or-waiver doctrine:

An issue raised on direct appeal from a conviction is res judicata in a subsequent Illinois post-conviction petition; an issue which could have been raised on direct appeal, but was not, is waived. People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970).

Gray v. Greer, 707 F.2d at 967. Naturally, these circumstances apply to almost every case. The Court noted the one exception to the res judicata-or-waiver rule:

When fundamental fairness requires that this rule be relaxed, the Illinois courts will reach the merits of a claim. People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456 (1965). The concept of "fundamental fairness" is quite limited and this court has held that a petition should be dismissed for failure to exhaust a claim "only if there is direct precedent indicating that under the particular circumstances of a prisoner's case the waiver doctrine will be relaxed." United States ex rel. Williams v. Brantley, 502 F.2d at 1386.

Gray v. Greer, 707 F.2d at 967-68. In elucidating this exception, the Court described one situation in which it had previously found direct Illinois precedent for relaxing the res judicata-or-waiver rule. The precedent is relevant here. When a petitioner has failed to raise an issue on direct appeal because he has been deprived of "competent counsel on appeal," the Post-Conviction Hearing Act is still an available vehicle for reviewing that issue. People v. Frank, 48 Ill.2d 500, 272 N.E.2d 25, 27 (1971) (applied in United States ex rel. Clauser v. Shadid, 677 F.2d 591, 593 (7th Cir.1982)). In this case, Milone has alleged that his appellate counsel, who was also his trial counsel, was ineffective. (Petition at pp. 25-26, 29). However, the Court concluded in the general case

a petitioner need not pursue a petition for post-conviction relief in order to exhaust a constitutional claim where there is no direct precedent indicating that the Illinois courts will relax the waiver rule. When there is no such direct precedent, this court finds that there is "the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b).

Gray v. Greer, 707 F.2d at 968.

Accordingly, under this view of Illinois law, the three claims actually raised and argued on direct appeal (illegal search and seizure, incompetent evidence, and insufficient evidence) are exhausted. With no direct authority presented to the contrary, this court concludes that the Illinois post-conviction courts...