United States ex rel. Bradley v. Hartigan, No. 85-2128.

CourtUnited States District Courts. 7th Circuit. United States District Courts. 7th Circuit. Central District of Illinois
Writing for the CourtMark Rotert and Jill Wine-Banks, Asst. Attys. Gen., Chicago, Ill., for respondent
Citation612 F. Supp. 795
PartiesUNITED STATES ex rel. Frank BRADLEY, Petitioner, v. Neil F. HARTIGAN and Michael P. Lane, Respondent.
Docket NumberNo. 85-2128.
Decision Date24 June 1985

612 F. Supp. 795

UNITED STATES ex rel. Frank BRADLEY, Petitioner,
v.
Neil F. HARTIGAN and Michael P. Lane, Respondent.

No. 85-2128.

United States District Court, C.D. Illinois, Danville Division.

June 24, 1985.


612 F. Supp. 796
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612 F. Supp. 797
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612 F. Supp. 798
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612 F. Supp. 799
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612 F. Supp. 800
Carey J. Luckman, Pontiac, Ill., for petitioner

Mark Rotert and Jill Wine-Banks, Asst. Attys. Gen., Chicago, Ill., for respondent.

612 F. Supp. 801

FINAL ORDER

BAKER, Chief Judge.

I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS

Following a criminal jury trial, the petitioner Frank Bradley was convicted of indecent liberties with a child and sentenced to four years imprisonment. On direct appeal the Illinois Appellate Court affirmed the conviction. See People v. Bradley, 113 Ill. App.3d 1172, 75 Ill.Dec. 384, 457 N.E.2d 174 (4th Dist.1983). The only claim raised by Bradley in his appeal from conviction was that he should have been granted a new sentencing hearing because the trial court had failed to consider the alternative of periodic imprisonment. His petition for leave to appeal to the Illinois Supreme Court was denied.

After his denial of leave to appeal to the Illinois Supreme Court, Bradley filed a petition for relief under the Illinois Post-Conviction Hearing Act. Ill.Rev.Stat. ch. 38, Para. 122-1 et seq. (1983). The petition alleged that the statute under which Bradley was convicted was unconstitutionally vague; that the trial court lacked jurisdiction because the information charging him was defective; that he was denied a preliminary hearing and probable cause determination on the charge for which he was convicted; that his constitutional guarantee against being placed in jeopardy twice for the same offense was violated; that the admission of a caseworker's testimony violated his constitutional right against self-incrimination and his right to assistance of counsel; that errors occurring at trial denied him due process of law and deprived him of a fair trial; and that the cumulative effect of the alleged errors deprived him of a fair trial. Bradley further argued that all of the above errors demonstrated that he was denied effective assistance of counsel at trial and on direct appeal of his conviction.

The Circuit Court of Livingston County, Judge Caisley presiding, held that Bradley had failed to raise any issues of constitutional magnitude and that Bradley had, in any case, waived the alleged errors by failing to object at trial or to raise them on direct appeal. The Circuit Court additionally found that neither Bradley's trial counsel nor appellate counsel were incompetent. See Docket Order of Circuit Court, Judge Caisley (Livingston County, Jan. 4, 1984).

In his appeal from the Circuit Court's dismissal of his post-conviction petition, Bradley argued that the appellate court should consider all of the issues raised in his petition for post-conviction relief because fundamental fairness required the doctrine of waiver not be applied to the substantive violations of his constitutional rights.

The appellate court stated that when "an appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues decided by the court and all issues which could have been presented are deemed waived." People v. Bradley, 128 Ill.App.3d 372, 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (4th Dist.1984) (citing People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663 (1972)). A waiver would not be invoked in post-conviction proceedings, however, where the "application of the waiver doctrine would be manifestly inconsistent with fundamental fairness". Bradley, 28 Ill. App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (citing People v. Adams, 52 Ill.2d 224, 287 N.E.2d 695 (1972) and People v. Hanby, 32 Ill.2d 291, 205 N.E.2d 456 (1965)). The appellate court stated that the issue to be determined was whether Bradley's post-conviction petition presented a substantial showing of a denial of constitutional rights, which may not be deemed to have been waived by failure to have presented the issue of denial of a constitutional right to the appellate court upon appeal of conviction. Bradley, 28 Ill.App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121.

The appellate court found that Bradley's post-conviction petition presented no substantial showing of a denial of constitutional rights in that all of Bradley's claimed errors were without merit. Thus, the court ruled, the claimed errors must be deemed waived. See id. at 383, 83 Ill.Dec. 701, 470

612 F. Supp. 802
N.E.2d 1121. The court additionally concluded that Bradley received competent representation based upon his trial counsel's performance throughout the proceedings, and that Bradley also received competent representation by counsel on appeal. Id. The Supreme Court of Illinois denied Bradley's petition for leave to appeal the decision of the appellate court of Illinois affirming the trial court dismissal of his petition for post-conviction relief

On February 27, 1985, Bradley petitioned this court for writ of habeas corpus stating that he was in immediate risk of being required to surrender to the Livingston County Sheriff for transfer to the Illinois Department of Corrections to begin serving his four year term of imprisonment. The petitioner's motion to be enlarged on bail pending disposition of the habeas petition was allowed. On February 28, 1985, the court ordered the respondents to show cause within twenty (20) days why a writ of habeas corpus should not issue. See Order of February 28, 1985. On March 6, 1985, the cause was allotted for hearing on March 18, 1985, on objections of the respondents to the enlargement of Bradley on bail. Due to a conflict in the court's calendar, the hearing set for March 18, 1985, was held on March 22, 1985. The hearing was held on the respondents' objections to Bradley's enlargement on bail, the respondent moving the court to reconsider the setting of bond. The motion for reconsideration of the court's order setting bond was denied, and the cause was allotted for hearing on the merits of the petition on March 28, 1985, at 1:30 p.m. On March 27, 1985, respondents moved for summary judgment against the petitioner.1

II. REVIEWABILITY OF CLAIMS

The petitioner Bradley was charged by information by the State of Illinois for two counts of indecent liberties with a child, pursuant to Ill.Rev.Stat. ch. 38, §§ 11-4(a)(1) and (3). In information No. 81-CF-220, petitioner was accused of having sexual intercourse with his fourteen-year-old daughter (Count 1) and of engaging in lewd fondling of his daughter (Count 2) on November 2, 1981. In information No. 81-CF-234, petitioner was charged with the lewd fondling of his fourteen-year-old daughter on November 3, 1981. Prior to trial by jury, information No. 81-CF-234 was dismissed, with prejudice, by the court on the motion of the state to nolle proseque that charge. The petitioner was tried on the counts in information No. 81-CF-220; the petitioner was acquitted on Count 1 alleging sexual intercourse, but was convicted on Count 2 alleging lewd fondling. The petitioner was thereafter sentenced to four years imprisonment.

The petitioner seeks a writ of habeas corpus from this court to prevent his incarceration on the state court conviction. Petitioner raises ten claims for habeas relief, the same ten claims which were raised before the circuit court at his post-conviction proceeding. The petitioner has exhausted his available state remedies as required by 28 U.S.C. § 2254 and Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Where a defendant has failed to abide by a state procedural rule and is thereby barred from litigation of a constitutional claim in the state courts, the state prisoner may not obtain federal habeas corpus relief absent a showing of "cause and prejudice". Reed v. Ross, ___ U.S. ___, ___, 104 S.Ct. 2901, 2906, 82 L.Ed.2d 1 (1984); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes, 433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977); Weber v. Israel, 730 F.2d 499, 502 (7th Cir.1984). In the case at bar, the Circuit Court of Livingston County, on his postconviction

612 F. Supp. 803
petition, found that Bradley had waived his right to attack his conviction with these constitutional claims because he had failed to raise these claims at the appeal of his state court criminal conviction and he was now procedurally barred from doing so under state law

The state appellate court, affirming the circuit court's denial of Bradley's post-conviction petition, stated that "only where application of the waiver doctrine would be manifestly inconsistent with fundamental theories will waiver not be invoked in post-conviction proceedings". People v. Bradley, 128 Ill.App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (citations omitted). The Court found that the only issue to be determined was whether Bradley's post-conviction petition presented a "substantial showing of a denial of constitutional rights, which may not been deemed to have been waived". Id. The Court went on to hold that Bradley's petition for post-conviction relief presented no substantial showing of any violation of its constitutional rights. Id. at 384, 83 Ill.Dec. 701, 470 N.E.2d 1121.

If a state appellate court rules on the merits of a constitutional claim, but not on the state procedural question, federal habeas corpus review is available. See Farmer v. Prast, 721 F.2d 602, 605 n. 5 (7th Cir.1983); United States ex rel. Williams v. Franzen, 687 F.2d 944, 951 (7th Cir.1982); Brownstein v. Director of Illinois Department of Corrections, 594 F.Supp. 494, 500 (N.D.Ill.1984) aff'd 760 F.2d 836 (7th Cir.1985). Federal habeas corpus relief is precluded, however, where the state appellate court affirms a trial court decision on the...

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4 practice notes
  • U.S. v. Broadhurst, No. 85-1206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Diciembre 1986
    ...of the overflights, on the ground that the aerial surveillance constituted a warrantless search in violation of the Fourth Amendment. 612 F.Supp. at 795. The government filed this appeal pursuant to 18 U.S.C. Sec. I. Did All Defendants Have Standing to Challenge the Aerial Surveillance? The......
  • U.S. ex rel. Bradley v. Lane, No. 85-2347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 23 Diciembre 1987
    ...habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 raising many of the "post-conviction" arguments advanced above. The district court, 612 F.Supp. 795, denied the petition. Bradley appeals. As stated earlier, we Although there is good reason to believe petitioner's post-conviction argumen......
  • State v. Morrison
    • United States
    • New Jersey Superior Court – Appellate Division
    • 9 Marzo 1987
    ...by the District Court in assessing a claim of ineffective assistance of appellate counsel in United States ex rel. Bradley v. Hartigan, 612 F.Supp. 795, 814n.[522 A.2d 476] 4 (D.Ill.1985), and the standard defendant urges us to use in his brief. We conclude that in applying the Strickland s......
  • Jakubowski v. Chapman, Case No. 2:19-cv-13136
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • 26 Enero 2021
    ...a way as to give the appearance of partiality to the jury, thereby prejudicing the defendant. United States ex rel. Bradley v. Hartigan, 612 F. Supp. 795, 810 (C.D. Ill. 1985), aff'd sub nom. United States ex rel. Bradley v. Lane, 834 F.2d 645, 648-49 (7th Cir. 1987). The questioning conduc......
4 cases
  • U.S. v. Broadhurst, No. 85-1206
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 2 Diciembre 1986
    ...of the overflights, on the ground that the aerial surveillance constituted a warrantless search in violation of the Fourth Amendment. 612 F.Supp. at 795. The government filed this appeal pursuant to 18 U.S.C. Sec. I. Did All Defendants Have Standing to Challenge the Aerial Surveillance? The......
  • U.S. ex rel. Bradley v. Lane, No. 85-2347
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 23 Diciembre 1987
    ...habeas corpus relief pursuant to 28 U.S.C. Sec. 2254 raising many of the "post-conviction" arguments advanced above. The district court, 612 F.Supp. 795, denied the petition. Bradley appeals. As stated earlier, we Although there is good reason to believe petitioner's post-conviction argumen......
  • State v. Morrison
    • United States
    • New Jersey Superior Court – Appellate Division
    • 9 Marzo 1987
    ...by the District Court in assessing a claim of ineffective assistance of appellate counsel in United States ex rel. Bradley v. Hartigan, 612 F.Supp. 795, 814n.[522 A.2d 476] 4 (D.Ill.1985), and the standard defendant urges us to use in his brief. We conclude that in applying the Strickland s......
  • Jakubowski v. Chapman, Case No. 2:19-cv-13136
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)
    • 26 Enero 2021
    ...a way as to give the appearance of partiality to the jury, thereby prejudicing the defendant. United States ex rel. Bradley v. Hartigan, 612 F. Supp. 795, 810 (C.D. Ill. 1985), aff'd sub nom. United States ex rel. Bradley v. Lane, 834 F.2d 645, 648-49 (7th Cir. 1987). The questioning conduc......

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