United States ex rel. Thomas v. Brierton

• Decision Date: 11 February 1976
• Docket Number: No. 74 C 69.,74 C 69.
• Citation: 408 F. Supp. 14
• Parties: UNITED STATES of America ex rel. Franklin THOMAS, # 66325, Petitioner, v. David BRIERTON, Warden, Respondent.
• Court: U.S. District Court — Northern District of Illinois

408 F. Supp. 14

UNITED STATES of America ex rel. Franklin THOMAS, # 66325, Petitioner, v. David BRIERTON, Warden, Respondent.

No. 74 C 69.

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

February 11, 1976.

COPYRIGHT MATERIAL OMITTED

Stephen M. Cooper, Geneva, Ill., for petitioner.

William J. Scott, Atty. Gen. of Ill., Melbourne Noel, Asst. Atty. Gen., Chicago, Ill., for respondent.

MEMORANDUM DECISION

MARSHALL, District Judge.

Petitioner, Franklin Thomas, by a habeas corpus petition brought pursuant to 28 U.S.C. § 2254, challenges his Illinois state court convictions of armed robbery and murder upon three separate constitutional grounds: (1) denial of effective assistance of trial counsel contrary to the sixth and fourteenth amendments, (2) refusal of the state to disclose (and the state trial court's failure to order disclosure of) the identity of a witness contrary to the sixth and fourteenth amendments, and (3) the knowing use by the state of false or perjured testimony contrary to the fourteenth amendment.

Petitioner is represented by counsel appointed here. Respondent has moved to dismiss or alternatively for summary judgment upon the grounds that petitioner failed to exhaust available state court remedies, 28 U.S.C. § 2254(b), and that the state court record and affidavits show respondent is entitled to judgment as a matter of law. Petitioner has also moved for summary judgment. For the reasons hereafter stated, the several motions are denied save for respondent's motion going to the issue of effective assistance of counsel, and the cause is held for an evidentiary hearing on the merits of the issues of failure to disclose the identity of the witness and the knowing use of false or perjured testimony.

I. Factual background

On July 18, 1968, two men entered the Waldshine Liquor Store in Chicago and announced a holdup. Before the offenders fled, one of them shot and killed Simon Garber, who was one of three employees who witnessed the robbery.

After the robbery, a citizen contacted the police and said that he had been across the street from the store, heard a gunshot, saw two men run out of the store and jump into a car. He recognized three of the car's occupants and gave the police their nicknames — Hank, Bubbles, and Jesse. The informer knew where Hank lived and so he walked toward Hank's apartment after the car drove away. As he approached the apartment, he saw Hank and three other men enter the building. On this tip, four police officers went to the apartment.

Officer Galto asked the building manager if anyone named Hank lived there. The manager said that a man named Hank, whose full name was Henry Thompson, lived in apartment 104. The officers went to 104, knocked and announced their presence, and entered. Six males, two females, and a child were in the one-room apartment. Two of the males had apparently just shaved their heads, as hair was strewn about. The police asked for Hank, and Henry Thompson said he was Hank. The police arrested all six men without warrants and advised them of their rights. The police then asked if there were any weapons in the apartment. Thompson said no, and told the police they could look around.

One of the women wanted to change clothes. Since it was a one-room apartment, one officer suggested she change in the bathroom. He searched it before she entered. Under the bathtub he found a .32 caliber revolver with three live and one expended cartridges.

Two of the six men arrested were released immediately as unconnected with the crime. Employees of the liquor store identified Henry Thompson and John Yancey as the robbers, and further identified Thompson as the man who shot Simon Garber. A fifth suspect, Jesse Martin, turned state's witness and testified that he and four others planned and executed the robbery. According to Martin, his cohorts were Thompson, Yancey, the petitioner Franklin Thomas, and an unknown fifth person. Thompson, Yancey and Thomas stood trial together. A jury found all three defendants guilty of armed robbery and murder. The state later elected not to prosecute Martin.

The defendants appealed their conviction, contending that the trial court erred when it refused to order disclosure of the identity of the citizen informer. The appellate court analyzed the role of the informer as one who provided probable cause for arrest, rather than as an eyewitness or participant in the crime. Hence, the court found that McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967), applied, and affirmed. People v. Thompson, 3 Ill.App.3d 470, 278 N.E.2d 462 (1972). The Illinois Supreme Court denied leave to appeal and the United States Supreme Court denied certiorari.

Petitioner then filed a pro se petition under the Illinois Post Conviction Act, Ill.Rev.Stat. ch. 38, §§ 122-1 to 122-7 (1973). This petition raised two issues not presented to the Illinois courts on appeal: (1) whether the state violated Thomas' constitutional rights by knowingly permitting Jesse Martin to give perjured testimony; and (2) whether Thomas' trial counsel was so incompetent that Thomas' sixth amendment right to effective assistance of counsel was violated. On the state's motion, the petition was denied without hearing. Petitioner did not appeal this dismissal. Instead, he filed his instant petition for habeas corpus, raising again the issue of the informer's identity, knowing use of perjured testimony and effective assistance of counsel.

II. Exhaustion of state remedies

The threshold issue raised by the respondent's motion is whether Thomas has exhausted his state remedies as required by 28 U.S.C. § 2254(b). Respondent contends that the petitioner's failure to appeal the dismissal of his post conviction petition renders premature a request for habeas relief on the second and third grounds. Petitioner, however, relies on the Seventh Circuit's analysis of the Illinois waiver doctrine to support his argument that further state court relief on these issues is effectively foreclosed. A consideration of the authorities cited by the parties indicates that petitioner's position is correct.

The Seventh Circuit recently considered whether the § 2254(b) exhaustion requirement mandates the appeal of a post conviction petition dismissal in United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir.1974). To answer this question, the court evaluated the effect of the Illinois waiver doctrine. Illinois courts have rigidly applied the doctrines of waiver and res judicata. Once a prisoner raises a constitutional issue on direct appeal, all collateral relief based on that question is precluded by res judicata. Moreover, all objections which the prisoner might have raised on appeal, but did not, are considered waived.

The Illinois courts have drawn a limited exception to the strict application of the waiver doctrine. Where fundamental fairness requires, post conviction relief may be granted even after a direct appeal. People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456 (1965). To date, the Illinois courts have interpreted this exception quite narrowly. Arguably, however, the Illinois courts will gradually expand the exception as unique factual situations are faced. Relying on this reasoning, the respondents in United States ex rel. Williams v. Brantley, supra, argued that the dismissal of a post conviction petition should be appealed, to give the Illinois courts the first opportunity to remedy constitutional violations. The Seventh Circuit, however, flatly rejected this suggestion because it saw "no basis for assuming that the `fundamental fairness' doctrine is likely to be substantially broadened." 502 F.2d at 1385. Hence, requiring the prisoner to return to the state court would only needlessly delay consideration of constitutional claims. The court adopted the rule that exhaustion of the post conviction remedy is required only if "there is direct precedent indicating that under the particular circumstances of a prisoner's case the waiver doctrine will be relaxed." Id. at 1386 (footnote omitted).

One issue that the Illinois courts have found within the exception is the competency of the prisoner's counsel. Not every challenge to the adequacy of counsel, however, is sufficient to warrant consideration in a post conviction proceeding. The cases indicate that the Illinois courts consider the issue only if counsel's inadequacy was critical, or the petitioner offers a compelling justification for overlooking the issue on direct appeal. Compare People v. Buckholz, 24 Ill.App.3d 324, 320 N.E.2d 421 (1974); People v. McCarty, 17 Ill.App.3d 796, 308 N.E.2d 655 (1974) (waiver doctrine applied), with People v. Sommerville, 42 Ill.2d 1, 245 N.E.2d 461 (1969); People v. Rooney, 16 Ill.App.3d 901, 307 N.E.2d 216 (1974); McClain v. People, 15 Ill. App.3d 929, 305 N.E.2d 423 (1973) (fundamental fairness exception found). Here, petitioner complains of counsel's failure to pursue the refusal to disclose the informer's identity. This issue is not on all fours with applicable Illinois precedent. Hence exhaustion of the post conviction remedy is not required under United States ex rel. Williams v. Brantley, supra.

The issue of perjured testimony calls for a different conclusion. In People v. Gendron, 41 Ill.2d 518, 244 N.E.2d 149 (1969), the Illinois Supreme Court indicated that a charge that the state knowingly used perjured testimony is cognizable in a post conviction hearing under the fundamental fairness exception. Noting this case, the court in United States ex rel. Williams v. Brantley suggested that a habeas petition should be dismissed for failure to exhaust remedies if the petitioner could still appeal the dismissal of the post conviction petition. 502 F.2d at 1385 n. 4. Accordingly, before the merits of Thomas' claim on this issue can be reached, we must ascertain whether he could still appeal the dismissal of the post conviction petition. Thomas' habeas petition gives the date...