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April 29, 1971


The opinion of the court was delivered by: Will, District Judge.


The petitioner, moving for habeas corpus relief, is presently incarcerated in the Illinois State Penitentiary, Joliet, Illinois, pursuant to convictions for the offenses of armed robbery, attempted rape, and aggravated battery. After a bench trial in the Circuit Court of Cook County, Illinois, the petitioner was found guilty and sentenced on January 31, 1968 to concurrent terms of twenty to forty years, ten to fourteen years, and nine to ten years.

The petitioner alleges as grounds for habeas corpus relief that (1) the State employed identification procedures so unnecessarily suggestive as to be conducive to mistaken identification in violation of the due process clause of the Fourteenth Amendment, (2) he was improperly denied the right to counsel during a pre-trial show-up while the victim was in the hospital, and (3) he was improperly convicted of several offenses arising from the same transaction. These contentions were raised by petitioner in his direct appeal to the Illinois Appellate Court, which affirmed his conviction. People v. Gates, 123 Ill. App.2d 50, 259 N.E.2d 631 (1st Dist. 1970). The Supreme Court of Illinois denied petitioner leave to appeal on October 6, 1970.

The respondent, in his return to the rule to show cause issued by this Court, originally stated that petitioner has failed to allege facts sufficient to justify habeas corpus relief. In a supplemental motion to dismiss, the respondent notes that petitioner has not filed any petition for post-conviction relief in the Circuit Court of Cook County, pursuant to Ill.Rev.Stat., Ch. 38, Section 122-1 et seq., thus suggesting that petitioner has failed to exhaust his state remedies as required by 28 U.S.C. § 2254.

Our first line of inquiry, therefore, must be whether petitioner has satisfied the exhaustion requirement of Section 2254. If this requirement has not been met, the petition must be dismissed as premature, Petition of Barry, 388 F.2d 592 (3 Cir. 1968). It is no longer arguable that before a federal court may reach the merits of a habeas corpus petition, the petitioner must (1) have sought relief in each court of the state's hierarchy in which a remedy is currently available, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and (2) show that precisely those points raised in the federal court were previously raised in the state courts or may no longer there be raised. See, e.g., Cotner v. Henry, 394 F.2d 873 (7 Cir. 1968), cert. denied, 393 U.S. 847, 89 S.Ct. 132, 21 L.Ed. 118; United States ex rel. Gonzales v. Follette, 414 F.2d 788 (2 Cir. 1969). As petitioner has attempted to seek direct review of his conviction in the Illinois Supreme Court, his only currently available state remedy is post-conviction relief. Because he has failed to seek such relief, this omission must be deemed a failure to exhaust his state remedies if, but only if, he could now raise those contentions which he urges herein in the post-conviction hearing.

The Illinois Post-Conviction Act, by its terms, appears to be an attempt upon the part of the Illinois Legislature to provide convicted criminal defendants with an opportunity to raise contentions of constitutional deprivations in a collateral attack upon their convictions even if such attack includes issues already raised on direct appeal. Notwithstanding the seemingly clear language of the Act, however, the Supreme Court of Illinois has held in repeated decisions construing the Act that a state prisoner may not collaterally attack his conviction in a post-conviction proceedings if the allegations he raises concerning a denial of his constitutional rights at trial were fully reviewed on direct appeal. The Illinois Supreme Court, thus, forecloses secondary collateral attacks upon a conviction by holding that the Illinois Post-Conviction Act is not intended to be used as a device to obtain another hearing upon a claim of denial of constitutional rights where there has already been an earlier full and final review of the issues raised in the post-conviction proceedings; any claim which has been given full review by the reviewing court is barred by res judicata principles. People v. Collins, 39 Ill.2d 286, 235 N.E.2d 570 (1968); People v. Hill, 39 Ill.2d 61, 233 N.E.2d 546 (1968); People v. Cox, 34 Ill.2d 66, 213 N.E.2d 524 (1966). These decisions each dealt with appeals from dismissed post-conviction petitions that had raised constitutional issues which had been disposed of by the Illinois Supreme Court in a previous direct appeal or on a writ of error. In these cases, the Supreme Court refused to re-hear the issues on the merits, applied the doctrine of res judicata, and affirmed the dismissals below of the post-conviction petitions.

If the Illinois courts confined the doctrine of res judicata to the situation wherein a post-conviction petitioner was denied relief only when he has had a prior review by the Supreme Court, the petitioner herein would not be barred from raising his constitutional claims in a post-conviction proceeding because he has had direct review on the merits only in the Appellate Court. The Supreme Court of Illinois, however, has recently expanded the doctrine of res judicata to apply to any post-conviction proceeding in which constitutional claims are raised which have previously been afforded direct review on appeal by either the Supreme Court or an Appellate Court. People v. Kamsler, 39 Ill.2d 73, 233 N.E.2d 415 (1968); People v. Bright, 42 Ill.2d 331, 247 N.E.2d 426 (1969); People v. Arnold, 45 Ill.2d 113, 256 N.E.2d 809 (1970).

In Kamsler and Arnold, the defendants were convicted in the Circuit Court, their convictions affirmed by the Appellate Court of Illinois, and the Supreme Court of Illinois denied their petitions for leave to appeal. In Bright, the defendant was convicted, the conviction was affirmed by the Appellate Court, but no petition for leave to appeal was ever filed with the Supreme Court. After finishing their direct appeals, the defendants filed post-conviction petitions and were denied hearings by the trial courts. The Supreme Court of Illinois held in each case that the claims adjudicated by the Appellate Court were res judicata and post-conviction proceedings could not thereafter be had. In Kamsler, the Court stated: "It is well settled that where a person convicted of a crime has taken an appeal from the judgment of conviction on a complete record, the judgment of the reviewing court is res judicata as to all issues actually decided by the court * * *" 233 N.E.2d at 416. In Arnold, the Court held that as the petitioner was simply attempting to argue, in somewhat altered form, the same questions originally presented to the trial court and reviewed by the Appellate Court, those issues had become res judicata and post-conviction relief would not lie. See, also, People v. Price, 44 Ill.2d 332, 255 N.E.2d 395 (1970); People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455 (1970); People v. Harrison, 46 Ill.2d 159, 263 N.E.2d 87 (1970); People v. Smith, 46 Ill.2d 430, 263 N.E.2d 860 (1970).

The petitioner herein is in the identical situation as the defendants were in Kamsler and Arnold. He has heretofore appealed his convictions to the Illinois Appellate Court, and has, in addition, petitioned for leave to appeal to the Illinois Supreme Court, which was denied, raising at trial and in both appeals those claims which he urges herein. Were we to require the petitioner to resort to state post-conviction proceedings, he could only expect the dismissal of that petition for relief in the Circuit Court and the affirmance of such dismissal on appeal to the Illinois Supreme Court under the doctrine of res judicata as enunciated in Kamsler, Bright and Arnold. We conclude, therefore, that petitioner does not have any effective state court processes presently open to him. Consequently, we conclude that he has exhausted his state remedies as that term is used in 28 U.S.C. § 2254.

By refusing to consider the theoretical availability of post-conviction relief as an effective state corrective process, we are doing nothing more than abiding by Section 2254's proper recognition of a "futility exception" to the general exhaustion requirement. Other courts have recognized that no useful purpose is served by requiring a state prisoner to go through the motions of what all concerned must acknowledge to be a futile gesture. For example, the Seventh Circuit, in a related context, has ruled that it is unnecessary to require a state prisoner to file a post-conviction petition when the highest court of the state has already ruled on an almost identical contention raised by the petitioner on direct appeal. United States ex rel. Kemp v. Pate, 359 F.2d 749 (7 Cir. 1966). Thus, the Court stated:

  "The doctrine of exhaustion of state remedies
  demands only that the state courts first be
  presented with an opportunity to apply controlling
  legal principles to the facts bearing upon the
  constitutional claim of a defendant in a state
  criminal action before application is made to the
  federal courts." 359 F.2d at 751

Similarly, the Fourth Circuit, in granting a state prisoner habeas corpus relief, has ruled after reviewing the application of North Carolina law by North Carolina courts, that no useful purpose would be served in requiring the state prisoner involved to bring further state proceedings when the state courts had generally denied the validity of the petitioner's constitutional claims in other, non-related cases. Patton v. State of North Carolina, 381 F.2d 636 (4 Cir. 1967), cert. denied 390 U.S. 905, 88 S.Ct. 818, 19 L.Ed.2d 871. Likewise, the Sixth Circuit has concluded after reviewing state court application of Michigan law in a manner directly in opposition to the contentions of the habeas corpus petitioner, that the petitioner had exhausted his state remedies as far as Section 2254 was concerned. In Lucas v. People of the State of Michigan, 420 F.2d 259 (6 Cir. 1970), the Court stated:

    "We see no reason to believe that the Michigan
  Appellate Courts are prepared to depart from the
  import and effect of (their prior decisions). It
  seems obvious that to require the appellees in the
  present case to exhaust their remedies in the
  State courts would be an exercise in futility. It
  appears more than probable that if this Court
  should relegate appellees to exhaustion of their
  State remedies, the appellate courts of Michigan
  would adhere to their previous interpretation of
  the State Constitution and appellees then would
  return to the federal courts for relief. Such a
  judicial run-around is not mandated by (28 U.S.C. § 2254)
  providing for exhaustion of State remedies.
  We agree with the District Court that under the
  circumstances of the case no effective State remedy
  exists." 420 F.2d at 262

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