Pell, Stevens and Sprecher, Circuit Judges.
This is an appeal from the granting of a petition for a writ of habeas corpus following an evidentiary hearing in the district court.
Milton Wilson was convicted in December, 1970, following a bench trial in the Circuit Court of Cook County, Illinois, on indictment charges of attempted murder, armed robbery and aggravated assault. Although he was a minor, age 15, at the time of the alleged offenses, he apparently was tried under regular criminal procedures because of the gravity of the charged offenses.
A direct appeal was initiated reasonably promptly to the Illinois Appellate Court, the trial record having been filed in that court on April 19, 1971. However, as of the time of oral argument before this court no appellant's brief had been filed in the Illinois Appellate Court. At least three extensions of time for briefing have been granted to Wilson, the last of which carries to the end of the year 1971.
In the interim, however, Wilson's counsel has not ignored his client's case but rather than devoting his efforts to the direct appeal in the Illinois court, he has been primarily concerned with pursuit of the habeas corpus remedy in the federal courts.
Some time in May, 1971, although the trial record had been on file in the Appellate Court approximately only one month, there was filed in the Illinois Supreme Court a motion for leave to file an original petition for writ of habeas corpus. That motion was denied without comment on May 18, 1971. The petition which is involved in this appeal was then filed in the District Court for the Northern District of Illinois on May 20, 1971. The district court, exhibiting appropriate deference to the exhaustion of state remedies requirement of 28 U.S.C. § 2254(b), suggested the seeking of "a denial of an emergency determination on the petition for writ of habeas corpus alone" in the Illinois Appellate Court without disturbing the pending appeal there. The district court then ordered the cause removed from the calendar with leave to reinstate in forty days.
In accordance with the suggestion of the district court, Wilson filed a "motion to reverse" in the Illinois Appellate Court on June 25, 1971. However, that court ruled that the motion would be "taken with the cases."
Wilson then returned to the district court where that court apparently was satisfied that sufficient steps had been taken at the state level to satisfy the exhaustion requirement and to permit discretionary consideration of the merits of the petition. Upon considering the merits, the court granted the writ.
There is no contention here that the State of Illinois does not provide an orderly procedure for direct appellate review of criminal convictions. Further, it has not been demonstrated, and no contrary assertion is made, that the state courts on appeal would give less than full and correct consideration to claimed constitutional errors. The principal, if not the only, complaint is that the state procedure is time-consuming. We do not find this to be a per se reason for federal intervention.
This is particularly true in the present case where the time elapsed is not of the nature to shock judicial conscience. An a fortiori situation actually exists here where the state appellate procedures have not progressed because of the failure to file the appellant's brief, which could have been filed more than six months ago.
No doubt others in Wilson's position have and will share his complaint of delays in state appellate review. If each is accorded the opportunity of by-passing the established procedures through the means of asking for emergency out-of-order review of a claimed error, the accumulated backlog of the so-called emergency claims would undoubtedly produce the same congestion that now apparently exists in the normal procedure. We are not unaware of the fact that courts generally are cognizant of and are addressing themselves to the problem of a need for expediting criminal appeals. We express hopeful confidence that progress is being accomplished toward solutions. The answer does not lie, in our opinion, in the procedure here proposed which would tend to make the federal courts appellate reviewing courts of state criminal procedures. This is an office which federal habeas has not been, and is not intended to be, designed to serve.
Wilson purports to find support for his position in a recent decision of this court, Shelby v. Phend, 445 F.2d 1326 (7th Cir. 1971). Reliance on Shelby is misplaced as a reading of that case makes it clear that this court found that such strength as the petition might have was predicated "almost entirely" on the merits of an Escobedo point, which point had been considered and rejected on direct appeal to the Indiana Supreme Court. While this court did not purport to determine the merits of the claims, it is clear that the strength of the non-exhausted two additional claims was not deemed to be of sufficient stature to justify refusal to entertain the petition.
Wilson also urges that since the district court has had an evidentiary hearing, we should in the interest of judicial economy reach the merits of the claimed constitutional error and uphold the district court in his determination thereof. If we read this contention correctly that, looking only at this particular case, it would be more economical of judicial time just to proceed with the case than to send it back, we cannot ...