Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 C 2540 EDWIN A. ROBSON, Judge.
Swygert, Chief Judge, Fairchild, Circuit Judge, and Solomon, Senior District Judge.*fn*
Petitioner-appellant George T. Williams is appealing from the dismissal of his petition for a writ of habeas corpus. We reverse.
The question that is presented by this appeal is whether under the exhaustion of state remedies requirement of 28 U.S.C. § 2254(b) petitioner is required to appeal a dismissal of a state court post-conviction petition when the basis of that dismissal is a firmly entrenched state rule that a prior direct appeal is res judicata as to all issues that were raised or could have been raised.
Williams was convicted in 1963 of burglary and aggravated battery following a bench trial in the Circuit Court of Cook County, Illinois. He was sentenced to concurrent terms of ten to twenty years for the aggravated battery conviction and fifteen to twenty-five for the burglary. His conviction was affirmed by the Illinois Appellate Court (People v. Williams, 75 Ill. App. 2d 50, 221 N.E. 2d 48 (1966) and leave to appeal was denied by the Illinois Supreme Court, 35 Ill. 2d 630. After filing several petitions for writs of habeas corpus in federal court which were dismissed for failure to exhaust state remedies, Williams filed a petition for post-conviction relief under the Illinois Post-Conviction Hearing Act.*fn1 This petition was dismissed in July 1969 on the ground that the prior appeal was res judicata as to issues raised in the petition. No appeal was taken from that dismissal. Instead, Williams filed in the federal district court the pro se petition for a writ of habeas corpus that is the subject of this appeal. The petition raises numerous issues including ineffective assistance of counsel, use of perjured testimony, unlawful arrest, defective indictments and a sentence in excess of the statutory maximum. A motion for appointment of counsel was also made, but the motion was denied. Respondents filed a motion to dismiss and petitioner filed a memorandum in opposition. The district court then dismissed the petition, without a hearing, on the ground that Williams had not exhausted his state remedies since he did not appeal the dismissal of his Post-Conviction Act petition. The district judge issued a certificate of probable cause and this appeal followed.
The district court erred in dismissing for failure to exhaust state remedies. 28 U.S.C. § 2254 (b) does not require resort to a state remedy where there is "the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." Judicial interpretation has rendered the Illinois Post-Conviction Hearing Act an "ineffective" remedy for most of the issues raised on the record here and it need not be exhausted by this petitioner before he may initiate his habeas petition in the federal courts.
The statute itself appears to provide a broad remedy for Illinois prisoners who claim to have been denied constitutional rights.*fn2 The Illinois Supreme Court, however, has virtually eliminated the remedy for any prisoner who has taken a direct appeal of his conviction. A long line of cases has developed a strict res judicata and waiver doctrine:
"We have consistently held that where a convicted person has appealed from the judgment of conviction, the judgment of the reviewing court makes res judicata all issues actually decided by that court and all issues which could have been presented to that court and which were not are considered to have been waived." People v. James, 46 Ill. 2d 71, 263 N.E. 2d 5 (1970).
Thus, in the absence of unusual circumstances, after a direct appeal has been taken "there ordinarily will be available no collateral remedy under Illinois Law" for any issue that "arises from facts wholly within the record." ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCACATION, ILLINOIS CRIMINAL PRACTICE § 15.29, at 15-32 (1971). One district court has already determined that this res judicata doctrine renders the Illinois Post-Conviction Act an ineffective remedy for issues actually raised and decided on direct appeal. United States, ex rel. Gates v. Twomey, 325 F. Supp. 920 (N.D. Ill. E.D., 1971). The Sixth Circuit had held that exhaustion of one's rights under the Ohio post-conviction statute is not required because the Ohio Supreme Court has adopted a res judicata doctrine similar to that of the Illinois Supreme Court. Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967).
Respondents argue that the Illinois Courts have developed an exception to the waiver rule in cases where "fundamental fairness" necessitates that it not be applied. It is urged that the petitioner should be required to appeal the dismissal of his petition so as to allow the appellate courts of Illinois an opportunity to rule on whether his case falls within the "fundamental fairness" exception. The exception is a narrow one. It was developed in People v. Hamby, 32 Ill. 2d 291, 205 N.E. 2d 456 (1965), a case in which a petitioner had repeatedly requested that his attorney raise certain issues on appeal, but the attorney failed to do so. Since then the "fundamental fairness" concept has been used in only a small number of cases. See United States, ex rel. Allum v. Twomey, 484 F.2d 740, 743 n. 7 (7th Cir. 1973). At this time there is no basis for assuming that the "fundamental fairness" doctrine is likely to be substantially broadened; thus it would be futile to require that every prisoner seeking a federal writ of habeas corpus must first allow the Illinois Courts an opportunity to determine whether the waiver doctrine should not be applied to their case because of unique circumstances. We refuse to contribute further needless and delaying requirements to a procedure that already often results in shuttling prisoners back and forth between the state and federal courts before any decision on the merits is ever reached. A federal petition should be dismissed for failure to exhaust this state remedy only if there is direct precedent indicating that under the particular circumstances of a prisoner's case the waiver doctrine will be relaxed.*fn3 This rule is consistent with this court's opinion in United States ex rel. Millner v. Pate, 425 F.2d 249 (7th Cir. 1970), because in that case we found the circumstances of petitioner's case were substantially the same as those in Hamby.*fn4 On the basis of the present record we find no reason to believe that an appellate court in Illinois would relax the waiver doctrine in regard to the claims raised by the petitioner to which the doctrine is applicable.*fn5
Respondents argue further that even if petitioner has exhausted his state remedies the petition was properly dismissed because his claims were waived for failing to raise them in the state courts and because the petition fails to allege a constitutional violation. A claim will not be deemed waived for purposes of federal habeas corpus relief in the absence of a deliberately tactical decision to forego such claim. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). It does not appear that any such tactical maneuvers were involved in this case. Thus, respondents' reliance on United States ex rel. Allum, supra, is inappropriate. And though there may be some doubt as to whether each of petitioner's claims sufficiently alleges a constitutional deprivation, we are ...