Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 72 C 2794 Richard B. Austin, Judge.
Swygert, Chief Judge, Fairchild and Sprecher, Circuit Judges.
This appeal represents what we hope will be the last major step in a seven year legal battle to have the federal courts consider the merits of petitioner John B. Adams' claim for habeas corpus relief.
In 1963 petitioner, with two co-defendants, was convicted of murder in an Illinois court and sentenced to a prison term of thirty-five to seventy years. On direct appeal to the Illinois Supreme Court his conviction was affirmed. People v. Henderson, 37 Ill. 2d 489, 229 N.E.2d 519 (1967). Petitioner then filed a habeas corpus petition in the United States District Court for the Northern District of Illinois, alleging that an involuntary confession had been used against him. On January 11, 1968 this petition was dismissed for failure to exhaust state remedies. On appeal to this court the order of dismissal was vacated and the cause was remanded to the district court for review of all documents before the Illinois Supreme Court to determine whether the voluntariness issue had been squarely presented to and considered by that court. Adams v. Pate, 418 F.2d 815 (7th Cir. 1969). On remand, the district court again dismissed for failure to exhaust state remedies. That order was affirmed by this court with the suggestion that petitioner had state remedies available under the Illinois Post-Conviction Hearing Act.*fn1 Pursuant to this suggestion, a petition for state post-conviction relief was filed before the original trial judge in 1970. An evidentiary hearing was held on the issue of the involuntariness of the confession, but on March 19, 1971 the trial judge, without making a finding on the ultimate question of the voluntariness of the confession, denied petitioner any relief apparently on the basis of res judicata and waiver. On September 20, 1972 the Illinois Supreme Court affirmed on the ground that "inasmuch as the issue of the voluntariness of his confession was decided adversely to petitioner on direct appeal, reconsideration of the issue is barred by res judicata." People v. Adams, 52 Ill.2d 224, 225, 287 N.E.2d 695 (1972).
Petitioner then filed the federal habeas corpus petition that is the subject of this appeal. Again the issue raised was the use of a confession that was allegedly involuntary in view of the totality of the circumstances. The district court dismissed the petition without a hearing on the basis that the petitioner had waived this claim by not raising it in the state courts. The court added that even if the issue were before it, the confession would be deemed voluntary.
Our initial question is whether for purposes of federal habeas corpus relief the petitioner has waived the claim of an involuntary confession by failing to raise the contention in terms of the "totality of the circumstances." We do not think that there has been such a waiver.
The test to be applied is whether there was a deliberate tactical decision to forego this claim. Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963). It appears to us that the issue was at least implicity brought before the state courts and that there is no basis for concluding that the failure to pursue the matter more forcefully in the state courts was an attempt to derive a tactical advantage. Prior to trial a motion to suppress the confession was made and considered. The state courts both at the trial and appellate level were put on notice that the admissability of this confession was being challenged on due process grounds. Moreover, this objection was made at the earliest desirable point.*fn2 Admittedly, the arguments concerning the inadmissability of the confession were directed mainly at the failure to give the type of warnings later required by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966) and Escobedo v. Illinois, 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758 (1964). Still, as respondents point out, almost all the evidence upon which petitioner now relies was introduced at the original suppression hearing. These factual elements were put before the judge in the context of an attack upon the admissability of the confession and the court had the opportunity to determine that the confession was involuntary in view of all the circumstances. Nor is it certain that this issue was not presented on direct appeal, even though the briefs were directed at the Miranda question. The Illinois Supreme Court apparently believed that it had considered the issue, since it later ruled that the post-conviction petition was barred by res judicata rather than by the doctrine of waiver which also bars relief under the Illinois Post-Conviction Hearing Act. See United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974).
This is not simply a case in which there was a failure to raise a certain argument or object to particular evidence in order to further an intended strategic maneuver. The filing of the motion to suppress is conclusive proof that there was no desire to allow the introduction of the confession. We do not find persuasive the fact that at trial Adams denied ever making the confession. The question before us is a legal one concerning the constitutionality of the confession. That question could have been presented to a court without infringing on the ability to deny the fact that the confession was ever given. Indeed, despite this denial a constitutional attack on the confession was entertained on direct appeal.
We are presented with an important claim that does "call into question the accuracy of the fact-finding process."*fn3 There was no tactical reason to avoid raising the contention in the state courts. Notice of objection to the confession was given at the appropriate time. The highest court in Illinois has indicated that the issue was in fact considered. There has been no deliberate by-pass of state remedies and petitioner is entitled to have a federal court finally consider the merits of this alleged constitutional deprivation.
We have determined that the ultimate question of the voluntariness of this confession is also before us. The district court did address the merits. An evidentiary hearing is unnecessary since there was one in state court on the post-conviction petition and the adequacy of that hearing is not being challenged. Further, the habeas corpus petition itself requests relief on the basis of the state record alone. Petitioner's counsel has conceded that there is no additional evidence to be submitted. Accordingly, we have requested and received supplemental briefs discussing this question.
The facts relevant to this inquiry are as follows. The police, without a warrant, took the petitioner from his bed at about 1:00 a.m. on December 28, 1962 and placed him under arrest. He was then taken to a police station where, for at least some period of time, he was locked to a radiator. Several police officers questioned petitioner for the admitted purpose of getting a confession, if possible. However, petitioner was never informed of his right to remain silent or his right to have a lawyer present. At approximately 2:30 a.m. an assistant state's attorney arrived at the police station with a court reporter. The assistant state's attorney questioned Adams and his two co-defendants who had also been arrested. He then proceeded to take recorded statements from each of them in the form of questions and answers. Petitioner's statement was the last to be taken and commenced at 5:10 a.m. A joint statement was also given beginning at 6:05 a.m. The ...