Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72 C 2929 JULIUS HOFFMAN, Judge.
Tom C. Clark, Associate Justice,*fn* Pell and Sprecher, Circuit Judges.
This is an appeal from the dismissal of a state prisoner's petition for habeas corpus.
Three issues are presented for review:
1) Whether the petitioner was denied his statutory right to assistance of counsel at his post-conviction hearing in violation of the due process and equal protection clauses of the Fourteenth Amendment.
2) Whether the district court should have held an evidentiary hearing on the petitioner's allegation that the state suppressed evidence which might have exculpated him.
3) Whether the Illinois waiver rule, whereby the defendant waives error in the denial of a motion for a directed verdict at the close of the government's case if he presents evidence on his own behalf, imposed an impermissible burden on the petitioner's constitutional privilege against self-incrimination and violated his rights under the due process clause of the Fourteenth Amendment.
Early in the morning of January 11, 1967, a Moline, Illinois, policeman received a call that someone had broken into the Universal Cleaners. Upon arrival the officer heard a noise like a hammer hitting the safe. The safe was not in its usual place by the big front window. Help was summoned and arrived promptly. Policemen were stationed around the area. One of the policemen pushed open the door and four policemen entered. A man identified as the defendant was found hiding under a clothes rack in a corner of the building. Lying beside the defendant was a ten-pound sledge hammer and a forty-inch crow bar. The defendant was taken into custody. Five policemen, including three of those who had first entered, testified in the state burglary trial to the events of the evening. The defendant was found guilty. Upon appeal, the conviction was affirmed. People v. Curtis, 90 Ill. App. 2d 231, 232 N.E. 2d 457 (1967).
In view of the overwhelming evidence of guilt it would appear that the case might well be a strong candidate for harmless error disposition. However, this court having granted a certificate of probable cause, we will address the issues raised.
On December 31, 1968, petitioner filed a pro se petition as an indigent person under the Illinois Post Conviction Hearing Act, Ill.Rev.Stat. ch. 38, § 122-1 et seq. The public defender who was appointed to represent petitioner, wrote him informing him of representation, explaining the constitutional scope of post-conviction review, and requesting a copy of petitioner's transcript, which he believed petitioner possessed due to extensive quotations in the pro se petition and because of a statement from prior counsel. Petitioner responded to the effect that he and the public defender were incompatible, that he did not have a complete transcript, and that he could not send the transcript or other evidence because he trusted no one. He outlined constitutional issues he believed to be involved. No further communication occurred between the petitioner and the public defender.
At the post-conviction hearing, the public defender, after outlining these communications, stated that he had gone through the rather voluminous petition, had tried to find constitutional issues, but could not in good faith find such issues. He did not see how he could continue to represent the defendant or amend the petition since he did not have the record. The state's attorney argued that the petition should be dismissed because the petition stated mere conclusions and raised only matters which either were ruled on or could have been ruled on in the direct appeal. Finding that the defendant's various requests for relief did not state a substantial denial of any constitutional rights, the state court dismissed the petition.
With the assistance of other appointed counsel, petitioner appealed this dismissal to the Illinois Supreme Court which affirmed. People v. Curtis, ...