The opinion of the court was delivered by: Crowley, District Judge.
MEMORANDUM OPINION AND ORDER
The petitioner, Thomas Stewart, seeks a writ of habeas
corpus under 28 U.S.C. § 2254, challenging the
constitutionality of his conviction in the Circuit Court of
Cook County. Respondents have moved for summary judgment.
Petitioner requests an evidentiary hearing or, alternatively,
summary judgment in his favor.
Stewart was tried and convicted on two counts of armed
robbery by a jury and sentenced to two to eight years in
custody. He appealed his conviction to the Illinois Appellate
Court which affirmed. People v. Stewart, 24 Ill. App.3d 605,
321 N.E.2d 450 (1974). The Illinois Supreme Court denied
leave to appeal, 58 Ill.2d 595 (1975). Stewart then filed a
petition for post judgment relief. The trial court denied the
petition and the Illinois Appellate Court again affirmed.
People v. Stewart, 66 Ill. App.3d 342, 23 Ill.Dec. 152,
383 N.E.2d 1179 (1978). Apparently because of some clerical error,
a timely appeal was not taken and the Illinois Supreme Court
refused to extend time to file a Petition for Leave to Appeal.
The United States Supreme Court denied certiorari. Stewart v.
Illinois, 441 U.S. 907, 99 S.Ct. 1998, 60 L.Ed.2d 376 (1979).
Stewart then filed his habeas corpus petition in this Court.
He charges that his retained attorney acted in a duplicitous
role depriving him of effective assistance of counsel in
violation of his Sixth and Fourteenth Amendment rights.*fn1
The charge is based on the facts that S. Thomas Sutton,
Stewart's attorney, also represented his co-defendant, Stephan
Sedlacko, and that Sutton himself planned the robbery for
which Stewart was convicted.
At trial neither Stewart, the state's attorney nor the court
inquired about any potential conflicts. Similarly, on appeal,
although Stewart retained new counsel who presented challenges
to the adequacy of representation, none of them related to
Sutton's dual representation or his own involvement in the
robbery. However, at the post-conviction hearing much evidence
was adduced on those charges.
The evidence at that hearing established that Sutton was the
leader and Stewart and Sedlacko were members of an
organization called the Legion of Justice. The Legion's
function was to gather intelligence information about certain
"left-wing" activities. The robbery for which Stewart was
convicted was one of a number of robberies and break-ins
planned and executed by the Legion, its leader and members.
Sutton personally designated the Legion members who were to
commit the robbery. Two of them were Sedlacko and a Tom
Kominsky, whose physical characteristics were similar to
Sutton did not call Kominsky as a witness at trial, nor did
he disclose his identity to the jury. Moreover, he purposely
insured Sedlacko's absence from trial by instructing him to
leave the jurisdiction and furnishing him with $2,000.00 and
two sets of identification. Sutton also advised Stewart not to
testify in his own behalf and ordered Stewart's brother to
deny any knowledge about the Legion and Stewart's association
with Sedlacko even though he knew those facts were false.
After hearing this evidence the state's attorney confessed
error on the ground that Stewart was denied effective
assistance of counsel. The trial court, however, determined
that it was not bound by the confession of error, and the
appellate court affirmed, holding that since Stewart knew the
full extent of Sutton's participation in the robbery at the
time the conviction was appealed, had retained new counsel and
still did not raise the issue of conflict, he waived his right
to challenge the adequacy of representation. People v. Stewart,
66 Ill. App.3d 342, 352-53, 23 Ill.Dec. 152, 160-161,
383 N.E.2d 1179, 1187-88 (1978).
A recent decision of the United States Supreme Court
provides substantial guidance in resolving the issues
presented here. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct.
1708, 64 L.Ed.2d 333 (1980), the Court held that a person who
did not raise an objection to the adequacy of representation at
trial was entitled to habeas corpus relief under 28 U.S.C. § 2254
for violation of his Sixth Amendment rights if he could
establish "that an actual conflict of interest adversely
affected his lawyer's performance". 100 S.Ct. 1708 at 1718. In
reaching its decision the Court concluded that a district court
reviewing a habeas corpus petition is not bound by a state
court's finding that an attorney engaged in multiple
representation since that determination is a mixed question of
law and fact. In addition, the Court concluded that even though
privately retained, not appointed, the requisite state action
In this case, facts such as Sutton's activities in the
Legion of Justice, his participation in planning the robbery,
his instructions to Stewart's brother to falsely testify about
his familiarity with the Legion and its members and his order
to Sedlacko to leave the jurisdiction are "historical facts"
which must be presumed correct. 28 U.S.C. § 2254(d). See
Townsend v. Sain, 372 U.S. 293, 309 n. 6, 83 S.Ct. 745, 755
n. 6, 9 L.Ed.2d 770 (1963).
Neither the trial court nor the appellate court rejected
these facts. Their findings merely involve the resolution of
legal issues such as whether Stewart had waived his right to
object to the representation and whether the representation
was inadequate. Because these are legal findings or mixed
questions of law and fact requiring "the application of legal
principles to the historical facts," Cuyler v. Sullivan,
446 U.S. 335, 342, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333 (1980),
this Court is not bound by those conclusions and may make an
independent evaluation of Stewart's constitutional arguments.
The presence or absence of state action does not turn on the
distinction between retained and appointed counsel. Rather,
state action is predicated on the fact that the state itself
initiates and conducts the trial. Cuyler v. Sullivan,
446 U.S. 335, 343-345, 100 S.Ct. 1708, 1715-16, 64 L.Ed.2d 333 (1980).
In this case, the involvement of the state is somewhat
greater. In Cuyler there was no suggestion that state officials
knew or should have known of defense counsel's conflict. In
contrast, although the state's attorney apparently was unaware
of potential conflicts at the time of trial, he made a
confession of error which constitutes state participation in a
stage of the proceeding when constitutional defects could have
been rectified. Thus, the state action requirement is
unequivocally satisfied. ...