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United States District Court, Northern District of Illinois, E.D

November 3, 1981


The opinion of the court was delivered by: Marshall, District Judge.

Petitioners, Otis Williams and A.D. Clark, proceeding pro se, seek habeas corpus relief from an Illinois criminal conviction, pursuant to 28 U.S.C. § 2254 (1976). Respondent, the Illinois Director of Corrections, has answered the petition and moved for summary judgment pursuant to Rule 56, Fed.R.Civ.Pro. Petitioners have responded with a cross motion for summary judgment. The motions have been briefed and are ready for decision.


Petitioners were tried and convicted by a jury in Kankakee County Illinois of burglarizing the P & E Market. The trial judge sentenced them to terms of five to twenty years imprisonment. Petitioners' convictions were affirmed on appeal. People v. Clark, 42 Ill. App.3d 472, 355 N.E.2d 619 (1976). Petitioners assert two grounds for relief in the present action: that their trial counsel was laboring under a conflict of interest which rendered his assistance ineffective in violation of their Sixth Amendment rights, and that the trial court erred in giving Illinois Pattern Instruction 13.21.

The facts of the case and evidence presented at trial are reviewed in the Illinois Appellate Court decision, 355 N.E.2d at 620-21, and need not be repeated here in detail. Petitioners were tried with a third defendant, E.J. Clark ("E.J."), who is not a party to this action. A single court appointed attorney represented all three defendants at trial and a second court appointed counsel represented all three on appeal. The case against the three defendants consisted of testimony placing them in a car filled with meat taken from the market shortly after the burglary took place, the fingerprint identification of Otis Williams and testimony of the police chief that he saw a large quantity of meat at the home of A.D. Clark ("A.D."). The prosecution also introduced Williams prior judicial admission which had been given in a related criminal proceeding.*fn1

The petitioners did not testify at trial and their attorney presented no evidence in their behalf. Counsel did, however, put codefendant E.J. Clark on the stand. E.J. claimed that he was not present at the burglary and only became involved after the fact. The substance of his testimony was that he was walking home from a friend's house and was picked up by petitioners Williams and A.D. Clark (E.J.'s brother) and that "[o]nce inside the car he noticed it was full of meat." 355 N.E.2d at 621.*fn2 There was, of course, no cross-examination or impeachment on behalf of petitioners since it was their counsel who elicited the testimony from E.J. on direct examination.

On appeal, all three defendants complained that the jury instruction, IPI 13.21, cited above was prejudicial and E.J. and A.D. Clark raised separate claims based on ineffective assistance of counsel .*fn3 The Appellate Court reversed as to E.J. Clark, holding that the conflict between his defense and that of his co-defendants rendered their joint representation constitutionally inadequate,*fn4 but affirmed as to Williams and A.D. Clark. The court rejected the jury instruction claim as to all of the defendants, holding the instruction was not properly objected to at trial or during post trial motions and was therefore waived. Id. at 623.

In deciding the ineffectiveness of counsel claim, the Illinois court relied on the standard set out in People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810 (1954), that in order to establish a constitutional violation a defendant must show "(1) actual incompetence of counsel, as reflected by the manner of carrying out his duties at trial, and (2) substantial prejudice resulting, without which the outcome probably would have been different." 355 N.E.2d at 621. The court rejected the argument advanced on behalf of A.D. Clark that joint representation with a defendant who placed him leaving the scene of the crime with the stolen goods in hand created a Sixth Amendment problem. The court stated:

  As to A.D. Clark, however, while he was prejudiced
  by the testimony of E.J. Clark, that the station
  wagon was full of meat when Williams picked E.J.
  Clark up, it was doubtful, on the basis of the
  record, that without such testimony the outcome as
  to A.D. Clark could have been any different.

  When all the evidence is reviewed on this issue,
  it is doubtful whether the admittedly prejudicial
  testimony of E.J. Clark was sufficiently
  prejudicial that it could be said that the outcome
  would have been different. We, therefore,
  conclude, as to A.D. Clark, that no sufficient
  prejudice is shown.

Id. at 623.


Petitioners claim that joint representation of all three defendants by a single attorney denied them their Sixth Amendment right to effective assistance of counsel. The problems which attend the multiple representation of criminal defendants have received considerable attention from the Supreme Court. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1941); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Every criminal defendant has the right to the effective assistance of counsel. The "mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate's conflicting obligations have effectively sealed his lips on crucial matters." Holloway v. Arkansas, supra 435 U.S. at 490, 98 S.Ct. at 1181. It is clear, however, that multiple representation is not a per se Sixth Amendment violation. The Court has recognized that "joint representation [may be] a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack." Glasser v. United States, supra 315 U.S. at 92, 62 S.Ct. at 475 (Frankfurter, J. dissenting) quoted in Holloway, supra 435 U.S. at 482-83, 98 S.Ct. at 1177. Where, as in this case, defense counsel does not assert conflicting interests as a basis for severance or the appointment of separate counsel, the court is under no obligation to conduct a sua sponte inquiry into potential conflicts which might not present themselves at trial. Cuyler, supra; United States v. Mandell, 525 F.2d 671 (7th Cir. 1975), cert. denied 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637 (1976). The Supreme Court in Cuyler followed the rationale advanced by this and other circuits that the primary responsibility for recognizing and eliminating conflicts of interests rests with the defense counsel and not the trial court.*fn5

Neither, however, does trial counsel's failure to seek a severance or separate counsel preclude petitioners from asserting their Sixth Amendment claim on appeal or collateral review. Rather, the consequence of counsel's failure to recognize an impermissible conflict prior to trial is to increase a petitioner's burden in establishing an ineffectiveness claim in a collateral proceeding. While the mere assertion of a conflict at trial, followed by failure of the trial court to grant separate counsel, might require reversal, see Holloway, supra 435 U.S. at 485-87, 98 S.Ct. at 1179-1180, absent a trial objection the petitioner must establish an "actual conflict of interest adversely affecting his lawyer's performance." Cuyler, supra 100 S.Ct. at 1718. A mere potential conflict, which may not have surfaced at trial, is insufficient. Id. See also, United States ex rel. Robinson v. Housewright, 525 F.2d 988 (7th Cir. 1975); United States v. Mandell, supra; United States v. Jeffers, 520 F.2d 1256 (7th Cir. 1975), cert. denied 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976). It is part of the defendant's burden on appeal or collateral review to identify with a reasonable degree of specificity the source and nature of the conflict. Mandell, supra at 677-78.

In the case at bar, petitioners have met their burden. As indicated earlier, petitioner's co-defendant, E.J. Clark, represented by common counsel, testified on direct examination that he came upon petitioners shortly after the burglary had taken place riding in a car carrying goods stolen from the market. In any case where two or more defendants have inconsistent stories relating to the crime charged, joint representation is impermissible. See Turnquest v. Wainwright, 651 F.2d 331 (5th Cir. 1981). This is particularly true where one of the defendants is prevented by counsel from taking the stand because of possible prejudice to a co-defendant, or counsel is precluded from cross-examination or impeachment because of conflicting loyalties. See Ross v. Heyne, 638 F.2d 979 (7th Cir. 1980); United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976).*fn6

The Illinois Appellate Court did not deny that petitioners established an actual conflict or that the conflict proved detrimental to their case. It denied relief, however, because it found, "it is doubtful whether the admittedly prejudicial testimony of E.J. Clark was sufficiently prejudicial that it could be said that the outcome of the trial without such testimony would have been different." 355 N.E.2d at 623. In so holding the Illinois Appellate Court relied upon an improper legal standard which denied petitioners their right to effective assistance of counsel. Thus, this is not a case in which we disagree with any of the factual findings made by the state court. Rather, accepting the state's determinations on the facts and presuming them to be correct, see Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981), we believe an application of proper constitutional standards requires the judgment against petitioners be set aside.

It appears that the court relied upon a variant of the harmless error rule*fn7 normally applied by Illinois courts in ineffectiveness of counsel cases.*fn8 However, the Supreme Court stated long ago that where a conflict of interest is present "[t]he right to [effective] assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. at 76, 62 S.Ct. at 467. The need for counsel who can act effectively on a defendant's behalf is "among those constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Holloway, supra 435 U.S. at 489, 98 S.Ct. at 1181; Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). The absence of counsel who can provide undivided loyalty to the client deflects the fact finding process in a way that makes it impossible to determine the degree of harm occasioned by the error. See Holloway, supra 435 U.S. at 490-91, 98 S.Ct. at 1181. In the instant case we cannot tell, and we decline to speculate, how the presence of counsel to cross-examine or impeach E.J. Clark, or engage in any other activity which may have been prevented by the conflict demonstrated, affected the outcome of the trial. Instead, we rely on the principle, most recently restated in Cuyler v. Sullivan, that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." 100 S.Ct. at 1719.

Respondent asserts that petitioner Williams has waived any claim based on multiple representation because his trial counsel failed to raise the argument on appeal.*fn9 It is true that petitioners' appellate counsel, in a cryptic footnote,*fn10 decided not to raise the ineffectiveness issue as to Williams. We hold, however, that on the facts and circumstances of this case, failure to advance this argument on appeal does not amount to a waiver which precluded Williams from asserting his Sixth Amendment claim in this action.

The touchstone for determining whether a habeas petitioner has lost his right to a review of the merits in federal court is Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Sykes the Court completed a process of gradual erosion of the "deliberate bypass" standard established in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and limited a petitioner's ability to argue constitutional error for the first time on habeas review.*fn11

At issue in Sykes was a petitioner's right to contest the admissibility of his confession after failing to meet the state's contemporaneous objection rule at trial. In re-evaluating the deliberate bypass test of Fay, the Court focused on several reasons why state court rules were entitled to greater deference in federal court than had previously been given. Contemporaneous objection rules serve several valuable purposes: they allow a single comprehensive record to be made, facilitating appellate review; they enable the trial judge to apply important factual observations to decisions about the admissibility of evidence; they contribute to the finality of the judgment; and they confront the prosecutor with the possibility that the evidence is tainted and may not be admitted. Wainwright v. Sykes, supra 433 U.S. at 87-89, 97 S.Ct. at 2506. Moreover, the Court was concerned that permitting constitutional arguments for the first time on habeas review might encourage "sandbagging" by defense counsel and promote strategic delay before ultimate resolution of a defendant's claims. Id. at 89, 97 S.Ct. at 2507. Finally, considerations of comity and federalism require respect for state procedural rules which meet the requirements of due process and serve legitimate state judicial goals. Id.

The decision in Sykes does not require that non-compliance with every state procedural rule bars a federal decision on the merits. In Guzzardo v. Bengston, 643 F.2d 1300, 1305 (7th Cir. 1981), the Seventh Circuit held that the Sykes considerations do not apply where a petitioner failed to raise an ineffectiveness claim on direct appeal.

    The procedural bar raised by the State in the
  instant case is different from the contemporaneous
  objection requirement asserted in Francis
  and Sykes. An ineffective assistance of
  counsel claim is by its very nature a post-trial
  assertion. It can be argued that a State's rule
  governing post-trial procedures is entitled to the
  same deference by Federal Courts as a State
  contemporaneous objection rule. Nevertheless, such
  a holding would clearly be an extension of
  Francis and Sykes which we
  decline to undertake in this case. We believe the
  District Court correctly decided the
  ineffectiveness assistance of counsel claim on the

643 F.2d at 1304.

In following the lead of the Seventh Circuit, we note that the instant case would be a particularly inappropriate vehicle for application of the rigorous cause-prejudice standard advanced in Sykes. Petitioner Williams' claim of ineffective assistance is exactly the same as petitioner Clark's. Both were represented by the same attorney and it was that attorney who elicited the harmful testimony from co-defendant E.J. Clark. The conflict which rendered Williams' counsel ineffective is precisely the same as that which compels us to set aside the conviction of A.D. Clark. Thus, this is not a case where the state system was in any way deprived of the opportunity to analyze the constitutional question in the first instance. There are no facts relevant to Williams' constitutional claim which have not already been considered and ruled on by the Illinois Appellate Court in People v. Clark, supra. We discern no general state purpose or rule which would be furthered by precluding Williams from raising a serious constitutional error which goes to the fundamental fairness of the trial where the state has made a de facto ruling on the claim in spite of counsel's failure to formally raise the argument as to one of two clients. See Gale v. Harris, 450 F. Supp. 375, 377 (S.D.N.Y. 1978).

In addition, the Illinois Appellate Court in the instant case did not simply rely on counsel's waiver; it chose to comment on the merits of petitioner Williams' claim:

  It should be noted that, on appeal, counsel for
  defendants do not argue that the error as claimed
  warrants reversal as to defendant Williams. As
  appellate counsel admits, by reason of the prior
  judicial confession by Williams, it does not
  appear that the Williams' case was substantially
  prejudiced by counsel's alleged incompetence.

355 N.E. at 622. Thus, the court indicated that it applied the same impermissible standard to Williams' claim as it did to A.D. Clark's, by requiring a showing of "prejudice" beyond establishing an actual conflict of interest which affected the course of the trial. We hardly think it appropriate to punish petitioner and his appellate counsel for recognizing the inevitable and failing to argue against a long standing and oft applied state standard. See n. 8 supra; compare, Bromwell v. Williams, 445 F. Supp. 106, 111-14 (D.Md. 1977). The "waiver" alleged in this case raises none of the legitimate concerns outlined in Wainwright v. Sykes, and did not, in fact, prevent the state court from ruling on the merits of Williams' claim. Where the state court goes beyond an alleged waiver and gives its opinion on the merits, the cause-prejudice standard need not be met. See Blackburn v. Thomas,
450 U.S. 953, 1414, n. 2, 101 S.Ct. 1413, n. 2, 67 L.Ed.2d 380 (1981) (Powell, J., dissenting from denial of cert.); County Court of Ulster v. Allen, 442 U.S. 140, 152-53, 99 S.Ct. 2213, 2222, 60 L.Ed.2d 777 (1979); Franks v. Delaware, 438 U.S. 154, 161-63, 98 S.Ct. 2674, 2679, 57 L.Ed.2d 667 (1978); Thomas v. Blackburn, 623 F.2d 383, 386 (5th Cir. 1980), cert. denied, 450 U.S. 953, 101 S.Ct. 1413, 67 L.Ed.2d 380 (1981).

Respondent's final argument, not supported by any citations to authority or the factual allegations necessary to sustain it, is that the petition in this case is barred by Rule 9(a), 28 U.S.C. § 2254 rule 9(a).*fn12 That rule grants the court discretion to apply the equitable doctrine of laches if the petition comes after an unwarranted delay by petitioner. See Baxter v. Estelle, 614 F.2d 1030, 1033 n. 2 (5th Cir. 1980); Paprskar v. Estelle, 612 F.2d 1003, 1007 (5th Cir. 1980); Davis v. Adult Parole Authority, 610 F.2d 410, 415 (6th Cir. 1979). The rule should be construed liberally to permit full use of the federal court's habeas power, Davis, supra at 415, and requires the state to establish that it is prejudiced in its ability to respond by reason of the delay. Mayola v. Alabama, 623 F.2d 992, 999 (5th Cir. 1980); Mixon v. United States, 608 F.2d 588, 591 (5th Cir. 1979). Prejudice is not presumed and the state must at least allege some facts supporting its claim. Mayola, supra; Mixon, supra. The state has presented no factual question as to prejudice in its ability to respond to the petition caused by the delay between exhaustion of state remedies and this filing. Rule 9(a) does not warrant dismissal of this petition.


The second claim raised by the petitioners is that they were prejudiced when the Illinois trial court gave Illinois Pattern Instruction 13.21 to the jury.*fn13 The Illinois Appellate Court found that petitioners had failed to object properly to the giving of the instruction at trial and did not raise the issue as in any of petitioners' post-trial motions. 355 N.E.2d at 623. The court thus clearly could treat any objection on appeal as waived. Jacks v. Duckworth, 651 F.2d 480, 485 (7th Cir. 1981); Pharr v. Israel, 629 F.2d 1278, 1280-81 (7th Cir. 1980); Blenski v. LaFollette, 581 F.2d 126, 129-30 (7th Cir. 1978). Petitioners have alleged no facts establishing either "cause" for the failure to object on the grounds now argued or "prejudice" resulting from the alleged error and thus the argument may not be considered on habeas review. Wainwright v. Sykes, supra; Blenski, supra.*fn14

For the reasons stated herein, summary judgment is granted to the petitioners on their claim of ineffective assistance of counsel and for the respondent on the alleged due process-instruction violation. The judgment of conviction of the Circuit Court of Kankakee County Illinois finding petitioners Otis Williams and A.D. Clark guilty of burglary in cause number 74 CF 1808 is set aside.

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