Appeal from the United States District Court for the Central District of Illinois. No. 81-C-1015 -- Robert D. Morgan, Judge.
Before Pell and Cudahy, Circuit Judges, and Grant, Senior District Judge.*fn*
Petitioner John Clauser appeals the district court's denial of his petition for habeas corpus. His primary argument on appeal is that the district court erred in concluding that his retrial and resulting conviction were permissible under the double jeopardy clause of the Fifth Amendment. Clauser also claims that he was deprived of effective assistance of counsel at the appellate level, enumerating several alleged errors in his trial that were not raised on his direct appeal to the Illinois Appellate Court. The respondents urge that Clauser failed to exhaust his state remedies as to the errors allegedly resulting from the inadequacy of his appellate counsel.
Clauser was indicted along with two others for delivery of more than thirty grams of a substance containing cocaine. During the ensuing trial, Officer Brignadello testified that he had not personally witnessed certain events involving Clauser but had learned of them from another officer. Brignadello admitted, however, that he had testified to personal observation of these events before the grand jury because the officer who actually witnessed them was unavailable to testify. Clauser and his codefendant Jones moved for judgment of acquittal, believing there was insufficient evidence to convict them.*fn1 By this time, the State had presented the bulk of its case. The trial judge denied the motion for acquittal but dismissed the indictment, indicating his belief that no valid conviction could be based on an indictment returned on the basis of perjured grand jury testimony.
Clauser and Jones were reindicted. Both moved for dismissal of the indictment and discharge on the grounds of double jeopardy. The trial court granted Jones' motion but denied that of Clauser.*fn2 Clauser was retried and convicted for the same offense.
Clauser took a direct appeal of his conviction to the Illinois Appellate Court. He was represented by the same counsel who had defended him at trial. Only the double jeopardy question was raised on appeal. The court upheld the conviction, People v. Clauser, 73 Ill.App.3d 145, 29 Ill.Dec. 368, 391 N.E.2d 793 (1979), cert. denied, 446 U.S. 908, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980). Leave to appeal to the Illinois Supreme Court was denied as was Clauser's petition to the United States Supreme Court for a writ of certiorari.
At the outset, we consider the State's claim that the petitioner has failed to exhaust his state remedies, as he is required to do by 28 U.S.C. § 2254(b) (1976). The Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, §§ 122-1-122-7 (1977), permits a person imprisoned in the penitentiary to institute a proceeding alleging a denial of his federal or state constitutional rights in the proceedings that resulted in his conviction. Clauser filed no petition in state court pursuant to section 122-1.
The Supreme Court recently held that when a habeas petition contains both exhausted and unexhausted claims, the district court must dismiss the claim in toto. Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 1205, 71 L. Ed. 2d 379 (1982).*fn3 We must therefore determine whether both Clauser's double jeopardy claim and his incompetence of counsel claim were exhausted at the state level within the meaning of 28 U.S.C. § 2254(b) (1976).
We find that Clauser's double jeopardy claim was decided by the Illinois Appellate Court, People v. Clauser, 73 Ill.App.3d 145, 29 Ill.Dec. 368, 391 N.E.2d 793 (1979), cert. denied, 446 U.S. 908, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980). That question could not therefore have been raised successfully pursuant to Ill.Rev.Stat. ch. 28, § 122-1 (1977), because of the bar of res judicata.
Clauser's second claim pertains to the incompetency of his counsel. He was represented by the same attorney at trial and on his direct appeal. On appeal, his attorney raised only the double jeopardy question. In his brief before this court, Clauser catalogs, with minimal discussion, a number of alleged trial errors which he thinks should have been raised on appeal but were not due to the incompetence of his counsel.
Incompetence of counsel was only one of several issues raised in United States ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir. 1974). Williams had filed a petition pursuant to the Illinois Post-Conviction Hearing Act and it had been dismissed on the ground that his prior appeal was res judicata. He had not appealed this dismissal. The federal district court subsequently dismissed his habeas petition for failure to exhaust state remedies because he had not appealed the state dismissal. A panel of this court reversed the district court's dismissal and remanded for an evidentiary hearing. We found no basis to believe that an appellate court in Illinois would relax the waiver doctrine of People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970), in regard to Williams' claims. We stated that: "(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." 502 F.2d at 1386 (footnote omitted).
We note first that the posture of this case differs from Williams in that Clauser has not suffered a dismissal of a state post-conviction petition; rather, he has never filed one. Second, we find precedent in Illinois law indicating that Clauser's claim of inadequate representation on appeal would be cognizable under the Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, §§ 122-1-122-7 (1977). In People v. Frank, 48 Ill.2d 500, 272 N.E.2d 25 (1971),*fn4 the Illinois Supreme Court expressly held that: "the (Post-Conviction Hearing) Act provides a proper vehicle for review of those issues as to which review by direct appeal has been ...