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UNITED STATES EX REL. HANRAHAN v. BOSSE

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


September 23, 1982

UNITED STATES OF AMERICA EX REL. HOMER E. HANRAHAN, PETITIONER,
v.
DANIEL C. BOSSE, RESPONDENT.

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

MEMORANDUM OPINION AND ORDER

Homer Hanrahan ("Hanrahan") has filed a petition for a writ of habeas corpus, which comes before this Court for preliminary consideration under Rule 4 of the Rules Governing Section 2254 Cases ("Rule 4"). Because the petition concededly contains both unexhausted and exhausted claims, the petition is summarily dismissed.

Hanrahan's Petition

Hanrahan admits (Pet. ¶ 13) three of his six claimed grounds for relief were not presented on his direct appeal through the state court system, People v. Hanrahan, 64 Ill. App.3d 207, 20 Ill.Dec. 866, 380 N.E.2d 1075 (1st Dist. 1978), leave to appeal denied, 72 Ill.2d 583 (1979), cert. denied, 444 U.S. 828, 100 S.Ct. 53, 62 L.Ed.2d 36 (1979). His stated reason for non-presentation was (Pet. ¶ 13):

  because Court appointed appellate counsel, who
  also represented co-defendant as retained counsel
  refused to raise issues on appeal.

That statement refers in turn to a puzzling further comment by Hanrahan (Pet. Addendum 1, at 2):

  The doctrine of waiver and res judicata apply to
  the additional issues raised in the instant
  petition for purposes of state court review, and
  therefore federal habeas corpus is the only and
  appropriate remedy available to petitioner.

Effect of Unexhausted Claims

Just before Hanrahan filed his petition, the Supreme Court held in Rose v. Lundy, ___ U.S. ___, ___, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982) "that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims."*fn1 Rose compels dismissal here.

At least one of Hanrahan's claims is in fact unexhausted: that of ineffective assistance of counsel at trial. Hanrahan has not exhausted the remedy available for that claim under the Illinois Post-Conviction Hearing Act (the "Act"), Ill.Rev.Stat. ch. 38, §§ 122-1 to 122-7.*fn2

Ordinarily the Act is unavailable when an issue could have been but was not raised on direct appeal — the issue is deemed waived. People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970). But that result does not obtain where (as here) an ineffective counsel claim relies on non-record evidence. United States ex rel. Williams v. Israel, 556 F.2d 865, 866 (7th Cir. 1977) suggests that under Illinois law an ineffective counsel claim "based in substantial part on evidence outside the record" is never waived for purposes of the Act. Indeed, Illinois courts recognize the availability of post-conviction proceedings for any "substantial constitutional errors . . . not contained within the record and thus . . . not [presented] before the reviewing court" on direct appeal. People v. Ford, 99 Ill. App.3d 973, 976, 55 Ill.Dec. 365, 368, 426 N.E.2d 340, 343 (3d Dist. 1981).*fn3

Conclusion

Hanrahan presents a mixed habeas corpus petition (containing both unexhausted and exhausted claims). Accordingly the petition must be and is summarily dismissed under Rule 4.


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