The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
This Court cannot entertain the merits of the Petition
without first addressing the question of Mitchell's exhaustion
of state remedies. To that end the background of this case
must be examined in some detail.
Mitchell was first tried for the 1972 murders of Earl and
Myrtle Ridgeway in April 1973. That trial ended in a mistrial
because of the jury's inability to reach a verdict.
At his second trial Mitchell (represented by another
attorney, Phillip Montalvo ["Montalvo"]) was convicted on both
murder counts and sentenced to concurrent terms of 45 to 90
years. On direct appeal Mitchell's appellate counsel (yet
another lawyer) did not challenge any aspect of the
representation provided by Montalvo. Mitchell's conviction was
affirmed by the Illinois Appellate Court in an unreported
one-paragraph order, and the Illinois Supreme Court denied
leave to appeal.
In 1978 Mitchell filed a pro se petition under the Illinois
Post-Conviction Act (the "Act," Ill.Rev.Stat. ch. 38, §§ 122-1
to 122-7), raising (for the first time) an ineffective
assistance of counsel claim in addition to the issues
previously asserted on direct appeal. After counsel was
appointed to represent him, Mitchell filed an amended petition,
which reiterated the ineffective assistance contention but
discarded the other issues. According to the amended petition,
Mitchell was deprived of his Sixth Amendment rights when his
"lawyer made references to his past criminal history, thereby
inflamming [sic] the passions of the jury and denying him a
fair trial." Mitchell's petition was denied.
After two different lawyers obtained leave to withdraw as
Mitchell's appointed counsel, he filed a pro se appeal from
denial of his petition. In affirming that denial in an
unreported per curiam order (People v. Mitchell, (5th Dist.
1981)), the Illinois Appellate Court examined "the entire
record on appeal" and found no error on the grounds asserted or
"any potential ground for reversal" (slip op. at 1).
Undaunted by his lack of success, Mitchell filed a pro se
Section 2254 petition here. This Court appointed counsel, who
filed the Petition. They advanced not only the ineffective
assistance contentions dealt with in the state post-conviction
proceeding but several new grounds, based on Montalvo's
claimed failure to:
(1) make any opening statement;
(2) object to the admissibility of certain
(3) heed the court's order barring potential
witnesses who attended the trial from testifying;
(4) introduce a police report into evidence;
(5) interview and prepare witnesses "who would
have exculpated" Mitchell — witnesses whose
testimony formed ...