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UNITED STATES EX REL. MITCHELL v. DEROBERTIS

November 10, 1982

UNITED STATES EX REL. ALEXANDER MITCHELL, PETITIONER,
v.
RICHARD DEROBERTIS, ETC., ET AL., RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

Stateville Correctional Center ("Stateville") inmate Alexander Mitchell ("Mitchell") has brought this 28 U.S.C. § 2254 ("Section 2254") action against Stateville Warden Richard DeRobertis ("DeRobertis"). Mitchell claims deprivation of his Sixth Amendment*fn1 right to effective assistance of counsel during his state court trial. DeRobertis' answer to Mitchell's Amended Petition for Writ of Habeas Corpus (the "Petition," filed on Mitchell's behalf by counsel appointed to represent him in this Court*fn2) seeks denial of the Petition. For reasons stated in this memorandum opinion and order, the Petition is dismissed without prejudice.

Procedural History

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
  evidence;
    (3) heed the court's order barring potential
  witnesses who attended the trial from testifying;
    (4) introduce a police report into evidence;
  and
    (5) interview and prepare witnesses "who would
  have exculpated" Mitchell — witnesses whose
  testimony formed ...

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