United States District Court, Northern District of Illinois, E.D
November 10, 1982
UNITED STATES EX REL. ALEXANDER MITCHELL, PETITIONER,
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.
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 the basis of his alibi defense.
Exhaustion of State Remedies
Ironically, more than a decade after the two deaths for
which Mitchell is serving time, this Court is still compelled
a threshold procedural question:*fn3 Is Mitchell foreclosed
from vindicating his new allegations in a state post-conviction
proceeding? Because there is such a serious likelihood the
Illinois courts would answer that question "no," this Court
must currently reject the Petition on non-exhaustion grounds.
Concepts of exhaustion and waiver are closely intertwined in
this case, for the availability of a further state
post-conviction remedy turns on whether Mitchell has waived
his new claims by failing to advance them in his appeal and
first post-conviction petition.*fn4 If at least some of those
claims remain unwaived by such procedural "defaults," the
exhaustion requirement has not been satisfied.
Waiver is clearly inapplicable to the direct appeal. True
enough, under People v. James, 46 Ill.2d 71, 263 N.E.2d 5
(1970) the waiver doctrine generally bars relitigation of
issues that could have been but were not raised on direct
appeal. But that principle is inoperative here:
1. As already indicated, the Illinois Appellate
Court in the post-conviction proceeding ignored
any waiver problem and reached the merits of
Mitchell's original (and more restrictive)
ineffective assistance claim.*fn5 Like
considerations apply to his present expanded
version of the same claim, based on different
2. Mitchell's present claims are "based in
substantial part on evidence outside the
record,"*fn6 United States ex rel. Williams v.
Israel, 556 F.2d 865, 866 (7th Cir. 1977), and are
thus not waived for purposes of the Act. See also
People v. Edsall, 94 Ill. App.3d 469 [49 Ill.Dec.
923], 418 N.E.2d 943, 946 (5th Dist. 1981).
Accordingly Mitchell's original appeal would not bar a second
post-conviction proceeding — at least as to ineffective
assistance issues involving non-record evidence.
It is somewhat more difficult to assess the impact of
Mitchell's narrower Sixth Amendment claim, made in his first
post-conviction petition, on a second such petition. Act §
122-3 expresses the governing waiver rule:
Any claim of substantial denial of constitutional
rights not raised in the original or an amended
petition is waived.
If applied literally that section would provide a definitive
answer. It would forbid litigation of any constitutional
claims that could have been but were not raised in the first
post-conviction hearing, even if rooted in non-record
evidence. See People v. Mengedoht, 91 Ill. App.3d 239, 46
Ill.Dec. 840, 842, 414 N.E.2d 893
, 895 (2d Dist. 1980)
(applying the waiver rule to a non-record ineffective
assistance claim, asserted for the first time on appeal from
the denial of post-conviction relief).
However, Illinois courts have carved out a "fundamental
fairness" exception to the statutory waiver principle. That
exception would appear to give Mitchell access to a second
post-conviction proceeding. Thus People v. Hollins, 51 Ill.2d 68,
70, 280 N.E.2d 710, 711-12 (1972) allowed a
second petition raising a constitutional claim not presented
during the first post-conviction proceeding:
Our examination of the record of the prior
proceeding fails to disclose any effort by
appointed counsel, in either the trial court or
this court, to amend the pro se petition or argue
any issue other than to oppose the People's
contention that the post-conviction petition was
not timely filed. Under the circumstances shown,
justice and fundamental fairness dictate relaxation
of the principle of waiver.
Similarly, the record here does not appear to disclose the
requisite effort by any of Mitchell's appointed counsel (three
different lawyers) to expand (or consider expanding)
Mitchell's original pro se Sixth Amendment claim.*fn7
Accordingly it seems likely the Illinois courts would not
apply the waiver rule of Act § 122-3 if Mitchell were to
present his broadened ineffective assistance claim in another
Of course an Illinois court faced with such a second
petition might possibly decline to invoke Hollins' fundamental
fairness doctrine. But appropriate concerns for "Our
Federalism" require that the issue be posed directly to the
state court system, rather than this Court's speculating that
Illinois courts would be unwilling to consider constitutional
claims on the merits.*fn8
This brings into play the principle restated by the United
States Supreme Court just one week ago in its per curiam
opinion in Anderson v. Harless, ___ U.S. ___, 103 S.Ct. 276, 74
L.Ed.2d 3 (1982) (citations omitted):
In Picard v. Connor, 404 U.S. 270 [92 S.Ct. 509, 30
L.Ed.2d 438] (1971), we made clear that 28 U.S.C. § 2254
requires a federal habeas petitioner to
provide the state courts with a "fair opportunity"
to apply controlling legal principles to the facts
bearing upon his constitutional claim. . . . It is
not enough that all the facts necessary to support
the federal claim were before the state
courts, . . . or that a somewhat similar state-law
claim was made. . . . In addition, the habeas
petitioner must have "fairly presented" to the
state courts the "substance" of his federal habeas
corpus claim*fn9. . . .
Anderson mandates a like "fair opportunity" for the Illinois
courts to deal with Mitchell's new claims.
In sum, the substantial likelihood that Mitchell may pursue
at least some of his ineffective counsel contentions under the
Act causes his habeas petition to contain both exhausted and
unexhausted claims. It must therefore be dismissed under
Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71
L.Ed.2d 379 (1982).*fn10
Mitchell's Petition is dismissed under Section 2254(c)
without prejudice, due to his apparent failure to exhaust
available state remedies.