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

November 10, 1982


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


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

    (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 to examine 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
  factual grounds.

    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 post-conviction petition.

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.

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