United States District Court, Northern District of Illinois, E.D
May 11, 1983
IVIE CLAY, PETITIONER,
DIRECTOR, JUVENILE DIVISION, ILLINOIS DEPARTMENT OF CORRECTIONS, RESPONDENT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Ivie Clay ("Clay") has filed a habeas corpus petition
against the Director of the Juvenile Division ("Director") of
the State of Illinois Department of Corrections
("Department").*fn1 Clay advances several grounds for relief:
1. Her guilty plea was involuntary because she
(a) was ignorant of available defenses and (b)
misunderstood the terms of her plea agreement.
2. She received inadequate representation from
Assistant Public Defenders Roger Harris
("Harris") and Saul Friedman ("Friedman") both
when she pleaded guilty and in connection with
her motion to vacate the guilty plea.
3. Denial of the motion to vacate deprived Clay
of due process because she was unconditionally
entitled, according to the trial court's own
representations, to withdraw her plea if her
sentence did not accord with the plea agreement.
Director now moves for summary judgment under Fed.R.Civ.P.
For the reasons stated in this memorandum
opinion and order, Director's motion is granted.
On August 8, 1977 Clay (then 15 years old) was arrested for
aggravated assault and charged with delinquency. Because of
Clay's indigency, Friedman was appointed as her counsel. At
the initial interview Clay disclosed facts that might have
established certain legal defenses to the charge against her.
But Friedman did not apprise her of the availability of such
defenses. Instead he urged her to enter into a plea agreement
and plead guilty.
Unaware of any other option, Clay followed that
recommendation on the understanding her plea agreement
foreclosed any possibility of actual commitment. But that
belief was apparently mistaken, for both Friedman and the
Assistant State's Attorney handling the case have stated by
affidavit that their only agreement was to amend the Complaint
to read that the weapon used was a knife rather than a
On September 28, 1977 Clay admitted her guilt before Cook
County Circuit Court Judge Rogers. After Clay acknowledged her
guilty plea had been induced by a plea agreement, Judge Rogers
advised her of her unconditional right to withdraw the
admission if he refused to accept the agreement. On October
26, 1977 Judge Rogers found Clay guilty of delinquency and
committed her to Department. Even though that sentence
represented a rejection of Clay's version of the plea bargain,
Friedman neither moved to withdraw her admission nor informed
her of her right to do so.
Convinced that Friedman had bungled the case, Clay's mother
Ina immediately telephoned Assistant Director John Elson
("Elson") of the Northwestern University Legal Clinic (the
"Clinic") for help.*fn4 Ina Clay Dep. 126. She told Elson her
daughter had been promised probation in return for her guilty
plea and Friedman "had sold her down the river." Elson Dep.
67-69.*fn5 Elson told Mrs. Clay he was too busy to represent
her daughter but offered to consult with Friedman and "see if
he would do anything about it." Elson Dep. 61. Mrs. Clay
Elson called Friedman the next day, apprising him of Mrs.
Clay's belief her daughter had been misinformed that her
admission of guilt could not lead to commitment. Friedman
apparently agreed with that assessment, acknowledging "there
was a real problem with what Ivie Clay understood." Elson Dep.
86. Friedman said he would file a motion to vacate her guilty
plea, assuring Elson "he didn't think there would be a big
problem with the matter." Elson Dep. 87-88.
On November 4, 1977 Friedman called Elson to give him a
general status report. Friedman said "he was processing the
papers on the case and would have them done shortly and have
the transcript typed up." Elson Dep. 76. On November 22
(within the prescribed 30-day period) Friedman filed the
motion to vacate, using a standard printed form with blanks
for the name of the "respondent" (in this case Clay). Needless
to say, the form was seriously deficient as a presentation of
Clay's specific basis for relief:
1. It refers to respondent Clay throughout as a
2. It advances very generalized grounds for
vacating the plea, none of which really
encompassed Clay's present habeas claims (this is
a literal transcription of the form, warts and
4. That the minor respondent did not fully
comprehend the significance of his admission.
5. That the minor respondent was not
admonished in his admission, in that there was
no affirmative showing that the court informed
the minor respondent and determined that said
(a) the nature of the charge
(b) the penalties the minor may be subjected
to upon his admission to the offense, including
commitment to the Department of Corrections
until the age of twenty-one
(c) that the minor respondent has a right not
to enter an admission or to
persist in that admission if it has already
(d) if the minor respondent enters an
admission there will not be a trial of any kind
and that by so admitting the offense he waives
the right to a trial and the right to be
confronted with the witnesses against him.
6. That the minor respondent now urges that
his admission was induced by coercion of the
police and/or their agents, by the use of
force, threats or promises.
7. That the minor respondent now urges that
his admission was induced by the use of
illegally obtained evidence.
8. That the court failed to determine first
when accepting the minor's admission whether
there was an agreement and if there was said
agreement said court failed to inquire as to
the terms of this agreement.
9. The court failed to determine a factual
basis for the admission when it entered a final
judgment on the minor respondent's admission.
10. The court failed to admonish the minor
respondent in accordance with the provisions of
Supreme Court Rule 605.
3. It failed to identify the most compelling
basis for relief: Judge Roger's statement that
Clay had the absolute right to withdraw her
guilty admission if he refused to honor the plea
agreement, coupled with Clay's specific
understanding no commitment would be
On February 24, 1978 Judge Rogers held a hearing on the
motion to vacate. Instead of arguing the motion himself,
Friedman arranged for Harris, another Assistant Public
Defender, to attend the hearing. Because Harris was totally
unfamiliar with the case, he declined to present any argument
in support of the motion. Nor was any effort made to secure
Clay's presence at the hearing or to inform her or her mother
about the motion.*fn7
Not surprisingly, Judge Rogers denied
Though not then aware of the February 24 hearing and its
outcome,*fn8 Elson learned in early March that "nothing had
happened" on the Clay matter.*fn9 Elson Dep. 110.
Consequently Elson changed his earlier position declining
direct representation of Clay. On March 10 he filed (1) a
petition to substitute himself and Bak (a Certified Senior Law
Student) for the Public Defender's Office as Clay's counsel
and (2) an amended motion to vacate judgment. On March 16
Elson entered an appearance in the case.*fn10
Elson's amended motion asserted only two grounds for relief
(quoted verbatim from the motion):
4. That in admitting certain of the allegations
made against her, IVIE CLAY did not understand
that the Court would construe such admissions as
an admission of having committed a delinquent
5. That Respondent never intended to waive her
defenses of self-defense and defense of her
family from imminent life threatening harm.
No mention was made of Harris and Friedman's incompetent
representation, apparently because Elson had not yet seen the
original motion to vacate or learned of the manner in which it
had been presented at the February 24 hearing. Elson learned
of those developments when he appeared before Judge White to
argue the amended motion. Elson Dep. 80. At that time (a date
that cannot be gleaned from the record) Judge White reset the
motion for April 28 before Judge Rogers, who was then on
vacation. At Elson's request Judge White directed the court
reporter to prepare a transcript of the February 24
proceedings. On March 26 the 30 day period for an appeal from
the denial of the original motion to vacate elapsed.
At the April 28 hearing Elson (having familiarized himself
with Friedman's and Harris' conduct on Clay's behalf) urged
ineffective assistance of counsel as a basis for considering
the amended motion and vacating Clay's delinquency
adjudication. See April 28, 1978 Report of Proceedings 11.
Judge Rogers refused to entertain the motion, primarily on
grounds of untimeliness: It was not filed within 30 days of the
October 26 order of commitment.*fn11 Believing the state
procedural rule invoked by Judge Rogers foreclosed any other
state remedies, Elson filed this habeas petition on Clay's
Summary Judgment Motion
Director's summary judgment motion urges the "waiver"
principles of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497,
53 L.Ed.2d 594 (1976) bar consideration of Clay's habeas
claims.*fn12 Under Wainwright a state prisoner who fails to
satisfy state procedural requirements for judicial review of an
issue cannot raise that issue in a federal habeas proceeding
unless he shows good cause for and prejudice from his
procedural default.*fn13 Director's waiver contention
therefore entails a two-step inquiry:
1. Was Clay free, on a direct appeal from
denial of the original motion to vacate, to assert
the claims now advanced in this habeas proceeding
— even though they had not been presented to the
trial court in that original motion?
2. If so, did Clay forfeit her federal habeas
remedy under the Wainwright cause-prejudice test by
failing to take such a direct appeal?*fn14
As for the first question, Illinois case law confirms the
availability of appellate review of all three habeas
1. Because Friedman's post-trial motion would
not have been expected to impugn his own
competency at Clay's initial admission-of-guilt
hearing, that claim could have been pursued for
the first time on appeal. People v. Harrawood,
66 Ill. App.3d 163, 167, 22 Ill.Dec. 899, 901,
383 N.E.2d 707, 709 (5th Dist. 1978); People v.
Pendleton, 52 Ill. App.3d 241, 244-45, 9 Ill.Dec.
762, 765, 367 N.E.2d 196, 199 (1st Dist. 1977).
2. That same analysis would permit assertion of
the other two habeas claims on appeal. They too
could be said to have been omitted from the
motion to vacate as a result of the incompetence
of Clay's appointed counsel and thus "would not
normally be expected to be included in a post
trial motion." Harrawood, 66 Ill. App.3d at 167, 22
Ill.Dec. at 901, 383 N.E.2d at 709. Accord, People
v. Rhodes, 71 Ill. App.2d 150, 151, 217 N.E.2d 123,
124 (4th Dist. 1966) (counsel's failure to object
to admissibility of evidence did not waive issue
because that failure was allegedly caused by his
Moreover, nothing in the record before this Court indicates
Elson was not retained in sufficient time to prepare such an
appeal. As his filing of the March 10 amended motion to vacate
confirms, Elson began representing Clay more than two weeks
before expiration of the appeal period from denial of the
original motion to vacate.*fn17
Under the circumstances, then, Clay's failure to appeal
deprived the state courts of an opportunity to evaluate Clay's
habeas claims.*fn18 That procedural default is fatal to those
claims unless Wainwright's conjunctive requirements of cause
and prejudice are met. United States ex rel. Spurlark v. Wolff,
699 F.2d 354, 357-61 (7th Cir. 1983) (extending Wainwright's
cause-prejudice standard to failure-to-appeal cases).
As for the "cause" prong, Clay asserts she was not required
to raise the issues on appeal because it would have been
futile to do so.*fn19 In fact she argues law of the case
principles compel this Court's acceptance of that contention,
for the 1980 Seventh Circuit opinion that remanded the case to
this Court held futility was a sufficient cause to suspend
operation of the waiver doctrine, 631 F.2d 516, 523 (7th Cir.
The State has argued that any infirmities in the
level of advocacy petitioner received in
conjunction with the motion to vacate were
somehow cured by the fact that petitioner
retained present counsel seven days before the
expiration of the period allowed for appealing
the denial of the motion. We do not agree. Under
Illinois law, a motion to vacate a guilty plea is
addressed to the discretion of the trial court,
and an appellate court may not reverse the denial
of the motion except upon a showing of an abuse
of discretion. People v. Walston, 38 Ill.2d 39,
230 N.E.2d 233 (1967). Given the general grounds in the
motion, and the fact that no argument was presented
in the trial court, there would have been no basis
on which the appellate court could have reversed.
For the same reason, we reject the State's
contention that the failure to take an appeal was a
deliberate bypass of state remedies, which
constituted a waiver for purposes of federal habeas
Two considerations lead this Court to a different
1. Law of the case does not operate here.
2. Under the present state of the law, waiver
does bar Clay's claim.
Those issues will be treated in turn.
As for law of the case, later Seventh Circuit and Supreme
Court pronouncements have jettisoned the waiver principles on
which the just-quoted language rested:
1. That language analyzed the problem under the
"deliberate bypass" standard of Fay v. Noia,
372 U.S. 391, 438, 83 S.Ct. 822, 848, 9 L.Ed.2d 837
2. This year's decision in Spurlark requires
application of Wainwright's cause-prejudice test in
lieu of Fay's more forgiving "deliberate bypass"
standard in determining whether a petitioner
forfeits habeas relief by failing to take a direct
3. Engle, 102 S.Ct. at 1572-73 teaches that a
belief it will be futile to try to convince a state
court to uphold a constitutional claim does not
excuse the procedural default.*fn20
Consequently this Court is free to reconsider the waiver issue
in light of such subsequent legal developments.*fn21
Morrow v. Dillard, 580 F.2d 1284
, 1294, 1297 (5th Cir. 1978)
(law of case doctrine did not preclude District Court from
reconsidering issue previously decided by Court of Appeals,
because intervening Supreme Court decision superseded basis of
Court of Appeals' decision); cf. Crane Co. v. American
Standard, Inc., 603 F.2d 244
, 248-49 (2d Cir. 1979) (holding
law of the case principles do not bind Court of Appeals to an
earlier ruling undercut by a subsequent Supreme Court decision,
but reserving judgment on whether a District Court is similarly
On the merits, the Illinois "abuse of discretion" doctrine
holds that the trial court's rejection of issues actually
raised (however incompetently) in a motion to vacate cannot be
overturned except upon a showing of such abuse. That stringent
standard of review would not have extended to any of Clay's
habeas claims, which were never presented to the trial court at
all. As already noted, an Illinois appellate court would have
entertained those claims de novo because they concern either
trial counsel's incompetence (at the admission hearing) or
issues neglected as a result of counsel's incompetence (at the
post-admission proceeding).*fn22 And, as Spurlark and
Engle*fn23 together make plain, current waiver doctrine
categorically rejects Clay's proffered justification for her
failure to appeal. There was no "cause" in Wainwright terms.
That procedural default therefore disqualifies Clay from
seeking federal habeas relief.*fn24
There is no genuine issue of material fact, and Director is
entitled to judgment as a matter of law. Director's motion for
summary judgment is granted.