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

May 11, 1983


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


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. ("Rule") 56.*fn2 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 gun.*fn3

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 agreed. Id.

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
    minor understood:

(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
    been made

      (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 the motion.

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 behalf.

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 claims:*fn15

    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. 1980):

  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 conclusion:

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 unconstrained).

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.

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