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UNITED STATES EX REL. RIVERA v. FRANZEN

May 27, 1983

UNITED STATES EX REL. GILBERT RIVERA, PETITIONER,
v.
GAYLE FRANZEN, ET AL., RESPONDENTS.



The opinion of the court was delivered by: William T. Hart, District Judge.

MEMORANDUM OPINION AND ORDER

Petitioner Gilbert Rivera ("Rivera") filed this habeas corpus petition pursuant to 28 U.S.C. § 2254 attacking the legality of a murder conviction entered by the Circuit Court of Cook County. Rivera asserts that he was denied his Sixth Amendment right to the assistance of effective trial counsel.

The respondents have moved to dismiss the petition pursuant to Rule 9(b), Rules Governing § 2254 Cases, or in the alternative for summary judgment, Fed.R.Civ.P. 56(c). As an alternative to dismissal or summary judgment, the respondents have moved for modification of a previous order entered by Judge Getzendanner granting an evidentiary hearing. Rivera has filed a cross motion for summary judgment.

I. STATEMENT OF FACTS

On November 26, 1972, Rivera was arrested for the murder of Francis Madsen. Fabriciano Rivera ("Fabriciano"), the petitioner's father, consulted with attorney Howard Pomper, who arranged for attorney Lionel Livingston to represent Rivera. After a jury trial in which Livingston presented a self-defense claim, Rivera was convicted of murder and received a 20-60 year sentence.

On appeal to the Illinois Appellate Court, Rivera raised issues of prosecutorial misconduct, insufficiency of evidence, inadmissibility of a photograph of the deceased, and excessive sentencing. The appellate court rejected these contentions and affirmed the conviction, People v. Rivera, 32 Ill. App.3d 500, 336 N.E.2d 255 (1st Dist. 1975), and the Illinois Supreme Court denied leave to appeal. 61 Ill.2d 603.

In November, 1976, Rivera filed a habeas corpus petition in federal district court alleging the same errors as were raised in the Illinois courts, but summary judgment was entered against him and the petition was dismissed.

On April 12, 1977, Rivera filed a pro se petition for post-conviction relief in the Circuit Court of Cook County pursuant to Ill.Rev.Stat. ch. 38, § 122-1 et seq. He alleged that he had been denied effective assistance of counsel because of Livingston's failure to investigate certain facts concerning Rivera's psychological history which might have formed the basis for an insanity defense or have been helpful in arguing for mitigation of sentence. The circuit court denied post-conviction relief, the appellate court affirmed, and the Illinois Supreme Court denied leave to appeal.

Rivera then filed the instant habeas petition claiming that he had been denied effective assistance of counsel due to Livingston's failure to investigate an insanity defense. Rivera alleges that he had an extensive history of mental health problems about which Livingston was informed. In support of his claim, Rivera submitted an affidavit by his father, Fabriciano Rivera, in which Fabriciano swore that he informed Livingston of Rivera's mental history, including his attempted suicides. The respondents submitted an affidavit of Livingston denying that he ever met Fabriciano, or that he was told of Rivera's mental problems.

On May 27, 1981, Judge Getzendanner denied respondents' motion for summary judgment on the issue of ineffective assistance of counsel, finding that the record indicated that Rivera had a long history of mental and emotional difficulties, and that based on Fabriciano's affidavit there existed a factual issue as to Livingston's knowledge. Accordingly, Judge Getzendanner allowed for additional discovery, and set the matter down for an evidentiary hearing to determine whether Livingston knew or should have known of Rivera's past psychological problems.

II. MOTION TO DISMISS

At the outset, the respondents argue that Rivera's habeas petition should be dismissed because he failed to exhaust the instant claim prior to filing his first habeas petition and failed to pursue it in that initial petition. Respondents contend that, based on Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) and Rule 9(b), Rules Governing § 2254 Cases, the petition must be dismissed as an "abuse of the writ."*fn1

Rivera argues that Rose v. Lundy is not applicable to the instant case because the majority there did not address the issue of successive habeas petitions. Moreover, he contends that he had not yet exhausted the instant claim before filing his initial habeas petition, and that the filing of this second petition does not constitute an abuse of the writ. The Court concludes that the Supreme Court's holding in Rose v. Lundy, is inapposite to the instant case, and that the filing of the second petition does not constitute an abuse of the writ.

In Rose v. Lundy, the Supreme Court held that the exhaustion rule in 28 U.S.C. ยง 2254 required a federal district court to dismiss a "mixed petition," that is, a habeas petition containing any claims that had not been exhausted in the state courts. Although in announcing the total exhaustion rule Justice O'Connor discussed possible consequences to habeas petitioners who drop unexhausted claims in order to pursue exhausted ones, five justices explicitly refused to join that portion of the opinion (Section IIIC). Consequently, Rose v. Lundy is not dispositive of the issue here since this is not a mixed petition case. Further, there is no question but that Rivera's claim has been ...


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