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.
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
determine whether Livingston knew or should have known of
Rivera's past psychological problems.
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
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. § 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 ...