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September 13, 1983


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


Ivie Clay ("Clay") filed a habeas corpus petition against the Director of the Juvenile Division ("Director") of the State of Illinois Department of Corrections ("Department"), advancing 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.

On May 11, 1983 this Court granted Director's motion for summary judgment (564 F. Supp. 206, the "Opinion"). Clay now moves for reconsideration of that ruling pursuant to Fed.R.Civ.P. ("Rule") 59(e). For the reasons stated in this memorandum opinion and order, Clay's motion is denied.


In August 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. Friedman urged her to enter into a plea agreement and plead guilty, failing to apprise her of the availability of certain legal defenses to the charge against her. Clay followed his recommendation on the mistaken understanding her plea agreement foreclosed any possibility of actual commitment.

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 agreement, Friedman neither moved to withdraw her admission nor informed her of her right to do so.

Convinced Friedman had bungled the case, Clay's mother immediately telephoned Assistant Director John Elson ("Elson") of the Northwestern University Legal Clinic (the "Clinic") — Clay's counsel in this habeas proceeding — for help. Elson called Friedman the next day, apprising him of Mrs. Clay's belief her daughter has been misinformed that her admission of guilt could not lead to commitment. Friedman apparently agreed with that assessment and said he would file a motion to vacate her guilty plea.

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. It merely advanced very generalized grounds for vacating the plea, none of which really encompassed Clay's present habeas claims. 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. Not surprisingly, Judge Rogers denied the motion.

Though not then aware of the February 24 hearing and its outcome, Elson learned in early March that no progress had been made in the Clay matter. Consequently Elson changed his earlier position declining direct representation of Clay. On March 10 he filed (1) a petition to substitute himself and a Northwestern law student for the Public Defender's Office as Clay's counsel and (2) an amended motion to vacate the guilty plea. On March 16 Elson entered an appearance in the case. Shortly thereafter Elson appeared before Judge White to argue the amended motion. Judge White reset the motion for April 28 before Judge Rogers, who was then on vacation. On March 26 the 30-day period for an appeal from the denial of the original motion to vacate lapsed.

At the April 28 hearing 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. Believing the state procedural rule invoked by Judge Rogers foreclosed any other ...

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