United States District Court, Northern District of Illinois, E.D
September 13, 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") 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 state remedies, Elson filed this habeas
petition on Clay's behalf.
In granting Director's summary judgment motion, the Opinion
concluded the "waiver" principles of Wainwright v. Sykes,
433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1976) barred
consideration of Clay's habeas claims. That conclusion hinged
on the affirmative resolution of two questions:
1. Was Clay free, on 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?
As for the first question, the Opinion (564 F. Supp. at 211)
found Illinois case law would have permitted appellate review
of all three habeas claims:
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
In a footnote to that second point, the Opinion (564 F. Supp.
at 211 n. 16) observed:
Nor would disposition of those two claims on
appeal have breached the general rule against
entertaining non-record matters.
Both claims draw on the same factual matrix that
bounds the ineffective assistance claim,
resolution of which generally requires
supplementation of the record. Consequently the
"plain error" doctrine would permit an appellate
court to view any new evidence introduced in
support of the incompetent counsel claim as
probative of the other two claims as well.
See People v. Baynes, 88 Ill.2d 225, 231 [58
Ill.Dec. 819, 821-23], 430 N.E.2d 1070, 1072-73
(1981) (plain error doctrine stays application of
waiver rule where record discloses error affecting
defendant's substantial rights).
As for the second question, the Opinion concluded Clay had
not satisfied the "cause" branch of Wainwright's
cause-prejudice standard. This Court reasoned (564 F. Supp. at
213) current waiver doctrine (as reflected in Engle v. Isaac,
456 U.S. 107
, 130-31, 102 S.Ct. 1558, 1572-73, 71 L.Ed.2d 783
(1982) and United States ex rel. Spurlark v. Wolff,
699 F.2d 354
, 357-61 (7th Cir. 1983)) categorically rejects the only
proffered justification for Clay's failure to appeal — the
futility of convincing the Illinois Appellate Court to uphold
her habeas claims.
Motion for Reconsideration
Clay's current motion advances two arguments:
1. Elson's decision to file an amended motion
to vacate rather than appeal the denial of the
original motion to vacate reflected ineffective
assistance of counsel. Such incompetence supplies
the requisite "cause" for Clay's procedural
default under the Wainwright formulation.
2. This Court erroneously found (564 F. Supp. at
211 & n. 16) the Illinois Appellate Courts would
have entertained any non-record evidentiary
support for the three habeas claims, because (a)
a proceeding under the Post-Conviction Proceeding
Act ("Post-Conviction" proceeding), Ill.Rev.Stat.
ch. 38, § 122-1 to 122-7, rather than a direct
appeal, is the only forum for raising such
non-record matters and (b) juveniles like Clay
cannot seek post-conviction relief.
Either of those contentions would, if successful, undercut the
Clay's first argument essentially represents a new legal
theory based on "new" evidence actually available and known to
Clay when Director originally filed his summary judgment
motion. Well aware the reason for her failure to appeal was a
critical issue raised by that motion, Clay (through her
counsel, Elson) deliberately chose to proffer the futility
rationale as the sole justification for her procedural
default. For the reasons set forth in Keene Corp. v.
International Fidelity Insurance Co., 561 F. Supp. 656, 665
(N.D.Ill. 1982), this Court will not permit Clay to inject her
new argument into the litigation at this late date by way of
Motions for reconsideration serve a limited
function: to correct manifest errors of law or
fact or to present newly discovered evidence.
See Evans, Inc. v. Tiffany & Co., 416 F. Supp. 224,
244 (N.D.Ill. 1976). Such motions cannot in any
case be employed as a vehicle to introduce new
evidence that could have been adduced during
pendency of the summary judgment motion. See Walker
v. Hoffman, 583 F.2d 1073, 1075 (9th Cir. 1978),
quoting Donnelly v. Guion, 467 F.2d 290, 293 (2d
Cir. 1972): The non-movant has an affirmative duty
to come forward to meet a properly supported motion
for summary judgment:
A party opposing a motion for summary judgment
simply cannot make a secret of his evidence
until the trial, for in doing so he risks the
possibility that there will be no trial. A
summary judgment motion is intended to "smoke
out" the facts so that the judge can decide if
anything remains to be tried.
Accord W.A. Krueger Co. v. Northern Trust Co., No.
81 C 6064, slip op. at 7 n. 7 (N.D.Ill. Jan. 7,
1983) ("a litigant cannot `hold back' evidence on a
summary judgment motion"). Nor should a motion for
reconsideration serve as the occasion to tender new
legal theories for the first time. Evans, 416
F. Supp. at 244.
Clay's second argument is flawed at two levels:
1. By taking a direct appeal, Clay could have secured review
of the full evidentiary basis (including non-record evidence)
for her habeas claims — at least by the trial court on remand.
Under Illinois Supreme Court Rule 604(d) ("Rule 604(d)"),
Ill.Rev.Stat. ch. 110A, § 604, a juvenile defendant (like an
adult) may challenge the voluntariness of his or her guilty
plea on direct appeal if he or she filed (as Clay did) a motion
to vacate the plea within 30 days of the sentencing date. See
In re Buchanan, 62 Ill. App.3d 463, 465-66, 19 Ill.Dec. 607,
609, 379 N.E.2d 122, 124 (1st Dist. 1978). Rule 604(d)
generally bars appellate review of any issue not raised in the
motion to vacate. But that waiver rule is inapplicable where,
as Clay asserts here, the omission of issues resulted from the
incompetence of defendant's counsel. See People v. Porter,
61 Ill. App.3d 941, 946, 19 Ill.Dec. 173, 176, 378 N.E.2d 788, 791
(4th Dist. 1978). Under such circumstances the Illinois
Appellate Court would either (a) rule on those claims itself if
their resolution does not require further factual development
(see, e.g., Porter, 61 Ill. App.3d at 946, 19 Ill.Dec. at
176, 378 N.E.2d at 791) or (b) as would have occurred in Clay's
situation, remand for a rehearing (at which new evidence could
be introduced) on the motion to vacate (see, e.g., People v.
Norris, 46 Ill. App.3d 536, 542, 5 Ill.Dec. 105, 110,
361 N.E.2d 105, 110 (1st Dist. 1977) (reversing denial of motion to
vacate because defendant received inadequate representation and
allowing trial court to hold evidentiary hearing if warranted
by the motion's allegations)).*fn2
2. Even were it assumed arguendo (despite the compelling
authority just cited) a direct appeal would not have afforded
the opportunity to supplement the record (either directly on
appeal or indirectly on remand), Clay could have presented the
non-record evidentiary foundation for her habeas claims by
filing a petition for relief from judgment under Ill.Rev.Stat.
ch. 110, § 2-1401 ("Section 2-1401," formerly Ill.Rev. Stat.
ch. 110, § 72). That method of collateral attack is distinct
from a post-conviction proceeding (see, e.g., People v. Yarbar,
43 Ill. App.3d 668, 670, 2 Ill.Dec. 189, 191-92,
357 N.E.2d 166,168-69 (1st Dist. 1976)), and, unlike the latter remedy, is
available to juveniles such as Clay (see Joseph A. Thorsen
Realtors v. Werner, 28 Ill. App.3d 670, 329 N.E.2d 365 (1st
Dist. 1975)). Section 2-1401 is specifically designed to permit
judicial review of claims based on extra-record "facts which,
had they been known at the time judgment was rendered, would
have prevented its rendition." People v. Hilliard, 65 Ill. App.3d 642,
645, 22 Ill.Dec. 121, 124, 382 N.E.2d 441, 444 (1st
Dist. 1978). And the Illinois Appellate Court whose decisions
have greatest force for this Court has recognized the
availability of Section 2-1401 relief on the basis of
allegations remarkably similar to Clay's habeas claims: In
response to a Section 72 petition asserting defendant's guilty
plea was induced by
a mistaken understanding as to the terms of the plea
agreement, People v. Martinez, 14 Ill. App.3d 775,
303 N.E.2d 442 (1st Dist. 1973) remanded the case for an evidentiary
hearing because "justice would best be served" by such a
reopened hearing. In the present case Clay, having failed to
file a Section 2-1401 motion within the prescribed period
(between 30 days and two years after the entry of judgment),
waived that state remedy. Because no "cause" in Wainwright
terms has been demonstrated, that procedural default
disqualifies Clay from seeking federal habeas relief.*fn3
Clay's motion for reconsideration is denied.