United States District Court, Northern District of Illinois, E.D
September 27, 1984
U.S. EX REL. SHAJDON BISHOP, A/K/A EARL WILSON, PLAINTIFF,
JAMES A. CHRANS, WARDEN AND ATTORNEY GENERAL OF ILLINOIS, DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge.
Petitioner, Shajdon Bishop, a/k/a Earl Wilson ("Wilson") has filed a
habeas corpus petition pursuant to 28 U.S.C. § 2254. Wilson is
currently serving two concurrent terms of twenty-two years for rape and
deviate sexual assault at the Pontiac Correctional Institution. On
appeal, the Illinois Appellate Court affirmed the convictions, People v.
Wilson, 87 Ill. App.3d 693, 42 Ill.Dec. 729, 409 N.E.2d 344
1980), and the Illinois Supreme Court denied leave to appeal.
Wilson challenges his convictions on the following grounds:
1. The identification procedure used by the police
was unduly suggestive.
2. He was denied his constitutional right to counsel
during that identification procedure.
3. He was denied his right to a preliminary
4. His trial counsel was ineffective.
5. His appellate counsel was ineffective.
6. The State's proof was insufficient to convict him
beyond a reasonable doubt.
Presently before the Court is a motion to dismiss by respondents, James
A. Chrans, et al. For reasons set forth below, the motion to dismiss is
Review of the Record
After a jury trial, Earl Wilson was convicted of rape and deviate
sexual assault, acquitted of armed robbery, and given concurrent
sentences of twenty-two years for each conviction. Wilson appealed his
conviction to the Illinois Appellate Court, raising four issues: (1) he
did not receive a fair trial because of the State's presentation of a
prejudicial "theme of flight and escape" throughout the trial; (2) the
denial of a preliminary hearing deprived him of equal protection of the
laws; (3) certain hearsay evidence was improperly admitted; and (4) he
was prejudiced by comments made in the State's closing argument. People
v. Wilson, 87 Ill. App.3d 693, 695, 42 Ill.Dec. 729, 731, 409 N.E.2d 344,
346 (1st Dist. 1980). The appellate court affirmed the convictions. A pro
se petition for rehearing was denied.
Wilson next filed a pro se petition for post-conviction relief pursuant
to Ill.Rev. Stat., ch. 38, ¶ 122 et seq., 1983, in which he alleged
that the identification procedure employed by the police was unduly
suggestive, in that one of the police officers pointed his finger at
Wilson and asked the victim if Wilson was her assailant. Additionally,
Wilson alleged that he was denied his constitutional right to counsel
during that identification procedure. A public defender was then
appointed, and he filed a supplemental petition raising Wilson's first two
claims and also a claim of ineffective assistance of trial counsel. The
State moved to dismiss both petitions because the issues raised in the
post-conviction relief petition were taken from the trial record and
therefore res judicata. The trial court granted the State's motion. On
appeal, Wilson again acting pro se offered the same issues submitted in
the previous petitions, and also raised the issue that the victim failed
to give the arresting officers a detailed description of her assailant
prior to Wilson's arrest. The appellate court held that the issues
presented by Wilson in his petitions for post-conviction relief should
have been presented in his direct appeal and were therefore waived.
Further, the court held that the trial court properly imposed the
doctrine of res judicata as to all issues previously presented to the
trial and appellate courts. People v. Wilson, 109 Ill. App.3d 1213, 71
Ill.Dec. 887, 451 N.E.2d 1041 (1st Dist. 1982).
After careful review of the record in this case, we hold that since
Wilson has failed to follow Illinois' procedural rules, he has waived the
issues presented by the instant petition. Respondents are therefore
entitled to prevail as a matter of law.
General Principles of Habeas Corpus
Although the writ of habeas corpus has been, and continues to be, the
"symbol and guardian of individual liberty," Peyton v. Rowe, 391 U.S. 54,
59, 88 S.Ct. 1549, 1552, 20 L.Ed.2d 426 (1968), its application has long
been governed by two doctrines: (1) the principle of waiver, which
directs a federal judge to deny habeas corpus relief if the ground upon
which that relief is sought has not been raised at the appropriate time
by the petitioner; and (2) the principle of exhaustion, which requires
dismissal of the habeas petition if the state remedies available to the
petitioner have not been pursued to the fullest extent. United States ex
rel. Broadnax v. DeRobertis, 565 F. Supp. 327, 330 (N.D.Ill. 1983). We
consider each doctrine in turn.
The language of the federal habeas corpus statute, 28 U.S.C. § 2254
(b) and (c)*fn1 makes it clear that federal habeas corpus
relief is not available until a state prisoner has attempted to cure his
alleged constitutional injury by pursuing all possible state remedies.
Comity requires the federal courts to defer to the state court system and
allow it the first opportunity to correct its alleged constitutional
violations. If some avenue of state relief is still open to a habeas
petitioner, the federal court must dismiss the petition and allow the
petitioner to pursue his claims at the state level. Only when all state
remedies have been exhausted should the federal court step in and render
federal habeas corpus relief. See Picard v. Connor, 404 U.S. 270,
275-76, 92 S.Ct. 509, 512-13, 30 L.Ed.2d 438 (1971).
Wilson raises six claims in his habeas petition and we must decide if
these claims have been exhausted. At trial he raised none of the alleged
constitutional injuries of which he now complains. One claim was brought
on direct appeal (denial of a preliminary hearing deprived Wilson of
equal protection of the law). Under Illinois law, an issue not presented
to or considered by the trial court cannot be raised on review and is
waived, People v. Wilson, 87 Ill.App.3d at 703, 42 Ill.Dec. at 733, 409
N.E.2d at 348. Thus, a state court will not hear such a claim in a
subsequent proceeding. Wilson has, therefore, "exhausted" his preliminary
Wilson alleged three claims in the post-conviction petition (the
identification procedure was unduly suggestive; he was denied counsel
during the identification; he had ineffective assistance of trial
counsel). Under state law, the failure to present claims on direct appeal
prevents the petitioner from raising them in any post-conviction
proceeding, Ill.Rev.Stat., ch. 110A, ¶ 341(e)(7), 1983; People v.
Smith, 91 Ill. App.3d 438, 453, 47 Ill.Dec. 165, 179, 414 N.E.2d 1281,
1295 (2d Dist. 1980); People v. Fink, 91 Ill.2d 237, 62 Ill.Dec. 935,
437 N.E.2d 623 (1982); People v. Adams, 113 Ill. App.2d 276, 252 N.E.2d 65
(1st Dist. 1969). As a result, we could not require that Wilson raise the
above claims in a post-conviction proceeding before concluding, as we do
now, that he has exhausted the state remedies as to the identification,
right to counsel and ineffective assistance of counsel claims.
Wilson's final two claims (he was not convicted beyond a reasonable
doubt; he had ineffective assistance of appellate counsel) have not been
raised in any Illinois court previously. Since the reasonable doubt claim
was neither raised at trial nor on appeal, it has been waived. This claim
would not now be heard in a state court and is therefore exhausted.
Wilson's ineffective assistance of appellate counsel was only first
cognizable in the post-conviction proceedings, People v. Frank,
48 Ill.2d 500
, 272 N.E.2d 25
(1971), however, issues that could have been
raised in an initial post-conviction petition are waived for purposes of
the Illinois post-conviction remedy. See Ill.Rev.Stat., ch. 38, ¶
122-3 (1983). We will not therefore require Wilson to return to the state
courts to litigate an issue raised for the first time on habeas review
that could have been raised in a prior post-conviction petition. Further
recourse to the state courts would be futile, thus the requirement that
Wilson exhaust all available state remedies is met as none are now
available. 28 U.S.C.A. § 2254(b).
The remaining question is whether by failing to previously present the
above-mentioned issues, Wilson has waived his claims for purposes of
federal habeas corpus relief. In analyzing the waiver doctrine,
this circuit has applied the "cause and prejudice" standard*fn2 of
Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed, 2d 594 (1977),
to virtually all types of procedural defaults. In Wainwright, the habeas
petitioner failed to comply with a Florida "contemporaneous objection"
rule which required a defendant to move to suppress evidence prior to
trial or else waive the objection for purposes of a state appeal. The
Court held that the habeas petitioner must demonstrate*fn3 "cause" for
his failure to object and actual "prejudice" from the claimed violation
of his constitutional rights. The preference for the cause and prejudice
standard in cases involving procedural defaults during trial was later
reinforced by the Supreme Court in Engle v. Isaac, 456 U.S. 107, 102
S.Ct. 1658, 71 L.Ed.2d 783 (1982) and United States v. Frady, 456 U.S. 152,
102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). The Court applied this standard to
both cases, where the petitioners challenged in habeas corpus proceedings
jury instructions to which they had not objected at trial.
Since Wilson has shown neither cause*fn4 for his initial default,
failing to raise certain issues at trial and thereby waiving them for
purposes of his state appeal, nor actual prejudice resulting therefrom,
Wilson has waived the following issues for federal habeas purposes: that
the identification procedure employed by the police was unduly
suggestive; that he was denied his constitutional right to counsel during
that identification procedure; and that he was denied his right to a
The next two claims raised by Wilson were not properly brought up by
him on direct appeal. The Supreme Court has never made it clear whether
the cause and prejudice standard applies to "failure to appeal" cases as
well as those involving failure to contemporaneously object. In
Wainwright, the Court did not explicitly overturn its previous decision
in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). In
Fay, the defendant was convicted of murder on the basis of a confession.
He chose not to appeal his conviction for fear of receiving the death
penalty but later sought federal relief by way of a habeas corpus
petition. The Fay Court held that the federal judge may deny relief to an
applicant who has deliberately bypassed the state courts thus forfeiting
his state remedies. Id. at 438, 83 S.Ct. at 848. Although the Court in
Fay phrased its holding in terms of all procedural defaults, the
Wainwright decision narrowed the "deliberate bypass" rule by refusing to
apply it in a case that did not involve a failure to appeal. The
Wainwright Court left open the question of the viability of the cause and
prejudice standard for failures to appeal:
[w]hether the Francis (see note 2, supra) rule should
preclude federal habeas review of claims not made in
with state procedure where the criminal defendant has
surrendered, other than for reasons of tactical
advantage, the right to have all of his claims of
trial error considered by a state appellate court, we
leave for another day.
433 U.S. at 88 n. 12, 97 S.Ct. at 2507 a. 12.
Despite the language of the Supreme Court, this circuit has clearly
applied the cause and prejudice test to failures to appeal. The Seventh
Circuit in Norris v. United States, 687 F.2d 899 (7th Cir. 1982) applied
the Wainwright standard to failures to appeal by federal prisoners and
extended Norris to failures to appeal by federal prisoners in United
States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir. 1988). Thus,
since the petitioner has not shown cause*fn5 excusing his failure to
bring up issues on appeal and actual prejudice from the errors he alleges
took place at trial, he has waived the following issues: ineffectiveness
of his trial counsel and that the State's proof was insufficient to
convict him beyond a reasonable doubt.
The last claim advanced by the petitioner, that his appellate counsel
was ineffective, was not asserted in his post-conviction petition. The
court in Williams v. Duckworth, 724 F.2d 1439, 1442 (7th Cir. 1984) had
occasion to consider whether the cause and prejudice standard would apply
in a case where a state prisoner failed to pursue an issue in a
post-conviction proceeding that could not have been raised on direct
appeal. The court held that this standard did apply, and that therefore
petitioner had waived his right to a federal forum for his claim of
ineffective assistance of appellate counsel. Similarly, in the present
case, petitioner offers no cause for his failure to raise the claim of
ineffective appellate counsel in his post-conviction petition. Petitioner
has therefore waived this contention.
We therefore conclude that petitioner Wilson has waived all of the
claims set forth in his habeas petition and has not established any cause
for his failure to raise the claims at the appropriate time. Further,
although it seems unlikely that the petitioner could make a showing of
actual prejudice resulting from these omissions, this Court need not
consider "prejudice" since petitioner has not satisfied the "cause"
requirement of the Wainwright standard. United States ex rel. Hudson v.
Brierton, 699 F.2d 917, 922 (7th Cir. 1983).
For the foregoing reasons, Wilson's petition for habeas corpus relief
is denied, and respondents' motion to dismiss is granted. It is so