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UNITED STATES EX REL. SMITH v. LANE

May 6, 1985

UNITED STATES EX REL. LEROY SMITH, JR., PETITIONER,
v.
MICHAEL P. LANE, RESPONDENT.



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

ORDER

Before the Court are petitioner's and respondent's objections to the Magistrate's Report and Recommendation. For the reasons stated herein, the Court agrees with their objections and disagrees with the Magistrate's finding that an evidentiary hearing is necessary in this habeas corpus action. However, the Court adopts the thorough factual and legal analysis contained in the Magistrate's Report and Recommendation, which is attached hereto. Finally, the Court denies the petition for a writ of habeas corpus.

I. FACTS

This habeas corpus petition, brought pursuant to 28 U.S.C. § 2254, is based on a theory of court-induced ineffective assistance of counsel in violation of petitioner's Sixth Amendment rights. The parties filed cross-motions for summary judgment. In her Report and Recommendation dated April 2, 1985, Magistrate Joan B. Gottschall denied the cross-motions for summary judgment and determined that a hearing on the petition should be held. Specifically, Magistrate Gottschall found factual issues regarding why petitioner's attorney Alan Blumenthal failed to interview and call certain witnesses, what if any working relationship existed between Blumenthal and attorneys Sam Adam and Laurence Levin and the likely effect on petitioner's trial had the witnesses testified.

II. DISCUSSION

A. Need For An Evidentiary Hearing

In their objections to the Magistrate's Report and Recommendation, both petitioner and respondent agree that no evidentiary hearing is necessary to resolve the cross-motions for summary judgment.

In determining whether an evidentiary hearing is necessary in this habeas corpus action, the Court finds Dillon v. Duckworth, 751 F.2d 895 (7th Cir. 1984) to be dispositive. In Dillon, the petitioner asserted an ineffective assistance of counsel claim. While the Seventh Circuit Court of Appeals found a Sixth Amendment violation based on ineffective assistance of counsel, the court rejected petitioner's alternative argument that the district court erred in denying an evidentiary hearing. The petitioner alleged newly-discovered facts which supported his ineffective assistance of counsel claim.

In rejecting petitioner's argument that the newly-discovered facts mandated an evidentiary hearing, the Seventh Circuit noted that these facts related to the ineffective assistance of counsel claim which the petitioner had raised in the state court proceedings. In addition, the newly-discovered facts were known to the petitioner prior to his filing for post-conviction relief, and therefore "the evidence he cites is not of a character which would justify an evidentiary hearing." Id. at 902. Finally, the Seventh Circuit rejected petitioner's argument that Strickland v. Washington, ___ U.S. ___, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), established new standards for evaluating Sixth Amendment ineffective assistance of counsel claims that would require a hearing. Dillon v. Duckworth, supra, 751 F.2d at 902.

In the present case, petitioner's newly-discovered evidence consists of affidavits from nine witnesses who were neither interviewed prior to nor called to testify at trial. While petitioner filed this habeas action in August of 1983 prior to filing his post-conviction petition for relief in December of 1983, the dismissal of the post-conviction petition for relief occurred on January 26, 1984. Therefore, since the petitioner's newly-discovered facts have been reviewed and considered by the state court, the Court believes that this case falls within the Dillon rule: a hearing is not mandated to consider newly-discovered facts already presented to and considered by the state court.

B. Court-Induced Ineffective Assistance of Counsel

The petitioner contends that, by denying Blumenthal a continuance when he was retained "only two working days" prior to trial, the trial court "caused" Blumenthal's representation of the petitioner to be ineffective because Blumenthal was not afforded sufficient time to investigate and prepare the case. He argues that, if Blumenthal had sufficient time to prepare and investigate as he would have with the requested continuance, he would have secured at trial the testimony of witnesses who would have helped petitioner's case.

Petitioner further asserts that, while there were many witnesses, including persons in the house and neighbors, his entire defense consisted only of his own and his mother's testimony. Petitioner contends that these other witnesses would have corroborated his contention that he did not know the attackers were the police. He concludes that this "court induced" ineffective assistance prejudiced him in the outcome of the trial.

Respondent argues that the trial court did not abuse its discretion when it denied petitioner's request for a continuance, in light of the fact that it was the twenty-third continuance in a two-year-old case. In addition, respondent contends that the petitioner cannot show that Blumenthal's actions fell outside the range of reasonable competence for an attorney. To support this contention, ...


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