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