Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 82 C 3223 -- Gerald B. Cohn, Magistrate.
Eschbach, Posner, and Coffey, Circuit Judges.
In 1979 James Nutall was convicted of murder in the Circuit Court of Cook County, Illinois, and was sentenced to twenty-two years imprisonment. He is now a prisoner at Menard Correctional Center, Menard, Illinois. He appeals from the magistrate's denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He contends that the trial court erred in failing to instruct the jury on death by accident and that he received ineffective assistance of counsel. We affirm.
On September 1, 1978, Nutall was employed as a security guard. Wearing his guard uniform and carrying a gun in a holster, he met Linda Williams at a Chicago hotel, where she was seeking work. He had known Williams for nine months and had been seeing her, but they had broken up a few days before. They took an elevated trail to Homan and Lake and were waiting on the corner for a bus. Suddenly a shot rang out. Two eyewitnesses saw Williams fall to the ground. Nutall backed up, turned around, started running, and disappeared down an alley. Williams later died of a bullet wound to the head. The fatal bullet came from Nutall's gun.
Nutall wa indicted for Williams's murder and was convicted following a jury trial. He appealed to the Illinois Appellate Court, which affirmed his conviction. People v. Nutall, 91 Ill. App. 3d 758, 415 N.E.2d 628, 47 Ill. Dec. 623 (1980). He did not file a petition for leave to appeal to the Illinois Supreme Court.
On July 20, 1982, Nutall filed this petition for a writ of habeas corpus. The case was referred to a magistrate, and the parties agreed to let the magistrate enter final judgment. The magistrate granted Nutall's motion for leave to proceed in forma pauperis but denied his motion for appointment of counsel. Without holding an evidentiary hearing, the magistrate granted the respondent's motion to dismiss on August 23, 1983. Nutall now appeals that order.
Nutall challenges the magistrate's ruling that he had waived his right to a writ of habeas corpus by filing to seek leave to appeal to the Illinois Supreme Court. Whether the failure to seek review in the state's highest court, having taken one appeal to the state's lower level appellate court, constitutes such a waiver is apparently an issue of first impression in this circuit, and we have found no case deciding that precise question in any other circuit.
The question is not the same as whether Nutall has exhausted his state remedies, as required by 28 U.S.C. § 2254(b); it is clear that he has. The exhaustion requirement refers only to state remedies still available at the time the federal petition is filed. United States ex rel. Johnson v. McGinnis, 734 F.2d 1193, 1196 (7th Cir. 1984). By the time Nutall filed his federal petition, the time for filing a petition for leave to appeal to the Illinois Supreme Court has long passed. See Ill. Rev. Stat. ch. 110A, paras. 315(b), 612(b) (1981). Since he chose the route of direct appeal, he need not have sought collateral relief in state court, Brown v. Allen, 344 U.S. 443, 447-48, 97 L. Ed. 469, 73 S. Ct. 397 (1953), overruled on other grounds, Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963); Cronnon v. Alabama, 557 F.2d 472, 473 (5th Cir. 1977), and in any event is barred from doing so by state rules. People v. Logan, 72 Ill. 2d 358, 369, 381 N.E.2d 264, 269, 21 Ill. Dec. 186 (1978).
If it were still open to Nutall to seek leave to appeal in the Illinois Supreme Court, then his petition for a writ of habeas corpus would be subject to dismissal for failure to exhaust state remedies. Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979). This rule reflects the principles of federalism and comity that restrain federal habeas corpus review of state convictions. State courts must have a fair opportunity to consider constitutional objections to state criminal convictions before a federal court assumes the intrusive power to nullify those convictions on constitutional grounds. This policy is not well served if a federal court accepts cases for habeas review when the state's highest court has had no opportunity to express its views on the questions presented. If the prisoner is still permitted under state rules to seek review in the highest court, the federal court is required to dismiss the petition for failure to exhaust state remedies. Such a dismissal is without prejudice; if the highest court declines review or rules against the prisoner, he may apply again for habeas relief. See Carbajol v. Fairman, 700 F.2d 397, 399 (7th Cir. 1983). But if the prisoner by his own default is no longer permitted under the state rules to seek review in the highest court, then, subject to the exception to be developed below, we think the very same policy requires that he be deemed to have waived his right to habeas relief on grounds that he might have presented but did not present to the highest court.
Just as there are exceptions to the exhaustion rule,*fn1 we think there may be cases in which this waiver rule should be relaxed. Citing Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963), Nutall suggests that the only proper case for invocation of the rule is one in which the defendant deliberately bypassed the highest state court as a matter of intentional strategy, with all other cases treated as exceptions.*fn2 Such a view comports with the classic definition of waiver as "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938). But that is not the concept of waiver we employ when considering whether a state convict has waived certain constitutional objections to his conviction. Our search in such contexts is for rules determining when it is proper to treat the convict as having forfeited his ...