Not what you're
looking for? Try an advanced search.
Buy This Entire Record For
UNITED STATES EX REL. BRADLEY v. HARTIGAN
June 24, 1985
UNITED STATES EX REL. FRANK BRADLEY, PETITIONER,
NEIL F. HARTIGAN AND MICHAEL P. LANE, RESPONDENT.
The opinion of the court was delivered by: Baker, Chief Judge.
I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS
Following a criminal jury trial, the petitioner Frank Bradley
was convicted of indecent liberties with a child and sentenced to
four years imprisonment. On direct appeal the Illinois Appellate
Court affirmed the conviction. See People v. Bradley,
113 Ill. App.3d 1172, 75 Ill.Dec. 384, 457 N.E.2d 174 (4th Dist.
1983). The only claim raised by Bradley in his appeal from
conviction was that he should have been granted a new sentencing
hearing because the trial court had failed to consider the
alternative of periodic imprisonment. His petition for leave to
appeal to the Illinois Supreme Court was denied.
After his denial of leave to appeal to the Illinois Supreme
Court, Bradley filed a petition for relief under the Illinois
Post-Conviction Hearing Act. Ill.Rev.Stat. ch. 38, Para. 122-1 et
seq. (1983). The petition alleged that the statute under which
Bradley was convicted was unconstitutionally vague; that the
trial court lacked jurisdiction because the information charging
him was defective; that he was denied a preliminary hearing and
probable cause determination on the charge for which he was
convicted; that his constitutional guarantee against being placed
in jeopardy twice for the same offense was violated; that the
admission of a caseworker's testimony violated his constitutional
right against self-incrimination and his right to assistance of
counsel; that errors occurring at trial denied him due process of
law and deprived him of a fair trial; and that the cumulative
effect of the alleged errors deprived him of a fair trial.
Bradley further argued that all of the above errors demonstrated
that he was denied effective assistance of counsel at trial and
on direct appeal of his conviction.
The Circuit Court of Livingston County, Judge Caisley
presiding, held that Bradley had failed to raise any issues of
constitutional magnitude and that Bradley had, in any case,
waived the alleged errors by failing to object at trial or to
raise them on direct appeal. The Circuit Court additionally found
that neither Bradley's trial counsel nor appellate counsel were
incompetent. See Docket Order of Circuit Court, Judge Caisley
(Livingston County, Jan. 4, 1984).
In his appeal from the Circuit Court's dismissal of his
post-conviction petition, Bradley argued that the appellate court
should consider all of the issues raised in his petition for
post-conviction relief because fundamental fairness required the
doctrine of waiver not be applied to the substantive violations
of his constitutional rights.
The appellate court stated that when "an appeal is taken from
a conviction, the judgment of the reviewing court is res judicata
as to all issues decided by the court and all issues which could
have been presented are deemed waived." People v. Bradley,
128 Ill. App.3d 372, 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (4th Dist.
1984) (citing People v. Brown, 52 Ill.2d 227, 287 N.E.2d 663
(1972)). A waiver would not be invoked in post-conviction
proceedings, however, where the "application of the waiver
doctrine would be manifestly inconsistent with fundamental
fairness". Bradley, 28 Ill. App.3d at 377, 83 Ill.Dec. 701,
470 N.E.2d 1121 (citing People v. Adams, 52 Ill.2d 224,
287 N.E.2d 695 (1972) and People v. Hanby, 32 Ill.2d 291, 205 N.E.2d 456
(1965)). The appellate court stated that the issue to be
determined was whether Bradley's post-conviction petition
presented a substantial showing of a denial of constitutional
rights, which may not be deemed to have been waived by failure to
have presented the issue of denial of a constitutional right to
the appellate court upon appeal of conviction. Bradley, 28
Ill.App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121.
On February 27, 1985, Bradley petitioned this court for writ of
habeas corpus stating that he was in immediate risk of being
required to surrender to the Livingston County Sheriff for
transfer to the Illinois Department of Corrections to begin
serving his four year term of imprisonment. The petitioner's
motion to be enlarged on bail pending disposition of the habeas
petition was allowed. On February 28, 1985, the court ordered the
respondents to show cause within twenty (20) days why a writ of
habeas corpus should not issue. See Order of February 28, 1985.
On March 6, 1985, the cause was allotted for hearing on March 18,
1985, on objections of the respondents to the enlargement of
Bradley on bail. Due to a conflict in the court's calendar, the
hearing set for March 18, 1985, was held on March 22, 1985. The
hearing was held on the respondents' objections to Bradley's
enlargement on bail, the respondent moving the court to
reconsider the setting of bond. The motion for reconsideration of
the court's order setting bond was denied, and the cause was
allotted for hearing on the merits of the petition on March 28,
1985, at 1:30 p.m. On March 27, 1985, respondents moved for
summary judgment against the petitioner.*fn1
II. REVIEWABILITY OF CLAIMS
The petitioner Bradley was charged by information by the State
of Illinois for two counts of indecent liberties with a child,
pursuant to Ill.Rev.Stat. ch. 38, §§ 11-4(a)(1) and (3). In
information No. 81-CF-220, petitioner was accused of having
sexual intercourse with his fourteen-year-old daughter (Count 1)
and of engaging in lewd fondling of his daughter (Count 2) on
November 2, 1981. In information No. 81-CF-234, petitioner was
charged with the lewd fondling of his fourteen-year-old daughter
on November 3, 1981. Prior to trial by jury, information No.
81-CF-234 was dismissed, with prejudice, by the court on the
motion of the state to nolle proseque that charge. The petitioner
was tried on the counts in information No. 81-CF-220; the
petitioner was acquitted on Count 1 alleging sexual intercourse,
but was convicted on Count 2 alleging lewd fondling. The
petitioner was thereafter sentenced to four years imprisonment.
The petitioner seeks a writ of habeas corpus from this court to
prevent his incarceration on the state court conviction.
Petitioner raises ten claims for habeas relief, the same ten
claims which were raised before the circuit court at his
post-conviction proceeding. The petitioner has exhausted his
available state remedies as required by 28 U.S.C. § 2254 and Rose
v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
Where a defendant has failed to abide by a state procedural
rule and is thereby barred from litigation of a constitutional
claim in the state courts, the state prisoner may not obtain
federal habeas corpus relief absent a showing of "cause and
prejudice". Reed v. Ross, ___ U.S. ___, ___, 104 S.Ct. 2901,
2906, 82 L.Ed.2d 1 (1984); Engle v. Isaac, 456 U.S. 107, 129, 102
S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); Wainwright v. Sykes,
433 U.S. 72, 84, 97 S.Ct. 2497, 2505, 53 L.Ed.2d 594 (1977); Weber v.
Israel, 730 F.2d 499, 502 (7th Cir. 1984). In the case at bar,
the Circuit Court of Livingston County, on his post-conviction
petition, found that Bradley had waived his right to attack his
conviction with these constitutional claims because he had failed
to raise these claims at the appeal of his state court criminal
conviction and he was now procedurally barred from doing so under
The state appellate court, affirming the circuit court's denial
of Bradley's post-conviction petition, stated that "[o]nly where
application of the waiver doctrine would be manifestly
inconsistent with fundamental theories will waiver not be invoked
in post-conviction proceedings". People v. Bradley, 128
Ill.App.3d at 377, 83 Ill.Dec. 701, 470 N.E.2d 1121 (citations
omitted). The Court found that the only issue to be determined
was whether Bradley's post-conviction petition presented a
"substantial showing of a denial of constitutional rights, which
may not been deemed to have been waived". Id. The Court went on
to hold that Bradley's petition for post-conviction relief
presented no substantial showing of any violation of its
constitutional rights. Id. at 384, 83 Ill.Dec. 701,
470 N.E.2d 1121.
If a state appellate court rules on the merits of a
constitutional claim, but not on the state procedural question,
federal habeas corpus review is available. See Farmer v. Prast,
721 F.2d 602, 605 n. 5 (7th Cir. 1983); United States ex rel.
Williams v. Franzen, 687 F.2d 944, 951 (7th Cir. 1982);
Brownstein v. Director of Illinois Department of Corrections,
594 F. Supp. 494, 500 (N.D.Ill. 1984) aff'd 760 F.2d 836 (7th Cir.
1985). Federal habeas corpus relief is precluded, however, where
the state appellate court affirms a trial court decision on the
twin grounds of lack of merit in a constitutional claim and the
appellant's failure without justification to comply with the
state's procedural rules. Farmer, 721 F.2d at 605. See Jentges v.
Milwaukee County Circuit Court, 733 F.2d 1238, 1243 n. 1 (7th
Cir. 1984); United States ex rel. Veal v. DeRobertis,
693 F.2d 642, 650 (7th Cir. 1982).
In the case at bar, the state appellate court reached the
merits of Bradley's claim in order to determine if Bradley had
waived his rights under state law to bring the constitutional
claims in the post-conviction proceedings. Thus, the state
appellate court reached the twin grounds of lack of merit in a
constitutional claim and the failure to comply with state
procedural rules resulting in a waiver of the claims in the state
courts. Under Farmer, therefore, Bradley may not obtain federal
habeas relief absent a showing of "cause and actual prejudice".
See Engle, 456 U.S. at 129, 102 S.Ct. at 1572.
As Bradley may be deemed to have waived his claims by failing
to present them to the Illinois appellate court after his state
court criminal conviction, the petitioner maintains that his
trial and appellate counsel's ineffective assistance constitutes
"cause" for Bradley's procedural default and that therefore
habeas corpus relief is not barred. In United States ex rel.
Spurlark v. Wolf, 699 F.2d 354 (7th Cir. 1983), a majority of the
Court held that failure to raise a claim on direct appeal from a
state court conviction barred federal habeas corpus relief unless
the petitioner showed cause for and prejudice from the procedural
default. Id. at 357-61. Ineffective assistance of counsel,
however, may provide sufficient cause for a procedural default.
See Clay v. Director, Juvenile Division, Department of
Corrections, 749 F.2d 427, 430 (7th Cir. 1984) and authorities
cited. The term "cause" has been given a flexible definition that
may change depending on the degree of prejudice shown. This is
because cause is viewed "in terms of the nature of the procedural
waiver and with an eye to the possible resulting prejudice." Id.
at 434 quoting Huffman v. Wainwright, 651 F.2d 347, 351 (5th Cir.
1981). "Cause" is thus defined in sufficient terms "to excuse a
procedural default in light of the determination to avoid `a
miscarriage of justice'." Clay, 749 F.2d at 434 (quoting Huffman,
651 F.2d at 351). If prejudice is high, therefore, cause will be
more easily found; conversely, where it appears that justice has
been done, the requirement for showing both cause and prejudice
will be strictly enforced. Clay, 749 F.2d at 434.
The question, therefore, for this court to examine is whether
Bradley's counsel, both trial and appellate, were so ineffective
as to create cause for exception to the federal habeas waiver
Beyond the issue as to whether or not Bradley's trial and
appellate counsel were so ineffective as to constitute cause for
precluding the application of the waiver doctrine, is the
separate question as to whether the assistance of counsel
rendered by Bradley's trial and appellate counsel was so
ineffective as to render it in and of itself a violation of the
Sixth Amendment. Under Illinois law, an ineffective assistance of
counsel claim not raised on appeal may still be raised in a
post-conviction proceeding under some circumstances. See United
States of America, ex rel. Devine v. DeRobertis, 754 F.2d 764,
766 (7th Cir. 1985); Perry v. Fairman, 702 F.2d 119, 122 (7th
Cir. 1983). In the case at bar, Bradley at his post-conviction
proceeding raised issues of incompetency of trial and appellate
counsel at his post-conviction proceeding. The circuit court at
the post-conviction proceeding held that Bradley's trial and
appellate counsels' performance did not constitute incompetence
of counsel; on appeal from the circuit court's decision in the
post-conviction proceeding, the state appellate court concluded
that Bradley received competent representation both in his trial
counsel's performance throughout the proceedings and his
counsel's performance on appeal. The state court, therefore,
reached the merits of Bradley's ineffective assistance of counsel
claim and that claim is now ripe for this court to review.
The court will first proceed to examine the petitioner's
arguments for precluding the application of the waiver doctrine
to those claims not raised at the direct appeal of his state
A. Waiver Doctrine Preclusion
Bradley argues that his trial counsel should have raised a
attack on § 11-4(a)(3) of the Criminal Code of 1961, under which
he was convicted for committing indecent liberties with his
daughter, as unconstitutionally vague. See Ill.Rev.Stat. ch. 38,
Para. 11-4(a)(3) (1983).
The Illinois appellate court specifically upheld the
constitutionality of § 11-4(a) in People v. Polk, 10 Ill. App.3d 408,
294 N.E.2d 113 (2nd Dist. 1973). The court in Polk held that
the statute provides fair notice of what conduct is prescribed.
Id. at 412, 294 N.E.2d 113. A penal statute is unconstitutionally
vague when it fails to "define the criminal offense with
sufficient definiteness that ordinary people can understand what
conduct is prohibited [and] in a manner that does not encourage
arbitrary and discriminatory enforcement." Kolender v. Lawson,
461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983)
quoted in United States v. Rodgers, 755 F.2d 533, 543-44 (7th
Cir. 1985). The requirement that criminal statutes must give fair
warning of the conduct prescribed implicates due process and is
a fundamental right. See United States of America ex rel. Reed v.
Lane, 759 F.2d 618, 622 (7th Cir. 1985) (citations omitted). The
petitioner was convicted under § 11-4(a)(3) of the Illinois
Criminal Code which provides:
Ill.Rev.Stat. ch. 38, § 11-4(a)(3).
The court does not find the statute so vague as to create any
meaningful danger of arbitrary law enforcement; in any case, any
problem with the notice that the statute does provide is
alleviated by the intent requirement present therein. See
Rodgers, 755 F.2d at 544. See also Village of Hoffman Estates,
455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982)
(intent requirement mitigating a law's vagueness, especially with
respect to the adequacy of notice at the specific conduct is
prohibited). A person of "ordinary" intelligence would understand
that the acts with which the petitioner was charged were in
violation of the statute at issue. Because this claim is without
constitutional merit, the failure of counsel to pursue such a
claim in either the trial court or on appeal does not constitute
cause for precluding the application of the waiver doctrine.
2. Insufficient Information Claim
Bradley argues that his trial counsel's failure to move to
dismiss the charges contained in information No. 81-CF-220
constitutes cause for precluding the application of the waiver
doctrine. Bradley states that the information charging him with
performing a lewd fondling did not allege specific facts
constituting the offense and thus was not sufficient to inform
him of the charge so that he could prepare his defense or to
prevent his being subjected to another prosecution for the same
offense. Tracking the language of the statute, the information
charged that Bradley had committed the offense of indecent
liberties with a child in that he, "a person of the age of
seventeen years and upwards, performed a lewd fondling on Vicki
Bradley, a child under the age of sixteen years, to-wit: fourteen
years of age, done with the intent to arouse or to satisfy sexual
desires of either Vicki Bradley or himself." Tr. 31.
An information which alleges an offense in the language of the
statute defining that offense is constitutionally sufficient if
it (1) contains all the necessary elements of the offense, (2)
informs the defendant of what he must be prepared to meet, and
(3) enables him to plead conviction or acquittal as a bar to
subsequent prosecution. See Russell v. United States,
369 U.S. 749, 763-64, 82 S.Ct. 1038, 1046-1047, 8 L.Ed.2d 240 (1962) cited
in United States ex rel. Ballard v. Bengston, 702 F.2d 656, 660
(7th Cir. 1983). The information in the case at bar contained all
the necessary elements of the offense charged and informed the
petitioner of the time and place of the offense and the persons
Bradley additionally argues that the information was void
because it uses the disjunctive conjunction "or," thereby making
it uncertain whether he was charged with committing the act with
the intent to satisfy the desires of the victim or the desires of
himself. Bradley, however, was charged at trial with but one act
of lewd fondling. The use of the disjunctive conjunction "or" in
setting apart the differing mental states did not render the
charge uncertain in the indictment. As the information charged
only one physical act, the petitioner's conviction serves as a
double jeopardy bar despite the disjunctive pleading of the
mental state element.
As the information charging Bradley with lewd fondling was
sufficient to inform him of the charge, to allow him to prepare
his defense, and to prevent him from being subjected to another
prosecution for the same offense, it was constitutionally
sufficient. The failure of petitioner's trial and appellate
counsel to raise this claim in the state courts, therefore, did
not constitute "cause" for precluding application of the waiver
3. Inadmissible Testimony Claim
Bradley argues that the admission of the case worker's
testimony violated his constitutional right against
self-incrimination under the Fifth Amendment and his right to
assistance of counsel under the Sixth Amendment.
Bradley's claim that his right to counsel was denied by the
admission of Bickley's testimony is without merit. The Sixth
Amendment right to counsel attaches at the time adversary
judicial proceedings are initiated against a person. See United
States ex rel. Johnson v. Lane, 573 F. Supp. 967, 970 (N.D.Ill.
1983)(citing Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct.
1232, 1239, 51 L.Ed.2d 424 (1977)). As formal charges had been
filed against the petitioner prior to his interview by Bickley,
the petitioner's right to assistance of counsel under the Sixth
and Fourteenth Amendments had attached at the time he was
interviewed. See United States ex rel. Johnson, 573 F. Supp. at
970. See also People v. McDonald, 23 Ill.App.3d 86, 90,
318 N.E.2d 489 (2nd Dist. 1974) aff'd 62 Ill.2d 448, 343 N.E.2d 489
(1976) (once a defendant is charged either by information,
complaint, or indictment in an adversary proceeding, then under
Illinois law the defendant is entitled to counsel). The thrust of
the petitioner's claim is that incriminating statements were
deliberately elicited from him after the right to counsel had
attached in the absence of counsel.
In Messiah v. United States, 377 U.S. 201; 84 S.Ct. 1199, 12
L.Ed.2d 246 (1964), such statements would not be admissible
unless petitioner had waived his right to counsel. In Messiah,
the Supreme Court stated that it was a violation of the Sixth
Amendment right to counsel where a defendant's own incriminating
statements were used against him at his trial, statements which
had deliberately been elicited from him after he had been
indicted and in the absence of his counsel. See id. at 206, 84
S.Ct. at 1203. The rule is that once adversary proceedings have
commenced against an individual the defendant has the right to
legal representation when the government interrogates that
defendant. See Brewer, 430 U.S. at 400, 97 S.Ct. at 1240. Where
a defendant has been formally charged and the government
deliberately elicits incriminating statements from the defendant,
such statements are inadmissible at the defendant's trial because
they were obtained in ...