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UNITED STATES EX REL. BRADLEY v. HARTIGAN

June 24, 1985

UNITED STATES EX REL. FRANK BRADLEY, PETITIONER,
v.
NEIL F. HARTIGAN AND MICHAEL P. LANE, RESPONDENT.



The opinion of the court was delivered by: Baker, Chief Judge.

        FINAL ORDER

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 state law.

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 rule.*fn2

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 conviction.

III. DISCUSSION

A. Waiver Doctrine Preclusion

1. Vague Statute Claim

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:

    (a) if any person of the age of seventeen years and
  upwards commits indecent liberties with a child when
  he or she performs or submits to any of the following
  acts with a child under the age of

  sixteen: . . . (3) any lewd fondling of either the
  child or the person done or submitted to with the
  intent to arouse and to satisfy sexual desires of
  either the child or the person or both.

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 involved.

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 doctrine.

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 ...


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