situation foreshadowed in the preliminary hearing happened.
Masorlian repeated her testimony that she first saw the vinyl bag
on the floor in the front of the car when Tonaldi, alone in the
car, picked her up. The trial judge relied on this testimony in
convicting Tonaldi and acquitting Masorlian. See 541 F. Supp. at
609 n. 3.
On direct appeal, current counsel represented Tonaldi. Tonaldi
argued that the conflict of interest which occurred at trial
deprived him of his right to effective assistance of counsel. The
Appellate Court held that, although an actual conflict happened,
Tonaldi had knowingly and intelligently waived his right to
separate counsel. People v. Tonaldi, 98 Ill.App.3d at 531, 54
Ill.Dec. at 300, 424 N.E.2d at 1203. Following an evidentiary
hearing on Tonaldi's first habeas corpus petition, we granted the
writ, 541 F. Supp. 608 (1983), holding that Tonaldi had not
intelligently waived his right.
In reversing, the Seventh Circuit distinguished two types of
Sixth Amendment claims, one of which Tonaldi had raised and one
he had not. Up until then, Tonaldi had asserted that the actual
conflict of interest adversely affected his lawyer's
representation, and that he had not waived his right to an
attorney devoted to his interests. The Seventh Circuit pointed
out, however, that Tonaldi "did not claim . . . that his
attorney's decision to represent co-defendants was inconsistent
with the minimum standards of competent representation." 716 F.2d
at 436 (emphasis added). The claim he actually raised focussed on
him, that is, on whether he knowingly waived his right to a trial
free of a conflict of interest. The claim he did not raise
focusses on his trial attorney, that is, on whether counsel's
decision to represent Tonaldi and Masorlian was so foolish and
prejudicial as to fall below the constitutional standards since
announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). The Seventh Circuit did not reach
this second issue because it had not been raised and because it
had not been "raised in the Appellate Court of Illinois
and . . . [involved] facts outside of the trial court record.
This possible claim is therefore unexhausted, see Perry v.
Fairman, 702 F.2d 119, 122 (7th Cir. 1983), and we express no
opinion on its merits." 716 F.2d at 436-37.
This second type of claim is what Tonaldi now asserts.
Apparently relying on the Seventh Circuit's assertion that this
claim was unexhausted, Tonaldi filed it in a petition for
post-conviction relief in state court. After losing in the state
trial and appellate courts, he reappeared here. The State again
asserts a "waiver" defense, although a different kind of waiver
defense than it asserted the first time. The State argues that
Tonaldi could have raised this incompetence argument in the
direct appeal of his conviction. His failure to do so means he
has waived it for habeas corpus purposes, despite what the
Seventh Circuit said about the issue. We agree, and therefore
grant the motion to dismiss.
It is now well established that a state prisoner waives claims
which he failed to raise on direct appeal, absent "cause" for the
failure and resulting "prejudice." See United States ex rel.
Spurlark v. Wolff, 699 F.2d 354, 356 (7th Cir. 1983) (en banc).
However, such a claim is not waived if it is based on facts not
contained in the record on appeal. See United States ex rel.
Devine v. DeRobertis, 754 F.2d 764, 766 (7th Cir. 1985). The
parties agree that these standards apply, but disagree on whether
the facts in the record at the time of the direct appeal could
have supported Tonaldi's current claim.
The Illinois Appellate Court thought Tonaldi could have raised
the issue on direct appeal. 129 Ill.App.3d at 188-89, 84 Ill.Dec.
at 377, 472 N.E.2d at 127. We also think he could have done so.
Tonaldi's new counsel was well aware of the questionable
competency of trial counsel since he raised a closely related
issue on direct appeal. Indeed, from the face of trial record
such a claim could have been raised. Every court which has seen
the case has recognized that a conflict was first evident from
Masorlian's testimony at the preliminary hearing.
Despite this obvious and fundamental conflict, Tonaldi's attorney
decided he could handle the trial. This decision, which quite
probably was incompetent, was apparent from the record. Tonaldi
has offered no explanation for his failure to raise the issue on
Tonaldi points to some facts discovered since the direct appeal
and argues that these bring him within the exception to waiver.
These facts do not undermine the above conclusion. One "fact" is
trial counsel's admission that he was unaware that Masorlian's
testimony would incriminate defendant, and that he might have
"made a mistake." We agree with the State Appellate Court that
this admission "adds nothing to [Tonaldi's] cause." 129
Ill.App.3d at 188, 84 Ill.Dec. at 377, 472 N.E.2d at 127.
Counsel's "mistake" was apparent from the trial record. To raise
the issue on appeal, it was not necessary that trial counsel
realize his error. Tonaldi has not explained why appellate
counsel could not have done so regardless of trial counsel's
realizations. Other "new facts" are that Tonaldi did not
understand the conflict issue, and that he relied on counsel's
advice that counsel "could handle" the problem. Tonaldi's own
understanding is irrelevant as it bears only on the waiver issue
which was dealt with on Tonaldi's first habeas petition.
Counsel's advice, however, does relate to his competence. His
advice to Tonaldi that "all is well" compounds his allegedly
incompetent decision to represent both defendants. But this new
fact, while adding something to Tonaldi's case, does not make his
case. In other words, Tonaldi could have raised the competency
issue on direct appeal regardless of this later fact. Simply
because later facts further support an issue which could have
been raised on direct appeal does not mean the issue could not
have been raised in the first place. While pointing to these "new
facts," Tonaldi does not explain why he could not have relied on
"old facts" alone.
The only thing which gives us pause is the dictum by the
Seventh Circuit that the current issue is "a claim involving
facts outside of the trial court record . . . [and] therefore
unexhausted." This dictum apparently led Tonaldi to file his new
claim here and in state court, and we regret that he has been led
astray. But the Seventh Circuit made its statement in dictum as
it never directly considered whether the claim involved "new
facts." When the issue was presented squarely, both this Court
and the state courts concluded that it could have been raised on
direct appeal. The Seventh Circuit's citation of Perry v.
Fairman, 702 F.2d 119, 122 (7th Cir. 1983), leads us to believe
that it merely assumed (not unfairly) that the new claim would
rest on facts outside of the record. Perry states that a claim of
ineffective assistance of counsel is such that it cannot usually
be raised on direct appeal.*fn2 As such, the petitioner there had to
repair to state court to exhaust meaningful state post-conviction
remedies. The Tonaldi decision apparently assumed that the
general situation as stated in Perry would apply here. But this
assumption in dictum turned out to be false.*fn3 This was the
where the competency claim could have been "readily raised on
direct appeal." Perry, 702 F.2d at 122. As we noted above, the
issue was plain from the face of the trial record and did not
require the usual probing into counsel's mental processes or
In sum, we must (somewhat regrettably) hold that Tonaldi waived
his competency claim. We also find no "cause" for his failure to
raise the claim on direct appeal. Accordingly, we grant the
State's motion to dismiss.*fn4 It is so ordered.