Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 C 41-Nicholas J. Bua, Judge.
Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and WYATT, Senior District Judge.*fn*
Petitioner-appellant Dudley James Russo, who initially was successful in his bid for habeas corpus relief, 28 U.S.C. § 2254, appeals from a final order of the district court denying, upon reconsideration, Russo's petition for a writ of habeas corpus.
Russo's claims arise out of his pleas of guilty to state charges of armed robbery and murder, tendered one day after trial began. The state court, in sentencing Russo to concurrent terms of twenty to forty years incarceration, failed to inform him of the mandatory parole term which, by operation of law, attached to his sentence.
Notice of appeal from the circuit court judgment of conviction was filed on June 28, 1974, and a state appellate defender was appointed to represent Russo on December 12, 1974. One year later, Russo received a letter from the state appellate defender who introduced herself as Russo's attorney and attendantly informed him that she was filing with the court a motion for leave to withdraw as appellate counsel and an Anders brief. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Counsel further informed Russo that he had thirty days within which to communicate to the court any errors he thought could have been raised. Counsel did not consult with Russo either in person or by mail prior to filing the Anders brief. In the Anders brief, counsel stated that the only argument that could possibly be raised on appeal was the trial court's failure to admonish Russo, pursuant to Ill. Sup. Ct. R. 402, Ill. Ann. Stat. ch. 110A, [P]402 (Smith-Hurd 1985), of certain rights prior to the acceptance of his guilty plea. Russo claims that despite numerous requests he never received the transcript of the proceedings necessary to proceed with the appeal pro se.
In its Rule 23 order, the Illinois appellate court permitted counsel to withdraw and affirmed the convictions in an unpublished order. People v. Frustine, 36 Ill. App. 3d 1079, 350 N.E.2d 375 (1st Dist. 1976). Russo's first petition for a writ of habeas corpus was dismissed for failure to exhaust his state post-conviction remedies. He then sought post conviction relief, Ill. Ann. Stat. ch. 38, [P]122-1, raising two issues: (1) the trial court's acceptance of his guilty plea without holding a hearing on his competency to stand trial violated his due process rights; and (2) trial counsel's failure to request such a hearing constituted ineffective assistance of counsel. Russo was unsuccessful at the trial court level and on appeal. People v. Russo, 61 Ill. App. 3d 1110, 381 N.E.2d 1057, 21 Ill. Dec. 610 (1st Dist. 1978) (unpublished order).
Russo's second attempt to gain habeas corpus relief was successful--initially. The district court was persuaded that Russo was denied the effective assistance of appellate counsel:
In Russo's appeal, the State Appellate Defender did not afford the petitioner the level of conscientious investigation of facts, marshalling of the law and presentation of arguments which Anders requires before a motion to withdraw. The appellate defender failed to ever consult, confer or inquire of petitioner concerning any of the events and issues surrounding trial prior to the motion to withdraw. Any genuine opportunity that the petitioner may have had to show that his appeal had hidden merit was denied him because of the absence of essential attorney-client contact.
Citing Sutton v. Lash, 576 F.2d 738 (7th Cir. 1978), the district court further found that Russo had been denied his right to appeal through the state's failure to provide him "transcripts and a trial record."*fn1 The court ordered Russo's release but stayed the order to permit the state to provide a meaningful appeal.
The district court, pursuant to respondent's motion, subsequently reconsidered its decision. With respect to the Anders claim, the court concluded that actual consultation with the client prior to the filing of an Anders brief is desirable but not constitutionally compelled. Alternatively, if such consultation is constitutionally required, counsel's failure to consult with Russo was harmless error. Noting that a defendant who pleads guilty waives all constitutional challenges based on events that occurred prior to the entry of the plea, Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973), the district court found that Russo's only challenge on direct appeal could have been to the trial court's failure to inform him of the mandatory parole term. According to the district court, when Russo appealed in 1974, this claim "could not have been made" because it was not until 1975 that the Illinois Supreme Court held that Illinois law requires that a defendant be informed of a mandatory parole term.
The district court further reconsidered its holding that Russo had been denied his right to appeal. Since only the voluntariness of the guilty plea could be challenged on direct appeal, only the transcript of the change of plea proceeding was necessary to pursue the appeal. The court found that this transcript had been forwarded to Russo.
Finding it necessary to address Russo's third claim, the district court held Russo was not entitled to relief under United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir. 1977), because there was no evidence that the trial judge agreed to impose a specific sentence.
Russo's subsequent motion for relief from judgment was denied. A certificate of probable cause to appeal was issued. Russo tenders the same arguments on appeal and additionally claims that the district court erred in considering for the first time on a motion for reconsideration respondent's contention ...