Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division, No. 84 C 3399, Gerald B. Cohn, Magistrate.
Wood, Jr., and Posner, Circuit Judges, and Will, Senior District Judge.*fn*
WOOD, Jr., Circuit Judge.
The State of Illinois has appealed from a magistrate's order granting a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1982) to petitioner, Gary Barnard. The grant of the petition was based on the magistrate's holding that Barnard had been denied his sixth amendment right to effective assistance of counsel. The State asserts that Barnard's procedural default in failing to present his claim of ineffective assistance of trial counsel on direct appeal precludes federal habeas corpus review of that claim. We disagree and affirm the magistrate's order.
The facts are not in dispute. At about 7:45 p.m. on June 15, 1981, Officer Bill Adams of the Harrisburg Police Department received a telephone call from an individual who identified himself as Gary Barnard of 207 McIlrath. Barnard said he had just shot Dennis Price and that the police should come and send an ambulance.
Earlier in the evening, Price, Larry Moore, and Stanley Jackson had driven up to Barnard's home. The three had been drinking. Barnard went out to the automobile and briefly spoke with the three, who then left to get something more to drink. Barnard returned to the house to watch television. After a while, fearing that the men might return and cause some trouble, Barnard went into his bedroom and loaded a.22 caliber pistol. Price and Moore returned and entered Barnard's house without invitation. Price and Moore began arguing with each other and continued to argue for about half an hour when Barnard asked them to leave. When they made no attempt to do so, Barnard went to his bedroom and came back with the pistol. Price started walking toward Barnard with his hands held above shoulder height, saying, "You don't want to do that, man." Barnard fired one shot into Price's chest when Price was about six feet away from him. Barnard immediately called the police. Price died from the wound.
Barnard was charged by information in the Circuit Court of Saline County with three counts of murder and three counts of armed violence. A jury convicted Barnard of one count of murder, and found him not guilty of armed violence. He was sentenced to twenty-five years imprisonment and fined $5,000. The appellate court, without opinion, vacated that part of the circuit court order imposing a fine and remanded to the circuit court for further proceedings on Barnard's ability to pay a fine. The appellate court affirmed the remainder of the circuit court's judgment. People v. Barnard, 115 Ill. App. 3d 1161, 461 N.E.2d 1088, 78 Ill. Dec. 254 (5th Dist. 1983). The Supreme Court of Illinois affirmed the appellate court. People v. Barnard, 104 Ill. 2d 218, 470 N.E.2d 1005, 83 Ill. Dec. 585 (1984).
On December 26, 1984, Barnard, now an inmate at Menard Correctional Center, filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. The parties consented under 28 U.S.C. § 636(c) (West Supp. 1987) to final entry of judgment by a United States Magistrate. After a hearing the magistrate granted Barnard's petition for the writ by order dated May 22, 1986. The State of Illinois has appealed this grant.
The State argues that Barnard's procedural default in failing to present his claim of ineffective assistance of trial counsel on direct appeal precludes federal habeas corpus review of that claim. Under Illinois law, "issues that could have been presented on direct appeal, but were not, are deemed to have been waived." People v. Barnard, 104 Ill. 2d 218, 228, 470 N.E.2d 1005, 83 Ill. Dec. 585 (1984) (citing Hammond v. North American Asbestos Corp., 97 Ill. 2d 195, 209, 454 N.E.2d 210, 73 Ill. Dec. 350 (1983); Harris Trust & Savings Bank v. Duggan, 95 Ill. 2d 516, 526, 449 N.E.2d 69, 70 Ill. Dec. 195 (1983)).
A. Supreme Court of Illinois
The Supreme Court of Illinois found that because Barnard's arguments related to the issue of whether he had been denied effective assistance of counsel, the waiver doctrine ought not bar these issues from consideration. 104 Ill. 2d at 229 (citing People v. Frank, 48 Ill. 2d 500, 503, 272 N.E.2d 25 (1971)). The court also noted, however, that counsel was not obligated to "brief every conceivable issue on appeal," Barnard, 104 Ill. 2d at 230, and that it was not incompetence for counsel to fail to raise issues which, in his judgment, were meritless, unless counsel's evaluation of the merits was patently wrong. Id.
Barnard had argued to the Supreme Court of Illinois that his trial counsel was ineffective because he failed to object to hearsay testimony and failed to submit a jury instruction on murder which contained the element of justification, Barnard's only defense. Barnard also argued that his appellate counsel was ineffective because he did not raise on appeal trial counsel's failures to object to hearsay testimony, to move for a mistrial, and to make offers of proof on appeal. The Supreme Court of Illinois held that appellate counsel's failure to raise these ...