never sought any state review of his state conviction. The
only other review of this conviction sought by Petitioner is
the instant petition, filed with this Court almost 11 years
following Petitioner's guilty plea and sentencing.
Petitioner's most vigorous argument in requesting that we
set him free is that his guilty plea was not entered
voluntarily. He claims first that he was not competent to
plead guilty because from mid-April through June 22, 1977,
while he was in custody pending his trial, he was given
several drugs for nerve problems he was experiencing.
Petitioner has submitted the affidavits of his mother, his two
children, and his uncle, as well as his own, which in essence
state that Petitioner's mental state was not normal during
those time periods, and the affiants ascribe the abnormality
to the drugs ingested. Additionally, Petitioner has submitted
a letter from a doctor indicating that the drugs prescribed to
Petitioner during that time might impair mental faculties.
Petitioner also claims that his plea was involuntary due to
his lack of understanding of the charges, due to the lack of
any factual basis for the plea, and due to the fact that he
was not informed of the requisite mental state for a murder
conviction and that he did not possess that mental state at
the time he killed Ms. Hayes.*fn1 Petitioner further claims
that he had insufficient time in which to consider the amended
plea agreement after the Court rejected the first attempt, and
that the plea was entered into on bad advice of counsel in
that his attorney told him that he would be paroled within 10
years. In addition, Petitioner urges that his plea was
involuntary due to incompetence of counsel; he claims that the
federal sentence which was subsequently vacated demonstrates
his attorney's incompetence, as do other incidents.
Petitioner also attacks his conviction on the basis that the
Court deprived him of the right to counsel of his choice when
it allowed Mr. Napoli to withdraw and appointed the public
defender to represent Petitioner following his preliminary
hearing. Finally, Petitioner also argues that he was denied
his right to appeal; though he claims to have been of the
understanding that Mr. Napoli would appeal the conviction, no
such appeal was ever filed.
Taking the Case
Our conclusion that the relief requested has been waived by
Petitioner through his own procedural default is reached
through an indirect route.
We begin with Respondent's assertion that this petition
should be dismissed due to Petitioner's failure to exhaust
state remedies in accordance with section 2254(b).
Specifically, Respondent argues that state relief is available
to by virtue of Ill.Rev.Stat. ch. 38, ¶ 122-1, Illinois'
Post-Conviction Hearing Act, which opens the state courts'
doors to claims of a substantial denial of federal
constitutional rights during proceedings resulting in the
claimant's conviction. Respondent notes that section 2254, by
its own terms, requires that such state relief be exhausted
prior to seeking federal assistance, and so this petition
should now be denied.
We agree with Respondent that the claims raised in this
petition would be cognizable in a Post-Conviction Hearing Act
proceeding. Petitioner here failed to raise any of his claimed
constitutional errors on direct appeal — in fact, one error
claimed is that he was altogether denied his right to appeal.
Hence, all of his claims would be presentable to an Illinois
court because "[t]he Post-Conviction Hearing Act provides a
separate remedy, the availability of which is not contingent
upon exhaustion of any other remedy. . . . Thus, a party who
fails to take an appeal, whether by careful choice,
inadvertance, indigence, or as a result of fleeing the
jurisdiction . . ., may waive claims of error, but any right
which may have existed to a post-conviction hearing on the
constitutionality of imprisonment will remain undiminished."
People v. Rose, 43 Ill.2d 273, 279, 253 N.E.2d 456 (1969).
In the ordinary course of things, then, we would be obliged
to dismiss this petition pursuant to section 2254(b) to allow
the state courts a first crack at ruling upon Petitioner's
claimed errors. This would further the policy of comity
underlying the exhaustion rule, which policy is based upon
"the relations existing, under our system of government,
between the judicial tribunals of the Union and of the States,
and in recognition of the fact that the public good requires
that those relations be not disturbed by unnecessary conflict
between courts equally bound to guard and protect rights
secured by the Constitution." Rose v. Lundy, 455 U.S. 509, 514,
102 S.Ct. 1198, 1201, 71 L.Ed.2d 379 (1982) (quoting Ex Parte
Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740, 29 L.Ed. 868
(1886)). Exhaustion of state remedies is required in all but
exceptional circumstances. Rose, 455 U.S. at 514, 102 S.Ct. at
1201. Indeed, so strong is this policy that an entire petition
must be dismissed although some, but not all, claims made are
exhausted. Id. at 522, 102 S.Ct. at 1205.
In the case at bench, though, it appears likely that
Petitioner would be precluded from bringing his claims to an
Illinois court because of the statute of limitations for the
Post-Conviction Hearing Act. At the time Petitioner's
conviction was entered in 1977 the Act had a 20 year
limitation period, but on January 1, 1984, an amendment to the
Act became effective which shortens the limitation period to
ten years. The limitation period runs from the time of
sentencing, see People v. Rose, 43 Ill.2d at 278,
253 N.E.2d 456, and the amended limitation period applies retroactively.
People v. Bates, 124 Ill.2d 81, 124 Ill.Dec. 407,
529 N.E.2d 227 (1988). Hence, to be timely the post-conviction petition
here would have to have been filed by July 6, 1987. Petitioner
did not meet that deadline — in fact, a letter submitted with
his reply brief indicates that he was not even aware of the
Post-Conviction Hearing Act or its limitation period until late
November of 1987.
Even though technically no Illinois court has held that
Petitioner's post-conviction remedy is time barred, we need
not make him jump through the hoop of seeking such relief if
it is obvious that the attempt would be futile. United States
ex rel. Williams v. Brantley, 502 F.2d 1383 (7th Cir.1974);
United States ex rel. Buckhana v. Lane, 787 F.2d 230, 235 (7th
Cir.1986) ("'we need not direct a petitioner to pursue state
remedies if the pursuit would be futile in the sense that we
know that the state court would reject the claim'") (quoting
United States ex rel. Tonaldi v. Elrod, 716 F.2d 431, 435 (7th
One possibility must yet be disposed of before we can find
that sending Petitioner back to the state courts would be
futile. The Post-Conviction Hearing Act has provided a
safety-valve for its limitation period; the Act reads: "No
proceedings under the Article shall be commenced more than 10
years after rendition of final judgment, unless the petitioner
alleges facts showing that the delay was not due to his
culpable negligence." Ill.Rev.Stat. ch. 38, ¶ 122-1 (1989).
Thus, a state court might still consider Petitioner's claims if
it is convinced that his failure to timely raise those claims
was through some cause other than his culpable negligence.
Unfortunately, however, the possibility of Petitioner
succeeding with such an argument is exceedingly low; as noted
by an Illinois Supreme Court Justice, it is not possible "to
find even one appellate or supreme court case in which a
post-conviction petition was allowed based on a showing that
the delay was not due to . . . culpable negligence."
People v. Bates, 124 Ill.2d 81, 124 Ill.Dec. 407, 411,
529 N.E.2d 227, 231 (1988) (Clark, J., dissenting). Culpable
negligence, for instance, has been attributed to a pro se
litigant who was indigent, unaware of the law, and who had only
grade education, People v. Diefenbaugh, 40 Ill.2d 73,
237 N.E.2d 512 (1968), and it has likewise been attributed to a
petitioner who showed that the delay was due, at least in part,
to his own mental illness. People v. Montgomery, 45 Ill.2d 94,
256 N.E.2d 802 (1970). See also People v. Harrison, 32 Ill. App.3d 641,
336 N.E.2d 143 (1st Dist.1975). Although we are not
aware of the grounds Petitioner might raise to show a lack of
culpable negligence in failing to timely seek post-conviction
relief, we might surmise from his petition in our court that it
would approximate the scenarios of Diefenbaugh and
Hence, were we to dismiss this petition for failure to
exhaust state court remedies, we are confident our "mate" of
the case into the state court would elicit a rapid "checkmate"
right back to us. Dismissal in these circumstances would be
improper. See United States ex rel. Branion v. Gramly,
664 F. Supp. 1149 (N.D.Ill.1987), aff'd, 855 F.2d 1256 (7th
Cir.1988), cert. denied, ___ U.S. ___, 109 S.Ct. 1645, 104
L.Ed.2d 160 (1989) (denying dismissal of petition on exhaustion
of state remedies grounds where petitioner's own action of
escaping custody had resulted in the delay in timely seeking
post-conviction relief); compare United States v. Ragen,
244 F.2d 420 (7th Cir.), cert. denied, 355 U.S. 846, 78 S.Ct. 71, 2
L.Ed.2d 55 (1957), and United States ex rel. Milone v. Camp,
643 F. Supp. 679 (N.D.Ill.1986) (holding that dismissal on
exhaustion of state remedies grounds is appropriate where the
state court may find the delay in seeking post-conviction
relief not to have been caused by culpable neglect).
The Supreme Court, in fact, has recently underscored this
consideration. In Harris v. Reed, ___ U.S. ___, 109 S.Ct. 1038,
103 L.Ed.2d 308 (1989), the Court applied the rule of Michigan
v. Long, 463 U.S. 1032, 1042, 103 S.Ct. 3469, 3477, 77 L.Ed.2d
1201 (1983), which forecloses federal consideration of state
court decisions only where the state court's opinion contains a
"plain statement that [its] decision rests upon adequate
independent state grounds," to federal habeas dismissals due to
state court procedural defaults. The Court cautioned, however,
[t]his rule necessarily applies only when a state
court has been presented with the federal claim,
as will usually be true given the requirement
that a federal claimant exhaust state court
remedies before raising the claim in a federal
habeas petition. Of course, a federal habeas
court need not require that a federal claim be
presented to a state court if it is clear that
the state court would hold the claim procedurally
Harris, 109 S.Ct. at 1043, n. 9.