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UNITED STATES EX REL. SHEPPARD v. ROTH

January 8, 1991

UNITED STATES OF AMERICA ex rel. ARTHUR SHEPPARD, Petitioner,
v.
THOMAS ROTH, Respondent



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court are respondent (warden of Stateville prison) Thomas Roth's motion to dismiss petitioner Arthur Sheppard's habeas corpus petition, Sheppard's motion for summary judgment, and Roth's motion to strike Sheppard's summary judgment motion. For the reasons stated below, Sheppard's petition is dismissed and his summary judgment motion is stricken.

 In December 1986, after a bench trial in the Circuit Court of Cook County, Sheppard was found guilty of one count of murder and two counts of attempted murder. He was sentenced to concurrent terms of 60, 30 and 30 years, respectively. Sheppard appealed his conviction to the Appellate Court of Illinois. This direct appeal raised three issues: failure to prove guilt beyond a reasonable doubt; *fn1" the improper admission of irrelevant and prejudicial testimony; *fn2" and the ineffective assistance of trial counsel based on his trial attorney's failure to introduce into evidence the murder victim's dying identification of his assailant. *fn3" The appellate court upheld Sheppard's conviction in an order dated August 9, 1989.

 Sheppard, pro se, then petitioned for leave to appeal to the Illinois Supreme Court. This petition raised basically the same issues as Sheppard had raised on direct appeal: failure to establish reasonable doubt; improper admission of damaging testimony; and ineffective assistance of counsel. The ineffective assistance claim additionally asserted that his trial counsel did not adequately or properly present his alibi defense. Sheppard's petition to the Illinois Supreme Court was denied on January 31, 1990.

 On April 25, 1990, Sheppard filed this petition for a writ of habeas corpus, challenging his conviction on the following four grounds: that his arrest warrant was invalid; that he had never been properly indicted -- and consequently, that the trial court never had jurisdiction over him; that he was denied effective assistance of counsel because his attorney inadequately prepared and investigated his case, and engaged in conduct involving "dishonesty, deceit and misrepresentation" (Habeas Petition, p. 13); and that the police and prosecutors improperly influenced the trial court judge to deprive Sheppard of his 13th and 14th Amendment rights.

 On July 18, 1990, the respondent filed a motion to dismiss, arguing that petitioner has not exhausted his state remedies for all of the claims in his habeas petition. In this motion, the respondent argues that the ineffective assistance of counsel claim which Sheppard asserts in his habeas petition is a separate and distinct claim from the ineffective assistance issue which Sheppard raised on direct appeal of his conviction. Respondent concludes that Sheppard has not exhausted his state court remedies with respect to this claim because "petitioner is free to raise the issue under the auspices of the Illinois Post-Conviction Hearing Act.. . ." Motion to Dismiss, p. 5. *fn4" The respondent does not address any of the other three claims in the habeas petition, but instead states the rule that a federal court must dismiss a habeas petition which contains both exhausted and unexhausted claims. Id.

 On July 31, 1990, this court issued a minute order allowing Sheppard until September 14, 1990 to respond to the respondent's motion to dismiss. On August 6, 1990, Sheppard filed a pleading styled: "Petitioner's Motion for Summary Judgment." This pleading attacks the respondent's motion to dismiss, but does not present any cognizable legal arguments in support thereof. *fn5" Sheppard does not attempt to address the exhaustion of state remedies issue, and he has not filed any subsequent pleading in this case which does so. Respondent then moved to strike the motion to dismiss as premature, and asserts that this court must rule on its motion to dismiss before considering a summary judgment motion.

 This court grants respondent's motion to dismiss, but does so on grounds other than those asserted by the respondent. Initially, the court notes that respondent's motion does not address three of Sheppard's habeas claims, which Sheppard apparently did not raise at the state court level. Where claims raised in a habeas petition were never raised on direct appeal of the petitioner's conviction, the relevant doctrine is not exhaustion of state court remedies, but procedural forfeiture or "waiver" precluding habeas relief. See, e.g., Perry v. Fairman, 702 F.2d 119, 120 (7th Cir. 1983) (discussing the distinction between the exhaustion requirement for habeas corpus petitions and the waiver doctrine, both of which are based on comity considerations). In Perry, the Seventh Circuit stated:

 702 F.2d at 120. The court finds nothing in the record to indicate that Sheppard raised his invalid warrant, invalid indictment, and improper influence claims at any level of the state court proceedings. Rather, it appears that Sheppard raises these issues for the first time in this habeas petition. These three claims, therefore, are barred by the doctrine of procedural default unless Sheppard can establish grounds for reviving these defaulted claims. See, e.g., Henderson v. Thieret, 859 F.2d 492, 496 (7th Cir. 1988). *fn6"

 There are three ways in which a habeas petitioner may undo the effects of a procedural default. Rodriguez v. Young, 906 F.2d 1153, 1158-1159 (7th Cir. 1990).

 
First, a habeas petitioner can revive a defaulted claim by showing "cause" for the default plus actual "prejudice" resulting from it. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Second, a prisoner can save a defaulted claim by treating counsel's failure to raise it properly as an independent sixth amendment violation ...

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