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UNITED STATES EX REL. MAUST v. O'GRADY

March 28, 1991

UNITED STATES ex rel. DAVID EDWARD MAUST, Petitioner,
v.
JAMES O'GRADY and SPENCER LEAK, Respondents


Paul E. Plunkett, United States District Judge.


The opinion of the court was delivered by: PLUNKETT

PAUL E. PLUNKETT, UNITED STATES DISTRICT JUDGE

 This matter is before this court on the parties' cross-motions for summary judgment on David Edward Maust's ("Maust") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Maust, a state pre-trial detainee, alleges that excessive delay in bringing him to trial has violated his sixth amendment right to a speedy trial, that he has been denied effective assistance of counsel in violation of his sixth amendment rights, and that the state of Illinois and the county public defender conspired to deprive him of his constitutional rights. For the following reasons, we grant the State's motion for summary judgment and we deny Maust's motion because we find that the petition is barred by procedural default.

 Background

 The length of this tale serves in large part to illustrate Maust's problem. To the extent that this case hinges on the timing of the pre-trial motions and appeal in the Illinois state court, the facts are essentially uncontested.

 On June 18, 1982, the State of Illinois indicted Maust on two counts of murder and concealment of a homicide. (Indictment #82 C 4711). However, because Maust had been in custody of the state of Texas since May 28, 1982, he remained there pending resolution of the Texas charges. The Texas proceedings were concluded on August 16, 1983, and pursuant to the Illinois Interstate Detainer Act, Ill. Rev. Stat. ch. 38, § 1003-8-9, Maust requested that he be brought to Illinois where, under the Act, he should have been tried within 180 days of his request for a final disposition. He did not reach Illinois until December 21, 1983, however, and from that date to this he has remained in custody without benefit of a trial.

 When he reached Illinois, a public defender was appointed. From December 21, 1983, until February 8, 1985, when the defendant moved that the court order a psychiatric examination of Maust, there were sixteen continuances -- eight by agreed motion and eight on the defendant's motions. There is no indication that Maust ever spoke up in protest despite a number of court appearances. From February 8, 1985, until June 24, 1987, when Maust was declared fit to stand trial, there were numerous agreed and court-imposed continuances while Maust was evaluated and reevaluated to determine his fitness for trial. *fn1"

 On February 11, 1985, the defendant filed motions to suppress statements and quash arrest. On May 9, 1985, the court denied the motions. On May 31, 1985, the defendant filed a supplementary motion to suppress, and after protracted hearings, the motion was denied on October 22, 1986. On December 21, 1987, Assistant Public Defender Lee Carson entered an appearance for Maust and moved for reconsideration of the October 1986 denial of the motions. On May 17, 1988, the court sustained the motion to reconsider.

 During these many years, the matter has been transferred to various judges and then reassigned on several occasions. Maust was represented by two different appointed counsel; on appeal, the case was handled by at least four different public defenders.

 The upshot of this sorry history is that Maust has remained in detention pending trial for over seven years. He filed a pro se petition for a writ of habeas corpus with this court on March 1, 1990, alleging that his right to a speedy trial and right to effective assistance of counsel have been violated. He also alleged that the state conspired with the public defender to deny him his rights. Following this filing, the parties moved with considerable dispatch. On April 27, 1990, the State filed a motion to dismiss the petition, which was denied on May 31, 1990. On June 12, 1990, the State filed its answer asserting affirmative defenses of failure to exhaust state remedies, lawful state court orders, good faith, and qualified immunity. On September 18, 1990, the State moved for summary judgment, and on November 7, 1990, Maust filed his cross motion for summary judgment.

 Analysis

 For defendants to prevail on a summary judgment motion, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, [must] show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). At this stage, we do not weigh evidence or determine the truth of asserted matters. We simply determine whether there is a genuine issue for trial, i.e., "whether a proper jury question was presented." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). If the nonmoving party bears "the burden of proof at trial on a dispositive issue, [however] . . . the nonmoving party [is required] to go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, ...


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