for the first time in a discretionary appeal to the state's highest court, where the court declines to hear the case, does not constitute "fair presentation" for exhaustion purposes.
Of course, the exhaustion requirement will be excused under circumstances rendering the available state processes futile or ineffective. See Castille, 489 U.S. at 351, 109 S. Ct. at 1060 ("the requisite exhaustion may nonetheless exist . . . if it is clear that respondent's claims are now procedurally barred under [state] law"); See also Gray v. Greer, 707 F.2d 965, 967 (7th Cir. 1983); Perry v. Fairman, 702 F.2d 119, 130-31 (7th Cir. 1983). In Gray, the Seventh Circuit held that the Illinois post-conviction statute is an ineffective remedy "in circumstances where the Illinois courts strictly apply the doctrine of res judicata or waiver in post-conviction motions." Gray, 707 F.2d at 967. Accordingly, "[a] petitioner need not pursue a petition for post-conviction relief in order to exhaust a constitutional claim where there is not direct precedent indicating that the Illinois courts will relax the waiver rule." Id. at 968.
The Seventh Circuit in United States ex rel. Clauser v. Shadid, 677 F.2d 591 (7th Cir. 1982), confronted circumstances virtually identical to those at hand -- i.e., the petitioner raised the issue of ineffective assistance of appellate counsel without first presenting the issue to the Illinois courts in a post-conviction proceeding. Finding direct precedent indicating that the Illinois courts would relax its waiver rule, allowing claims of ineffective assistance of counsel in the petitioner's first petition for post-conviction relief, the Seventh Circuit held that the petitioner failed to exhaust his state remedies. Id. at 594 (citing People v. Frank, 48 Ill. 2d 500, 272 N.E.2d 25 (1971); People v. Edgeworth, 30 Ill. App. 3d 289, 332 N.E.2d 716 (1975); People v. Rooney, 16 Ill. App. 3d 901, 307 N.E.2d 216, cert. denied, 419 U.S. 1025, 95 S. Ct. 503, 42 L. Ed. 2d 300 (1974)).
Accordingly, as Avila has not "fairly presented" his claim of ineffective assistance of appellate counsel to the Illinois Supreme Court and there is direct precedent indicating the claim is cognizable in a state post-conviction proceeding, we dismiss Avila's petition without prejudice for failure to exhaust state remedies.
Avila's petition for writ of habeas corpus is dismissed without prejudice for failure to exhaust available state-court remedies. It is so ordered.
MARVIN E. ASPEN
United States District Judge
Dated March 26, 1992
[EDITOR'S NOTE: The following court provided text does not appear at this cite in 791 F. Supp. 197]
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED
that as Avila has not "fairly presented" his claim of ineffective assistance of appellate counsel to the Illinois Supreme Court and there is direct precedent indicating the claim is cognizable in a state post-conviction proceeding, we dismiss Avila's petition, without prejudice for failure to exhaust state remedies. Accordingly, we grant respondents' motion to dismiss without prejudice.
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