petition on the grounds of exhaustion, then voluntarily dismissing a futile post-conviction proceeding does not doom a federal habeas petition on the grounds of waiver. At this stage, however, the court is unprepared to rule that that inference is in fact the law.
As a formal matter, it appears that King has waived his argument by voluntarily dismissing with prejudice his Post-Conviction proceeding. See Ill.Rev.Stat. ch. 38, P 122-1 (1989). If so, King would have to show cause and prejudice sufficient to excuse the default. See Zellers v. Duckworth, 763 F.2d 250, 252-53 (7th Cir. 1985) (habeas petitioner must show "cause and prejudice" for failure to appeal an adverse ruling of a trial court in a state post-conviction proceeding). As mentioned, King contends that his voluntary dismissal of the Post-Conviction proceeding was excused on the grounds of futility.
The Supreme Court, however, in Engle v. Isaac, 456 U.S. 107, 71 L. Ed. 2d 783 , 102 S. Ct. 1558 (1982), ruled that futility does not constitute "cause" for a failure to make a contemporaneous objection to an erroneous jury instruction, as required by state law. In Engle, the habeas petitioners argued that at the time of their trials, any objection to Ohio's then-existing self-defense pattern jury instruction would have been futile. The Supreme Court wrote:
We note at the outset that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial. If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.
Id. at 130.
Had King not brought a Post-Conviction proceeding in the first place, he may not have been dismissed for non-exhaustion if the Illinois Post-Conviction remedy would have been "futile." Having brought a Post-Conviction petition, however, his voluntary dismissal may have created a default that was not excused on the grounds of futility. Such a result would be anomalous and unfair. It is especially disturbing because it appears that under Falconer, the jury instructions in this case violated due process.
The parties have not addressed specifically the issue of whether Mr. King's voluntary dismissal with prejudice of his Illinois Post-Conviction proceeding constitutes procedural default. The court has done a good deal of independent research on the point, as reflected in the foregoing discussion. Before ruling on this specific issue, the court feels that additional briefs from the parties would be helpful.
The court will set a briefing schedule on the specific question of whether Mr. King's voluntary dismissal of his Illinois Post-Conviction proceeding constitutes procedural default. So that the record in this case will be kept clear, the court requests that the Respondent style its first brief as "Respondent's Supplemental Memorandum in Support of Respondent's Motion to Dismiss for Procedural Default," that Petitioner style its response brief as "Petitioner's Supplemental Response to Respondent's Motion to Dismiss for Procedural Default" and that Respondent style it reply brief as "Respondent's Supplemental Reply in Support of its motion to Dismiss for Procedural Default."
Upon receiving those briefs, the court will move on to consider all the remaining issues in this petition.
The court will enter a briefing schedule on the issue of whether Petitioner's voluntary dismissal of his Illinois Post-Conviction petition constituted procedural default.
BRIAN BARNETT DUFF, JUDGE
UNITED STATES DISTRICT COURT
DATE: JUN 05 1992