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October 27, 1994

LINDA DILLON, Respondent.

The opinion of the court was delivered by: BRIAN BARNETT DUFF

 On September 2, 1993, Petitioner Alfred Brown filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("§ 2254"), seeking relief from his conviction in the Circuit Court of Cook County, Illinois. He claims four grounds for relief: (1) that he received ineffective assistance of counsel; (2) that he was mentally incapacitated at the time he pled; (3) that he did not receive a speedy trial; and (4) that he was arrested illegally. *fn1" For the reasons discussed below, we deny the Petitioner's writ.

 I. Background

 On September 10, 1990, the Petitioner went on trial, charged with two counts of first degree murder and one count each of aggravated arson and arson. On September 13, in the middle of his trial, the Petitioner pled guilty to the charges. On October 17, the court sentenced him to natural life in prison. The Petitioner filed a timely appeal of his conviction and alleged that his plea was involuntary because he made it unknowingly. Specifically, he alleged that he failed to take his medication for one day, which caused "high blood pressure, blurry vision and a desire to 'charge energy level.'" People v. Brown, 239 Ill. App. 3d 1077, 1079, 608 N.E.2d 67, 180 Ill. Dec. 945 (1st Dist. 1992). On December 4, 1992, the appellate court denied the appeal. Id. at 1087. The Petitioner neither appealed that decision to the Illinois Supreme Court nor attempted to raise any other ground for relief within the state judiciary. He is now in the custody of Linda Dillon, Warden of the Menard Psychiatric Center in Menard, Illinois.

 II. Law

 Before seeking relief in federal court, a § 2254 petitioner must comply with various procedural requirements, one of which is to exhaust his state level remedies. This requirement has given rise to the so-called exhaustion doctrine. "The principle of comity . . . underlies the . . . doctrine," Murray v. Carrier, 477 U.S. 478, 489, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1985); it ensures that the state courts have a "meaningful opportunity to evaluate" the petitioner's constitutional claims. U.S. ex rel. Spurlark v. Wolff, 699 F.2d 354, 361 (7th Cir. 1983). Otherwise, "for a federal district court to examine [the] claim[s] [would] undermine[] the relationship between state and federal courts and only serve[] to relegate state courts to the status of second class citizens in the task of protecting constitutional rights." Id.

 If a petitioner fails to satisfy the exhaustion doctrine, he commits procedural default and waives his right to collateral review. "[A] state prisoner waives habeas review of a claim not only by failing to present it to the lower appellate court on direct appeal but also by failing to seek leave to present it to the highest court, having taken a direct appeal." Nutall v. Greer, 764 F.2d 462, 465 (7th Cir. 1985); see Spurlark, 699 F.2d at 361.

 There are, however, three exceptions to the rule that a petitioner who fails to satisfy the exhaustion doctrine commits procedural default. First, a petitioner can show "'cause' for the default plus actual 'prejudice' resulting from it." Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir.), reh'g denied, 1990 U.S. App. LEXIS 13708 (7th Cir. Aug. 9, 1990), and cert. denied, 498 U.S. 1035, 112 L. Ed. 2d 688, 111 S. Ct. 698 (1991) (quoting Wainwright v. Sykes, 433 U.S. 72, 90-1, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977)). "The Wainwright 'cause and prejudice' test is conjunctive: a petitioner's inability to demonstrate either prong results in dismissal of his habeas petition before the merits of his claims can be reached." Buelow v. Dickey, 847 F.2d 420, 425 (7th Cir. 1988), cert. denied, 489 U.S. 1032, 109 S. Ct. 1168, 103 L. Ed. 2d 227 (1989). Second, a petitioner can "treat[] counsel's failure to raise [his claim] properly as an independent Sixth Amendment violation under Strickland." Rodriguez, 906 F.2d at 1159; see Strickland v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The first two exceptions "overlap since deficient performance under Strickland constitutes cause for default, [citation omitted], and for many [petitioners] they tend to converge, because categories of [Wainwright] 'cause' apart from Strickland ineffectiveness are narrow instances and are rare." *fn2" Id. Third, a petitioner can "'demonstrate that failure to consider [his] claims will result in a fundamental miscarriage of justice.'" McGuire v. Farley, 1994 U.S. App. LEXIS 9183, *4 (7th Cir. April 27, 1994) (quoting Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640 (1991)). "In an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for procedural default." Murray, 477 U.S. at 496.

 The Murray Court limited the scope of the "cause and prejudice" and ineffective assistance of counsel exceptions. The Court "[thought] that the exhaustion doctrine . . . generally requires that a claim of ineffective assistance [of counsel] be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." 477 U.S. at 488-9; see Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990). The Court reasoned that "if a petitioner could raise his ineffective assistance claim for the first time on federal habeas in order to show cause for procedural default, the federal habeas court would find itself in the anomalous position of adjudicating an unexhausted constitutional claim for which state court review might still be available." 477 U.S. at 489.

 The Murray Court's limitation is specifically applicable in Illinois because "ineffective assistance of appellate counsel is a claim which is cognizable under the Illinois Post-Conviction Hearing Act ("Act")," 725 ILCS 5/122-1. U.S. ex rel. Landgham v. Welborn, 1992 U.S. Dist. LEXIS 18166, *10 (N.D. Ill. November 25, 1992). In relevant part, the Act provides: "Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was substantial denial of rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this article."

 The Seventh Circuit, however, created a loophole in the Murray Court's limitation. In Harris v. DeRobertis, 932 F.2d 619 (7th Cir. 1991), the court "held that a habeas claim will not be dismissed for failure to exhaust state remedies if a post-conviction petition would be untimely under [the Act] unless Illinois precedent indicates that petitioner could demonstrate lack of culpable negligence under § 122-1." Id. at 624, see Landgham, 1992 U.S. Dist. LEXIS 18166, *11-2. In relevant part, the Act provides:

No proceedings . . . shall be commenced more than 6 months after the denial of a petition for leave to appeal or the date for filing such a petition if none is filed . . . or 3 years from the date of conviction, whichever is later, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.

 725 ILCS 5/122-1. "The determination of freedom from culpable negligence is a question for the state courts to decide." U.S. ex rel. Stevens v. Ragen, 244 F.2d 420, 423 (7th Cir.), cert. denied, 355 U.S. 846, 2 L. Ed. 2d 55, 78 S. Ct. 71 (1957).

 III. ...

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