from raising claims in state court. Because petitioner has not shown cause for his defaults, the court need not address whether he was prejudiced by any defaults.
Moreover, this is not the type of "extraordinary case" where a fundamental "miscarriage of justice" has resulted in an unjust incarceration. See Carrier, 477 U.S. at 495-96, 106 S. Ct. at 2649. Petitioner has not shown that a constitutional violation probably has resulted in the conviction of an innocent person, see id., nor could he. The evidence at trial, as reflected in the appellate court's opinion, see Coleman, 203 Ill. App. 3d 83 at 86 at 86-93, 560 N.E.2d 991 at 994 at 994-998, 148 Ill. Dec. 394, was more than sufficient to support petitioner's conviction. Thus, no miscarriage of justice occurred in this case that would excuse petitioner's procedural defaults.
Accordingly, the court finds that petitioner has procedurally defaulted, without exception, his claims that the Illinois Appellate Court denied him due process and equal protection when it held that the trial court was not required to instruct the jury on mental state; that he was denied his right to effective assistance of counsel due to a conflict of interest between him and his trial counsel; and that he was denied equal protection of law when he was improperly given an extended sentence. The court will not consider the merits of these claims.
However, the court will address, on its merits, petitioner's claim regarding the trial court's failure to hold a hearing to determine whether to appoint substitute trial counsel and failure to grant a continuance, since this is petitioner's one claim that is not a casualty of procedural default.
D. Trial court's failure to hold hearing on substitute counsel and to grant a continuance
Petitioner claims that the trial court erred in failing to hold a hearing on whether to appoint substitute counsel after petitioner's counsel, Foley, requested to withdraw as his counsel, and in failing to allow a continuance to allow Foley's supervisor and new co-counsel, Ptacek, to prepare for trial. Petitioner does not present this claim in terms of a violation of the Constitution, laws, or treaties of the United States, which he must do for habeas relief. See 28 U.S.C. § 2241(c)(3); Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480, 116 L. Ed. 2d 385 (1991). However, it appears that the crux of his claim is that the trial court allowed a conflict between petitioner and his counsel to go unremedied and refused to allow new counsel to become acquainted with the case before trial, and thus prevented petitioner from receiving effective assistance of counsel at trial. Thus, the court will give petitioner the benefit of the doubt and read his claim as alleging a violation of his Sixth Amendment right to counsel.
A petitioner raising the claim of ineffective assistance of counsel must show that counsel's performance was so deficient that counsel "was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). The petitioner also must show that counsel's performance prejudiced the defense; that is, but for counsel's performance, the result of the proceeding probably would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Based on the facts before this court, the court finds that the trial court's rulings on substitution of counsel and a continuance did not deprive petitioner of the counsel guaranteed by the Sixth Amendment or prejudice the defense of petitioner's case.
Conflicts between a client and his attorney "justify substitution of appointed counsel only when 'counsel and defendant are so at odds as to prevent presentation of an adequate defense.'" Bae v. Peters, 950 F.2d 469, 477 (7th Cir. 1991) (quoting United States v. Morrison, 946 F.2d 484, 498 (7th Cir. 1991), cert. denied, Anderson v. United States, 506 U.S. 1039, 121 L. Ed. 2d 696, 113 S. Ct. 826 (1992) (quotation omitted)). Moreover, even if the trial court errs in denying a motion to substitute counsel based on conflict between attorney and client, the error is harmless unless the attorney's performance after the motion was denied was constitutionally ineffective. See Bae, 946 F.2d at 477.
Petitioner has not contended or provided any facts to support that his trial counsel failed to provide an adequate defense. To the contrary, the appellate court's description of petitioner's trial and of the performance of petitioner's trial counsel shows that petitioner received a more than adequate defense. On October 2, 1987, the day petitioner's trial was set to begin after five continuances, Ptacek advised the court that Foley wanted to withdraw from the case because of a "personality clash with petitioner." Coleman, 203 Ill. App. 3d at 98, 560 N.E.2d at 1002. Ptacek asked to be allowed to take over the defense; he stated that though petitioner had "some reservations" about Foley's representation, petitioner did not object to Ptacek's representation. Id. Ptacek also requested a continuance to become familiar with the case. Id. The trial court denied Foley's request to withdraw, allowed Ptacek to act as additional counsel, and denied Ptacek's request for a continuance. Id. The trial court stated:
All right, this case has been set with subpoenas for the last six times, since July .... As far as I'm concerned, the State has witnesses here. ... We are going to proceed with the motion [to suppress identification].... I am sorry, but I am not going to allow a defendant, in effect, to frustrate the wheels of justice because they grind them very slowly in this case, back as far as June.
At a post-trial hearing, petitioner testified that he did not like Foley because "'they could never see eye to eye on the case at all, and she wanted to proceed in a different manner.'" Ptacek testified at the post-trial hearing that it was brought to his attention that petitioner was having problems with Foley's representation, and that he came into the trial to assist Foley. Coleman, 203 Ill. App. 3d at 95, 560 N.E.2d at 1000. Ptacek said that the relationship between petitioner and Foley was "'strained,'" and that defendant had made some threats against Foley that caused her to express concern about her representation of defendant. Id.
The appellate court noted that Foley argued the motion to suppress, presented the opening argument, and cross-examined one witness. Coleman, 203 Ill. App. 3d at 101, 560 N.E.2d at 1003. Ptacek cross-examined five of the six state witnesses, raised appropriate objections, argued jury instructions, and presented a "more than adequate" closing argument. Id. The appellate court also noted that, according to the record before it, Ptacek "appeared to be thoroughly prepared and conducted a vigorous defense with adequate skill." Coleman, 203 Ill. App. 3d at 101, 560 N.E.2d at 1004.
Based on the trial transcripts, the appellate court found that Foley and Ptacek "cross-examined the state's witnesses and argued as effectively as they could under the circumstances." Coleman, 203 Ill. App. 3d at 95, 560 N.E.2d at 1000. The appellate court characterized the case as "a relatively simple one, but a strong one for the state. Not only did two persons make positive identifications but the defendant had in his possession the evidence which overwhelmingly corroborated the identification -- the proceeds of the robbery." Id.
According to the foregoing factual account of the proceedings in the trial court, the court cannot find that any conflict that existed between Foley and petitioner was so severe as to prevent petitioner from getting an adequate defense, particularly because Ptacek, of whose representation petitioner approved, played such a prominent role in the defense. To the contrary, it appears that Foley and Ptacek presented as good of a defense as they could, under the circumstances of the case. Thus, petitioner has not shown that his trial counsel's performance was so deficient because of the alleged conflict that counsel "was not functioning as the 'counsel' guaranteed by the Sixth Amendment." See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. Further, he has not shown that trial counsel's performance prejudiced the defense. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068.
Moreover, based on the facts before it, the court cannot find that the trial court's refusal to grant a continuance constituted a violation of petitioner's constitutional rights. The trial court was in the best position to judge whether a continuance was warranted by the circumstances of the case before it. It apparently found that enough delay already had occurred in the case and that the parties were ready for trial. Most importantly, in light of the appellate court's description of Ptacek's performance at trial, it appears that petitioner was in no way prejudiced by the trial court's refusal to grant a continuance.
The court finds that the trial court's refusal to allow the substitution of counsel and to grant a continuance did not deprive petitioner of his constitutional right to effective counsel. Accordingly, the court denies petitioner's petition for a writ of habeas corpus.
E. Motions regarding Teague bar
Respondent moves for leave to interpose a defense under Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). Relying on Teague, respondent argues that petitioner should not be able to use People v. Jones, 149 Ill. 2d 288, 595 N.E.2d 1071, 172 Ill. Dec. 401 (1992), decided five years after petitioner was convicted, as a basis for his claim that he was entitled to a jury instruction on the mental state required for armed robbery. Petitioner, in turn, moves to strike respondent's motion.
Because the court has found that petitioner has procedurally defaulted his claim that he was entitled to a jury instruction on the mental state required for armed robbery, the motions regarding a Teague bar are moot. Accordingly, the court denies both motions.
For the reasons set forth above, petitioner's motion for appointment of counsel is denied; petitioner's petition for a writ of habeas corpus is denied with prejudice; and respondent's motion for leave to interpose Teague bar and petitioner's motion to strike respondent's motion to interpose Teague bar are denied as moot.
Date: NOV 27 1995
JAMES H. ALESIA
United States District Judge
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