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UNITED STATES EX REL. GILKEY v. DETELLA

March 15, 1996

UNITED STATES OF AMERICA ex. rel. CHARLES GILKEY, Petitioner,
v.
GEORGE DETELLA, Respondent.



The opinion of the court was delivered by: BUCKLO

 Petitioner Charles Gilkey was found guilty in Illinois state court of violating his order of probation and sentenced to fourteen years incarceration with the Illinois Department of Corrections. Mr. Gilkey petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that his waiver of counsel in connection with the revocation of probation hearing violated his constitutional rights. For the following reasons, the petition is denied.

 Background

 The following narration of the facts is drawn from the Illinois appellate court's recitation in People v. Gilkey, 263 Ill. App. 3d 706, 635 N.E.2d 712, 712-714, 200 Ill. Dec. 373 (1st Dist. 1994), reh'g denied (June 29, 1994), and appeal denied, 157 Ill. 2d 511, 642 N.E.2d 1291, 205 Ill. Dec. 174 (1994). See Lewis v. Huch, 964 F.2d 670, 671 (7th Cir. 1992). *fn1"

 When Mr. Gilkey appeared in court on September 20, 1991 on the violation of probation charge, he requested leave to waive counsel and represent himself in the action. The court engaged Mr. Gilkey in a colloquy, discussing the nature of the charges, the possible penalties and his right to appointed counsel. Even after the court admonished Mr. Gilkey, he stood firm in his resolve to proceed without an attorney. The court granted Mr. Gilkey's request to waive counsel, at the same time appointing standby counsel to be available during the proceedings. Standby counsel was present and participated in the sentencing hearing in which the court concluded that Mr. Gilkey violated his probation. Standby counsel was not, however, present at the hearing in which the court found the violation.

 On December 12, 1991, over Mr. Gilkey's objection, the State requested and was granted leave to file a supplemental petition for violation of probation. This petition added the December 19, 1990, burglary as a grounds for violation of probation, and the State elected to proceed in the action based on that allegation. In permitting the State to file the supplemental petition, the court noted that the burglary charge was pending in a case before Judge Mannion, and Mr. Gilkey had answered ready for trial in that case. As a result, the court thought it reasonable that the State base the violation of probation charge on the burglary offense. The court granted a continuance for Mr. Gilkey to prepare to defend against the allegation contained in the supplemental petition.

 In a hearing on January 21, 1992, Mr. Gilkey was found to have violated his probation by committing the burglary alleged in the supplemental petition. On March 9, 1992, Mr. Gilkey's probation was revoked, and he was sentenced to fourteen years imprisonment.

 Mr. Gilkey appealed his conviction and sentence to the Illinois appellate court claiming that his waiver of his right to counsel was invalid because the State filed the supplemental petition adding the new allegation which it used to prove Mr. Gilkey's violation of probation after he had already decided to proceed pro se. People v. Gilkey, supra, 635 N.E.2d at 712, 714. The appellate court disagreed and found that Mr. Gilkey knowingly and intelligently waived his right to counsel. Id. at 714-716. Mr. Gilkey sought rehearing in the Illinois appellate court as well as leave to appeal the appellate court's decision to the Illinois Supreme Court. Both requests were denied. People v. Gilkey, supra, 635 N.E.2d 712, reh'g denied (June 29, 1994), and appeal denied, 157 Ill. 2d 511, 642 N.E.2d 1291, 205 Ill. Dec. 174 (1994).

 While his appeal to the Illinois appellate court was pending, Mr. Gilkey filed a petition for post-conviction relief in the Circuit Court of Cook County alleging, in part, that his rights under the Sixth and Fourteenth Amendments were violated in connection with the revocation of probation proceedings. This petition was dismissed on April 28, 1993, and Mr. Gilkey did not appeal that decision. *fn2" Mr. Gilkey then filed the instant petition for a writ of habeas corpus alleging that he was deprived of the right to counsel as guaranteed by the Sixth and Fourteenth Amendments in that his waiver of counsel was not knowing and intelligent since it occurred before the filing of the supplemental petition on December 12, 1991. Mr. Gilkey has presented this claim to the highest state court for a ruling on the merits, and therefore, as the parties agree, exhausted the available state remedies. See Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), cert. denied sub nom Farrell v. McGinnis, 502 U.S. 944, 116 L. Ed. 2d 337, 112 S. Ct. 387 (1991). Thus, Mr. Gilkey's petition for a writ of habeas corpus is properly before this court under 28 U.S.C. § 2254. See id.

 Whether Mr. Gilkey Had a Right to Counsel

 Mr. Gilkey essentially argues that his waiver of counsel was invalidated by the state's subsequent filing of the supplemental petition including the burglary allegation on which the state relied to prove that Mr. Gilkey violated his probation. Mr. Gilkey may not challenge the adequacy of his waiver unless he had an underlying right to counsel at the probation revocation hearing. In discussing a hearing to revoke parole (a proceeding analogous to a probation revocation hearing), the Supreme Court recognized that

 
revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions.

 Morrissey v. Brewer, 408 U.S. 471, 480, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Still, "the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a 'grievous loss' on the parolee and often on others." Id. at 482. Therefore, although a probation revocation hearing is not part of a criminal prosecution, the fact that it results in a loss of liberty requires that the defendant receive certain due process protections. Gagnon v. ...


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