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VEAL v. COOPER

August 26, 1996

JOHNNIE VEAL, Petitioner,
v.
KEITH COOPER, Respondent.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 I. Background

 We assume familiarity with the three prior published decisions dealing with Veal's first habeas petition, *fn1" and thus briefly explain only those facts pertinent to the instant petition. In 1971, Veal was convicted of murdering two Chicago police officers who were shot on July 17, 1970 at the Cabrini-Green public housing project. After the convictions were affirmed by the Illinois Appellate Court, Veal unsuccessfully petitioned to the Illinois Supreme Court for leave to appeal.

 In 1980, Veal filed his first federal habeas petition. We granted habeas relief because the state trial court had refused to permit the petitioner's alibi witnesses to testify, a violation of the Sixth and Fourteenth Amendments. Veal I, 529 F. Supp. at 720, 722-23. The Court of Appeals agreed that the state court's preclusion of alibi witnesses violated due process. Veal, 693 F.2d at 647. The Seventh Circuit, however, reversed the grant of the writ because Veal procedurally defaulted the preclusion by failing to make an adequate offer of proof regarding the witnesses. Id. at 647-50. The Court of Appeals remanded for an evidentiary hearing to determine whether the petitioner could show "cause" for the default and "prejudice" resulting from the state court error. Id. at 650.

 On remand, we referred the evidentiary hearing to a magistrate judge for a report and recommendation. The magistrate judge found that Veal had failed to show cause for the procedural default. Resp.'s Answer, Ex. G (Magistrate Opinion). We adopted the recommendations after a de novo determination of Veal's objections, and rejected the petitioner's other arguments in support of habeas relief. In 1985, the Seventh Circuit affirmed in an unpublished order. Resp.'s Answer, Ex. H.

 In 1992, Veal filed a second habeas petition. The petitioner maintained that, because he had been denied annual parole board hearings prior to 1992, the board would be prejudiced against him in all future parole hearings. Petition, Docket Entry 1 (No. 92 C 7934) (Dec. 15, 1992) (attached as Resp.'s Answer, Ex. J). After a review of the second petition, we dismissed it pursuant to Rule 4 of the Rules Governing § 2254 Cases because Veal's conclusory allegations were entirely speculative. Minute Order, Docket Entry 6 (No. 92 C 7934) (Dec. 15, 1992) (attached as Resp.'s Answer, Ex. K). Veal never appealed.

 In December 1995, Veal filed the instant petition. In the petition, Veal argues that his trial counsel "failed to subpoena and secure several alibi witnesses on behalf of the defendant," thus rendering ineffective assistance of counsel. Pet. at 6, 12. Additionally, the petitioner relies on his ineffectiveness of trial counsel argument to contend that he received ineffective assistance of appellate counsel because trial counsel's ineffectiveness was not raised on appeal. *fn2" Id. at 6-7, 12. The State raises a number of arguments in support of denying the petition, but we discuss only two grounds that justify the petition's denial.

 II. Discussion

 A. Rule 9(a) Delay

 First, the State proffers several reasons why we need not address the merits of the ineffective assistance of trial counsel claim. We agree with one--that the petitioner's delay in bringing the petition has prejudiced the State's ability to respond--and thus need not resolve the other arguments. *fn3"

 Specifically, Rule 9(a) of the Rules Governing § 2254 Cases provides:

 
(a) Delayed petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of ...

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