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UNITED STATES EX REL. CRIST v. DOLAN

November 13, 1997

UNITED STATES OF AMERICA ex rel. GILBERT CRIST, Petitioner,
v.
BARBARA J. DOLAN, Respondent.



The opinion of the court was delivered by: SHADUR

 Gilbert Crist ("Crist") initiated these 28 U.S.C. ยง 2254 *fn1" ("Section 2254") habeas proceedings on his own, tendering a pro se Petition on the form provided by this District Court's Clerk's Office for that purpose. This Court then appointed Gerardo Gutierrez ("Gutierrez") to act as Crist's counsel on a pro bono basis, and Gutierrez has fulfilled that responsibility admirably. On December 24, 1996 Gutierrez filed an Amended Petition, which Crist has confirmed should supersede his earlier pro se efforts and should stand as his sole basis for relief, *fn2" and throughout the proceedings Gutierrez has dealt properly with each aspect of the case calling for lawyer input. Despite Gutierrez' best efforts, however, the Amended Petition must be and is denied and this action is dismissed.

 Procedural Background

 On January 6, 1994 Crist was convicted of attempted armed robbery following a bench trial in the Circuit Court of Cook County. As a Class X offender, Crist was sentenced to a 22-year prison term.

 On May 18, 1994 Crist filed his first pro se federal habeas petition (in Case No. 94 C 2982). Because that initial petition disclosed on its face that Crist had a direct appeal of his conviction pending at that time, this Court promptly (on May 24, 1994) dismissed that first petition without prejudice because of Crist's failure to have exhausted all available state remedies.

 On December 19, 1994 (with his direct appeal still pending), Crist filed in the Circuit Court of Cook County a pro se petition for post-conviction relief, the remedy provided by 725 ILCS 5/122-1. Because that Post-Conviction Hearing Act is the vehicle that the State of Illinois has provided for the express purpose of advancing claims of deprivation of federal constitutional rights (and in that sense the Post-Conviction Hearing Act is the state counterpart of Section 2254), and because a petitioner who invokes that remedy on his or her own is not inhibited in advancing whatever constitutional claims he or she may have by any asserted inadequacies of the petitioner's prior counsel (either of his or her trial counsel or, as Crist has since argued, of the appointed appellate counsel whose sharing of public defender status with his trial counsel created a conflict of interest that would discourage an attack on the trial counsel's inadequacy), it is important to this opinion's later analysis to identify the specific issues that Crist himself raised in his self-prepared post-conviction petition:

 
1. Crist there urged that there had been no probable cause to support his arrest.
 
3. Although Crist also complained there (as he now seeks to do once again) that he had been denied the effective assistance of counsel, in light of the legal doctrine of forfeiture discussed later in this opinion it must be noted that the only deficiencies in counsel's representation that Crist then claimed had to do with the assertions that his public defender trial counsel (who had replaced an earlier-appointed lawyer shortly before trial) had failed to comply with two requests by Crist:
 
(a) to file a motion to quash the arrest and
 
(b) to bring out, in challenging the various witnesses' identification of Crist, the changes in his appearance between the time of the robbery and the time of trial.
 
4. Finally, Crist argued there that the indictment's and the trial judge's failure to notify him of his vulnerability to Class X treatment because of his prior criminal record (a factor that subjected him to a far more severe sentence in the event of his conviction) denied him information that could have led him to seek a plea bargain rather than go to trial.

 In the interest of greater continuity, this account of events will follow Crist's pursuit of his post-conviction remedy to its ultimate conclusion rather than adhering to a strictly chronological sequence covering his direct appeal as well. In that regard the Circuit Court swiftly rejected Crist's post-conviction petition as "frivolous and without merit" in a January 3, 1995 oral ruling. Then, although Crist had no federal constitutional right to counsel for such post-conviction relief, the Cook County Public Defender's Appellate Division was appointed to represent him in his appeal from that dismissal. After the appointed counsel had considered Crist's petition, in June 1995 he filed a motion to withdraw under Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987) on the basis that the absence of any arguably constitutional deprivation meant the absence of any appealable issue under the Post-Conviction Hearing Act. *fn3" On August 24, 1995 the Illinois Appellate Court issued an unpublished order reciting that sequence and then stating:

 
We have carefully reviewed the record in this case and the aforesaid brief in compliance with the mandate of Pennsylvania v. Finley and find no issues of arguable merit. Therefore, the motion of the public defender for leave to withdraw as ...

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