Appeal from the Circuit Court of Cook County. No. HC 50233. Honorable William S. Wood, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Plaintiff Jeffrey Alexander appeals from an order of the circuit court dismissing his habeas corpus petition. Plaintiff's appointed counsel on appeal, the State Appellate Defender (SAD), contends that (1) this court should allow the SAD to withdraw as counsel and dismiss this appeal because the SAD is not authorized to represent a petitioner appealing the dismissal of his habeas corpus petition; and (2) in the interest of judicial economy, this court should dismiss the appeal because the substantive issue raised by plaintiff's appeal has been resolved by this court in another appeal by plaintiff. The State concurs that the SAD should be allowed to withdraw as counsel.
 Following a jury trial, plaintiff was convicted of two counts of armed robbery and sentenced to concurrent extended prison terms of 55 years. On direct appeal, this court affirmed one conviction and sentence and vacated the other conviction. People v. Alexander, No. 1-91-1395 (1993) (unpublished order under Supreme Court Rule 23).
Plaintiff filed a pro se post-conviction petition, and this court affirmed the dismissal of the petition pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L.Ed. 2d 539, 107 S.Ct. 1990 (1987). People v. Alexander, No. 1-97-0316 (1997) (unpublished order under Supreme Court Rule 23). Plaintiff's second pro se post-conviction petition, alleging that his 55-year extended-term sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed. 2d 435, 120 S.Ct. 2348 (2000), was summarily dismissed. This court affirmed, finding that, under Finley, there were no arguable bases for collateral relief, and specifically that the supreme court has decided that Apprendi does not apply retroactively to cases on collateral review. People v. Alexander, No. 1-03-0016 (2004)(unpublished order under Supreme Court Rule 23), citing People v. De La Paz, 204 Ill. 2d 426, 429 (2003).
In February 2002, plaintiff filed a habeas corpus petition raising a single claim: that his extended sentence was unconstitutional under Apprendi. The State moved to dismiss the petition on the grounds that Apprendi claims are not cognizable in habeas corpus proceedings and that Apprendi does not apply retroactively to cases on collateral review. The circuit court dismissed the petition on July 2, 2003.
Plaintiff timely filed a pro se notice of appeal, accompanied by a motion for the appointment of counsel. The trial court appointed the Public Defender of Cook County as plaintiff's counsel. This court allowed the Public Defender to withdraw and appointed the SAD as plaintiff's counsel. The SAD then moved to withdraw on the ground that it is not authorized to represent petitioners in appeals from civil cases such as the denial of habeas corpus petitions. This court did not decide the motion to withdraw, but directed the SAD to address in its brief the issues of whether a habeas corpus proceeding is civil or criminal and whether the SAD may be appointed to represent a petitioner appealing from the dismissal of his habeas corpus petition.
The State Appellate Defender contends that it should be allowed to withdraw as plaintiff's counsel on appeal because the SAD is not authorized by its enabling statute to represent a petitioner appealing the dismissal of his habeas corpus petition. Specifically, the SAD contends that it is limited by the State Appellate Defender Act to "represent[ing] indigent persons on appeal in criminal and delinquent minor proceedings." 725 ILCS 105/10(a) (West 2002). The SAD also contends that this appeal should be dismissed as moot because the sole substantive issue -- plaintiff's Apprendi claim -- was fully addressed in this court's recent decision in Alexander, No. 1-03-0016. The State joins in the SAD's request to withdraw and contends that this court should dismiss this appeal or affirm the judgment because collateral estoppel bars the litigation of the Apprendi issue we decided in Alexander, No. 1-03-0016.
There is no provision in the Habeas Corpus Act (735 ILCS 5/10-101 et seq. (West 2002)) for the appointment of counsel, and it is a long-established principle that there is no right to appointed counsel in a habeas corpus proceeding due to its civil nature.
"'The writ of habeas corpus is the remedy which the law gives for the enforcement of the civil right of personal liberty. *** Proceedings to enforce civil rights are civil proceedings, and proceedings for the punishment of crimes are criminal proceedings.
*** The prosecution against him is a criminal prosecution, but the writ of habeas corpus which he has obtained is not a proceeding in that prosecution. On the contrary, it is a new suit brought by him to enforce a civil right, which he claims, as against those who are holding him in custody, under the criminal process.'" People ex rel. Ross v. Ragen, 391 Ill. 419, 422-23 (1945), quoting Ex parte Tom Tong, 108 U.S. 556, 559-60, 27 L.Ed. 826, 827-28, 2 S.Ct. 871, 872 (1883).
"'This being a case involving only the enforcement of relator's civil right of personal liberty, separate and distinct from the criminal proceeding in which punishment for a crime was imposed upon him, he is not in the position of an 'accused' in a 'criminal prosecution.' The court is neither authorized nor empowered to appoint counsel to appear for him.'" People ex rel. McGuire v. Sympson, 20 Ill. App. 3d 139, 140 (1974), quoting Ragen, 391 Ill. at 423.
In Tedder v. Fairman, 92 Ill. 2d 216 (1982), the supreme court acknowledged that there was no right to appointed counsel in a prisoner's mandamus action but ruled that the trial court had the authority or discretion to appoint the public defender as counsel in such a case. Tedder, 92 Ill. 2d at 226. The relevant statute provided that "[t]he Public Defender, as directed by the court, shall act as attorney *** for all persons who are held in custody or who are charged with the commission of any criminal offense, and who the court finds are unable to employ counsel." Ill. Rev. Stat. 1979, ch. 34, par. 5604; now 55 ILCS 5/3-4006 (West 2002). Applying this statute, the court stated:
"Public defenders are expressly authorized by the statute to represent indigent persons 'held in custody.' The public defender acts as a legal representative 'as directed by the court.' *** There is no legislative mandate that a public defender be appointed to represent an indigent prisoner in a case alleging deprivation of a prisoner's civil rights in Illinois. ...