Petition for Writ of Certiorari — Pudlo v. Sheahan

Supreme Court, U.S.

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94 337 JUL 2 019%

OFFICE OF THE CLERK

No.

In the

SUPREME COURT of the UNITED STATES

October Term 1994

UNITED STATES OF AMERICA ex. rel.

THADDEUS PUDLO, Petitioner

V.

MICHAEL SHEAHAN,

Sheriff of Cook County, Illinois, Respondent

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

Petitioner in his proper person

1651 Hubbard

Chicago, Illinois 60622

(312) 421-4862

f\ J \

2

QUESTIONS PRESENTED

1. Whether the petitioner can rely on this Court's

holdings in Camara v. Municipal foun and See v.

Seattle, 387 U.S. 523, 541, that one cannot be punished

for refusing a warrantless municipal inspection, without

running an undue risk of summary, indefinite

incarceration by the Circuit Court of Cook County,

Illinois in direct contradiction of those very decisions.

2. Whether the concern of Camara and See to restrain

the "unbridled discretion" of city inspectors in the field

must be urgently reapplied to the even more unbridled

discretion of a Housing Court judge to throw the

petitioner in Cook County jail for seeking to consult his

regular attorney before consenting to a warrantless

search, requested by the City of Chicago at an initial

hearing without prior notification.

3. Whether the petitioner can rely on this Court to

remove a “chilling effect" on the exercise in state court

of Constitutional rights under the 4th, 6th and 14th

Amendments, a chilling effect prohibited by this Court's

holdings in Dombrowski v. Pfister, 380 U.S. 481.

4. Whether the petitioner is entitled to an immediate

federal writ of habeas corpus, without exhausting state

remedies, due to his capricious, summary Incarceration

for retaining his constititional rights. Whether, in other

words, when the "key to the celi" is waiver of a

constitutional right, if that is a circumstance of such

"peculiar urgency” as to create an exception to the

general rule requiring exhaustion of state remedies.

5. Whether the petitioner can be reasonably expected

to litigate from jail constitutional issues in state court,

i.e., to exhaust state remedies, as contemplated in Rose

v. Lundy, 455 U.S. 509, cited “ the 7th Circuit

U.S.C.A. in denying his application for a certificate of

probable cause, or when the trial judge had previously

written, "the State ... could delay her efforts months, or

even years, by forcing Ms. Falconer to battle her way

through the state court system. To permit the State

ratuitously to stall Ms. Falconer’s petition would

f biepovon ie the policies underlying the habeas corpus

statute." U.S. ex.rel. Falconer v. Lane, 720 F. Supp.

631, 640

)

ll

6. Whether the petitioner can likewise rely on this

Court's holdings in Hensley v. Municipal Court of San

Jose Milpitas J.D., Cal.. 411 U.S. 349, Harris v. Nelson,

394 U.S. 286, and Brown v. Allen, 344 U.S. 443, plus

Burkett v. Cunningham, 826 F.2d 516, requiring swift,

ne ap non-technical, policy oriented disposition of

habeas corpus matters; conversely, whether two years of

gratuitous delay, expense and vexation amount to a

denial of due process and an effective but still

unconstitutional suspension of the writ of habeas corpus.

7. Whether the exhaustion doctrine can be used as a

“blunderbus” to shatter the attempt at litigation of

constitutional claims without regard to the purposes that

underlie the doctrine, contrary to Braden v, 30th Judicial

Circuit Court of Kentucky, 410 U.S. 484, 491.

8. Whether that "blunderbus” satisfies theexhaustion

requirement.

9. Whether the exhaustion requirement can be

perverted to protect disorderly court proceedings, state

and federal, if no answer is ever given to petitioner's

claim of an exception to the general rule of exhaustion.

10. Whether federal intervention rather than

abstention is required in this instance to effect the policy

changes sought by Rose v. Lundy, supra.

1f. Whether the petitioner has any adequate remedy

in Illinois courts.

12. Whether, for that matter, the petitioner has any

adequate, effective, realistically available remedy in

federal court.

13. Whether the petitioner has been subjected to an

act of judicial violence by state courts, with federal

courts to date playing Pontius Pilate and even threatening

judicial violence of their own.

14. Whether the basic, paramount duty of the federal

courts to protect the free exercise of constitutional rights

takes precedence over any policy of comity with state

courts regarding exhaustion of state remedies.

15. Whether a federal court system that only asks, to

date, "What hoops have you jumped through?” and onl

says, "You and them fight," when desperately implore

for judicial protection, is worthy of the name.

a

TABLE OF CONTENTS

Questions Presented i-ii

Table of Authorities iii

Opinions Below 1

Jurisdiction l

Constitutional and Statutory Provisions Involved l

Statement of the Case 2

Reasons for Granting the Petition 6

In General 6

Inadequate State Remedies 11

Inadequate Federal Response 13

Unnecessary and Pointless Dismissal of First Appeal 21

Exhaustion over Extended Time 22

Questions of Court Credibility 23

Conclusion 24

Appendices la-6a

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

Art. I, Sec. 9, C1 2 ii, 1, 18, 22

Fourth Amendment (via Camara and See, infra)

Sixth and Fourteenth Amendments (via Ridgway v. Baker, infra)

STATUTES

28 U.S.C. 2254 ip We te

CASES

In re Marriage of Betts, 200 Ill. App.3d 25,

558 N.E.2d 404, 7, 8

Bone v. Bone, 43 Ill. App. 3d 363, 356 N.E.2d 1348 7

Braden v. 30th Jdcl. Cir. Ct. of Kentucky, 410 U.S. 484 ii, 18

Brown v. Allen, 344 U.S. 443, 512 ii, 18

Burkett v. Cunningham, 826 F.2d 1208, 1218 ii, 9

Camara v. Municipal Court, 387 U.S. 523 Ae OF ee

Carter v. Estelle, 677 F.2d 427, 441-443 7, 16

Cook v. Florida Parole and Probation Comm, 749 F.2d 678 22

In re Corboy, 124 Ill.2d 24 13

Dombrowski v. Pfister, 380 U.S. 481, 487, 494 i, 9

Dunn v. Blumstein, 405 U.S. 339, 341 9

Ex parte Hawk, 321 U.S. 114, 117 15

|

Gibson v. Klevenhagen, 777 F.2d 1056, 1058 22

Hankins v. Fulcomer, 941 F.2d 246, 249-250 il

Harmon v. Ryan, 959 F. 2d 1457, 1462 li, 12

Harris v. Nelson, 394 U.S. 286, 292 ii, 14

Hensley v. Mun. Ct. of San Jose Mipts. J.D., Cal.,

411 U.S. 349 ii, 6, 7, 14

Johnson v. Hall, 465 F. Supp. 516, 523 9

Leonard v. Hammond, 804 F.2d 838. 842 6

Lozada v. Deeds, 111 S.Ct. 860, 861-862 5

Marino v. Ragen, 332 U.S. 561, 564 11, 12

Miller v. United States, 230 F. 2d 486, 490 Q

Oimstead v. U.S., 277 U.S. 438, 485 24

People v. Correa, 485 N.E. 2d 307, 108 Ill, 2d 541, 546 11

People v. Joseph, 495 N.E. 2d S01, 113 Ill. 2d 36, 44 11

Peopie v. Polk, 521 N.E. 2d 1158, 1170, 122 Ill. 2d 64 11

People v. Schmidt, $6 [li.2d 572 13

People v. Williams, 87 IIl.2d 161 13

People v. Wilson, 499 N.E.2d 972,975,146 Ill.App.3d 567 11

Pool v. Wyrick, 703 F.2d 1064, 1066-67 22

Ridgway v. Baker, 720 F.2d 1409, 1413 10

Rose v. Lundy, 455 U.S. 509 cm o, sa; bay te £8

Schwa iller v. Gardner, 752 F.2d 1341, 1345 22

See v. Seattle, 387 U.S. 523, 541 38, 33

Sherar v. Cullen, 481 F.2d 945 9

Thomas v. Wyrick, 687 F.2d 235, 237 n2, cert.den. 22

U.S. ex. rel. Bachman v. Hardy, 637 F. Supp. 1273, 1278 8

a S. ex.rel. Falconer v. Lane, 720 F. Supp. 631, 640 a2

U.S. v. Goodwin, 457 U.S. 371, 372 3, 10

U.S. v. Sisson, 297 F. Supp. 902, 910-911 23

Vail v. Estelle, 711 F.2d 630, 632 22

Will v. U.S., 389 U.S. at 104-107 20

MISCELLANEOUS

1 Liebman Federal Habeas Corpus Practice and Procedure 52,

§ 5.32 22

Not directly cited here, but these authorities are listed on p22 in

opposing dismissal of petitioner's first appeal:

36 C.J.S. 829, Federal Courts #290(4), R.F.C. v. Service

Pipeline Co., C.A. *o ms F.2d 814, 816"

Sisquoc Ranch v.

Roth, 153 F.2d 437, . ex. rel. Stachulak v. Coughlin, 520

F.2d ‘ 2d 931 (7th So 7 v. Daley, 799 F.2d 343, 347, FTC

v. Minneapolis- Honevwell Co., 344 U.S. 206, 211., Heirens v.

Mizell, 729 F.2d 449, 457 (7th Circuit), Fryer v. MacDougall, 462

F.2d 1093, Stewart v. Reto, 454 F.2d 269, Baity v. Ciccone, 507

F.2d 717, 36 C.J.S. 1326 Federal Courts #301(5), Remand

without Decision, Karstetter v. Cardwell, 399 F.Supp. 1298,

Zimmerman vy. Spears, 565 F.2d 310, and Dickerson (v.

Louisiana?), 816 F.2d at 224, and Will v. U.S., 389 U.S. at

104-107

in the

SUPREME COURT of the UNLTED STATES

October Term 1994

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UNITED STATES OF AMERICA ex. rel.

THADDEUS PUDLO, Petitioner

‘ VS.

MICHAEL SHEAHAN,

Sheriff of Cook County, Respondent

Petition for a Writ of Certiorari

to the United States

Court of Appeals for the Seventh Circuit

THADDEUS PUDLO respectfully petitions for a

writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh

Circuit in this case.

OPINIONS BELOW

The orders of the court of appeals are attached as

Appendices "A" through "D", and those of the district

court as Appendices "E" and "F".

JURISDICTION

The court of appeals denied an application for a

certificate of probable cause on February 23, 1994

and denied a petition for rehearing on April 22, 1994.

The jurisdiction of this Court is invoked under 28

use. 1254(1) and 28 U.S.C. 2254(a)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Art. I, Sec. 9, Cl. 2 of the United States

one

Constitution provides: "The Privilege of the Writ of

Habeas ph ee! shall not be suspended unless when in

Cases of Rebellion or Invasion the public Safety may

require it.”

The Fourth Amendment provides: "The right of

the people to be secure in their persons, houses,

papers, and egeees against unreasonable searches and

seizures, Shall not be violated, and no Warrants shall

issue, but on probable cause, supported by oath or

affirmation, and particularly describing the place to

be searched, and the persons or things to be seized."

The Sixth Amendment provides, in pertinent part:

"In all criminal prosecutions, the accused shall enjoy

the right... to have the Assistance of Counsel for his

defense."

The Fourteenth Amendment provides, in pertinent

part: "...No State shall make or enforce any law

“4ich shall abridge the privileges or immunities of

izens of the United States; nor shall any State

aeprive any person of life, liberty, or property,

without due process of law..."

28 U.S.C. 2254(b) provides: “An application for a

writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court shall not be

granted unless it appears that the applicant has

exhausted the remedies available in the courts of the

State, or that there is either an absence of available

State corrective process or the existence of

circumstances rendering such process ineffective to

protect the rights of the prisoner.”

STATEMENT OF THE CASE

1. The petitioner was imprisoned on January 17,

1992 by the Circuit Court of Cook County. He had

appeared in Housing Court get a continuance,

eventually to contest personal jurisdiction and

suppress evidence seized in an illegal raid. He brought

with him a long history of conflict with city

a 3

inspectors, including that raid, an ostensible

inspection the previous spring conducted like a

criminal search (with a flimsy misdemeanor charge

subsequently filed, on which he was acquitted), and a

similar incident a decade earlier. He was also long

aware of two U.S. Supreme Court decisions (infra)

requiring warrants before city inspections must be

allowed and was determined not to waive an

constitutional rights. He was not represented by his

egular attorney, Dennis Doherty (505 W. Wacker,

Chicago, 312-580-0935) but a stand-in was present

for the limited purpose of getting the continuance.

After a hearing was scheduled for the following

month, the City attorney stated there was business that

could be handled immediately, that the City wanted to

arrange for another inspection. The judge told the

Seer y to say when an inspection could be made.

he petitioner, not wer. © part Agel adept at

arguing law, said he wished to talk to his regular

attorney first. About what, the judge asked.

Jurisdiction, he replied, and the judge ordered him

held in ae a n January 29, 1992, after 12 days

confinement, Doherty obtained his release on $100

cash bond.

2. On January 28, 1992, after various hassles with

the office of prisoner correspondence and jail

communication, the petitioner's friend, William F.

Wendt, Jr., finally filed a federal petition for a writ

of habeas corpus (under 28 U.S.C. 2254). After

setting out the facts of the matter, the petition cited

two decisions, Camara v. Municipal Court. 387 U.S.

523, and See v. Seattle, 387 U.S. 541, holding that

warrants may be required before inspections must be

allowed and that it is unconstitutional to punish

anyone for refusing a warrantless inspection. The

petition cited other cases, notably U.S. v. Goodwin,

457 U.S. 371, applying a presumption of

vindictiveness when detrimental action is taken upon

the exercise of a legal right. The petition argued that

such proceedings cannot be accorded the presumption

of regularity that would justify exhaustion of other

remedies and that the vindictiveness in question was

ds

ils

an ongoing assault on the petitioner's exercise of

constitutional rights. To require exhaustion of other

remedies requires martyrdom of the petitioner in the

meantime.

3. On February 7, 1992 the petition was

summarily dismissed on grounds that state remedies

were not exhausted. Although mention was made of

petitioner's refusal to allow an inspection and the state

court order directing his incarceration until he allows

one, there was no mention made of either the

constitutional issues involved or the argument that

exhaustion is not required under these circumstances.

4. On February 18, 1992 the petitioner filed a six

page motion to alter or amend, substantially .

reproduced in the first argument, INGENERAL, p6.

5. Toward the end of April the petitioner was

served with a demand by the City of Chicago to allow

an inspection under discovery rules or be held in

default. He filed an emergency pleading in the habeas

corpus case to the effect that this was additional

evidence of punitive intent for maintaining a

constitutional position. After a somewhat tumultuous

hearing on May 4, 1992, the motion was denied, the

judge sidestepping arguments and saying the next stop

was the 7th Circuit (U. S. Court o Appeals). What

seemed to the petitioner and his friend an

overwhelmingly final order, however, was only

docketed as denial of an emergency oral motion.

6. An appeal was timel filed, No. 92-2330 (under

28 U.S.C. T bot), in the 7th Circuit Court of Appeals,

with a motion filed in the trial court for correction of

the order. The 7th Circuit questioned the finality of

the trial court order and halted the briefing schedule.

After some months of confusion, the appeal was

dismissed for lack of a final order. In a petition for

rehearing, the petitioner insisted on the finality of the

order and strenuously objected to embroiling a

habeas corpus matter in such a technical matter. The

petition was denied in February 1993. '

7. After weeks of waiting for the trial court to find

the file, on June 1, 1993 the petitioner appeared to

obtain a final order in this matter. Extra notice

Ss

notwithstanding, the file was still not present in the

court, for which the judge seemed to blame the

petitioner. The State's Attorney handed the judge a

copy of the motion (which seemed authentic from a

distance, not having been shown to the petitioner

first). The judge was only interested in the name of

the Cook County judge in question. He looked at the

motion briefly and denied it. At least he said the order

was final. The petitioner's friend said the judge had

not even heard the argument. The judge told him to

leave or be held tn contempt. He subsequently denied

a certificate of probable cause for lack of "debatable

questions deserving appellate review," citing Lozada

v. Deeds, 111 S.Ct. 8a , 861-862,

8. Another appeal was filed, No. 93-3079 (again

under 28 USC. 1291), and an application for a

certificate of probable cause was filed on August

20,1993. It sought to argue that

a) the petitioner was entitled to a federal writ of

habeas corpus to protect his constitutional rights

under the 4th, 6th and 14th Amendments,

b) he was entitled to immediate relief in this

assault on his free exercise of constitutional rights,

without exhausting state remedies,

c) he had no adequate remedy under state law to

vindicate his constitutional rights,

d) the requirement of exhaustion does not apply

when the state court(s) is (are) arguably functioning

in a disorderly or vindictive manner,

e) he is entitled to an orderly court in any event, at

least to some preliminary inquiry as to whether the

state court is orderly,

f) he was denied due process and only given half a

day in court,

g) emergency federal habeas corpus procedures,

or rather the lack of them, leave much to be desired.

It was denied on February 23, 1994, the 7th

Circuit only citing Rose v. Lundy, 455 U.S. 509, a

multi-claim case holding that a claimant cannot seek

federal relief until he exhausts all his claims in state

court..

9. A petition for rehearing was filed, with

lanai ae

,

suggestion for rehearing en banc and a review of the

entire two year history of the litigation, arguing as

substantially reproduced under INADEQUATE

FEDERAL RESPONSE, p13. It was denied again

without explanation on April 22, 1994.

10. At this juncture the petitioner's state case is

still on appeal. His brief has been filed,

notwithstanding a separate action to have a court

reporter produce all the transcripts in question. The

City is still seeking extensions of time to file its brief,

as petitioner best understands this chaotic situation.

11. Petitioner is awa.e of at least one party who

was incarcerated under circumstances similar to his,

but who capitulated after one day and allowed the

inspection.

REASONS FOR GRANTING THE

PETITION

IN GENERAL

1. The petitioner still released on a $100 cash

bond, federal jurisdiction is retained under Leonard

v. Hammond, 804 F.2d 838, 842, a case cited in the

original dismissal.

2. Petitioner could easily be reincarcerated,

however, by the same judge who incarcerated him in

the first place. Thus this case is not moot under the

"capable of repitition, yet evading review" exception

enunciated in 804 F.2d at 842-843.

3. Petitioner is thus also still in custody under the

terms of Hensley v. Municipal Court of San Jose

“flpitas J.D., Cal., 411 U.S. 349.

. 28 U.S.C. 2254 does not require exhaustion of

state remedies where those are inadequate or under

unusual circumstances.

5. The requirement of exhaustion of state

remedies is not a hard and fast rule, but rather a

policy of comity between state and federal courts, a

concession of federal power to the orderly

functioning of state courts. Itsfirst principle is the

federal power to grant the writ without

exhaustion due to the aecenghned rvte “eet basic

purpose and duty of protecting and vindicating

on

a

m2

federal constitutional rights.” The second principle is

allowing state courts the first opportunity to vindicate

those rights, to avoid unnecessary tension between the

two systems and to allow orderly functioning of state

systems. Carter v. Estelle, 677 F.2d 427, 441-443.

6. The summary dismissal cited two Illinois

appeals of contempt citations, Bone v. Bone, 43 I[Il.

App. 3d 363, 356 N.E.2d 1348, and In re Marriage of

Betts, 200 Ill. App. 3d 25, 558 N.E.2d 404. The first

was premature, in that no sanction had been imposed.

In the second, a contempt citation of June 2, 1989 was

finally overturned on June 28, 1990, over a year

later. That decision says at 558 N.E.2d 424-425:

"...No jail sentence for indirect civil contempt will

exceed six months unless the respondent, through his

continued recalcitrance, makes it exceed six months.

Prior to the expiration of a six month period of

incarceration, an indirect civil contemnor has ample

opportunity either to comply with the court order in

question or explain why he or she cannot comply with

it... Because of the contemnor's unique ability to

control the imposition of sanctions in indirect civil

contempt cases, the constitutional guarantee of a jury

trial for criminal contempts when the penalty exceeds

six months is wholly inapplicable to indirect civil

contempt proceedings.”

7. Based upon that lengthy decision, petitioner

may well have several grounds for a successful appeal

in state courts. It has already taken over two years,

however, and the first appeal has yet to be decided. In

setting criteria for habeas corpus, which presumabl

jE to state remedies as well, Hensley held at 34

S. 349-350:

"Our recent decisions have reasoned from the

premise that habeas corpus is not ‘a static, narrow,

formalistic remedy,’ (cite), but one which must retain

the ber tee to cut through barriers of form and

procedural mazes.’ (cite) 'The very nature of the writ

demands that it be administered with the initiative and

flexibility essential to insure that miscarriages oF,

justice within its reach are surfaced and corrected.’

(cite)

ee a

. Ss

"Thus we have consistently rejected

interpretations of the habeas corpus statute that would

pe hea the writ in stifling formalisms or hobble its

effectiveness with the manacles of arcane and

scholastic pease requirements. The demand for

speed, flexibility and simplicity ts clearly evident in

our decisions concerning the exhaustion doctrine.”

(seven cites)

Two year's wait for a successful, or even

completed, appeal is certainly no adequate remedy

under these criteria.

8. Commenting on three other Illinois remedies in

a post conviction matter, U.S. ex. rel. Bachman v.

Hardy, 637 F. Supp. 1273, 1278, held that they were

all "ineffective to protect Bachman's constitutional

rights and his failure to exhaust these remedies is

excused." "These statutory remedies are still

apparently unchanged since that 1986 decision.

9. Betts, however, also describes civil contempt at

558 N.E.2d 416:

"Civil contempt proceedings have two

fundamental attributes: 1) The contemnor must be

capable of taking the action sought to be coerced, and

2) no further contempt sanctions are imposed upon

the contemnor's compliance with the court order.

(cites) In other words, the contemnor must have an

opportunity to purge himself of contempt by

complying with the pertinent court order. If the

contempt sanction is incarceration, the respondent's

circumstances should be such that hemay correctly be

viewed as possessing the ‘keys to his cell.' (cite)"

10. While the order of dismissal begins,

"Thaddeus Pudlo is in the Cook County Jail

because he refused to comply with a state court order

to permit city inspectors to inspect the interior of a

certain piece of property he owned. The court

entered an order of civil oo © rsa Pudlo

directing his incarceration in the Cook County Jail

until such time as he should purge himself of

contempt by arranging for an inspection,"

two other cases cited in the petition, Camara v.

Municipal Court and See v. Seattle, 387 U.S. 523,

|

iin

541, both hold, with certain exceptions, not only that

a warrant may be required by the possessor of the

residential or business premises before inspection,

but that it is unconstitutional for anyone to be

punished for refusing an inspection without a

warrant. Thus the petitioner found himself unable to

comply with the court order in question for fear of

waiving rights under the 4th, 6th and 14th

Amendments.

11. Unanswered by the dismissal (or any other

court order to date) is the patent unconstitutionality

of punishment for exercising constitutional rights or

of being coerced into waiving them. U.S. v.

Goodwin, 457 U.S. 371, 372; Sherar v. Cullen, 481

F.2d 945; Dunn v. Blumstein, 405 U.S. 339, 341.

"The claim and exercise of a constitutional right

cannot thus be converted into acrime.” Miller v.

United States, 230 F.2d 486, 490. The “keys to the

cell” can never be waiver of constitutional rights.

"([)t is the ai? rey we are to be eee.

not the petitioner.” (cites) Burkett v. Cunningham, .

826 F.2d 1208, 1218; also see Johnson v. Hal!, 465 F.

—_— 516, 523. Likewise, to be sure, neither to be

exhausted is the free exercise of constitutional rights

by the petitioner, as in this apparent case of first

impression.

13. Fearing the "chilling effect" of possible state

criminal prosecutions under an overbroad state

statute upon First Amendment rights, Dombrowski v.

Pfister, 380 U.S. 481, 487, 494, granted injunctive

and declaratory relief. Petitioner likewise feels a

"chilling effect" on his exercise of constitutional

rights in the Circuit Court of Cook County because of

the arbitrary, capricious, drumhead manner in which

he was incarcerated and likewise seeks similar relief,

in effect.

14. Indeed that same “chilling effect” militates

against requiring petitioner to seek further state

remedies, at least without at least some provisional

federal protection.

15. It is the purpose of any punishment to "send a

message." If the petitioner's punishment is not

-10-

repudiated on federal constitutional grounds, as

a only a federal court is at all likely to do in

the near future, the “message” will be: “Don't

exercise constitutional rights in the Circuit Court of

Cook County.” Petitioner's "“contumnacious” conduct

was nothing more than a statement that he wanted to

talk with his regular attorney, who was not present at

the time. The right to counsel in contempt

roceedings is specifically recognized in Ridgway v.

aker, 720 F.2d 1409, 1413, the last of the four cases

cited in the dismissal.

16. As noted above, the exhaustion requirement is

to protect the orderly functioning of state courts from

unnecessary federal intervention. Incarcerating

anyone under the circumstances of this particular case

hardly qualifies as an orderly proceeding. Indeed,

Betts, in concluding, dicsusses disorderly proceedings

in the Illinois trial court, indicating a more general

problem. As stated in the petition and unanswered in

the dismissal (or, likewise, any other court order to

date), in any event,

"U.S. v win, 457 U.S. at 374, holds that the

Court will apply a presumption of vindictiveness in

cases in ae A action detrimental to a defendant has

been taken after the exercise of a 7 right. In other

words, such proceedings cannot be accorded the

presumption of regularity which would justify the

requirement of exhaustion of other remedies. The

vindictiveness in the present matter is a continual,

ongoing assault on petitioner's exercise of

constitutional rights. To require exhaustion of other

remedies requires martyrdom of the petitioner in the

meantime. These circumstances demand an

immediate release and such declaratory and

injunctive relief as to prevent a recurrence.”

17. In this particular instance, however, it would

seem that the orderly functioning of the Illinois

courts would be better served by federal intervention

unmistakably establishing the federal issues. This

certainly would not be the first time that Illinois

courts have required federal intervention to vindicate

constitutional rights or combat corruption.

——————————————EEEE

sits

INADEQUATE STATE REMEDIES

18. As noted above, the exhaustion requirement is

not an absolute rule, its application in this matter to

date notwithstanding, but a policy of accomodation to

state courts. That is, if there is something to be

accomodated. Hankins v. Fulcomer, 941 F.2d 246,

249- 250 held:

“Although the requirement of exhaustion and its

underlying principles form a threshold test ot gate

claims for habeas relief, they are designed as an

‘accomodation’ rather than an ‘insuperable barrier.’

(cite) The statutory exceptions under Section 2254(b)

ensure that the exhaustion requirement is not a

‘mechanical formula’ limiting aa wiadiction.

(cites) If it appears that the prisoner's rights have

become an 'empty Shell’ or that the state process is a

procedural morass’ offering no hope of relief, then

the federal courts may excuse the prisoner from

exhausting state remedies and may directly consider

the prisoner's constitutional claims. (cites)

‘Inordinate delay in state procedures is one

circumstance that can render State process ineffective

to protect a prisoner's rights and therefore excuse

exhaustion.” (cite)

19. Illinois remedies were called a “merry-go-

round" in the famous concurring opinion to Marino

v. Ragen, 332 U.S. 561, “sufficiently rah Aa that

an Illinois prisoner '[could] not intelligently select the

fog way [to obtain review].'"Harmon v. Ryan, 959

. 2d 1457, 1462. The Illinois Post-Conviction

Hearing Act was rewritten as a result of that decision,

People v. Correa, 485 N.E. 2d 307, 108 Ill, 2d 541,

546, People v. Joseph, 495 N.E. 2d 501, 113 Ill. 2d

36, 44, People v. Wilson, 499 N.E. 2d 972, 975, 146

Ill.App.3d 567. Problems remain, however. A

dissent to People v. Polk, 521 N.E. 2d 1158, 1170,

122 Ill. 2d 64, said the statute has been transformed

into a ride to nowhere for indigent petitioners. That

only applies to those already convicted, not to those

held in contempt.

«2?

20. "Even if the petitioner could theoretically have

complied with state procedures, the fact that he could

not reasonably have been expected to is sufficient to

excuse noncompliance.” Harmon at 1462. The key

issue is the practical realities of litigating in Illinois.

The petitioner's regular attorney in an experienced,

able criminal practitioner, whose choice of state

remedies, frustrating as they have been to date,

petitioner has no intention of second-guessing. The

ractical realities of litigating unjust imprisonment in

llinois were explained by none other than the federal

trial judge in this matter, Brian Barnett Duff:

""...Of paramount importance is Ms. Falconer's

interest in ‘obtaining speedy federal federal relief on

[her] claim,’ Rose, 455_U.S. at 520..., an interest

reflected in the Seventh Circuit's rule regarding the

need for direct precedent before sending a petitioner

back to state court. The State's about-face had but a

single purpose, and a single effect: to impair that

interest. The State must have known it could not

prevent Ms. Falconer from eventually obtaining a

federal court ruling on her claim, but it calculated

that it could delay her efforts months, or even years,

by forcing Ms. Falconer to battle her way through the

state court system. To permit the State gratuitously to

stall Ms. Falconer's petition would frustrate the

policies underlying the habeas corpus statute. Cf.

Marino v. Ragen, 332 U.S. 561, 564," in U.S. ex.rel.

Falconer v. Lane, 720 F. Supp. 631, 640 (1989)

21. The City of Chicago Commissioner of Health

was held in contempt in the Circuit Court of Cook

County about a year after the petitioner was. How did

the petitioner's original adversary try to spring one

of its own? Illinois habeas corpus procedures? A

regular or even expedited appeal? Ha! The City filed

in the oe Court of Illinois for an extraordinary

and highly discretionary writ of prohibition! (Nos.

75366 | 75533) Whatever might be theoretically

available under Illinois law, that alone leaves rather

little else that need be said about the real availability

of relief from unjust imprisonment in Illinois, such as

it is.

ith

22. There seems to be an incomprehension in the

local political and legal culture that this Court's

holdings in Camara and See, supra, actually require a

warrant, not a mere court order. One former Cook

County judge was quite oblivious to the constitutional

dimensions of the petitioner's situation and took the

Housing Court order to be completely normal and

unobjectionable, as can be seen in his summary

dismissal of the original federal petition in this

matter.

23. Two Illinois decisions offer insight into the

realities of litigating in Illinois, regardless of issue.

People v. Wilfiams, 87 III.2d 161, had to rule that

trial courts have no inherent authority to order

discovery of defendents in nonfelony cases. Further,

that a decision some years earlier, People v. Schmidt,

56 Ill.2d 572, only allowed discovery for the defense

in misdemeanor cases, that the prosecution could not

read in any reciprocal authority for itself. (Little

good that did the petitioner, who was served with a

discovery demand in a misdemeanor case arising

from the illegal inspection in question.) In re Corboy.

124 I11.2d 24, noted that it was considered all right

among the Illinois bar for lawyers to make loans to

judges. They read things into decisions, or read them

Out, or just make up the rules as they go along.

Petitioner's unhappy contacts with I]linois justice

over the years dispose him to take keen note of such

informal cultural manifestations and further dispose

him not to expect anything more than endless

frustration from it. Not, however, as it turns out, that

the local federal bench is immune to such influences

or that it has been noticeably superior, below.

INADEQUATE FEDERAL RESPONSE

24. If a witness on the stand refuses to answer a

question he may easily be held in contempt as

nonresponsive. It could conceivably happen in as little

as two minutes. After all, the petitioner complains

here of a contempt citation that takes less than a page

in the transcript. As the federal courts have yet to

examine that transcript in over two years of

|

it.

litigation, he has to wonder, however, what happens

when the courts are nonresponsive to a question put to

them. What happens when nonresponsive judges

present a greater danger to the court process? In any

event, this wretched record is quite contrary not only

to Hensley, supra, but to the injunction of Harris v.

Nelson, 304 U.S. 286, 292:

"There is no higher duty of a court, under our

constitutional system, than the careful processing and

adjudication of petitions for writs of habeas corpus,

for it is in such proceedings that a person in custody

pinst o€- that error, nd, pha or evil purpose has

resulted in his unlawful confinement and that he is

deprived of his freedom contrary to law...”

25. In over two years of so far futile litigation the

petitioner has NEVER claimed to have exhausted

State remedies. He has rather been trying to tell

federal trial and appellate courts, in every substantive

pleading filed before them, that his situation presents

an EXCEPTION to the general rule that state

prisoners must exhaust state remedies before

petitioning federal courts for habeas corpus relief.

26. For over two years these federal courts have

yet to even mention the petitioner's argument that his

case presents an exception to the general rule, much

less tell him why it is not.

27. For over two years these same federal courts

have treated this general rule as an absolute rule,

admitting of no exception, even though it evolved as a

general rule in the courts, was explicitly codified by

ongress as a general rule, explicitly admitting of

ossible exceptions, and has been discussed in various

ederal decisions as such, infra.

28. After over two years he is still waiting, and not

altogether patiently, for something, anything, in this

matter, from the federal courts, that responds to this

question of being excepted from the general rule. He

is also waiting for anything that bears any minimal

resemblance to the ORDERLY functioning of courts

on any level that this general rule is supposed to

protect, for whose protection he might be expected to

sit an interminable time in confinement, while

ae.

refusing to waive one of the constitutional rights he

thought he was fighting for in Korea.

25. After over two years of this broken record in

the federal courts, and after sitting on the petitioner's

APPLICATION FOR A CERTIFICATE OF

PROBABLE CAUSE for six months, the 7th Circuit

U.S.C.A cited a Supreme Court case, Rose v. Lundy,

455 U.S. 509, to the effect that petitoner cannot seek

federal relief until he exhausts ALL his claims in state

court. Judging by the order, this Court only read

thispassage of the decision:

A rigorously enforced total exhaustion rule will

encourage State prisoners to seek full relief first from

state courts....," 455 U.S. at 518

30. This case made new law for a convicted

prisoner presenting multiple claims in a complex

appellate matter, as opposed to this petitioner being

cited for contempt in an all too on ge proceeding for

refusing to waive a constitutional right. Of all the

decisions on habeas corpus, whose headnotes alone

fill dozens of pages in the federal digests, why this

case should be considered governing here or why the

petitioner should give something as apparently far

removed from his circumstances a second glance,

ought to be explained by that court, at the very least as

an exercise in the civility it advocates.

31. In previously reviewing the history of the

exhaustion requirement, however, Rose also notes

there are EXCEPTIONS to the general rule, which is

NOT intended to interfere with a full and fair

adjudication of claims, as it has here, citing Ex parte

Hawk, 321 U.S. 114, 117:

"it is a principle controlling all habeas corpus

petitions to the federal courts, that those courts will

interfere with the administration of justice in the state

courts only ‘in rare cases where exceptional

circumstances of peculiar urgency are shown to

exist.’” 455 U.S. at 515-516, with footnote:

"The Court also made clear, however, that the

exhaustion doctrine does not bar relief where the State

remedies are inadequate or fail to ‘afford a full and

fair adjudication of the federal contentions raised.'"

aS

321 U.S. at 118, 455 U.S. at 516

32. The habeas corpus statute not referring to the

problem at hand, Rose analyzed underlying policy

matters to determine its proper scope. The petitioner

has been trying to argue policy matters from the very

start of this litigation, and without the slightest

acknowledgement by the federal courts. From 455

U.S. at 517-518, in any event, citations omitted:

"In expounding a Statute, we must... look to the

igi ig of the whole law, and to its object and

policy.

"where the statute's language seem(s)

insufficiently precise, the ‘natural way’ to draw the

line ts in light of the statutory purpose.”

"The axiom that courts should endeavor to give

statutory language the meaning that nurtures the

policies underlying legislation is one that guides us

when circumstances not plainly covered by the

underlying policies to which Congress was

committed.

"Arguments of policy are relevant when for

example a statute has an hiatus that must be filled or

there are ambiguities in the legislative language that

must be resolved." cat

33. The policy underlying the exhaustion doctrine

is briefly reviewed, with, however, reference to state

court CONVICTIONS, not rump state court

CONTEMPT CITATIONS attacking exercise of

constitutional rights. As prisoners exhaust their state

remedies, the decision anticipates, “state courts may

become increasingly familiar with and hospitable

toward constitutional issues." Furthermore,

exhaustion of claims in state courts will present

federal courts with more complete factual records.

34. As important as these reasons are, the

petitioner still strenuously objects to their taking

precedence over the effectual protection of his

constitutional rights, over"the federal judiciary's

basic purpose and duty of protecting and vindicating

federal constitutional rights.," Carter v. Estelle.

supra.

35. And while the petitioner yields to no one in

PP

wishing the state courts an increased familiarity with

and hospitality toward constitutional issues, he still

fails to see the necessity of his sitting in jail, or

anticipating sitting in jail again, for an interminable

period, waiting for them to develop those most

auspicious qualities, with his constitutional rights

protected only by his own tenacity. Actually he would

expect the state courts to develop those qualities more

quien? if properly embarrassed into them by the

ederal courts, although the federal court

“merry-go-round” he has been on for two years needs

the same embarrassment. Federal intervention has

been required innumerable times to make Illinois

justice function in anything like an orderly manner.

And, quite unlike long controverted convictions,

there is no factual record necessary here beyond two

pages of transcript.

36. The petitioner would further like to know,

what's to disrupt? He was released after 12 days, the

day after the original petition was filed. The judge

who incarcerated him simply gave up on coercing

him, persuaded by his regular counsel, not as a matter

of law but as a matter of grace, as R, coey all to often

in what passes for a court system. There has been no

actual incarceration since then, but the petitioner did

ppc that when presented with another,

somewhat more formal demand for an inspection. An

appeal of the entire case, not just the contempt

citation, is in progress, but even at this late date, has

yet to be fully briefed. A federal writ of habeas

corpus, at this late date, would have no immediate

consequence, except to compel return of $100 bond

and remove the incarceration as an active issue of

appeal. The petitioner wants the writ as insurance,

per authorities cited above, against this ors

again to himself or others subject to the roughhouse

justice of the Circuit Court of Cook County Housing

Court.

37. To be perfectly honest about it, the petitoner's

intentions are quite disruptive. He wishes to disrupt,

not the orderly functioning of a conscientious court

or court system, but the disorderly, capricious, Alice-

aS

in-Wonderland mayhem of something that does not

deserve to be called a court or court system. This is

not what the exhaustion rule was designed to protect,

but that is exactly what the federal courts have been

rotecting in over two years of these proceedings,

eing themselves not especially more orderly.

Petitioner finds it necessary to remind the judges of

this and every other Court that they are sworn to

protect his beleagured Constitutional rights instead,

as their first and foremost duty. If they think they

have any higher duty, he certainly would like to be

informed what it is.

38. A dissent to Rose v. Lundy says in part, 455

U.S. at 546, 547-548,

"In recent Rr oiiee oF judges at times have lost

sight of the true office of the great writ of habeas

corpus.

'... The availability of habeas corpus relief should

depend primarily on the character of the alleged

constitutional violation and not on the procedural

history underlying the claim," a lengthy footnote

concluding:

"Its history and function in our legal system and

the unavailability of the writ in totalitarian societies

are naturally enough regarded as one of the decisively

differentiating factors between our democracy and

totalitarian governments." Brown v. Allen, 344 U.S.

443, 512

39. The two years of pettifogging, straight-arming

and stonewalling the petitioner has gotten from the

federal courts so far amount to little less than an

unconstitutional suspension of the writ of habeas

corpus as regards him. It is likewise the loss of an

important distinction with totalitarianism, a budding,

informal form of which he has already personally

experienced and which continues to haunt him.

40. For over two years the petitioner has been

trying to tell the federal courts that this matter is one

of peculiar urgency. His rump incarceration was

nothing less than an attack on an exercise of a

constitutional right. He needed IMMEDIATE court

protection from that, the same way the victim of a

-19-

criminal attack needs intervention from a policeman.

He claimed that IMMEDIATE intervention with

considerable citation of habeas corpus law, but which

has been studiously ignored by the federal courts to

date. That is also a denial of due process which is up

to the courts to correct, not him. if that does not make

this matter one of "peculiar urgency” warranting

waiver of the exhaustion rule, then, pray tell, what

does? "The exhaustion doctrine... cannot be used as a

blunderbus to shatter the attempt at litigation of

constitutional claims without regard to the purposes

that underlie the doctrine and called it into existence,”

Braden v, 30th Judicial Circuit Court of Kentucky,

410 U.S. 484, , but apparently the 7th Circuit

needs to be informed of this.

41. One more or less fortuitous conjunction

between slow litigation and policy arguments is that

the passage of time allows for commentary on

relevant current affairs. About the time the latest

dismissal was issued, the Chicago Council of Lawyers

released a 126 page evaluation of the 7th Circuit,

whose occasionally severe criticisms the petitioner

can only echo, or, given the two year history of this

litigation, it is the other way around. The Council

criticized the 7th Circuit for, among other things,

a) considering legal theories and cases not in the

record without consulting the parties (and likewise

imposing sanctions),

b) excessive concern with jurisdiciional,

procedural and technical matters at the expense of

resolving cases on the merits,

Cc) delays in releasing decisions, and

d) incivility,

with an overall effect of reducing the respect for

the 7th Circuit's decisions. In particular, it is hard to

see how the 7th Circuit's dismissal of the previous

appeal for lack of a final order increased respect for

anything. Petitioner's argument that the order was

final in everything but form was borne out by the

trial court's perfunctory, irascible granting of the

final order, even threatening more judicial violence

when reminded that it had not even heard the

in.

argument. This wasted a year and $105 court costs on

totally, utterly pointless litigation (except that it

might expose underlying problems in the federal

courts), objectionable in any case but especially so in

a habeas corpus matter.

42. Standards for professional conduct issued by

the 7th Circuit are explicitly titled, “Courts'’ Duties to

Lawyers," but, if the petitioner is not unduly

impertinent, he might consider them applicable to pro

se litigants as well. These are, in any event, far from

fulfillment in this matter:

"5. We will make all reasonable efforts to decide

promptly all matters presented to us for decision."

"0. We will give the issues in controversy

deliberate, impartial, and studied analysis and

consideration. '

"11. We will not adopt procedures that needlessly

increase litigation expense.

43. The 7th Circuit Court of Appeals was severely

criticized in Will v. U.S., 389 ure at 104-107, for

issuing a writ of mandamus without explanation.

Those pages make a number of criticisms most

appropriate here, including,

"Even more important in our view, however, than

these deficiencies in the record is the failure of the

Court of Appeals to attempt to supply any reasoned

justification of its action...

"Due regard, not merely for the reviewing

functions of this Court, but for the ‘drastic and

extraordinary’ nature of the mandamus remedy

(cite), and for the extremely awkward postion in

which it places the District Judge... demands that a

court issuing the writ give a reasoned exposition of

the basis of its action.”

"... A mandamus from the blue without rationale

is tantamount to an abdication of the very expository

and supervisory functions of an appellate court..."

"...What might be the proper decision upon a

more complete record, supplemented by the findings

and conclusions of the Court of Appeals, we cannot

and do nat say. Hence the writ is vacated and the cause

a.

remanded to the Court of Appeals for the Seventh

Circuit for further proceedings...”

UNNECESSARY AND POINTLESS

DISMISSAL OF FIRST APPEAL

44. This dismissal is not itself under appeal in this

matter, but it was a major part of its history and a fit

subject for this Court's criticism. Given the constant

complaints about unnecessary litigation and

overcrowded court dockets, the 7th Circuit's

handling of this question raises questions of judicial

economy and prudence, especially when }) it

confused and disrupted the petitioner in securing the

final order under a different understanding, 2) the

trial court added nothing to discussion of the merits in

issuing the final order, and 3) the 7th Circuit disposed

of the second appeal on another threshold question

that should have been obvious in the first. The

petitioner summarized as follows his petition for

rehearing of the dismissal of his first appeal for lack

of finality:

"A. The dismissal is unexplained

"B. The order expresses no remand or further

disposition of the case.

"C. Although the inquiry underlying finality of

the lower court order is ina mage highly technical

area, petitioner still had excellent reason to consider

the lower court order final or at least in need of

appellate court remediation.

"D. Other cases, including cases in this Circutt,

have handled the inquiry into finality and other topics

in habeas corpus cases with considerably greater

initiative, expedition, explantation and instruction

than has been done here, whether or not holding the

trial court order final.

"E. As also outlined in appellant's last filing, such

an inquiry places an unreasonable burden ona

petitioner for a writ of habeas corpus.

"F. In this whole habeas corpus litigation, now

over a year old, there has yet to be any proper

response to or even inquiry into the essential points of

Ey S

the appellant's case.

"G. The handling of this matter by the federal

apparatus to date, begining with ere

transactions by petitioner's friends with the Office of

Prisoner Correspondence, amounts to an unconstitu-

tional suspension of the writ of habeas corpus."

45. Among the authorities cited in appering the

etitioner's position were 36 C.J.S. 829, Federal

ourts #290(4), R.F.C. v. Service Pipeline Co., C.A.

Okl., 206 F.2d 814, 816", Sisquoc Ranch v. Roth, 153

£34 Sar achat SRM et 2

th Circuit), Charles v. e

343, 347, FTC v. ‘inneapolis Honeywell Co., 344

U.S. 206, 211., Heirens v. Mizell, 729 F.2d 449, 457

(7th Circuit), Fryer v. MacDougali, 462 F.2d 1093,

Stewart v. Reto, 454 F.2d 269, Baity v. Ciccone, 507

F.2d 717, 36 C.J.S. 1326 Federal Courts #301(5),

Remand without Decision, Karstetter v. Cardwell,

399 he 1298, Zimmerman v. Speals. 565 F.2d

310, and Dickerson (v. Louisiana?), 816 F.2d at 224,

and Will v. U.S., 389 U.S. at 104-107

EXHAUSTION OVER EXTENDED TIME

46. "The exhaustion requirement is satisfied if the

state courts have not ruled on petitioner's properly

presented claim for an inordinately long time."

1 Liebman Federal Habeas Corpus Practice and

Procedure, 52 § 5.3, citing Gibson v. Klevenhagen,

777 F.2d 1056, 1058, Cook v. Florida Parole and

Probation Commission, 749 F.2d 678, Vail v. Estelle,

711 F.2d 630, 632, Pool v. Wyrick, 703 F.2d 1064,

1066-67, and several other federal appellate cases.

47. "The exhaustion ceguaremees is Satisfied even

if even if the prisoner's claim, though unexhausted

when filed in federal court, becomes exhausted

between the time he filed the petition and the federal

court reached the merits of the claim.” 1 Liebman

Federal Habeas Corpus Practice and Procedure, 52 §

5.3, citing Schwartzmiller v. Gardner, 752 F.2d

1341, 1345 and Thomas v. Wyrick, 687 F.2d 235,

237 n2, cert.den. 459 U.S. 1175.

-23-

QUESTIONS OF COURT CREDIBILITY

48. The whole idea of a court system in the first

place is that people can settle their differences

peacefully under some reasonable basis supplied by

an impartial third party, instead of duking it out or

shooting it out. at, then, is the point of a court

system at all, when courts try to settle matters not by

any reasoned explanation, but by actual or threatened

use of simple, unreasoned, unexplained force, judicial

trappings notwithstanding, as have both state and

federal trial courts in this matter? What is the

obligation of an appellate court when presented with

trial judges, state and federal, who pave. by their

conduct toward the petitioner and his friend in this

matter, relenquished the moral authority to tell two

six year olds to stop duking it out and settle things

peacefully?

49. fader feudalism even that presumably

impartial third party might rule by force alone.

Under representative government, however, the laws

are at least theoretically made in the interest of the

people, who obey them, not out of mere fear of

retribution, but out of conviction that obedience is in

their own best interest. In other words, the law

functions primarily on a moral basis, a notion that

upon occasion works its way into a court decision.

One example is U.S. v. Sisson, 297 F. Supp. 902,

910-911:

"When the state through its laws seeks to override

reasonable moral commitments it makes a

dangerously uncharacteristic choice. The law grows

from deposits of morality. Law and morality are, in

turn, debtors and creditors of each other. The law

cannot be adequately enforced by the courts alone, or

by courts supported merely by the police and the

military. The true secret of legal might lies in the

habits of conscientious men disciplining themselves to

obey the law they respect without the necessity of

judicial and administrative orders. When the law

treats a reasonable, conscientious act as a crime it

subverts its own power. It invites civil disobedience.

-24-

It impairs the very habits which nourish and preserve

the law."

50. So, when government becomes a lawbreaker,

it invites every man to break the law himself, as Louis

Brandeis wrote in his famous but all too often ignored

dissent. Olmstead v. U.S., 277 U.S. 438, 485. When

judges themselves resort to simple, unreasoned,

pbokars lian hy force, judicial riba (OL pe

notwithstanding, what rg 8 a to the moral force of

the law? And when their brethren ignore it? Or, more

to the point, what happens to the public? Burgeoning

crime? Bulging prisons? The highest rate of

imprisonment of any country in the world? Twice the

rate of black imprisonment as even apartheid South

Africa? Hmmm? A system of law depends on some

general sense of mutual obligation to function

effectively. If it is not to be found in the judiciary, of

all places, it certainly can be expected to erode

uickly elsewhere. And the judiciary certainly hasn't

shown it to date in this matter.

51. Petitioner is heard to mutter every so often,

with regard to his various legal frustrations, of which

this is merely the latest, "There are no courts."

Petitioner suggests this would be a very dangerous

sentiment to become widespread among the

population, but that such a sentiment might become

that, the more people are victimized the way he

as been. In that regard, he can only suggest a reading

of H. Bruce Lincoln's history of pre-revolutionary

Russia, which records 1) a common peasant

expectation of being protected by the Tsar, and 2) a

common peasant cry about the time of the

Russo-Japanese War of 1905 and its attendant abuses,

"There is no Tsar!

CONCLUSION

The petition for a writ of certiorari should be

granted.

Thaddeus Pudlo, in his proper person

1651 Hubbard

Chicago, Illinois 60622

(312) 421-4862

by William F. Wendt, Jr., same address and phone

United States Court of Appeals

for the Seventh Circutt

Chicago, Illinois 60604

April 22. 1994

Before Hon. Walter J. Cummings, Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

THADDEUS PUDLO, ) Appeal from the

Plaintiff-Appellant - ) United States

) District Court

No. 93-3079 V. ) N.D. HL, E.D.

) No. 92 C691

MICHEAL SHEAHAN, Sheriff, ) Brian Barnett

Defendant-Appellee ) Duff, Judge

Upon consideration of the "PETITION FOR

REHEARING WITH SUGGESTION FOR

REHEARING EN BANC, filed 3/9/94 by counsel for

the appellant,

The panel has voted to DENY the motion for

reconsideration of the denial of a certificate of probable

cause and no judge in regular active service has

requested a vote on the Suggestion for Rehearing En

Banc. Accordingly,

The Petition for Rehearing with Suggestion for

Rehearing En Banc is DENIED.

2a ecing ae

FOS Ee ae aT EO

United States Court of Appeals

for the Seventh Circuit

Chicago, Illinois 60604

Date: February 21, 1994

Submitted: February 18, 1994

BEFORE: Hon. Walter J. Cummings, Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

No. 93-3079

THADDEUS PUDLO,

Plaintiff-Appellant

V.

MICHEAL SHEAHAN, Sheriff,

Defendant-Appellee

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

No. 92 C 691, Brian Barnett Duff, Judge

Petitioner filed a petition for a writ of habeas corpus

pursuant to 28 U.S.C. Sec. 2254. The District Court

dismissed the petition and declined to issue a certificate

of probable cause.

Petitioner has now filed an application for a

certificate of probable cause. This court has reviewed the

final order of the district court and the record on appeal.

Petitioner has not demonstrated that his claims have

been exhausted. Rose v. Lundy, 455 U.S. 509 (1982),

requires dismissal of the petition if even one claim is

unexhausted.

Accordingly, the request for a certificate of probable

cause is DENIED.

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

March 3, 1993

By the Court:

THADDEUS PUDLO,

Plaintiff-Appellant

No. 92-2330 v.".

MICHEAL SHEAHAN, Sheriff,

Defendant-Appellee

Appeal from the

United States

District Court

N.D. Ill., E.D.

No. 92 C 691

Brian Barnett

Duff, Judge

ee ee ee

This matter comes before the court on consideration

of the "PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC,"

filed herein on 2/17/9.

This Petition for Rehearing was circulated to all

sitting judges in active service. No judge voted to hear

this matter en banc. Accordingly,

IT IS ORDERED that the PETITION FOR

REHEARING EN BANC is DENIED. Once

petitioner obtains a definitive ruling on the Rule 59(e)

motion that is still pending before the lower court, a final

appealable judgment will exist and a notice of appeal may

be filed at that time.

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

February 1, 1993

Before Hon. JOHN L. COFFEY, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

Hon. MICHAEL S. KANNE, Circuit Judge

THADDEUS PUDLO,

Petitioner-Appellant

No. 92-2330 V.

MICHEAL SHEAHAN, Sheriff,

Respondent- Appellee

Appeal from the

United States

District Court

N.D. fil., E.D.

No. 92 C 691

_Brian Barnett

Duff, Judge

ee ee

_ Upon consideration of the jurisdictional memoranda

filed in this matter,

IT IS ORDERED that this appeal is DISMISSED

as premature since there has been no disposition of

petitioner-appellant's Rule 59(e) motion in the district

court.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 1: 92-cv-00691

Title: Pudlo v. Sheahan

Assigned Judge: Honorable Brian Barnett Duff

MINUTE ORDER of 7/27/93 by Hon. Brian Barnett

Duff: For reasons stated in open court 06/01/93, the

court finds that this case lacks any debatable questions

deserving appellate review. Accordingly, since

petitioner has not made a substantial showing of the

denial of a federal right, the court denies petitioner a

certificate of probable cause to appeal the denial of his

habeas corpus petition. See Lozada v. Deeds, 111 S.Ct.

860, 861-862 (1991). Mailed notice.

This order was entered on the docket by the Clerk July

27, 1993

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: |: 92-cv-00691

Title: Pudlo v. Sheahan

MINUTE ORDER of 1/30/92 [Entry date 02/04/92]

Thaddeus Pudlo is in the Cook County Jail because he

refused to comply with a state court order to permit city

inspectors to inspect the interior premises of a certain

piece of property he owned. The court entered an order

of civil contempt against Pudlo directing his

incarceration in the Cook County Jail until such time as

he should purge himself of contempt by arranging for an

inspection.

A civil contemnor may challenge his custody in a

writ of habeas copes. See Ridgway v. Baker, 720 F.2d

1409 (Sth Cir. 1983). Before coming to federal court,

however, the petitioner must exhaust his state remedies.-

v. nd, 804 F.2d 99, 840 (4th Cir., 1986)

In Illinois a civil contemnor may directiy appeal the

order of contempt, Bone v. Bone, 43 Ill.App.3d 363,

364, 356 N.E. 2d 1348, 1349 (1976); see In re Marriage

of Betts, 200 Ill, pp.3d 26, 558 N.E.2d 44 (1980). Pudlo

does not allege that he has exhausted his right of review

in the state court. Moreover, according to documents

attached to the petition, Pudlo has further contempt

ago scheduled in the trial court. Because Pudlo

as yet to exhaust his state court remedies, his petition

for federal habeas corpus relief is premature.

Accordingly, the court summarily dismisses the

habeas corpus petition without prejudice pursuant to

Rule 4 of the Rules Governing Section 2254 Cases.

s/Brian Barnett Duff