# Petition for Writ of Certiorari — Hope v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 515 U.S. 1132

## Text

ee Suerems Oourt, U.&
—_— FILED

941888 NAY 15 1995
No. Q6RCE O6 ib Gisks

IN THE
SUPREME COURT OF THE UNITED STATES

OCTCBER TERM, 1994

WILLIAM HOPE,
Petitioner,
vs.
UNITED STATES OF AMERICA,

Respondent.

Petition for Writ of Certiorari to the
United States Court of Appeals
for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

FREDERICK F. COHN

205 W. Wacker Drive
Chicago, Illinois 60606
(312) 641-0692

Attorney for Petitioner

US pp

i

(la) QUESTIONS PRESENTED

(1) (A) Whether the 7th Circuit’s
determination that it had no subject
matter jurisdiction - precluding
defendant from appellate review of the
District Court’s denial of his sec. 2255
petition challenging his 30-year
sentence on grounds amounting to "actual
innocence" - deprives defendant of
substantive and procedural due process,
for it rests on unduly strict
application of the Federal Rules of
Civil Procedure under which defendant’s
notice of appeal was deemed untimely,
despite compelling facts to which the
"unique circumstances" doctrine [as per

Thompson v. Immigration Service, 375

U.S. 384 (1964), and Osterneck v. Ernst

& Whinney, 489 U.S. 169 (1991)], should

ii

apply to allow late filing of notice of
appeal, here--where, the "unique
circumstances" are that defendant was
actively misled by the government’s
agreements to his two motions for
extension of time to file a Rule 59
Motion, and by the District Court’s
granting these extensions - despite
that, unknown to defense counsel at the
time, the District Court had no
authority to extend the time for filing
a Rule 59 Motion; and, but for thus
being misled, defendant could have and
would have timely filed his notice of
appeal;

(B) Whether the above 7th Circuit
ruling conflicts with the governing

principle, applied by this Court, that

habeas proceedings are equitable [Hilton

iii

Vv. unski , 481 U.S. 770 (1987);

Schlup v. Delo, 513 U.S. __. 91 L.Ed.2d
364 (1995)], so as to avoid strict
application of res judicata in the
"successive petition" context, where
defendant may be actually innocent.
[McCleskey v. Zant, 499 U.S. 467 (1991);

Schlup v. Delo, supra; Kuhlmann v.
Wilson, 477 U.S. 436 (1986) .]

iv

(1b) PARTIES INVOLVED [per Rule 21.1(b)]
Petitioner, William Hope, was the
defendant in the United States District
Court for the Northern District of
Illinois, Eastern Division, and
appellant in the United States Court of
Appeals for the Seventh Circuit.
Respondent, United States of
America, was the plaintiff in the
District Court, and appellee in the

Court of Appeals.

(1c) TABLE OF CONTENTS

Questions Presented

Parties Involved

Table of Contents

Judgment Below

Table of Authorities

Prayer for Certiorari

Judgment, Opinion and Orders Below
Jurisdictional Statement
Constitutional Provisions
Statement of the Case

Reasons for Granting the Writ

PAGE

17

Certiorari should be allowed, because
this cause is an ideal vehicle wherein
this Court can determine that equitable

principles peculiarly applicable in
habeas proceedings must be utilized
determining whether the "unique
circumstances" doctrine applies to
permit a late notice of appeal.

in

The 7th Circuit’s determination that it

vi

review of the District Court’s denial of
his sec. 2255 petition challenging his
30-year sentence on grounds amounting to
“actual innocence" - deprives defendant
of substantive and procedural due
process, for it rests on unduly strict
application of the Federal Rules of
Civil Procedure under which defendant’s
notice of appeal was deemed untimely,
despite compelling facts to which the
“unique circumstances" doctrine [as per

Thompson v. Immigration Service, 375
U.8. 384 (1964), and Osterneck v. Ernst
& Whinney, 489 U.8. 169 (1991)], should
apply to allow late filing of notice of
appeal. Here, the “unique
circumstances" are that defendant was
actively misled by the government’s
agreements to his two motions for
extension of time to file a Rule 59
Motion, and by the District Court’s
granting these extensions - despite
that, unknown to defense counsel at the
time, the District Court had no
authority to extend the time for filing
a Rule 59 Motion; and, but for thus
being misled, defendant could have and
would have timely filed his notice of
appeal. The 7th Circuit’s ruling
conflicts with the governing principle,
applied by this Court, that habeas

proceedings are equitable [Hilton v.

Braunskill, 481 U.8. 770 (1987); Schlup
v. Delo, 513 U.S. , 91 L.Ed.2d 364

(1995)], so as to avoid strict
application of res judicata in the
"successive petition" context, where
defendant may be actually innocent.

vii

"successive petition" context, where
defendant may be actually innocent.

[McCleskey v. Zant, 499 U.8. 467 (1991);
Schlup v. Delo, supra; Kuhlmann v.
Wilson, 477 U.8. 436 (1986).] 17
Conclusion 47
Appendix:

A. Court of Appeals Opinion,
No. 93-3207, dated December 23,
1994 App. 1

B. Order denying Petition
for Rehearing dated February 15,
1995 App. 8

Cc. Order of U.S. District
Court denying post-conviction
relief dated April 27, 1993 App. 10

D. Order of U.S. District
Court denying motion for
reconsideration dated August
3, 1993 App. 36

viii
(1d) Judgment Below

The Opinion of the Court of Appeals
for the Seventh Circuit, No. 93-3207,
filed December 8, 1994, affirming the
denial of habeas corpus relief under 28
U.S.C. 2255, is attached as Appendix A
to this Petition. It is reported at 43

F.3d 1140 (7 Cir. 1994).

ix

TABLE OF AUTHORITIES

Cases
PAGE

Bell v. Lockhart, 795 F.2d 655
(8 Cir. 1986) 26
Blackburn v. Foltz, 828 F.2d 1177
(6 Cir. 1987) 34

WwW Vv en, 935 F.2d 850
(7 Cir. 1991) 34, 42
Cave v. Singletary, 971 F.2d 1513
(11 Cir. 1992) 34, 43
Freeman v. Lane, 962 F.2d 1252
(7 Cir. 1992) 36
Garmon v. Lockhart, 938 F.2d 120
(8 Cir. 1991) 32
Gates v. United States, 515 F.2d 73
(7 Cir. 1975) 32

Hilton v. Braunskill, 481 U.S. 770,

95 L.Ed.2d 724 (1987) ii-iii, 18, 19, 22

Hollis v. United States,

687 F.2d 257 (8 Cir. 1982) 26
Horton v. Zant, 941 F.2d 1449
(11 Cir. 1991) 34, 42-43

Iaea v. Sunn, 800 F.2d 861
(9 Cir. 1986) 34

Inglese v. Warden, 687 F.2d 362
(11 Cir. 1982)

PAGE

Karstetter v. Cardwell, 399 F.Supp.

1298 (S.D.N.Y. 1975)

Kuhlmann v. Wilson, 477 U.S. 436,
91 L.Ed.2d 364 (1986) iii, 18,

Lozada v. Deeds, 498 U.S. 430,
112 L.Ed.2d 956 (1991)

Mack v. Smith, 659 F.2d 23
(8 Cir. 1981)

McCleskey v. Zant, 499 U.S. 467,

113 L.Ed.2d 517 (1991) iii, 18,

Osterneck v. Ernst & Whinney,

489 U.S. 169 (1991) ay

People v. Caravello, 2 I11.App.3d
995, 278 N.E.2d 447 (1 Dist. 1971)

People v. Nolte, 167 I11.App.3d

i9,

19,

17,

915, 522 N.E.2d 283 (3 Dist. 1988),

appeal denied, 122 Ill. 588,
530 N.E.2d 258

People v. Teschner, 81 I1ll.2d 187,

407 N.E.2d 49 (1980)

People v. Thomas, 204 I11.App.3d

890, 562 N.E.2d 396 (4 Dist. 1990)

24

23

22

26

26

22

20

32

32°33

38

38

xi

PAGE
People v. Tucker, 183 I11.App.3d
333, 539 N.E.2d 243 (2 Dist. 1989) 38
People v. Williams, 195 I11.App.3d
433, 552 N.E.2d 389 (4 Dist. 1990) 38
Prichard v. Lockhart, 990 F.2d 352
(8 Cir. 1993) 34, 43
Rodriquez v. United States,
395 U.S. 327, 23 L.Ed.2d 3409
(1969) 25
Rosenwald v. United States,
898 F.2d 585 (7 Cir. 1990) 36

Schlup v. Delo, 513 U.S. p
91 L.Ed.2d 364 (1995) iii, 18, 19, 22-23

Shockey v. Illinois,
375 U.S. 22, 11 L.Ed.2d 43
(1963) 26

Thompson v. Immigration Service,
375 U.S. 384 (1964) 1, 23, 20

United States ex rel. Barnard
v. Lane, 819 F.2d 798
(7 Cir. 1987) 36

United States ex rel. Miller v.
McGinnis, 774 F.2d 819
(7 Cir. 1985) 33, 34

United States v. Castillo,
965 F.2d 238 (7 Cir. 1992) 36

xii
PAGE
United States v. Derewal,
10 F.3d 100 (3 Cir. 1993) 36
United States v. Hope, 906 F.2d 254
(7 Cir. 1990) 13, 35, 36, 37, 39
United States v. Loughery, 908
F.2d 1014 (D.C. Cir. 1990) 32
Constitutional Provisions

Fifth Amendment to the United
States Constitution 4
Sixth Amendment to the United
States Constitution 4

Statutes and Rules
18 U.S.C. Sec. 924 8
18 U.S.C. Sec. 924(e) 8
28 U.S.C. 1254(1) 3
28 U.S.C. Sec. 2255 Be Bee OO
F.R.App.P. 4(a) 21
F.R.App.P. 4(b) 25
F.R.Cr.P. 37(a) 25
Supreme Court Rule 10.1 3

xiii

Supreme Court Rule 12.
Supreme Court Rule 13.
F.R.C.P. 59
F.R.C.P. 60

Ill. Rev. Stat., Chap.
Sec. 120.1

Ill. Rev. Stat., Chap.
Sec. 120.8

Ill. Rev. Stat., Chap.
Sec. 120.8(e)

91

91

91

ii, 14,

PAGE

27,

10,

4

28

30

34

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

No.

WILLIAM HOPE,
Petitioner,
vs.
UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

Petitioner, William Hope, (hereafter,
petitioner, or defendant), prays that a
writ of certiorari issue to review the
judgment of the Court of Appeals for the

Seventh Circuit, affirming denial of his

habeas corpus petition filed pursuant to

28 U.S.C. 2255 by the United States
District Court for the Northern District

of Illinois, Eastern Division.

Judgment, Opinion and Orders Below

The Opinion of the Court of Appeals
for the Seventh Circuit, affirming the
District Court’s judgment, is set out as
App. A. The Opinion is reported at 43
F.3d 1140 (7 Cir. 1994). The order
denying rehearing in banc, dated Feb.
15, 1995, is set out as App. B. The
judgment of the District Court, dated
April 27, 1993, is set out as App. C,

and the order denying reconsideration on

Aug. 3, 1993, is set out as App. D.

Jurisdictional Statement

On December 8, 1994, the Court of
Appeals filed its Opinion (App. A)
affirming the judgment of the District
Court. Petition for rehearing en banc,
timely filed, was denied on February 15,
1995.

This Petition for Certiorari is
timely filed within 90 days thereafter.

Jurisdiction is invoked under 28

U.S.C. Sec. 1254(1) and Rules 10.1, 12.1

and 13.1 of this Court.

Constitutional Provisions

The Fifth Amendment to the U.S.

Constitution provides, in pertinent

part:

"No person shall ... be
deprived of life, liberty or
property, without due process
of ia? 16s”

The Sixth Amendment to the U.S.

Constitution provides, in pertinent

part:

"Tn all criminal
prosecutions, the accused
shall enjoy the right ... to
have the Assistance of
Counsel for his defence."

STATEMENT OF THE CASE

In 1975, defendant, twenty-six years
old, a person addicted to narcotics, was
charged with burglary of an automobile
dealership. His lawyer told him that
there was an Illinois State statute
which would permit him to be treated for
his drug addiction and that he could
enter into arrangements with the court
so that, if he satisfactorily completed
the drug addiction program, he would not
have a conviction. (App. 42)! He was
told by the trial judge that if he
entered a plea under Chap. 91 1/2, Sec.
120.1 et. seq., and if he went to

Gateway House and completed the period

lReferences to App. without a
letter designation are to Appellant’s
Appendix filed in the Court of Appeals.

of treatment at Gateway House, there
would be no finding against him and the
sentence of 3 to 9 years, which would be
imposed only if he violated the
conditions of Gateway House, would not
be imposed, and there would be no
conviction. (App. 31-39)

However, neither his lawyer nor the
trial judge realized that because he was
on parole, he could not be placed in
Gateway House and treated unless,
pursuant to statute (Chap. 91 1/2, Sec.

120.8), there was prior permission of

the parole authorities. (App. 41) No
permission was obtained. He went to

Gateway House and was living up to the
conditions of Gateway House when parole

authorities came, seized the defendant

and returned him to the

penitentiary--not upon this 1975 charge,
but as a parole violator.?
In 1987, defendant was arrested and

ultimately charged with a federal

*There is no dispute that defendant
was never sentenced to the 3 to 9 year
sentence and no judgment of conviction
was entered. In the Illinois Appellate
Court, where the validity of what
occurred is presently also being
litigated, the State in its Statement of
Facts on page 9 in the Brief filed in
People v. Mason (defendant was known in
the State Court as Carmelo Mason), No.
92-1459, the State asserts:

"At the time of the above
summarized proceeding, defendant
was on parole for a previous
burglary conviction. Defendant
was subsequently arrested and sent
back to the penitentiary for
violation of parole on the prior
burglary offense. It is clear
that at no time was any further
action taken as to the instant
burglary conviction, and it is
clear that defendant was never
sentenced to the penitentiary
concerning the instant burglary
conviction." (Emphasis added.)

offense. At trial, he was represented
by Attorney Lavon Pride. If not
eligible for enhancement under 18 U.S.C.
Sec. 924, the maximum sentence was 5
years. He was sentenced under 18 U.S.C.
Sec. 924(e) to 30 years. At sentencing,
he was represented by Attorney Lavon
Pride and Attorney Greg Schlesinger.
(App. 20-26) At the federal sentencing,
because of other commitments and lack of
preparation caused thereby, defendant’s
counsel did not present substantial
evidence to the court on the crucial
issue of whether the defendant had a
conviction arising out of the 1975
occurrence. The reasons for counsel’s
not bringing before the court matters

which, as demonstrated below, were

clearly relevant, had to do with failure

to have properly prepared. He
originally requested a continuance to
see the State file. (App. 72) He
withdrew that request, not because he
had obtained the appropriate evidence,
but merely because of a conflict in his
schedule which mitigated his resolving
the instant matter. (App. 73) He
failed to demonstrate (1) that a copy of
the "half-sheet" (Memorandum of Orders)
did not show that a conviction was
entered and did show that sentence of 3
to 9 years was withheld (App. 44-46),
and hence, the action of the clerk in
preparing a certification of conviction
(App. 47) was in error; (2) he did not
obtain a transcript of the trial court

proceedings (App. 30-40) that

demonstrated that no sentence to the

10

penitentiary and/or conviction was
imposed and defendant was told none
would be, if he completed treatment; (3)
he did not demonstrate and raise that
whatever occurred would have been
procured in violation of the defendant’s
right to effective assistance of
counsel--(State trial counsel was
ineffective for not knowing that
defendant was not eligible under Chap.
91 1/2, Sec. 120.8)--and not asserting
that whatever occurred, occurred in
violation of defendant’s due process
rights (it was a violation of due
process to promise the defendant that
there would be no conviction, where he
was not eligible for such result under

the applicable statutes); (4) he did not

obtain a readily available affidavit

11

from the State Court sentencing judge
that stated that at the time of
disposition, defendant was advised that
no conviction would be entered against
him if he satisfactorily completed

Gateway House. (See pp. 29-30, infra.)?

Counsel did not obtain and present
the affidavit of defendant stating that
he would not have plead if he had been
told it would result in a conviction,
even if he completed Gateway House
successfully. (App. 42)

Counsel did not present prevailing

law which would have persuaded the

3at the time the affidavit was
given, Judge Louis B. Garippo had
retired from the bench. This document
was not before the United States
District Court that sentenced defendant,
or the Seventh Circuit.

12

District Court that there was no valid
conviction (see law that was available
to counsel, per pp. 34-36, 40, infra.)

Not having before it such relevant
facts and argument, the United States
District Court found that there was a
conviction, and therefore sentenced the
defendant to 30 years.

Attorney Schlesinger, who had been
co-counsel at the sentencing hearing,
(App. 25), proceeded with the appeal.
Although he raised the issue that
counsel was ineffective at trial, he did
not argue the ineffectiveness of counsel
in the District Court relative to the
matters heretofore set out demonstrating

all the things that counsel failed to do

with respect to sentencing. He did not

13

and could not, because to do so,4 of
course, would have been to raise his own
ineffectiveness.

The Court of Appeals specifically
pointed out that the constitutional
challenge raised by counsel below was
deficient, due to the absence of both a
legal and a factual basis. United

States v. Hope, supra, 906 F.2d at 263.

Thereafter, defendant filed a Sec.
2255 Petition in the District Court.
That Petition set out (1) that counsel,
both (a) in the United States District
Court at the sentencing hearing and (b)
on direct appeal, rendered ineffective
assistance of counsel, and (2) that the

State Court proceeding in 1975 (a) was

4His argument was de minimus.

14

invalid and (b) did not result ina
constitutionally valid conviction. The
District Court denied that Petition
(App. C)

Chronology and Procedural History

The original order denying habeas
corpus was entered April 27, 1993.

On May 4, 1993--within the 10-day
time limitation for filing a Rule 59
motion as to the order of April 27, 1993
denying the Sec. 2255 petition--Hope
filed his “AGREED MOTION TO EXTEND TIME
UNTIL MAY 24, 1993 TO FILE MOTION FOR
RECONSIDERATION OF ORDER OF APRIL 27,
1993." (App. II, 53-55) The Motion is
verified via Affidavit of undersigned
counsel. (App. II, 55) Paragraph 1 of

the said "Agreed Motion," over counsel’s

affidavit, avers:

15

"1. Scott Collins, Assistant
United States Attorney, has no
objection to the grant of this
motion." (App. II, 54, par. 1)

The District Court granted the said
"Agreed Motion" the following day, May
9, 1993, extending the time until May
24, 1993. (App. II, 56)

On May 21, 1993, within the time as
thus extended, Hope filed his "AGREED
MOTION TO EXTEND TIME UNTIL JUNE 14,
1993 TO FILE MOTION FOR RECONSIDERATION
OF ORDER OF APRIL 27, 1993." (App. II,
97-59) Again, par. 1, over undersigned
counsel’s affidavit, (App. II, 60),
avers that AUSA Scott Collins "has no
objection to the grant of this motion."
(App. II, 58, par. 1)

Defendant’s Motion for

Reconsideration (with supporting

16

Memorandum and attachments) was filed on
June 14, 1993 (R. 114), within the time
as extended by the court’s orders (R.
111, 113) allowing each of defendant’s
two aforesaid agreed timely-filed
motions for extension. (R. 110, 112)
This motion for reconsideration was
denied. (App. D)

The Court of Appeals, holding it had
no subject matter jurisdiction as to the
original denial of the habeas corpus,

entered on April 27, 1993, affirmed.

(App. A)

17

REASONS FOR GRANTING CERTIORARI

1.

Certiorari should be allowed, because
this cause is an ideal vehicle wherein
this Court can determine that equitable
principles peculiarly applicable in
habeas proceedings must be utilized in
determining whether the "unique
circumstances" doctrine applies to
permit a late notice of appeal.

The 7th Circuit’s determination that it
had no subject matter jurisdiction -
precluding defendant from appellate
review of the District Court’s denial of
his sec. 2255 petition challenging his
30-year sentence on grounds amounting to
“actual innocence" - deprives defendant
of substantive and procedural due
process, for it rests on unduly strict
application of the Federal Rules of
Civil Procedure under which defendant’s
notice of appeal was deemed untimely,
despite compelling facts to which the
“unique circumstances" doctrine [as per
Thompson v. Immigration Service, 375
U.8. 384 (1964), and Osterneck v. Ernst

& Whinney, 489 U.8. 169 (1991)], should
apply to allow late filing of notice of
appeal. Here, the “unique
circumstances" are that defendant was
actively misled by the government’s
agreements to his two motions for
extension of time to file a Rule 59

18

Motion, and by the District Court’s
granting these extensions - despite
that, unknown to defense counsel at the
time, the District Court had no
authority to extend the time for filing
a Rule 59 Motion; and, but for thus
being misled, defendant could have and
would have timely filed his notice of
appeal. The 7th Circuit’s ruling
conflicts with the governing principle,
applied by this Court, that habeas
proceedings are equitable {Hilton v.
Braunskill, 481 U.8. 770 (1987); Schlup
v. Delo, 513 U.8. __, 91 L.Ed.2d 364
(1995)], so as to avoid strict
application of res judicata in the
“successive petition" context, where
defendant may be actually innocent.

[McCleskey v. Zant, 499 U.S. 467 (1991);
Schlup v. Delo, supra; Kuhlmann v.

co 4

Wilson, 477 U.8. 436 (1986).]

The Seventh Circuit held that
defendant was barred from appealing from
the District Court’s denial of habeas
corpus pursuant to 28 U.S.C. Gec. 2255,
because notice of appeal was filed late.
The Court of Appeals held that the

"unique circumstances" doctrine was

inapplicable, even though the notice was

19

not timely filed because of counsel’s
reliance upon actions of the District
Court in extending time to file post-
judgment motions.

This ruling is contrary to due
process and to this Court’s opinions
concerning the application of equitable
principles to habeas corpus proceedings.

McCleskey v. Zant, 499 U.S. 467, 113

L.Ed.2d 517 (1991); Hilton v.

Braunskill, 481 U.S. 770, 95 L.Ed.2da 724

(1987); Schlup v. Delo, 513 U.S. ‘

130 L.Ed.2d 808 (1995); Kuhlmann v.

Wilson, 477 U.S. 436, 91 L.Ed.2d 364
(1986).

The chronology and procedural history
is set out at pp. 14-16, supra.

Under these unique circumstances,

defendant’s case comes within the

20

"unique circumstances" doctrine as per

Thompson v. Immigration Service, 375

U.S. 384 (1964), and Osterneck v. Ernst

& Whinney, 489 U.S. 169 (1991), and is

subject to the equitable principles
applicable to habeas corpus proceedings.
The original order denying the petition
was entered on April 27, 1993, and
defendant’s agreed motion for extension
was filed May 5, 1993 and granted on May
6, 1993; there was ample time for
defendant to file a motion for new
trial, if the government had not agreed,
and/or if the court had not granted the
request. The second motion for
extension was filed within ample time--
May 21--and again, the government agreed

thereto. And again, on May 26, 1993,

the court granted the agreed motion. If

21

the government had then raised the issue
here raised, or if the court had not
asserted by its action in granting the
motion, that it had the right to grant
the motion both on May 6, 1993 and May

26, 1993, it was still within thirty

days since April 27, and defendant could
have then filed his timely notice of
appeal. Because the government was
involved, F.R.App.P. 4(a), he had 60
days to file the notice of appeal. The
motion for reconsideration was filed on
June 16, 1993, within that 60 days.

Hence, if not for counsel being lulled

by judicial and government action, the

notice of appeal would have been timely

filed.

Tested by habeas corpus equitable

principles, a late notice of appeal

22

should be permitted, because (a) counsel
relied on the government and the court,
(b) there is cause and prejudice, and
(c) there is evidence of defendant’s

actual innocence. McCleskey v. Zant,

499 U.S. 467, 113 L.Ed.2d 517 (1991).
Although habeas corpus proceedings
are tentatively regulated by civil
procedure, courts must be guided by the
unique nature of habeas corpus
proceedings in light of the history and

purpose of habeas practice. Hilton v.

Braunskil, 481 U.S. 770, 95 L.Ed.2d 724

(1987). Cf. McCleskey v. Zant, supra,

Schlup v. Delo, 513 U.S. 130

—— I

L.Ed.2d 808 (1995), and Kuhlmann v.

Wilson, 477 U.S. 436, 91 L.Ed.2d 364

(1986). In Schlup v. Delo, supra, this

Court stated:

23

"At the same time, the Court
has adhered to the principle that
habeas corpus is, at its core, an
equitable remedy. This Court has
consistently relied on the
equitable nature of habeas corpus
to preclude application of strict
rules of res judicata." 130
L.Ed.2d at 831. (Emphasis added.)

See Karstetter v. Cardwell, 399

F.Supp. 1298 (S.D.N.Y¥. 1975) (late
filing of notice of appeal allowed on
finding of "excusable neglect"). There,
a State prisoner’s time for filing
Notice of Appeal from denial of habeas
corpus had elapsed due to counsel’s
erroneous calculation; he asserted the
bulk of his practice involved cases
wherein the United States is a party,
and therefore calendared the case as one
with a 60-day period for filing notice

of appeal, rather than the actually

applicable 30-day period. The Court

24

concluded that for purposes of filing a
tardy notice of appeal, although a
petition for writ of habeas corpus is a
civil, as opposed to a criminal,
proceeding, the standard of
"excusability" utilized in criminal,
rather than in civil cases must apply,
because "a man’s liberty is at stake" in
habeas proceedings. Accord, Inglese v.
Warden, 687 F.2d 362 (11 Cir. 1982).
Here, where the notice of appeal was
filed late due to ineffective assistance
of counsel and/or excusable neglect,
because counsel was nct aware of
application of F.R.C.P., Rules 59 and 60
and impermissibly relied upon the
acquiescence of both the government and

the court, and there is cause and

prejudice, a late notice of appeal

ee ee

25

should have been permitted.

There is cause, because when a lawyer
fails to file a notice of appeal where
both defendant and his lawyer intend to
file the notice of appeal, but counsel
does not do so, that rises to the level
of ineffective assistance of counsel

amounting to "cause." Rodriguez v.

United States, 395 U.S. 327, 23 L.Ed.2da

340 (1969). There: "[P]jetitioner’s
counsel did not submit a notice of
appeal within the 10-day period
specified" by the then-applicable
Rule.*> This Court held it was not
necessary to meet the heaviest standard

and prove violation of defendant’s

°F.R.Cr.P. 37(a), which had been
superseded by F.R.App.P. 4(b). Id. at
328 n.1, 23 L.Ed.2d at 343 n.1.

26

constitutional rights through a Sec.
2255 Petition; instead, because the
notice was not timely filed due to
ineffective assistance, this Court
remanded for appointment of counsel and
to permit defendant to proceed with a
direct appeal. Accord, Bell v.

Lockhart, 795 F.2d 655 (8 Cir. 1986);

Lozada v. Deeds, 498 U.S. 430, 112
L.Ed.2d 956 (1991); Shockey v. Illinois,

375 U.S. 22, 11 L.Ed.2d 43 (1963);

Hollis v. United States, 687 F.2d 257 (8

Cir. 1982); Mack v. Smith, 659 F.2d 23

(8 Cir. 1981).

There is prejudice, because but for
counsel’s error, defendant would have
had a right to appeal, and the reviewing

court would be compelled to find

defendant is innocent, for he has no

27

1975 Illinois conviction.

Defendant has been sentenced to 39
years only because the government
asserted that defendant had a 1975 State
conviction, where there was no such
conviction; where the 1975 State
proceeding itself violated defendant’s
constitutional rights; and where counsel
in the federal trial and appellate
courts failed to demonstrate the
illegality of the 1975 proceeding, and
their failure to do so itself was
ineffective assistance of counsel.

THERE IS NO CONVICTION IN 1975 AND
SURELY NOT A VALID CONVICTION BECAUSE
DEFENDANT AGREED TO PLEAD WITH THE
PROMISE THERE WOULD BE NO CONVICTION IF
HE DID NOT VIOLATE CERTAIN CONDITIONS OF

DRUG TREATMENT, WHICH HE DID NOT

28

VIOLATE; AND HENCE FINDING A CONVICTION
WOULD VIOLATE DUE PROCESS.
ADDITIONALLY, HE PLED AFTER HIS LAWYER
FAILED TO DETERMINE THAT HE WAS NOT
ELIGIBLE FOR A DRUG TREATMENT PROGRAM,
AND HENCE, HE WAS INDUCED TO PLEAD BY
INEFFECTIVE ASSISTANCE OF COUNSEL.

On November 21, 1975, defendant,
represented by an Assistant Public
Defender (App. II, 30-40), entered a
plea, having been induced to enter that
plea by his counsel’s advice to the
defendant: (a) that he was eligible for
treatment pursuant to Chap. 91 1/2, Sec.
120.1 etc. (when he was not); (b) that
the court would place the defendant in
Gateway House pursuant to said Chapter;
and (c) that if defendant completed the

treatment, no conviction or sentence

———————

29

would be entered against him, i.e., it

would be as if he were acquitted. The

State judge confirmed this would occur
when he told defendant:

"I would withhold the
finding and the
judgment...." (App. II, 32)

The State trial judge (now retired)
has provided an Affidavit; it was his
understanding of the plea agreement that
if defendant complied with the
conditions of Gateway House, there would
be neither a sentence nor a conviction:

"3. There was a plea
agreement ... with the
understanding that defendant
was to go to Gateway House,
and that if he did not
intentionally violate the
conditions of Gateway House,
no conviction would be
entered against him

[and] that if he did violate
the conditions, he would be
brought back to court and
then a conviction would be

30

entered and he would be
sentenced to a period of
three to nine years. By
withholding judgment no
sentence ever was imposed."
(Emphasis added.) (See App.
II, 18.)

Defendant has asserted in an
uncontested affidavit that he would not
have entered the plea if he had not been
told--and believed~--that he could avoid
a conviction by entering a technical
plea of guilty, entering Gateway House
and abiding by the conditions of the
drug treatment program. He would not
have entered his plea if he had been
told he was not eligible under Chap. 91
1/2, Sec. 120.8, without the parole
officer’s prior agreement, and that they
did not agree. (App. II, 42)

The promise made to defendant by his

counsel and the court--that if he

A tts ie 2 ae

31

completed the program, there would be no
conviction--was incorrect and false,
because he was not eligible unless the
parole authorities agreed, and they did
not agree. ® Thus, the plea violated

due process because it was induced by a
false promise, and was therefore not
knowingly and intelligently made.

The situation is analogous to where
the court and counsel advise defendant
he is eligible for parole and defendant
pleads guilty, but under the law,
defendant is not eligible. Such plea is

obtained in violation of due process,

°Defendant never violated his
obligations under the agreement with the
court, because he never voluntarily left
Gateway House, and instead
administratively was sent from Gateway
House to the penitentiary as a parole
violator.

32

Gates v. United States, 515 F.2d 73 (7

Cir. 1975), and in violation of
defendant’s right to effective

assistance of counsel. Garmon V.

Lockhart, 938 F.2d 120 (8 Cir. 1991);

United States v. Loughery, 908 F.2d 1014

(D.c. Cir. 1990). Here, defendant was
expressly told by the trial court there
would not be any conviction and
sentence; that judgment was being
withheld (App. II, 32, 38) if he
complied with the conditions of Gateway.
Such misapprehension by the defendant as
to the consequences of the plea, renders
the plea, and any subsequent conviction,

constitutionally invalid. People v.

Caravello, 2 I11-App.3d 995, 278 N.E.2d

447 (1 Dist. 1971); People v. Nolte, 167

I11.App.3d 915, 522 N.E.2d 283 (3 Dist.

33

1988), appeal denied, 122 Ill. 588, 530

N.E.2d 258; United States ex rel. Miller

v. McGinnis, 774 F.2d 819 (7 Cir. 1985).

Due process was also denied because
he was taken as a parole violator
although he did not violate the
conditions of Gateway. Having satisfied
his part of the bargain, due process was
violated because the State did not
comply with its part of the bargain.

In any event, there was no valid
conviction, because counsel’s
representation was defective. Counsel
failed even to read the statute that in
Simple words [plain English] rendered
defendant ineligible for the drug
treatment alternative: "that a person is

eligible, [unless] ... (e) the addict is

on probation or parole and the

34

appropriate parole or probation
authority does not consent to that
election." 91 1/2, Sec. 120.8(e) (App.
II, 41) Hence, he provided ineffective
assistance, which renders the alleged
conviction constitutionally invalid.

Brewer v. Aiken, 935 F.2d 850 (7 Cir.

1991); Horton v. Zant, 941 F.2d 1449 (11

Cir. 1991); Cave v. Singletary, 971 F.2d

1513 (11 Cir. 1992); Prichard v.

Lockhart, 990 F.2d 352 (8 Cir. 1993);

Blackburn v. Foltz, 828 F.2d 1177 (6

Cir. 1987); Iaea v. Sunn, 800 F.2d 861

(9 Cir. 1986). The 1975 alleged

conviction or plea therefore violates

due process. United States ex rel.

Miller v. McGinnis, supra.

It was appropriate for the
District Court to review a matter
partially considered on direct

35

appeal, where defendant, at his
federal appeal and trial, had
ineffective assistance of counsel.
The Seventh Circuit Court of Appeals
did not have before it, due to
ineffective assistance, relevant facts

and law when it decided defendant’s

original appeal, United States v. Hope,

906 F.2d 254 (7 Cir. 1990).

Because on the date of the federal
sentencing hearing, Mr. Schlesinger, who
later served as appellate counsel, was
co-counsel with trial counsel (App. II,
25), there can be no waiver of appellate
counsel’s failure to raise on direct
appeal, the issue of ineffectiveness of
trial counsel. This fact amounts to
"cause" for not raising the issue of

ineffective trial counsel on direct

appeal. Therefore, the issue of

36

ineffectiveness of trial counsel can and
should be reviewed via habeas corpus

proceedings. See United States v.

Castillo, 965 F.2d 238 (7 Cir. 1992);

United States v. Derewal, 10 F.3d 100 (3

Cir. 1993). Failure of appellate
counsel to effectively raise the issue
of ineffectiveness of trial counsel
satisfies the "cause and prejudice"

test. United States ex rel. Barnard v.

Lane, 819 F.2d 798 (7 Cir. 1987);

Freeman v. Lane, 962 F.2d 1252 (7 Cir.

1992); Rosenwald v. United States, 898

F.2d 585 (7 Cir. 1990).
Defendant was denied effective
assistance of appellate counsel in
the federal court.
Although appellate counsel in United

States v. Hope, supra, asserted the

defect of the performance of trial

37

counsel (Appellant’s Brief in United

States v. Hope, No. 88-3134, pp. 39-41,

App. II, 27-29), the position was
presented in a most deficient manner.
Counsel cited no cases. He failed to
demonstrate that what the Court of
Appeals held to be a failure of Hope to
prove he was denied his rights in the
State Court, was not due to absence of

evidence or law, United States v. Hope,

supra, at 263, but instead, was due to
failure of counsel to present the
evidence and law.

The appellate counsel, who was
suffering under a demonstrable, facial
conflict difficulty, never asserted,
among other issues, that trial counsel

rendered ineffective assistance in the

District Court because he failed to

38

raise the issue that State trial counsel
rendered ineffective assistance in the
1975 State proceeding. He also failed
to present relevant controlling law that
demonstrated there was no State

conviction or sentence. People v.

Teschner, 81 I11.2d 187, 407 N.E.2d 49,

51 (1980); People v. Thomas, 204

Ill.App.3d 890, 562 N.E.2d 396, 398 (4

Dist. 1990); People v. Williams, 195

T1l.App.3d 433, 552 N.E.2d 389, 391 (4

Dist. 1990); People v. Tucker, 183

I11.App.3d 333, 539 N.E.2d 243, 245 (2
Dist. 1989).
In the District Court, defendant
was denied effective assistance of
counsel.

Although counsel in the District

Court originally objected to the

admissibility of defendant’s 1975

39

"conviction" and attempted a

constitutional attack, his efforts were

meager, to say the least:

"The constitutional challenges
which Hope raised at the trial
level, however, were conclusory in
nature and lacked both a factual
and legal basis. Hope presented
no evidence whatsoever to suggest
that his plea of guilty in 1975
was not knowingly and voluntarily
made, that his attorney at the
time rendered constitutionally
ineffective assistance, or that he
was otherwise denied ‘due
process’." Hope, supra, at 263.
(Emphasis added.)

This is, of course, precisely what

was done in the habeas corpus
proceedings.

Surely, counsel was ineffective,

because sitting there, like a pear ready

to be plucked, were facts demonstrating

that the plea was induced by false

promises and misleading advice of

40

counsel; and hence, defendant was denied
due process and effective assistance of
counsel. The evidence not presented
was: transcript of the 1975 Illinois
proceeding showing that defendant was

told by the State trial judge that there

would be no conviction (App. II, 30-40);

affidavit of trial judge; law showing
that the advice of counsel was
ineffective assistance because it told
defendant he was eligible, when he was
not; evidence from the Illinois
Department of Corrections showing that
they never considered they received the
defendant as a person convicted for the
1975 burglary (App. II, 43); Chicago
Police Department "rap sheet" showing
defendant was sentenced to 2 years drug

abuse program, not sentenced to 3 to 9

ee

oat A ti

41

years (App. II, 50); the affidavit of
defendant asserting the misadvice that
he received, and that he would have not
proceeded to plead, but would have gone
to trial, if he had known that he was
ineligible for the drug program and that
his actions would result in a conviction
even though he complied with the
conditions of Gateway House. (App. II,
42) Also not presented to the District
Court was controlling law, as herein
presented, demonstrating that upon those
facts, the 1975 "plea" was
constitutionally invalid.

Here, federal sentencing counsel’s
failure properly to prepare and
investigate was due to preoccupation

with preparation for the trial of some

other defendant. He recognized he was

42

not prepared, and therefore requested a
continuance to obtain the relevant State
file. (App. II, 72) He then withdrew
his request because of his need to
commence a different trial. (App. II,
73)

Here, defendant’s federal trial

counsel totally failed to conduct the

necessary investigation which would have
demonstrated that there was no
"conviction" rendering defendant
eligible for an enhanced sentence.
Failure to properly prepare for
sentencing, or to properly object to or
cause to be excluded evidence that was
used to enhance defendant’s sentence, is
ineffective assistance of counsel.

Brewer v. Aiken, 935 F.2d 850 (7 Cir.

1991); Horton v. Zant, 941 F.2d 1449 (11

\

43

Cir. 1991); Cave v. Singletary, 971 F.2d

1513 (11 Cir. 1992) (failure to

prepare); Prichard v. Lockhart, 990 F.2d

352 (8 Cir. 1993) (failure to object and
prevent use of out-of-state conviction
for enhancement).
IN SUMMARY

Applying the equitable principles
applicable to habeas corpus proceedings,
under the unique circumstances doctrine,
a late notice of appeal should have been
permitted because here, the present
result is to permit the lengthy
incarceration of a person who is

innocent of having a prior conviction.’

7one last time: The enhanced
sentence, 30 years, is 6 times greater
than the greatest sentence defendant
could have received on the firearm
charge, if the 1975 State proceeding had
not been counted as a conviction.

44

There was no constitutionally valid
1975 conviction or sentence. Hence, the
30 year federal enhanced sentence is

illegal and unconstitutional.

CONCLUSION
For the foregoing reasons, the
petition for writ of certiorari should

be granted.

Respectfully submitted,
ee

wt D FLL

FREDERICK F. COHN
Attorney for Petitioner

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1767%3A1. Public record. Not legal advice.