231 F.3d 347 (7th Cir. 2000)
MARK WILKINSON, Petitioner-Appellant,v.ROGER D. COWAN, Warden, Respondent-Appellee.
No. 99-1220
In the  United States Court of Appeals  For the Seventh Circuit
Argued December 7, 1999Decided November 1,  2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern  Division.  No. 98 C 3430--George W. Lindberg, Judge.
Before HARLINGTON WOOD, JR., RIPPLE, and  ROVNER, Circuit Judges.
ROVNER, Circuit Judge.


1
Convicted of  murdering his estranged wife, Mark  Wilkinson sought post-conviction relief  in Illinois state court. Among other  things, he argued that his trial counsel  was ineffective for failing to  investigate (or to provide him with a  copy of) the coroner's autopsy report,  which contained certain obvious  discrepancies. After the circuit court  summarily dismissed Wilkinson's petition,  his appellate counsel sought leave to  withdraw, asserting that his case  presented no issue of arguable merit. The  Illinois appellate court, upon review of  the record, agreed. It granted the motion  to withdraw, and without further ado,  affirmed the circuit court's judgment.  When he later sought federal habeas  relief, the district court determined  that Wilkinson had procedurally defaulted  the ineffectiveness claim by failing to  present the claim to the Illinois  appellate court. We disagree. The state  appellate court, when it elected to  affirm the circuit court's judgment  outright, without inviting Wilkinson to  brief his appeal pro se, implicitly  reached the merits of all of the issues  he had raised in his post-conviction  petition. We therefore remand the  ineffectiveness claim to the district  court for consideration on the merits.

I.

2
Wilkinson, an airline pilot, was in the  process of divorcing his wife Gilda in  1991. He claims that on May 26 of that  year, after driving his daughter to their  home in the Chicago suburb of Hoffman  Estates, he and Gilda began to argue  about the divorce settlement. The  argument escalated and, according to  Wilkinson, Gilda began to hit him,  grabbed his wrist, and then bit into his  little finger and refused to let go. In  an effort to free himself, Wilkinson  says, he fought back--he tripped her,  pushed her nose, punched her in the face,  and, ultimately, squeezed her neck.  Although Wilkinson claims it was not his  intent to kill Gilda, that is what he  did: she died of strangulation.


3
It turns out that Wilkinson previously  had talked about the possibility of  killing Gilda with several of his  friends, and he had even detailed a  variety of murder scenarios on his  computer. Realizing that the  circumstances were incriminating,  Wilkinson consulted the print-out of  murder scenarios he had carried with him  in his car and decided that he should  cremate Gilda's body and claim that she  was missing. He went so far as to wrap  her body in plastic (conveniently, he had  a roll of plastic in the trunk of his  car) and to partially dismember the  corpse (so that it would fit into a  fireplace). He was interrupted when his  fianc e, her suspicions aroused by a  telephone call canceling their dinner  date, came to the house and confronted  him. Eventually, Wilkinson told her that  he had killed Gilda. She took the  Wilkinsons' daughter from the house and  telephoned his parents.


4
Wilkinson later stole a plane from a  suburban airport and flew it into a storm  front, purportedly in the hope of ending  his life. The plane remained airborne,  however, which Wilkinson interpreted as a  sign of divine intervention. He landed  the plane intending, he says, to turn  himself in, but took off again when he  spotted a police car approaching. He flew  to an airport near Kankakee, Illinois,  where he spent the night. He was arrested  there the following morning.


5
A central issue at Wilkinson's trial was  whether he intended to kill Gilda. Among  the evidence that the State relied upon  to show that Wilkinson deliberately  strangled her was the autopsy report,  which indicated that Gilda's Adam's apple  had been crushed. Wilkinson alleges that  he asked his attorney to provide him with  a copy of the report in advance of trial  so that he could review the report  himself, but his attorney failed to do  so. When he examined the report after the  trial, Wilkinson discovered several  discrepancies. Among other things, the  report indicated that the coroner had  removed the gallbladder and sent it for  toxicological examination, but Gilda's  gallbladder, Wilkinson alleges, had been  surgically removed fourteen months prior  to her death. The report also indicated  that the body was free of scars, although  Gilda had obvious scars not only from the  removal of her gallbladder but also from  the Caesarian section that had been  performed when she gave birth to her  daughter. Neither these nor any of the  other asserted discrepancies in the  report were raised by Wilkinson's  attorney at trial, however.


6
A jury convicted Wilkinson in 1992 of  first degree murder and of concealing a  homicide. After the jury opted not to im  pose the death penalty, the trial judge  ordered him to serve consecutive prison  terms of 70 years for the murder and 10  years (reduced on appeal to five years)  for concealment. The appellate court  affirmed his conviction and sentence (as  modified) in 1995, and the following year  the Illinois supreme court denied his  petition for leave to appeal.


7
Meanwhile, Wilkinson filed a pro se  petition for post-conviction relief in  the circuit court. Among the many claims  he included in that petition was the  contention that he was deprived of his  Sixth Amendment right to the  effectiveassistance of an attorney when  his trial counsel failed to tender a copy  of the coroner's report for his review  and failed to review and investigate the  report more thoroughly. See, e.g., R. 30-  9 at C42, C79, C91-92, C97-98. One month  after Wilkinson filed the petition, the  trial judge dismissed it as frivolous in  a one-sentence order. R. 30-10 at C348.  Wilkinson filed a notice of appeal, and  at his request, the public defender's  office was appointed to represent him.  Invoking Pennsylvania v. Finley, 481 U.S.  551, 107 S. Ct. 1990 (1987), the  defender's office filed a two-page motion  to withdraw from representation. R. 11,  Ex. E. The ten-line "brief in support"  included in the body of the motion  asserted without elaboration that  "[Wilkinson's] petition fails to allege  any facts that give rise to a claim of a  constitutional deprivation. Therefore,  there are no appealable issues in this  case." Id. at 2 (citations omitted).  Wilkinson was served with a copy of the  motion, but he was not invited to file a  response and he did not do so of his own  initiative. Eleven months later, the  Illinois appellate court issued an order  granting the motion, stating:


8
We have carefully reviewed the record in  this case and the aforesaid brief in  compliance with the mandate of  Pennsylvania v. Finley and find no issues  of arguable merit. Therefore, the motion  of the public defender for leave to  withdraw as counsel is allowed and the  judgment of the circuit court is  affirmed.


9
Affirmed.


10
R. 11, Ex. F. at 2. Wilkinson sought  leave to appeal to the Illinois supreme  court, reasserting each of the claims he  had included in his post-conviction  petition (see R. 11, Ex. G), but that  court denied his petition. R. 11, Ex. H.


11
In 1998, Wilkinson filed a petition for  a writ of habeas corpus pursuant to 28  U.S.C. sec. 2254. His petition, as  amended, included the claim of  ineffectiveness based on his trial  attorney's failure to give Wilkinson a  copy of the coroner's report and to  appropriately investigate that report. R.  20 at 7-8. The State's answer to the  petition asserted that Wilkinson had  procedurally defaulted the  ineffectiveness claim (among others) by  failing to present that claim to the  Illinois appellate court on appeal from  the denial of his post-conviction  petition. R. 10 at 9-10. The district  court agreed and denied the petition in a  brief minute order, without reaching the  merits of the ineffectiveness claim. R.  21. After the district court declined  Wilkinson's request for a certificate of  appealability, he renewed his request in  this court. See 28 U.S.C. sec. 2253(c);  Fed. R. App. 22(b)(1). Upon examination  of the record and the district court's  order, a judge of this court granted  Wilkinson's application for a certificate  of appealability limited to the following  issue: "Whether trial counsel was  ineffective in failing to investigate  thoroughly and permit petitioner to  review the accuracy of the medical  examiner's autopsy report."

II.

12
Consistent with the limited terms of the  certificate of appealability that this  court issued, the sole claim that  Wilkinson pursues on appeal is the  ineffectiveness claim. In essence, he  contends that his attorney should have  discovered the errors in the coroner's  report; alternatively, he asserts that he  was familiar with his wife's medical  history and would have discovered  discrepancies in the report himself if  only his attorney had provided him with a  copy as he requested. Had these errors  been exposed at trial, Wilkinson argues,  they would have undermined the  credibility of the coroner's report and  weakened the State's case for the  proposition that Wilkinson deliberately  strangled his wife. No court has reached  the merits of this argument in any of the  summary orders issued to date. The State  argues that we ought not to do so either,  because Wilkinson procedurally defaulted  the ineffectiveness claim by failing to  present it to the Illinois Appellate  Court. See generally Picard v. Connor,  404 U.S. 270, 275-76, 92 S. Ct. 509, 512  (1971); Bocian v. Godinez, 101 F.3d 465,  469 (7th Cir. 1996); see also, e.g.,  Cawley v. DeTella, 71 F.3d 691, 694-95  (7th Cir. 1995); Jones v. Washington, 15  F.3d 671, 675 (7th Cir.), cert. denied,  512 U.S. 1241, 114 S. Ct. 2753 (1994),  overruled on other grounds by Hogan v.  McBride, 74 F.3d 144, 147, modified on  reh'g, 79 F.3d 578 (7th Cir. 1996);  Jenkins v. Gramley, 8 F.3d 505, 507-08  (7th Cir. 1993); Farrell v. Lane, 939  F.2d 409, 411 (7th Cir.), cert. denied,  502 U.S. 944, 112 S. Ct. 387 (1991).


13
The ineffectiveness claim, the State  notes, was not one of the claims that  Wilkinson pursued on direct appeal to the  Illinois Appellate Court. That claim, in  fact, was first raised in the post-  conviction petition that the circuit  court summarily dismissed as frivolous.  Although Wilkinson did appeal from that  dismissal, his appointed counsel sought  leave to withdraw without briefing the  merits of any of the issues raised in the  case. In the State's view, it was  incumbent upon Wilkinson at that juncture  either to submit a pro se memorandum  responding to the motion to withdraw or  to file his own brief addressing the  merits of the issues he sought to appeal.  Not having done so, Wilkinson never  presented the operative facts and legal  principles governing his ineffectiveness  claim to the Illinois appellate court,  and he thereby forfeited the right to  pursue that claim in federal court.


14
In view of the particular way in which  the Illinois appellate court disposed of  Wilkinson's post-conviction appeal,  however, we do believe that he  procedurally defaulted the  ineffectiveness claim. Wilkinson did take  an appeal from the dismissal of his post-  conviction petition, and to that extent  he preserved each of the claims asserted  in his post-conviction petition for  consideration by the appellate court. Had  the appeal proceeded to briefing on the  merits, Wilkinson (or his attorney) of  course would have been obliged to develop  the basis for his ineffectiveness claim  and thus to give the appellate court an  adequate opportunity to evaluate the merits of that claim. If he had omitted  to do so, he could be said to have  defaulted the claim. E.g., Howard v.  O'Sullivan, 185 F.3d 721, 725 (7th Cir.  1999); Momient-El v. DeTella, 118 F.3d  535, 540-41 (7th Cir.), cert. denied, 522  U.S. 984, 118 S. Ct. 448 (1997). Instead,  however, the public defender's office,  which had been appointed to pursue the  appeal on his behalf, sought leave to  withdraw, arguing without elaboration in  its motion and supporting "brief" that  the case presented no constitutional  issue worthy of appellate review.  Nominally, all that the defender's office  asked for was to be released from its  obligation to represent Wilkinson; it did  not request the court to dismiss the  appeal or to affirm the circuit court's  judgment. But of course, any motion to  withdraw pursuant to Finley or Anders v.  California, 386 U.S. 738, 87 S. Ct. 1396  (1967), necessarily implicates the merits  of an appeal, because the premise of the  motion is that the appeal is frivolous.  In deciding whether to allow the  withdrawal, the court must, therefore,  examine the substance of the case to  determine whether there are any issues of  arguable merit. Once the court has  satisfied itself that there are no such  issues, the court may not only release  the appellant's counsel, but proceed to  dismiss the appeal or to affirm the  judgment. See Anders, 386 U.S. at 744, 87  S. Ct. at 1400. The apparent practice in  Illinois is to affirm the judgment. See,  e.g., People v. Jones, 231 N.E.2d 390  (Ill. 1967) (direct appeal, applying  Anders); People v. Lee, 621 N.E.2d 287  (Ill. App. 1993) (post-conviction appeal,  applying Finley). That is precisely what  the appellate court did in this case. Its  affirmance was based on something less  than full, adversarial briefing--really,  no briefing at all-- but its order leaves  no doubt that, after a "careful[ ]  review[ ] [of] the record," the court  affirmed outright the dismissal of  Wilkinson's post-conviction petition. R.  11, Ex. F. at 2. This can only be  understood as a merits-based decision  with respect to each of the claims raised  in the petition, including the  ineffectiveness claim. See Penson v.  Ohio, 488 U.S. 75, 80, 109 S. Ct. 346,  350 (1988) (once the appellate court  decides that there is no non-frivolous  issue for appeal, "the court [may]  proceed to consider the appeal on the  merits without the assistance of  counsel") (emphasis ours).


15
It may have been possible, as the State  suggests it was, for Wilkinson on his own  initiative to have argued the merits of  his ineffectiveness claim either by  filing a memorandum in opposition to the  public defender's motion to withdraw (and  citing his ineffectiveness claim as one  that merited appellate review in the  normal course) or by filing a merits  brief of his own; but we do not think  that Wilkinson can be faulted for failing  to take either of these steps. Wilkinson  was not apprised (either by his attorney  or by the appellate court) that he had a  right to respond to the motion, let alone  an obligation to do so if he wished to  preserve his claims for further review.  Cf. Lee, 621 N.E.2d at 65 (post-  conviction appeal) ("Counsel requested  that this court grant petitioner a  reasonable opportunity to show cause why  the appeal should not be dismissed or the  judgment affirmed for lack of merit and  why the office of the State Appellate  Defender should not be allowed to  withdraw as counsel on appeal. The clerk  of this court advised petitioner that he  had 30 days in which to respond to the  motion and in which he could file any  additional matters of merit."); People v.  Hopkins, 354 N.E.2d 141, 142 (Ill. App.  1976) (post-conviction appeal) ("Copies  of the motion [to withdraw] and brief  were forwarded to the defendant, and he  was advised that he might file any points  in support of his position."). We do not  mean to fault either the appellate court  or Wilkinson's attorney for not taking  that step; Finley itself indicates that  such prophylactic measures are not  constitutionally required in the post-  conviction setting. We simply reject the  State's contention that Wilkinson can be  charged with a procedural default under  these circumstances.


16
When it chose to affirm outright the  dismissal of Wilkinson's post-conviction  petition, the appellate court rendered a  merits judgment as to each of the claims  raised in that petition. The fact that  the court did not identify or discuss the  ineffectiveness claim in its order is  irrelevant. Smith v. Digmon, 434 U.S.  332, 98 S. Ct. 597 (1978) (per curiam).  What matters is that Wilkinson made the  claim in his post-conviction petition,  that the appellate court undertook a  "careful review" of the record on its own  without soliciting merits briefing from  Wilkinson, and affirmed the dismissal of  his petition. Notably, the court did not  rely on any omission by Wilkinson as an  independent procedural ground for  affirmance; it chose instead to affirm  the dismissal of Wilkinson's petition  outright. Accordingly, the federal courts  have jurisdiction over Wilkinson's  ineffectiveness claim. See generally  Harris v. Reed, 489 U.S. 255, 109 S. Ct.  1038 (1989); see also, e.g., Hunter v.  Aispuro, 982 F.2d 344, 347-48 (9th Cir.  1992), cert. denied, 510 U.S. 887, 114 S.  Ct. 240 (1993); Lewis v. Borg, 879 F.2d  697, 698 (9th Cir. 1989) (per curiam);  cf. Coleman v. Thompson, 501 U.S. 722,  740, 111 S. Ct. 2546, 2559 (1991)  (procedural default found where state  supreme court granted State's motion to  dismiss petition to appeal as untimely,  as opposed to denying petition).1


17
At this juncture, we believe it  appropriate to return the case to the  district court to give that court the  first opportunity to consider the merits  of Wilkinson's ineffectiveness claim.  None of the four courts to which this  claim has been presented previously has  explicitly addressed this claim.  Wilkinson is entitled to have the claim  considered, and our own evaluation of the  claim on appeal would be greatly  facilitated if we had some rationale to  review.

III.

18
Having found that Wilkinson did not  procedurally default his claim of  attorney ineffectiveness, we REVERSE the  judgment in part and REMAND the case to  the district court so that it may address  the merits of that claim.



Notes:


1
  Wilkinson has independently argued that the  Illinois appellate court deprived him of due  process by affirming the circuit court's judgment  without first granting him the opportunity to  retain new representation or allowing him to file  his own brief, once the court had decided to  allow the public defender to withdraw. That  argument was not presented below, however,  notwithstanding the fact that the issue was  evident from the face of the appellate court's  order. Typically, we do not reach the merits of  arguments raised for the first time on appeal,  e.g., Perry v. Sullivan, 207 F.3d 379, 383 (7th  Cir. 2000), and we discern no special  circumstances that would counsel in favor of us  doing so here.


