In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1220

MARK WILKINSON,

Petitioner-Appellant,

v.

ROGER D. COWAN, Warden,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 98 C 3430--George W. Lindberg, Judge.


Argued December 7, 1999--Decided November 1,
2000




  Before HARLINGTON WOOD, JR., RIPPLE, and
ROVNER, Circuit Judges.

  ROVNER, Circuit Judge. 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.

  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.

  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
fiancee, 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.

  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.

  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.

  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.

  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:

  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.
  Affirmed.

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.

  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.

  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).

  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.

  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).

  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.

  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

  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.

  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.




/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.
