Richard E. Lane v. Thomas D. Richards and Linley E. Pearson , 957 F.2d 363 ( 1992 )

EASTERBROOK, Circuit Judge.

Somewhere in the Twilight Zone lingers the case of Lane v. Indiana. In October 1986 Lane began a collateral attack in state court on his conviction. (He is serving a life sentence for murder. See Lane v. State, 266 Ind. 485, 364 N.E.2d 756 (1977).) On November 18,1986, the court appointed Darrolyn A. Ross, a deputy public defender, to represent Lane. Ross filed a motion for a continuance — apparently a perpetual continuance, for nothing has happened since.

Ross has sent Lane a series of lulling letters. In July 1987 Ross explained that “an ongoing emergency situation in another case” had occupied her time but that “I have not forgotten you and that I intend to respond to your letter after this emergency matter is resolved.” In November 1987 Ross apologized for further delay, which she admitted was “far too long”, and promised to visit Lane “as soon as possible”. Lane then asked Susan Carpenter, the Public Defender of Indiana, to assign him another lawyer; in January 1988 Carpenter refused, saying that “Deputy Ross is an extremely good attorney and she needs time to read your record in order to prepare your case.... You are not being placed behind anyone except those who sought our assistance before you did, and we will get you to hearing as soon as we are able to do so.” On July 1, 1988, Ross wrote to Lane that she has been “doing some preliminary work on your case” and was “planning to either have your case resolved or set for hearing by this Fall.” Come the fall, Ross wrote Lane that “things have started resolving themselves and I plan to give your case the concentration it needs within the next couple of months.”

The next couple of months passed, as did many more; while the months rolled on, so did the train of letters. Lane heard from Ross in August 1989 that “you are right at the top of my list”. In January 1990 Ross wrote to Lane that she would “soon” approach the prosecutor in an attempt to negotiate a lower sentence. In September 1990 Ross wrote again, defining “soon”: she would “meet with the Bartholomew County Prosecutor right after the election in November.... I assure you your name is on my calendar for November projects”. This is the last communication from Ross. The state case is in stasis. In five years and two months, Ross has done nothing to assist Lane. (At oral argument, a Deputy Attorney General of Indiana told us that he thought Ross would “soon” approach the prosecutor to initiate negotiations.) And if we are to believe Carpenter’s letter, no one whose case began after October 1986 has received aid from the Public Defender of Indiana.

Lane has pleaded with Ross, to no avail. He pleaded with Carpenter, to no avail. He complained to Indiana’s Disciplinary Commission, which replied that the delay “does not raise a substantial question of misconduct which would warrant disciplinary action against Ms. Carpenter and Ms. Ross. Therefore, the complaint has been dismissed.” And Lane has complained to the United States District Court, which dismissed his petition for a writ of habeas corpus on the ground that he has yet to exhaust state remedies.

This is a woeful performance by the State of Indiana — by a lawyer who has done nothing on her client’s behalf for more than five years, by a judge who has allowed the case to grow a beard, by a prosecutor who at oral argument told us that all of this is really in Lane’s best interest, by a disciplinary body that sees no evil when lawyers deceive their clients about the attention given to their claims. We appreciate the Public Defender’s problem: too many clients, not enough lawyers. As the legislature sets the number of lawyers available, the number of cases per lawyer is beyond the control of the office. But inadequate resources do not justify misleading prisoners about what lies in store. A lawyer who cannot provide zealous representation must withdraw, not lead the client to believe that relief is just around the corner.

None of this, however, opens the door to the relief Lane seeks: a writ of habeas corpus. Lane contends that, after he surrendered, the police did not honor his request to remain silent. In affirming his conviction, the Supreme Court of Indiana rejected Lane’s argument that the interrogation violated Miranda. Now Lane wants a second opinion on that question. His petition adds that he received ineffective assistance at trial and that his sentence is unconstitutional because longer than that meted out to codefendants. Lane is entitled to a federal court’s assessment-only after exhausting his remedies in state court — and he has not exhausted these remedies, the district judge concluded, because the case he filed in 1986 remains on the state court’s docket.

Lane blames Ross for the inaction and asks us to hold that the State of Indiana has closed its ears and doors to his contentions. Lane’s obstacle is the principle that there is no constitutional right to counsel on collateral attack. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). Errors committed by counsel representing a prisoner on collateral attack are not attributed to the state. Coleman v. Thompson, — U.S. -, 111 S.Ct. 2546, 2566-67, 115 L.Ed.2d 640 (1991). Ross filed on Lane’s behalf a motion for a continuance in state court. The state court’s order in February 1987 granting a continuance provides that the case will be set for hearing on request. All Lane need do is fire Ross and request a hearing. We appointed a lawyer to represent Lane in this court; this lawyer could tell Lane these things. True, to get a hearing in Indiana Lane must surrender all hope of assistance by the public defender (if what he has received can be called “assistance”), but as the Constitution does not guarantee the aid of counsel to prosecute a collateral attack, putting a prisoner to a choice between a lawyer and a prompt hearing does not violate the Constitution.

Cases such as Dozie v. Cady, 430 F.2d 637 (7th Cir.1970), and Lowe v. Duckworth, 663 F.2d 42 (7th Cir.1981), hold that a district court should determine whether lengthy delay in the state court is justifiable; if it is not, then the district judge should deem state remedies exhausted. See also Harris v. Champion, 938 F.2d 1062 (10th Cir.1991); Hankins v. Fulcomer, 941 F.2d 246 (3d Cir.1991). The reason for the delay is no mystery, so we do not need a hearing to explore that reason: the state case came to a halt because Ross asked for a continuance. If Ross spoke for Lane, then he is in no position to protest that the state is unwilling to decide his case. Under the common law a lawyer speaks for her client; Coleman and Finley reinforce the conclusion that Ross spoke for Lane; the request (and thus the delay) cannot be attributed to his adversary. Cf. Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Given Lane’s ability to get the state case back under way, it would ill serve interests of comity among courts to remand this case for an inquiry into why the state judge granted the continuance and has not spontaneously revoked his order. Neither the state judge nor the state judicial system is on trial here.

Lane’s argument to the contrary implies that by appointing a lawyer in order to make its remedial processes more effective, Indiana has made them less so, which allows him to bypass the state courts. Yet an option (Indiana’s statutory entitlement to counsel) is not a millstone. It enlarges rather than contracts opportunities. By dismissing counsel, a prisoner in Indiana may put himself in the same position as the ordinary prisoner in other states that do not offer legal assistance. Counsel may deceive her client, as Ross appears to have done, and in this sense the appointment can injure the prisoner; but given Coleman this particular injury is not attributed to Indiana. A state’s offer of a judicial proceeding, or of a proceeding with the assist-anee of an albatross, is an offer of a judicial proceeding — one still open to Lane.

There remains a possibility that Lane has exhausted his state remedies because Indiana will decline to address his claims on the merits even after he requests a hearing. The Supreme Court of Indiana considered and rejected the Miranda contention in 1977 and is unlikely to revisit the subject. Other of Lane’s arguments, such as the challenge to the sentence and his potential recharacterization of the Miranda argument as a contention that the confession was involuntary, were not presented on direct appeal, and relief would be barred by that procedural default. E.g., Adams v. State, 575 N.E.2d 625, 628 (Ind.1991). A procedural bar to relief in state court means that there is no “available State corrective process” within the meaning of 28 U.S.C. § 2254 and thus establishes exhaustion. Teague v. Lane, 489 U.S. 288, 297-98, 109 S.Ct. 1060, 1067-68, 103 L.Ed.2d 334 (1989); Mikel v. Thieret, 887 F.2d 733, 736 (7th Cir.1989); Barrera v. Young, 794 F.2d 1264, 1268-69 (7th Cir.1986). The district court wrote that it “will not bottom its decision in this case on procedural default, given the basic teaching of Harris v. Reed, 489 U.S. 255 [109 S.Ct. 1038, 103 L.Ed.2d 308] (1989).” By this the court apparently meant that because Lane had not presented his claims at all, the state court had not rejected them on procedural grounds, so they remain live. Such an approach misreads Harris. “A person who never presents a claim to state court cannot demand that the state court give a reason, rooted in state law, for not considering that claim. When a state would treat complete failure to present a claim as forfeiture, ... the federal court may enforce the state’s bar on collateral review. Harris, 489 U.S. at 269-70, 109 S.Ct. at 1046-47 (O’Connor, J., concurring).” Reese v. Peters, 926 F.2d 668, 671 (7th Cir.1991) (emphasis in original).

Lane’s counsel in this court has concentrated on the confession. If that were the only subject raised in the petition, all state remedies would be exhausted. It is not. Lane’s challenge to the adequacy of his lawyer at trial is a novel issue — one not decided on direct appeal and open on collateral attack in Indiana. Because a petition containing any un-exhausted claim must be dismissed outright, Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the district judge properly remitted Lane to his state remedy.

If Lane were to eliminate the challenge to the adequacy of his lawyer, the federal court would retain the case. Perhaps, however, Lane will conclude that even his dim prospects of success in state court are brighter than those in federal court, given the doctrine of "abuse of the writ.” See McCleskey v. Zant, — U.S.-, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). This is Lane’s second petition seeking a writ of habeas corpus from the federal court. The first petition, filed in 1979, was denied. All of the claims Lane now presents were or should have been known in 1979. McCles-key does not leave Lane much room to maneuver. Be that as it may, the choice is his: state court with the petition in its current form, or federal court with the petition sans the attack on counsel.

Affirmed.