Benford filed a post-conviction petition, all claims that she failed to include in that petition were waived
and thus cannot be presented in Illinois court. The claim is therefore exhausted.

Benford did commit a procedural default by failing to raise the claim in lower court. Although
a procedural default usually precludes review by federal courts, the state of Illinois has waived its ability
to present a procedural default argument by failing to include such an argument in its answer to
Benford’s petition. See Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir. 1991). Therefore, this
court may consider Benford’s due process claim.

We grant Benford’s motion for appointment of counsel because she has sufficiently stated a
claim with respect to at least one of the issues that she raised in her petition. We dismiss her motion

to proceed in forma pauperis as moot because she has already paid the requisite filing fee.

A oI

MARVIN E. ASPEX”
United States District Judge

Dated L Uf "1 [o3

4.


We find that Benford’s petition has merit at least with respect to her claim that she was denied
due process of law because the trial court improperly considered twelve victim impact statements during
her sentencing in violation of a statute that only allows consideration of one such statement. 725 ILCS
120/1 et seq. It is clear, as the Illinois Appellate Court recognized, that the trial court did not comply
with the act’s requirements. People v. Benford, 692 N.E.2d 1285, 1289 (Ill.App.Ct. 1998). The Illinois
Appellate Court declined to grant Benford relief, however, because the act provides that “[nJothing in
this Act shall create a basis for vacating a conviction or a ground for appellate relief in any criminal
case.” Id. (citing 725 ILCS 120/9). Subsequent to the Illinois Appellate Court’s decision, the Illinois
Supreme Court addressed the identical issue of whether violation of 725 ILCS 120/1 can constitute a
basis for appellate relief. There, the court confirmed that consideration of additional victim impact
statements is generally not sufficient to reverse a sentence. People v. Richardson, 751 N.E.2d 1104,
1106-07 (il. 2001). The court recognized, however, that a violation of the statute could require a new
sentencing hearing where the presentation of the additional evidence is so unduly prejudicial that it
renders the proceeding fundamentally unfair and thus violates the Due Process Clause of the Fourteenth
Amendment. Jd. (citing Payne v. Tennessee, 501 U.S. 808 (1991)). The Illinois Appellate Court never
considered whether the admission of the victim impact statements constituted a violation of her due
process rights. Benford therefore sufficiently alleges a claim for relief.

Admittedly, Benford did not raise the due process issue in front of the Illinois courts. Generally,
this omission would constitute a failure to exhaust her remedies and we would have to deny Benford’s
petition. See Picard v. Connor, 404 U.S. 270, 278 (1971) (holding that if a habeas petitioner wishes to
raise a federal claim, details regarding the substance of the federal claim must be presented to the state
courts before bringing the issue to federal court). The rule of Picard does not apply here because, under

Illinois law, Benford may not bring this claim back to state court. Under 725 ILCS 5/122-3, once

3-


Minute Order Form (0697)

United States District Court, Northern District of Illinois

netor Magistrate Judge Marvin Aspen “thn Axigned Judge

CASE NUMBER 03 C 2643 DATE 11/7/2003
CASE Willette Benford vs. Masching
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented. ]

MOTION:

DOCKET ENTRY:

(0) a Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motiondue___.

@) o Answer brief to motiondue__. Reply to answer briefdue____—.

(4) ia Ruling/Hearingon____setfor_ at.

(3) | | Status hearing set for 1/22/2004 at 10:30 A.M..

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—setfor_———sat_—

(7) im Trial[set for/re-set for]on__at

(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at

(9) i) This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) OlLocal Rule 41.1 CIFRCP41(a)(1) (/FRCP41(a)(2).

(10) | [Other docket entry] | Enter Memorandum Opinion and Order: We grant Benford’s motion or

appointment of counsel because she has sufficiently stated a claim with respect to at least one of the issues
that she raised in her petition. The Court appoints an attorney from the Federal Defender Program as
counsel for petitioner. We dismiss her motion to proceed in forma pauperis as moot because she has
already paid the requisite filing fee.

al @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court. | Document
i Number

No notices required aber of psices

wv | Notices mailed by judge's staff. Noy 1 0 2003

Notified counsel by telephone.

date docketed

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.
courtroom
GL deputy’s
initials Ti bawinw sawed? aa
Si), 1 Datestime received in
we’ contra idle Office



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
WILLETTE BENFORD, )
Petitioner, }
v. } No. 03 CV 2643
LYNN CAHILL-MASCHING,
pespondent DOCKETED

Noy
MEMORANDUM OPINION & ORDER 10 2003

Presently before us is Petitioner Willette Benford's application to proceed in forma pauperis and
motion for appointment of counsel. In our order of August 27, 2003, we refrained from ruling on
Benford’s application and motion. We provided Benford with additional time to file a supplemental
letter with this Court that set forth a more detailed explanation of her finances and her efforts to secure
counsel. Benford filed the supplemental letter on September 16, 2003. In light of the information
contained in the letter, we grant Benford’s motion for appointment of counsel. We dismiss Benford’s
motion to proceed in forma pauperis as moot because Benford paid the requisite filing fee on March 14,
2003.

The court may appoint counsel to a plaintiff in a habeas corpus case brought pursuant to 28
U.S.C. § 2254 upon a determination that justice so requires. 18 U.S.C. § 3006A(a}(2). There are
several factors that a court may consider in determining whether appointment of counsel is necessary.

First, “a litigant must make a reasonable attempt to secure private counsel” before a court may
appoint counsel on the litigant’s behalf. Zarnes v. Rhodes, 64 F.3d 285, 288 (7th Cir. 1995). Benford’s
original motion did not contain evidence of an attempt to retain counsel. Upon the request of this court,

she filed a supplemental letter listing the names and addresses of eight attorneys that she contacted. She

\o-



also provided the court with a copy of the letter that she sent to each of the attorneys. Finally, she stated
that she had not yet received a response from any of the attorneys listed. In providing the list and the
letter, Benford has demonstrated a reasonable attempt to secure private counsel.

Second, the court must consider whether Benford has sufficient financial resources to retain
counsel. 18 U.S.C. § 1915(e)(1). Benford is currently confined at the Lincoln Correctional Facility.
She has submitted a copy of her inmate trust fund showing a balance of less than $100. She is employed
by the warden of the correctional facility and receives $30.00 per month salary. She also receives
occasional gifts from friends and family in the amount of approximately $70 per month. She does not
own any real estate or other substantial assets. These assets are not sufficient for Benford to retain
private counsel.

Third, we consider the factors listed in McKeever v. Israel in determining whether we should
appoint counsel. Those factors are: 1) whether the underlying claim has merit; 2) whether Benford is
able to adequately investigate the factual issues in dispute; 3) whether the only evidence is conflicting
testimony; 4) whether Benford is capable of presenting her case; and 5) whether the law to be applied
is complex or unclear. McKeever v. Israel, 689 F.2d 1315, 1320 (7th Cir. 1982).

Out of this list of factors, the “threshold question” is whether the underlying claim has merit.
Id, We evaluate whether the claim has merit by asking whether the claim would survive a motion to
dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under 12(b)(6), dismissal is
warranted only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Where, as here,
a plaintiff is proceeding pro se, we have a special responsibility to construe her complaint liberally. See

Donald v. Cook County Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir. 1996).