The second part of Petitioner’s third claim presents a much more difficult question since
the Supreme Court has never clearly addressed whether, in a pre-sentencing competency
examination, a defendant maintains a Sixth Amendment right to have counsel present. In, Estelle
v. Smith, 451 U.S. 454 (1981), the Court found a violation of defendant’s Sixth Amendment right
to counsel where he was not given an opportunity to consult with his counsel prior to a pre-trial
psychiatric competency exam and where defendant’s exam statements were entered into evidence
by the prosecution during sentencing. The Court did note, however, that “[rJespondent does not
assert, and the Court of Appeals did not find, any constitutional right to have counsel actually
present during the examination. In fact, the Court of Appeals recognized that ‘an attorney
present during the psychiatric interview could contribute little and might seriously disrupt the
examination.”” /d. at 471 (quoting Smith v. Estelle, 602 F.2d 694, 708 (Sth Cir. 1979)). The
Court’s note in Estelle suggests that Petitioner does not have a valid Sixth Amendment claim
here.

Moreover, the stage at which Petitioner’s competency examination occurred further
suggests that he did not have a constitutional right to counsel during the exam. The Sixth
Amendment provides every defendant with the right to have adequate representation during a
“critical stage” of the adversarial proceedings. Holloway y, Arkansas, 435 U.S. 475 (1978);
United States v. Wade, 388 U.S. 218 (1967). The right applies only to stages of the proceedings
where absence of defense counsel might derogate from the accused’s right to a fair trial.
Although the Sixth Amendment right to counsel does extend to critical stages in the sentencing
phase of criminal proceedings, Mempa v. Rhay, 389 U.S. 128 (1967), its protections apply only

where the adversary character of the criminal proceedings is involved. Kirby v. Illinois, 406 U.S.


Petitioner’s first and second claims raise issues pertaining to his trial, including claims
regarding the evidence, indictment, transcripts and court orders. Since Petitioner never presented
these claims to any state court on appeal, they are procedurally defaulted under 28 U.S.C. §
2254(b)(1). See Farrell, 939 F.2d at 410.

Petitioner’s third claim, alleging that he was found unfit for sentencing by false evidence,
challenges petitioner’s involuntary commitment to a mental institution.' Thus far, Petitioner has
failed to present his third claim to any state court on appeal. Despite this failure, Petitioner’s
state court remedies have been exhausted, as the time for filing an appeal from the finding of
unfitness has expired. The statutory expiration qualifies as exhaustion because no other remedies
were available at the time this petition was filed. See Engle v. Isaac, 456 U.S. 107, 125-26
(1982); Farrell, 939 F.2d at 410. Thus, I will consider Petitioner’s third claim on its merits.

Petitioner’s third claim alleges that he was deemed unfit for sentencing by false evidence
and that he was-denied his request to have a lawyer present during the fitness examination.
Regarding the first part of this claim, the state court’s factual findings are presumed to be correct
unless the petitioner rebuts this presumption with “clear and convincing” evidence, 28 U.S.C. §
2254(e).” Petitioner cannot meet this burden. Not only does he fail to present any evidence of

falsity, but he also fails to identify the specific evidence he is challenging as false.

"Tt has been well accepted that habeas corpus is the traditional remedy for challenging
involuntary commitment in a mental institution. See United States v. Fuller, 86 F.3d 105, 106-07 (7th
Cir. 1996).

? 28 U.S.C. § 2254(e) provides that “a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a
factual issue made by a State court shal! be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing evidence.”


682, 691 (1972) United States v. Morrison, 449 U.S. 361, 365 (1981); Gerstein v. Pugh, 420 U.S.
103, 123 (1975).

In the context of Petitioner’s case, the examining psychiatrist did not gather potential
evidence for use against him at trial, but rather, merely sought to determine whether Petitioner
was fit for sentencing. In this situation, the examination was not adversarial, and thus, a Sixth
Amendment right to counsel does not apply. See also People v. Lazzarino, 157 Misc. 2d 627,
631 (NY City Crim. Ct. 1993) (holding that defendant’s sixth amendment right to counsel is not
violated by lack of counsel’s presence at pre-sentence competency exam); United States v.
Jackson, 886 F.2d 838 (7th Cir. 1989) (holding that a Sixth Amendment right to counsel does not
exist for pre-sentence interview by a probation officer); United States v. Byers, 740 F.2d 1104,
1119 (D.C. Cir. 1984) (holding that a competency examination is not an adversary stage of the
proceedings). On the basis of the reasoning above, I find that Petitioner did not have a right to

counsel during his post-conviction, pre re-sentencing competency examination.

For the reasons stated herein, the petitioner’s petition for writ of habeas corpus is

DENIED.

ENTER:

James B. Zagel rm)
Unifed States Districf Judge

DATE: 24 Oe 5 200


x

Minute Order Form (06/97)

\Yio United States District Court, Northern District of Mlinois

singe Maginrate Jude James B. Zagel “than Aesigned Judge

CASE NUMBER 03 C6572 DATE 8/24/2004
CASE RONALD ALVINE vs. CHESTER MENTAL HEALTH CENTER
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintif¥, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented. ]

MOTION:

DOCKET ENTRY:

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

(2) Q Brief in support of motion due

(3) Oo Answer brief to motion due__. Reply to answer briefdue___

(4) oO Ruling/Hearing on___sset for__—__at

(5) o Status hearing[held/continued to] [set for/re-set for]on___—_ssetfor_ at

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

(7) im Trial[set for/re-set for]on_ ss at_—

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

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 COFRCP41(a\(1) Oi FRCP41(a)(2).

qo) =f [Other docket entry] The petition for a writ of habeas corpus is denied. Enter memorandum

opinion and order.

di) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices uired.
jotices require number of notices

Notices mailed by judge’s staff.

|__|
vv Docketing to mail notices.
v

Notified counsel by telephone. AUG 3 0 2004

date dockeied

Mail AO 450 form.

Copy to judge/magistrate judge

courtroom date mailed notice

Dw deputy’s
initials

Date/time re

ruiling deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION pocKeTes

2004
UNITED STATES ex rel, RONALD ave 3¢
ALVINE,
Petitioner,
No. 03 C6572
v. Judge James B. Zagel

CHESTER MENTAL HEALTH CENTER,

Respondent.

MEMORANDUM OPINION AND ORDER

Petitioner Ronald Alvine, who is in custody at the Chester Mental Health Center, has
filed a petition for writ of habeas corpus. Petitioner was convicted in the circuit court of DuPage
County of first-degree murder (under theories of both knowing murder and felony murder),
burglary and possession of a stolen motor vehicle and was sentenced to death for knowing
murder, but was not sentenced on felony murder. Petitioner appealed, raising claims as to the
guilt-innocence phase of his trial, as well as several sentencing issues. The Illinois Supreme
Court reversed Petitioner’s conviction for knowing murder, affirmed his remaining convictions,
vacated the death sentence, and remanded, holding that Petitioner should be sentenced on the
felony murder count. People v. Alvine, 671 N.E.2d 713 (1996). On remand, the circuit court
summarily imposed a death sentence on the felony murder count without holding a sentencing
hearing. Petitioner appealed, and the Illinois Supreme Court held that Petitioner was entitled to a
new sentencing hearing on the felony murder count and remanded the case. People v. Alvine,

737 N.E.2d 299 (2000). On August 21, 2002, following a hearing held pursuant to 725 ILCS

1


5/104-16, Petitioner was found unfit for sentencing for inability to assist counsel. Petitioner has
not appealed that ruling.

On August 27, 2003, Petitioner filed this petition raising three separate claims: (1)
alleging that false evidence was used against him at trial, that his indictment was invalid, and that
certain transcripts had been altered; (2) alleging that the following orders were incorrect: an order
granting the state’s motion to nolle pros certain charges, an order denying a defense motion for
directed verdict, an order denying Petitioner’s motion for trial transcripts, and orders directing his
defense attorney to provide him the opportunity to review disclosures by the state and setting a
date for Petitioner to view evidence not in the possession of the state or defense; and (3) alleging
that he was found unfit for sentencing by false evidence and that his request for an attorney to be
present during the competency examination was refused.

In order to be entitled to federal habeas relief, Petitioner must establish that he is being
held in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(d).

A federal court shall not grant habeas corpus relief on any claim adjudicated on the merits by a
state court unless the state court’s decision was contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court, or unless the
state court's determination of the facts was unreasonable in light of the evidence. 28 U.S.C. §
2254(d). Additionally, Petitioner may seek federal habeas review only if he has exhausted all
available state court remedies and in the course of those proceedings, fully and fairly presented
his claims to the states’ courts. 28 U.S.C. § 2254(b)(1). See also Farrell v. Lane, 939 F.2d 409,

410 (7th Cir. 1991),