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United States Court of Appeals,Seventh Circuit.

Jerome WHITE, Petitioner-Appellant, v. Salvador A. GODINEZ, Respondent-Appellee.

No. 96-3187.

Decided: September 29, 1999

Before CUMMINGS,*WOOD, JR. and RIPPLE, Circuit Judges. Jerold S. Solovy, Jenner & Block, Chicago, IL, Brigitte Nuss, Chapman & Cutler, Chicago, IL, for Petitioner-Appellant. William L. Browers, Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

This matter is before the court on remand from the Supreme Court of the United States.   The Supreme Court has directed that we reevaluate our decision in light of its holding in O'Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).   See Godinez v. White, 526 U.S. ----, 119 S.Ct. 2335, 144 L.Ed.2d 233 (1999).

In Boerckel, the Supreme Court held that failure to pursue a discretionary appeal to the highest court of the state constitutes a procedural default that bars resort to federal habeas corpus relief.   Although Boerckel involved a criminal matter on direct appeal, we do not believe that there is any appreciable difference between direct appeals and post-conviction appeals in this regard.   Therefore, the procedural default rule announced in Boerckel applies with equal force in a case, such as this one, on collateral review.

It is undisputed that two of the ineffective assistance of counsel claims raised by Mr. White were raised in his petition for leave to appeal to the Supreme Court of Illinois.   These two claims assert:  (1) that his trial counsel failed to consult adequately with Mr. White before trial;  and (2) that his trial counsel failed to call Bernice Caldwell as a witness.   These two claims are therefore undefaulted and, with respect to those claims, the Supreme Court's holding in Boerckel has no impact on this court's original decision.   See White v. Godinez, 143 F.3d 1049 (7th Cir.1998).   Therefore, in accordance with our earlier decision, these two claims must be remanded to the district court for further proceedings in accordance with our earlier decision.

remanded with instructions


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