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FOURTH DIVISION
December 16, 2004

Plaintiff Jeffrey Alexander appeals from an order of the circuit court dismissing his habeascorpus petition. Plaintiff's appointed counsel on appeal, the State Appellate Defender (SAD),contends that (1) this court should allow the SAD to withdraw as counsel and dismiss this appealbecause the SAD is not authorized to represent a petitioner appealing the dismissal of his habeascorpus petition; and (2) in the interest of judicial economy, this court should dismiss the appealbecause the substantive issue raised by plaintiff's appeal has been resolved by this court in anotherappeal by plaintiff. The State concurs that the SAD should be allowed to withdraw as counsel.

Following a jury trial, plaintiff was convicted of two counts of armed robbery andsentenced to concurrent extended prison terms of 55 years. On direct appeal, this court affirmedone conviction and sentence and vacated the other conviction. People v. Alexander, No. 1-91-1395 (1993) (unpublished order under Supreme Court Rule 23).

Plaintiff filed a pro se post-conviction petition, and this court affirmed the dismissal of thepetition pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990(1987). People v. Alexander, No. 1-97-0316 (1997) (unpublished order under Supreme CourtRule 23). Plaintiff's second pro se post-conviction petition, alleging that his 55-year extended-term sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d435, 120 S. Ct. 2348 (2000), was summarily dismissed. This court affirmed, finding that, underFinley, there were no arguable bases for collateral relief, and specifically that the supreme courthas decided that Apprendi does not apply retroactively to cases on collateral review. People v.Alexander, No. 1-03-0016 (2004)(unpublished order under Supreme Court Rule 23), citingPeople v. De La Paz, 204 Ill. 2d 426, 429 (2003).

In February 2002, plaintiff filed a habeas corpus petition raising a single claim: that hisextended sentence was unconstitutional under Apprendi. The State moved to dismiss the petitionon the grounds that Apprendi claims are not cognizable in habeas corpus proceedings and thatApprendi does not apply retroactively to cases on collateral review. The circuit court dismissedthe petition on July 2, 2003.

Plaintiff timely filed a pro se notice of appeal, accompanied by a motion for theappointment of counsel. The trial court appointed the Public Defender of Cook County asplaintiff's counsel. This court allowed the Public Defender to withdraw and appointed the SAD asplaintiff's counsel. The SAD then moved to withdraw on the ground that it is not authorized torepresent petitioners in appeals from civil cases such as the denial of habeas corpus petitions. This court did not decide the motion to withdraw, but directed the SAD to address in its brief theissues of whether a habeas corpus proceeding is civil or criminal and whether the SAD may beappointed to represent a petitioner appealing from the dismissal of his habeas corpus petition.

The State Appellate Defender contends that it should be allowed to withdraw as plaintiff'scounsel on appeal because the SAD is not authorized by its enabling statute to represent apetitioner appealing the dismissal of his habeas corpus petition. Specifically, the SAD contendsthat it is limited by the State Appellate Defender Act to "represent[ing] indigent persons on appealin criminal and delinquent minor proceedings." 725 ILCS 105/10(a) (West 2002). The SAD alsocontends that this appeal should be dismissed as moot because the sole substantive issue --plaintiff's Apprendi claim -- was fully addressed in this court's recent decision in Alexander, No. 1-03-0016. The State joins in the SAD's request to withdraw and contends that this court shoulddismiss this appeal or affirm the judgment because collateral estoppel bars the litigation of theApprendi issue we decided in Alexander, No. 1-03-0016.

There is no provision in the Habeas Corpus Act (735 ILCS 5/10-101 et seq. (West 2002))for the appointment of counsel, and it is a long-established principle that there is no right toappointed counsel in a habeas corpus proceeding due to its civil nature.

"'The writ of habeas corpus is the remedy which the law gives forthe enforcement of the civil right of personal liberty. *** Proceedings to enforce civil rights are civil proceedings, andproceedings for the punishment of crimes are criminal proceedings.*** The prosecution against him is a criminal prosecution, but thewrit of habeas corpus which he has obtained is not a proceeding inthat prosecution. On the contrary, it is a new suit brought by himto enforce a civil right, which he claims, as against those who areholding him in custody, under the criminal process.'" People ex rel.Ross v. Ragen, 391 Ill. 419, 422-23 (1945), quoting Ex parte TomTong, 108 U.S. 556, 559-60, 27 L. Ed. 826, 827-28, 2 S. Ct. 871,872 (1883).

Therefore,

"'This being a case involving only the enforcement of relator's civilright of personal liberty, separate and distinct from the criminalproceeding in which punishment for a crime was imposed upon him,he is not in the position of an 'accused' in a 'criminal prosecution.' The court is neither authorized nor empowered to appoint counselto appear for him.'" People ex rel. McGuire v. Sympson, 20 Ill.App. 3d 139, 140 (1974), quoting Ragen, 391 Ill. at 423.

In Tedder v. Fairman, 92 Ill. 2d 216 (1982), the supreme court acknowledged that therewas no right to appointed counsel in a prisoner's mandamus action but ruled that the trial courthad the authority or discretion to appoint the public defender as counsel in such a case. Tedder,92 Ill. 2d at 226. The relevant statute provided that "[t]he Public Defender, as directed by thecourt, shall act as attorney *** for all persons who are held in custody or who are charged withthe commission of any criminal offense, and who the court finds are unable to employ counsel." Ill. Rev. Stat. 1979, ch. 34, par. 5604; now 55 ILCS 5/3-4006

(West 2002). Applying this statute, the court stated:

"Public defenders are expressly authorized by the statute torepresent indigent persons 'held in custody.' The public defenderacts as a legal representative 'as directed by the court.' *** Thereis no legislative mandate that a public defender be appointed torepresent an indigent prisoner in a case alleging deprivation of aprisoner's civil rights in Illinois. However, the statutory languagedoes not preclude such an appointment." Tedder, 92 Ill. 2d at 226-27.

In Maloney v. Bower, 113 Ill. 2d 473 (1986), the public defender petitioned the supremecourt for a writ of prohibition barring his circuit court appointment to represent an indigentperson in a civil contempt proceeding. Maloney, 113 Ill. 2d at 475-76. The supreme court issuedthe writ, finding that the circuit court did not have the authority to appoint the public defender. Maloney, 113 Ill. 2d at 481.

"It is fundamental that courts, when interpreting a statute, mustascertain and give effect to the legislature's intention in enacting thestatute. In doing so, courts must give the language of the statute itsplain and ordinary meaning. *** Courts, when acting under thePublic Defender Act, can make appointments only as the Actprovides. A chief judge, in exercising his authority to issue generalorders for the administration of the courts, cannot use that authorityto enlarge the duties of the office of the public defender beyondwhat the legislature has provided." Maloney, 113 Ill. 2d at 479.

The court distinguished its decision in Tedder. The Public Defender Act authorized therepresentation of indigent persons "held in custody," and the Tedder plaintiffs were seeking a writof mandamus "regarding conditions of their confinement." Maloney, 113 Ill. 2d at 480-81. TheTedder court thus had "stated that such appointments were to be limited to situations involvinggrievances related to a plaintiff's confinement." Maloney, 113 Ill. 2d at 481, citing Tedder, 92 Ill.2d at 227.

The State Appellate Defender Act (Act), 725 ILCS 105/1 et seq. (West 2002), providesthat:

"The State Appellate Defender shall represent indigent persons onappeal in criminal and delinquent minor proceedings, whenappointed to do so by a court under a Supreme Court Rule or lawof this State." 725 ILCS 105/10(a) (West 2002).

This statute clearly limits appointment of the SAD to appeals from criminal and delinquentminor proceedings. It does not contain the "held in custody" provision of the Public Defender Actthat authorized, under Tedder, the appointment of the public defender in a prisoners' mandamusaction challenging the conditions of their confinement. In Kirwan v. Karns, 119 Ill. 2d 431(1988), the supreme court allowed the SAD to withdraw as appellate counsel when it found thatthe juvenile proceedings being appealed were civil in nature rather than being criminal ordelinquent minor proceedings and thus, pursuant to the Act, the SAD could not be appointed. Kirwan, 119 Ill. 2d at 435, 437. "Following the holding in [Maloney], we likewise hold that theState Appellate Defender may be appointed to represent indigents on appeal only as the Actprovides." Kirwan, 119 Ill. 2d at 434 (emphasis in original). We therefore find that there is noauthority for a court to appoint the SAD as counsel in an appeal from a habeas corpusproceeding, and we grant the State Appellate Defender leave to withdraw as plaintiff's counsel.

Despite the requests of both the SAD and the State, we see no reason to dismiss thisappeal due merely to the erroneous appointment of the SAD as counsel. Plaintiff timely filed apro se notice of appeal from the dismissal of his petition, and Supreme Court Rule 301 is clearthat only the timely filing of a notice of appeal is jurisdictional. 155 Ill. 2d R. 301. Nor does thefact that we affirmed the circuit court's summary dismissal of plaintiff's second post-convictionpetition preclude plaintiff from separately appealing the dismissal of his habeas corpus petition. Instead, because both the second post-conviction petition and the habeas corpus petition raisedsolely an Apprendi claim, and because we held earlier that "Apprendi does not apply where, ashere, plaintiff's direct appeal process had been completed before Apprendi was decided,"(Alexander, No. 1-03-0016, at 2, citing De La Paz, 204 Ill. 2d at 429), we affirm the circuitcourt's dismissal of plaintiff's habeas corpus petition.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

REID, P.J., and QUINN, J., concur.