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U.S. EX REL. WILLIAMS v. DEROBERTIS

May 6, 1982

UNITED STATES OF AMERICA EX REL. JOHN WILLIAMS, PETITIONER,
v.
RICHARD DEROBERTIS, WARDEN, STATEVILLE, AND ATTORNEY GENERAL OF THE STATE OF ILLINOIS, RESPONDENTS.



The opinion of the court was delivered by: Marshall, District Judge.

  MEMORANDUM OPINION

On May 13, 1975, petitioner John Williams was convicted in a bench trial in the Circuit Court of Cook County, Illinois. Petitioner was found guilty of armed robbery, in violation of Ill.Rev.Stat., ch. 38, § 18-2 (1979), and unlawful use of a weapon, in violation of id. § 24-1(a)(7). On June 10, petitioner was sentenced to a term of incarceration of & from 20 to 45 years on the armed robbery charge and a concurrent term of one to three years incarceration on the weapon charge. On direct appeal to the Appellate Court of Illinois, petitioner's conviction was affirmed. People v. Williams, 47 Ill. App.3d 798, 8 Ill.Dec. 177, 365 N.E.2d 415 (1977). The Illinois Supreme Court subsequently denied petitioner's petition for leave to appeal. Petitioner then sought post-conviction relief from the trial court, which was denied on January 29, 1980. On April 14, 1981, petitioner filed a petition for habeas corpus with this court, seeking relief under 28 U.S.C. § 2254 (1976). Through court appointed counsel, petitioner filed an amended petition for habeas corpus on November 2, 1981. Respondents have moved to dismiss the amended petition. Since petitioner has exhausted his available state remedies and properly preserved his claim for review by raising it in the state courts, this court must decide the legal question which all parties agree is presented by the petition: did petitioner validly waive his right to trial by jury under the sixth and fourteenth amendments to the Constitution of the United States when he was tried by the court without a jury in the Circuit Court of Cook County?

I

The relevant facts are not in dispute. At some point on or before June 10, 1975, petitioner signed a printed form of "jury waiver." The form is undated, and contains only the caption of petitioner's case, the printed words "I, the undersigned, do hereby waive jury trial and submit the above entitled cause to the Court for hearing," petitioner's signature, and the handwritten notation "filed/June 10, 1975/Morgan M. Finley/Clerk of the Circuit Court."

At the time the "jury waiver" was signed by petitioner, the following colloquy took place between the presiding judge, petitioner, his codefendants Willie Nelson and Victor Watts, and their counsel.

    MR. VISHNY [counsel for petitioner]: In behalf
  of John Williams, it will be a bench.
    MR. ISRAELSTAM [counsel for Watts]: In behalf
  of Watts, it will be a bench.
    MR. LIVINGSTON [counsel for Nelson]: In behalf
  of Willie Nelson it will be a bench also.
    THE COURT: Let the record show that Mr. William
  Nelson, is that you?

MR. NELSON: Yes.

THE COURT: You have read the jury waiver?

MR. NELSON: Yes.

    THE COURT: Do you know what a jury trial is?
  That is, where 12 people of this County will be
  put in a box, and they will hear the evidence in
  this matter, and they will determine your
  innocence or guilt in accordance with the law
  that the Court will give them and instruct them
  in the matters before the Court? Do you
  understand that?

MR. NELSON: Yes.

    THE COURT: Do you understand that you have a
  right to a jury or you have a right to waive that
  jury? Do you understand that?

MR. NELSON: Yes

    THE COURT: And Mr. Watts, do you understand
  that you have a right to a jury trial? Do you
  understand that?

MR. WATTS: Yes, sir.

THE COURT: And have you read this jury waiver?

MR. WATTS: Yes.

    THE COURT: Have you read it where you say, I
  the undersigned do hereby waive the jury and
  submit the cause to the ...

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