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BROWNSTEIN v. CIRCUIT COURT OF COOK COUNTY

June 15, 1983

RONALD BROWNSTEIN, PETITIONER,
v.
CIRCUIT COURT OF COOK COUNTY, ILLINOIS AND STATE'S ATTORNEY OF COOK COUNTY, ILLINOIS, RESPONDENTS.



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

MEMORANDUM OPINION AND ORDER

Ronald Brownstein ("Brownstein") has brought this 28 U.S.C. § 2254 ("Section 2254") habeas corpus proceeding against the "Circuit Court of Cook County" and the "State's Attorney of Cook County."*fn1 Brownstein claims his failure to waive his constitutional right to a jury trial vitiates his state court conviction. Respondents now move pursuant to Fed.R.Civ.P. ("Rule") 56 for summary judgment. For the reasons stated in this memorandum opinion and order, the petition is instead dismissed without prejudice in accordance with Section 2254(b) and (c).

Background

After a state court bench trial, Brownstein was convicted of four offenses involving possession of controlled substances. Brownstein (represented by new counsel) then moved for a new trial, asserting he had never signed the jury waiver form or otherwise waived his right to a jury trial. In support of that motion, Brownstein's counsel originally relied on (1) the absence of a written waiver from the court record and (2) the silence of the transcript as to any admonitions in that respect, then sought to present oral testimony from the court clerk to confirm the latter. In response the trial judge refused to convene any evidentiary hearing and denied the motion based on two factors:

    1. For the critical date the court clerk's entry on
  the half sheet read:
    Parties present. Plea of Not Guilty heretofore
    entered. The defendant advised as to his right to
    jury — trial by jury; waives jury trial and now signs
    waiver; testimony heard. Continued to 9-24-80.
    2. That entry tracked the judge's own stated
  recollection:
    I have a personal recollection of him signing the
    jury waiver form. The fact that there is not one in
    the file is troubling to me, but I do know that
    people other than the Court has excess [sic] to
    those files. . . . I observed the defendant Ronald
    Brownstein execute a jury waiver. I also indicated
    that I observed in open Court the defendant waive
    his right to trial by jury, having been questioned
    by this Court as to whether or not he wished to
    proceed to a Bench or Jury Trial. Now, I see no
    reason to proceed any further in that direction.

Later Brownstein moved for reconsideration, offering affidavits from his trial counsel to negate the jury waiver. That motion was denied on the ground the trial court no longer had jurisdiction.

Brownstein appealed his conviction, specifically raising his Sixth Amendment claim. In affirming Brownstein's conviction, the Illinois Appellate Court rejected that argument:

  We believe that the trial court's finding regarding
  defendant's waiver is not against the manifest weight
  of the evidence.

People v. Brownstein, 105 Ill. App.3d 459, 463, 61 Ill.Dec. 352, 355, 434 N.E.2d 505, 508 (1st Dist. 1982). Later the Illinois Supreme Court denied Brownstein leave to appeal.

Brownstein did not pursue any state remedies under the Illinois Post-Conviction Act (the "Act"), Ill.Rev.Stat. ch. 38, ยงยง 122-1 to 122-7. Instead he ...


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