United States District Court, Northern District of Illinois, E.D
June 15, 1983
RONALD BROWNSTEIN, PETITIONER,
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).
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
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, §§ 122-1
to 122-7. Instead he instituted this habeas corpus proceeding.
Exhaustion of State Remedies
To qualify for habeas relief, Brownstein must have exhausted
his available state remedies, as required by Section 2254(b).
Respondents contend Brownstein failed to meet that threshold
mandate by neglecting to pursue available post-conviction
remedies. They are right.
Brownstein plainly has standing to sue under the Act as a
"person imprisoned in the penitentiary who asserts that in the
proceedings which resulted in his conviction there was a
substantial denial of his rights under the Constitution of the
United States." Ill.Rev.Stat. ch. 38, § 122-1. However, as both
sides recognize, the availability
of relief under the Act depends on the applicability of the
Illinois doctrines of res judicata and waiver. As People v.
James, 46 Ill.2d 71, 263 N.E.2d 5 (1970) teaches, those concepts
ordinarily foreclose consideration of any issues that were or
could have been presented on direct appeal from a conviction.
Concededly Brownstein advanced his Sixth Amendment claim on
direct appeal (as well as on his post-trial motion). Consequently
his habeas petition cannot be dismissed for failure to exhaust
available post-conviction remedies unless "there is direct
precedent indicating that under the particular circumstances . .
. the waiver [and res judicata] doctrine[s] will be relaxed."
Perry v. Fairman, 702 F.2d 119, 121 (7th Cir. 1983), quoting
United States ex rel. Williams v. Brantley, 502 F.2d 1383, 1386
(7th Cir. 1974) (brackets in original).
Illinois' "non-record evidence" exception to the James waiver
and res judicata doctrines affords the requisite "direct
precedent" that in all likelihood*fn2 would enable Brownstein to
initiate a post-conviction proceeding. Under that exception
claims "based in substantial part on evidence outside the record"
are not waived for purposes of the Act. United States ex rel.
Williams v. Israel, 556 F.2d 865, 866 (7th Cir. 1977). Because
Brownstein's Sixth Amendment claim is almost wholly grounded on
evidence contained in neither the trial nor the appellate record,
that exception is squarely applicable.
Though no Illinois court has addressed the issue, it is perhaps
arguable the non-record evidence exception should be unavailable
when the petitioner had (though he eschewed) an earlier
opportunity to supplement the record in the original criminal
proceedings.*fn3 But that speculative possibility is certainly
not founded on "direct precedent." Moreover Brownstein clearly
did not have a meaningful opportunity to introduce his currently
tendered evidentiary support for the claim. As will be recalled,
the trial judge rejected Brownstein's Sixth Amendment claim
largely on the strength of his own recollection of Brownstein's
having waived his right to a jury trial in open court. Such
express reliance on the judge's own observations — his own
testimony as a witness, as it were — foreclosed any realistic
possibility of his objectively assessing non-record
In short it is highly probable Brownstein could seek
post-conviction relief under the Act. Any possibility that an
Illinois court would refuse to entertain Brownstein's
post-conviction petition under the non-record evidence exception
does not counsel against dismissal on exhaustion grounds. As this
Court said in United States ex rel. Mitchell v. DeRobertis,
553 F. Supp. 93, 96 (N.D.Ill. 1982):
[A]ppropriate concerns for "Our Federalism" require
that the issue be posed directly to the state court
system, rather than this Court's speculating that the
Illinois courts would be unwilling to consider
constitutional claims on the merits.
This Court had previously ordered respondents to answer the
petition and had set the matter for an evidentiary hearing on the
theory Brownstein might be correct in arguing exhaustion of his
state remedies. As this opinion reflects, full consideration of
the matter has led to the conclusion a post-conviction remedy
available to Brownstein under Illinois law has not been invoked
by him. Accordingly Brownstein's habeas corpus petition is
dismissed under Section 2254(b) and (c) without prejudice, due to
his failure to exhaust available state remedies.
After the conclusion reached in this opinion had been announced
to counsel for both parties in open court, Brownstein's lawyer
asked for a certificate of probable cause under Fed.R.App.P.
22(b). For the same reasons expressed in this opinion as to the
non-exhaustion of state remedies — because of Illinois' "direct
precedent" making the Act's remedy available to Brownstein — this
Court is of the view that a certificate should not issue.
On June 15, 1983 this Court issued its memorandum opinion and
order (the "Opinion") denying without prejudice the habeas corpus
petition filed by Ronald Brownstein ("Brownstein") and denying a
certificate of probable cause under Fed.R.App.P. 22(b). This
supplement to the Opinion is written sua sponte, simply to
reflect this Court's rereading of our Court of Appeals' most
recent pronouncement in this area of the law, the per curiam
opinion in Gray v. Greer, 707 F.2d 965 (7th Cir. 1983).*fn1
Gray recapitulated the same principles of Illinois law
dealing with the Illinois Post-Conviction Hearing Act that were
reviewed in the Opinion, then applied the Court of Appeals' own
holdings on the exhaustion requirement of 28 U.S.C. § 2254(b) in
light of those Illinois doctrines. Its controlling authorities
cited in the latter respect were Perry v. Fairman, 702 F.2d 119
(7th Cir. 1983) and United States ex rel. Williams v. Brantley,
502 F.2d 1383, 1386 (7th Cir. 1974), the identical authorities
referred to in the Opinion at 109. Nothing in Gray is in any
respect inconsistent with the Opinion's analysis or its
conclusion, both of which are hereby reconfirmed.