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BROWNSTEIN v. CIRCUIT COURT OF COOK COUNTY
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 ...
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