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May 6, 1999


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


In 1980, Frederick Lacey, R.C. Pettigrew, and Richard Holliman were found shot to death near a viaduct south of the downtown area of Chicago, Illinois. Following a jury trial in the Circuit Court of Cook County, Illinois before Judge Thomas Maloney, petitioners Roger Collins and William Bracy were found guilty of the three murders and related charges. Collins and Bracy were sentenced to death on the murder convictions. The murder convictions and death sentences were affirmed on direct appeal, People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267, cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985), and postconviction relief was subsequently denied, see People v. Collins, 153 Ill.2d 130, 180 Ill.Dec. 60, 606 N.E.2d 1137 (1992), cert. denied, 508 U.S. 915, 916, 113 S.Ct. 2355, 124 L.Ed.2d 263 (1993). Bracy and Collins then filed separate federal habeas corpus petitions, which were consolidated in this court.

Petitioners raised a number of claims*fn1 in their federal habeas corpus petitions, see United States ex rel. Collins v. Welborn, 868 F. Supp. 950, 967 (N.D.Ill. 1994) ("Collins"), all of which were held to be an insufficient basis for relief. See id. at 967-94. Subsequent to the state court trial, Judge Maloney had been indicted and convicted of racketeering offenses involving the acceptance of bribes to fix cases. See United States v. Maloney, 71 F.3d 645 (7th Cir. 1995), cert. denied, 519 U.S. 927, 117 S.Ct. 295, 136 L.Ed.2d 214 (1996). Petitioners did not attempt to bribe Maloney nor did he solicit a bribe from them. Petitioners contend, however, that Maloney compensated for his defendant-favoring rulings in cases involving bribes by being especially hard on defendants who did not pay bribes. Petitioners also alleged that another judge assigned to hear their post-conviction proceedings accepted bribes to fix cases. Any claims based on corruption of the post-conviction judge were denied on grounds of waiver. See Collins, 868 F. Supp. at 991.

Claims based on Maloney's bribetaking were not waived for failure to raise in the state courts because the claims were based on some evidence that was not publicly revealed until after post-conviction relief had been denied at the trial level. See id. It was recognized that "[t]he constitutional right to a fair trial includes the right to a trial judge who is neutral, detached, and free from bias." Id. However, petitioners did not contend they had sufficient facts to presume or show the compensatory bias they had alleged. Instead, they contended that they were entitled to additional discovery in order to attempt to prove Maloney's bias. It was held that petitioners failed to show good cause for further discovery and therefore the claims related to Maloney's corruption were denied. Id.

Collins was affirmed on appeal to the Seventh Circuit. Bracy r. Gramley, 81 F.3d 684 (7th Cir. 1996) ("Bracy I"). As to the claims related to Maloney's corruption, the Seventh Circuit held that a claim of being tried by a biased judge does not require a showing of a prejudicial effect on the outcome of the trial as long as there is a showing of either actual bias or "a possible temptation so severe that we might presume an actual, substantial incentive to be biased." Id. at 688 (quoting Del Vecchio v. Illinois Department of Corrections, 31 F.3d 1363, 1380 (7th Cir. 1994) (en banc), cert. denied, 514 U.S. 1037, 115 S.Ct. 1404, 131 L.Ed.2d 290 (1995)). A showing of an appearance of impropriety would be an insufficient basis for relief. Bracy I, 81 F.3d at 688. In passing, the Seventh Circuit also noted that no precedent existed for the proposition that accepting bribes in some cases automatically invalidated a judge's rulings in other cases in which the judge did not take or solicit bribes. Therefore, it was indicated that relief on such a theory would violate Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Bracy I, 81 F.3d at 689. Bracy I, 81 F.3d at 689-90, holds that petitioners only had sufficient evidence to make out a case of an appearance of impropriety, which would not be enough to support relief. The Seventh Circuit believed that, at most, petitioners would be able to show that Maloney generally favored the prosecution in cases in which he was not bribed, but would not be able to show that such a bias occurred in petitioners' case itself. As to petitioners' request for further discovery that would enable them to show actual bias, the Seventh Circuit held that petitioners had not shown good cause for discovery. Id. at 690-91. The Seventh Circuit noted that the transcript of Maloney's criminal trial and his record of rulings in the criminal cases in which he presided were all of public record. The Seventh Circuit reasoned that, since there was no indication that those records supported actual bias in petitioners' criminal case, discovery under Rule 6(a) of the Rules Governing Section 2254 Cases was also unlikely to yield evidence of actual bias. Id.

The Supreme Court granted certiorari only on the issue of whether petitioners*fn2 had made a sufficient showing of good cause for discovery on the bias issue. In order to resolve that question, the Supreme Court "first identifilied] the `essential elements'" of the judicial-bias claim. Bracy v. Gramley, 520 U.S. 899, 117 S.Ct. 1793, 1797, 138 L.Ed.2d 97 (1997) ("Bracy II"). It held that "the floor established by the Due Process Clause clearly requires a `fair trial in a fair tribunal' before a judge with no actual bias against the defendant or interest in the outcome of his particular case." Id. (quoting Withrow v. Larkin, 421 U.S. 35, 46, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975)). The Supreme Court described petitioners' theory as follows: "Petitioner contends, however, that Maloney's taking of bribes from some criminal defendants not only rendered him biased against the State in those cases, but also induced a sort of compensatory bias against defendants who did not bribe Maloney. Maloney was biased in this latter, compensatory sense, petitioner argues, to avoid being seen as uniformly and suspiciously `soft' on criminal defendants." Bracy II, 117 S.Ct. at 1797. The court concluded that, "difficulties of proof aside, there is no question that, if it could be proved, such compensatory, camouflaging bias on Maloney's part in petitioner' s own case would violate the Due Process Clause of the Fourteenth Amendment." Id. Referring to evidence of pervasive bribetaking that was presented in Maloney's federal criminal trial and various other evidence, see id. at 1798, the Supreme Court concluded that good cause had been shown for further discovery that might enable petitioners to show actual bias at their trial. Id. at 1799.

In a subsequent habeas corpus case involving a Cook County judge who accepted bribes from the habeas petitioner's codefendant in the state criminal case, the Seventh Circuit summarized the law as follows:

    A criminal defendant has a federal constitutional
  right to be tried before an impartial judge. The right
  is not subject to the harmless-error rule, so it
  doesn't matter how powerful the case against the
  defendant was or whether the judge's bias was
  manifested in rulings adverse to the defendant. And it
  is irrelevant that [the defendant] was convicted by a
  jury, a judge's role in a jury trial is obviously not
  of a merely ministerial character. . . . A bribed
  judge is deemed partial whatever the fact of the
  matter may be.

Catrtalino v. Washington, 122 F.3d 8, 9-10 (7th Cir. 1997). Cartalino suggests that receiving bribes in some cases is not sufficient proof of bias in another case, "merely a suspicious circumstance that warrants further inquiry" and requires additional proof to show actual bias in the latter case. Id. at 10. Cartalino, though, only involved bribes by a codefendant.

Following the remand from the Supreme Court, the parties engaged in extensive discovery of the federal government's file from the Maloney criminal prosecution, including nonpublic documents, and other discovery, including depositions of associates of Maloney and attorneys involved in petitioners' trial. The parties were not able to obtain a deposition from Maloney himself; he refused to participate because he claimed he had not received proper notice. Rather than attempting to resolve whether Maloney's refusal to comply with the deposition notice was justified, it was ruled that the parties would be permitted to bring Maloney to Chicago for any necessary hearing on petitioners' claims and any questions about lack of cooperation or invoking the Fifth Amendment would be resolved by this court at that time. A similar ruling was made regarding deponent William Swano's invocation of the Fifth Amendment. Swano is a now-disbarred attorney who paid bribes to Maloney and was a codefendant of Maloney in the federal prosecution.

After the close of discovery, the parties were provided with the opportunity to bring summary judgment motions, although both sides initially indicated that they did not believe the evidence would support summary judgment. Nevertheless, both sides subsequently filed summary judgment motions which are presently pending for ruling. Also pending is petitioners' unopposed motion to expand the record, which will be granted without prejudice to respondents' objections that any of the additional evidence is inadmissible or otherwise deficient.

Rule 11 of the Rules Governing Section 2254 Cases permits the application of the Federal Rules of Civil Procedure to the extent consistent with the § 2254 Rules. Thus, Fed.R.Civ.P. 56 may be applied in a § 2254 proceeding to determine whether factual disputes exist that require a hearing. See Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.), cert. denied, 498 U.S. 878, 111 S.Ct. 209, 112 L.Ed.2d 169 (1990); Whitaker v. Meachum, 123 F.3d 714, 716 n. 2 (2d Cir. 1997); Randle v. Scott, 43 F.3d 221, 226 (5th Cir.), cert. denied, 515 U.S. 1108, 115 S.Ct. 2259, 132 L.Ed.2d 265 (1995).

On a motion for summary judgment, the entire record is considered with all reasonable inferences drawn in favor of the nonmovant and all factual disputes resolved in favor of the nonmovant. Valance v. Wisel, 110 F.3d 1269, 1274 (7th Cir. 1997); Patel v. Allstate Insurance Co., 105 F.3d 365, 367 (7th Cir. 1997). The burden of establishing a lack of any genuine issue of material fact rests on the movant. Essex v. United Parcel Service, Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). The nonmovant, however, must make a showing sufficient to establish any essential element for which he will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wintz v. Northrop Corp., 110 F.3d 508, 512 (7th Cir. 1997). The movant need not provide affidavits or deposition testimony showing the nonexistence of such essential elements. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Also, it is not sufficient to show evidence of purportedly disputed facts if those facts are not plausible in light of the entire record. See NLFC, Inc. v. Deveom Mid-America) Inc., 45 F.3d 231, 236 (7th Cir.), cert. denied, 515 U.S. 1104, 115 S.Ct. 2249, 132 L.Ed.2d 257 (1995); Covalt v. Carey Canada, Inc., 950 F.2d 481, 485 (7th Cir. 1991); Collins v. Associated Pathologists, Ltd., 844 F.2d 473, 476-77 (7th Cir.), cert. denied, 488 U.S. 852, 109 S.Ct. 137, 102 L.Ed.2d 110 (1988). As the Seventh Circuit has summarized:

    The moving party bears the initial burden of
  directing the district court to the determinative
  issues and the available evidence that pertains to
  each. "[A] party seeking summary judgment always bears
  the initial responsibility of informing the district
  court of the basis for its motion, and identifying
  those portions of `the pleadings, depositions, answers
  to interrogatories, and admissions on file, together
  with the affidavits, if any' which it believes
  demonstrate the absence of a genuine issue of material
  fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323,
  106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Id. at 325, 106
  S.Ct. 2548 ("the burden on the moving party may be
  discharged by "showing" — that is, pointing out
  to the district court — that there is an absence
  of evidence to support the nonmoving party's case").
  Then, with respect to issues that the non-moving party
  will bear the burden of proving at trial, the
  non-moving party must come forward with affidavits,
  depositions, answers to interrogatories or admissions
  and designate specific facts which establish that
  there is a genuine issue for trial. Id. at 324, 106
  S.Ct. 2548. The non-moving party cannot rest on the
  pleadings alone, but must designate specific facts in
  affidavits, depositions, answers to interrogatories or
  admissions that establish that there is a genuine
  triable issue. Id. The non-moving party "must do more
  than simply show that there is some metaphysical doubt
  as to the material facts." Matsushita Elec. Indus.
  Co. ...

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