The opinion of the court was delivered by: Hart, District Judge.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Late during the night of November 12, 1980, Frederick Lacey,
R.C. Pettigrew and Richard Holliman were kidnapped, robbed, and
shot to death execution-style near a viaduct in Chicago,
Illinois. In March of 1981, Roger Collins, William Bracy, and
Murray Hooper were indicted and charged with armed robbery,
aggravated kidnapping, and murder of the three victims. Hooper,
who gave a statement inculpating Collins and Bracy, was tried
separately.*fn1 All three were tried before Judge Thomas J.
Maloney in the Circuit Court of Cook County, Illinois.
Morris Nellum, who admittedly took part in the crimes, was the
principal witness for the prosecution of Bracy and Collins. He
was allowed to plead guilty to concealing homicidal deaths and
was sentenced to a short prison term. Nellum testified that the
victims had been bound and taken from an apartment, driven to a
viaduct, and there shot to death with pistols and a shotgun. Two
other witnesses placed Collins, Hooper, and Nellum at the
location of the kidnapping, an apartment building, and noticed
that the victims appeared to be bound when they left the
building. Nellum identified a place where weapons used in the
crime were thrown into Lake Michigan. The motive of the crimes
A .38-caliber Charter Arms revolver and a .357 Rugger revolver
were recovered from Lake Michigan and identified. The .38-caliber
Charter Arms revolver was stolen from Christina Nowell by Bracy,
who stated to her, when she sought its return, that "he had
murdered some people with [her gun] and threw it in the Chicago
River." The Charter Arms revolver was traced by serial number as
the one Bracy stole from Nowell. Nowell also testified that she
was present when a woman gave Bracy a sawed-off shotgun in a bar.
Expended shotgun shells were found at the location of the
The testimony of the witnesses is set forth in detail in
opinions of the Supreme Court of Illinois, see 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)
("Collins I"); 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) ("Collins
II"), the Court of Appeals for the Seventh Circuit, see Bracy
v. Gramley, 81 F.3d 684 (7th Cir. 1996) ("Bracy I"), rev'd in
part, 520 U.S. 899, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997)
("Bracy II"), and this court, see United States ex rel.
Collins v. Welborn, 868 F. Supp. 950 (N.D.Ill. 1994) ("Collins
III"), aff'd, Bracy I, rev'd in part, Bracy II. As previously
stated by the Court of Appeals and this court, the evidence of
guilt was compelling. Bracy I, 81 F.3d at 687; Collins III,
868 F. Supp. at 978.
Relevant to the sentencing hearing of Bracy was evidence that,
on December 31, 1980 in Arizona, Bracy and Hooper murdered two
people and attempted to murder a third person. That was less than
two months following the murders in Illinois.*fn2 Bracy and
Hooper were hired to commit the Arizona murders. See Bracy III,
703 P.2d at 481; Hooper I, 703 P.2d at 494.
The petitioners were convicted of armed robbery, aggravated
kidnapping, and murder. A jury found the existence of statutory
aggravating factors and separately concluded that there were no
mitigating factors sufficient to preclude the imposition of the
death penalty. Petitioners were sentenced to death and concurrent
60-year prison terms for armed robbery and aggravated kidnapping.
On direct appeal to the Supreme Court of Illinois, the conviction
and sentences were affirmed, except that the kidnapping sentences
were reduced to 30 years because the kidnapping was not for
ransom. Collins I, supra. Post-conviction relief was
subsequently denied. Collins II, supra.
Bracy and Collins filed federal habeas corpus petitions which
were consolidated in this court. After their state court trial,
Judge Maloney was indicted on federal charges and subsequently
convicted of racketeering offenses involving the acceptance of
bribes to fix criminal 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).
C. Discovery and Trial Issues
On remand to this court, petitioners were permitted to
undertake document discovery and to obtain deposition testimony.
Petitioners sought to depose Maloney, who is in federal custody
in California. Maloney refused to give a deposition, claiming not
to have had sufficient notice. A writ of habeas corpus ad
testificandum was issued sua sponte to bring Maloney before
this court for the purpose of taking his testimony. Maloney's
testimony is now part of the record in this case.
After completing discovery, both sides moved for summary
judgment. Finding that material issues of fact existed with
respect to issues of actual judicial bias, summary judgment was
denied. See United States ex rel. Collins v. Welborn,
49 F. Supp.2d 597 (N.D.Ill. 1999) ("Collins IV").
In Collins IV, 49 F. Supp.2d at 602-04, it was held that the
rule of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103
L.Ed.2d 334 (1989), does not bar petitioners' claim of actual
judicial bias. This holding was distinguished from indications in
Bracy I, 81 F.3d at 689-90, that a claim based on an appearance
of impropriety (not actual bias) would be barred by Teague.
Compare also Bracy I, 81 F.3d at 704 (Rovner, J., dissenting)
(claim that judge was actually partial not barred by Teague).
In a case decided by the Court of Appeals after the Supreme
Court's opinion in Bracy II, the Court stated with reference to
Bracy II that proof "that a judge is bribed in some cases does
not establish that he was not impartial in others," but rather
warrants further inquiry. Cartalino v. Washington, 122 F.3d 8,
10 (7th Cir. 1997). It is also clear from Cartalino that the
burden of proof of actual bias did not shift from the
petitioners. Cf. id. at 11. Whether and under what
circumstances a judge's bribetaking in other cases will warrant
relief in a case where money did not change hands was said to
await the development of a complete record in Cartalino.
Bracy filed an affidavit with respect to the background,
appointment, and conduct of his trial attorney. This affidavit is
relevant both to the scope of the permitted discovery and the
findings to be made by this court on the issue of Maloney's
judicial bias. Bracy stated that his trial attorney was a former
associate in Maloney's corrupt law practice and was appointed
with the understanding that he would not object to a prompt trial
so as to deflect attention from cases in which Maloney had taken
bribes. The Supreme Court stated:
We emphasize, though, that petitioner supports his
discovery request by pointing not only to Maloney's
conviction for bribe taking in other cases, but also
to additional evidence, discussed above, that lends
support to his claim that Maloney was actually biased
in petitioner's own case. That is, he presents
"specific allegations" that his trial attorney, a
former associate of Maloney's in a law practice that
was familiar and comfortable with corruption, may
have agreed to take this capital case to trial
quickly so that petitioner's conviction would deflect
any suspicion the rigged Rosario and Chow cases
This court must accord a presumption of correctness to any
factual findings of the State courts. 28 U.S.C. § 2254(d)(1)
(1993). There are no State court factual findings with respect to
the issue of judicial bias, however.
The parties agreed that, other than Maloney's testimony, no
live witnesses would be presented. At the time the parties moved
for summary judgment, Maloney had not testified and William Swano
had invoked the Fifth Amendment. Thereafter, the parties obtained
Maloney's testimony, submitted some of the record from Maloney's
trial and sentencing, transcripts, and court records from other
cases tried before Maloney, some non-public documents obtained
from the United States Attorney, and deposition testimony from
associates of Maloney and attorneys involved in petitioners'
trial. The parties elected to rely on Swano's testimony from the
Maloney trial and not raise the question of whether Swano should
be compelled to provide new testimony beyond his invocation of
the Fifth Amendment.
Based on the testimony, statement of uncontested facts,
depositions, transcripts from other cases, the state court record
of petitioners' prosecution, and exhibits submitted, the court
finds the facts to be as follows:
The parties have expressly represented that the following facts
1. Following a jury trial in 1981, in the Circuit Court of Cook
County, Illinois, Roger Collins and William Bracy were found
guilty of armed robbery, aggravated kidnapping, and the murders
of Frederick Lacey, R.C. Pettigrew, and Richard Holliman. A
two-stage sentencing hearing was held at which the same jury
found the existence of statutory eligibility factors and
concluded there were no mitigating factors sufficient to preclude
imposition of the death penalty. The trial judge, Thomas J.
Maloney, sentenced Collins and Bracy to death.
2. Bracy and Collins were arraigned on March 12, 1981.
3. On May 6, 1981, Bracy's original attorney, Patrick Tuite,
was given leave to withdraw on the ground that ...