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United States ex rel. Doxy v. Harrington

United States District Court, Seventh Circuit

November 13, 2013

UNITED STATES OF AMERICA ex rel. RODRICK DOXY #R67836, Petitioner,
v.
RICK HARRINGTON, Warden, etc., Respondent.

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, Senior District Judge.

In compliance with this Court's September 30, 2013 directive under Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules"), the Illinois Attorney General's Office has weighed in with a nearly 5-inch-thick response, comprising an Answer and the associated documents called for by Section 2254 Rules 5(c) and (d). This memorandum opinion and order should certainly not be mistaken as critical of defense counsel's faithful compliance with those documentary demands, but much of the material has turned out to be superfluous-only portions of the response are needed to show that petitioner Rodrick Doxy ("Doxy") has accumulated three strikes in a contest in which any one of them suffices to defeat the habeas corpus relief that he seeks.

In brief, the asserted constitutional deprivation claimed by petitioner Doxy is that the exclusion of his aunt Camilla Clifton ("Clifton") from his post-trial and sentencing proceedings violated his Sixth Amendment right to a public trial (that is the only contention, out of the four appellate issues that Doxy raised on his direct appeal, that he attempted to carry to the Illinois Supreme Court, which denied leave to appeal on September 26, 2012). As for the circumstances of Clifton's exclusion, the trial judge in the Circuit Court of Cook County had been told by the prosecutor during pretrial proceedings that asserted victim Kimberly Todd ("Todd")[1] had reported that she had received threats to discourage her from testifying against Doxy.

Doxy himself was not charged with responsibility for those threats. Instead the trial judge specifically said that with Doxy in custody, "he's not out on the streets intimidating people." That statement was a prelude to the trial judge's warning:

If any family members or friends of [his] are doing that... they will be charged.

Before voir dire the trial judge coupled that warning with an express caveat about cell phone use (Petition Ex.C at F 11-12):

If anyone has a cell phone in their possession in this courtroom, outside my hall or in this building while this case is pending, you are in contempt of Court and you will be held in custody and tried on your own. Is that clear?
That goes for the State's witnesses, for the defense witnesses, for the State's family members, for the defense family members.
Should anyone have a cellphone, I suggest you leave, put it in a car, go to a store, leave it with the owner.
Do not come into this building while this case is pending with a cellphone on or off. Don't come here with a cell phone.

Just after jury selection, however, when the judge followed the jury to lunch, she saw Clifton in a hallway outside the courtroom with her cell phone "up and out and on." And that direct violation of such a recent and unequivocal admonition led the trial judge to hold Clifton in contempt and remand her to the Cook County Department of Corrections.

When the judge notified Doxy and his lawyer that Clifton had been found in contempt and remanded without bail, Doxy voiced no objection to the contempt finding and made no claim of violation of his right to a public trial. Then, after a one-day trial, Doxy was convicted on the attempted murder charge. Two days later Clifton was before the trial court on contempt proceedings and was released with instructions not to enter the criminal courthouse unless she herself had a case there.

Some 2-1/2 months later Doxy filed a motion for new trial (again with no assertion of any violation of his Sixth Amendment right to a public trial). That new trial motion was denied and Doxy was sentenced to a 40-year custodial term. Although Clifton was not present during those proceedings, Doxy's mother, sister, stepfather and another aunt were present throughout the hearing.

That recital clearly calls into play more than one fundamental principle governing Section 2254 proceedings, any one of which is fatal to federal habeas relief. ...


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