Opinion
97 C 5312
May 31, 2000
MEMORANDUM OPINION AND ORDER
In 1988, after a bench trial before Judge James Bailey of the Circuit Court of Cook County, petitioner Miguel Ramirez was found guilty of the first degree murder of Guadalupe Avila and the aggravated battery of Salvador Flores. According to the decision of the Illinois Appellate Court affirming Ramirez's conviction, Avila's wife and brother testified that after the Avilas and the Flores left a party, Avila's car, which was carrying both families, was struck by another car. Two men got out of the other car and smashed the windows of Avila's car with a baseball bat. The two families, along with Avila's brother, who was in a separate car, then returned to the home where the party had taken place and called the police. Avila's brother and the owner of the home testified that after the police left, a man they identified as Ramirez (who was drunk, according to Avila's brother) approached them to ask what had happened. An argument followed and quickly escalated; Ramirez called the others "wetbacks" and said he was going to get a gun and kill all of them. Ramirez left, came back several minutes later with a gun, and started firing, killing Guadalupe Avila and wounding Salvador Flores.
Ramirez testified in his own defense to a completely different version of the events. He said that while walking to a tavern, he was called by several people standing near a car. One of them accused him of being a member of a gang that had broken their car windows and demanded that he pay for the damage. Ramirez denied being a gang member, and the man slapped him in the face and staffed kicking him. Ramirez had a gun with him because he had been shot the previous year. He pulled out his gun and fired three times and left. The next day he called a lawyer and surrendered to the police.
After hearing the evidence, Judge Bailey concluded that the case "falls onto the believability of the witnesses, who am I going to believe." He said he believed the prosecution's witnesses and "[didn't] believe defendant at all," and he therefore found Ramirez guilty. On appeal, the Appellate Court agreed that the question of Ramirez's guilt depended on the witnesses' credibility, and it declined to overturn Judge Bailey's assessment of the witnesses. Ramirez also raised a challenge to the first degree murder statute, which the Appellate Court rejected. The Illinois Supreme Court denied Ramirez's petition for leave to appeal.
Ramirez next filed a pro se post-conviction petition, contending that he had been denied the effective assistance of trial and appellate counsel. He argued that his trial counsel had not done an adequate job of impeaching the prosecution's witnesses, claiming that the witnesses' testimony differed significantly from their earlier statements to the police; that counsel had failed to argue that the crime, at most, constituted second degree murder; that counsel ignored Ramirez's desire to have a jury trial and to seek substitution or recusal of Judge Bailey; and that counsel ignored Ramirez's wish to have an interpreter present at trial. He argued that his appellate counsel was ineffective based on his failure to raise any of these issues on direct appeal. The trial court dismissed Ramirez's petition without holding an evidentiary hearing. On appeal, Ramirez raised only the issue of trial counsel's failure to file a motion for substitution of judges. The Appellate Court affirmed in a brief decision, and the Illinois Supreme Court denied Ramirez's petition for leave to appeal.
Ramirez raised three claims in his pro se habeas corpus petition: a challenge to the constitutionality of the first degree murder statute; a challenge to the sufficiency of the evidence to convict him; and a claim of ineffective assistance of trial and appellate counsel. In support of his ineffective assistance claim, Ramirez asserted that he had asked his trial counsel to file a motion for substitution of judges because he did not want to go to trial before Judge Bailey, who he had heard had a "wicked predisposition" to find defendants guilty, but that counsel failed to file the motion. Ramirez also contended that he told his trial counsel he wanted a jury trial but the attorney "bullied" him into waiving that right and agreeing to a bench trial. He said that the lawyer brought him into the judge's chambers and, in front of Judge Bailey, told him that Judge Bailey was a fine judge and that if he couldn't win a bench trial before him he couldn't win anywhere. The attorney, in Judge Bailey's presence, then asked him to sign a jury waiver. Ramirez said that he did so because he felt intimidated and concerned about incurring Judge Bailey's wrath if he refused. Ramirez claims that Judge Bailey's bias is shown by the fact that he believed the prosecution's witnesses, who Ramirez says were not believable.
Judge James Zagel, to whom this case was originally assigned, rejected Ramirez's challenges to the first degree murder statute and to the sufficiency of the evidence. See Order of March 26, 1999. He concluded that Ramirez's claims regarding ineffective assistance were procedurally forfeited for failure to raise them in his post-conviction petition, "except for the claim about substitution of judges." Id. Judge Zagel declined to address this claim because it arguably required him to determine the competence of petitioner's trial attorney, whom Judge Zagel identified as a relative of his, Elliott Samuels. Judge Zagel recused himself and the case was eventually reassigned to this Court's calendar. Id.
It turns out that Ramirez's trial lawyer was actually Elliott Price, not Elliott Samuels. Judge Zagel presumably relied on petitioner's misnomer of Price as Samuels in his state post-conviction petition, which had been filed as part of the record in this case. Ramirez's habeas corpus petition identified Price as his lawyer, and we now know this to be correct, for later supplementation of the record ordered by this Court included an affidavit from Price, submitted in support of the state's motion to dismiss the post-conviction petition, in which Price identified himself as Ramirez's trial counsel.
The Court agrees with Judge Zagel that Ramirez's ineffective assistance claim relating to his trial counsel's alleged coercion of the jury waiver has been procedurally defaulted, but for a slightly different reason than the one relied upon by Judge Zagel. The argument that trial counsel had buffaloed Ramirez into waiving a jury was, in fact, made in Ramirez's post-conviction petition. Though Ramirez did not include as much detail as he used in his habeas corpus petition, he did state in his affidavit in support of the post-conviction petition that "I was firm when I told counsel I wanted a jury trial [but] I was ignored and disrespected; I did not waive my right to a jury trial rather counsel did, through force and coercion of counsel." Affidavit in Support of Petition for Post Conviction Relief, ¶ 6.
Though the Court disagrees with Judge Zagel's conclusion that Ramirez failed to raise this claim in his post-conviction petition, Ramirez has nonetheless forfeited the claim. He did not pursue the claim on appeal from the dismissal of his petition; his appeal was confined to his claim that trial counsel should have filed a motion for substitution of Judge Bailey. Under Murray v. Carrier, 477 U.S. 478 (1986), Ramirez's failure to raise on appeal his claim concerning the jury waiver is a procedural default that bars review of the claim by this Court absent a showing of cause and prejudice, or Ramirez's actual innocence. As Ramirez has made no showing of any basis to excuse the default, this Court cannot consider the merits of his ineffective assistance/jury waiver claim.
This brings us to Ramirez's claim that his trial counsel was ineffective for failing to file a motion for substitution of judges after Ramirez asked him to do so. Illinois law permits a defendant to obtain a transfer from the judge assigned to the case by filing, within ten days after the case is placed on that judge's call, a written motion alleging that the judge is prejudiced and that the defendant cannot receive a fair trial. 725 ILCS 5/114-5(a). Under this provision, the defendant's right to substitution of judges is absolute upon the filing of such a motion. See, e.g., People v. Lackland, 248 Ill. App.3d 426, 618 N.E.2d 508, 511 (1993). Once ten days have passed, however, a defendant may obtain a transfer to a different judge only "for cause, supported by affidavit." 725 ILCS 5/114-5(c). Under this provision, unlike section 114-5(a), the defendant must make a showing of actual prejudice on the part of the judge in order to obtain the judge's disqualification. See, e.g., People v. Wright, 234 Ill. App.3d 880, 601 N.E.2d 817, 830 (1992).
Based on the parties' supplementation of the record in this case, made at the Court's request pursuant to Rule 7 of the Rules Governing Section 2254 Cases, it appears that Ramirez first appeared before Judge Bailey on April 21, 1988, thus making his motion for substitution of judges under section 114-5(a) due by no later than Monday, May 2, 1988. In order for Ramirez's trial counsel to have filed the motion by that date, Ramirez would have had to tell him sometime in April that he wanted a different judge. But Ramirez (also in response to the Court's request for supplementation of the record) has stated in an affidavit that it was "during the months of May and June of 1988" that he told trial counsel that he wanted a substitution of judges based on his belief that Judge Bailey was "prejudiced against Hispanic men." See Affidavit dated 2/8/00 (part of Docket Item #36). In short, Ramirez has effectively conceded that he did not communicate his desire for a different judge to his counsel in time for counsel to file a timely section 114-5(a) motion. That being the case, Ramirez's claim that trial counsel was ineffective for failing to file such a motion is without merit.
Ramirez's petition arguably may be understood as contending that trial counsel should have filed a motion to disqualify Judge Bailey under section 114-5(c) based on a claim of actual prejudice. But Ramirez has not made a viable claim for relief along those lines. To sustain a claim of ineffective assistance of counsel, Ramirez must show that his attorney's performance fell below an objective standard of reasonableness and that it is reasonably likely that but for the attorney's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). In this case the two parts of the test merge somewhat. Ramirez cannot show that his trial counsel's performance was constitutionally defective without demonstrating that the motion had some possibility of success; the possibility of success also bears on the issue of whether the failure to file the motion would have made a difference. Assuming for purposes of discussion that Ramirez has to show only that a motion to disqualify Judge Bailey would have been successful, and not that having a different trial judge likely would have affected the outcome of the trial, Ramirez has failed to make the necessary showing. A bare allegation of bias, without supporting specifics, is not even enough to require a hearing on a motion under section 114-5(c), let alone disqualification of the judge. See, e.g., People v. Johnson, 159 Ill.2d 97, 123, 636 N.E.2d 485, 496 (1994); People v. Amos, 204 Ill. App.3d 75, 86, 561 N.E.2d 1107, 1116 (1990). But a bare allegation is all Ramirez has said he gave his trial counsel. Without more, or without some showing that more would have turned up on investigation by counsel (a showing that is lacking here), trial counsel was not deficient in failing to file the motion; the motion would not have succeeded.
Even assuming he could establish that his trial counsel was deficient in failing to seek disqualification of Judge Bailey, Ramirez has failed to provide any support for a claim that this had any effect on the outcome of his case. Judges are ordinarily presumed to have properly discharged their official duties, that is, with honesty and integrity and without bias or prejudice. See, e.g., Aetna Life Insurance Co. v. Lavoie, 475 U.S. 813, 820 (1986); Withrow v. Larkin, 421 U.S. 35, 47 (1975). Ramirez has given this Court nothing that would overcome this presumption with respect to Judge Bailey.
For these reasons, Ramirez's claim of ineffective assistance of counsel arising from his trial attorney's failure to pursue Judge Bailey's disqualification is without merit. This conclusion disposes of Ramirez's only remaining claim. Judgment will enter dismissing Ramirez's petition for writ of habeas corpus.