Tezak v. U.S.A.

• Decision Date: 11 July 2001
• Docket Number: No. 00-2854,00-2854
• Citation: 256 F.3d 702
• Parties: (7th Cir. 2001) ROBERT J. TEZAK, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 702

256 F.3d 702 (7th Cir. 2001)

ROBERT J. TEZAK, Petitioner-Appellant, v. UNITED STATES OF AMERICA, Respondent-Appellee.

No. 00-2854

In the United States Court of Appeals For the Seventh Circuit

ARGUED March 1, 2001

DECIDED JULY 11, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 7936--Wayne R. Andersen, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before HARLINGTON WOOD, JR., MANION, and DIANE P. WOOD, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

On October 25, 1993, Robert Tezak pled guilty to charges of arson and obstruction of justice in the District Court for the Northern District of Illinois. Tezak appeals the district court's denial of his amended petition for a writ of habeas corpus pursuant to 28 U.S.C. sec. 2255, which sought to have his plea vacated on the ground that he received ineffective assistance of counsel in the entry of his plea agreement and in submitting an appeal. Tezak's motion to recuse the district court judge for personal bias was also denied. We have jurisdiction under 28 U.S.C. sec.sec. 1291 and 2253, and we affirm.

BACKGROUND

Tezak is a multi-millionaire¹ who was a prominent member of the Republican party in Will County² and has served as a delegate to the Republican National Convention. By age twenty-one, he was a precinct chairman. In 1976, when he was twenty-eight, he was elected to serve as coroner of Will County and was re-elected through 1988. Prior to his election as coroner, he served as deputy coroner for nine years.

On August 6, 1987, a fire occurred at the Galaxy Bowl, a bowling alley in Cresthill, Illinois. Although the building was not totally destroyed, Colonial Penn Insurance paid out $50,610.94 in clean-up costs. A grand jury investigation was begun. On December 4, 1987 in Joliet, Illinois, a three- story building known as the PIC building, which housed the offices of the Will County Private Industry Council and the Will County Center for Community Concern, was destroyed by fire. As a result of the fire, Colonial Penn Insurance paid $132,940.15 in tenants' insurance and Standard Mutual Insurance reported a loss of $320,800.71 on the building. Following the fire, a joint federal and local arson investigation began.

After a lengthy investigation, a federal grand jury indicted six individuals, one of whom was Tezak, with conspiracy and arson in both fires. In December 1992, Tezak was charged in district court on four counts: (1) conspiracy to destroy the Galaxy Bowl by fire and to defraud Colonial Penn Insurance, (2) damage to real and personal property of Galaxy Bowl by fire,³ (3) conspiracy to destroy the PIC building by fire, and (4) destruction of the PIC building and its contents by fire. Tezak pleaded not guilty on all counts.

On September 3, 1993, while Tezak was released on bond, the government moved to have his release revoked on the ground that he had violated certain conditions of his release, primarily that Tezak was alleged to have obstructed justice by intimidating a witness under 18 U.S.C. sec. 1512. In a statement made to government agents, Nikki Leber, Tezak's ex-daughter-in-law, stated that Mark Tezak, Tezak's son, met with her in August 1993 to give her a message from his father, telling her not to testify for the government in the case against Tezak because if she did, his father "would have her brains blown out." Leber stated that she met Tezak when she was sixteen and that he began a sexual relationship with her while she was still a minor. She stated that she continued to have a sexual relationship with Tezak while she was married to his son. She also stated that Tezak provided both her and his son cocaine on a regular basis and that he had continued to provide her with cocaine up to the present time. In addition, both Leber and Mark Tezak testified that Tezak continued to use drugs after he was indicted.⁴ The district court revoked Tezak's bond on September 3, and, after reviewing the evidence at a hearing to reinstate Tezak's bond on September 16, denied reinstatement. In a second motion-to- reinstate-bond hearing on September 29, 1993, the district court again denied reinstatement after the government presented evidence showing that Tezak had purchased twelve guns in July 1993 (while under indictment) and that he lied on the purchase forms indicating that he was not under any indictment or information and then signed a statement swearing his answers were "true and correct."

On October 22, 1993, a superseding information was issued which included the previous four counts but added a fifth count of obstruction of justice for threatening a potential witness. Tezak signed a plea agreement that same day. On October 25, 1993, in court, Tezak pled guilty to counts one, two, and five pursuant to the plea agreement and admitted complicity in the PIC fire, although the government had agreed to dismiss counts three and four.

After three separate and lengthy sentencing hearings, judgment was entered on August 10, 1994, sentencing Tezak to five years probation on count one, nine years imprisonment on count two, and forty-six months imprisonment on count five, all sentences to run consecutively. He was also ordered to pay $659,106 in fines and $538,697.30 in restitution. A motion to extend the time for filing a notice of appeal was entered but was denied due to untimeliness. Tezak then filed a motion pursuant to Fed.R.Crim.P. 35 to reduce his sentence, which was also denied.

Before the district court had made a determination on the Rule 35 motion, Tezak was indicted by the State's Attorney of Will County on five counts of arson relating to the PIC fire. Tezak's attempt to dismiss the state indictment on double jeopardy grounds was denied by the state court, which holding was then upheld by the state appellate court. After a jury trial, Tezak was convicted on all five counts of arson based solely on the transcript of his plea agreement, which contained the admissions about the PIC fire. Tezak was sentenced to three years state incarceration consecutive to his federal sentence. Tezak appealed the state conviction and sentence on several grounds, one of which was that the conviction violated the double jeopardy clause of the Constitution and 720 Ill. Comp. Stat. 5/3-4. The state appellate court affirmed the conviction and sentence.

Tezak then filed a sec. 2255 petition on December 3, 1996. Five months after filing the petition, Tezak moved to recuse Judge Andersen, the district court judge, on the alleged ground of personal bias. The district court denied the recu sal motion. In his amended petition, Tezak claims that (1) his Sixth Amendment right to effective assistance of counsel was violated because attorney Steven Popuch allowed him to plead guilty and admit facts exposing him to state prosecution, thereby depriving him of the constitutional protection of the double jeopardy clause, (2) his Sixth Amendment right to effective assistance of counsel was violated because attorney Popuch failed to perfect an appeal even though Tezak indicated he wished to appeal, and (3) the district court committed error in denying Tezak's motion for recusal. The district court, after allowing discovery and holding an evidentiary hearing, denied Tezak's petition.

The first page of Tezak's plea agreement states that "this Agreement is limited to the United States Attorney's Office for the Northern District of Illinois and cannot bind any other federal, state or local prosecuting, administrative or regulatory authorities except as expressly set forth in this Agreement." There was no specific exemption on additional prosecution in the agreement. In addition, at Tezak's plea colloquy, the judge specifically asked Tezak if he understood that the plea agreement was limited to the U.S. Attorney's Office for the Northern District of Illinois and did not bind other federal, state, or local prosecuting, administrative, or regulatory agencies and authorities. Tezak said he understood.

In the plea agreement, Tezak stated, "I knew that the bowling alley was a financial failure, and that my partnership in the operation of the bowling alley was unprofitable. . . . I decided to burn down the bowling alley because I believed that I could collect approximately one million dollars on the fire insurance policy on the property." Tezak admitted that he asked one of his co-conspirators to arrange the arson and another to give the keys to the building to the arsonist and to have the building set on fire. Tezak also admitted complicity in the PIC building fire, stating that he was the actual owner of the building, although he had arranged for a friend to act as the owner of record in order to rent the building to the PIC, yet retain the appearance of nonpartisan involvement. Tezak stated that he was approached by John Bays, another prominent member of the Republican party in Joliet and a good friend of Tezak. Bays was the focus of a grand jury investigation and asked Tezak to destroy subpoenaed records which were housed in the PIC building.⁵ Tezak arranged for the building to be burned down. The building and all of the records were destroyed.

Tezak also admitted that while on pretrial release in August 1993 he told his son that he knew his ex-daughter-in- law Leber was cooperating with the government. Tezak directed his son to tell Leber that he would have "her brains [ ] blown out . . . and . . . cause her family to be killed." Tezak's son admitted that he conveyed that same message to Leber. In his pre-sentencing submission statement to the probation office, Tezak maintained that he "had no intention of actually harming Nikki or her family. Again, I have never harmed anyone in my life." The last statement, "I have never harmed anyone in my life," was a constant refrain made by Tezak.

The plea agreement stated that "the government shall be free to recommend whatever...