House v. Belford

Citation956 F.2d 711
Decision Date12 February 1992
Docket NumberNo. 89-1173,89-1173
PartiesLopez HOUSE, Plaintiff-Appellant, v. Scott BELFORD, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Gary L. Starkman, Ross & Hardies, Thomas M. Ryan (argued), Arvey, Hodes, Costello & Burman, Chicago, Ill., for Lopez House.

Scott Belford (argued), Belford, Goldner & Koehl, Joliet, Ill., for Scott Belford.

David R. Butzen (argued), Jack O'Malley, Office of the State's Atty. of Cook County, Chicago, Ill., for James Davidson and Irvin Robbins.

Before COFFEY, MANION and KANNE, Circuit Judges.

COFFEY, Circuit Judge.

Lopez House appeals the district court's sua sponte dismissal of his pro se cause of action wherein he alleged that James Davidson and Irvin Robbins presented perjured testimony at a hearing on the state's motion to dismiss House's petition for post-conviction relief; House also appeals the entry of summary judgment in favor of Scott Belford on House's 42 U.S.C. § 1983 claim that Belford violated his constitutional right to have a hearing in open court while conspiring with Robbins to prevent House's witnesses from attending the hearing on the state's motion to dismiss House's petition for post-conviction relief. We affirm.

I. BACKGROUND

Lopez House was convicted in Cook County, Illinois on August 28, 1979, of raping his mother-in-law, Ida Morgan. Some 2 1/2 years after the trial, Ida Morgan, the state's primary witness, signed an affidavit which said:

"The declarations I made under oath, pertaining to a violation against my person, on October 27, 1978 by Lopez House, were declarations of none existence and fabrication.

"I express this before trial court started to the State Attorney's office: 'I did not desire for Lopez House to be prosecuted, and face the possibility of being taken from his family, because of any fabrication.' I was informed to leave my declarations the same and let the Judge decide the case, or I could be face with a prosecution."

In March of 1982 House's wife hired Scott Belford to file a petition for post-conviction relief on the strength of Morgan's affidavit. Belford filed the petition pursuant to the Illinois Post Conviction Hearing Act on or about March 27, 1982. On May 10, 1982, at a hearing on the state's motion to dismiss the petition for post-conviction relief, 1 an associate of Belford's appeared before the court and moved to amend the petition for post-conviction relief to include additional evidence because Ida Morgan had expired. The court granted a continuance until June 16, 1982, when a second hearing on the state's motion to dismiss the petition was held.

At the June 16, 1982 hearing on the state's motion to dismiss the petition for post-conviction relief, the Assistant State's Attorney, Irvin Robbins, argued that the court should dismiss the petition without an evidentiary hearing because the only evidence available was what he referred to as an inherently unreliable hearsay document. Belford countered, arguing that the affidavit was admissible as a statement against penal interest, since the affidavit amounted to a confession of perjury. The judge, who presided at the original trial, had an opportunity to observe and weigh the testimony of the witnesses (House as well as Morgan), stated that he believed Morgan signed the affidavit, but doubted whether an evidentiary hearing would prove anything other than the fact that she signed it. The judge further stated: "I look at her affidavit and in the absence of her, I don't believe what is contained in the affidavit." The court noted that it was aware the state possessed hearsay evidence that Morgan was afraid of House, and thus may have lied in the affidavit, but for some reason the state failed to place that evidence in the record. Thereupon Robbins volunteered to request Davidson, the Assistant State's Attorney who prosecuted House, to testify regarding House's threats. The court called a short recess to allow Robbins to contact Davidson to arrange for him to appear and testify. When the hearing resumed, the court accepted Davidson's testimony as an "oral counter affidavit" to Morgan's affidavit recanting her trial testimony. Davidson stated in his sworn testimony (in lieu of a written declaration) that Morgan was a willing witness who felt that House was a danger to society and should be incarcerated. He denied threatening to prosecute her if she changed her testimony. He further asserted that when House was released on bail because of an erroneous recording in the court documents reflecting the amount of bail, House proceeded to Morgan's residence and physically assaulted her; thereafter Morgan became fearful of him. At the close of Davidson's sworn testimony, Belford decided not to cross-examine him, as he stated that he believed the testimony was merely presented as an oral substitute for a written affidavit. After considering the pleadings filed and the oral affidavit, the judge determined that an evidentiary hearing was unnecessary, stating two reasons:

"Number one, I remember this case very well. I believed the complaining witness at the time she testified. I did not believe the defendant then or not now.

"In addition to that, I find this affidavit is unreliable as it is signed two and a half years after the date of the trial itself.

"Second reason for denial of the motion is the objection that the state and you would have, of course, as to hearsay. There is an additional hearsay problem here and I agree with you there should be times perhaps when the Court should take the case and a piece of evidence out of the hearsay rule even though it may not meet the traditional practice of the hearsay rulings when justice and fairness would demand it.

"However, considering this case as a whole, the nature of the circumstances, the offense and all that I have [been] presented by both the petitioner and by the respondent, I certainly do not find any equitable argument or equitable reasons for obviating the hearsay rule. And both of your cases are based on hearsay. And for that second reason, I will also deny your petition for evidentiary hearing."

Thereupon, the court denied House's petition for post-conviction relief.

House filed a pro se complaint in the United States District Court on November 27, 1985, pursuant to 42 U.S.C. §§ 1983 & 1985(2) against Davidson, Robbins and Belford, alleging that Robbins and Davidson violated House's constitutional rights when Robbins knowingly elicited false testimony from Davidson. The pro se complaint further alleged that Robbins and Belford conspired to interfere with House's civil rights pursuant to 42 U.S.C. §§ 1983 and 1985(2) in that they allegedly prevented House's family and friends from attending the hearing on the state's motion to dismiss the petition for post-conviction relief. House filed an application to proceed in forma pauperis along with his pro se complaint. On January 17, 1986, the district court denied House's application to proceed in forma pauperis, ruling that Robbins and Davidson were immune from liability under § 1983 even if Davidson perjured himself at the hearing, relying on the doctrines of absolute witness and prosecutorial immunity. The court further found that House's pleadings failed to adequately allege a conspiracy to deprive House of his civil rights pursuant to § 1985(2). Upon reconsideration, the court again denied the plaintiff leave to proceed in forma pauperis, but stated that the denial was granted "without prejudice to [House] filing within thirty days an amended complaint against Belford and Robbin[s]." The trial judge granted House leave to file his amended complaint against Belford and Robbins in forma pauperis on April 29, 1986, and directed the clerk to remove Davidson's name from the caption of the case. After Robbins and Belford filed and briefed motions to dismiss House's amended complaint, the district court dismissed the § 1985(2) cause of action against Robbins and Belford, since the section applies only to cases in federal courts (the alleged violation of House's rights occurred in state court), and dismissed the § 1983 cause of action against Robbins, finding that Robbins' prosecutorial immunity barred House from proceeding with that claim. 2 The district judge granted Belford's motion for summary judgment on December 28, 1988. The court found that the Sixth Amendment right to a public trial 3 was immaterial to House's claim, as a post-conviction hearing is a civil proceeding, and the right to a public trial based upon the Sixth Amendment applies only to criminal trials. And while questioning House's standing to base his claim of a right to open court on the First Amendment, the court based its entry of summary judgment on House's failure to allege facts sufficient to support his charges of conspiracy in the complaint, supporting motions and responsive pleadings. The court stated that "the inferences that House relies on to support his conspiracy theory are so unreliable that no reasonable trier-of-fact could accept them."

In his appeal docketed January 26, 1989, which House erroneously entitled House vs. Davidson, et al., House stated that he was appealing the "Memorandum Opinion and Order dated 12-28-88." According to his affidavit of service, House served notice of the appeal upon Belford alone, and in his motion before this Court for the appointment of counsel the appellant singularly named Belford as a defendant. Nearly twenty-two months after House filed his appeal, Davidson and Robbins received what they assert was their first notice that an appeal had been taken when they received a copy of the appellant's counsel's motion for an extension of time for filing the appellant's brief. 4 When the appellant filed his brief on November 29, 1990, the certificate of service stated that he had mailed a copy to Belford and Davidson. The arguments in the brief provided the first notice to either Davidson or...

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