Brownstein v. Director, Illinois Dept. of Corrections

• Decision Date: 17 May 1985
• Docket Number: No. 84-2756,84-2756
• Citation: 760 F.2d 836
• Parties: Ronald BROWNSTEIN, Petitioner-Appellant, v. DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 836

760 F.2d 836

Ronald BROWNSTEIN, Petitioner-Appellant, v. DIRECTOR, ILLINOIS DEPARTMENT OF CORRECTIONS, et al.,

Respondents-Appellees.

No. 84-2756.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 24, 1985.

Decided April 30, 1985.

As Amended May 17, 1985.

Kenneth N. Flaxman, Chicago, Ill., for petitioner-appellant.

Scott Graham, Asst. Atty. Gen. of Ill., Chicago, Ill., for respondents-appellees.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.

CUDAHY, Circuit Judge.

In a hearing on this petition for a writ of habeas corpus, the District Court for the Northern District of Illinois determined: that petitioner Brownstein had not made an express waiver, at his trial in Illinois courts, of his right to a jury; that the state appellate court had improperly found that he had expressly waived the right; that because there was no state determination of procedural default the cause and prejudice standard of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), did not apply; but that, nevertheless, since the plaintiff knew that the trial judge had failed to inform him of his right, and since he hoped to get a new trial on that ground if he lost on the first, federal relief would be inappropriate under the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

I.

Ronald Brownstein is a state prisoner, serving a six-year prison term for a series of drug-related offenses. His convictions were affirmed in part and vacated in part by the Illinois Appellate Court. People v. Brownstein, 105 Ill.App.3d 459, 61 Ill.Dec. 352, 434 N.E.2d 505 (1982). The Illinois Supreme Court denied leave to appeal and Brownstein moved for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254, alleging that his sixth and fourteenth amendment right to jury trial was denied where the record failed to indicate that he had made a knowing and voluntary waiver of that right. After a number of false starts, due in large measure to what can most generously be described as confusion on the part of the prosecutors, the district court ordered an evidentiary hearing. The facts that follow emerged at that hearing.

When Brownstein was brought to trial on May 28, 1980, the state trial court judge neglected to admonish Brownstein of his right to a jury trial. Brownstein, who testified at the habeas hearing that he had been fully aware of his right to a jury trial, inquired of his lawyers whether he ought not to ask for a jury; the judge seemed to him in a bad mood. His lawyers put him off:

Q. And they basically ... answered by saying the judge made a mistake and you should say nothing because if you were convicted his mistake in not advising you about a jury trial would mean you would get a free trial?

A. I don't remember the exact words, but that is the way it worked out. He more or less told me, he said, let us see what happens.

594 F.Supp. 494, 498-99 (N.D.Ill.1984).

After the state court judge found him guilty and sentenced him, Brownstein moved for a new trial on the grounds that he had never waived his sixth and fourteenth amendment right to a jury trial. The trial judge refused to convene a hearing on the issue, mistakenly finding that he had admonished Brownstein and received from him an express waiver of the right to jury trial. The Illinois Appellate Court, holding that the finding of express waiver was not against the manifest weight of the evidence, denied Brownstein relief on the sixth amendment point.

Then began a procedural chase through federal and state courts, due largely to dubious representations on the part of the state's attorneys about whether Brownstein had exhausted his state remedies. See 594 F.Supp. at 496. The chase finally ended when the Northern District of Illinois granted Brownstein an evidentiary hearing.

After finding the facts as we have described them (and finding in addition that no mention of a jury trial had been made in open court on the day of Brownstein's trial), the district judge concluded that the finding of express waiver was not entitled to deference under 28 U.S.C. Sec. 2254, since no hearing had ever been held in state court to determine whether the state trial judge had admonished Brownstein of his rights. He also concluded that in fact Brownstein had not been properly admonished of his rights.

All of this presented the district judge with a dillemma. The state appellate court had not found procedural default (finding in fact that Brownstein had expressly waived his right to a jury trial); and, believing that Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), required deference to this state court finding, he felt that under the Sykes standard the constitutional issue of waiver of jury trial would have to be reached. At the same time, the plain fact--admitted forthrightly by Brownstein at the hearing--was that he knew full well of his right and planned, on his counsel's advice, to use the judge's omission to secure a new trial should he lose the first time around. Such behavior certainly ought to preclude habeas review of the constitutional points. The district judge resolved his dilemma by reaching back beyond Sykes to Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), wherein the Court had held that "deliberate bypass" would preclude habeas review. The district court reasoned:

[O]nly a State can declare a state-level procedural default [such as is required by Sykes ]. If the State forgives a procedural default and proceeds to consider the merits of a constitutional claim, habeas corpus review normally is available.... There is no question here but that the Illinois Appellate Court considered the merits.

That is not to say, however, that federal courts considering habeas corpus petitions cannot assert their own interest in orderly procedure. True enough, federal courts' enforcement of their own interest in orderly procedure is much less pervasive in habeas corpus litigation since Wainwright v. Sykes ... announced federal courts would henceforth honor state findings of procedural default.... [S]ince Sykes federal courts have relied to a much greater degree on state court determinations of the propriety of petitioners' state procedural activities.

Here there is no state court finding of procedural default entitled to deference under Sykes--there is only a finding Brownstein expressly waived his right to a jury trial.

594 F.Supp. at 500 (emphasis added). Thus, he concluded, under Sykes habeas review could not be denied.

But application of the [Noia ] "deliberate by-pass" principle is not subsidiary to state courts' determinations as Sykes ' "cause and prejudice" standard is.

594 F.Supp. at 501. Thus under Noia--though not under Sykes--he found that he had the discretion to deny the writ, and he did. In a footnote he suggested that this outcome established that Noia has, in fact, survived Sykes.

While we feel that the denial of the writ is appropriate, the state has presented us with an interpretation of the district court opinion which we feel merits some discussion.

II.

In Fay v. Noia, the United States Supreme Court held that although procedural default in state court might be an adequate and independent state ground precluding direct review of a state decision in that Court itself, the same principles did not govern habeas review. Procedural default would not bar habeas review unless the "suitor's conduct in relation to the matter at hand ... disentitle[s] him to the relief he seeks." 372 U.S. at 438, 83 S.Ct. at 848. In particular, "the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." Id.

Over the years the "deliberate by-pass" standard eroded, until finally in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Court held that where a petitioner had failed to comply with a Florida state procedural rule requiring that a motion to suppress evidence be made before trial, habeas review was barred if the petitioner could not show both that he had cause for the default and that he suffered actual prejudice thereby. The Court reasoned that the Noia standard might encourage "sandbagging;" and although the Court did not explicitly overrule Noia, it replaced the "deliberate by-pass" standard with the "cause and prejudice" standard in the context of state contemporaneous objection rules. 433 U.S. at 87-88, 97 S.Ct. at 2506-2507. In this circuit the "cause and prejudice" test was extended to state failure-to-appeal cases in United States ex rel. Spurlark v. Wolff, 699 F.2d 354, 361 (7th Cir.1983). The Supreme Court itself has read Sykes expansively; in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), the Court said that the considerations underlying Sykes supported the ruling that

when a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice.

456 U.S. at 129, 102 S.Ct. at 1572. The Court rejected a request to limit the holding to errors that did not affect the truthfinding function of the trial.

Although Sykes is generally read as creating a higher hurdle for habeas litigants to get over than Noia did, creating in effect a rebuttable presumption that default would bar review where Noia had presumed that default would not bar review, the district court found that in the circumstances before us Noia bars review of a case that Sykes would allow. The court's reasoning is that Sykes requires deference to state court determinations of default whereas Noia does not, and in this case the state court mistakenly did not declare a default.

The district court is certainly right in thinking that, under Noia, federal courts can look beyond state court...