Moffat v. Gilmore

• Decision Date: 25 June 1997
• Docket Number: No. 95-4020,95-4020
• Parties: James G. MOFFAT, Petitioner-Appellant, v. Jerry GILMORE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 698

113 F.3d 698

James G. MOFFAT, Petitioner-Appellant, v. Jerry GILMORE, Respondent-Appellee.

No. 95-4020.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 20, 1996.

Decided May 8, 1997.

As Amended on Denial of Rehearing June 25, 1997.

Ronald Cope (argued), Ancel, Glink, Diamond, Cope & Bush, Chicago, IL, for Petitioner-Appellant.

Rita M. Novak, Office of the Attorney General, Chicago, IL, Steven J. Zick (argued), Office of the Attorney General, Criminal Appeals Division, Chicago, IL, for Respondent-Appellee.

Before POSNER, Chief Judge, and CUDAHY and DIANE P. WOOD, Circuit Judges.

CUDAHY, Circuit Judge.

The former principal of Chicago's Kelvin Park High School, James G. Moffat, was convicted in 1987 of eight counts of indecent liberties with a child and sixteen counts of official misconduct. The Illinois trial court sentenced Moffat to fifteen years in prison. Moffat now comes before this court seeking a writ of habeas corpus under 28 U.S.C. § 2254. The district court denied Moffat's petition. We affirm.

The Illinois trial judge communicated ex parte about Moffat's trial with the prosecution, or so Moffat alleges. We consider this claim in this opinion. Moffat also argues that the state failed to prove that the statute of limitations did not bar prosecution of Moffat's sex crimes. This latter question we decide in a companion order.

I. The allegedly ex parte communication

Bitterness marked Moffat's highly publicized trial in the Circuit Court of Cook County, Criminal Division. After its conclusion, Moffat submitted motions for a new trial and for arrest of judgment to the trial judge, Judge Francis Mahon, Sr. Moffat argued the ordinary fare of insufficient evidence, prosecutorial misconduct and the like, but with an unusual addition. Moffat argued that Judge Mahon himself was prejudiced against him.

After the trial ended, Moffat claimed that he learned that Judge Mahon's son, Francis, Jr., was an assistant state's attorney--and that the judge's son had appeared in the courtroom several times during the trial. Moffat (then and since) has expressed his objections under a variety of legal rubrics, but common to all has been the thesis that the son's presence in the courtroom intimated an unfairness to Moffat.

Judge Mahon was incensed. "[T]his is an insult to the Court," he responded from the bench. As Judge Mahon's rather irregular handling of Moffat's claims is the heart of this case, we quote the core of his retort:

My son was here a few times. He was assigned to another courtroom and because of the publicity and the interest in this case, he did come down here. He did talk to Mr. Farrell [the prosecutor]. I talked to him last night. He said he talked to Mr. O'Gara [Moffat's defense counsel] more than he talked to Mr. Farrell. Mr. O'Gara was his superior until last year when [Mr. O'Gara] left the State's Attorney's office. Farrell was his superior. So, he talked to both of them. There was nothing wrong with that, in my opinion.

(Emphasis added.)

Moffat also noted that soon before his trial, the State's Attorney's Office transferred the son from the Trial Division to the Special Prosecutions Bureau. This was the same bureau that was trying Moffat. Judge Mahon understood Moffat, "at least by innuendo, to mean that because my son was transferred to another division that that is the reason I found Mr. Moffat guilty." Judge Mahon did not take kindly to this allegation either. "What an insult, what an insult to a judge," he said. The allegation had nothing to it. His son, he explained, had moved to Arson, "one of the lower Special Prosecutions." Arson obviously was not the section trying Moffat. And this transfer was "a lateral move" from second chair in the Trial Division, not a promotion.

Judge Mahon then denied the motion for a new trial and the motion in arrest of judgment.

II. State court proceedings

Moffat appealed his conviction on a number of grounds, including judicial misconduct that deprived him of a fair trial. On one issue, Moffat won: the Illinois Appellate Court vacated for lack of evidence certain convictions for acts Moffat allegedly committed on May 14, 1984. People v. Moffat, 202 Ill.App.3d 43, 54-55, 148 Ill.Dec. 50, 58, 560 N.E.2d 352, 360 (1990) (Moffat I). On the others, including the issue of judicial misconduct, Moffat lost. After stating that Moffat might have waived his judicial misconduct claim by failing to raise it during the trial, the Appellate Court ruled on the merits. Moffat I assessed only the communications that took place during the trial--the son's presence and his chats with the prosecution, defense and judge. Moffat would have to show that the contested communications had "rise[n] to the level of unfairness or the probability of unfairness." Id. 148 Ill.Dec. at 59, 560 N.E.2d at 361.

This Moffat could not show. The court held that Moffat had failed to prove that the prosecutor son had any interest in his case. Nor did any evidence exist to show that the son had aided the case against Moffat in any way or that the son's transfer had any influence on the case. The Supreme Court of Illinois declined to hear Moffat's appeal.

Moffat then pressed his collateral attack in state court. He lost in the trial court and appealed. People v. Moffat, 265 Ill.App.3d 469, 201 Ill.Dec. 876, 637 N.E.2d 465 (1994) (Moffat II). Moffat II took up a legal issue that Moffat I had not addressed. Moffat I considered only the in-trial communications; Moffat II examined the evening conversation the trial judge had with his son (quoted above as "I talked to him [my son] last night."). This nighttime chat, Moffat contended, breached an Illinois Supreme Court rule barring ex parte communications.

On collateral attack, issues that Moffat raised or could have raised on direct appeal were res judicata. They could not be mined again. Moffat II, 201 Ill.Dec. at 878, 637 N.E.2d at 467. Moffat recast his argument in new garb, that of ineffective assistance of appellate counsel. His appellate counsel, Moffat claimed, had failed to raise the claims now barred as res judicata. That failure constituted ineffective assistance of counsel. The Appellate Court took up the framework of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Id. (also citing People v. Albanese, 125 Ill.2d 100, 106, 125 Ill.Dec. 838, 531 N.E.2d 17 (1988)). To prevail under Strickland, a defendant must show, one, that her lawyer's performance was so dismal as to offend the Sixth Amendment, and two, that the dismal performance of the lawyer substantially prejudiced her.

Whether Moffat had suffered prejudice (prong two) depended on whether Moffat's argument had any merit. Moffat II said it did not. Moffat had presented no evidence that the trial judge and his son had discussed the merits of the pending motion during their nighttime talk. Moffat also had not shown that the nighttime talk had influenced the trial judge. Affirming its conclusions in Moffat I, plus these new conclusions, the Appellate Court rejected Moffat's claim. Id. 201 Ill.Dec. at 879, 637 N.E.2d at 468.

III. On collateral attack in federal court

With his state remedies exhausted, Moffat filed a habeas petition in the Northern District of Illinois. Moffat v. Gilmore, 1995 WL 699624 (N.D.Ill.). Moffat continued the attack on the nighttime talk as an ex parte communication. The nighttime talk, he said, (1) denied him due process and (2) created an appearance of impropriety that requires reversal of his conviction. Moffat argued as well that (3) he never had a chance to inquire into whether the nighttime talk prejudiced him, and that (4) he therefore could not have waived the claims. We commingle the district court's denial of these claims with our own analysis below. We review the district court's findings of fact for clear error and its conclusions of law de novo. Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir.1996).

A question remains about how best to assess Moffat's habeas petition. With passage of the Antiterrorism and Effective Death Penalty Act of 1996, Congress tightened the standards under 28 U.S.C. § 2254. Under pre-1996 law, we would take up afresh state courts' determinations of federal law (meaning both questions of federal law and of mixed law-and-fact). Wright v. West, 505 U.S. 277, 300-01, 112 S.Ct. 2482, 2494-95, 120 L.Ed.2d 225 (1992) (O'Connor, J., concurring in judgment) (citing Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)). Under the new habeas statute, we ask whether the state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (1997).

This circuit has held these amendments to be retroactive, but the Supreme Court has granted a writ of certiorari to examine this holding. Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996) (en banc), cert. granted, --- U.S. ----, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997). In the interests of conserving judicial resources and of resolving Moffat's petition with finality, we employ both the old and new § 2254 standards. Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir.1997). The results do not differ.

A. Waiver

Two principles govern our consideration of Moffat's first claim that he was denied due process. First, a habeas petitioner's claim must be rooted in federal law. Section 2254(a) empowers the federal courts to review the judgments of state courts "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Second, a petitioner must have previously raised this ground in state court. Federal courts will not entertain a habeas petitioner's claim under § 2254 unless he has fairly presented his federal law claim to the state courts....