Ramsey v. United States, No. 76 C 3651.

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtR. T. McAllister, Asst. U. S. Atty., Chicago, Ill., for respondent
Citation448 F. Supp. 1264
PartiesLester RAMSEY, Petitioner, v. UNITED STATES of America, Respondent.
Docket NumberNo. 76 C 3651.
Decision Date17 April 1978

448 F. Supp. 1264

Lester RAMSEY, Petitioner,
v.
UNITED STATES of America, Respondent.

No. 76 C 3651.

United States District Court, N. D. Illinois, E. D.

April 17, 1978.


448 F. Supp. 1265
COPYRIGHT MATERIAL OMITTED
448 F. Supp. 1266
Lester Ramsey, pro se

R. T. McAllister, Asst. U. S. Atty., Chicago, Ill., for respondent.

MEMORANDUM AND ORDER

ROBSON, Senior District Judge.

This cause is before the court on its own motion that petitioner show cause why his amended Section 2255 motion should not be dismissed. The cause is also before the court on petitioner's Rule 35 motion to modify his sentence. For the reasons hereinafter stated, petitioner's amended Section 2255 motion is dismissed, and his Rule 35 motion to modify his sentence is denied and dismissed.

THE AMENDED SECTION 2255 MOTION

BACKGROUND

Petitioner, Lester Ramsey, was convicted by a jury of conspiring to buy and sell heroin, the late Judge Richard W. McLaren presiding. United States v. Lester Ramsey, 71 CR 456. He appealed his conviction on the ground that (1) the wiretapping and electronic surveillance statute is unconstitutional on its face, (2) the wiretap conducted in his case violated a portion of the authorizing order which directed agents to minimize interception of nonincriminating statements, and (3) the trial court erred by failing to grant immunity to a defense witness who exercised his privilege against self-incrimination. The Court of Appeals for the Seventh Circuit affirmed his conviction. United States v. Ramsey, 503 F.2d 524 (7th Cir. 1974), cert. denied, 420 U.S. 932, 95 S.Ct. 1136, 43 L.Ed.2d 405 (1975).

On September 30, 1976, some three and one-half years after his conviction and well over a year after his petition for certiorari was denied, Ramsey filed a pro se motion to vacate his sentence pursuant to 28 U.S.C. § 2255. On November 15, 1976, this court granted the government's motion to dismiss

448 F. Supp. 1267
the Section 2255 motion pursuant to Fed.R. Civ.P. 12(b)(6). On January 17, 1977, Ramsey filed an amended petition setting forth additional facts. The court granted Ramsey's application to resubmit the motion to vacate his sentence1 and ordered the government to show cause why the relief requested should not be granted

In his amended Section 2255 motion, Ramsey claims that his constitutional rights under the Fifth and Sixth amendments were violated at his trial. Specifically, he asserts that his Fifth amendment right against compulsory self-incrimination was violated when, during closing argument, the prosecutor stated that he, Ramsey, is "guilty because he did not take the stand because of his guilt." He further avers that the judge, upon hearing the prosecutor's remark, did not, inter alia, instruct the jurors to disregard the remark and did not inform them that Ramsey's failure to take the stand was not evidence of his guilt.2 Rather, Ramsey asserts that the trial judge stated that "such statements will be stricken from the records." Moreover, he claims that the trial judge had the prosecutor's remarks physically removed from the transcript, thus depriving him of an accurate transcript on appeal.3

On February 10, 1977, the government filed a motion to dismiss pursuant to Fed.R. Civ.P. 12(b)(6). On April 11, 1977, the court denied the government's motion to dismiss and ordered the government to file an answer. On June 13, 1977, the government's motion for leave to file its answer instanter was granted. The answer denies the allegations of Ramsey's amended Section 2255 motion.

On June 13, 1977, the government reported that it was having great difficulty locating the transcript of Ramsey's trial and that the warehouse did not have it. It suggested that Ramsey might have a copy of the transcript. Accordingly, per the government's motion, an order was entered requiring Ramsey to produce for the government's inspection the transcript of the trial in United States v. Lester Ramsey, 71 CR 456, and the pages and documents which support his contention that the trial judge removed certain statements from the record.

On June 20, 1977, Ramsey filed an answer to the court's June 13th order to produce. It was totally unresponsive. In the answer, however, Ramsey admitted that his attorney did not object at trial to the prosecutor's alleged comment on his failure to testify.4

During the early part of the summer of 1977, the court repeatedly instructed the government to obtain, type, and forward to the court a complete copy of the record of Ramsey's trial. The government did not procure the record of Ramsey's trial, however, it eventually located the court reporter at his trial.

In October of 1977, the government filed a motion for summary judgment. In support thereof, it filed a transcript of the closing argument at petitioner's trial. The transcript was prepared by the official court reporter at Ramsey's trial, based on her notes. The government also filed the court reporter's sworn affidavit. She stated, inter alia, that she reported the entire

448 F. Supp. 1268
arguments made by counsel for the government and that "she is unaware of any testimony or statements by counsel being struck from the record by Judge McLaren." Ramsey filed a memorandum in response in which he argued that the government's motion should be denied and that an evidentiary hearing should be held.5 The government did not file a reply memorandum.6

After completion of the briefing schedule, the court was able to obtain, through its own efforts, the record of the proceedings in United States v. Lester Ramsey, 71 CR 456. On January 13, 1978, the court denied the government's motion for summary judgment, stating as follows:

A review of the record indicates that the pages of the transcript which the government (and petitioner) have filed with respect to the motion are from petitioner's first trial, which was declared a mistrial because of a deadlocked jury, and not his second trial, at which he was convicted. Clearly, the portion of the record filed by the government is irrelevant.

In the January 13th order, the court also served notice on petitioner that the court, on its own initiative, would dismiss his amended Section 2255 motion in light of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), and his failure to raise his constitutional claims at trial and on direct appeal, unless he made a showing within thirty days why such dismissal should not be ordered.7 Petitioner has filed an answer to this order.8

UNAVAILABILITY OF COLLATERAL RELIEF

Fifth Amendment Claim

In deciding whether collateral relief is available to the petitioner, the court must determine the standard of collateral review that should apply where, as here, there has been a failure to object to an alleged constitutional violation occurring during the trial of a federal criminal defendant. This court is of the opinion that recent decisions of the United States Supreme Court, especially Wainwright v. Sykes, supra hereinafter Sykes, reveal a new and stricter attitude toward collateral review of federal constitutional claims which forecloses review of petitioner's Fifth Amendment claim.

The court's analysis begins with Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963) hereinafter Fay. In Fay, the Supreme Court articulated the standard to be used in determining whether a procedural default serious enough to bar collateral review of the merits of a belatedly asserted constitutional claim of a state prisoner has taken place. The Court adopted the "deliberate bypass" or "knowing waiver" standard of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and made federal habeas review generally available to

448 F. Supp. 1269
state defendants, absent a knowing and intelligent waiver of a federal constitutional right or contention. Under the Fay "deliberate bypass" standard, the burden is on the government to demonstrate, and the court to find, that there was a knowing and intelligent waiver of the petitioner's constitutional claim in state court. The determination ordinarily requires an evidentiary hearing, and if the district court cannot find persuasive evidence of a knowing and intelligent waiver, the court should proceed to consider the petitioner's constitutional claims. See, e. g., Fay v. Noia, supra at 439, 83 S.Ct. 822; Humphrey v. Cady, 405 U.S. 504, 517, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972)

Although Fay was a Section 2254 case involving a state prisoner, federal courts consistently applied the "deliberate bypass" standard to federal prisoners in Section 2255 cases. See, e. g., Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (principles developed in Fay govern the circumstances under which a prisoner may be foreclosed from federal collateral review); Whitney v. United States, 513 F.2d 326 (8th Cir. 1974). Consequently, whether the procedural default occurred in state or federal court, the operative test became the "deliberate bypass" standard. Jiminez v. Estelle, 557 F.2d 506, 508 (5th Cir. 1977), and cases cited.

Recently, however, in a Section 2254 case, the Supreme Court extended what has been a gradual retreat from the Fay standard.9 In Wainwright v. Sykes, supra, the Supreme Court held that federal habeas review of the voluntariness of a confession was barred by a state prisoner's failure to object at trial as required by Florida's "contemporaneous objection" rule, absent a showing of "cause" for the failure to timely and contemporaneously object and "prejudice" resulting from the alleged constitutional violation. Accordingly, the "cause and prejudice" standard replaces the "deliberate bypass" standard in Section 2254 cases, at least where the waiver relates to events during trial such as waived objections or counsel's tactical decisions. Id. at 88 n.12, 91 n.14, 97 S.Ct. 2497. See also id. at 91-94 & nn. 1-2, 97 S.Ct. 2497 (Burger, C. J., concurring), and id. at 94-97 & nn. 1-2, 97 S.Ct....

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13 practice notes
  • Norris v. U.S., No. 79-1673
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 13 Agosto 1982
    ...court decisions in this circuit take the same approach as the Fifth Circuit in Sincox : the decision below; and Ramsey v. United States, 448 F.Supp. 1264, 1273 n.18, 1274 (N.D.Ill.1978), which contains a full and forceful argument for the approach. The District of Columbia Circuit has left ......
  • U.S. v. Byers, No. 78-1451
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 24 Julio 1984
    ...claims are barred in Sec. 2255 proceeding by failure to appeal unless cause-and-prejudice test is satisfied); Ramsey v. United States, 448 F.Supp. 1264, 1268-1274 (N.D.Ill.1978) 97 Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227, 238 n. 8 (1969). S......
  • In re Kravitz
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 5 Junio 1979
    ...v. United States, 571 F.2d 876, 880 (5th Cir. 1978); Cole v. Stevenson, supra, 447 F.Supp. at 1272. But see Ramsey v. United States, 448 F.Supp. 1264, 1272-73 (N.D.Ill.1978). Others have ruled that counsel's unawareness of the facts or law underlying the habeas 488 F. Supp. 47 applicant's c......
  • Breest v. Perrin, Civ. No. 79-266-D
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • 22 Agosto 1980
    ...of their cases on habeas by operation of New Hampshire's contemporaneous objection and exception rule. See also Ramsey v. United States, 448 F.Supp. 1264, 1273 (N.D.Ill.1978); Barrier v. Egeler, 583 F.2d 515, 525 (6th Cir.) (dissenting opinion), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 ......
  • Request a trial to view additional results
13 cases
  • Norris v. U.S., No. 79-1673
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 13 Agosto 1982
    ...court decisions in this circuit take the same approach as the Fifth Circuit in Sincox : the decision below; and Ramsey v. United States, 448 F.Supp. 1264, 1273 n.18, 1274 (N.D.Ill.1978), which contains a full and forceful argument for the approach. The District of Columbia Circuit has left ......
  • U.S. v. Byers, No. 78-1451
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 24 Julio 1984
    ...claims are barred in Sec. 2255 proceeding by failure to appeal unless cause-and-prejudice test is satisfied); Ramsey v. United States, 448 F.Supp. 1264, 1268-1274 (N.D.Ill.1978) 97 Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227, 238 n. 8 (1969). S......
  • In re Kravitz
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • 5 Junio 1979
    ...v. United States, 571 F.2d 876, 880 (5th Cir. 1978); Cole v. Stevenson, supra, 447 F.Supp. at 1272. But see Ramsey v. United States, 448 F.Supp. 1264, 1272-73 (N.D.Ill.1978). Others have ruled that counsel's unawareness of the facts or law underlying the habeas 488 F. Supp. 47 applicant's c......
  • Breest v. Perrin, Civ. No. 79-266-D
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • 22 Agosto 1980
    ...of their cases on habeas by operation of New Hampshire's contemporaneous objection and exception rule. See also Ramsey v. United States, 448 F.Supp. 1264, 1273 (N.D.Ill.1978); Barrier v. Egeler, 583 F.2d 515, 525 (6th Cir.) (dissenting opinion), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 ......
  • Request a trial to view additional results

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