U.S. ex rel. Buckhana v. Lane

• Decision Date: 26 March 1986
• Docket Number: No. 85-2049,85-2049
• Citation: 787 F.2d 230
• Parties: 20 Fed. R. Evid. Serv. 285 UNITED STATES of America ex rel. Willie BUCKHANA and Tony McGhee, Petitioners-Appellants, v. Michael LANE, Director, Department of Corrections, State of Illinois, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 230

787 F.2d 230

20 Fed. R. Evid. Serv. 285

UNITED STATES of America ex rel. Willie BUCKHANA and Tony McGhee, Petitioners-Appellants, v. Michael LANE, Director, Department of Corrections, State of Illinois, Respondent-Appellee.

No. 85-2049.

United States Court of Appeals Seventh Circuit.

Argued Jan. 23, 1986.

Decided March 26, 1986.

Donald S. Honchell, Cook County Public Defender, Chicago, Ill., for petitioners-appellants.

James E. Fitzgerald, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before BAUER, COFFEY, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

Petitioners-appellants, Willie Buckhana ("Buckhana") and Tony McGhee ("McGhee") appeal from the district court order dismissing their petitions for writs of habeas corpus. We affirm.

I

In July 1979, following a trial in the Cook County, Illinois, Circuit Court, a jury found Buckhana and McGhee, along with a third individual named Green (not a party to this action), guilty of burglary and armed robbery. Between trial and sentencing, the petitioners filed motions for a new trial based on information supplied by Jimmy Buckhana, Willie Buckhana's brother. The petitioners filed the following affidavit of Jimmy Buckhana at the post-trial hearing on their motions for a new trial:

"My name is Jimmy Buckhana and I live at 2114 W. 18th St., Chicago, Illinois. I am the brother of Willie Buckhana one of the defendants in the above case. I attended every hearing of the trial of the case.

On [the] seventeenth day of July I attended the final trial date and when the Jury went in to deliberate the case I remained in the Court Room and from the time Jury went in to the time they came out with the exception of going to the bathroom a couple of times.

About 7:45 p.m. one of the lady sheriffs came out and spoke to the Clerk. She said 'I had told the Jury if they don't reach a verdict in 20 minutes we would have to lock them up for the night because of having to make hotel reservations.'

She was repeating to the Clerk what I had heard her do and say to the Jury. I had heard her knock on the door and tell the Jury that if they don't reach a verdict in 20 minutes that they would have to be locked up for the night. I heard one women say that she can't stay overnight. I waited in the Court Room and the Jury came out about 8:00 p.m. with their verdict."

In response to the defendant's motions, the trial judge noted that Jimmy Buckhana was an "obviously biased witness" and stated "I can't understand how the witness could hear that conversation [between the deputy sheriff and the clerk] if it took place in the courtroom." He further stated, "I suppose it is possible to hear that conversation [between the deputy sheriff and a jury] but I find it difficult to believe that a person would hear one of the women jurors within the jury room say she can't stay overnight." Despite the questions he raised regarding Jimmy Buckhana's credibility, the trial judge "accept[ed] the facts in the affidavit as true for the purpose of this hearing...." The judge concluded that even assuming the facts in the affidavit to be true, there was no showing that the juror who indicated she could not stay overnight was induced to change her vote by the statement of the deputy sheriff and that the conversation, occurring after eight hours of deliberation, was not at all coercive to the jury or its deliberations. The trial judge pointed out that none of the jurors had informed him that they felt coerced by the possibility of sequestration and denied the motion for a new trial, stating, "I don't believe that any communication of that nature dealing with the housekeeping arrangements of the jury amounts to illegal communication with the jury." Buckhana received concurrent eighteen and seven year terms for armed robbery and burglary respectively, and McGhee was sentenced to concurrent terms of fourteen years for armed robbery and seven years for burglary.

The Illinois Appellate Court affirmed the petitioners' convictions stating:

"Our consideration of this affidavit and of the arguments made in the defendant's brief lead us inevitably to the conclusion that the trial judge was eminently correct in his analysis. The trial judge was undoubtedly better equipped than any other person to determine the central issue as to whether any prejudice resulted to defendants from the subject matter of the affidavit. Actually, we have here a situation in which an attempt is being made to raise a claim of prejudice on the foundation of 'mere conjecture.' See People v. Lewis (1975), 60 Ill.2d 152, 158, 330 N.E.2d 857."

People v. Buckhana, 99 Ill.App.3d 889, 55 Ill.Dec. 124, 128, 425 N.E.2d 1297, 1301 (1981). Subsequently, the Illinois Supreme Court denied the defendants leave to appeal and the United States Supreme Court denied their petition for a writ of certiorari. 457 U.S. 1122, 102 S.Ct. 2938, 73 L.Ed.2d 1336 (1982).

In September 1982 Buckhana and McGhee filed petitions for writs of habeas corpus in the United States District Court for the Northern District of Illinois claiming that the deputy sheriff's alleged statement that the jury had twenty minutes to reach a verdict or else be sequestered for the night violated their Fourteenth Amendment due process right to a fair and impartial trial. The respondent moved to dismiss the petition on the grounds that the petitioners had failed to exhaust their available state remedies and also on the grounds that the deputy sheriff's statement to the jury did not deny them a fair and impartial trial. The respondent contended that the trial court failed to decide whether the allegations of Jimmy Buckhana's affidavit were entitled to any credence because the court reasoned that his allegations, even if true, did not demonstrate prejudice to the petitioners. According to the respondent, the petitioners should establish the factual premises for their claims in state post-conviction proceedings before petitioning the federal district court for a writ of habeas corpus. The petitioners countered that both the Illinois state trial and appellate courts ruled on the merits of their claim and that any attempt to further litigate their claims pursuant to the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat. ch. 38, Sec. 122-1 et seq., would be barred by res judicata. The district court referred the motion to dismiss to a magistrate, who concluded that the record from the state trial and appellate proceedings would not permit a federal court to make an intelligent decision on the petition as the state court trial judge made no finding as to whether the alleged communication between the deputy sheriff and the jury ever transpired. The magistrate recommended the petition be dismissed so that the petitioners could develop an adequate and complete record in the state court regarding the deputy sheriff's contact with the jury. The district court rejected the magistrate's recommendation, concluding that "by accepting the facts in the affidavit as true, the court effectively held that the events alleged in the affidavit did in fact occur," and noting that both the Illinois trial and appellate courts ruled on the merits of the petitioners' claim. According to the district court, the case law interpreting the Illinois Post-Conviction Hearing Act demonstrates that it would be futile to force the petitioners to bring a collateral attack when the matter has previously been argued on direct appeal. In addition to denying dismissal on exhaustion grounds, the district court also denied the respondent's motion to dismiss the habeas petition on the merits, reasoning that the deputy sheriff's comments to the jury were presumptively prejudicial under the rule announced in Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), and the state failed to rebut the presumption and demonstrate that the deputy sheriff's communication to the jury was harmless. The district court subsequently held a hearing at which the respondent introduced the testimony of six of the jurors from Buckhana and McGhee's trial and the petitioners introduced the testimony of Jimmy Buckhana. Following the hearing, the parties deposed a seventh juror who was unable to attend the hearing due to illness. ¹

At the district court hearing, juror Ann Chamberlain testified that jury deliberations in Buckhana and McGhee's trial began around mid-day, and "much later" in the jury deliberations a male bailiff interrupted the jury's deliberations, wanting to know if the jury should be put up for the night or "if [the jury] were going to have anything eventually in the near future as to a decision." According to Chamberlain, when the bailiff made this statement to the jury, "We were just about through. We had made up our mind pretty well by the time he entered so we just said, 'just give us a few more minutes.' " Chamberlain testified further that "we already had made up our minds on two of them [the defendants] and we were zeroing in on the last one and we had just about concluded on that one because we deliberated individually." Upon further direct examination, Chamberlain explained that they had already reached a verdict on Buckhana and Green at the time of the interruption. Chamberlain also related that she would not have had any problem with staying in a hotel if necessary. The counsel for the respondent asked Chamberlain on direct examination, "When the statement by the bailiff we [sic] made, did you, as a juror, feel any pressure in order to reach a verdict?" To which Chamberlain replied, "I personally did not feel any pressure at all." On cross-examination, Chamberlain acknowledged that after the bailiff had come to the door, one of the jurors, an older lady who lived alone with a dog, complained about the possibility of having to stay overnight. Chamberlain also testified on cross-examination that the jurors had not signed a verdict for any defendant at the time of the bailiff's interruption....