Rios v. Shaw et al

Filing 50

MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 3/15/2013. Mailed notice (cjg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
ex rel. DON JUAN RIOS,
Petitioner,
v.
MARCUS HARDY, Warden,
Respondent.

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No. 09 C 3846
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Don Juan Rios has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
to vacate his conviction for first degree murder. For the reasons set forth below, the Court denies

the petition.

Background
In 2002, after a bench trial, Rios was convicted of first degree murder and sentenced to fortyfive years in prison. (Gov’t Ex. A, People v. Rios, No. 1-04-0058 at 1-2 (Ill. App. Ct. Jan. 31,
2006).) On appeal, he argued that: (1) his jury trial waiver was invalid because he did not know
when he made it that the trial judge, Judge Golniewicz, was being investigated by the Judicial
Inquiry Board (“JIB”); (2) the judge who handled the post-trial proceedings, Judge Kelley, could
not fairly determine Rios’ motion for a new trial or sentence because he had not presided at the trial;
(3) Judge Kelley erroneously denied Rios’ post-trial motions for discovery into the JIB investigation
and quashed his subpoena of Judge Golniewicz; and (4) the state had failed to prove Rios’ guilt

beyond a reasonable doubt. (See id. at 16-32.) The appellate court rejected these arguments and
affirmed Rios’ conviction and sentence. (Id. at 33.)
Rios filed a petition for leave to appeal (“PLA”) to the supreme court, arguing that his due
process rights were violated because Judge Golniewicz: (1) knew the prosecutors had started the
JIB inquiry and wanted to curry favor with them; and (2) did not tell Rios about the JIB proceedings
before he waived his right to a jury trial. (See Gov’t Ex. H, PLA, People v. Rios, No. 102194 at 820.) The supreme court denied the PLA. (See Gov’t Ex. I, People v. Rios, No. 102194 (Ill. May 24,
2006).)
In early 2007, Rios filed his first petition for post-conviction relief, arguing that his due
process rights were violated because a potentially biased judge presided over his trial. (See Gov’t
Ex. J, Pet. Post-Conviction Relief, People v. Rios, No. 99-CR-12385 at 2-3.) The petition was
denied. (Gov’t Ex. K, Apr. 13, 2007 Hr’g Tr. at B-3-5, People v. Rios, No. 99 CR 12385 (Cir. Ct.
Cook Cnty.).)
Rios raised the same issues on appeal and in his PLA, both of which were rejected. (See
Gov’t Ex. L, Br. & Arg. Def.-Appellant at 6-13, People v. Rios, No. 07-1668; Gov’t Ex. O, People
v. Rios, No. 1-07-1668 at 7 (Ill. App. Ct. Dec. 22, 2008); Gov’t Ex. R, PLA, People v. Rios, No.
108083; Gov’t Ex. S, People v. Rios, No. 108083 (Ill. May 28, 2009).)
In 2009, Rios sought leave to file a successive post-conviction petition, arguing that: (1) the
state had not proven him guilty beyond a reasonable doubt; (2) his due process rights were violated
by having a biased judge preside over his trial and by the judge’s failure to tell Rios about his rights
to a jury trial and to testify; (3) his trial counsel was ineffective because he did not tell Rios about
his rights to testify and to a jury trial; and (4) his appellate counsel was ineffective for failing to raise

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the first three issues. (See Gov’t Ex. T, Mot. File Successive Post-Conviction Pet. at 2-5, People
v. Rios, No. 99 CR 12385.) The motion was denied. (See Gov’t Ex. U, Aug. 14, 2009 Hr’g Tr.,
People v. Rios, No. 99 CR 12385 (Cir. Ct. Cook Cnty.).)
On September 9, 2009, Rios appealed that order, and the Illinois Appellate Defender was
appointed to represent him. (See Gov’t Ex. V, Agreed Mot. Summ. Disposition ¶ 4, People v. Rios,
No. 1-09-2352.) Appointed counsel filed an agreed motion for summary disposition asking that
Rios’ sentence be reduced by eleven days for pre-sentence time served. (Id. ¶ 8.) The motion did
not address any of the issues Rios raised in his motion to file a successive petition. (Id.) The court
granted the motion for summary disposition, which it said was “a final and complete disposition”
of Rios’ appeal from the order denying him leave to file a successive petition. (See Gov’t Ex. W,
People v. Rios, No. 1-09-2352 (Ill. App. Ct. Sept. 23, 2010).)
On September 27, 2010, Rios asked the appellate court for permission to file a pro se brief
addressing the issues he raised in his motion to file a successive post-conviction petition because
his appointed counsel had refused to do so. (See Gov’t Ex. X, Mot. Leave File Pro Se Br. Instanter,
People v. Rios, No. 1-09-2352; Gov’t Ex. Y, Pro Se Br. & Arguments Pet’r-Appellant, People v.
Rios, No. 1-09-2352.) The court granted the motion, “treated [the brief] as a petition for rehearing”
and denied it. (Gov’t Ex. Z, People v. Rios, No. 1-09-2352 (Ill. App. Ct. Oct. 22, 2010).)
Rios filed a PLA in which he argued that he should have been allowed to file a successive
petition because: (1) he raised a claim of actual innocence; (2) the state had not proved him guilty
beyond a reasonable doubt; and (3) his trial and appellate counsel were ineffective. (See Gov’t Ex.
CC, PLA at 3, People v. Rios, No. 112178.) The supreme court denied the PLA. (See Gov’t Ex.
DD, People v. Rios, No. 112178 (Ill. Sept. 28, 2011).)

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Discussion
In his amended habeas petition, Rios argues that: (1) his due process rights were violated by
(a) the state’s failure to prove his guilt beyond a reasonable doubt, (b) the trial judge’s failure to
advise him of his rights to a jury trial and to testify, and (c) having his guilt determined by a biased
judge; (2) his right to effective assistance of counsel was violated by (a) trial counsel’s failure to
advise him of his right to a jury trial and to testify, permitting a defense witness to testify that Rios

was a drug dealer, and the cumulative effect of these issues, and (b) appellate counsel’s failure to
address trial counsel’s errors on appeal.
Rios did not raise claims 1(a), 1(b), 2(a) or 2(b) at all levels of his direct appeal or first postconviction proceedings. (See Gov’t Ex. H, PLA, People v. Rios, No. 102194 at 8-20; Ex. J, Pet.
Post-Conviction Relief, People v. Rios, No. 99-CR-12385 at 2-3).) Morever, the state court rebuffed
his attempt to assert them in a successive post-conviction petition by denying him leave to file it.
(Gov’t Ex. Z, People v. Rios, No. 1-09-2352 (Ill. App. Ct. Oct. 22, 2010)); see 725 Ill. Comp. Stat.
5/122-1(f) (“Only one [post-conviction] petition may be filed . . . without leave of court.”); People
v. LaPointe, 879 N.E.2d 275, 278 (Ill. 2007) (“Having been denied leave to file the petition,
LaPointe’s case ended at that point without his second petition having ever been properly filed under
the statute.”). Because Rios did not litigate these claims in “one complete round of state-court
review,” they are procedurally defaulted. Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004);
see 28 U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the question presented.”); U.S. ex. rel. Johnson
v. McCann, No. 06 C 5352, 2008 WL 4613410, at *1 (N.D. Ill. Oct. 10, 2008) (holding that habeas

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petitioner had procedurally defaulted claims raised only in “an unauthorized second post-conviction
petition”).
Despite the procedural defaults, the Court can still consider these claims if Rios shows cause
for and prejudice from having failed to raise them in state court or that he is actually innocent, i.e.,
“that no reasonable [fact finder] would have found him guilty of the crime [for which he was
convicted] but for the error(s) he attributes to the state court.” Lewis, 390 F.3d at 1026. Because
he has done neither, the Court cannot review these claims.

Merits
The only claim Rios preserved for review is claim 1(c), that his due process rights were
violated by having a biased or potentially biased judge preside at his trial. The Court can grant

habeas relief on this claim only if the state court’s decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court”
or was “based on an unreasonable determination of the facts in light of the evidence presented.” 28
U.S.C. § 2254(d)(1),(2).
The due process clause guarantees litigants “a fair trial in a fair tribunal.” Guest v. McCann,
474 F.3d 926, 931 (7th Cir. 2007) (quotation omitted). “[D]ue process is violated when a judge
presides in a case that would offer a possible temptation to the average man to forget the burden of
proof required to convict the defendant or would lead him not to hold the balance nice, clear, and
true between the state and the accused.” Id. (quotations and alterations omitted). To succeed on a
judicial bias claim, Rios must offer facts indicating that the trial judge was “actual[ly] bias[ed]” or

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there was “a possible temptation so severe that we might presume [he had] an actual, substantial
incentive to be biased.” Del Vecchio v. Ill. Dep’t of Corrs., 31 F.3d 1363, 1380 (7th Cir. 1994).
With respect to this claim, the state court said:
. . . . To support a claim of judicial bias, defendant must establish a nexus between
the activities being investigated and the trial judge’s conduct at trial, and allege and
establish actual bias resulting from the trial judge’s extrajudicial conduct. People v.
Titone, 151 Ill. 2d 19, 30 (1992).
In his petition and accompanying affidavit from post-conviction counsel, defendant
offered nothing but speculative and uncertain assertions that the trial judge “may
have been biased.” These conclusions, alone, are insufficient to support a clam of
judicial bias, as defendant alleged no supporting facts. People v. Swamynathan, No.
2-07-0239, slip. op. at 10 (September 15, 2008).
The affidavit of post-conviction counsel regarding what purported to be a JIB
[Judicial Inquiry Board] complaint against the trial judge is devoid of any direct
evidence that the judge was biased in defendant’s trial, and defendant did not offer
any instances of such in his petition or before this court. Titone, 151 Ill. 2d at 30.
That the trial judge was under investigation in unrelated cases for conduct
unbecoming of a judicial officer is not germane to the facts in this case. Titone, 151
Ill. 2d at 30. Thus, where defendant has not challenged the propriety of the trial
judge’s rulings or cited any incidents which might cast doubt upon the judge’s
objectivity in his case to establish actual bias, his speculation that the judge “may
have been biased” is insufficient to set forth the gist of a constitutional claim of
judicial bias. People v. Knade, 252 Ill. App. 3d 682, 690 (1993). . . .
(Gov’t Ex. O, People v. Rios, No. 1-07-1668 at 5-6 (Ill. App. Ct. Dec. 22, 2008).)
Though the court did not cite to federal cases, it nonetheless made the presumptively correct
findings required by those cases. See 28 U.S.C. § 2254(e)(1) (state court’s fact findings are
presumed correct unless rebutted by clear and convincing evidence). The Court explicitly found that
Rios’ evidence, which consisted solely of an affidavit from his lawyer, did not establish actual bias.
(Id. at 6; see Gov’t Ex. J., Pet. Post-Conviction Relief, Ex. A, Harper Aff. ¶ 2 (stating that “I have
obtained a document that appears to be a complaint filed by the Judicial Inquiry Board,” which states
that “[a]t various times during 2000 and 2001,” Judge Golniewicz “engaged in rude, inappropriate,
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undignified, prejudicial, and biased behavior [while on the bench]”).) Moreover, the court’s
wholesale rejection of that affidavit as speculative, conclusory and uncertain, necessarily negates
a finding that the trial judge was subject to a “temptation so severe” his bias could be presumed. See
Del Vecchio, 31 F.3d at 1380. Because the state court’s findings, stand unrebutted, Rios is not
entitled to habeas relief.
Conclusion
For the reasons set forth above, the Court denies Rios’ petition for a writ of habeas corpus
and terminates this case. The Court also declines to issue a certificate of appealability because Rios
has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. §
2253(c)(2).
SO ORDERED.

ENTERED: March 15, 2013

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HON. RONALD A. GUZMAN
United States District Judge

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