Illinois law, natural life imprisonment is the lowest possible sentence he could receive based on
his conviction for the murders of the two elderly women. See 730 ILCS 5/5-8-1(a)(1)(c)(ii);
People v. McCoy, 337 Ill_App.3d 518, 520-21 (Ill_App.Ct. 2003) (multiple murder statute
proscribes mandatory life term for conviction of more than one murder).

Because Strickland is a balancing test rather than a bright-line rule, only clear error in
applying Strickland supports a writ of habeas corpus. See Murrell, 332 F.3d at 1111. The Court
concludes that Montgomery has not established that the Illinois Supreme Court committed clear
error in applying Strickland to his fourth and fifth habeas claims, and therefore, denies them.

2. Competency to Waive Jury

Next, Montgomery contends that his trial counsel was constitutionally ineffective because
they failed to take the necessary steps to insure his competency to waive a jury due to his earlier
suicide attempt. When analyzing this claim, the Illinois Supreme Court explained:

A psychiatric examination of the defendant after his suicide attempt found

him to be fit, however. In addition, the proceedings at trial show that the

defendant made knowing, intelligent, and voluntary waivers of juries, both before

trial and before sentencing. The trial judge admonished the defendant of his

rights, and the defendant agreed to give them up. Also, the record shows that the

defendant knowingly, intelligently, and voluntarily agreed to the submission of the

case to the trial judge through a stipulated bench trial. On each occasion, the

defendant denied that he had been promised anything in exchange.

Montgomery IIT, 192 Il.2d at 681.

The Court concludes that the Illinois Supreme Court’s decision is consistent with the

facts and circumstances of the case, and thus an objectively reasonable application of Strickland.

See Searcy, 332 F.3d at 1089. The Illinois court based its conclusion on a psychiatric

examination finding Montgomery fit to stand trial and Montgomery’s knowing and intelligent

19


promise, Montgomery has not set forth evidence that establishes a nexus between the judge’s
promise and his decision to waive a jury trial.

Moreover, in the course of the stipulated bench trial, Judge Samuels gave Montgomery
the warnings normally given defendants who plead guilty pursuant to Illinois Supreme Court
Rule 402. Montgomery’s responses to these warnings indicated that he had been promised
nothing and that his actions were voluntary. As such, Montgomery has not overcome the
presumption that Judge Samuels was impartial or that Judge Samuels had an actual bias against
him or an interest in the outcome of his case. See Bracy, 520 U.S. at 904-05, 909. Therefore, the
Court denies the first judicial misconduct claim.

2. Judge’s Participation in Ex Parte Communications*

Second, Montgomery contends that Judge Samuels’ participation in the ex parte meetings
was improper, regardless of the content of the discussions, and thus, tainted the proceedings and
prejudiced Montgomery in violation of his right to due process. Specifically, Montgomery
argues that due to the prosecutor’s knowledge of the judge’s conversation with defense counsel,
Judge Samuels had “an improper, but strong incentive to sentence Montgomery to death to avoid
any allegations of misconduct.” Montgomery elaborates that being caught by the prosecutor on
the eve of trial “fostered in Judge Samuels an interest in the outcome of Montgomery’s case
arising from the strong personal need to protect his reputation against a charge of unethical

conduct.”

5 Under this claim, Montgomery seeks a new sentencing hearing. Because he has been
convicted of two murders, Montgomery’s sentence of natural life imprisonment is the lowest possible
sentence he can serve. See 730 ILCS 5/5-8-1(a)(1)(c)(ii); People v. McCoy, 337 Ill.App.3d 518, 520-21
(ill.App.Ct. 2003) (multiple murder statute proscribes mandatory life term for conviction of more than
one murder).

13


factual determinations set forth in Montgomery III. The Court addresses these specific
challenges below.
1. Evidence Presented at the Pre-Trial Hearing and Trial

The evidence adduced at the pre-trial suppression hearing and stipulated bench trial
indicate that two elderly women were found raped and strangled in their apartments in a two-flat
building which they owned. There was blood on the women’s bodies coming from each victim’s
nose and mouth. In addition, there was no sign of forced entry into either apartment.

After police arrived to investigate the homicides, Montgomery walked his bicycle to the
scene and asked the police what was happening. In response to an officer’s inquiry, Montgomery
indicated that he lived in a coach-house apartment behind the victims’ two-flat on the same lot.
Police noticed scrapes on Montgomery’s hands and spatters of blood on his pants. When asked
about the blood and scrapes, Montgomery stated that he had cut himself while attempting to
repair his bicycle. Montgomery then went with the police to the police station. While there, he
signed a written consent form allowing the police to take his finger and palm prints, samples of
his head and pubic hair, pubic hair combings, and fingernail scrapings. The police also
confiscated Montgomery’s blood-spattered clothing before releasing him.

Two days later, a police officer received word that Montgomery’s finger and palm prints
matched latent prints found on one victim’s eyeglasses and on an eyeglass case found in that
victim’s apartment. Police then arrested Montgomery, who, when confronted with information
regarding the fingerprint match, made the first of three confessions indicating that he had raped

and strangled both women.


waivers. Montgomery makes no argument refuting the Illinois court’s conclusion, thereby failing
to establish that the Illinois Supreme Court rejected his Strickland challenges in a manner that
was either “contrary to” or involved an “unreasonable application” of clearly established
Supreme Court law. See Lechner, F.3d at__, 2003 WL 21999019 at *1. Accordingly, the
Court denies Montgomery’s ineffective assistance of counsel claim based on his competency to
stand trial.

Cc Ineffective Assistance of Appellate Counsel

Finally, Montgomery asserts that his appellate counsel rendered ineffective assistance by
failing to argue that the trial court improperly allowed a stipulated bench trial and bench
sentencing hearing without first ensuring that his waivers were knowing and voluntary.
Strickland provides the appropriate standard for reviewing claims of ineffective appellate
counsel. See Williams, 529 U.S. at 390-91. Under the first Strickland prong, an appellate
counsel’s performance is deficient if counsel fails to appeal any issue that is both obvious and
clearly stronger than the ones raised. See Winters v. Miller, 274 F.3d 1161, 1167 (7° Cir. 2001).
To establish the requisite prejudice under the second Strickland prong, a petitioner must show
that appellate counsel’s failure to raise an issue may have resulted in the reversal of his
conviction or an order for a new trial. See id.

Here, the Illinois Supreme Court concluded that based on its rejection of similar
challenges to trial counsel’s performance, Montgomery’s appellate counsel claim must also fail.
See Montgomery II, 192 Ill.2d at 682. Montgomery does not argue, let alone establish, that his
appellate counsel’s performance was deficient and that counsel’s failure to raise this issue may

have resulted in the reversal of his conviction or an order for a new trial. See Winters, 274 F.3d

20


CONCLUSION
For the foregoing reasons, the Court denies Montgomery’s petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254 [R. 1].

DATED: September 8, 2003 ENTERED

United State¥ District Court Judge

22


reasons supporting counsel’s decision to advise Montgomery to waive a jury, including a
prospective juror’s comment that he could decide Montgomery’s guilt just by looking at him, and
that judges are less likely to impose the death penalty than a jury. See Montgomery IIT, 192 Ill.2d
at 665-66. Montgomery contends that the Illinois Supreme Court’s conclusion is not based on
the record, and thus “contrary to” and an “unreasonable application” of the Strickland
performance prong.

In support of his argument, Montgomery contends that the only possible conclusion from
the record is that the ex parte meetings with Judge Samuels caused counsel to advise him to enter
into a plea agreement and bench sentencing hearing. Once again, Montgomery relies on his
interpretation of the factual findings that promises were made during these ex parte meetings, not
the Illinois Supreme Court’s findings that the Court presumes are correct. In addition,
Montgomery does not support his contention by establishing with clear and convincing evidence
that there was a nexus between the ex parte discussions and his counsel’s advice. See
§ 2254(e)(1); Collier, 301 F.3d at 848. Without more, Montgomery’s argument that the Illinois
court’s decision was “contrary to” Strickland has no merit.

Although Montgomery states that the Illinois Supreme Court’s decision was an
unreasonable application of the Strickland performance prong, he makes no argument as to why
the Illinois court’s decision was objectively unreasonable. See Andrade, 123 S.Ct. at 1174.
Therefore, he has failed to demonstrate that the Illinois Supreme Court’s decision was an
unreasonable application of Strickland as required under the AEDPA. See Woodford, 537 U.S. at
24-25 (petitioner has burden in establishing state court applied facts of case in an objectively

unreasonable manner); see also Lechner v. Frank, F.3d___, __ (2003 WL 21999019 at *1

17


3. Challenge to Factual Determinations

Montgomery challenges the Illinois Supreme Court’s factual findings regarding the ex
parte communications. Montgomery has a high burden to meet in this regard, because he is
required to provide clear and convincing evidence to rebut the presumptive correctness of the
Illinois Supreme Court’s factual findings. See 28 U.S.C. § 2254(e)(1); Collier, 301 F.3d at 848.
This presumption of correctness is of particular importance when a federal habeas court reviews
a state court’s credibility determinations. See Murrell v. Frank, 332 F.3d 1102, 1112 (7" Cir.
2003); Cf Miller-El v. Cockrell, 123 S.Ct. 1029, 1040-41 (2003) (application for a certificate of
appealability). As explained below, Montgomery has not met his burden.

Montgomery contends that the Illinois Supreme Court improperly expressed doubt that
the ex parte meetings actually occurred, Specifically, Montgomery challenges the Illinois
Supreme Court’s factual determination that: “If any conversations occurred, it appears they were
limited to matters of scheduling.” See Montgomery II, 192 Ill.2d at 666. Montgomery also
challenges the Illinois court’s statement that the ex parte communications were “supposed
communications.” See id. Thus, Montgomery argues, the Illinois Supreme Court erred by
omitting reference to Judge Samuels’ testimony about the ex parte meetings. Montgomery then
asserts that based on the record, the only reasonable conclusion is that Judge Samuels promised
Montgomery’s defense counsel that he would not sentence Montgomery to death if he stipulated
to the State’s case and waived a jury for sentencing.

Montgomery’s claim that the Illinois Supreme Court erred by omitting reference to Judge
Samuels’ testimony misrepresents the Illinois court’s factual findings. Indeed, the Illinois court

discussed Judge Samuels’ testimony at the evidentiary hearing in detail, including his testimony


Defender’s homicide task force not to waive a jury for sentencing absent an indication that the
judge would not impose the death penalty.

Further, McNamara testified that he told his co-counsel, Michael Morrissey, about his
conversation with Judge Samuels and Morrissey responded that he, too, had a conversation with
Judge Samuels in which the judge indicated that he would sentence Montgomery to natural life
imprisonment if he pleaded guilty. McNamara also testified that he had spoken to Judge
Samuels’ court clerk, Moses Cole, about the case. He stated that Cole approached him and told
him that Montgomery should opt for a bench sentencing hearing because he did not believe that
the judge would impose the death penalty. McNamara testified to a similar conversation with
Shirley Thompson, the court reporter assigned to Judge Samuels’ courtroom.

Next, co-defense counsel Morrissey testified to having a similar ex parte conversation
with Judge Samuels in late April of 1983. Like McNamara, Morrissey testified that it was office
policy not to waive a sentencing jury absent a clear indication from the judge that the death
penalty would not be imposed. Morrissey indicated that Judge Samuels encouraged him to have
Montgomery plead guilty and stated that he would impose a life sentence. Morrissey stated that
he told both his office partner, Andrea Lyon, and McNamara about the conversation with Judge
Samuels. Lyon testified at the hearing that Morrissey had mentioned the conversation to her and
that Morrissey had telephoned her after the sentencing hearing to complain that Judge Samuels
had reneged on his promise.

Both McNamara and Morrissey testified to another ex parte meeting with Judge Samuels
just before the scheduled trial date. They testified that they spoke with the judge about their

intent to have a stipulated bench trial and waive a jury for sentencing to determine if the judge



2. Evidence Presented at the Second Post-Conviction Hearing

On appeal from the second post-conviction hearing, the Illinois Supreme Court focused
on the evidence pertaining to two discrete issues: (1) whether the judge who had presided at trial
and sentencing had assured defense counsel that Montgomery would not receive the death
penalty if he waived a jury and pleaded guilty; and (2) whether trial counsel had been ineffective
at the capital sentencing hearing. Montgomery’s claims pertaining to his capital sentencing
hearing have been rendered moot by the commutation of his death sentence. Thus, the Court
tums to the evidence bearing on the first issue.

At the second evidentiary hearing, John McNamara testified that he was lead counsel in
Montgomery’s case. McNamara stated that in April of 1983, he went to the courthouse to inform
Judge Samuels that the court would not have to hold a fitness hearing because a psychiatric
report made after Montgomery’s suicide attempt showed that Montgomery was fit to stand trial.
McNamara indicated that he told Judge Samuels what evidence the defense planned to present at
trial and sentencing. In response, McNamara said that Judge Samuels suggested Montgomery
should probably plead guilty. McNamara replied that he could not advise Montgomery to do so
absent a commitment from the judge that the death penalty would not be imposed. According to
McNamara, Judge Samuels responded by saying “look at my record.” McNamara construed the
comment to mean that if Montgomery waived a jury for sentencing, Judge Samuels would not
impose the death penalty. McNamara testified that he discussed that conversation with Paul
Foxgrover, who at that time was an assistant public defender who previously had appeared before
Judge Samuels. Foxgrover assured McNamara that he could rely on Judge Samuels’

representations. Later, McNamara testified that he thought it was the policy of the Public


(7" Cir, 2003) (habeas petitioner bears burden of showing state court rejected constitutional
challenges in manner that was “contrary to” or involved an “unreasonable application” of clearly
established Supreme Court law).

Next, Montgomery claims that the Strickland prejudice prong may be presumed because
his counsel failed “to subject the prosecution’s case to meaningful adversarial testing.” See
United States v. Cronic, 466 U.S. 648, 659 (1984). Recently, the United States Supreme Court
emphasized that a Cronic analysis is applicable only if the attorney’s failure is complete, that is,
only when counsel abandons the defendant. See Bell v. Cone, 535 U.S. 685, 696-97 (2002); see
also United States v. Hodges, 259 F.3d 655, 659 (7" Cir. 2001) (“In an abandonment claim,
prejudice is presumed”). Montgomery argues that when he stipulated to the State’s case, the
adversarial process broke down and the prosecution’s case was not tested at all. Montgomery,
however, does not specify what acts or omissions constitute counsel’s abandonment. Without a
more comprehensive argument outlining credible evidence in support of his argument,
Montgomery’s Cronic claim fails. See Hodges, 259 F.3d at 659 (unsupported allegations
inadequate to establish Cronic claim).

In the alternative, Montgomery argues that the evidence unambiguously supports the
conclusion that he was prejudiced by his counsel’s performance under Strickland.’ Montgomery,
however, merely makes additional arguments as to counsel’s performance, including the
argument that counsel pressured him into waiving a jury. Nevertheless, Montgomery would be

hard-pressed to establish prejudice due to the commutation of his death sentence because under

7 As Montgomery correctly notes, the Illinois Supreme Court did not address the Strickland
prejudice prong and was not required to do so. See Strickland v. Washington, 466 U.S. 668, 697 (1984)
(if defendant fails to make showing under one Strickland prong, court need not decide other prong).

18


she did not advise McNamara about possible sentences for Montgomery or tell counsel that the
judge would not impose the death penalty if Montgomery pleaded guilty or waived a jury. At the
time of the second evidentiary hearing on post-conviction review, the judge’s former court clerk,
Moses Cole, was no longer living. The parties did stipulate, however, to the days Cole was
present at work during 1983. According to this stipulation, Cole did not work on the day that
McNamara stated Cole had approached him about Montgomery’s sentence.

At the end of the evidentiary hearing, the post-conviction judge concluded that the
evidence did not support the allegation that Judge Samuels had improper ex parte discussions
with defense attorneys, nor that Judge Samuels had made any promises to Montgomery’s
attomeys. On post-conviction appeal, the Illinois Supreme Court articulated: “The parties agree
that this was essentially a credibility question, and we believe that it is appropriate here to defer
to the judge who presided at the defendant’s post-conviction hearing, who was in a superior
position to gauge the witnesses’ credibility and to evaluate the sharply conflicting testimony.”
See Montgomery IIT, 192 Ill.2d at 663. The Illinois Supreme Court further explained that the
corroborating witnesses at the hearing could only testify as to what Montgomery’s defense
lawyers believed they had heard from Judge Samuels. See id. In addition, the Illinois Supreme
Court noted that McNamara’s testimony was contradicted by other evidence, and that Foxgrover
was impeached by his prior convictions. See id. at 664. Deferring to the trial judge’s credibility
determinations, the Illinois Supreme Court concluded that the trial court’s findings were not

against the manifest weight of the evidence as Montgomery claimed. See id. at 663-64.


Minute Ordes Form (06/97)

su United States District Court, Northern District of Iinois

N: f Assigned Jud Sitting Judge if Oth
roe Magistrate Judge Amy J. St. Eve than Assigned Judge
CASE NUMBER 01 C 7486 DATE 9/8/2003
CASE Montgomery vs. Schomig
TITLE

{In the following box (a) indicate the party filing the motion, e.g, plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) im} Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) QO Answer brief to motiondue___. Reply to answer brief due

(4) Oo Ruling/Hearingon__setfor__at

(5) Oo Status hearing{held/continued to] [set for/re-set for]on__—setfor__—_aat

(6) im Pretrial conference{held/continued to] (set for/re-set forjon__——ssetfor_ at,

(7) a) Trial{set for/re-set for]on______at

(8) Qo [Bench/Jury trial] [Hearing] held/continued to at

(9) a] This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 COFRCP41(a)(1) CI FRCP41(a)(2).

qo) if {Other docket entry] | Enter Memorandum Opinion and Order. Petitioner’s petition for writ of

habeas corpus is denied.

anh

(11) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge’s staff.

lkrp 90 9
Notified counsel by telephone. pet dhe hat

ov | Docketing to mail notices.

7_| Mail A0 450 form. uno Loratsio’sia saad dd ds ys
WT

Copy to judge/magistrate judge.

date muited notice

J courtroom
TH deputy’s

initials

central Clerk’s Office mailing deputy initiats



court’s decision is “contrary to” clearly established Supreme Court law “if the state court arrives
at a conclusion opposite to that reached by this Court on a question of law” or “if the state court
confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to ours.” See id. at 405.

Under the “unreasonable application” prong under Section 2254(d)(1), a habeas petitioner
must demonstrate that although the state court identified the correct legal rule, it unreasonably
applied the controlling law to the facts of the case. See id. at 407. A state court’s application of
Supreme Court precedent is unreasonable if the court's decision was “objectively” unreasonable.
See Lockyer v. Andrade, 123 §.Ct. 1166, 1174 (2003) (unreasonable application more than
incorrect or erroneous). In order to be considered unreasonable under this standard, a state
court’s decision must lie “well outside the boundaries of permissible differences of opinion.”
See Hardaway v. Young, 302 F.3d 757, 762 (7" Cir. 2002); see also Searcy v. Jaimet, 332 F.3d
1081, 1089 (7" Cir. 2003) (reasonable state court decision must be minimally consistent with the
facts and circumstances of the case).

Ill. MONTGOMERY’S REMAINING HABEAS CLAIMS

Originally, Montgomery raised 29 claims in his habeas petition, many challenging the
death penalty in general and his death penalty hearing exclusively, some challenging only the
guilt and innocence phase of his trial, and the remainder challenging both the trial and the death
penalty. Because of the former governor’s commutation of Montgomery’s death sentence, this
Court already concluded that many of Montgomery’s habeas claims are moot. Montgomery’s
remaining claims -- claims 1-6 and 11 -- are viable only to the extent that they challenge his

conviction and not his commuted death sentence.

11


that he participated in a meeting with Montgomery’s attorneys before trial and that “he probably
met with one or another of the defense lawyers to discuss scheduling matters.” See id. at 660.

Nonetheless, Montgomery overstates the strength of his case by outlining the post-
conviction hearing evidence to support his conclusion that Judge Samuels promised not to
sentence him to death. Reiterating the hearing testimony alone does not rebut the presumptive
correctness of the Illinois Supreme Court’s factual findings by clear and convincing evidence,
especially in light of this Court’s deference to the Illinois courts’ credibility determinations. See
Murrell, 332 F.3d at 1112. Instead, Montgomery’s determination that the only reasonable
conclusion is that Judge Samuels promised not to sentence him to death is mere speculation and
does not establish by clear and convincing evidence that the Illinois Supreme Court’s factual
findings were in error.’ See § 2254(e)(1). Accordingly, the Court adopts the factual
determinations as set forth in Montgomery III.
il. HABEAS STANDARD

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
habeas petitioner is not entitled to a writ of habeas corpus unless the challenged state court
decision is either “contrary to” or “an unreasonable application of” clearly established federal law
as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1); Williams v.

Taylor, 529 U.S. 362, 404-05 (2000). In Williams, the Supreme Court explained that a state

4 Because the Court concludes that Montgomery did not establish by clear and convincing
evidence that the Illinois Supreme Court erred in its factual determinations, the Court need not address
Montgomery’s cursory argument that the Illinois court’s decision was based on “an unreasonable
determination of the facts in light of the evidence presented” under Section 2254(d)(1). See Ward v.
Sternes, 334 F.3d 696, 703-04 (7 Cir. 2003) (petitioner must establish that state court committed
unreasonable error).

10


would agree with their interpretation of the judge’s promise not to impose the death penalty.
Both said that the judge gave no indication that he would not honor what they thought was the
judge’s prior commitment. According to McNamara and Morrissey, the conversation ended
when the lead prosecutor burst into the judge’s chambers and yelled that it was improper for
McNamara and Morrissey to discuss the case with the judge behind the prosecutor’s back. The
prosecutor then abruptly left the judge’s chambers.

The hearing testimony further indicated that after the sentencing hearing McNamara and
Morrissey visited Robert Isaacson, a supervising appellate public defender, to discuss
Montgomery’s death sentence despite the judge’s alleged promise. The three concluded that they
would not confront Judge Samuels directly with the issue. Instead, they decided to refer to the
problem indirectly in Montgomery’s post-trial motion. At the hearing on that motion, Judge
Samuels did not grant Montgomery relief or refer to the alleged promise.

Judge Samuels testified at the second post-conviction hearing as well. He stated that he
had an open door policy and encouraged attorneys to converse with him in chambers. The judge
acknowledged that it was possible, if not probable, that he had met in chambers with McNamara
and Morrissey, but denied making any promises regarding Montgomery’s case. Rather, the judge
testified that he would have limited any conversations he may have had with McNamara or
Morrissey to the scheduling of the case. Further, Judge Samuels denied discussing cases with his
staff or encouraging them to approach McNamara regarding Montgomery’s case. Finally, Judge
Samuels acknowledged meeting with Montgomery’s attorneys immediately before trial.

The judge’s court reporter, Thompson, testified that Judge Samuels would meet alone

with attorneys and that the judge did not talk to her about specific cases. She also testified that



at 1167. More importantly, Montgomery does not address the Illinois Supreme Court’s decision
at all. He thus fails in his burden of establishing that the Illinois court rejected his appellate
counsel claim in a way that was “contrary to” or an “unreasonable application” of clearly
established Supreme Court law. See Lechner, __ F.3d at___, 2003 WL 21999019 at *1.

Therefore, the Court denies Montgomery’s ineffective assistance of appellate counsel claim.

21


On remand, a judge from a circuit other than Cook County presided over a new
evidentiary hearing on the claims related to the alleged judicial misconduct, as well as claims of
ineffective assistance of counsel. Once again, the State prevailed. Montgomery appealed, and,
on June 15, 2000, the Illinois Supreme Court affirmed the denial of post-conviction relief. See
People v. Montgomery, 192 Il.2d 642 (2000) (“Montgomery III”). On October 2, 2000, the
Illinois Supreme Court denied Montgomery’ petition for rehearing. The United States Supreme
Court denied certiorari on June 4, 2001. See Montgomery v. Illinois, 532 U.S. 1068 (2001).

On September 27, 2001, Montgomery filed his petition for a writ of habeas corpus with
this Court.3 After Respondent filed an Answer and Montgomery filed a Traverse to the Answer,
former Illinois Governor George Ryan commuted Montgomery’s death sentence to a sentence of
natural life imprisonment. On June 24, 2003, this Court dismissed as moot the 19 claims that
exclusively involved the death penalty and three non-sentencing claims premised on
Montgomery’s death sentence. The Court also found that of the remaining claims, the portions
of them which dealt with the death penalty, as opposed to Montgomery’s conviction, also are
moot.

B. Evidentiary Record

Montgomery does not challenge the facts set forth in the Illinois Supreme Court’s opinion
on the direct appeal of his conviction and sentence. See Montgomery I. Thus, those facts are
presumed correct for purposes of the Court’s collateral review. See 28 U.S.C. § 2254(e)(1);

Collier v. Davis, 301 F.3d 843, 848 (7" Cir. 2002). Montgomery, however, disputes some of the

3 Originally, this case was assigned to the Honorable Charles Norgle, Sr. and was reassigned to
this Court on August 30, 2002.


Montgomery has not supported this very speculative argument with concrete facts and
evidence as required to rebut the presumption that Judge Samuels was impartial. See Bracy, 520
USS. at 909; Aleman, 138 F.3d at 307. In addition, based on Montgomery’s unsubstantiated
version of the events, he has not established that Judge Samuels had actual bias against him or an
interest in the outcome of his particular case. See Bracy, 520 U.S. at 904-05.

Further, Montgomery argues that Judge Samuels’ participation in the ex parte meetings
violated Illinois Supreme Court Rule 61 because it created the appearance of impropriety.
Federal habeas courts, however, are limited to deciding whether a conviction violated the
Constitution, laws, or treaties of the United States, See 28 U.S.C. § 2254(a). .Here,
Montgomery’s claim relies on a state court rule of judicial conduct, not a constitutional right.
This argument, therefore, is not cognizable on habeas review. See Dellinger v. Bowen, 301 F.3d
758, 764 (7" Cir. 2002). As such, the Court denies this claim.

3. Improper Plea Discussions

In his third habeas claim, Montgomery contends that this Court should overturn his
conviction and sentence because Judge Samuels improperly initiated plea discussions. Citing a
Southern District of New York case, Montgomery argues that plea discussions initiated by the
court are inherently coercive. See Elksnis v. Gilligan, 256 F. Supp. 244, 254 (S.D.N.Y. 1966)
(“A plea entered upon a bargain agreement between a judge and an accused cannot be squared
with due process requirements of the Fourteenth Amendment”). Montgomery also relies on Rule
11 of the Federal Rules of Criminal Procedure and the American Bar Association (“ABA”)

Standards for Criminal Justice in support of his argument.

14


claim was an “unreasonable application” of or “contrary to” clearly established Supreme Court
precedent as required under the AEDPA. See § 2254(d)(1); Williams, 529 U.S. at 404-05.

To render constitutionally effective assistance of counsel under the Sixth Amendment,
counsel’s performance must satisfy the familiar two-prong standard in Strickland v. Washington,
466 U.S. 668, 687-91 (1984). Under the Strickland performance prong, Montgomery must show
that his counsel’s representation fell below an objective standard of reasonableness. Id. at 687-
88. A “court must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.” Strickland, 466 U.S. at 689 (citation and quotations omitted).

Under the Strickland prejudice prong, Montgomery must establish that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” /d. If a defendant fails to make a proper showing under
one of the Strickland prongs, the court need not consider the other prong. See Strickland, 466
US. at 697.

1. Advice to Stipulate to State’s Case and Waive Jury

Claims four and five may be viewed together. In general, Montgomery argues that his
trial counsel rendered ineffective assistance to the extent that they relied on the purported
promises made by Judge Samuels not to impose the death penalty, which, in turn, caused them to
give Montgomery the erroneous advice to stipulate to the State’s case and waive his right to a

jury. In analyzing these claims, the Illinois Supreme Court concluded that there were other

16



sentencing, and the trial judge, Richard Samuels, sentenced him to death. Montgomery appealed
to the Illinois Supreme Court raising three claims relating to his conviction, five claims regarding
his capital sentencing hearing, and five claims challenging the constitutionality of the Illinois
death penalty statute. The Illinois Supreme Court affirmed Montgomery’s conviction and
sentence. See People v. Montgomery, 112 Ill.2d 517 (1986) (“Montgomery I”). The United
States Supreme Court thereafter denied certiorari. See Montgomery v. Illinois, 479 U.S. 1101
(1987).

Later in 1987, Montgomery filed a petition pursuant to the Illinois Post-Conviction
Hearing Act raising 32 claims, including a group of claims based on improper ex parte meetings
between Judge Samuels and his trial attorneys. Specifically, Montgomery claimed that in these
meetings Judge Samuels had promised that if Montgomery pleaded guilty and waived a jury for
sentencing, the judge would not sentence him to death. Some of Montgomery’s Illinois post-
conviction claims attacked the alleged actions of Judge Samuels, while others attacked trial
counsel for their handling of the case, particularly their ex parte communications with the judge.

Montgomery’s post-conviction petition was assigned to Judge Samuels, who recused
himself. Following reassignment of the case, an evidentiary hearing was held on those claims
related to the alleged judicial misconduct. The State prevailed. Montgomery appealed, and the
Illinois Supreme Court remanded the case for further evidentiary hearing based on the conclusion
that the first post-conviction judge had improperly limited the cross-examination of Judge
Samuels and Shirley Thompson, the trial judge’s court reporter. See People v. Montgomery, 162

IN.2d 109, 113 (1994) (“Montgomery II”).


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
United States of America ex rel. )
ULECE MONTGOMERY (#A-91082), )
)
Petitioner, )
)
Vv. ) Case No. 01 C 7486

)

EUGENE McADORY,! Warden, ) Hon. Amy St. Eve
Menard Correctional Center, )
)
Respondent. )
)

EMO) DUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

Before this Court is Ulece Montgomery’s petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, challenging his Illinois conviction for two murders and the trial judge’s
imposition of the death penalty. After a careful review of the parties’ pleadings, the applicable
authorities and the record, the Court denies the habeas petition in its entirety.
I. BACKGROUND

A. Procedural Background

In 1983, following a stipulated bench trial in the Circuit Court of Cook County, Illinois,

Montgomery was convicted of murdering two elderly women.’ Montgomery waived a jury for

' Montgomery is currently incarcerated at the Menard Correctional Center. Because Eugene
McAdory is the warden at Menard, the Court substitutes McAdory as the proper Respondent. See Rule
2(a) of the Rules Governing Habeas Corpus Cases under 28 U.S.C. § 2254; Fed. R. Civ. P. 25(d)(1).

? ‘Initially, there was to be a jury trial. On the night after the jury was empaneled, Montgomery
attempted suicide ostensibly because he heard a potential juror say that he could convict Montgomery
simply by looking at him. Due to Montgomery’s unavailability in the days that followed, the trial judge
declared a mistrial.

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A. Judicial Misconduct

Montgomery raises three judicial misconduct claims based on the ex parte meetings
between his attorneys and Judge Samuels. In his first claim, Montgomery contends that Judge
Samuels improperly induced him to waive his right to a jury and present a defense due to the
promises made during the ex parte communications. Second, Montgomery argues that Judge
Samuels’ participation in the ex parte conversations violated his right to due process. Last,
Montgomery claims that Judge Samuels deprived him of due process by initiating plea
discussions.

A criminal defendant has a constitutional right to be tried before a fair and impartial
judge. Bracy v. Gramley, 520 U.S. 899, 904-05 (1997). The due process clause “requires that a
defendant receive a fair trial in a fair tribunal before a judge with no actual bias against the
defendant or interest in the outcome of his particular case.” Jd. (citations omitted). In reviewing
a judicial bias claim, the Court presumes that the trial judge properly discharged his official
duties. See id. at 909; see also Aleman v. Honorable Judges of Circuit Court of Cook County,
138 F.3d 302, 307 (7" Cir. 1998) (judges presumed impartial, but presumption can be rebutted by
specific facts of judicial impropriety).

1. Jury Waiver and Right to Present a Defense

First, Montgomery contends that Judge Samuels improperly induced him to waive his
Tight to a jury and present a defense due to the promises made during the ex parte mectings. This
judicial misconduct claim presupposes that Judge Samuels actually made the promise that he
would not impose the death penalty. The Court, however, has accepted the Illinois Supreme

Court’s findings of facts to the contrary. Even assuming that Judge Samuels made such a

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Once again, this argument presupposes that Judge Samuels initiated plea discussions in
the first place, a factual premise the Court has rejected. Further, Montgomery has not developed
an argument based on clearly established Supreme Court precedent as required under the
AEDPA.® See § 2254(d)(1); Williams, 529 U.S. at 404-05. Finally, Montgomery asserts that by
initiating plea discussions with Montgomery’s attorneys, Judge Samuels violated Illinois
Supreme Court Rule 402. Because this argument is based on state law, it is not cognizable on
habeas review. See Dellinger, 301 F.3d at 764.

Accordingly, Montgomery’s three judicial misconduct claims based on the ex parte
discussions must fail. To conclude otherwise would be “incompatible with Section 2254(d)(1)’s
highly deferential standard under Section 2254(d)(1), which demands that state-court decisions
be given the benefit of the doubt.” See Woodford v. Visciotti, 537 U.S. 19, 24 (2003) (per
curiam) (citation and quotation omitted).

B. Ineffective Assistance of Trial Counsel

In habeas claims four and five, Montgomery contends that the Illinois Supreme Court’s
decision that trial counsel was not constitutionally ineffective for advising him to stipulate to the
State’s case and waive his right to a jury was both “contrary to” and an “unreasonable
application” of clearly established Supreme Court precedent under Section 2254(d)(1). In claim
six, Montgomery argues that he was denied constitutionally effective assistance of trial counsel
because his attomeys failed to take the necessary steps to insure his competency to waive a jury.

Montgomery makes no argument as to whether the Illinois Supreme Court’s decision as to this

© The Court will not construct Montgomery’s argument for him. See Doherty v. City of Chicago,
75 F.3d 318, 324 (7" Cir. 1996) (court has no duty to construct litigant’s legal arguments, especially
when party represented by counsel).

15