MM. DISCUSSION

Montgomery challenges the Court’s denial of his ineffective assistance of trial counsel
and judicial misconduct claims, the Court’s decision regarding the Illinois Supreme Court’s
factual determinations pursuant to 28 U.S.C, § 2254(e)(1), and the Court’s denial of his motion
for a declaratory judgment. The Court will address each argument in turn.

A. Ineffective Assistance of Trial Counsel

Montgomery contends that this Court erred in reviewing the Illinois Supreme Court’s
factual findings instead of reviewing the Llinois court’s application of law to the facts when
deciding his ineffective assistance of trial counsel claim. Montgomery further argues that
“reasonable judges could differ about whether Montgomery’s claim required application of the
law to those facts, and about whether the Illinois Supreme Court applied the correct rule of law,
even presuming that court’s findings of fact are correct.” Montgomery, however, fails to
acknowledge that he challenged the Illinois Supreme Court’s factual determination regarding the
ex parte communications at issue and that this Court concluded that he did not establish his
version of the pertinent events by clear and convincing evidence. See Collier v. Davis, 301 F.3d
843, 848 (7" Cir. 2002); 28 U.S.C. § 2254(e)(1). Thus, Montgomery himself necessitated this
Court’s review of the Illinois Supreme Court’s factual findings.

Further, Montgomery claims that even presuming that the Illinois court’s factual findings
were correct, the Illinois Supreme Court applied the incorrect rule of law. Montgomery cites to
Brown y, Sternes, 304 F.3d 677 (7" Cir. 2002), in support of his argument. The AEDPA,
however, requires federal habeas courts to analyze whether state courts reasonably applied

United States Supreme Court precedent regarding constitutional issues. See § 2254(d)(1). In


is not a denial of a constitutional right as required for an issuance of aCOA. See Miller-El, 537
USS. at 336.

Montgomery also contends that reasonable judges could differ as to whether Montgomery
met the “standard” set forth in Ward v. Sternes, 334 F.3d 696 (7 Cir. 2003). Montgomery cites
the following language in Ward to support his argument:

If the petitioner can show that the state court determined the underlying factual

issue against the clear and convincing weight of the evidence, the petitioner has

not only established that the court committed error in reaching a decision based on

that faulty factual premise, but has also gone a long way towards proving that it

conunitted unreasonable error. A state court decision that rests upon a

determination of fact that lies against the clear weight of the evidence is, by

definition, a decision “so inadequately supported by the record” as to be arbitrary

and therefore objectively unreasonable.

See id. at 704. This language in Ward does not change the statutory requirements under Section
2254(e)(1). In fact, the Seventh Circuit’s reasoning in Ward is premised on the petitioner
presenting clear and convincing evidence to rebut the state court’s factual determination.
Because Montgomery failed to do just that, reasonable jurists could not conclude that the Illinois
court’s decision was “so inadequately supported by the record” as to be objectively unreasonable
as Montgomery now contends. See Slack, 529 U.S. at 484.

D. Motion for a Declaratory Judgment

Montgomery requests this Court to reconsider its denial of his motion for a declaratory
judgment contending that the Court has jurisdiction to hear his claim even though the final order
denying his habeas petition had already been entered before he filed the present motion.

Montgomery filed that motion after the Court’s ruling on his habeas. Prior to its habeas ruling,

the Court warned Montgomery that if he planned on filing such a motion, he should do so


counsel’s error, he would not have waived the jury, but would have insisted upon a trial. See id.
at 59.

Nevertheless, Montgomery did not established the Strickland performance prong in the
first instance. In his habeas petition, Montgomery never argued that the Illinois Supreme Court’s
decision as to the performance prong was an unreasonable application of Strickland.
Accordingly, he failed in his burden of establishing that the Illinois Supreme Court rejected his
constitutional claim in an unreasonable manner. See Lechner v. Frank, 341 F.3d 635, 638 (7
Cir. 2003). Because both Strickland prongs must be satisfied to constitutionally establish
ineffective assistance of counsel, Montgomery’s failure to establish either prong is fatal to his
claim. See Strickland, 466 U.S. at 697.

As such, Montgomery has failed to establish that the Court’s decision as to his ineffective
assistance of trial counsel claim was debatable or wrong among jurists of reason. See Slack, 529
U.S. at 484. Therefore, he has not made a substantial showing of the denial of a constitutional
tight, and thus the Court denies his request for a COA as to his ineffective assistance of trial
counsel claim.

B. Judicial Misconduct Claims

1. Judicial Bias Claim

In his habeas petition, Montgomery alleged that his conviction and sentence were
obtained in violation of his constitutional right to an impartial judge based on the prosecutor
finding the trial judge engaged in an ex parte conversation with Montgomery’s attorneys. Here,
Montgomery claims that reasonable judges could differ about whether Montgomery had shown

that his due process rights had been violated regardless of whether he had established actual bias.



other words, only United States Supreme Court cases can be the foundation for a finding that the
Illinois Supreme Court’s decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States.” See
Young v. Walls, 311 F.3d 846, 849 (7" Cir. 2002). Accordingly, this argument fails.

Next, Montgomery contends that this Court erred in denying his claim that the Strickland
prejudice prong could be presumed under United States v. Cronic, 466 U.S. 648, 659 (1984). In
support of his argument, Montgomery states that reasonable judges would differ as to whether
prejudice should be presumed. He further argues that under the circumstances, the prosecution
was not subjected to meaningful adversarial testing. The Court denied this habeas claim because
Montgomery’s unsupported allegations were inadequate to establish a Cronic claim. Once again,
Montgomery makes his allegations without supporting his claim with credible evidence, see
United States v. Hodges, 259 F.3d 655, 659 (7" Cir. 2001). He does not explain why jurists of
reason would find the Court’s decision debatable or wrong. See Slack, 529 U.S. at 484.

Montgomery also contends that reasonable judges could differ whether he had established
the Strickland prejudice prong as a result of his attorney’s deficient performance. Citing to Hill
v. Lockhart, 474 U.S. 52 (1985), Montgomery argues that he demonstrated that but for his
attorney’s advice, he would not have waived his trial and jury rights. In denying this claim, the
Court concluded that Montgomery made arguments based on his version of the ex parte
communications and merely asserted that counsel allegedly pressured him into waiving a jury.
Simply put, Montgomery failed to demonstrate that counsel’s advice regarding the stipulated

bench trial was objectively unreasonable and that there is a reasonable probability that, but for


showing of the denial of a constitutional right. Therefore, the Court denies his application for a
COA as to this claim.

Cc Illinois Supreme Court’s Factual Determinations

In his habeas petition, Montgomery challenged the Illinois Supreme Court’s factual
findings regarding the ex parte communications. This Court concluded that Montgomery did not
meet his burden of providing clear and convincing evidence to rebut the presumptive correctness
of the Illinois Supreme Court’s factual findings, especially in light of the state court’s credibility
determinations. See 28 U.S.C. § 2254(e)(1); see also Murrell v. Frank, 332 F.3d 1102, 1112 (7*
Cir. 2003). Montgomery now contends that the Court’s denial of his request for an evidentiary
hearing prevented him from bringing forth evidence to rebut the presumption under Section
2254(e)(1). However, the Court’s denial of his request for an evidentiary hearing is not a
constitutional claim. See Taylor v, United States, 287 F.3d 658, 660 (7" Cir. 2002).
Consequently, Montgomery cannot meet the threshold requirement that he was denied a
constitutional right based on this argument alone. See Miller-El, 537 U.S. at 336.

Montgomery further claims that reasonable judges could differ regarding whether the
Illinois Supreme Court’s determination that the trial judge made no ex parte promises to
Montgomery’s trial attorneys was against the clear and convincing weight of the evidence
presented at his post-conviction hearing. In essence, Montgomery is challenging this Court’s
determination under Section 2254(e)(1). Section 2254(c)(1), as amended by the AEDPA,
however, is a statutory standard for federal court review of state court factual findings. See Lindh
v. Murphy, 521 U.S. 320, 333-34 (1997). As such, this Court’s determination that Montgomery

did not rebut the presumption of the correctness of the Illinois Supreme Court’s factual findings


a

Minuze Order Form (06/97)

United States District Court, Northern District of Illinois

appealability pursuant to 28 U.S.C. § 2253(c)(2) is denied. [R. 47]

(ing ae

ai) ff [For further detail see order attached to the original minute order.]

venye Magistrate fudge Amy J. St. Eve “tha Aspe ude
CASE NUMBER 01 C 7486 DATE 11/20/2003
CASE Ulece Montgomery vs. Eugene McAdory
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
(1) o Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
(3) oO Answer brief to motiondue___. Reply to answer briefdue__.
(4) oO Ruling/Hearing on__—ssetfor__—_at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on setfor at
(6) Qo Pretrial conference[held/continued to} [set for/re-set for] on setfor_ at.
mM a Trialfset for/re-set for)on___at
(8) o [Bench/Jury trial] [Hearing] held/continuedto__——_at
(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) (Local Rule 41.1 CIFRCP41(a)(1) CI FRCP41(a)(2).
ao) il [Other docket entry] Enter Memorandum Opinion and Order. Montgomery’s certificate of

No notices required, advised in open court, la

No notices required
nursber of notices

Notices mailed by judge’s staff.

NOV 2 1 2003

Notified counsel by telephone. date dockered

av | Docketing to mail notices.

docketing ee f,

Mail AO 450 form. — ane

Copy to judge/magistrate judge.

courtroom dave mailed notice

deputy's
initials

THY

PEE
Date/time recetved in

central Clerk's Office mailing deputy initials



Amendment.” In essence, Montgomery is seeking a declaration based on future contingencies
that may or may not occur. Under these circumstances, the Court would be hard-pressed to
conclude that the jurisdictional prerequisites are satisfied to rule on Montgomery’s motion for a
declaratory judgment.

In any event, even if this Court were to conclude that there is an actual controversy
subject to its jurisdiction, the Court has discretion in deciding whether or not to exercise its
authority under the Declaratory Judgment Act. See North Shore Gas Co. v. Salomon, Inc., 152
F.3d 642, 647 (7" Cir. 1998). The Act does not obligate district courts to issue declaratory
judgments — district courts have wide discretion to decline hearing such actions. See id.; see also
Nationwide Ins. v. Zavalis, 52 F.3d 689, 692 (7" Cir. 1995) (even when jurisdictional
prerequisites are satisfied, district courts not compelled to declare parties’ rights and relations).
Due to the circumstances of this case, including Montgomery’s late filing of his motion for a
declaratory judgment, the Court, in its discretion, declines to exercise its jurisdiction under the
Declaratory Judgment Act.

CONCLUSION

For the foregoing reasons, the Court denies Montgomery’s certificate of appealability
pursuant to 28 U.S.C. § 2253(c)(2) [R. 47].

DATED: November 20, 2003

ENTERED

United States District Court Judge

11



quickly because the Court planned on ruling on the habeas petition in the near future.
Montgomery did not follow the Court’s guidance, and failed to timely file the motion.

Montgomery likens his request to a motion for reconsideration under Federal Rule of
Civil Procedure 59(e). Montgomery, however, has not set up the proper standard nor made any
argument under Rule 59. See Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524,
529 (7 Cir. 2000) (Rule 59 serves limited function of allowing courts to correct manifest errors
of law or fact or consider newly discovered material evidence). Instead, he argues that
“reasonable judges could differ regarding whether Montgomery is entitled to a declaratory
judgment.” Montgomery’s entitlement to a declaratory judgment, however, is not 2
constitutional claim cognizable on habeas review. Therefore, Montgomery has not established
the threshold requirement that he was denied a constitutional right as required under Section
2253(c)(2). See Miller-El, 537 U.S. at 336.

Declaratory judgments permit the prompt determination of actual controversies and
establish the legal rights and obligations governing the parties’ future relationships. See Hyatt
Int'l Corp. v. Coco, 302 F.3d 707, 711 (7 Cir. 2002); see also 28 U.S.C. § 2201(a). It is well-
established, however, that the exercise of judicial power under the constitution depends on the
existence of a case or controversy and that federal courts lack power to render advisory opinions.
See U.S. Nat’l Bank of Oregon v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 446 (1993).

Here, Montgomery argues that there is an actual controversy between the parties. In his
motion, Montgomery requested “that this Court enter an order declaring that the State’s threat to
seek a new death sentence in the event that the Court of Appeals reverses this Court’s judgment

and Montgomery is retried and convicted, violates the Due Process Clause of the Fourteenth

10


He bases his argument on that fact that the trial judge’s motivation to avoid any disciplinary
action after the ex parte meetings tainted the proceedings.

This Court rejected Montgomery’s claim because his speculative argument was not
supported with concrete facts and evidence as required to rebut the presumption of judicial
impartiality. See Bracy v. Gramley, 520 U.S. 899, 909 (1997); 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). Besides the
same skeletal arguments made in his habeas petition, Montgomery has not given this Court any
reason to conclude that reasonable jurists would consider this Court’s ruling debatable or wrong.
See Slack, 529 U.S. at 484. Accordingly, he has failed to make a substantial showing of the
denial of a constitutional right. See Miller-El, 537 U.S. at 336.

2. Improper Plea Discussions and Jury Waiver

Montgomery also argues that the trial judge improperly induced him into waiving his
right to a jury due to the alleged promises made at the ex parte meetings. Montgomery’s habeas
claim presupposes his version of the facts that the trial judge initiated plea discussions and made
promises to his attorneys, a factual premise this Court rejected. In his application for a COA,
Montgomery does not provide any facts or legal argument explaining why reasonable jurists
would find this Court’s decision debatable or wrong. See Slack, 529 U.S. at 484. Instead,
Montgomery reiterates his version of the facts and challenges the Court’s conclusion that
Montgomery failed to develop an argument based on clearly established Supreme Court

precedent pursuant to the AEDPA. Accordingly, Montgomery has not made a substantial



remainder of Montgomery’s habeas claims. See United States ex rel. Montgomery, 2003 WL
22110794 (N.D. Ill. Sept. 9, 2003).

Over a week after the final habeas judgment was entered, Montgomery filed a motion for
a declaratory judgment requesting that the Court order that the State is constitutionally barred
from seeking the death penalty if Montgomery is ultimately successful in obtaining a writ of
habeas corpus on appeal or remand, and thereafter retried by the State. The Court denied
Montgomery’s motion for a declaratory judgment for jurisdictional reasons. For purposes of this
order, the Court will presume familiarity with its prior decisions addressing Montgomery’s
habeas petition.
I. STANDARD

Under 28 U.S.C. § 2253, Montgomery does not have an absolute right to appeal this
Court’s denial of his habeas petition. Instead, he must first request a certificate of appealability
(“COA”). See Miller-El v. Cockrell, 537 U.S. 322, 335 (2003). A habeas petitioner is entitled to
a COA only ifhe can make a substantial showing of the denial of a constitutional right. See id. at
336. Under this standard, the petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of his habeas claims debatable or wrong. See id.; Slack v. McDaniel,
529 US. 473, 484 (2000). The certificate of appealability inquiry requires this Court to review
Montgomery’s habeas claims and make a general assessment of the claims’ merits, but
Montgomery need not establish that his appeal will ultimately succeed. See Miller-El, 537 U.S.

at 336-37.



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. The Circuit Court held an evidentiary hearing and consequently denied
Montgomery’s petition. Montgomery appealed, and the Illinois Supreme Court remanded the
case for further a evidentiary hearing regarding alleged ex parte communications between the
trial judge and defense counsel. See People v. Montgomery, 162 Ill.2d 109, 113 (1994). On
remand, a new evidentiary hearing was held and Montgomery’s petition was again denied.
Montgomery appealed, and, on June 15, 2000, the Illinois Supreme Court affirmed the denial of
post-conviction relief. See People v. Montgomery, 192 Ill.2d 642 (2000). On October 2, 2000,
the Illinois Supreme Court denied Montgomery’s petition for rehearing. The United States
Supreme Court denied certiorari on June 4, 2001. See Montgomery vy. Illinois, 532 U.S. 1068
(2001).

On September 27, 2001, Montgomery filed his petition for a writ of habeas corpus with
this Court. After the State 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 without the possibility of parole. On June 24, 2003, this Court
dismissed as moot 19 habeas claims that exclusively involved the death penalty and three non-
sentencing claims premised on Montgomery’s death sentence. The Court also found that the
portions of the remaining claims which dealt with the death penalty — as opposed to

Montgomery’s conviction — also were moot. On September 8, 2003, this Court denied the


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
United States of America ex rel. )
ULECE MONTGOMERY (#A-91082), )
)
Petitioner, )
)
v. ) Case No. 01 C 7486
)
EUGENE McADORY, Warden, ) DOCKETED
Menard Correctional Center, } ov 21 2003
Respondent. )
_)

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

Before the Court is habeas petitioner Ulece Montgomery’s application for a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(2), in which he seeks to appeal this Court’s denial
of his habeas petition. Montgomery also asks the Court to reconsider its denial of his motion for
a declaratory judgment. For the following reasons, the Court denies Montgomery’s application
in its entirety. In addition, the Court declines to exercise jurisdiction to consider Montgomery’s
claim under the Declaratory Judgment Act.

L BACKGROUND

A. Procedural Background

In 1983, following a stipulated bench trial in the Circuit Court of Cook County,
Montgomery was convicted of murdering two women. Montgomery waived a jury for
sentencing, and the trial judge sentenced him to death. The Illinois Supreme Court affirmed

Montgomery’s conviction and sentence. See People v. Montgomery, 112 Ill.2d 517 (1986). The

50