United States ex rel. Montgomery v. Butler

91 F.Supp.3d 1021

UNITED STATES of America ex rel. Joseph MONTGOMERY (K–59651), Petitioner

v.Kim BUTLER, Warden, Respondent.

Case No. 15 C 1923.

United States District Court, N.D. Illinois, Eastern Division.

Signed March 19, 2015.

Joseph Montgomery, Menard, IL, pro se.

Chief of Criminal Appeals, Attorney General's Office, Chicago, IL, for Respondent.

MEMORANDUM OPINION AND ORDER

MILTON I. SHADUR, Senior District Judge.

Very shortly after this Court issued its March 17 memorandum opinion and order (“Opinion”) that briefly addressed the Petition for Writ of Habeas Corpus (“Petition”) in which Joseph Montgomery (“Montgomery”) has invoked 28 U.S.C. § 2254¹ to assert seven claimed constitutional-level grounds for relief from his state court conviction on which he is now serving an aggregate 75–year sentence, the staff of the Illinois Appellate Court for the First District graciously responded to an earlier request for delivery of a copy of that court's November 17, 2010 unpublished order (No. 1–08–3623) that had affirmed Montgomery's conviction and sentence on direct appeal. This Court's threshold review of that 28–page order (hereafter the “Illinois Appellate Opinion”) quickly revealed that at a minimum what was said and done there would impact substantially on the responsive burden that had been imposed on Warden Kim Butler by the last sentence of the Opinion.

That initial impression has understandably prompted an in-depth review and analysis of the Illinois Appellate Opinion. And that review and analysis have in turn more than confirmed this Court's initial reaction, thus calling for this second opinion that explores Montgomery's seven purported grounds for relief at some length.

To begin with, it bears repeating that (as Montgomery's Petition Pt. ¶ 4(a) had stated) the only action taken by the Illinois Supreme Court on direct appeal was its January 26, 2011 order (reported in table at 239 Ill.2d 575, 348 Ill.Dec. 195, 943 N.E.2d 1105 ) to deny leave to appeal the Illinois Appellate Opinion. That being so, the Illinois Appellate Opinion is entitled to all of the consequences that attach to a final state court's treatment for Section 2254 purposes—most particularly, the provisions of Section 2254(d) and (e) apply to the Illinois Appellate Opinion. That said, this opinion turns substantively to Montgomery's grounds for seeking habeas relief.

First, three of those seven grounds are based on one aspect of the conduct of voir dire proceedings during the jury selection that preceded Montgomery's trial: Ground One, which charges the trial judge with a failure to question prospective jurors properly; Ground Five, which asserts purported constitutionally ineffective representation by trial counsel in failing to object to the trial judge's asserted deficiency in that respect (both by a failure to object during the course of the voir dire proceedings and by failing to raise that issue in a post-trial motion); and Ground Seven, which charges Montgomery's appellate counsel with constitutionally inadequate representation in having failed to raise that issue on appeal. More than one-third of the pages in the Illinois Appellate Opinion are devoted to a fully detailed and thoughtful discussion of the voir dire subject, addressing both substantive and procedural issues on that score, but this Court can make far shorter shrift than that of those three grounds that Montgomery now advances.

Basically Montgomery complains that prospective jurors should have been asked both (1) whether they accepted and (2) whether they understood the fundamental guaranties that had been set forth in People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062, 1064 (1984). That twofold requirement has been codified in Ill. S.Ct. Rule 431(b), which was amended in May 2007 to impose a judicial obligation to pose those questions sua sponte rather than (as had previously been the case) only at the defendant's request. And it is true that the trial court did not comply fully with that then recent amendment in Montgomery's trial that began in February 2008.

But Montgomery's fatal deficiency in that respect is that such failure did not violate his federal constitutional rights, as is essential to habeas relief under Section 2254(d). Any such constitutionally based claim is torpedoed by the fundamental principle accurately articulated in People v. Glasper, 234 Ill.2d 173, 196, 334 Ill.Dec. 575, 917 N.E.2d 401, 415–16 (2009) (citation omitted):

Defendants do not have a right to Rule 431(b)(4) questioning under either the United States or the Illinois Constitution. A defendant's “right” to such questioning in Illinois courts is the product of the court's inherent power to make rules regulating the conduct of the circuit courts. While the rule is designed to help ensure that defendants are tried before a fair jury, we cannot say that Rule 431(b)(4) questioning is indispensable to a fair trial.

Just a bit earlier Glasper, id. at 193, 334 Ill.Dec. 575, 917 N.E.2d at 413–14 had stated the identical proposition in even more succinct terms:

The error in this case does not involve a fundamental right, or even a constitutional protection. The error involves a right made available only by rule of this court.²

Glasper and the Illinois Supreme Court's later opinion in Thompson (see n. 2) were analyzed and discussed extensively at pages 9 through 14 of the Illinois Appellate Opinion. But what is of critical—indeed, definitive—importance here is not the correctness of the analysis there in state law terms, but rather its impeccable and totally accurate reflection of federal constitutional law. In sum, because it is an understatement to say that the voir dire issue falls totally short of meeting the standard of Section 2254(d), each of Montgomery's Grounds One, Five and Seven is rejected on the merits.

Montgomery's Ground Two, which complains of the trial court's denial of a continuance requested on the very day the trial was set to begin, fares no better. That issue was also dealt with by the Illinois Appellate Court on direct review, occupying pages 14 through 19 of its unpublished order. Once again the subject received thoughtful and thorough treatment there, with particular emphasis on the discretionary (and not at all constitutionally required) nature of the trial court's decision, that clearly posed no federal constitutional problem. Although such a denial of a last-minute motion for a continuance can under some circumstances constitute grist for the federal constitutional mill (see, e.g., Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002) ), the sharply different circumstances in Montgomery's case as carefully described in the Illinois Appellate Opinion pose no such problem. So Ground Two is also rejected on the merits.

Next, Montgomery's Ground Three charges asserted improprieties in the Assistant State's Attorney's closing argument at trial, a subject that the Illinois Appellate Opinion also deals with at length at pages 19 through 25. As the careful...