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Docket No. 84731-Agenda 27-May 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ROBERT L. FAIR, Appellant.

Opinion filed September 28, 2000.

JUSTICE HEIPLE delivered the opinion of the court:

The petitioner, Robert Fair, appeals from a Cook Countycircuit court order dismissing his post-conviction petition withoutan evidentiary hearing. Because petitioner was sentenced to death,this court has jurisdiction over the instant appeal pursuant toSupreme Court Rule 651(a) (134 Ill. 2d R. 651(a)). For thefollowing reasons, we now affirm in part and reverse in part.

BACKGROUND

A Cook County jury convicted petitioner of the murders ofCandace Augustus and her 11-year-old son, Gregory. The samejury sentenced petitioner to death. This court affirmed petitioner'sconviction and death sentence on direct appeal. People v. Fair,159 Ill. 2d 51 (1994). The United States Supreme Courtsubsequently denied petitioner's petition for a writ of certiorari.Fair v. Illinois, 513 U.S. 1020, 130 L. Ed. 2d 500, 115 S. Ct. 586(1994).

Following petitioner's conviction, it was discovered that CookCounty circuit court Judge Paul Foxgrover, who presided overpetitioner's trial and sentencing, had engaged in extensive criminalconduct while on the bench between April 13, 1989, and July 9,1991, both before and after petitioner's trial and sentencing. JudgeFoxgrover sentenced criminal defendants to probation with a fineand/or restitution as a condition of probation and then convertedfine or restitution checks to his own personal use on at least 50separate occasions during this time period. Judge Foxgroverultimately pleaded guilty to multiple counts of theft, officialmisconduct, forgery, obstruction of justice for attempting to coverup his criminal conduct and perjury for making false statements onofficial forms. All told, Judge Foxgrover pleaded guilty to 159separate crimes.

Petitioner filed a post-conviction petition alleging that JudgeFoxgrover's massive corruption violated petitioner's right to a fairtrial guaranteed by the due process clauses of the United Statesand Illinois Constitutions. The circuit court granted the State'smotion to dismiss the post-conviction petition without anevidentiary hearing, holding petitioner failed to establish anynexus between Judge Foxgrover's criminal conduct andpetitioner's murder trial. Petitioner now appeals to this court.

STANDARD OF REVIEW

At the motion to dismiss stage in post-conviction proceedings,all well-pleaded facts that are not positively rebutted by the trialrecord are to be taken as true. The inquiry into whether a post-conviction petition sufficiently alleges a substantial violation ofpetitioner's constitutional rights does not require the trial court toengage in any fact-finding or credibility determinations. People v.Coleman, 183 Ill. 2d 366, 385 (1998). As a result, there is littlejustification for giving deference to the trial court's conclusions asto the sufficiency of the allegations in the post-conviction petition.Coleman, 183 Ill. 2d at 388-89. The standard of review for a trialcourt's decision to dismiss post-conviction claims withoutconducting an evidentiary hearing, therefore, is de novo. Coleman,183 Ill. 2d at 389.

ANALYSIS

I. Petitioner's Due Process Claim

Petitioner first argues that he does not have to establish anexus between Judge Foxgrover's criminal conduct and hismurder trial. According to petitioner, Judge Foxgrover'scorruption was so pervasive that there is no basis for presumingthat he was impartial at petitioner's trial. We disagree. In Peoplev. Titone, 151 Ill. 2d 19 (1992), the petitioner filed a post-conviction petition alleging he was denied a fair trial before animpartial tribunal. Petitioner alleged that the judge at his murdertrial, Cook County circuit court Judge Thomas J. Maloney agreedto accept a $10,000 bribe to acquit petitioner. Petitioner allegedthat he was convicted either because his trial attorney failed to payJudge Maloney the $10,000 bribe or because Judge Maloneyaccepted the bribe but convicted petitioner anyway in order toconvince federal authorities investigating judicial corruption inChicago that he did not accept a bribe. This court affirmed thedismissal of the post-conviction petition, holding that petitionerpresented no evidence that Judge Maloney accepted or agreed toaccept a bribe in petitioner's case. We also held that the fact thatJudge Maloney was then under investigation in nonrelated casesarising out of his tenure as a Cook County circuit judge was notgermane to the facts of that case. Titone, 151 Ill. 2d at 30. Themere fact that Judge Maloney was implicated in accepting bribesin other nonrelated cases, we concluded, could not serve to taintall other decisions with which Judge Maloney was involved.Titone, 151 Ill. 2d at 29. Instead, we held that a petitioner whoalleges that his trial judge's corruption violated his right to a fairtrial must establish (1) a "nexus" between the judge's corruptionor criminal conduct in other cases and the judge's conduct atpetitioner's trial; and (2) actual bias resulting from the judge'sextrajudicial conduct. Titone, 151 Ill. 2d at 30-31.

Petitioner argues that we dispensed with the nexusrequirement in People v. Hawkins, 181 Ill. 2d 41 (1998). Petitionerfundamentally misreads our opinion in Hawkins. Hawkins, likeTitone, involved a post-conviction claim alleging Judge Maloney'scorruption violated petitioners' right to a fair trial and required thereversal of the petitioners' murder convictions. Unlike this case,however, the petitioners presented evidence that Judge Maloneyaccepted a bribe at their murder trial and then returned the bribewhen he suspected the FBI was investigating his conduct.

We stated in Hawkins:

"A fair trial in a fair tribunal is a basic requirement ofdue process. Bracy v. Gramley, 520 U.S. 899, 905, 138 L.Ed. 2d 97, 104, 117 S. Ct. 1793, 1797 (1997); In reMurchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S.Ct. 623, 625 (1955). Fairness at trial requires not only theabsence of actual bias but also the absence of theprobability of bias. In re Murchison, 349 U.S. at 136, 99L. Ed. at 946, 75 S. Ct. at 625. To this end, no person ispermitted to judge cases in which he or she has an interestin the outcome. Bracy, 520 U.S. at 905, 138 L. Ed. 2d at104, 117 S. Ct. at 1797; In re Murchison, 349 U.S. at 136,99 L. Ed. at 946, 75 S. Ct. at 625. 'Every procedure whichwould offer a possible temptation to the average man asa judge to forget the burden of proof required to convictthe defendant, or which might lead him not to hold thebalance nice, clear and true between the state and theaccused denies the latter due process of law.' Tumey v.Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct.437, 444 (1927); see also Aetna Life Insurance Co. v.Lavoie, 475 U.S. 813, 822, 89 L. Ed. 2d 823, 833, 106 S.Ct. 1580, 1585 (1986); Ward v. Village of Monroeville,409 U.S. 57, 60, 34 L. Ed. 2d 267, 270-71, 93 S. Ct. 80,83 (1972).

Because our inquiry is limited to whether Maloneycould have been tempted not to hold the balance betweenthe parties ' " 'nice, clear and true' " ' (Aetna LifeInsurance Co., 475 U.S. at 822, 89 L. Ed. 2d at 833, 106S. Ct. at 1585; Ward, 409 U.S. at 60, 34 L. Ed. 2d at 271,93 S. Ct. at 83; Tumey, 273 U.S. at 532, 71 L. Ed. at 758,47 S. Ct. at 444), defendants need not show actual bias bythe trier of fact in order to be granted a new trial. As theUnited States Supreme Court stated in In re Murchison,349 U.S. at 136, 99 L. Ed. at 946, 75 S. Ct. at 625, dueprocess will sometimes 'bar trial by judges who have noactual bias and would do their very best to weigh thescales of justice equally between the contending parties.But to perform its high function in the best way, "justicemust satisfy the appearance of justice." ' " Hawkins, 181Ill. 2d at 50-51.

This "appearance of justice" language in Hawkins did not, aspetitioner suggests, eliminate the first prong of the test establishedin Titone. Hawkins simply clarified the second prong of the test byadding that a post-conviction petitioner need not prove actual biasif he can prove that the trial judge had a personal interest in theoutcome of the trial. In such cases, we concluded, the appearanceof justice requires reversal of petitioner's conviction and a newtrial. Nothing in Hawkins, however, supports petitioner's argumentthat the "appearance of justice" requires the reversal of a criminalconviction where the post-conviction petitioner alleging judicialbias has failed to establish any connection whatsoever between thejudge's corruption or criminal conduct in other cases and thepetitioner's trial. We therefore reaffirm our holding in Titone thatin order to secure relief on a claim of judicial bias, a post-conviction petitioner must establish a nexus between a judge'scorruption and the judge's conduct at petitioner's trial.⁽¹⁾

Petitioner argues in the alternative that he has established anexus between Judge Foxgrover's criminal conduct and his trial.Because we have determined to grant petitioner relief on asubsidiary claim related to this argument, however, we express noopinion on the merits of the argument itself. Petitioner asserts that,if he must prove a nexus between Judge Foxgrover's corruptionand petitioner's trial, the circuit court erred when it deniedpetitioner's request for discovery to uncover the full extent ofJudge Foxgrover's corruption. We agree.

The circuit court denied petitioner's discovery motion whichsought production of the following evidence obtained by the CookCounty State's Attorney's office during its investigation intoFoxgrover's misconduct: "a lengthy confession by JudgeFoxgrover, the interviews of numerous witnesses and thecollection of substantial other material." Our review of the circuitcourt's ruling on petitioner's discovery request is complicated bythe fact that petitioner has failed to include a copy of his discoveryrequest in the record on appeal. An appellant has the burden topresent a sufficiently complete record of the proceedings below tosupport a claim of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 391(1984). In the absence of a complete record on appeal, it will bepresumed that the order entered by the circuit court was inconformity with law and had a sufficient factual basis. Foutch, 99Ill. 2d at 392. Therefore, any doubts which may arise from theincompleteness of the record regarding the precise scope ofpetitioner's discovery request will be resolved against petitioner.Foutch, 99 Ill. 2d at 392. Since a complete review of the circuitcourt's ruling on petitioner's discovery request is impossible inthis case, we limit our review of the discovery request to theevidence specifically identified in petitioner's appellant's brief:Judge Foxgrover's confession and any interviews of witnessesconducted during the course of the investigation into JudgeFoxgrover's criminal conduct.

The discovery rules for neither civil nor criminal cases applyto proceedings under the Post-Conviction Hearing Act. People exrel. Daley v. Fitzgerald, 123 Ill. 2d 175, 181-83 (1988).Nonetheless, the circuit court has inherent discretionary authorityto order discovery in post-conviction proceedings. Daley, 123 Ill.2d at 183. Circuit courts, however, must exercise this authoritywith caution because post-conviction proceedings afford onlylimited review of constitutional claims not presented at trial, andthere is a potential for abuse of the discovery process in post-conviction proceedings. Daley, 123 Ill. 2d at 183. As a result, thecircuit court should allow discovery only after the moving partydemonstrates "good cause" for a discovery request. Daley, 123 Ill.2d at 183. We will not disturb a circuit court's denial of a requestfor discovery in post-conviction proceedings absent an abuse ofdiscretion. See People v. Henderson, 171 Ill. 2d 124, 156 (1996).

In Bracy v. Gramley, 520 U.S. 899, 138 L. Ed. 2d 97, 117 S.Ct. 1793 (1997), the petitioner was tried, convicted and sentencedto death by Judge Maloney. After a federal investigation intojudicial corruption in Chicago, Maloney was convicted of takingbribes from defendants in criminal cases around the time of thepetitioner's trial. See United States v. Maloney, 71 F.3d 645 (7thCir. 1995). Although Maloney did not take a bribe in thepetitioner's case, petitioner alleged in a federal habeas corpuspetition that Maloney had a personal interest in his convictionwhich violated petitioner's right to a fair trial guaranteed by thedue process clause of the fourteenth amendment. According topetitioner, his conviction would deflect suspicion that Maloneywas taking bribes in other murder cases. In support of a discoveryrequest for the sealed transcript of Maloney's trial, access to theprosecution's materials in Maloney's criminal case, and theopportunity to depose persons associated with Maloney, petitionerpresented evidence that his murder trial was sandwiched tightlybetween other murder trials in which Maloney accepted bribes.Petitioner also presented evidence that Maloney offered bribes tojudges in cases while he was a practicing criminal defense attorneyand that at least one of his colleagues in private practice activelyassisted in these bribes. Petitioner's trial attorney was anotherformer associate of Maloney from private practice whom Maloneyappointed to represent petitioner. This attorney announced that hewas ready for trial only a few weeks after he was appointed, andthe attorney did not request additional time to prepare penaltyphase evidence after the State announced its intention to seek thedeath penalty. These procedural irregularities, petitioner argued,raised the possibility that Maloney appointed his former colleaguefrom private practice to represent petitioner in order to quicklysecure a conviction, which would deflect attention away from theother murder trials fixed by Maloney. The United States SupremeCourt held that petitioner's allegations established "good cause"for his discovery request to support his claim that Maloney wasactually biased in his case. Bracy, 520 U.S. at 908, 138 L. Ed. 2dat 106, 117 S. Ct. at 1799.

The allegations in the post-conviction petition in this case lackthe specificity of the allegations in Bracy. The petitioner in Bracy,however, had access to public sources of information regardingJudge Maloney's corruption, while public sources of informationregarding Judge Foxgrover's corruption are unavailable to thepetitioner in this case. Judge Maloney was convicted after a trialin federal court. Thus, the petitioner in Bracy had a wealth ofinformation from the record of Judge Maloney's trial upon whichto base his habeas corpus claim. Judge Foxgrover, however,pleaded guilty, thus depriving the petitioner in this case of avaluable public source of information regarding Judge Foxgrover'scorruption. All of the evidence regarding Judge Foxgrover'scriminal conduct remains in the exclusive control of the State. Itwould be virtually impossible for the petitioner in this case toestablish a nexus between Judge Foxgrover's criminal conduct andpetitioner's murder trial without access to the evidence possessedby the State.

The State argues that petitioner has not established good causefor his discovery request because nothing in the post-convictionpetition suggests that a nexus exists. The State's argument,however, puts petitioner in an impossible dilemma. According tothe State, petitioner is entitled to seek out evidence that there is anexus between Judge Foxgrover's criminal conduct andpetitioner's trial only if he already possesses such evidence. TheState also argues that allowing petitioner to conduct discovery willfurther delay the adjudication of this case. The State undoubtedlyhas an interest in the finality of criminal convictions, but there areother equally compelling interests at stake in this case. JudgeFoxgrover's extensive criminal conduct while on the bench andutter disregard for his oath has tainted the judicial system of thisstate. The finality of criminal convictions is a hollow achievementif the integrity of the judicial system which produces theseconvictions is open to question. Petitioner is entitled to anopportunity to find and present whatever evidence there may bewhich connects Judge Foxgrover's criminal conduct to his abilityto be an impartial judge at petitioner's murder trial.

II. Petitioner's Ineffective Assistance of Counsel Claims

Petitioner next argues that his trial counsel was ineffective forfailing to prevent Cameron Forbes, a supervisor at the Departmentof Corrections records office, from testifying at petitioner'ssentencing hearing regarding petitioner's prison record. Accordingto petitioner, the record of petitioner's rules violations in prison isunreliable and Forbes was not qualified to testify regardingconclusions about petitioner's character contained in prisonreports.

The Post-Conviction Hearing Act cannot be used to obtainanother hearing on a constitutional claim which has already beengiven full review by this court on direct appeal. People v.Emerson, 153 Ill. 2d 100, 106 (1992), quoting People v. Cox, 34Ill. 2d 66, 67-68 (1966). Rulings on issues raised on direct appeal,therefore, are res judicata. Emerson, 153 Ill. 2d at 106, quotingPeople v. Ruiz, 132 Ill. 2d 1, 9 (1989). A post-conviction petitionercannot avoid the bar of res judicata simply by rephrasing claimsraised on direct appeal. Emerson, 153 Ill. 2d at 106.

On direct appeal, petitioner argued that Forbes' testimonygleaned from petitioner's prison records was unreliable andinadmissible. This court rejected petitioner's argument and heldthat petitioner's prison records were properly admitted at hissentencing hearing. Fair, 159 Ill. 2d at 89-90. Petitioner'sineffective assistance of counsel claim regarding Forbes'testimony is simply a rephrasing of his argument on direct appeal.Petitioner's claim, therefore, is barred by res judicata.

Petitioner also argues that his trial counsel was ineffective forfailing to correct the false impression created by the State atpetitioner's sentencing hearing that petitioner is an olderindividual who manipulates youths to commit crimes. Accordingto petitioner, the State argued at the sentencing hearing thatpetitioner was with "two juveniles" when he committed an armedrobbery in 1966. Petitioner argues that his trial counsel shouldhave pointed out that petitioner was only 18 years old at the timeof the armed robbery and that the "two juveniles" were 17 yearsold, only one year younger than petitioner. The State responds thatpetitioner waived this claim because he could have raised it ondirect appeal but failed to do so. We disagree. Petitioner did notwaive this claim because he asserts in his post-conviction petitionthat his appellate counsel was ineffective for failing to raise theclaim on direct appeal. This ineffective assistance of appellatecounsel argument is a well-recognized exception to the waiverdoctrine in post-conviction proceedings. See People v. Turner, 187Ill. 2d 406, 413 (1999).

Petitioner's claim, however, fails on the merits. In order toshow that his trial counsel was ineffective at his death sentencehearing, petitioner must prove that his counsel's representationwas deficient and that there is a reasonable probability that, but forcounsel's deficient conduct, the sentencer would have concludedthat the balance of aggravating and mitigating circumstances didnot warrant death. People v. Hampton, 149 Ill. 2d 71, 109 (1992),citing Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052 (1984). Even if we assume that petitioner hasshown that his trial counsel was deficient for failing to correct thisfalse impression, we hold that petitioner has failed to demonstratethat he suffered any prejudice from this deficiency. As this courtnoted on direct appeal, the aggravating and mitigating evidence atpetitioner's sentencing hearing was not closely balanced. Fair, 159Ill. 2d at 88. Petitioner brutally murdered Candace Augustus andher 11-year-old son, Gregory, by bludgeoning them to death witha baseball bat. Petitioner has an extensive history of criminalbehavior, and petitioner has failed dismally at adjusting toincarceration. In light of this compelling aggravating evidence,trial counsel's failure to correct a false impression regarding oneof petitioner's prior convictions had no demonstrable effect on theoutcome of petitioner's sentencing hearing. Petitioner has failed toprove that there is a reasonable probability that, but for hiscounsel's deficient performance, the outcome of his sentencinghearing would have been different.

Petitioner next argues that the "other instances of ineffectiveassistance of counsel as asserted in the post-conviction petition aresufficient to require an evidentiary hearing." Petitioner, however,provides no argument in support of this contention, nor does heprovide any citations to relevant legal authority in support of theseclaims. As a result, these remaining ineffective assistance ofcounsel claims fail to satisfy the requirements of Supreme CourtRule 341(e)(7) (134 Ill. 2d R. 341(e)(7)) and are waived.⁽²⁾

III. Petitioner's Challenge to the Constitutionality of the

Death Penalty Statute

Petitioner next argues that section 9-1(b)(7) of the deathpenalty statute, which provides that a defendant is eligible for thedeath penalty if "the murdered individual was under 12 years ofage and the death resulted from exceptionally brutal or heinousbehavior indicative of wanton cruelty" (Ill. Rev. Stat. 1987, ch. 38,par. 9-1(b)(7)), is unconstitutionally vague. Petitioner's argumentis barred by res judicata because this argument was raised, andrejected by this court, on direct appeal. Fair, 159 Ill. 2d at 80(holding that section 9-1(b)(7) is not unconstitutional on its facebecause it "specifically describes the conduct which qualifies anaccused for the death penalty and is not susceptible to arbitraryapplication").

CONCLUSION

For the reasons stated above, the judgment of the circuit courtof Cook County dismissing petitioner's post-conviction petitionwithout an evidentiary hearing is affirmed in part and reversed inpart. The circuit court's denial of petitioner's discovery requestwith respect to Judge Foxgrover's confession and any interviewsof witnesses conducted during the course of the investigation intoJudge Foxgrover's criminal conduct is reversed, and the circuitcourt is directed to enter an order that these materials be madeavailable to petitioner. After petitioner has been provided withthese items and has had an opportunity to use them in support ofhis claim of a nexus between Judge Foxgrover's criminal conductand petitioner's case, the circuit court is directed to reconsider andenter a new ruling on petitioner's allegation that JudgeFoxgrover's criminal conduct violated his due process right to afair trial.

The remainder of the circuit court's judgment is affirmed, andthe cause is remanded to the circuit court for further proceedingsconsistent with this opinion.

Judgment affirmed in part

and reversed in part;

cause remanded.

1. ¹This reading of Hawkins also comports with the United StatesSupreme Court's understanding of the elements of a judicial bias claim.See Bracy v. Gramley, 520 U.S. 899, 904-05 138 L. Ed. 2d 97, 104, 117S. Ct. 1793, 1797 (1997) (holding due process clause requires a "fairtrial in a fair tribunal" before "a judge with no actual bias against thedefendant or interest in the outcome of his particular case").

2. ²Petitioner argues in summary fashion later in his appellant's briefthat there are other issues in the post-conviction petition which merit anevidentiary hearing, but these claims are waived for the same reason.