Gacho v. Lashbrook
Filing
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MEMORANDUM Opinion and Order: The habeas corpus petition (Dkt. 1 .) is denied on the merits. Any pending motions are denied as moot. The Court grants a certificate of appealability as to Claim B, the judicial bias claim, as reasonable jurists could debate the Court's resolution of that claim. The Court declines to issue a certificate of appealability as to all other claims. The Clerk is instructed to enter a judgment in favor of Respondent and against Petitioner. Civil Case Terminated. Signed by the Honorable Robert W. Gettleman on 10/29/2019. Mailed notice (cn).
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
Robert Gacho, (N44112),
Petitioner,
v.
Frank Lawrence, Acting Warden,
Menard Correctional Center,
Respondent.
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Case No. 17 C 0257
Judge Robert W. Gettleman
MEMORANDUM OPINION AND ORDER
Petitioner Robert Gacho, a prisoner incarcerated at the Menard Correctional Center, brings
this pro se habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 1984 double murder,
aggravated kidnapping, and armed robbery convictions from the Circuit Court of Cook County.1
Petitioner claims that disgraced Judge Thomas Maloney, who presided over his case, took a bribe
from Petitioner’s codefendant. In exchange, Maloney allegedly agreed to acquit the codefendant
at a bench trial, and as part of the cover up, promised to insure that Petitioner was convicted at his
jury trial. Petitioner raises 18 claims --- some as to the alleged bribery, others on unrelated
matters. For the reasons set forth below, the Court denies the petition on the merits. The Court
grants a certificate of appealability as to the judicial bias claim, but declines to issue a certificate
of appealability on all other claims.
1 The Court set a briefing schedule, (Dkt. 15.) allowing Respondent to file a response, (which he
did) (Dkt. 17.) and Petitioner to file a reply (which he did not).
I.
Background
This is Petitioner’s fourth habeas corpus petition in the Northern District of Illinois. The
first three were dismissed for failure to exhaust available state court remedies. Gacho v. Butler,
792 F.3d 732 (7th Cir. 2015). Those prior petitions do not count towards the prohibition on
second and successive petitions, 28 U.S.C. § 2244(b). Slack v. McDaniel, 529 U.S. 473, 486
(2000); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003) (per curiam). This is Petitioner’s
“first” petition for purposes of 28 U.S.C. § 2244(b).
The Court draws the following factual history from the state court record. (Dkt. 22-24.)
State court factual findings are presumed correct, and Petitioner has the burden of rebutting the
presumption by clear and convincing evidence. Brumfield v. Cain, 135 S. Ct. 2269, 2282 n.8
(2015) (citing 28 U.S.C. § 2254(e)(1)). Petitioner has not made such a showing.
On December 12, 1982, at approximately 9:15 a.m., a forest preserve officer came across
a parked car by the Des Plaines River in Lamont, Illinois. Illinois v. Gacho, 522 N.E.2d 1146,
1150 (Ill. 1988) (“Direct Appeal”). Hearing pounding from inside the trunk the officer called the
local police and fire departments. Id. The first responders opened the trunk, revealing two men
inside. Id. The men, Tullio Infelise, and his uncle, Aldo Fratto, were bloodied with their hands
tied behind their backs. Id. Infelise was still alive, while Fratto was dead. Id. Both suffered
multiple gunshot wounds. Id. at 1156. Infelise was inside the trunk for six and half hours before
his rescue. Id. at 1155.
The officer immediately asked Infelise who did this to him.
Id. at 1151.
Infelise
responded, “Robert Gott or Gotch.” Id. The officer had a difficult time understanding the
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response because Infelise was in pain and having trouble breathing. Id. In response to the
question of where the police could find the assailant, Infelise responded “Florida.” Id.
Approximately fifteen minutes after Infelise was freed from the trunk, he identified “Robert
Gacho” as the assailant to the police. Id. at 1152. Infelise told the police that “Dino,” and “Joe”
were also assailants. Id. Dino Titone and Joseph Sorrentino would later be charged along with
Petitioner. Infelise died from his injuries 16 days later. Id. at 1156-57.
The police notified Infelise’s wife a few hours after he was discovered in the trunk. Id. at
1152. Infelise’s brother, Frank, told the police that Petitioner worked with a third Infelise brother,
Rosario. Id. Frank Infelise said he believed that Tullio Infelise and Fratto had gone to Gacho’s
house the night before, but he was not certain of this. Id.
The police arrested Petitioner at his home that same afternoon. Id. at 1152. Petitioner
confessed to the police later that evening, and a transcribed confession was taken by a Cook County
Assistant State’s Attorney. Id. at 1151. Petitioner brought a pretrial motion to suppress the
statement, and repudiated the confession at trial, alleging that he was physically and mentally
coerced by the police. Id. Maloney rejected Petitioner’s motion to suppress, and Petitioner’s
confession was introduced at trial. Id. at 1152-54.
Petitioner’s confession stated that he, along with codefendants Sorrentino and Titone, met
victims Infelise and Fratto at Petitioner’s home late in the evening of December 11, 1982. Id. at
1151. The victims brought three quarters of a kilogram of cocaine to sell to Petitioner, Titone,
and Sorrentino. Id. However, the assailants robbed the victims of their money and drugs. Id.
The victims were driven to Lamont where they were shot. Id. Petitioner did not shoot
the victims, instead waiting in a second car. Id. He heard a total of eight shots. Id. The
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assailants took cocaine, as well as somewhere between $1,500 to $2,000 from the victims. Id.
Petitioner received $500 and half of the cocaine. Id. Petitioner told Sorrentino to take his share
of the cocaine, so it was not stored in Petitioner’s home. Id. The police recovered cocaine from
Sorrentino’s girlfriend’s home. (Dkt. 23-9, pg. 7-9.)
Petitioner’s girlfriend, Katherine De Wulf, testified on behalf of the prosecution at trial.
Direct Appeal, 522 N.E.2d at 1150. (Petitioner was married with a wife and two young children
while romantically involved with De Wulf.)
De Wulf explained that Petitioner called her
sometime between 10:30 and 11:00 p.m. on the evening of December 11, 1982, instructing her to
drive to his house because he needed a “back-up car.” Id. He told her he would call her later
that evening when she needed to arrive. Id. Petitioner summoned De Wulf to his home at 1:45
a.m. on December 12th. Id.
De Wulf parked in the alley behind Petitioner’s home. Id. She witnessed Sorrentino
walk out of the home with the two victims. Id. She recognized the victims because she had
previously seen them at Petitioner’s body shop. Id. The victims’ hands were tied behind their
backs as they walked to a blue car. Id. Sorrentino sat in the blue car’s driver’s seat, while Titone
was in the front passenger’s seat.
Id.
The victims were in the backseat of this car.
Id.
Petitioner exited his home and sat in the front passenger seat of De Wulf’s car. Id. He gave her
a gun to put in her purse, but she was unable because the gun was too large. Id. Petitioner told
De Wulf that they were taking the victims somewhere to “waste ‘em.” Id.
The two cars departed from Petitioner’s home with the blue car in the lead followed by De
Wulf’s car. Id. After a few blocks, Petitioner told De Wulf he wanted to drive, and they switched
positions. Id. The caravan traveled approximately 30 minutes to the area in Lamont where the
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victims were later discovered shot in the trunk. Id. Once at the forest preserve, Petitioner and
De Wulf stopped while the first car travelled down a gravel or dirt road. Id. De Wulf heard
“several” gunshots. Id. Titone and Sorrentino came walking up the road to De Wulf’s car. Id.
They reported that they shot the victims, who were dead. Id. They said the victims begged for
their lives, but, Titone and Sorrentino “just laughed” at their pleas. Id. De Wulf and the three
assailants drove back to Petitioner’s home discussing the robbed cocaine on the way. Id.
Petitioner was found guilty by a jury, and sentenced to death. Id. at 1149. The Supreme
Court of Illinois affirmed the convictions on direct appeal, but vacated the death penalty sentence
and remanded for resentencing. Id. at 1166. Petitioner was resentenced to life imprisonment.
Illinois v. Gacho, 967 N.E.2d 994, 996 (Ill. App. Ct. 2012) (“Post Conviction Appeal I”). He then
filed a postconviction petition. Id. The state trial court initially dismissed the petition, but the
appellate court remanded for an evidentiary hearing. Id. The trial court denied the petition
following the evidentiary hearing, and the appellate court affirmed. Illinois v. Gacho, 53 N.E.3d
1054, 1054 (Ill. App. Ct. 2016) (“Post Conviction Appeal II”). The state postconviction petition
proceedings concluded with the denial of the petition for leave to appeal (PLA) by the Supreme
Court of Illinois. Illinois v. Gacho, No. 120808, 60 N.E.3d 877 (Ill. Sept. 28, 2016) (Table).
Petitioner now brings the instant habeas corpus petition before this Court.
II.
Analysis
Petitioner raises the following claims in the habeas corpus petition:
A.
Inordinate delay by the state courts in resolving Petitioner’s postconviction petition.
B.
Maloney’s participation in the case denied Petitioner a fair and impartial trial.
C.
Ineffective assistance of trial counsel when Petitioner’s counsel attempted to bribe
Maloney.
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D.
Ineffective assistance of trial counsel when counsel was suffering from an actual
conflict.
E.
Ineffective assistance of trial counsel for various errors made by counsel during
trial.
F.
A Fourth Amendment violation when the officers wrongfully arrested Petitioner at
his home.
G.
The police wrongfully interrogated Petitioner after he invoked his right to counsel.
H.
Maloney wrongfully excused a juror from the case.
I.
The prosecution wrongfully introduced impermissible out-of-court statements.
J.
The prosecution wrongfully brought up the improper out-of-court statements
during closing arguments.
K.
There is insufficient evidence to support the conviction.
L.
The prosecution examined Petitioner on improper topics.
M.
A prior consistent statement was wrongfully introduced into evidence at trial.
N.
The prosecutors wrongfully cross-examined Petitioner’s wife on improper topics.
O.
Petitioner’s wife’s gun was wrongfully introduced into evidence at trial.
P.
Improper hearsay evidence was introduced at trial.
Q.
The prosecution’s closing argument improperly minimized the burden of proof.
R.
Ineffective assistance of appellate counsel.
A.
Claim A
Petitioner asserts inordinate delay in the adjudication of his state postconviction petition.
It took the state courts 25 years to complete Petitioner’s postconviction proceedings. See Post
Conviction Appeal II, 53 N.E.3d at 1057 (stating that Petitioner’s initial postconviction petition
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was filed in the state court on February 15, 1991); Gacho, No. 120808, 60 N.E.3d at 877 (Table)
(denial of PLA on September 28, 2016, completing postconviction process).
The Court previously addressed the inordinate delay arguments in a previously habeas
corpus petition. Gacho v. Harrington, No. 13 C 4334, 2013 WL 5993458, at *1 (N.D. Ill. Nov.
7, 2013). In 2001, this Court denied Petitioner’s inordinate delay argument, holding that many of
the delays in the state court were attributable to Petitioner. Id. In 2007, Petitioner renewed his
inordinate delay argument. The Court expressed “serious concerns” about the delay, but the
argument was voluntarily withdrawn via an agreement of the parties. Id. In 2013, the Court held
that there was no inordinate delay because the state court was actively adjudicating Petitioner’s
claims at that time. Id. at *2. Petitioner appealed the Court’s inordinate delay ruling, but the
Seventh Circuit dismissed the appeal for want of appellate jurisdiction. Gacho, 792 F.3d at 737.
The state court completed the adjudication of Petitioner’s postconviction proceedings prior
to the filing of the present habeas corpus petition. Gacho, No. 120808, 60 N.E.3d at 877 (Table).
Petitioner’s present argument is not that inordinate delay should excuse completing the state court
proceedings, but instead the 25 years it took the state courts to resolve his postconviction petition
prejudiced him through the death of witnesses who supported his claims.
Although inordinate delay can excuse the exhaustion requirement, it is not a free-standing
ground for habeas corpus relief. Jackson v. Duckworth, 112 F.3d 878, 880-81 (7th Cir. 1997).
There is no constitutional right to bring a state postconviction petition, “let alone [a] prompt” one.
Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th Cir. 1996) (citing Pennsylvania v. Finley, 481 U.S.
557 (1987)). A prisoner must point to a separate federal constitutional right violated in his
postconviction proceedings to raise a claim, and a delay in a postconviction proceeding does not
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violate federal due process. Jackson, 112 F.3d at 881. Consequently, Petitioner invokes no
freestanding constitutional ground.
Moreover, even if Petitioner could identify a freestanding constitutional claim, his
argument that he was prejudiced is refuted by the record. It is true that three witnesses were
deceased by the time the state trial court conducted an evidentiary hearing on his postconviction
claims in 2013, but the state court allowed the introduction of previously obtained affidavits from
these witnesses. Post Conviction Appeal II, 53 N.E.3d at 1058. There is no indication that
Petitioner was prejudiced by the length of his postconviction proceedings. Claim A is denied.
B.
Claim B
1.
Petitioner’s Allegations
Claim two is the Maloney judicial bias claim. Maloney, who presided over Petitioner’s
trial, served as a Cook County Circuit Court judge from 1977, until his retirement in 1990. United
States v. Maloney, 71 F.3d 645, 649 (7th Cir. 1995). “Maloney was one of the many dishonest
judges exposed and convicted through Operation Greylord, a labyrinthine federal investigation of
judicial corruption” in the Circuit Court of Cook County. Bracy v. Gramley, 520 U.S. 899, 901
(1997). He was indicted in 1991, and a federal jury convicted him in 1993 of racketeering
conspiracy, racketeering, extortion under the color of official right, and obstruction of justice in
connection with taking bribes to fix four separate cases --- an attempted murder case, a deceptive
practices case, and two murder cases. 2 Bracy, 520 U.S. at 901; Maloney, 71 F.3d at 649.
Maloney took bribes through the use of a bagman --- first his bailiff, Lucius Robinson, and later a
2 Petitioner’s case is not one of the four in Maloney’s federal prosecution.
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lawyer, Robert McGee, with whom Maloney previously practiced before becoming a judge.
Maloney, 71 F.3d at 650.
Maloney was a defense attorney prior to becoming a judge. Bracy, 520 U.S. at 901. He
had close ties to organized crime, who often paid off judges in criminal cases. Id. at 901-02.
Maloney utilized these corrupt relationships to solicit bribes for himself once he became a judge.
Id.
Maloney developed a reputation as a strict prosecution oriented judge. Bracy v. Schomig,
286 F.3d 406, 413 (7th Cir. 2002) (en banc). He adopted the tough persona intentionally to deflect
suspicion from his criminal activities, and to encourage defendants before him to pay him bribes.
Id. Maloney died in 2008. United States ex rel. Wadley v. Hulick, No. 06 C 258, 2008 WL
4724429, at *7 n.2 (N.D. Ill. Oct. 24, 2008).
Petitioner alleges two bribery schemes involving Maloney in his case. He also mentions
Maloney’s organized crime connections.
In the first bribery scheme, codefendant Dino Titone’s father alleged that he agreed to pay
a bribe to Maloney on his son’s behalf. (Dkt. 23-14, pg. 69.) The scheme, facilitated through
Dino Titone’s attorney, Bruce Roth, had Titone’s father pay Maloney $10,000. Post Conviction
Appeal II, 53 N.E.3d at 1057. Titone’s father neither spoke directly to Maloney nor gave him the
money; instead Roth presented the bribery scheme to Titone’s father, and allegedly acted as the go
between. Id. According to Titone’s father, Roth said he would give the $10,000 to Maloney’s
bagman (McGee), who then would pass the money onto Maloney. (Dkt. 23-14, pg. 69.)
McGee was convicted in Greylord. United States v. McGee, No. 97 C 3129, 1997 WL
757411 (N.D. Ill. Nov. 21, 1997). So too was Roth. United States v. Roth, 860 F.2d 1382, 1383
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(7th Cir. 1988). Roth’s Greylord case showed he was a broker who matched willing lawyers and
judges open to bribery. Id.
Petitioner and Titone’s trials before Maloney were severed, but conducted simultaneously
with Petitioner proceeding before a jury, and Titone taking a bench trial. Post Conviction Appeal
II, 53 N.E.3d at 1057. According to the father’s affidavit, Maloney agreed to acquit Titone, and
promised to insure Petitioner and Sorrentino were convicted as cover. Id.
Titone’s father explained that Maloney had an upcoming judicial retention election a year
later in 1984.
(Dkt. 23-14, pg. 70.)
The father understood that convicting Petitioner and
Sorrentino would give Maloney sufficient cover for the election allowing him to acquit Titone.
Id.
Titone’s father’s affidavit also alleged that Roth and Maloney discussed the then ongoing
Greylord investigation. Id. According to Titone’s father, Roth allegedly assured Maloney that
he would not cooperate with investigators. Id.
The purported deal apparently fell through as Maloney found Titone guilty and sentenced
him to death. Id. Titone’s father’s affidavit presents a number of possible theories as to what
happened (including that Roth stiffed Maloney, or Roth and/or Maloney got cold feet in light of
the upcoming election and/or Greylord investigation). (Dkt. 23-14, pg. 70-71.) The affidavit is
clear that Titone’s father does not know what happened to the bribery agreement, only that Titone
was not acquitted as promised by Roth (purportedly on Maloney’s behalf).
An affidavit from Roth is also in the record. (Dkt. 23-20, pg. 41.) Given in 1988, while
in federal custody for his Greylord case, Roth explains that he was unwilling to give an affidavit
regarding the Titone case until his own federal prosecution was complete. Id. He did speak to
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Titone’s postconviction attorney, Ian Ayers, who provided his own affidavit detailing his
discussions with Roth while Roth was in federal custody. Ayers’s affidavit memorializing his
conversations with Roth makes no mention of Petitioner. (Dkt. 23-20, pg. 43-47.)
The second alleged scheme involved a bribe of Maloney suggested by Petitioner’s initial
attorney, Daniel Radakovich. Post Conviction Appeal II, 53 N.E.3d at 1058. Petitioner alleges
that Radakovich, who had been hired by one of Petitioner’s friends to represent Petitioner, told
Petitioner that Maloney would acquit him if he paid a bribe of $60,000, or the equivalent in
cocaine. Id. Although interested, Petitioner and his family could not raise the necessary money
or drugs. Id. Radakovich allegedly became disinterested in Petitioner’s case once it became
clear that Petitioner could not come up with the bribe money. Id. Petitioner again spoke to his
friend about a new lawyer, and soon after his aunt hired Robert McDonnell. Id.
Petitioner’s mother provided an affidavit attesting that Radakovich told her that Maloney
could be bought for $60,000. Id. at 1057. She responded that she could not raise that amount of
money. Id. Petitioner’s aunt also provided an affidavit attesting that Petitioner told her that the
judge could be bribed. Id.
Petitioner’s final argument regarding Maloney’s alleged bias is that one of the victims,
Tullio Infelise, was a member of organized crime. He also points out that Maloney had known
connections to organized crime. Bracy, 520 U.S. at 901-02. Petitioner does not explain the
relevance of the organized crime allegation, instead adding it to the case’s milieu as an “additional
fact of import which applies to Judge Maloney’s bias in the case. . . .” (Dkt. 1, pg. 22.)
It is true that organized crime is in the ether of this case. Beyond Maloney, Petitioner’s
second attorney, McDonnell, who replaced Radakovich, had his own underworld connections.
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Considered an “outfit” lawyer, Bracy, 286 F.3d at 414, McDonnell was the son-in-law of Sam
Giancana, longtime boss of the Chicago Outfit. Gacho, 792 F.3d at 734. McDonnell served a
two-year federal sentence for conspiracy to distribute counterfeit money in 1966, and was
convicted of income tax evasion in 1968. Bracy, 286 F.3d at 414. He was disbarred in 1972, but
reinstated in 1980. Id. In 1989, he was convicted of conspiracy to defraud the government, and
solicitation to influence the operation of an employee benefits plan. Id. He was sentenced to six
years imprisonment, and withdrew his name from Illinois’s roll of attorneys to avoid disbarment
for a second time. Id. McDonnell died in 2006. Trevor Jensen, Robert McDonnell: 1925-2006,
Chi. Trib., Nov. 7, 2006, at 4.
Beyond McDonnell and Maloney, Petitioner alleges that the Infelise family were members
of organized crime, and codefendant Titone was related to noted mobster Frank Calabrese, Sr.
(Dkt. 1, pg. 22.).
2.
The State Court’s Review of Petitioner’s Claim
An evidentiary hearing on Petitioner’s postconviction petition was held before Cook
County Circuit Court Judge Diane Cannon. (Dkt. 23-22, pg. 66-180; Dkt. 23-23, pg. 2-139.)
Titone’s father, and Petitioner’s mother and aunt had all passed away by the time of the evidentiary
hearing. Post Conviction Appeal II, 53 N.E.3d at 1059. Judge Cannon, however, allowed the
introduction of their affidavits into evidence. Id. Petitioner testified on his own behalf at the
hearing, reasserting his claim that Radakovich told him that Maloney could be bought, and he
became disinterested in the case once Petitioner and his family could not raise the money. Id. at
1058.
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Petitioner’s other witness was Ronald Barrow. Id. Barrow, who is serving a life sentence
for an unrelated murder, testified that he met Titone in May 1995, at the Cook County Jail while
Barrow was waiting to testify on a different matter. Id. According to Barrow, Titone said, “he
felt it was bad karma when the judge double crossed him on a deal he had made to slam Bob Gacho
and convict him.” Id. Titone, per Barrow, had said that his father paid the $10,000 bride to
Malone. Id.
The state impeached Barrow with the jail’s records showing that Barrow was not there after
May 1995, while Titone was at the jail between October 1997, and October 1998. Id.
Radakovich testified on the state’s behalf at the hearing. Id. He denied engaging in any
type of misconduct and denied saying to Petitioner or anyone that Maloney could be bribed. Id.
He further claimed to actively participate in Petitioner’s case because he had filed pretrial answers
to discovery, and prepared a motion to suppress on Petitioner’s behalf. Id.
Judge Cannon denied Petitioner’s judicial bias claim (Dkt. 22-5, pg. 46-48.), and the state
appellate court affirmed. Post Conviction Appeal II, 53 N.E.3d at 1061-63. The state appellate
court’s decision is the subject of this Court’s review because it was the last state court decision to
address Petitioner’s claim on the merits. Harris v. Thompson, 698 F.3d 609, 623 (7th Cir. 2012)
(citing Green v. Fisher, 565 U.S. 34, 40 (2011); Garth v. Davis, 470 F.3d 702, 710 (7th Cir. 2006)).
The state appellate court concluded that, “[t]here is no direct evidence in the record that
Maloney solicited, received, or agreed to accept a bribe to influence his rulings in defendant’s
case.”
Post Conviction Appeal II, 53 N.E.3d at 1061.
As to Titone, the appellate court
recognized that the father’s affidavit “consists nothing more than hearsay,” of what Roth allegedly
told the father. Id. at 1062.
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Despite the fact that there was no evidence to support the Titone bribery allegation, the
appellate court recognized that there were two decisions that “make a factual reference to Titone
having given Maloney a $10,000 bribe to find him not guilty but that Maloney convicted him
anyway and sentenced him to death.” Id. at 1061 (citing Bracy, 286 F.3d at 412; United States ex
rel. Titone v. Sternes, No. 02 C 2245, 2003 WL 21196249, at *1 (N.D. Ill. May 15, 2003) (Zagel,
J.)).
In Titone’s 28 U.S.C. § 2254 case, Judge Zagel’s opinion found that Titone paid a $10,000
bribe to Maloney for an acquittal. United States ex rel. Titone, No. 02 C 2245, 2003 WL
21196429, at *1. Judge Zagel stated, “there was evidence that [Roth] paid Judge Maloney
$10,000 to find [Titone] not guilty,” but Maloney returned the money after he found out he was
under investigation in Greylord. Id.
Maloney convicted Titone and sentenced him to death “presumably in an effort to protect
himself from bribery and conspiracy charges.” Id. This resulted in the state court granting
Titone’s postconviction petition and ordering a retrial. Id. Titone was convicted at retrial, and
that new conviction was the subject of the habeas corpus petition before Judge Zagel, which he
denied. Id.
The Seventh Circuit’s Bracy en banc decision also discusses Titone’s case. Titone was
not before the Seventh Circuit in Bracy; instead his case was used as an example of Maloney
engaging in compensatory bias. 286 F.3d at 412. The Seventh Circuit stated that Titone paid the
$10,000, but Maloney convicted him anyway “to deflect suspicion from himself.” Id. Notably,
there is no mention of Petitioner in either the Seventh Circuit’s Bracy opinion or Judge Zagel’s
ruling on Titone’s habeas corpus petition.
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In light of the statements in those cases, the state appellate court “assume[d], [] for the
purposes of our analysis, that Titone did bribe Maloney, and that Maloney convicted Titone to
deflect suspicion from himself.” Post Conviction Appeal II, 53 N.E.3d at 1061. However, the
appellate court held that even under that assumption, there was no evidence that Maloney also
engaged in compensatory bias against Petitioner. Id. at 1063.
Equally, the state court found there was no evidence that Petitioner ever attempted to bribe
Maloney. Id. at 1061. Judge Cannon credited Radakovich’s testimony, finding him credible,
and rejected Petitioner’s testimony as incredible. Id. She further found that the affidavits from
Petitioner’s mother and aunt contained hearsay, and also were incredible. Id. The appellate
court found no reason to reject Judge Cannon’s credibility determinations. Id. Concluding that
there was no evidence of either bias as the result of direct bribery or compensatory bias, the state
appellate court affirmed the denial of Petitioner’s judicial bias claim.
3.
Discovery in this Court
Petitioner did not seek discovery on his judicial bias claim in this Court. However, the
Court briefly considers the discovery question sua sponte because the Supreme Court granted the
prisoners in Bracy v. Gramley leave to conduct discovery on their judicial bias claims regarding
Maloney. 520 U.S. 889 (1997). The Court concludes discovery is improper in this case due to
the intervening passage of the Antiterrorism and Effective Death Penalty Act, (AEDPA), as well
as the Supreme Court’s decision in Cullen v. Pinholster, 563 U.S. 170, 185 (2011).
As mentioned, the prisoners in Bracy were given leave to conduct discovery as to their
judicial bias claim. However, Bracy applied the pre-AEDPA standards from Harris v. Nelson,
394 U.S. 286 (1969), and Rule 6(a) of the Rules Governing Habeas Corpus Cases Under Section
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2254. 520 U.S. at 904, 908-09. Although the AEDPA was enacted a year earlier, the Supreme
Court understandably did not discuss the AEDPA in Bracy because it was a death penalty case,
and Congress explicitly exempted pending death penalty cases from a retroactive application of
the AEDPA. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Lindh went onto hold that the AEDPA
does not apply retroactively to non capital cases either. Id. at 323.
In fact, the Supreme Court in Bracy appears to recognize it is a pre-AEDPA case, without
explicitly saying so, by citing to the pre-AEDPA law including the “law and justice requires”
standard for adjudicating petitions. 520 U.S. at 904. Bracy is clearly a pre-AEDPA case.
In contrast, this is an AEDPA case because Petitioner filed the present habeas corpus
petition after April 24, 1996. The difference between pre-AEDPA and AEDPA is dispositive on
the discovery question.
The Supreme Court in Cullen made clear that under the AEDPA, the Court cannot consider
evidence beyond what was before the state court when it adjudicated the merits when reviewing a
claim under 28 U.S.C. § 2254(d)(1). 563 U.S. at 185. (“[E]vidence introduced in federal court
has no bearing on § 2254(d)(1) review. If a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the limitations of § 2254(d)(1) on the record that
was before that state court.”). As this Court is considering Petitioner’s claim under § 2254(d)(1),
the Court cannot consider any evidence outside the state court record. See Jordan v. Hepp, 831
F.3d 837, 849 (7th Cir. 2016) (explaining that an evidentiary hearing is allowed under 28 U.S.C.
§ 2254(e)(2), only if petitioner satisfies § 2254(d)(1)); Campbell v. Reardon, 780 F.3d 752, 772
(7th Cir. 2015) (same); Taylor v. Grounds, 721 F.3d 809, 824 (7th Cir. 2013) (same); Stitts v.
Wilson, 713 F.3d 887, 898 (7th Cir. 2013) (same).
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The Court is aware of Tabb v. Christianson, which approved a district court’s grant of
discovery in a habeas corpus case. 855 F.3d 757, 764 (7th Cir. 2017). Despite being an AEDPA
case, Tabb cites to Bracy, and applies the pre-AEDPA standard for permitting discovery in a
habeas corpus case. Id. at 763. Tabb also cites to Hubanks v. Franks, 392 F.3d 933 (7th Cir.
2004), a case decided before Cullen, and Hubanks also cites to the pre-AEDPA standard from
Bracy.
Tabb does cite Cullen, stating, “[a]s a general rule, federal habeas petitions must be decided
on state court records.” Tabb, 855 F.3d at 763 (citing Cullen, 563 U.S. at 182). However, Tabb
does not consider Cullen’s holding prohibiting a federal court from considering evidence outside
of what was before the state court when performing the § 2254(d)(1) analysis, nor the Seventh
Circuit’s decisions in Jordan, Campbell, Reardon, and Stitts which all set forth the Cullen standard
that a federal court cannot consider evidence beyond what was before the state court when
performing the § 2254(d)(1) analysis. Thus, the Court proceeds to the merits review of the
judicial bias claim under § 2254(d), limiting its review to what was before the state court as
required by Cullen.
4.
The Court’s Review of the Judicial Bias Claim
Petitioner’s allegations involving a bribery scheme suggested by Radakovich are clearly
without merit. The state court credited Radakovich’s testimony denying the allegations, and there
is nothing to rebut this factual finding. 28 U.S.C. § 2254(e)(1). Moreover, Petitioner concedes
that there was no alleged bribery facilitated by Radakovich because Petitioner and his family could
not come up with the bribe money. There is nothing in the record to suggest Maloney had a bias
against Petitioner due to Radakovich’s alleged actions.
17
As to Maloney’s organized crime connections, Petitioner simply adds this to the context of
the case. He does not allege any type of bias based on Maloney’s organized crime associations,
and there is nothing in the record to suggest a bias on that point. With these two issues out of the
way, the Court turns to the central issue of the Titone bribery allegation.
The Court’s review of this claim is governed by the AEDPA. The Court may not grant
habeas relief unless the state court’s decision on the merits was contrary to, or involved an
unreasonable application of, clearly established federal law, as determined by the Supreme Court
of the United States, or unless the state court decision is based on an unreasonable determination
of facts. 28 U.S.C. § 2254(d). “The AEDPA’s standard is intentionally ‘difficult for Petitioner to
meet.’” Woods v. Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting White v. Woodall,
572 U.S. 415, 419 (2014); Metrish v. Lancaster, 569 U.S. 351, 358 (2013)). This “‘highly
deferential standard [] demands that state-court decisions be given the benefit of the doubt.’”
Cullen, 563 U.S. at 181 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002)).
“Due process guarantees ‘an absence of actual bias’ on the part of a judge.” Williams v.
Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (citing In re Murchison, 349 U.S. 133, 136 (1955));
Bracy, 520 U.S. at 905. The presence of a biased judge requires an automatic reversal of a
conviction regardless of whether a case was tried before a jury, or the conviction was reviewed by
unbiased judges on appeal.
Edwards v. Balisok, 520 U.S. 641, 647 (1997); Cartalino v.
Washington, 122 F.3d 8, 10 (7th Cir. 1997). A judge who accepts a bribe to “fix” a case is biased.
Bracy, 520 U.S. at 905. Equally, a judge who engages in “compensatory bias” against other
defendants who did not bribe him to deflect suspicion from his criminal activities or encourage
them to pay him bribes is also biased. Id.; Hopper v. Ryan, 729 F.3d 782, 783 (7th Cir. 2013).
18
There is a presumption that public officials “‘properly discharge their official duties.’”
Bracy, 520 U.S. at 909; Bracy, 286 F.3d at 409 (quoting United States v. Chemical Foundation,
Inc., 272 U.S. 1, 15 (1926)). Maloney is not entitled to this presumption because he was shown
to be “thoroughly steeped in corruption through his public trial and conviction.” Bracy, 520 U.S.
at 909; see also Bracy, 286 F.3d at 409.
The fact that “Maloney was so exceedingly corrupt does not support a per se finding that
every case over which he presided was infected” by his corruption. Bracy, 286 F.3d at 409.
Instead, Petitioner has the burden of demonstrating that Maloney was “‘actually biased in
Petitioner’s own case.’” Guest v. McCann, 474 F.3d 926, 932 (7th Cir. 2007) (quoting Bracy,
520 U.S. at 909; Bracy, 286 F.3d at 410.) Petitioner may use either direct and/or circumstantial
evidence to prove that Maloney was biased against him in his case. Bracy, 520 U.S. 905; Bracy,
286 F.3d at 411; Franklin v. McCaughtry, 398 F.3d 955, 960 (7th Cir. 2005).
Case law recognizes three fact patterns regarding judicial bias and bribery: (1) a judge who
accepts bribes in other cases, with no evidence of a bribe in the defendant’s case; (2) a judge who
accepts a bribe to acquit a codefendant and agrees to convict the defendant as part of the coverup;
and, (3) a judge who accepts a bribe to acquit a codefendant, with no evidence of an agreement to
convict the defendant as part of the coverup.
Fact Pattern One
Bracy involves the first fact pattern of a judge (Maloney) accepting bribes in other cases,
with no evidence of a bribe in the prisoner’s case. Bracy, 520 U.S. at 905; Bracy, 286 F.3d at
411; Cartalino, 122 F.3d at 10. In this situation, the petitioner can argue a “compensatory bias”
claim --- the judge was biased because he had an incentive to cover up his misconduct in other
19
cases or encourage other defendants to bribe him --- but the burden is on the petitioner to show
actual bias by the judge. Bracy, 520 U.S. at 905; Bracy, 286 F.3d at 411.
Fact Pattern Two
In the second fact pattern, the codefendant bribes the judge for an acquittal, the judge agrees
to convict the codefendant as part of the coverup, and the judge follows through on the plan by
acquitting the codefendant and convicting the petitioner. Bracy, 520 U.S. at 905; Cartalino, 122
F.3d at 10. The judge’s bias against the defendant he agrees to convict requires automatic
reversal. Id.
Fact Pattern Three
In the third fact pattern, the judge agrees to a bribe from a codefendant in the defendant’s
case and carries out the plan to acquit the codefendant, but there is no evidence that the judge
agreed to convict the defendant as part of the consideration for the bribe. Cartalino, 122 F.3d at
10. Although the bribe paid by the codefendant to the judge is not “conclusive proof of judicial
bias,” “it is such strong evidence --- much stronger than the evidence in Bracy --- that [] it shifts
the burden of persuasion to the state, to show that there was no actual bias.” Id. at 11.
This case does not fall neatly into any of the three categories. Judge Cannon held there
was no evidence of a bribe when rejecting Petitioner’s postconviction petition. Post Conviction
Appeal II, 53 N.E.3d at 1061. The state appellate court did not dispute Judge Cannon’s finding,
but for purposes of its review assumed there was a bribe, and that the deal broke down. Id. The
appellate court assumed that Maloney convicted Titone, and sentenced him to death as part of
Maloney’s coverup of the failed bribery scheme. Id. Specifically, the state appellate court
found:
20
In this case, there is no competent or credible evidence in the record supporting a
finding that Maloney had a pecuniary interest in the outcome of the defendant’s
case, that the defendant bribed Maloney, that Maloney solicited a bribe from the
defendant, or that the bribery scheme which existed between Maloney and the
codefendant, Titone, included any requirement involving the outcome of the
defendant's trial. Distilled to its finest, the record in this case establishes only that
the defendant was tried simultaneously with a co-defendant who, as we have
assumed for purposes of analysis, bribed a corrupt trial judge; thus giving rise to a
claim of compensatory bias . . . .
Post Conviction Appeal II, 53 N.E.3d at 1063.
In other words, because the bribery agreement clearly broke down, the state appellate court
applied the Bracy compensatory bias standard because the state court concluded that, without an
active bribery agreement, all that remained was Maloney attempting to cover up his crimes, just
like as Bracy. The case, in sum, is in between fact patterns one and three, with the state appellate
court concluding that the case was on fact pattern one’s side of the line. The Court concludes that
it cannot find the state court ruling on this point was contrary to, or an unreasonable application
of, clearly established law from the Supreme Court of the United States.
One might challenge the state court’s analysis. It is true that this case is different than
Bracy in that the alleged bribe occurred in this case, while Bracy involved bribery in other Maloney
cases, but not the case at issue in Bracy. Cartalino (which sets forth fact patterns two and three)
held that a bribe paid by the codefendant in the petitioner’s case is significantly stronger evidence
of judicial bias than a bribe paid in an unrelated case before the same judge. 122 F.3d at 10.
Cartalino also found that a bribery scheme that requires a defendant’s conviction as part of the
coverup requires automatic reversal. Id. However, both Bracy and Cartalino do not address
what happens when the bribery scheme falls apart. Does the Court default to the traditional
compensatory bias standard under Bracy, or does Cartalino apply when the scheme disintegrates?
21
A court deciding the question de novo might come to the conclusion that Cartalino should
apply. However, the case is before this Court under the demanding AEDPA standard. The
question is not what the Court would decide if answering the question in the first instance.
Instead, it is whether the state appellate court’s determination is contrary to, or an unreasonable
determination, in light of Supreme Court precedent, or predicated upon an unreasonable
determination of fact. 28 U.S.C. § 2254(d).
Because this Court is considering whether the state court identified the correct legal
standard for Petitioner’s claim, the question is under the “contrary to” standard. “‘A federal
habeas court may issue the writ under the ‘contrary to’ clause if the state court applies a rule
different from the governing law set forth in [the Supreme Court’s] cases, or if it decides a case
differently than [the Supreme Court has] done on a set of materially indistinguishable facts.’”
Premo v. Moore, 562 U.S. 115, 128 (2011) (quoting Bell v. Cone, 535 U.S. 685, 694 (2002)).
In considering this question, this Court recognizes that “[t]he AEDPA’s standard is
intentionally ‘difficult for Petitioner to meet.’” Woods, 135 S. Ct. at 1376 (quoting Woodall, 572
U.S. at 415; Metrish, 569 U.S. at 358). “As a condition for obtaining habeas corpus [relief] from
a federal court, a state prisoner must show that the state court’s ruling on the claim being presented
in federal court was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington
v. Richter, 562 U.S. 83, 103 (2011). This “‘highly deferential standard [] demands that state-court
decisions be given the benefit of the doubt.’” Cullen, 563 U.S. at 181 (quoting Woodford, 537 U.S.
at 24).
In light of the deferential AEDPA standard, the Court cannot say the state appellate court’s
22
decision to apply the compensatory bias standard is contrary to clearly established federal law.
Although reasonable jurists might disagree with the state appellate court’s decision, the state
court’s ruling is not a well-understood error. Harrington, 562 U.S. at 103.
Additionally, one has to question whether Cartalino can be applied at all under the
AEDPA. Cartalino is a pre-AEDPA case, as the petition was filed on April 18, 1996. Cartalino
v. Washington, No. 96 C 2269 (N.D. Ill.). The Seventh Circuit in Cartalino, although discussing
multiple Supreme Court cases, does not explain whether its standard shifting the burden of proof
in that case (the third fact pattern) was an application of clearly established federal law from the
Supreme Court, or a new holding. The AEDPA limits this Court’s review to the holdings of
Supreme Court precedent. Woods, 135 S. Ct. at 1376. The Supreme Court has “repeatedly
emphasized” that precedent from the United States Court of Appeals is not clearly established
federal law from the Supreme Court under the AEDPA. Glebe v. Frost, 135 S. Ct. 429, 431
(2014) (per curiam); Long v. Pfister, 874 F.3d 544, 549 (7th Cir. 2017) (en banc) (“The Justices
insist that a principle be made concretely applicable to the problem at hand before it may be used
on collateral review.”). Regardless, even if Cartalino can be applied, the state court’s decision to
apply Bracy’s compensatory bias standard is not contrary to clearly established federal law under
the deferential AEDPA standard.
Thus, the Court proceeds with a review of the state court’s decision under the traditional
Bracy compensatory bias standard to see if the state court’s adjudication of the claim was an
unreasonable determination under the AEDPA. The state court made a factual finding that there
was no evidence of a bribe paid to Maloney by either Titone, Titone’s father, or Petitioner. Post
Conviction Appeal II, 53 N.E.3d at 1063. As noted above, this factual finding is presumed correct,
23
and Petitioner has the burden of rebutting the presumption by clear and convincing evidence.
Brumfield, 135 S. Ct. at 2282; § 2254(e)(1).
As the state court properly recognized, Titone’s father’s affidavit only provides hearsay of
what Roth allegedly told him. There is nothing in the record before the state court to demonstrate
that there was an agreement between Titone and Maloney to fix the case, or that a bribe was ever
paid. Titone’s father concedes in his affidavit that he does not know what happened, only that he
believed there was an agreement with Maloney (via Roth) for an acquittal, but his son was later
convicted and sentenced to death. (Dkt. 23-14, pg. 70-71.)
To be clear, there was no competent evidence before the state court in Petitioner’s
postconviction proceeding record demonstrating that there was ever a deal between Maloney and
Titone, and certainly nothing involving a deal implicating Petitioner. The state appellate court
held there was no evidence that Titone bribed Maloney, but nevertheless considered the case as
having a bribe in light of the Bracy en banc and Judge Zagel’s opinions, which found that the
bribery agreement broke down once Maloney discovered he was a target of Greylord, and Maloney
convicted Titone and sentenced him to death to coverup the bribery.
Thus, the state court properly looked to Maloney’s performance at Petitioner’s trial to see
if there was any indication of bias against Petitioner. A review of Maloney’s rulings and actions
during Petitioner’s case is an acceptable method for determining whether Maloney harbored
compensatory bias against Petitioner. Guest, 474 F.3d at 932; Bracy, 286 F.3d at 414; Bracy, 286
F.3d at 422 (Posner, J., concurring); Wadley v. Gaetz, 348 Fed. Appx. 148, 149-50 (7th Cir. Aug.
6, 2009).
The Court agrees with the state appellate court that there is no evidence in the record that
24
Maloney engaged in compensatory bias against Petitioner in an attempt to conceal the assumed
bribe from Titone that Maloney subsequently returned. Judge Cannon reviewed the state court
record in full.
Post Conviction Appeal II, 53 N.E.3d at 1063.
questionable ruling” by Maloney.
Id.
She “could not find one
The state appellate court affirmed Judge Cannon’s
conclusion that there was no evidence to support a compensatory bias claim. Having reviewed
the record in full, the Court concludes this is not an unreasonable determination under the AEDPA
deferential standard. 28 U.S.C. § 2254(d). Petitioner fails to demonstrate that Maloney was
actually biased against him in his case as required under Bracy’s compensatory bias standard. As
a result, the state court’s rejection of Petitioner’s judicial bias claim is not contrary to, nor an
unreasonable application of, clearly established federal law, and is not predicated upon an
unreasonable determination of fact. 28 U.S.C. § 2254(d). Consequently, the Court denies
Petitioner’s judicial bias claim (Claim B) in its entirety.
C.
Claim C
Petitioner next argues that his pretrial attorney Radakovich was ineffective by suggesting
that Petitioner bribe Maloney.
This claim builds upon the allegations in Claim Two.
As
mentioned above, Petitioner alleges that Radakovich told him that an acquittal could be purchased
from Maloney for a $60,000 bribe, or equal value of cocaine. Petitioner concedes that nothing
came of the plan because he could not raise the necessary money. However, as explained above,
there is no evidence in the record to support Petitioner’s allegation that Radakovich suggested a
bribe. Petitioner goes further in this claim alleging that Radakovich provided “Maloney with the
expectation that he would be bribed.” (Dkt. 1, pg. 24.) There is no evidence in the record to
support Petitioner’s allegation that Radakovich raised the possibility of a bribe to Maloney.
25
This claim was raised in Petitioner’s amended postconviction petition before the state trial
court.
(Dkt. 23-14, pg. 55-56.)
The claim, however, was not presented in Petitioner’s
postconviction appeal to the Appellate Court of Illinois, (Dkt. 24-4, Dkt. 24-7) or in his petition
for leave to appeal (PLA) before the Supreme Court of Illinois. (Dkt. 24-10.)
Respondent correctly asserts that the claim is procedurally defaulted. “To obtain federal
habeas review, a state prisoner must first submit his claim through one full round of state-court
review.” Johnson v. Hulett, 574 F.3d 428, 431 (7th Cir. 2009) (citing Picard v. Connor, 404 U.S.
270, 275-76 (1971)); see also 28 U.S.C. § 2254(b)(1). This includes presenting the claims in a
PLA before the Supreme Court of Illinois.
Guest, 474 F.3d at 930 (7th Cir. 2007) (citing
O’Sullivan v. Boerckel, 526 U.S. 838, 842-46 (1999)). Petitioner did not assert his claim in either
his direct appeal or postconviction proceedings. This results in procedural default.
Petitioner cannot excuse his defaults through either cause and prejudice, nor fundamental
miscarriage of justice. Regarding cause and prejudice, cause is an “‘objective factor, external to
Petitioner that impeded his efforts to raise the claim in an earlier proceeding.’” Weddington v.
Zatecky, 721 F.3d 456, 465 (7th Cir. 2013) (quoting Smith v. McKee, 596 F.3d 374, 382 (7th Cir.
2010)). Examples of cause include: (1) interference by officials making compliance
impractical; (2) the factual or legal basis was not reasonably available to counsel; or, (3)
ineffective assistance of counsel. Guest, 474 F.3d at 930 (citing McCleskey v. Zant, 499 U.S. 467
(1991)). The first two types of cause are not applicable to this case.
Ineffective assistance of counsel also does not excuse the default.
An ineffective
assistance of counsel argument asserted to excuse a default must, itself, be properly preserved in
the state courts. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Smith v. Gaetz, 565 F.3d 346,
26
352 (7th Cir. 2009). Petitioner has not exhausted any ineffective assistance of counsel argument
to excuse the default of this claim.
Equally, Petitioner cannot argue that postconviction counsel’s failure to preserve the claim
on postconviction appeal excuses the default. The Supreme Court in Martinez v. Ryan, 566 U.S.
1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), permitted ineffective assistance of
postconviction trial counsel to excuse a defaulted ineffective assistance of trial counsel claim.
That is not the case here, because the default is from the failure to raise the claim in a
postconviction appeal.
Steward v. Gilmore, 80 F.3d 1205, 1212 (7th Cir. 1996) (holding that
ineffective assistance of postconviction appellate counsel does not constitute cause to excuse a
default). Moreover, Martinez and Trevino are inapplicable to Illinois prisoners. Crutchfield v.
Dennison, 910 F.3d 968, 978 (7th Cir. 2018). Cause and prejudice cannot excuse Petitioner’s
defaults.
This leaves the fundamental miscarriage of justice (actual innocence) gateway to excuse
Petitioner’s default. To show actual innocence to defeat a default, Petitioner must demonstrate that
“‘in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.’” McQuiggins v. Perkins, 569 U.S. 383, 386 (2013) (quoting Schlup
v. Delo, 513 U.S. 298, 329 (1995)). This is a “demanding” and “seldom met” standard.
McQuiggins, 569 U.S. at 386 (citing House v. Bell, 547 U.S. 518, 538 (2006)). Petitioner must
present new, reliable evidence that was not presented at trial --- such as exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence --- to make a credible
claim of actual innocence. House, 547 U.S. at 537 (citing Schlup, 513 U.S. at 324); see McDonald
v. Lemke, 737 F.3d 476, 483-84 (7th Cir. 2013) (quoting Hayes v. Battaglia, 403 F.3d 935, 938
27
(7th Cir. 2005) (“[A]dequate evidence is ‘documentary, biological (DNA), or other powerful
evidence: perhaps some non-relative who places him out of the city, with credit card slips,
photographs, and phone logs to back up the claim.’”)).
There is no new evidence suggesting that Petitioner is actually innocent. One of the
victims, Tullio Infelise, identified Petitioner in multiple statements to the police before his death
16 days after the shooting. Additionally, Petitioner confessed to the crime and his girlfriend
testified to his involvement in the killings. Petitioner cannot demonstrate he is actually innocent.
Hayes, 403 F.3d at 938 (“[I]t is black letter law that testimony of a single eyewitness suffices for
a conviction even if 20 bishops testify that the eyewitness is a liar.”). Claim C is denied.
D.
Claim D
Petitioner next alleges ineffective assistance of trial counsel because his attorney Robert
McDonnell labored under a conflict of interest. In a pretrial proceeding, the prosecution raised
the fact that McDonnell previously represented a member of victim Infelise’s family. (Dkt. 231, pg. 5.) Petitioner then waived the conflict of interest from the prior representation on the record
affirming he discussed the matter with McDonnell, and he wished to continue with McDonnell as
his attorney. Id. at 5-6. The record does not detail which Infelise family member McDonnell
previously represented that was the subject of the waiver. However, it is clear that Petitioner
waived the conflict based on a prior representation. Id.
Petitioner testified at the postconviction hearing that McDonnell told him just before the
trial commenced that he had previously represented either Tullio (the victim) or Rosario Infelise.
Post Conviction Appeal II, 53 N.E.3d at 1058. Rosario and Tullio were brothers. Direct Appeal,
522 N.E.2d at 1152.
28
McDonnell allegedly told Petitioner that he represented Tullio on a legal matter “a long
time ago,” but could not recall it. Id. Petitioner later learned from court records that McDonnell
represented Rosario Infelise in a criminal matter from January 1984, through August 15, 1984.
Id. Petitioner’s in-court waiver occurred on September 19, 1984. Id.
Petitioner alleges in the present habeas corpus petition that McDonnell never informed him
that he was representing a “Ross Infelise.” (Dkt. 1, pg. 26.) Petitioner does not explain whether
Rosario Infelise is also known as Ross Infelise, but does allege that Ross Infelise is related to the
victim, Tullio Infelise. Id. Petitioner’s original postconviction appellate court decision refers to
“Ross Infelise,” Post Conviction Appeal I, 967 N.E.2d at 998, while his second postconviction
appellate opinion has “Rosario Infelise.”
Post Conviction Appeal II, 53 N.E.3d at 1057.
Petitioner alleges that McDonnell continued to represent Ross Infelise through Petitioner’s trial
without informing Petitioner. (Dkt. 1, pg. 26.) Petitioner asserts he never waived the conflict.
Respondent is correct that this claim is procedurally defaulted. Petitioner raised the
alleged unwaived conflict of interest as to Ross / Rosario Infelise (it is irrelevant if this is the same
person or two different people) before the trial and appellate courts in his postconviction
proceeding. Post Conviction Appeal II, 53 N.E.3d at 1063-65; Post Conviction Appeal I, 967
N.E.2d at 1002-04; (Dkt. 24-7, pg. 3.) However, Petitioner did not raise an ineffective assistance
of counsel claim regarding McDonnell’s representation of Ross / Rosario Infelise in the
postconviction PLA. (Dkt. 24-10.) The PLA is limited to the unrelated Maloney judicial bias
issue. There is nothing in the PLA regarding McDonnell’s alleged representation of Rosario,
Ross, or any other Infelise family member in the PLA. The failure to raise the claim in the PLA
results in the procedural default. Boerckel, 526 U.S. at 842-46.
29
Additionally, as the Court explained above, Petitioner cannot excuse the procedural default.
The default is the result of the failure to bring the claim in the postconviction PLA. Although
Petitioner was represented by counsel in his postconviction PLA, ineffective assistance of
postconviction appellate counsel is not cause to excuse a procedural default. Steward, 80 F.3d at
1212. Additionally, as discussed above, Petitioner cannot demonstrate a fundamental miscarriage
of justice to excuse the default. Claim D is denied.
E.
Claim E
Petitioner asserts five allegations of ineffective assistance of counsel regarding
McDonnell’s performance.
First, Petitioner alleges that Officer Thomas Adamski, one of the case investigators,
committed perjury in his grand jury testimony. Petitioner argues McDonnell was ineffective by
failing to move for dismissal of the charges in light of Officer Adamski’s alleged perjured grand
jury testimony.
Second, Petitioner alleges that McDonnell was ineffective for stipulating to the admission
of a medical record at Petitioner’s suppression hearing. Petitioner alleges that his confession to
the police was physically and mentally coerced. He alleges he suffered injuries to his kidneys
from the assault by police officers during his interrogation. (Petitioner does not raise a coerced
confession claim in the present habeas corpus petition.)
However, evidence was introduced in the suppression hearing that Petitioner’s kidney
injuries were the result of a prior auto accident that occurred before Petitioner’s arrest.
McDonnell allegedly stipulated to a medical document supporting the auto accident argument.
Petitioner alleges that due to this stipulation, McDonnell wrongfully prevented himself from
30
introducing other evidence later in the hearing that supported Petitioner’s view that the police
injured his kidneys.
Third, victim Tullio Infelise, made a number of statements to the police during the 16 days
that he survived following the shooting. Maloney allowed the introduction of some of these
statements, while denying others. One statement Maloney did not allow to be introduced was a
tape recorded statement. However, McDonnell allegedly committed ineffective assistance of
counsel by inquiring about this tape recorded statement examining a witness at trial. This error
“opened the door,” allowing the prosecution to gain admission of the otherwise inadmissible tape
recording.
Fourth, McDonnell failed to object to improper other crime evidence regarding Petitioner’s
use of cocaine.
Finally, Petitioner asserts that McDonnell was ineffective for failing to raise the remaining
claims that he asserts in his habeas corpus petition. These claims are:
1. A Fourth Amendment violation when the officers wrongfully arrested him at his home.
2. The police wrongfully interrogated Petitioner after he invoked his right to counsel after
his arrest.
3. Maloney wrongfully excused jurors from the case.
4. The prosecution wrongfully introduced impermissible out-of-court statements.
5. The prosecution wrongfully brought up the improper out-of-court statements during
closing arguments.
6. There is insufficient evidence to support the conviction.
7. The prosecution examined Petitioner on improper topics.
8. A prior inconsistent statement was wrongfully introduced into evidence at trial.
31
9. The prosecutors wrongfully cross-examined Petitioner’s wife on improper topics.
10. Petitioner’s wife’s gun was wrongfully introduced into evidence at trial.
11. Improper hearsay evidence was introduced at trial.
12. The prosecution’s closing argument improperly minimized their burden of proof.
Respondent is correct that these arguments are procedurally defaulted. Petitioner did not
raise the arguments on direct appeal. (Dkt. 24-1.) The first four ineffective assistance of counsel
arguments were raised in the postconviction petition. (Dkt. 23-14, pg. 57-63.)
However, none
of the ineffective assistance of counsel arguments were presented in the postconviction appeals,
(Dkt. 24-4, Dkt. 24-7.), or in his postconviction PLA.
(Dkt. 24-10.)
All of Petitioner’s
ineffective assistance of counsel arguments in this claim are procedurally defaulted. Boerckel,
526 U.S. at 842-46.
As previously discussed above, Petitioner cannot demonstrate cause and prejudice, nor
fundamental miscarriage of justice. Of note, the failure of a postconviction attorney to raise a
claim in a postconviction appeal or PLA does not excuse the default. Steward, 80 F.3d at 1212.
Claim E is denied.
F.
Claim F
Petitioner next argues that his arrest and resulting confession to the police occurred in
violation of his Fourth Amendment rights. Maloney, following a suppression hearing, ruled that
there was both probable cause for Petitioner’s arrest, and exigent circumstances excusing the
warrantless arrest of Petitioner at his home.
Direct Appeal, 522 N.E.2d at 1152-53.
The
Supreme Court of Illinois on direct appeal affirmed Maloney’s ruling. Id. Maloney, as the finder
of fact, was accorded deference by the Supreme Court of Illinois. Id. at 1152 (“A reviewing court
32
will not disturb a trial court’s ruling on a motion to quash arrest unless that finding is manifestly
erroneous.”). The Supreme Court of Illinois’s decision on direct appeal was issued three years
before Maloney was indicted in federal court. Maloney, 71 F.3d at 649; Direct Appeal, 522
N.E.2d at 1146.
1.
Stone v. Powell
Respondent asserts this claim is barred by Stone v. Powell, 428 U.S. 465, 494 (1976)).
Respondent does not address whether a Fourth Amendment claim resolved by a corrupt judge is
considered a “full and fair” process in accordance with Stone. The Seventh Circuit answers, “no.”
“Stone v. Powell, bars a federal habeas court from reaching the merits of a petitioner’s
Fourth Amendment claim so long as the state court granted him a full and fair hearing on the
claim.” Monroe v. Davis, 712 F.3d 1106, 1112 (7th Cir. 2013) (citing 428 U.S. 465, 494 (1975)).
“[A] state court process that amounts to a sham would not constitute a full and fair hearing even
though petitioner had his day in court on the claim.” Monroe, 712 F.3d at 1114 (citing Cabrera v.
Hinsley, 324 F.3d 527, 530-31 (7th Cir. 2003); Hampton v. Wyatt, 296 F.3d 560, 563-64 (7th Cir.
2002)). “Absent a subversion of the hearing process,” such as if the trial judge “has his mind
closed to the necessity of a hearing, was bribed,” believes that “probable cause is not required,”
is “sleepwalking,” or “in some other obvious way was subvert[ing] the hearing,” a prisoner cannot
challenge its result in a federal habeas corpus proceeding. Cabrera, 324 F.3d at 531-32 (emphasis
added). “In short, ‘full and fair’ guarantees the right to present one’s case, but it does not
guarantee a correct result.” Id. at 532.
It is well documented that Maloney engaged in extensive bribery and corruption as a judge,
and, in Petitioner’s case, there is the alleged unsuccessful bribe by his codefendent. The Supreme
33
Court stripped Maloney of the presumption that he properly discharged his official duties because
of his documented history of corruption. Bracy, 520 U.S. at 909. Cabrera mentions a bribed
judge as an example of the subversion of the hearing process such that the full and fair requirement
is not met. In light of Maloney’s documented corruption, the Court holds that Petitioner did not
receive a full and fair opportunity to raise his Fourth Amendment claim. Consequently, the Stone
v. Powell exclusion does not apply in this case. Cabrera, 324 F.3d at 531-32.
It should be noted that although both the Stone full and fair analysis and the previously
discussed judicial bias claim consider bribery, they are different standards. As explained above,
Petitioner had the burden of showing Maloney was actually biased against him in his judicial bias
claim. Bracy, 520 U.S. at 905. There is no similar requirement of showing the judge’s malice
towards Petitioner when demonstrating a lack of a full and fair hearing under Stone. Cabrera,
324 F.3d at 531. Stone requires only that the judge subverted the process. Id. A corrupt judge,
although not biased, is certainly a subversion of the criminal justice system.
The examples given by Cabrera illustrate this point. A sleepwalking judge or a judge who
is so incompetent that he does not understand that probable cause applies in a Fourth Amendment
analysis do not automatically require a finding of bias against a petitioner. They can be fair and
impartial, and yet incapable of performing their judicial duties so that the result is subversion of
the process under Stone. Equally, Maloney’s corrupt presence, although there is no indication that
he was actually biased against Petitioner, is still a subversion of the process. This is why the Court
can find that Maloney’s history of bribery results in the denial of a full and fair hearing, but still
deny the judicial bias claim.
34
The existence of different remedies is an additional item of support for why this Court
could find there was no full and fair hearing under Stone, but still reject the judicial bias claim.
The showing of actual bias by a judge requires automatic reversal; no additional consideration of
a prisoner’s constitutional claims is required. Edwards, 520 U.S. at 647. But, the showing that
there was no full and fair opportunity under Stone simply lifts Stone’s prohibition on bringing a
Fourth Amendment claim in a habeas corpus case, the petitioner still must demonstrate a Fourth
Amendment violation. Monroe, 712 F.3d at 1113. Petitioner receives less of a remedy here,
simply removing the Stone prohibition allowing a consideration of the Fourth Amendment case.
Thus, so it is reasonable that there is less demanding of a proof requirement. Respondent’s
argument that Petitioner’s claim is barred by Stone v. Powell is rejected, and so the Court turns to
the substance of Petitioner’s Fourth Amendment claim.
2.
The AEDPA and Maloney
Because Petitioner’s Fourth Amendment claim was adjudicated by the state court, the
Court applies the AEDPA. Harris, 698 F.3d at 623. The AEDPA requires this Court to grant “a
deference and latitude” to the state court’s adjudication of the claim. Harrington v. Richter, 562
U.S. 86, 101 (2011). This leads to the very difficult question of whether Congress intended a
federal court to give deference to a state court decision under the AEDPA when a corrupt judge
was involved in the ruling under review. Put another way, does the AEDPA mandate that this
Court must defer to felonious judge Maloney?
The Court has not located binding precedent from the Supreme Court or the Seventh Circuit
on this question. The only case the Court has found directly addressing the issue is United States
ex rel. Hooper v. Ryan, 854 F. Supp. 2d 546 (N.D. Ill. 2012) (Gottschall, J.), vacated, 729 F.3d
35
782 (7th Cir. 2013).
Recognizing the concern, Judge Gottschall expressed that she was
“uncomfortable with the idea of deferring to Maloney in any way,” but ultimately applied AEDPA
deference to decisions involving Maloney’s rulings. Id. at 573. The Seventh Circuit vacated
Judge Gottschall’s opinion on an unrelated basis. Hooper, 729 F.3d at 787. The Seventh
Circuit’s ruling was not required to address whether Maloney’s judicial decisions were deserving
of deference because it resolved the case on other grounds. Id.
The Court shares Judge Gottschall’s concerns.3 It is not lost on the Court that under the
AEDPA, the Court must afford judicial deference to the rulings of a judge “shown to be thoroughly
steeped in corruption” of his judicial office. Bracy, 520 U.S. at 909.
But, the AEDPA appears to provide no safe harbor for this situation. In a different
context, the Supreme Court instructed that “[b]y its terms, § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in the state court, subject only to the exceptions of §§ 2254(d)(1) and
(2).” Harrington, 562 U.S. at 98. There is nothing in the language of the AEDPA that suggests
the Court should not apply the AEDPA standard even when that means having to defer to a corrupt
judge’s rulings.
This Court finds, however, that the AEDPA is not outcome determinative on
issues involving Maloney’s judicial decisions as even if Court reviewed the claims involving
Maloney’s rulings without any deference to him, it would still reject Petitioner’s claims.
3.
Petitioner’s Fourth Amendment Claim
In denying Petitioner’s Fourth Amendment claim, Maloney held that there was “abundant”
probable cause for the arrest, and exigent circumstances supported the warrantless arrest of
3 The Court, of course, has no similar reservation in applying the AEDPA to claims that
Maloney had no involvement in adjudicating in the jury trial.
36
Petitioner at his home. Direct Appeal, 522 N.E.2d at 1152. The Supreme Court of Illinois agreed
there was probable cause. Id. at 1153. On the exigent circumstances question, the Court was
less definitive, stating instead that Maloney’s exigent circumstances finding was not against the
manifest weight of the evidence. Id.
To arrest a person in his home, there must be: (1) probable cause and a warrant; (2) in the
absence of a warrant, probable cause and exigent circumstances; or (3) consent. New York v.
Harris, 495 U.S. 14, 16 (1990); Payton v. New York, 445 U.S. 573, 590 (1980). A warrantless
arrest at a home that is supported by probable cause does not render the continued custody of the
arrestee unlawful once he is taken from his home. Harris, 495 U.S. at 18.
There is no doubt there was probable cause for Petitioner’s arrest.
Tullio Infelise
identified “Robert Gott,” or “Gotch” as the assailant immediately after being freed from the trunk.
Direct Appeal, 522 N.E.2d at 1151. The victim was found inside a trunk, shot, hands bound
behind his back, and next to his dead uncle’s body. Id. at 1155-56. He repeated his identification
of Petitioner multiple times throughout that day, including saying it was “Robert Gacho” who shot
him. Id. at 1152. The police’s investigation learned from Infelise’s brother, Frank, that the
victims might have gone to Petitioner’s house the night before. Id.
To find probable cause, the arresting officer must know sufficient facts that, when
considering the totality of the circumstances, would lead a reasonable person to believe that the
arrestee committed a crime. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). The victim
identified the Petitioner as the man who shot him, and the victim’s brother suggested that the
victims were at Petitioner’s home the night before. There was probable cause to support the
arrest.
37
New York v. Harris, 495 U.S. 14 (1990), controls the rest of the analysis. As the police
in this case had “probable cause to arrest [Petitioner], the exclusionary rule does not bar the State’s
use of a statement made by [Petitioner] outside of his home” regardless of whether his original
arrest was proper. Id. at 21. There is no Fourth Amendment infirmity in light of Harris. Claim
F is denied.
G.
Claim G
Petitioner next asserts a Fifth Amendment claim, contending that the police continued to
question him at the police station following his arrest despite his request for a lawyer. This claim
was adjudicated on direct appeal.
Petitioner testified at the suppression hearing that the police continued asking questions
during the interrogation even though he requested to speak to a lawyer. Direct Appeal, 522
N.E.2d at 1153. The officers allegedly ignored his request, and one officer repeatedly told him
that he had been involved in a shooting.
Id.
The officer also allegedly physically struck
Petitioner, and told Petitioner to not tell the assistant state’s attorney coming to take Petitioner’s
statement that the police assaulted him. Id. Petitioner conceded that he was able to use the phone
prior to speaking to the assistant state’s attorney. Id. Petitioner called a friend about finding a
lawyer, but he could not reach the friend. Id. He also conceded he did not tell the assistant state’s
attorney about not getting in touch with his friend, and did not request a lawyer from the assistant
state’s attorney. Id.
The officers testified that they read Petitioner his Miranda rights, and then he
acknowledged and waived them.
Id.
The officers denied assaulting Petitioner.
assistant state’s attorney said that Petitioner made no complaints to him. Id.
38
Id.
The
Maloney found the officers credible, and Petitioner incredible. Id. at 1154. The Supreme
Court of Illinois affirmed that ruling. Id. Petitioner now challenges this ruling, arguing his
request for an attorney was not respected. Notably, he does not raise any argument regarding the
alleged physical abuse by the officers.
When an accused invokes his right to counsel during a custodial interrogation, the police
must cease questioning until counsel is made available to the defendant and he initiates further
communication with the police. Edwards v. Arizona, 451 U.S. 477, 484 (1981); Miranda v.
Arizona, 384 U.S. 436, 474 (1966). However, once a suspect knowingly and voluntarily waived
his Miranda rights, the police may continue questioning until the suspect makes a clear request for
an attorney. Davis v. United States, 512 U.S. 452, 459 (1994); Edwards, 451 U.S. at 485.
Thus, the question is whether Petitioner invoked his right to counsel as he claims. The
record supports the view that Petitioner did not invoke his right to counsel. Notably, Petitioner
admitted that he never told anyone that he was unable to contact his friend during his phone call
in police custody. Additionally, there is no dispute that Petitioner failed to tell the Assistant
State’s Attorney about his alleged desire to have a lawyer. These factual findings are due a
presumption of correctness under the AEDPA, 28 U.S.C. § 2254(e)(1), and even outside of the
AEDPA under de novo review the Court would still find the state supreme court ruling proper.
Finally, even if the statement was wrongfully admitted in violation of Miranda, the error
is harmless. An error is harmless unless it has a substantial and injurious effect or influence in
determining the jury’s verdict.
Fry v. Pliler, 551 U.S. 112, 116 (2007) (citing Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993)).
Even without the confession, the evidence is
39
overwhelming. Tullio Infelise identified Petitioner as the shooter, and Petitioner’s girlfriend
testified at length about Petitioner’s involvement in the crime. Claim G is denied.
H.
Claim H
Petitioner alleges a prospective juror was improperly excluded pursuant to Witherspoon v.
Illinois, 391 U.S. 510 (1986). Respondent is correct that the claim is procedurally defaulted
because the claim was not properly preserved at trial, and only reviewed on appeal via plain error.
Direct Appeal, 522 N.E.2d at 1154-55.
Illinois law requires a defendant to make both a contemporaneous objection and preserve
the issue in a timely post-trial motion. Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005).
Claims that are not properly preserved in the Illinois trial courts are reviewed only under plain
error. Kaczmarek v. Rednour, 627 F.3d 586, 594 (7th Cir. 2010). The failure to bring a proper
objection and preserve the issue for appeal is an adequate and independent state procedural ground
of review resulting in procedural default of the claim in the federal habeas corpus proceeding. Id.
The fact that the state court engaged in a plain error review does not defeat the procedural default.
Id. Furthermore, as explained above, Petitioner cannot excuse his defaults through either cause
and prejudice, nor fundamental miscarriage of justice. Claim H is denied.
I.
Claim I
Petitioner next challenges the introduction at his trial of Tullio Infelise’s out of court
statements given to the police immediately after he was rescued from the car trunk. The forest
preserve officer asked Infelise, “who did this to you?” when Infelise was rescued from the trunk.
Direct Appeal, 522 N.E.2d at 1155. Infelise responded “Robert Gott or Gotch.” Id. The
40
statement was permitted at trial under the spontaneous declaration exception to the hearsay rule.
Id.
To the extent that Petitioner seeks to challenge the application of Illinois evidentiary rules
at his trial, he is barred because errors in state law are not cognizable in a federal habeas corpus
proceeding. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is true that evidentiary errors can
rise to the level of a due process violation, but only if the “error produced a significant likelihood
that an innocent person has been convicted.” Anderson v. Sternes, 243 F.3d 1049, 1054 (7th Cir.
2001). As previously explained, the evidence of Petitioner’s guilt is overwhelming.
The introduction of an out of court statement does implicate the Sixth Amendment
confrontation right, and although Petitioner’s argument appears to be mostly regarding hearsay,
he does make a reference to the Sixth Amendment in his petition. The Supreme Court of Illinois’s
decision on direct appeal, which is the relevant decision for this Court’s analysis under the
AEDPA, was issued in 1988. The controlling standard regarding this claim is from Ohio v.
Roberts, 448 U.S. 56 (1980).
Despite being subsequently overruled by Crawford v. Washington, 541 U.S. 36 (2004), the
Court must apply Roberts in this case for two reasons. First, the AEDPA requires that the Court
evaluate whether the state court decision conflicted with clearly established federal law from the
Supreme Court at the time of the relevant decision. Shoop v Hill, 139 S. Ct. 504, 506 (2019).
The Court applies Roberts, not Crawford, because Roberts was the controlling precedent at the
time of the Supreme Court of Illinois’s decision in 1988. Smith v. McKee, 598 F.3d 374, 387 (7th
Cir. 2010) (applying Roberts instead of Crawford because Roberts was the controlling precedent
at the time of the relevant state court decision). Second, Crawford does not apply retroactively in
41
a habeas corpus proceeding under Teague v. Lane, 489 U.S. 288 (1989). Whorton v. Bockting,
549 U.S. 406, 409 (2007).
Under Roberts, an out of court statement by an unavailable witness is admissible at trial so
long as the statement “bore ‘adequate indicia of reliability.’” Ohio v. Clark, 135 S. Ct. 2173, 2179
(2015) (quoting Roberts, 448 U.S. at 66). “Such indicia are present” “‘if the evidence falls within
a firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’” Clark,
135 S. Ct. at 2179 (quoting Roberts, 448 U.S. at 66).
Infelise was unavailable because he died prior to Petitioner’s trial. Furthermore, his
statement bore adequate indicia of reliability because spontaneous declaration is a firmly rooted
hearsay exception under Roberts. White v. Illinois, 502 U.S. 346, 355-56 n.8 (1992) (recognizing
spontaneous declaration is a firmly rooted hearsay exception under Roberts); Smith v. Fairman,
862 F.2d 630, 636 (7th Cir. 1988) (same).
Petitioner counters that the statement does not qualify under the spontaneous declaration
exception to hearsay because Infelise’s statement was made six and half hours after he was shot.
“The spontaneous declaration exception applies to ‘a statement related to a startling event or
condition made while the declarant was under the stress of excitement caused by the event or
condition.’” White, 502 U.S. at 350 n.1 (quoting Illinois v. White, 555 N.E.2d 1241, 1246 (Ill.
App. Ct. 1990)). While a lapse in time is relevant, all that is required is that the “‘statement be
made contemporaneously with the excitement resulting from the event, not necessarily with the
event itself.’” Smith v. Fairman, 862 F.2d 630, 636 (7th Cir. 1988).
While six and half hours elapsed between the shooting and Infelise’s statement, he was
rescued from the trunk moments before he made the statement. Infelise, who was robbed,
42
kidnapped, bound, shot, bleeding, and stuffed in a trunk with his murdered uncle for six and half
hours before his rescue, was clearly under the stress of the startling condition when he made the
statement immediately upon being rescued from the trunk. Because, the statement was properly
admitted under the spontaneous declaration exception, there is no confrontation issue under
Roberts. Claim I is denied.
J.
Claim J
Petitioner challenges the prosecution’s closing argument regarding a statement by Infelise
given to the police at the hospital following his rescue from the car trunk. Infelise was taken to
the hospital following his rescue from the trunk. The police officer leading the investigation went
to the hospital to speak to Infelise, who told the officer that Petitioner was the assailant. Direct
Appeal, 522 N.E.2d at 1158. The officer then went to Chicago to look for Petitioner. Id.
Maloney granted Petitioner’s pretrial motion in limine to bar the introduction of Infelise’s
statement identifying Petitioner given to the police at the hospital.
Id.
The prosecution,
however, was allowed to elicit from the officer at trial that he went to the hospital to speak to
Infelise, and then went to Chicago to look for Petitioner. Id.
In closing arguments, the prosecutor summarized the officer’s testimony as the officer got
“that defendant’s name from the lips of Tullio Infelise” while he was at the hospital.
Id.
Maloney sustained Petitioner’s objection, but denied the mistrial motion. Id. The prosecution
went on to point out that the officer also obtained information about Petitioner from police records.
Id. Petitioner now challenges the trial testimony and the prosecutor’s closing argument.
There is no constitutional issue as to the trial testimony. As the Supreme Court of Illinois
recognized, there was no hearsay in the officer’s trial testimony because he limited his testimony
43
to the course of his investigation without including Infelise’s statement at the hospital. Direct
Appeal, 522 N.E.2d at 248.
There is no due process issue because there was no error.
Additionally, there is no confrontation clause issue because the confrontation clause is not
implicated by non-hearsay statements. Tennessee v. Street, 471 U.S. 409, 417 (1985).
The Supreme Court of Illinois correctly recognized that the prosecutor’s comments at
closing argument were improper. Direct Appeal, 522 N.E.2d at 249. That court went onto hold
the error did not result in reversable error. Id. The court, however, did not apply the Chapman
v. California, 386 U.S. 18 (1967), standard instead applying Illinois’s plain error standard. Direct
Appeal, 522 N.E.2d at 249. This is a mistake, but is not sufficient to grant habeas corpus relief.
Illinois courts review under the plain error standard when a claim is not preserved for
appellate review. Kaczmarek, 627 F.3d at 594. Here, the defense attorney made a timely
objection to the prosecutor’s argument. The state supreme court opinion does not hold that the
claim was not properly preserved. The state court erred by applying plain error when it should
have applied Chapman. The ruling is contrary to Chapman under 28 U.S.C. § 2254(d)(1).
However, Petitioner must still meet the Brecht standard. Davis v. Ayala, 135 S. Ct. 2187, 219899 (2015) (explaining that even when the state court errs in applying Chapman, the federal habeas
corpus court must still perform he Brecht analysis).
Despite the error, Petitioner cannot meet the Brecht standard of showing the error had a
substantial and injurious effect or influence in determining the jury’s verdict. 507 U.S. at 631.
As previously discussed, the evidence of Petitioner’s guilt is overwhelming. Infelise identified
Petitioner as the assailant immediately upon being freed from the trunk. Petitioner confessed to
the police, and his girlfriend testified to the crime. Claim J is denied.
44
K.
Claim K
Petitioner challenges the sufficiency of the evidence regarding Infelise’s murder. Infelise
survived for 16 days following the shooting. Direct Appeal, 522 N.E.2d at 1156. He would die
from his gunshot wounds and, secondarily, massive blood clots in his lungs. Id. Although the
blood clots were the immediate cause of death, the autopsy doctor testified at trial that the gun
shots were the “real cause.” Id. Infelise required extensive surgery due to his gunshot wounds.
Id. He developed the blood clots due to the surgery for the wounds. Id. Without the gunshots
wounds, there would have been no surgery, and no blood clots in his lungs. Id.
In rejecting the sufficiency of the evidence challenge on direct appeal, the Supreme Court
of Illinois explained that Petitioner’s act did not need to be the sole and immediate cause of a
Petitioner’s death. Id. Thus, it was up to the jury to determine if there was a causal connection
between the gunshots and Petitioner’s death. Id.
Petitioner argues in the present claim that Infelise did not die from his gunshot wounds.
He claims the doctor admitted on cross examination that Infelise seemed to be on the road to
recovery, being up and around at the hospital, before he died.
The Court’s applies a “twice-deferential standard” in reviewing the state court’s ruling on
the sufficiency of the evidence claim. Parker v. Matthews, 567 U.S. 37, 43 (2012) (per curiam).
First, the Court must defer to the verdict. “‘[I]t is the responsibility of the jury --- not the court --to decide what conclusions should be drawn from evidence admitted at trial.’” Parker, 567 U.S. at
43 (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)). “The evidence is sufficient to
support a conviction whenever, ‘after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime beyond
45
a reasonable doubt.’” Parker, 567 U.S. at 43 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)) (emphasis in original). Second, the Court defers to the state court ruling under the
AEDPA. 28 U.S.C. § 2254(d).
Petitioner’s sufficiency of the evidence argument is rejected. The autopsy doctor opined
that Infelise died from his gunshot wounds. The jury could reasonably credit the doctor’s
testimony. Infelise would not have had multiple surgeries had he not been shot. The blood clots
that killed Infelise are a direct result of the gunshot wounds. Claim K is denied.
L.
Claim L
Petitioner argues that Maloney erred in allowing the prosecution to cross examine him on
matters outside the scope of direct examination, and that these topics unduly prejudiced him before
the jury. He alleges improper cross examination as to: (1) his use of cocaine; and, (2) letters he
wrote to De Wulf while in pretrial custody at the Cook County Jail.
As to the cocaine issue, the Supreme Court of Illinois held that the issue was not preserved
through a timely objection and post trial motion. Direct Appeal, 522 N.E.2d at 1157. This
resulted in procedural default of the issue.
Kaczmarek, 627 F.3d at 594.
As previously
explained, Petitioner cannot demonstrate cause and prejudice, or fundamental miscarriage of
justice. This argument is denied.
The Court turns to the merits of the other two arguments in this claim. As a general
principle, the scope of cross examination involves a non cognizable question of state evidentiary
law. Estelle, 502 U.S. at 67-68. However, the cross examination of a criminal defendant can
implicate constitutional concerns.
46
A defendant’s privilege against self-incrimination is waived when the defendant chooses
to take the stand on his own behalf at trial. Ohler v. United States, 529 U.S. 753, 759 (2000);
McGautha v. California, 402 U.S. 183, 215 (1971).
Following his direct testimony, the
prosecution may conduct cross examination on matters reasonably related to the subject of his
direct examination. Ohler, 529 U.S. at 759; McGautha, 402 U.S. at 215.
The use of Petitioner’s letters to De Wulf on cross examination was proper. De Wulf is a
primary source of evidence against Petitioner. Petitioner testified on direct examination that he
and De Wulf stopped dating in October 1982, but she still came around to see him at his auto shop.
Direct Appeal, 522 N.E.2d at 1151. This conflicted with De Wulf’s testimony that she was
Petitioner’s girlfriend at the time of the killings. Id.
The issue of De Wulf and Petitioner’s relationship goes to the question of De Wulf and
Petitioner’s truthfulness. Their relationship was relevant because the jury could reasonably
believe that Petitioner would turn to someone he was dating for help, or alternatively a spurned
lover would have a reason to lie.
The letter Petitioner wrote to De Wulf while at the Cook County Jail following his arrest
demonstrated that De Wulf was truthful on this point. Petitioner signed one letter, “Love, your
future husband, Bob,” and in another he writes, “Hi, Sweetheart, I love you.” Id.
Further, Petitioner denied any involvement in the murders. Id. at 1151. The prosecution
permissibly used the letters to show Petitioner’s consciousness of guilt. In one letter, Petitioner
wrote De Wulf encouraging her to not testify, saying the defense attorneys “set their case up
knowing and hoping you wouldn’t be in court.” Id. at 1158. He also encouraged her to leave
47
Chicago and stay away. Id. at 1157. She stayed with her sister in Arkansas for a period before
the trial. Id. Petitioner wrote De Wulf that he hoped to escape. Id.
The letters were used to rebut Petitioner’s direct examination testimony denying his
involvement in the murders, and that he was dating De Wulf at the time of the murders.
Petitioner’s Fifth Amendment rights were not implicated because the cross examination was
reasonably related to subjects covered in his direct examination. Finally, even if there was an
error in the scope of cross examination, consistent with the explanation in prior sections, Petitioner
cannot satisfy the Brecht standard. Claim L is denied.
M.
Claim M
Petitioner next challenges the introduction of De Wulf’s prior consistent statement to
bolster her credibility. De Wulf was cross examined regarding whether she provided testimony
implicating Petitioner out of fear of being charged with perjury. Direct Appeal, 522 N.E.2d at
1159. She originally gave a statement during the investigation to the state’s attorney’s office, but
a week later gave a statement to Petitioner’s attorney stating she lied in the first statement out of
fear of arrest. Id. The first statement was then introduced to rebut the argument that she was
fabricating and testifying at trial only out of fear of prosecution. Id. The state supreme court
held that the statement was made prior to the existence of any concern she had regarding being
charged with a crime. Id. Petitioner believes the introduction of this statement is improper.
Petitioner’s argument does not implicate a constitutional concern. The introduction of De
Wulf’s out of court statement does not implicate the Confrontation Clause because she was
available to testify and be cross examined. California v. Green, 399 U.S. 149, 164 (1970).
Additionally, although the Supreme Court has not spoken to the question of whether the admission
48
of this evidence violates due process or some other type of constitutional concern, it has held, as a
matter of the Federal Rules of Evidence, that prior consistent statements are permissible to rebut a
charge of fabrication or improper motive. Tome v. United States, 513 U.S. 150, 157-58 (1995)
(citing Fed. R. Evid. 801(d)(1)(B)). The Court finds that there is no due process constitutional
concern with the introduction of these statements in Petitioner’s state criminal cases, when federal
courts allow the introduction of this type of statement. Henyard v. Butler, No. 15 C 2324, 2016
WL 5171783, at *9 (N.D. Ill. Sept. 21, 2016). Claim M is denied.
N.
Claim N
Petitioner next challenges the cross examination of his wife, and associated testimony by
Officer James Coakley. Direct Appeal, 522 N.E.2d at 1161. Petitioner confessed at the police
station following his arrest, but repudiated the confession at trial. Id. at 1151. Mrs. Gacho
testified in support of Petitioner’s position by detailing her treatment at the police station on the
same evening that Petitioner confessed. Id. at 1160. She testified that she told the police
Petitioner was home that evening, and that she fell asleep in the bedroom. Id.
According to
Mrs. Gacho, her treatment by the police was “‘more like they were telling me what happened, and
I was supposed to agree with them.’” Id.
The prosecution tendered Officer Coakley as a rebuttal witness to Mrs. Gacho’s testimony.
Id.
Coakley testified that Mrs. Gacho told him that evening at the police station that the
defendants --- Sorrentino, Titone, and Petitioner --- were sitting at the kitchen table in Petitioner’s
home at 9:30 p.m. on the evening of the murders. Id. Petitioner retrieved a .38 caliber handgun
from the bedroom that he gave to Sorrentino. Id.
49
According to Coakley, Mrs. Gacho told him that she overheard pieces of the assailants’
conversation in which they discussed robbing the victims. Id. The victims arrived at the home
and the five men smoked cocaine from pipes. Id. She went to the bathroom to clean the pipes,
and found the men were gone when she returned to the kitchen. Id. Petitioner told his wife that
the two victims were in the basement.
Id.
She then went to bed.
Id.
Coakley denied
threatening Mrs. Gacho or threatening to take her children away. Id.
The Supreme Court of Illinois held that Coakley’s testimony was proper impeachment
because it went to the subject of Mrs. Gacho’s testimony. Id. at 1161. Furthermore, that court
rejected Petitioner’s argument that Maloney should have instructed the jury that that Coakley’s
testimony was to be only considered for impeachment purposes, and not substantive evidence,
because that argument was not preserved on appeal. Id. Petitioner now renews these arguments
before this Court that it was improper to allow Coakley to testify as to Mrs. Gacho’s statement
implicating Petitioner, and also that Maloney should have issued a limiting instruction to the jury.
To the extent that Petitioner is challenging the state’s evidentiary ruling as a matter of
state law, that argument is not cognizable in a federal habeas corpus proceeding. Estelle, 502 U.S.
at 67-68. Further, any alleged error does not implicate due process because it does not result in a
“significant likelihood that an innocent person has been convicted.” Anderson, 243 F.3d at 1054.
The Supreme Court of Illinois was correct that Coakley’s impeachment testimony is
proper. Petitioner repudiated his confession, and Mrs. Gacho testified regarding alleged police
mistreatment that she received at the same time. Petitioner presented Mrs. Gacho’s testimony to
bolster his own allegations of police misconduct that he was using to challenge the confession.
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The prosecution had a right to respond by presenting the statement that Mrs. Gacho gave them at
that time that was in conflict with Mrs. Gacho’s testimony.
Moreover, the introduction of Coakley’s statement to impeach Mrs. Gacho is a collateral
matter that does not alter the fact that there is overwhelming evidence of Petitioner’s guilt,
including Infelise’s statements that Petitioner was the assailant, and De Wulf’s testimony.
Finally, Respondent is correct that an argument regarding the lack of a limiting instruction
to the jury is procedurally defaulted because it was not properly preserved before the Supreme
Court of Illinois. Kaczmarek, 627 F.3d at 594. And, as explained above, Petitioner cannot
excuse his default through cause and prejudice, nor fundamental miscarriage of justice. Claim N
is denied.
O.
Claim O
Petitioner next challenges the introduction of a .38 caliber Charter Arms gun recovered
from the bedroom dresser at his home. Direct Appeal, 522 N.E.2d at 1161. Petitioner argues this
gun was improperly introduced at trial because it is his wife’s gun and is unrelated to the case.
There are four guns discussed in the case: (1) the aforementioned .38 Charter Arms; (2) a
.25 caliber automatic recovered at the crime scene; (3) a Smith and Wesson .38 special revolver
also recovered at the crime scene; and, (4) a Colt Python .357 magnum that Petitioner carried with
him when riding with De Wulf that was also recovered at Petitioner’s home. Id.
The Supreme Court of Illinois found the claim was waived because it was not properly
preserved at trial. The claim is procedurally defaulted. Kaczmarek, 627 F.3d at 594. As
explained above, Petitioner cannot excuse his default through either cause and prejudice, nor
fundamental miscarriage of justice.
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Moreover, the claim is also meritless. To the extent that Petitioner is challenging the
state’s evidentiary ruling as a matter of state law, that argument is not cognizable in a federal
habeas corpus proceeding. Estelle, 502 U.S. at 67-68. Further, any alleged error does not
implicate due process because it does not result in a “significant likelihood that an innocent person
has been convicted” in light of the overwhelming evidence against Petitioner. Anderson, 243 F.3d
at 1054. Claim O is denied.
P.
Claim P
Petitioner next challenges the use of a medical record from Cermak Health Services, the
medical facility serving Cook County Jail inmates, at his trial. As mentioned above, Petitioner
repudiated his confession at trial, asserting that the police coerced his confession through physical
and mental coercion. The prosecution called Andre Watkins, an emergency medical technician
who examined Petitioner at Cermak. Direct Appeal, 522 N.E.2d at 1161. Watkins testified as to
Petitioner’s physical condition on January 6, 1983, approximately three weeks after he was taken
into police custody and following his confession. Id. The challenged confession occurred the
day Petitioner was taken into custody.
Watkins based his testimony on a medical report that was not entered into evidence. Id.
Watkins was asked the name of the inmate appearing on the report. Id. He responded, “Robert
Gacho, also known as Robert Gotch.” Id. at 1162. Petitioner objected and moved for a mistrial
arguing there was no evidence he was ever known as Robert Gotch. Id. Maloney granted the
objection and instructed the jury to disregard the portion of the testimony regarding the “also
known as” material. Id.
The Supreme Court of Illinois rejected Petitioner’s challenge, holding
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that Watkins’ testimony was relevant and admissible, and he was subject to in-court cross
examination. Petitioner now renews the argument.
The claim is meritless. To the extent that Petitioner is challenging the state’s evidentiary
ruling as a matter of state law, that argument is not cognizable in a federal habeas corpus
proceeding. Estelle, 502 U.S. at 67-68. Further, any alleged error does not implicate due process
as it does not result in a “significant likelihood that an innocent person has been convicted” in light
of the overwhelming evidence against Petitioner. Anderson, 243 F.3d at 1054.
Maloney instructed the jury to disregard the “also known as” testimony. Jurors are
presumed to follow their instructions. Blueford v. Arkansas, 566 U.S. 599, 606 (2012). The
Supreme Court of Illinois was correct that the rest of the testimony was proper. Petitioner
repudiated his confession at trial arguing it was coerced. The prosecution rightfully presented
evidence regarding Petitioner’s physical condition a few weeks later in an attempt to show there
was no medical support for his allegations. And, as mentioned above, the evidence of Petitioner’s
guilt is overwhelming. Claim P is denied.
Claim Q
Petitioner challenges the prosecution’s closing arguments regarding the proof beyond a
reasonable doubt standard.
The prosecutor stated, “There’s nothing magical about proving
someone guilty beyond a reasonable doubt. It happens every time a person is convicted in this
courtroom. It happens in every courtroom in this building, in every criminal court building in this
country, every county in this state and every state in this country.” Direct Appeal, 522 N.E.2d at
1162. The Supreme Court of Illinois concluded the comments were proper because they did not
reduce the burden of proof. Id.
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The challenged prosecutorial comments are reviewed under Darden v. Wainwright, 477
U.S. 168 (1986). Bartlett v. Battaglia, 453 F.3d 796, 801 (7th Cir. 2006). Under Darden, the
Court considers: (1) whether the statements were improper; and, (2) whether Petitioner was
prejudiced? Bartlett, 453 F.3d at 802 (citing Ruvalcaba v. Chandler, 416 F.3d 555, 565 (7th Cir.
2005)).
Prejudice is evaluated by considering: (1) whether the prosecution misstated the
evidence; (2) whether the remark implicated a specific right of the accused; (3) whether the defense
invited the response; (4) the trial court’s instructions; (5) the weight of the evidence against
Petitioner; and, (6) Petitioner’s opportunity to respond. Bartlett, 453 F.3d at 802 (citing Darden,
477 U.S. 181-82; Howard v. Gramley, 225 F.3d 784, 793 (7th Cir. 2000)).
The Court cannot find that the statement was improper under the deferential AEDPA
standard. The prosecution made an accurate statement that does not misstate the burden of proof.
See Gray v. Garza, No. CV 18-613-DSF (KK), 2018 WL 4961659, at *6 (C.D. Cal. Aug. 17,
2018). But, one is “playing with fire” when making an argument that may improperly alter the
reasonable doubt standard. United States v. Langer, 962 F.2d 592, 600 (7th Cir. 1992). For
example, the prosecutor’s argument could arguably be construed to imply that convictions are so
widespread and routine that the jury need not give much thought to its job. However, as this case
is before the Court on the deferential AEDPA standard, the Court concludes the state court’s
determination that there was no error with the prosecutor’s comment is not an unreasonable
determination.
Additionally, in considering the six factors for evaluating prejudice, the Court finds the
factor of the weight of the evidence against Petitioner dispositive. As previously mentioned, the
weight of the evidence against Petitioner is overwhelming, including his identification by the
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victim, Petitioner’s own confession, and Petitioner’s girlfriend’s testimony. See Calhoun v.
Peters, No. 93 C 6897, 1996 WL 535193, at *5 (N.D. Ill. Sept. 18, 1996) (holding that
prosecution’s argument of “reasonable doubt happens every single day in this country,” did not
result in prejudice due to the overwhelming nature of the evidence against the prisoner). Claim
Q is denied.
R.
Claim R
Petitioner’s final argument is that his appellate attorney on direct appeal was ineffective
for failing to raise the claims that he now asserts in Claims B through E. Petitioner failed to
preserve this argument before the Illinois courts, resulting in procedural default. Boerckel, 526
U.S. at 842-46. As explained above, Petitioner cannot excuse his defaults through either cause
and prejudice or fundamental miscarriage of justice.
Beyond the default, Petitioner’s attorney could not raise Claims B, C and D and parts of
Claim E on direct appeal because they involved matters outside the trial record. See Illinois v.
Ligon, 940 N.E.2d 1067, 1074-75 (Ill. 2010) (instructing that ineffective assistance of counsel
arguments may be brought on direct appeal only when they are supported by the record, and those
that are not should be brought in a postconviction petition). Claim R is denied.
All claims are denied. The habeas corpus petition is denied on the merits.
III.
Certificate of Appealability and Notice of Appeal Rights
The Court grants a certificate of appealability as to Claim B, the judicial bias claim, and
declines to issues a certificate of appealability as to all other claims.
For a certificate of
appealability to issue, Petitioner must make a substantial showing of the denial of a constitutional
right, or that reasonable jurists could debate, much less disagree, with this Court’s resolution of
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Petitioner’s claims. Arredondo v. Huibregtse, 542 F.3d 1155, 1165 (7th Cir. 2008) (citing 28
U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Barefoot v. Estelle, 463 U.S.
880, 893 & n.4 (1983)). The Court concludes that reasonable jurists could debate the Court’s
resolution of the judicial bias claim, but not of any other claim in this case.
Petitioner is advised that this is a final decision ending his case in this Court. If Petitioner
wishes to appeal, he must file a notice of appeal with this Court within thirty days of the entry of
judgment. See Fed. R. App. P. 4(a)(1). Petitioner need not bring a motion to reconsider this
Court’s ruling to preserve his appellate rights.
However, if Petitioner wishes the Court to
reconsider its judgment, he may file a motion under Federal Rule of Civil Procedure 59(e) or 60(b).
Any Rule 59(e) motion must be filed within 28 days of the entry of this judgment. See Fed. R.
Civ. P. 59(e). The time to file a motion pursuant to Rule 59(e) cannot be extended. See Fed. R.
Civ. P. 6(b)(2). A timely Rule 59(e) motion suspends the deadline for filing an appeal until the
Rule 59(e) motion is ruled upon. See Fed. R. App. P. 4(a)(4)(A)(iv). Any Rule 60(b) motion
must be filed within a reasonable time and, if seeking relief under Rule 60(b)(1), (2), or (3), must
be filed no more than one year after entry of the judgment or order. See Fed. R. Civ. P. 60(c)(1).
The time to file a Rule 60(b) motion cannot be extended. See Fed. R. Civ. P. 6(b)(2). A Rule
60(b) motion suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon
only if the motion is filed within 28 days of the entry of judgment.
See Fed. R. App. P.
4(a)(4)(A)(vi).
IV.
Conclusion
The habeas corpus petition (Dkt. 1.) is denied on the merits. Any pending motions are
denied as moot. The Court grants a certificate of appealability as to Claim B, the judicial bias
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claim, as reasonable jurists could debate the Court’s resolution of that claim. The Court declines
to issue a certificate of appealability as to all other claims. The Clerk is instructed to enter a
judgment in favor of Respondent and against Petitioner.
Civil Case Terminated.
ENTERED:
Dated: October 29, 2019
____________________________________
ROBERT W. GETTLEMAN
United States District Judge
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