Milone v. Camp

• Decision Date: 21 April 1994
• Docket Number: No. 92-3742,92-3742
• Parties: Richard MILONE, Petitioner-Appellant, v. Althea CAMP, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 693

22 F.3d 693

Richard MILONE, Petitioner-Appellant, v. Althea CAMP, Warden, Respondent-Appellee.

No. 92-3742.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 14, 1994.

Decided April 21, 1994.

Luis Kutner, John Thomas Moran, Jr. (argued), Chicago, IL, for petitioner-appellant.

Mark L. Rotert, Asst. U.S. Atty., Terence M. Madsen, Asst. Atty. Gen., Margaret O'Connor (argued), Office of the Atty. Gen., Crim. Appeals Div., Chicago, IL, for respondent-appellee.

Before CUMMINGS, BAUER and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

This is an appeal from the denial of a writ of habeas corpus. The Court has jurisdiction over the appeal pursuant to 28 U.S.C. Secs. 1291 and 2253. Because petitioner has not demonstrated that any constitutional error infected his state court trial, the dismissal of his petition is affirmed.

Background

On August 2, 1973, petitioner Richard Milone ("Milone") was convicted at a bench trial in DuPage County, Illinois of the murder of Sally Kandel, a fourteen-year-old girl who had been found dead in a cornfield on September 13, 1972, apparently bludgeoned to death early the previous evening. ¹

Milone appealed his conviction to the Illinois Appellate Court, which affirmed. People v. Milone, 43 Ill.App.3d 385, 2 Ill.Dec. 63, 356 N.E.2d 1350 (2d Dist.1976). That opinion ² detailed the evidence presented against him at trial (43 Ill.App.3d at 386-389, 2 Ill.Dec. 63, 356 N.E.2d 1350):

1) The murder weapon. A Jewel shopping cart handle, later determined to be the murder weapon, was found near Sally's body on the morning that the murder was discovered. Suspicion focused on the employees of D-C Warehouse in Addison, Illinois when the shopping cart handle was positively matched to one of the carts used to transport inventory there. When Milone, an employee of D-C Warehouse, was first interviewed by detectives he denied knowing when or how the handle was removed from the premises. Confronted by contrary statements from his co-workers, Milone later admitted that he had removed the handle from the cart and carried it in his car for protection, but maintained that he had thrown it away in a park two days before the murder. Testimony from the co-workers at trial confirmed that Milone had been seen with the handle in his car and that he had carried it into a park two days prior to the murder, but they could neither confirm nor deny that he had thrown it away.

2) Opportunity. An autopsy of Sally's body revealed that death occurred within two hours of her dinner at 5:15 p.m. on September 12. During his first interview with detectives Milone stated that he left work around 5:30 or 6:00 p.m. the night of the murder; a few days later he said that he had worked until 7:30 or 8:00 p.m. that same evening; another time he said that he had left work for about an hour and a half on September 12 in order to get dinner. One co-worker testified at trial that Milone had left work at around 6:00 p.m. on September 12, and that he had given Milone $5.00 so that Milone could get him a sandwich. He next saw Milone at 7:21. Milone did not have the sandwich. He explained that he had been unable to stop for food because he was busy eluding Addison police who had spotted and chased him because they knew he was driving on a revoked driver's license. At trial Milone stipulated that no such chase had in fact occurred. Another co-worker testified that Milone's car was not in the warehouse lot at 6:00 p.m. the evening of the murder, and that he observed Milone drive up at around 7:20, with combed hair and wearing a different shirt than he had been wearing earlier in the day, looking "cleaned up."

3) Linda Roseboom's testimony. Nine-year-old Linda Roseboom testified at trial that she lived next to the cornfield where Sally's body was found. Between 6:00 and 7:00 p.m. on September 12 she observed a light-colored car with front end damage on the driver's side pull into her driveway and turn around. She saw that the driver was a white male with very long sideburns. According to the Illinois Appellate Court opinion, the record showed that on the evening of the murder Milone wore his sideburns quite long and that he drove a beige 1964 Dodge with damage at the front end on the driver's side. When the police examined the car there was no evidence of the crime, but the front seat and the carpet had recently been scrubbed with soap and water.

4) Bite mark evidence. Sally's body had been mutilated after her death. In addition to severe head injuries, skull fracture, and laceration of the brain, resulting from the fatal beating, and injuries to the hands--including a traumatic amputation of the left thumb and fractures to several fingers, apparently sustained when Sally attempted to ward off the blows to her head--the autopsy revealed that two lacerations, one in the eyelid of each eye, had been symmetrically carved with a sharp instrument after Sally's death. A human bite mark was also discovered on the inside of Sally's right thigh, inflicted some time after death. Dental impressions were taken of Milone's teeth and mouth, and at trial much evidence was adduced by both sides concerning whether Milone's dentition matched the bite mark.

In his state appeal Milone contended, first, that the dental impressions taken from his mouth pursuant to a search warrant were seized in violation of his constitutional rights, second, that the scientific evidence advanced at trial suggesting that his dentition matched the bite mark found on Sally's thigh was not proven to be sufficiently reliable to permit its admission, and third, that the prosecution had not proven his guilt beyond a reasonable doubt. 43 Ill.App.3d at 386, 2 Ill.Dec. 63, 356 N.E.2d 1350. The court rejected these arguments and affirmed the judgment. The Illinois Supreme Court denied leave to appeal, and no petition for a writ of certiorari to the United States Supreme Court was filed.

In 1986--ten years after his state court appeal--Milone petitioned the federal district court to issue a writ of habeas corpus. That court, through Judge Getzendanner, initially granted the state's motion to dismiss on the ground that Milone had failed to exhaust his state remedies in regard to several of the issues raised in his petition. United States ex rel. Milone v. Camp, 643 F.Supp. 679 (N.D.Ill.1986). The court believed that Milone could file an amended petition presenting only exhausted claims to the federal court while simultaneously pursuing his unexhausted claims in state court, without running the risk of being charged with abuse of the writ should he subsequently file a second petition regarding the latter claims. R. 39, interpreting Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Milone thereupon filed an amended petition raising only the issues he had previously presented to the Illinois Appellate Court. R. 51. The parties then agreed to stay the federal proceedings while Milone pursued, not the state post-conviction relief addressed by the district court in its evaluation of his unexhausted claims, but rather executive clemency. R. 61. Clemency was not granted. R. 104. The district court, however, through Judge Plunkett, next allowed Milone to present all of the claims made in his original habeas petition, unexhausted as well as exhausted, on the ground that intervening Supreme Court doctrine suggested that Milone had made a good case for relaxation of the total exhaustion rule. R. 73, 77. Discovery was allowed; depositions were taken. In September 1992 the district court, through Judge Marovich, granted the state's motion to dismiss the petition. This appeal followed.

The district court's conclusions of law are reviewed de novo. Quinn v. Neal, 998 F.2d 526, 528 (7th Cir.1993). Federal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law, not when there has been error under state law. See, e.g., Brewer v. Aiken, 935 F.2d 850, 854-855 (7th Cir.1991). State court findings of historical fact are presumed to be correct, 28 U.S.C. Sec. 2254(d), but "questions of law or mixed questions of law and fact lack that presumption" and are reviewed de novo. Brewer v. Aiken, 935 F.2d at 855. Of course, the de novo standard only applies to questions of federal law, not to purely state-law matters. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503, 53 L.Ed.2d 594 (1977).

Milone urges the Court to apply a de novo standard of review to many of the factual findings described in the Illinois Appellate Court opinion on the ground that his assertions of constitutional error present "mixed questions of law and fact." The force of this reasoning is unclear. This Court will apply a de novo standard to Milone's assertions of constitutional error, of course, but it may not revisit Illinois fact-finding absent a showing--which Milone has not made--that error of the type described in 28 U.S.C. Sec. 2254(d) infected the state court proceedings. ³

Analysis

Milone's arguments to this Court center around the claim that he is actually innocent of the crime of which he was convicted. This opinion will first address the effect of a claim of actual innocence on habeas corpus review of state proceedings, and then it will discuss the merits of Milone's constitutional arguments.

A. Actual Innocence

The parties are unclear as to the effect of a claim of actual innocence on habeas proceedings. Milone urges this Court to take such a claim into account as it examines the record for evidence of unconstitutionality in the state court proceedings. That would be impermissible.

A claim of actual innocence is relevant to determining whether a habeas corpus petition may be brought before a federal tribunal at all; it is not ordinarily cognizable in determining whether the writ should issue. Generally, before a federal court will entertain a habeas petition, the petitioner must meet certain procedural...