Gacho v. Butler

• Decision Date: 02 July 2015
• Docket Number: No. 13–3911.,13–3911.
• Citation: 792 F.3d 732
• Parties: Robert GACHO, Petitioner–Appellant, v. Kim BUTLER, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

792 F.3d 732

Robert GACHO, Petitioner–Appellant

v.Kim BUTLER, Warden, Respondent–Appellee.

No. 13–3911.

United States Court of Appeals, Seventh Circuit.

Argued June 2, 2015.

Decided July 2, 2015.

Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN, for Petitioner–Appellant.

Retha Stotts, Attorney, Office of the Attorney General, Chicago, IL, for Respondent–Appellee.

Before POSNER, EASTERBROOK, and SYKES, Circuit Judges.

Opinion

SYKES, Circuit Judge.

Robert Gacho is one of many Illinois prisoners who had the misfortune to appear before the late Judge Thomas Maloney, a corrupt judge who served on the Cook County Circuit Court from 1977 until his indictment for bribery in 1991 in connection with the Operation Greylord investigation. Gacho was convicted of murder in Judge Maloney's court in 1984 and has been trying to mount state and federal collateral attacks on his conviction since 1991. His most recent federal habeas petition alleges that his conviction was tainted by the judge's corruption and also that his trial attorney was operating under an impermissible conflict of interest and was otherwise ineffective.

Gacho's long quest for state postconviction relief is not yet resolved, however, so he asked the federal court to excuse the normal requirement that he exhaust his state-court remedies. See 28 U.S.C. § 2254(b)(1)(B)(ii). The district judge denied this request and dismissed Gacho's § 2254 petition for lack of exhaustion. Gacho appealed.

We dismiss the appeal for lack of jurisdiction. The district court dismissed the § 2254 petition without prejudice and with leave to refile when the state postconviction proceedings are finished. That's a nonfinal, nonappealable order. Gacho remains free to refile his petition in the district court once he has exhausted his state remedies.

I. Background

After midnight on December 12, 1982, Aldo Fratto and Tullio Infelise paid a visit to Gacho's home hoping to sell him three-quarters of a kilo of cocaine. The next morning Fratto and Infelise were found in the trunk of a car, tied up and shot repeatedly. Fratto was already dead; Infelise was at death's door. Before he died, however, Infelise identified the assailants as “Robert Gotch, Dino and Joe.” Gacho was immediately arrested, along with Dino Titone and Joseph Sorrentino, and he confessed his involvement in the murders that same day, proofreading and signing a written statement.

The three men were charged with murder, aggravated kidnapping, and armed robbery. Gacho and Titone stood trial in Judge Maloney's court; Titone's case was tried to the bench and Gacho's to a jury. (Sorrentino was tried separately.) Gacho's girlfriend Katherine De Wulf was the star witness for the prosecution. She had witnessed the key events of December 12, and her testimony largely aligned with Gacho's confession, which was also admitted at trial.

The jury found Gacho guilty and he was sentenced to death.

As the world now knows, Judge Maloney was corrupt; he has “the dubious distinction of being the only Illinois judge ever convicted of fixing a murder case.” Bracy v. Gramley, 520 U.S. 899, 901, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997). In 1991 he was indicted by a federal grand jury on multiple bribery charges stemming from the Operation Greylord investigation. He was convicted in 1993 and sentenced to a term in federal prison. Gacho claims that Maloney solicited a bribe from him but his family could not raise the money to pay the judge's price. Titone's family, on the other hand, paid Maloney $10,000 to fix his case, but he was convicted anyway.

Gacho now argues that a judge as corrupt as Maloney would surely have needed to compensate for his bribe-induced acquittals by throwing the book at defendants—like him—who either didn't or couldn't pay up. The Supreme Court has recognized this theory of corruption, known as “compensatory bias.” See id. at 905, 117 S.Ct. 1793.

A crooked judge wasn't Gacho's only problem. He also claims that his trial lawyer was unscrupulous. Gacho hired Robert McDonnell, a Chicago attorney with well-known underworld connections; McDonnell was the son-in-law of Sam Giancana, longtime boss of the Chicago Outfit. A prosecutor alerted the court to a possible conflict of interest: McDonnell had previously represented members of the Infelise family, raising an obvious ethical concern given that Gacho stood accused of murdering Tullio Infelise. Gacho waived the conflict on the record, but he now contends that his waiver covered only the conflict created by McDonnell's prior association with the victim's family; he did not know that McDonnell continued to represent a member of the Infelise family at the time of his trial. This continuing conflict of interest and other tactical errors at trial form the basis of Gacho's Sixth Amendment claim that McDonnell's representation was ineffective.

Gacho's death sentence was set aside on direct appeal, see Illinois v. Gacho, 122 Ill.2d 221, 119 Ill.Dec. 287, 522 N.E.2d 1146 (1988), and he returned to Judge Maloney's court for resentencing. The judge imposed a sentence of life. Gacho filed his first state postconviction motion in 1991, as the Operation Greylord indictments were being unsealed. He amended the motion in 1997 and supplemented it more than a decade later in 2008. He raised the same claims he now brings in his § 2254 petition: Maloney was corrupt, and McDonnell was conflicted and ineffective. Illinois moved to dismiss the supplemented state petition, and in 2009 that motion was granted. In 2012 the Illinois Appellate Court reversed in part and remanded the case to the trial court for an evidentiary hearing on Gacho's judicial corruption and conflict-of-interest claims. The hearing took place on August 6, 2013, and on October 6, 2013, the trial court denied Gacho's claims. That latest order is now before the Illinois Appellate Court; briefing was nearly complete when we heard oral argument in this case.

Meanwhile, back in 1997—six years after he filed his first state postconviction petition—Gacho initiated a parallel action in the Northern District of Illinois seeking habeas relief under § 2254. This was followed by a second § 2254 petition in December 1999. In both petitions Gacho sought relief from an “unjustifiable” delay in the state-court proceedings. The district court consolidated the petitions and in November 2001 dismissed them without prejudice, concluding that the delays were the fault of defense counsel and thus Gacho was not eligible for relief from his requirement to exhaust state-court remedies.

Gacho v. Harrington, No. 13 C 4334, 2013 WL 5993458, at *1 (N.D.Ill. Nov. 7, 2013).

In May 2013 Gacho filed another § 2254 petition—his third. He again asked to be excused from the exhaustion requirement because of inordinate delay in the state courts. The district court again denied his request. The judge noted that “[p]roceedings in the state court ... are currently moving at a reasonable rate and there is no inordinate delay that must be remedied by initiating a merits-based review of petitioner's postconviction claims in federal court.” Id. at *2. Since Gacho's state-court remedies were now moving along, the judge dismissed the petition for lack of exhaustion. The dismissal was “without prejudice to petitioner refiling at the conclusion of the state postconviction proceedings.” Id. at *4.

Gacho appealed.¹

II. Discussion

Section 2254 generally requires state prisoners to exhaust available state-court remedies before seeking habeas review in federal court:

(b)(1) An applicant for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the courts of the State; or

(B)(i) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1) (emphases added).

Gacho asks us to intervene in his quest for state collateral relief by excusing the exhaustion requirement and addressing the merits of his due-process and Sixth Amendment claims. He argues that the 25 years he has spent languishing in state postconviction proceedings is an inordinate delay, making the state process “ineffective to protect his rights” within the meaning of subsection (b)(1)(B)(ii) of § 2254.

Gacho's appeal runs into a jurisdictional impediment: The district court dismissed the § 2254 petition without prejudice to refiling once the state postconviction proceedings have run their course. That makes it a nonfinal order. With limited exceptions not relevant here, our jurisdiction extends only to appeals from final decisions of the district court. 28 U.S.C. § 1291 ; see also Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093, 1097 (7th Cir.2008) (“A dismissal without prejudice is normally nonfinal because the plaintiff remains free to refile his case.”).

This is not the first time we have addressed this kind of jurisdictional defect in the context of an unexhausted § 2254 petition. In Moore v. Mote, the district court dismissed a state prisoner's § 2254 petition for failure to exhaust state remedies because his claims remained “pending before a state post-conviction court.” 368 F.3d 754, 755 (7th Cir.2004). But the court had expressly left the door open to reviving the federal case when the state proceedings concluded. The judge dismissed the petition without prejudice and “with leave to refile ... once Moore exhausts his state court remedies.” Id. We held that the court's order was nonfinal and thus not appealable under § 1291 “because it explicitly contemplates the court's continuing involvement in the case.” Id.

Accordingly, we dismissed the appeal for lack of appellate jurisdiction. Id. at 756.

The situation here is identical. Gacho's state postconviction claims remain pending before the Illinois Appellate Court. The district court dismissed his §...