Gacho v. Lawrence
| Decision Date | 29 October 2019 |
| Docket Number | Case No. 17 C 0257 |
| Parties | Robert Gacho, (N44112), Petitioner, v. Frank Lawrence, Acting Warden, Menard Correctional Center, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
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.
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 theresponse 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. Theassailants 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 thevictims 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.
Petitioner raises the following claims in the habeas corpus petition:
A. Claim A
Petitioner asserts inordinate delay in the adjudication of his...
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