Kokoraleis v. Gilmore

Decision Date12 January 1998
Docket NumberNo. 97-2605,97-2605
Citation131 F.3d 692
PartiesAndrew KOKORALEIS, Petitioner-Appellant, v. Jerry GILMORE, Warden, Pontiac Correctional Center, Respondent-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Carol R. Heise, Freedman & Bornstein, Chicago, IL, Alan M. Freedman (argued), Midwest Center for Justice, Ltd., Chicago, IL, for Petitioner-Appellant.

Steven R. Splitt (argued), Office of the Atty. General Criminal Appeals Div., Chicago, IL, for Respondent-Appellee.

Before BAUER, EASTERBROOK and DIANE P. WOOD, Circuit Judges.

EASTERBROOK, Circuit Judge.

Andrew Kokoraleis has confessed to killing as many as 18 women. His confessions narrate a ghastly routine: kidnapping, rape, torture, stabbing victims to death with knives or ice picks, mutilating the corpses, and hiding the remains. Some victims had a breast amputated by piano wire. Kokoraleis and his confederates (his brother Thomas Kokoraleis, Robin Gecht, and Edward Spreitzer) would masturbate on and then eat the victim's breast. A jury convicted Kokoraleis of killing Lorraine Borowski and sentenced him to death. The Supreme Court of Illinois affirmed, 132 Ill.2d 235, 138 Ill.Dec. 233, 547 N.E.2d 202 (1989), and rejected a collateral attack, 159 Ill.2d 325, 202 Ill.Dec. 279, 637 N.E.2d 1015 (1994), as did the district court, 963 F.Supp. 1473 (N.D.Ill.1997). * Kokoraleis presents three arguments to us: that he received ineffective assistance of counsel at sentencing; that another jury's decision not to impose the death penalty for his murder of Rose Beck Davis precludes capital punishment for his murder of Lori Borowski; and that the evidence does not support the conclusion that he is eligible for the death penalty. The latter two arguments seek to preclude any capital resentencing, so we start with them. Because the petition was filed before April 24, 1996, the Antiterrorism and Effective Death Penalty Act is inapplicable. Lindh v. Murphy, --- U.S. ----, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).

Illinois requires the prosecutor to establish a defendant's eligibility for capital punishment. One way to do so is to demonstrate that the defendant killed at least two people and that "the deaths were the result of either an intent to kill more than one person or of separate premeditated acts". 720 ILCS 5/ 9-1(b)(3). (The codification of Illinois law after the trial did not materially change the language; for clarity we use the current citation.) To meet this eligibility requirement, the prosecution introduced into evidence a copy of the judgment convicting Kokoraleis of murdering Davis, a crime the state described as a "separate premeditated act". On direct appeal the Supreme Court of Illinois remarked (138 Ill.Dec. at 249-50, 547 N.E.2d at 219-20):

The multiple-murder aggravating circumstance ... requires that a defendant have been convicted of murdering two or more persons. That was unquestionably proved here. The sentencing jury had found the defendant guilty of the murder of the victim in the present case, Lori Borowski; whether the defendant was guilty of only one other murder or of several other murders could not have affected the jury's determination that he had been convicted of at least two such offenses and that the multiple-murder circumstance therefore was established. As we have seen, defense counsel made no challenge to the evidence of the defendant's prior conviction in Cook County for the murder of Mrs. Davis.

Notwithstanding this observation, Kokoraleis argued in the district court that he is ineligible for capital punishment because the judgment of conviction does not show that "the deaths were the result of either an intent to kill more than one person or of separate premeditated acts". The district judge sensibly replied that this contention--not presented to the state courts on direct appeal or collateral attack--has been forfeited. 963 F.Supp. at 1482. Kokoraleis maintains that, because the Supreme Court of Illinois automatically reviews all death sentences, it is impossible to forfeit a defense. An automatic-review provision removes the possibility of forfeiture by failure to appeal but does not preclude forfeiture by failure to advance a particular argument. Collateral review in federal court is designed for persons who have presented their claims to the state courts; unless they have done so, it is impossible to say that the state failed to honor the accused's constitutional rights. Litigants may decide for themselves which theories to present and which to withhold. A non-decision on a withheld theory does not justify collateral relief--particularly not when the theory is grounded in state rather than federal law, and the state's highest court has announced (albeit in dictum) that the theory is unsound. Kokoraleis was convicted of first-degree murder for Davis's death, and first-degree murder in Illinois requires proof of malice aforethought, which is to say premeditation. Whether a judgment of conviction for another first-degree murder satisfies 720 ILCS 5/9-1(b)(3) is a question of Illinois law, and "[a] federal court may not issue the writ on the basis of a perceived error of state law." Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874, 79 L.Ed.2d 29 (1984). Like the district court, we think it unnecessary to inquire whether the prosecution also established eligibility for capital punishment under the felony-murder circumstance listed in 720 ILCS 5/9-1(b)(6). In Illinois, one circumstance is enough.

Seeking to turn the Davis conviction to his advantage, Kokoraleis contends that the jury's decision in that case to sentence him to life imprisonment precludes a death sentence for the Borowski murder. As he sees it, Illinois is "collaterally estopped" to seek capital punishment a second time for the same series of murders that was before a prior jury. And because Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), holds that the double jeopardy clause incorporates some aspects of collateral estoppel (issue preclusion), Kokoraleis believes that he is entitled to relief under § 2254. This argument was presented to the state's highest court on collateral attack and held to be forfeited because it should have been made on direct appeal. 202 Ill.Dec. at 284, 637 N.E.2d at 1020. The district judge concurred. 963 F.Supp. at 1479-80. Kokoraleis insists that he could not have employed this argument on direct appeal because it depends on the record of the Davis prosecution in Cook County, which was not before the DuPage County court in the prosecution for the Borowski murder. Yet if (as Kokoraleis believes) the record of the Cook County prosecution was not an appropriate subject of judicial notice, then it was the litigant's responsibility to place it before the court. That is, after all, how preclusion defenses are made in civil litigation. A party who seeks the benefit of issue or claim preclusion puts the necessary documents into the record. A litigant who allows the case to reach a final decision cannot later obtain relief under Fed.R.Civ.P. 60(b) by pointing to his own failure to supply the tribunal with the materials needed to make out a defense of preclusion. The Supreme Court of Illinois did no more than apply this understanding to a preclusion defense in a criminal case.

Kokoraleis insists that the state court's decision to enforce its rules of procedure was so freakish that it is not an adequate state ground of decision, even if it is an independent one. See Liegakos v. Cooke, 106 F.3d 1381 (7th Cir.1997). Given what we have said about the normal course of civil litigation, a state court's decision to require a litigant to make an estoppel defense at trial and on direct appeal hardly deserves the appellation "freakish". But because the argument Kokoraleis makes may recur in capital cases, we now indulge the assumption that an exception to the forfeiture doctrine is available and hold, as an alternative ground of decision, that the double jeopardy clause does not prevent a state from selecting a penalty independently for each crime a person commits. This is clear enough for a serial bank robber, whose penalty for the first offense does not set a cap on total punishment for extra robberies; it is no less true for a serial killer. Each additional crime creates a fresh exposure to punishment, which may be cumulative--indeed, must be cumulative if there is to be deterrence for extra offenses.

Kokoraleis tells us that the question decided by the jury in the Cook County prosecution was "whether he should be put to death for torturing and being a serial killer of sixteen to eighteen women." Phrasing the question in this way makes it possible to say that the two juries decided the same issue. But this is not the question either jury decided. The Cook County jury selected the punishment for the murder of Rose Beck Davis; the DuPage County jury chose the punishment for the murder of Lori Borowski. Each jury was entitled to consider facts about Kokoraleis' background, including his other criminal acts (which by the time of the prosecution for the Borowski murder included a prior murder conviction), but this does not mean that the punishment in a given case is for these other crimes; it is for the crime of which the defendant now stands convicted. Otherwise every recidivist statute would violate the double jeopardy clause by imposing additional punishment for a crime that has already been punished. Yet many cases, of which Witte v. United States, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), is the best recent example, hold that enhancing the punishment for a person's latest offense on account of prior criminal conduct does not impose a second punishment for that conduct. If enhancement does not amount to cumulative punishment, it follows that a reduced punishment for the prior crime or even...

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