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Gacho v. Butler

United States Court of Appeals, Seventh Circuit

July 2, 2015

ROBERT GACHO, Petitioner-Appellant,
v.
KIM BUTLER, Warden, Respondent-Appellee

Argued June 2, 2015

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 4334 -- Robert W. Gettleman, Judge.

For Robert Gacho, Petitioner - Appellant: Robert J. Palmer, Attorney, May, Oberfell & Lorber, Mishawaka, IN.

For Kim Butler, Respondent - Appellee: Retha Stotts, Attorney, Office of The Attorney General, Chicago, IL.

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 ...


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