Robert Gacho v. KIM BUTLER , Warden

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3911
R OBERT G ACHO,
Petitioner-Appellant,
v.
K IM BUTLER , Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 4334 — Robert W. Gettleman, Judge.
____________________
A RGUED J UNE 2, 2015 — DECIDED J ULY 2, 2015
____________________
Before POSNER , EASTERBROOK, and S YKES, Circuit Judges.
S YKES, 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

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2 No. 13-3911
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 proceed-
ings 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

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No. 13-3911 3
trial in Judge Maloney’s court; Titone’s case was tried to the
bench and Gacho’s to a jury. (Sorrentino was tried separate-
ly.) Gacho’s girlfriend Katherine De Wulf was the star wit-
ness 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 (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.
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 prose-
cutor alerted the court to a possible conflict of interest:
McDonnell had previously represented members of the

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4 No. 13-3911
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 represen-
tation was ineffective.
Gacho’s death sentence was set aside on direct appeal, see
Illinois v. Gacho, 522 N.E.2d 1146 (Ill. 1988), and he returned
to Judge Maloney’s court for resentencing. The judge im-
posed a sentence of life. Gacho filed his first state postcon-
viction motion in 1991, as the Operation Greylord indict-
ments 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

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No. 13-3911 5
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 pro-
ceedings. The district court consolidated the petitions and in
November 2001 dismissed them without prejudice, conclud-
ing 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 mov-
ing 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
1 We recruited pro bono counsel for Gacho and now thank Robert Palmer
and the Notre Dame Law School for their able efforts on their client’s
behalf.

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6 No. 13-3911
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 pursu-
ant 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 address-
ing 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 proceed-
ings 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

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No. 13-3911 7
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 reme-
dies 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 reme-
dies.” 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 postconvic-
tion claims remain pending before the Illinois Appellate
Court. The district court dismissed his § 2254 petition for
failure to exhaust, but the dismissal was without prejudice
and the judge’s order specifically invited Gacho to refile his
petition when the state process concludes. It’s hard to see
how Gacho can avoid the same jurisdictional fate as Moore.2
2 A look at other circuits shows that our decision in Moore is not an
outlier. The Ninth Circuit, for example, recently held that it lacked
appellate jurisdiction in similar circumstances involving protracted state
postconviction litigation. See Stanley v. Chappell, 764 F.3d 990 (9th Cir.
2014) (dismissing an appeal from a district court’s nonfinal stay-and-
abeyance order). The Fourth and Fifth Circuits also have also treated the

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8 No. 13-3911
There are a few limited circumstances under which a
habeas petitioner can get around the seemingly nonfinal
nature of a dismissal without prejudice, but they’re not
implicated here. The common theme in these cases is that an
ostensibly nonfinal order is functionally final. If, for exam-
ple, a petitioner “will not be able to amend her complaint”
after dismissal without prejudice and thus cannot refile it,
then the dismissal is “final” for the purposes of appellate
review. See Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.
2001). Similarly, if a new, subsequent federal petition would
be time-barred, then the dismissal without prejudice would
be effectively final. See Dolis v. Chambers, 454 F.3d 721, 723
(7th Cir. 2006). Here, however, there is no procedural imped-
iment stopping Gacho from resubmitting his federal petition
once he has exhausted his state-court remedies.
Gacho argues that Moore is distinguishable because it did
not involve a claim of excessive delay. As he sees it, “the
issue of excessive delay is separate from, and independent
of, the issue of exhaustion of state remedies,” and because
this is a case about excessive delay, a “pure” exhaustion case
like Moore isn’t controlling. This argument confuses the
merits with the antecedent question of appellate jurisdiction.
dismissal of a § 2254 petition without prejudice as not vesting appellate
jurisdiction. See Curtis v. Quarterman, 340 F. App’x 217, 218 (5th Cir. 2009)
(per curiam) (“A dismissal without prejudice generally does not operate
as an adjudication on the merits … .”); Brown v. Dir., Va. Dep’t of Corr.,
6 F. App’x 122, 122 (4th Cir. 2001) (per curiam) (“Brown appeals the
district court’s order dismissing his petition … without prejudice … .
Because Brown may reinstate his suit by merely providing information
requested by the district court, we lack jurisdiction to decide this
appeal.”).

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No. 13-3911 9
Our decision in Moore did not address the correctness of
the district court’s exhaustion determination; instead, we
dismissed for want of appellate jurisdiction because the
district court’s decision lacked the finality necessary for an
appealable order under § 1291. See 368 F.3d at 756. This case
is in exactly the same procedural posture. Gacho’s argument
about excessive delay is an argument about exhaustion—or
more particularly, it’s a plea to excuse his failure to exhaust
under the exception in § 2254(b)(1)(B)(ii). Here, just as in
Moore, the district court dismissed Gacho’s § 2254 petition
without prejudice to refiling once the state-court proceed-
ings are complete, “explicitly contemplate[ing] the court’s
continuing involvement in the case.” Id. at 755. That leaves
us without jurisdiction.
Gacho also relies on a recent unpublished order in which
we addressed and decided a similar excessive-delay claim,
observing in a footnote that there is “no general rule that
dismissals without prejudice are nonfinal orders and there-
fore nonappealable under 28 U.S.C. § 1291.” Monegain v.
Carlton, 576 F. App’x 598, 601 n.4 (7th Cir. 2014) (quoting
Schering-Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc.,
586 F.3d 500, 506 (7th Cir. 2009)). Monegain affirmed the
district court’s dismissal order on the merits rather than
dismissing the appeal for lack of jurisdiction.
But Monegain did not even mention—let alone disturb—
Moore. And insofar as the Monegain footnote relied on Scher-
ing-Plough, we think it read too much into that opinion. It’s
true that in Schering-Plough we disclaimed any “general rule
that dismissals without prejudice are nonfinal orders and
therefore nonappealable under 28 U.S.C. § 1291,” id., but the
context of that observation is critical. We said there is no

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10 No. 13-3911
such “general rule” because sometimes dismissals without
prejudice are functionally final orders and therefore appeal-
able. Id. We noted, for example, that if all dismissals without
prejudice were nonappealable, then “dismissals for want of
jurisdiction would not be appealable, and of course they
are.” Id. On the other hand, we explained that dismissals
without prejudice are nonfinal and not appealable when the
district judge “has not finished with the case, and appeal
would therefore be premature.” Id. What matters, in other
words, is the functional finality of the order (as in Larkin and
Dolis), and “if the defect that required dismissal is immedi-
ately curable,” then the dismissal isn’t really final. Id. at 507.
In short, Schering-Plough does nothing to unsettle Moore.
Perhaps the “defect” that required dismissal in Moore—lack
of exhaustion—was not “immediately curable” as would be,
say, a formal or technical error in a complaint. But whether
the defect that led to dismissal can be easily or immediately
cured is merely an indicator of the true touchstone of appel-
late jurisdiction: finality. Schering-Plough’s reference to
curability doesn’t disturb Moore because the defect in
Moore’s petition was in the process of being remedied as his
case moved through the state-court system. Because Moore
remains good law and is controlling here, we lack appellate
jurisdiction.
We close by noting that the glacial pace of the state-court
proceedings is troubling, though the reasons for the long
delay are not entirely clear. At least since 2008, the case has
crawled along slowly but steadily and appears to be close to
final resolution. If the state courts do not grant relief, the
district court left the door open to refiling the § 2254 petition.
Because the court’s order is nonfinal, however, Gacho’s

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No. 13-3911 11
appeal must be and hereby is DISMISSED for want of appel-
late jurisdiction.

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