Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 9039 -- Susan Getzendanner, Judge.
Easterbrook and Manion, Circuit Judges, and Eschbach, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
Donna Branion died on December 22, 1967. She was strangled and shot at least four times. She was not molested; there were no signs of forced entry into the apartment, from which nothing was stolen. This led the police to doubt that a stranger was responsible. A jury concluded that Donna's husband, John M. Branion, Jr., did the deed. The evidence was circumstantial, but what circumstances!
. Branion called the police after finding his wife sprawled in a pool of blood. Although a physician, he did nothing to investigate her condition or assist her. He told the police that he knew from the lividity of Donna's legs that she was dead. A pathologist testified that Donna Branion's legs did not display lividity.
. Ballistics experts determined, from the rifling of the slugs and marks on the casings, that the murder weapon was a 9mm,.38 caliber Walther PPK, a rare gun. John Branion, a gun collector, owned a 9mm,.38 caliber Walther PPK. When the police asked whether Branion had a 9mm weapon, he said yes and gave the police a Luger. Later the police asked whether he had a.38 caliber weapon; he said yes, one, and turned over a Hi Standard pistol. He did not mention his Walther PPK, which was never found -- yet could not have been stolen by an intruder on December 22, for the family's weapons cabinet was locked when the police arrived.
. The cabinet contained a clip, target, and brochure for Branion's Walther PPK together with two boxes of.38 caliber ammunition. One box was full. The other was short four shells. Four shell casings were found near Donna Branion's body.
. Branion had a mistress, a nurse at the hospital where he worked, and the Branion home was not a model of domestic tranquility. Branion married his mistress shortly after his wife's death.
The defense denied some of this and tried to cast the rest in a better light, but the jury was entitled to believe the prosecution's evidence. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
The death and trial attracted attention, common for family murders among the well-to-do and intensified by the nature of the defense in this one: impossibility. Dr. Branion held a position of responsibility at the Ida Mae Scott Hospital, in the Hyde Park district of Chicago. The defense was that he had been at the Hospital attending patients until 11:30 a.m. and that, on the way home, he made two stops -- one to pick up his son Joby at a private school, the other to meet a friend with whom the Branions planned to lunch. The police logged the call informing them of the murder at 11:57 a.m. There was not enough time to drive from the Hospital to his home, with two stops, and to kill his wife before calling the police, Branion insists -- especially because Donna was strangled as well as shot, and the bruises on her neck took at least 15 minutes to form.
A claim of impossibility is not the only unusual feature of this case. Both sides of the family were prominent. Dr. Branion marched with Dr. Martin Luther King, Jr., in the 1960s. His father was a well-known attorney and the deputy chief public defender of Chicago. Donna Brown Branion's father was a wealthy banker, and other members of the family have been successful in other fields. Reginald Holzer, who presided over the trial, may have tried to induce Branion's many friends to pay him off in exchange for a judgment notwithstanding the verdict -- a disposition that in Illinois is not open to appellate review. Holzer has since been convicted of extortion in many other cases. See United States v. Holzer, 816 F.2d 304 (7th Cir.), vacated, 484 U.S. 807, 108 S. Ct. 53, 98 L. Ed. 2d 18 (1987), after remand, 840 F.2d 1343 (7th Cir.), cert. denied, 486 U.S. 1035, 108 S. Ct. 2022, 100 L. Ed. 2d 608 (1988). On getting wind that Holzer had dictated to the court reporter an opinion absolving Branion, the prosecutor, Patrick A. Tuite -- now a prominent criminal defense attorney -- paid a private call on the judge. During this ex parte conversation Tuite insisted that Judge Holzer let the case proceed through appellate channels, but he left thinking that Branion would prevail.
Holzer later called Tuite at home, insisting that Tuite move for a week's postponement of the impending ruling on Branion's motion for a new trial. Tuite complied, and Holzer put on a little show, dressing down the prosecutor for begging for more time and cutting the extension back to two days. The theatrics (and, perhaps, the last effort to extract cash from Branion's friends) over, Holzer denied the motion on condition that Branion remain free pending appeal. The Supreme Court of Illinois affirmed the conviction, People v. Branion, 47 Ill. 2d 70, 265 N.E.2d 1 (1970), cert. denied, 403 U.S. 907, 91 S. Ct. 2213, 29 L. Ed. 2d 683 (1971).
When the conviction became final Branion neither reported to prison nor sought collateral review in state court. Instead he fled to Africa where, after a short stay in the Sudan, he journeyed to Uganda and became Idi Amin's personal physician during 1972-79. New York Times, Oct. 15, 1983, § 1 p.6 col. 2; Associated Press dispatch October 14, 1983. Escaping the ravages of Uganda's civil wars and invasions,*fn1 Branion was unceremoniously put on a plane by a new regime and shipped back to the United States in October 1983. (Uganda has no extradition treaty with the United States.) Since his sudden return Branion has been serving his sentence of 20-30 years' imprisonment. In 1986 he filed a petition for a writ of habeas corpus, 28 U.S.C. § 2254. The state has not argued that Branion's flight and the consequent delay disqualifies him under Rule 9(a) of the Rules for Section 2254 cases.
We must first address a difficulty in our (and the district court's) jurisdiction. The case was assigned to Judge Getzendanner, who issued three opinions. The first, rejected two of Branion's four claims on the merits and held the others barred by the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Judgment was entered in the state's favor on August 27, 1987. Branion filed a timely motion for reconsideration under Fed. R. Civ. P. 59. Judge Getzendanner wrote a third opinion declining to reopen the subject and adding some reasons why the state was entitled to prevail. The order denying the Rule 59 motion was filed on September 22, 1987. Eight days later Judge Getzendanner resigned from the bench.
On October 20, 1987, Branion filed a notice of appeal from this decision. The clerk of the district court neglected to forward it to us until December 14. Meanwhile, on October 15, Branion had filed a second post-judgment motion, this time under Rule 52(b). The motion was assigned to Judge Plunkett, who neither knew about the notice of appeal nor recognized that this was a successive post-judgment motion. Judge Plunkett took briefs and evidence, heard argument, and wrote an opinion, denying Branion's petition for the third time. Judge Plunkett entered a judgment on November 20, and Branion filed a second notice of appeal on November 25. This prompted the clerk's office to transmit the first notice; the two were assigned sequential numbers in this court.
The appeal filed on October 20, No. 87-3052, transferred the case to us. Nothing that happened after that in the district court matters. Judge Plunkett would have lacked jurisdiction even had there been no appeal in October, for the losing party may file post-judgment motions under Rules 52 and 59 only within ten days. See Fed. R. Civ. P. 6(b). A district court may not act on an untimely motion. Bailey v. Sharp, 782 F.2d 1366 (7th Cir. 1986). If a judge alters her judgment in response to the first motion, the party aggrieved by the change may file a motion directed to the difference. Charles v. Daley, 799 F.2d 343, 347-48 (7th Cir. 1986). But Judge Getzendanner reaffirmed rather than revised her judgment. This Rule 52 motion would have been untimely even if Judge Getzendanner had changed her disposition, for it was filed 23 days after the judgment became final, and the Rule allows only ten. Since weekends and holidays are excluded in the computation, Fed. R. App. P. 26(a), Branion would have had until October 6, 1987, to serve any further motion that might have been in order; he took until October 15. At oral argument Branion's lawyer contended that the motion was served within ten days after Branion received Judge Getzendanner's order, but this ignores the language of Rule 52(b): "Upon motion of a party not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly." Branion is represented by a wealth of talent, which we would not have expected to have had so much difficulty with the civil rules.*fn2 The case has been in this court since October 20, 1987, and Judge Plunkett had no authority to act. We vacate the opinion and judgment of November 20 and dismiss appeal No. 87-3053 for want of jurisdiction, because it was filed more than 30 days after the judgment became final on September 22. See Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978).
One more procedural matter. The appendix Branion filed in this court contains a good deal of material that was not before the district court. An entire section of Branion's brief is devoted to arguments based on this material, which includes an affidavit from Branion telling his side of the story -- for the first time in 20 years, since he did not testify at trial or in the district court -- as well as affidavits from other witnesses, a report of a physician describing the nature of the wounds in Donna Branion's body in an effort to show that more than four shots must have been fired, notes from an interview with the prosecutor reflecting his assessment of the evidence and his disagreement with Judge Getzendanner's analysis of the facts, and an affidavit from his current counsel narrating his own investigation. The state has filed a motion to strike this "evidence". See Heirens v. Mizell, 729 F.2d 449, 455-56 (7th Cir. 1984); United States v. Burke, 781 F.2d 1234, 1245-46 (7th Cir. 1985). Branion replies that he is entitled to draw exculpatory information to the court's attention at any time in light of Kuhlmann v. Wilson, 477 U.S. 436, 452-55, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986), which holds that in order to succeed on a successive petition for a writ of habeas corpus, the prisoner must make a colorable showing of innocence. Cf. Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970). Circuit ...