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UNITED STATES EX REL. DEL VECCHIO v. ILLINOIS DEPT

June 9, 1992

UNITED STATES OF AMERICA, ex rel GEORGE DEL VECCHIO, Petitioner,
v.
ILLINOIS DEPARTMENT OF CORRECTIONS, Respondent.


HOLDERMAN


The opinion of the court was delivered by: JAMES F. HOLDERMAN

JAMES F. HOLDERMAN, District Judge:

 Petitioner George Del Vecchio seeks a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254 concerning his conviction and sentence of death resulting from a 1979 trial in the Circuit Court of Cook County, Illinois.

 FACTS

 The following facts are taken from the Illinois Supreme Court's opinions in People v. Del Vecchio, 105 Ill. 2d 414, 475 N.E.2d 840, 844-45, 86 Ill. Dec. 461 (1985) (hereinafter referred to as Del Vecchio I) and People v. Del Vecchio, 129 Ill. 2d 265, 544 N.E.2d 312, 315-16, 135 Ill. Dec. 816 (1989) (hereinafter referred to as Del Vecchio II).1 In 1979, following a jury trial in the Circuit Court of Cook County, Illinois, petitioner George Del Vecchio ("Del Vecchio") was convicted of murder, burglary, rape, and deviate sexual assault. At the conclusion of the sentencing hearing in the case, the jury found that there existed one or more factors in aggravation as set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. ch. 38, P 9-1(b)). The jury also found there were no mitigating factors sufficient to preclude a sentence of death. The sentence of death was imposed. Del Vecchio was also sentenced to 15 years imprisonment for rape, 6 years for deviate sexual assault, and 7 years for burglary. On direct appeal to the Illinois Supreme Court, the convictions and sentences were affirmed. Del Vecchio I, 105 Ill. 2d 414, 475 N.E.2d 840, 86 Ill. Dec. 461 . The United States Supreme Court denied Del Vecchio's petition for writ of certiorari. Del Vecchio v. Illinois, 474 U.S. 883, 106 S. Ct. 204, 88 L. Ed. 2d 173 (1985).

 Following the Supreme Court's denial of certiorari, Del Vecchio filed a petition under the Post-Conviction Hearing Act (Ill. Rev. Stat. ch. 38, P 122-1 et seq.), and counsel was appointed. Without an evidentiary hearing, the Circuit Court of Cook County granted the State's motion to dismiss the petition. The Illinois Supreme Court affirmed the dismissal of the post-conviction petition. Del Vecchio II, 129 Ill. 2d 265, 544 N.E.2d 312, 135 Ill. Dec. 816 . The United States Supreme Court denied Del Vecchio's petition for writ of certiorari. Del Vecchio v. Illinois, 494 U.S. 1062, 110 S. Ct. 1540, 108 L. Ed. 2d 779 (1990). Del Vecchio then filed in this court the pending petition for a writ of habeas corpus. Counsel was appointed to represent him in prosecuting the petition. *fn2" An amended petition was filed on Del Vecchio's behalf by his counsel.

 At about dawn the following morning, Mrs. Canzoneri was awakened when she heard footsteps. When she asked who was there, Del Vecchio identified himself, stating he "wanted to talk." Mrs. Canzoneri attempted to shoot Del Vecchio with a pistol which Falcone had previously given her, but Del Vecchio slapped it out of her hand before she could fire. Del Vecchio would not permit Mrs. Canzoneri to check on Tony, responding that Tony was sleeping peacefully. When she attempted to leave the room to check on her son, Del Vecchio pushed her back on the bed, kissed her face, breasts, vagina, and legs, and despite her request to stop, had intercourse with her. During the intercourse, she heard the telephone ring. She asked Del Vecchio to let her answer it because it was probably her mother who lived across the street. She told him that unless she answered the telephone, her mother would come over. Del Vecchio did not respond. Mrs. Canzoneri could not determine which of the three telephones in her home was ringing. The ringing stopped. The telephone then rang again and Del Vecchio went downstairs. Mrs. Canzoneri looked for the telephone but could find only the cord. The telephone, severed from the cord, was found later when the police searched the premises. She ran downstairs and across the street to her mother's house. Mrs. Canzoneri told her mother she had been raped and called the police.

 Chicago police officer William Sacco testified that five police officers responded to the call of a rape in progress. Mrs. Canzoneri told the officers that there was a man with a gun in her house, that she knew the man and that it was Del Vecchio. After searching the first floor, the officers went up to the attic bedroom. Alerted by the sound of snow crunching outside the window, Officer Sacco saw Del Vecchio crawling on the roof and ordered him inside. Del Vecchio responded by blurting, "I didn't kill nobody." Del Vecchio was arrested, given Miranda warnings, and handcuffed. Officer Richard Elmer testified that, after searching various areas of the building and interviewing a neighbor, he and other officers discovered a crawl space located under the stairs. They opened the door and found the body of young Tony Canzoneri. Later examination showed that the boy's trachea, carotid artery, jugular vein and vagus nerve were completely severed, and the third and fourth cervical vertebrae were fractured.

 It appears from the testimony that when Mrs. Canzoneri entered her home earlier that evening, she left her purse on the kitchen table. Her purse, among other things, contained her keys, and a credit card. When Del Vecchio was taken into custody, the credit card was in his possession.

 DISCUSSION

 Del Vecchio's petition for a writ of habeas corpus asserts fourteen challenges to the constitutionality of his conviction and death sentence. Del Vecchio expressly has withdrawn from this court's consideration while reserving for further review certain of these fourteen challenges. *fn3" The court will address each remaining constitutional challenge.

 I. GROUND I: TRIAL JUDGE'S CONFLICT OF INTEREST

 Del Vecchio contends that he was denied due process because his 1979 trial judge, Cook County Circuit Judge Louis B. Garippo, had a conflict of interest stemming from Judge Garippo's involvement in the 1965 case in which Del Vecchio was convicted of the murder of Fred Christiansen. As stated above, Garippo was chief of the State's Attorney's criminal division in 1965. Del Vecchio speculates that perhaps Judge Garippo regretted his decision in 1965 to expedite Del Vecchio's indictment. That decision allowed Del Vecchio to be sentenced as a youth, which presumably helped him obtain an earlier release from prison than he would have obtained had he been convicted as an adult of the 1965 murder. As a result of his early release Del Vecchio was able to commit the crimes in 1977 of which he was convicted in 1979. One of the aggravating factors introduced at the sentencing hearing in the 1979 case was the 1965 murder of Fred Christiansen.

 Del Vecchio argues that Judge Garippo's involvement with Del Vecchio's 1965 case created the appearance of bias on Judge Garippo's part requiring his disqualification from presiding over Del Vecchio's 1979 trial and sentencing proceedings. Del Vecchio claims that he need not show actual bias by Judge Garippo in order to establish a due process violation. *fn4"

 Most matters relating to judicial disqualification do not rise to a constitutional level. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 106 S. Ct. 1580, 1584, 89 L. Ed. 2d 823 (1986). What degree or kind of interest is sufficient to disqualify a judge from sitting "cannot be defined with precision." Id. at 1585 (quoting In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955)). One formulation of the issue is whether the "situation is one 'which would offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.'" Aetna, 106 S. Ct. at 1585 (quoting Ward v. Village of Monroeville, 409 U.S. 57, 93 S. Ct. 80, 83, 34 L. Ed. 2d 267 (1972)).

 Bias or prejudice on the part of a judge can implicate due process concerns. Aetna, 106 S. Ct. at 1585. Allegations of judicial bias or prejudice, however, involve difficult issues and "only in the most extreme of cases would disqualification on this basis be constitutionally required." Id. General allegations of judicial bias and prejudice do not amount to a due process violation. Id.

 The Seventh Circuit has not delineated the type of judicial bias in a criminal case which requires disqualification under the Due Process Clause. The Seventh Circuit, however, has commented that

 our Margoles [v. Johns, 660 F.2d 291 (1981), cert. denied, 455 U.S. 909, 102 S. Ct. 1256, 71 L. Ed. 2d 447 (1982)] decision . . ., although a civil case, makes us hesitate to hold that a mere appearance of prejudice is enough to overturn a state criminal conviction on federal constitutional grounds -- especially since it is not necessary to hold that in this case. . . .

 Walberg v. Israel, 766 F.2d 1071, 1077 (7th Cir. 1985), cert. denied, 474 U.S. 1013, 106 S. Ct. 546, 88 L. Ed. 2d 475 (1985). In Margoles, a civil case, the Seventh Circuit held that a

 litigant is denied the fundamental fairness to which he is constitutionally entitled if the judge of his case is unfairly biased against him. However, a litigant is not denied due process by either the "appearance" of partiality or by circumstances which might lead one to speculate as to a judge's impartiality. A litigant is denied due process if he is in fact treated unfairly.

 Margoles, 660 F.2d at 296 (emphasis in original). After reviewing various judicial disqualification cases, the court stated that "those few cases in which due process considerations were the basis for reversal involved serious facts supporting a finding of prejudice, not mere speculation and 'appearances.'" Id. Due process violations occur

 where there [is] actually some incentive [for the judge] to find one way or the other, i.e., financial considerations [ Ward, 409 U.S. 57, 93 S. Ct. 80, 34 L. Ed. 2d 267 ; Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); Aetna, 475 U.S. 813, 106 S. Ct. 1580, 89 L. Ed. 2d 823 ] or previous participation by the trying judge in the proceedings at which the contempt occurred [ In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 2d 942; Taylor v. Hayes, 418 U.S. 488, 94 S. Ct. 2697, 2704-05 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499, 504-05, 27 L. Ed. 2d 532 (1971)].

 Margoles, 660 F.2d at 297 (quoting Howell v. Jones, 516 F.2d 53 (5th Cir. 1975)).

 Although the Seventh Circuit has not directly addressed the issue of judicial bias in the context of a criminal case, the Sixth Circuit has applied the "actual bias" rule in criminal cases. In Corbett v. Bordenkircher, 615 F.2d 722 (6th Cir. 1980), a case factually analogous to the immediate case, a habeas petitioner argued that due process required the trial judge to recuse himself because "the judge had, in the past as a county attorney and as a commonwealth attorney, prosecuted [the petitioner] for crimes in four instances . . . one of which convictions was relied upon as a basis for charging [the petitioner] with being an habitual offender" in the case over which the judge later presided. Id. at 723. The petitioner made "no allegation that the judge was actually prejudiced against [him]." Id. at 723-24. The court refused to "hold that simply because a trial judge has prosecuted a defendant in the past in performing his duty as a public official, due process requires that the judge recuse himself." Id. at 724.

 The court in Corbett explicitly followed its decision in Jenkins v. Bordenkircher, 611 F.2d 162 (6th Cir. 1979), the facts of which were limited to a judge who had earlier prosecuted the petitioner for "totally unrelated criminal charges." Id. at 167. In Jenkins, the Sixth Circuit held that

 absent some showing of hostility or prejudgment we will not assume that a state court judge would not be able to give a defendant a fair trial solely because of his earlier contacts with the ...


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