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May 5, 1997

UNITED STATES OF AMERICA ex rel. HARRY ALEMAN, Inmate # 03792-164 P.O. Box 34550 Memphis TN 38138-0550, Petitioner,
THE CIRCUIT COURT OF COOK COUNTY, CRIMINAL DIVISION, ILLINOIS, HONORABLE MICHAEL P. TOOMIN, Judge Presiding, HONORABLE JAMES RYAN, Attorney General of Illinois, and RICHARD DEVINE, State's Attorney of Cook County, Illinois, Respondents.

The opinion of the court was delivered by: CONLON

 Harry Aleman ("Aleman") petitions for habeas corpus pursuant to 28 U.S.C. § 2254, moves to stay criminal proceedings in the Circuit Court of Cook County pursuant to 28 U.S.C. § 2251, and moves to quash the execution of the State's writ of habeas corpus ad prosequendum. Aleman claims his imminent state court prosecution would violate his constitutional rights, including his rights under the Double Jeopardy Clause of the United States Constitution.


 On September 27, 1972, Billy Logan ("Logan") was shot to death. In December 1976, Aleman was indicted for Logan's murder. Following a bench trial in May 1977 before Judge Frank Wilson, Aleman was acquitted. In October 1975, Anthony Reitinger ("Reitinger") was shot to death. A grand jury of the Circuit Court of Cook County ("the circuit court") indicted Aleman for the Reitinger and Logan murders in December 1993.

 Aleman moved to dismiss the indictments, arguing that the prosecutions are unlawful on double jeopardy, speedy trial, and estoppel grounds. The State responded that double jeopardy does not apply to Aleman's 1977 trial because Judge Wilson received a $ 10,000 bribe to acquit Aleman.

 The circuit court issued an interim ruling in October 1994, denying dismissal of the indictments provided the State could prove the 1977 bribery. People v. Aleman, 93 CR 28786, 1994 WL 684499 (Ill. Cir. Ct., Oct. 12, 1994). A final order was stayed pending the results of an evidentiary hearing on the alleged bribery. On October 19, 1994, the circuit court denied Aleman's motion to make the interim ruling final.

 On February 9, 1995, the circuit court conducted an evidentiary hearing over Aleman's objection. On March 9, 1995, the court entered a final ruling, finding beyond a reasonable doubt that Judge Wilson was bribed during the 1977 trial. Accordingly, Aleman's motion to dismiss the indictments was denied.

 Aleman appealed the circuit court decision. On June 18, 1996, an Illinois appellate court affirmed the circuit court, holding that: (1) the circuit court had jurisdiction to conduct an evidentiary hearing on the judicial bribe, and (2) the 1977 acquittal procured by bribery did not place Aleman in jeopardy. People v. Aleman (Aleman I), 281 Ill. App. 3d 991, 667 N.E.2d 615, 217 Ill. Dec. 526 (Ill. App. Ct. 1996). The court also issued a Rule 23 order in support of its decision. On October 2, 1996, the Illinois Supreme Court denied Aleman's petition for leave to appeal. People v. Aleman (Aleman II), 168 Ill. 2d 600, 671 N.E.2d 734, 219 Ill. Dec. 567 (Ill. 1996). The United States Supreme Court denied Aleman's petition for a writ of certiorari on February 18, 1997. Aleman v. Illinois, 136 L. Ed. 2d 868, 117 S. Ct. 986 (1997). Aleman filed this petition for habeas corpus on March 6, 1997, as well as motions to stay state court proceedings and to quash the execution of the State's writ of habeas corpus ad prosequendum on March 27, 1997.



 Aleman must clear two procedural hurdles before the court may reach the merits of his habeas corpus petition: exhaustion of remedies and procedural default. Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995) (citations omitted). A habeas corpus petitioner exhausts all state remedies when (1) he presents his claims to the highest state court for a ruling on the merits, Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991), cert. denied sub nom., Farrell v. McGinnis, 502 U.S. 944, 116 L. Ed. 2d 337, 112 S. Ct. 387 (1991), or (2) no state remedies remain available to the petitioner at the time his federal habeas petition is filed. Id. (citing Engle v. Isaac, 456 U.S. 107, 125 n.28, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982)). Procedural default may occur in one of two ways. First, the petitioner may fail to raise fairly and properly an issue on direct appeal or post-conviction review. Rodriguez, 63 F.3d at 555 (citations omitted). Alternatively, the state court may rely on a state procedural bar as an independent basis for its disposition of the case. Caldwell v. Mississippi, 472 U.S. 320, 327, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985). The parties agree Aleman exhausted his state court remedies and did not procedurally default his claims.


 Instead of relying on procedural default and exhaustion of remedies, the State contends the court should not consider the merits of Aleman's petition because: (1) the Younger abstention doctrine applies, and (2) Aleman has waived his right to a petition. Neither argument is persuasive.


 In Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746, (1971), the United States Supreme Court held that equity and federalism concerns require the federal courts to abstain from enjoining state court criminal prosecutions. In Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 302-3, 80 L. Ed. 2d 311, 104 S. Ct. 1805 (1984) (citing Abney v. United States, 431 U.S. 651, 52 L. Ed. 2d 651, 97 S. Ct. 2034 (1977)), the Court carved out an exception to this general rule in the particular case of double jeopardy challenges. The Court noted that double jeopardy rights "cannot be fully vindicated on appeal following final judgment, since in part the Double Jeopardy Clause protects 'against being twice put to trial for the same offense.'" 466 U.S. at 303 (quoting Abney, 431 U.S. at 661). Accordingly, the Court held that the district court had properly exercised jurisdiction over a habeas corpus petition alleging a violation of the Double Jeopardy Clause, even though the State had not completed its prosecution of the defendant in state court. Id.

 The State urges this court to create an exception to the double jeopardy exception described in Lydon. The State argues that equitable considerations weigh in favor of abstention in this case because the bribery of Judge Wilson leaves Aleman with unclean hands. In support of its position, the State cites United States ex rel. Stevens v. Circuit Court of Milwaukee County, 675 F.2d 946 (7th Cir. 1982) and Reimnitz v. State's Attorney of Cook County, 761 F.2d 405 (7th Cir. 1985).

 In Stevens, the defendant was convicted as a result of a plea bargain. Stevens subsequently faced additional charges and claimed the Double Jeopardy Clause prohibited the later prosecution. The state court rejected his arguments, and Stevens sought federal court review. The Seventh Circuit held that Younger abstention applied because Stevens had not actually been tried; he had merely pled guilty. The court noted that the purpose of providing relief through an interlocutory habeas corpus petition is to prevent a criminal defendant from suffering the hardship of a second trial. The court concluded that since Stevens had not yet experienced a first trial, equitable considerations weighed against interlocutory habeas corpus review of his double jeopardy claim. Stevens, 675 F.2d at 948-49.

 The Seventh Circuit's decision in Stevens is not applicable here for two reasons. First, Stevens was decided before Lydon, and Lydon does not suggest an exception of the type described in Stevens. The Court weighed the relevant equitable considerations in this type of case and found that abstention is not warranted. The Court concluded that when a criminal defendant is acquitted and then faces another prosecution on the same charge, equitable considerations weigh in favor of a federal habeas court hearing an interlocutory double jeopardy challenge. Lydon, 466 U.S. at 302-03.

 Second, Stevens is distinguishable in that Aleman did not plead guilty; he was actually tried. The State suggests Aleman did not really suffer through a trial because he bribed the judge. However, the "reality" of Aleman's trial is the very issue raised by Aleman's habeas corpus petition. To decide whether Aleman's first trial was "real," the court would necessarily have to examine the merits, not merely the jurisdictional basis of Aleman's petition. Finally, Reimnitz is not helpful to the State because the Seventh Circuit actually considered the merits of ...

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