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U.S. v. STERNES
May 30, 2002
UNITED STATES OF AMERICA EX REL. HARRY ALEMAN PETITIONER,
JERRY STERNES RESPONDENT.
The opinion of the court was delivered by: Suzanne B. Conlon, United States District Judge
Petitioner Harry Aleman seeks a writ of habeas corpus to vacate his
murder conviction pursuant to 28 U.S.C. § 2254.
On September 27, 1972, Billy Logan was murdered on West Walton Street
in Chicago, Illinois. In December 1976, Aleman was charged with Logan's
murder in the Circuit Court of Cook County. Following a bench trial
before Judge Frank Wilson in May 1977, Aleman was acquitted. Several
years later, federal investigators uncovered evidence that Judge Wilson
accepted a $10,000 bribe to acquit Aleman. In February 1990, Judge Wilson
was informed of an FBI investigation into the bribery. Shortly
thereafter, he committed suicide. In December 1993, Aleman was charged
again with Logan's murder. Logan moved to dismiss the murder charge on
double jeopardy grounds. The Circuit Court of Cook County held double
jeopardy did not bar Aleman's prosecution. The ruling was affirmed,
People v. Aleman, 281 Ill. App.3d 991, 667 N.E.2d 615 (1996), and the
Illinois Supreme Court denied Aleman's petition for leave to appeal.
People v. Aleman, 168 Ill.2d 600, 671 N.E.2d 734 (1996). The United
States Supreme Court denied Aleman's petition for writ of certiorari.
Aleman v. Illinois, 519 U.S. 1128 (1997). Aleman then filed a petition
for a writ of habeas corpus. This court denied Aleman's § 2255
petition. United States v. Circuit Court of Cook County, 967 F. Supp. 1022
(N.D. Ill. 1997). Addressing an issue of first impression, this court
held the bribery of Judge Wilson reduced Aleman's trial to a sham; the
trial did not implicate the risk of conviction necessary to raise double
jeopardy concerns. Id. at 1027-29. The Seventh Circuit affirmed, Aleman
v. The Honorable Judges of the Circuit Court of Cook County, 138 F.3d 302
(7th Cir. 1998), and the Supreme Court denied Aleman's writ of
certiorari. Aleman v. Circuit Court of Cook County, 525 U.S. 868 (1998).
Meanwhile, Aleman was found guilty of Logan's murder in a second jury
trial on September 30, 1997. Aleman appealed; his conviction and sentence
were affirmed. People v. Aleman, 313 Ill. App.3d 51, 729 N.E.2d 20 (1st
Dist. 2000). The Illinois Supreme Court denied leave to appeal. Aleman
filed a writ of certiorari in the United States Supreme Court. The
petition was denied. Aleman v. Illinois, 531 U.S. 1152 (2001).
Logan lived with his two sisters, one named Betty Romo. On September
27, 1972, Logan left his home for work at 11:00 p.m. Romo heard three
loud noises or shots. Running outside, she discovered Logan bleeding from
two shotgun wounds. Logan had been divorced from Phyllis Napoles,
Aleman's cousin. Logan and Napoles were engaged in a custody battle.
Logan had been arrested for her assault and battery.
At trial, Bobby Lowe, Logan's neighbor, testified that on September
27th, he observed a vehicle parked across the street with its engine
running; he saw Logan walking to his parked automobile. As Lowe
approached Logan, Lowe observed the other vehicle moving towards Logan.
Lowe heard two loud noises and saw Logan "fly backwards." Tr., Vol.
VIII, p. A-160. Lowe witnessed Aleman leaving from the passenger side of
the vehicle. Aleman approached Logan with a gun-like object in his hand,
and pointed it at Logan. Lowe stared at Aleman for four or five seconds,
standing three or four feet away, then turned and ran. While running,
Lowe heard another loud noise; he also heard the vehicle drive away. In
1972, Lowe identified Aleman in a photospread; in 1976, he identified
Aleman as Logan's shooter.
In March 1975, Louis Almeida was arrested for possession of weapons and
a silencer. Almeida provided police with information about his criminal
activities, including armed robberies, vehicle thefts, and bombings.
Almeida reported details of Logan's murder — identifying himself as
the driver and Aleman as the shooter. In exchange, Almeida was given
immunity from prosecution for Logan's murder. According to Almeida, in
August 1972, Aleman discussed his plan to murder Logan and offered
Almeida two license plate numbers and Logan's home and work addresses,
writing "to Billy" on the same piece of paper. Id. at B-43. Almeida
stalked Logan to learn his habits and schedule.
Almeida further testified to the following facts. On September 27,
1972, Aleman, armed with a shotgun and a .45 caliber handgun, was driven
by Almeida to Logan's home. At 11:15 p.m., Aleman saw Logan. Almeida
drove the vehicle near Logan. Almeida called to Logan. Logan walked
towards him. Aleman shot Logan twice with a 12-gauge shotgun. Logan "flew
back" and began crawling and yelling for a doctor. Id. at B-51. Aleman
stepped half-way out of the car, but "shut the door on the car and
[said], let's go, he's gone." Id. at B-52.
Aleman presented several witnesses, including William Dietrich, Logan's
nephew, and Stanley Ryba, Logan's neighbor. Dietrich, who lived with
Logan on September 27, 1972, was asleep on the front porch at 11:00 p.m.
Dietrich awoke to hear someone say, "hey, Bill, come here." Tr., Vol.
XI, at p. F-85. Immediately hearing two gunshots, he looked outside and
saw Logan on his knees, falling backwards. Dietrich did not see anyone on
the street at that time. Ryba testified that at 11:00 p.m., he heard a
gunshot, looked out his window, and observed a car double-parked on the
street and a man lying on the ground. Ryba stated he did not see anyone
else in the area. Guido Calcagno, Almeida's friend, testified Almeida was
"not very truthful" and had a "tendency to lie about everything." Tr.,
Vol. XII, at p. G-144. Police officers who investigated Logan's murder
testified Lowe was initially reticent and fearful, and merely identified
the occupants of the automobile as two white males.
William Jr., Logan's son, and Napoles suggested that Petrocelli, not
Aleman, murdered Logan. Napoles described Logan as an abusive drunk.
After her divorce from Logan in 1967, Napoles had a relationship with
Petrocelli, who was violent and had a dark side. In March 1972, Logan
kicked down the door of her home and threatened her while he was drunk.
Petrocelli argued with Logan and a violent physical confrontation
ensued. Petrocelli threatened to kill Logan.
The jury found Aleman guilty. He was sentenced to a prison term of not
less than 100 years nor more than 300 years.
Under the Antiterrorism and Effective Death Penalty Act of 1996, Aleman
cannot obtain habeas relief unless he establishes the state court's
decision "was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States," or "resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
This court analyzes whether the Illinois appellate court's decision
reasonably applied Supreme Court precedent to the facts of Aleman's
case. A state court reasonably applies Supreme Court precedent if its
application is "at least minimally consistent with the facts and
circumstances of the case." Spreizer v. Peters, 114 F.3d 1435, 1442 (7th
Cir. 1997). For habeas relief, the state court's decision must be both
incorrect and unreasonable. Washington v. Smith, 219 F.3d 620, 628 (7th
Aleman must satisfy two procedural requirements before the court may
reach the merits of his habeas petition: (1) exhaustion of state remedies
and (2) fair presentment of any federal claims to avoid procedural
default. Spreitzer v. Schomig, 219 F.3d 639, 644 (7th Cir. 2000). A
habeas petitioner exhausts state remedies when 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). It is undisputed Aleman exhausted his
state court remedies. Procedural default occurs when the petitioner fails
to raise fairly and properly an issue on direct appeal or post-conviction
review. Moleterno v. Nelson, 114 F.3d 629, 633-634 (7th Cir. 1997). The
state concedes Aleman's claims were properly raised and presented to the
Illinois courts on direct appeal. Finally, Aleman's § 2254 petition
is timely because it was filed within § 2244(d)(2)'s one-year statute
of limitations. See Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir.
II. Second or Successive Habeas Petition
At the outset, the state asserts this court lacks jurisdiction because
Aleman's second habeas petition is barred under 28 U.S.C. § 2444. The
AEDPA bars an individual from filing a second or successive habeas
petition without obtaining leave from the appropriate court of appeals.
28 U.S.C. § 2244(b)(3). A pre-trial habeas petition brought to
challenge an indictment on double jeopardy grounds must be treated as a
§ 2241 petition. Jacobs v. McCaughtry, 251 F.3d 596 (7th Cir. 2001).
A § 2254 petition must be brought by petitioners in custody pursuant
to a judgment of a state court. Id. at 597 (citing Walker
216 F.3d 626, 633 (7th Cir. 2000)). Section 2244's ...