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U.S. v. STERNES

May 30, 2002

UNITED STATES OF AMERICA EX REL. HARRY ALEMAN PETITIONER,
V.
JERRY STERNES RESPONDENT.



The opinion of the court was delivered by: Suzanne B. Conlon, United States District Judge

    MEMORANDUM AND ORDER

Petitioner Harry Aleman seeks a writ of habeas corpus to vacate his murder conviction pursuant to 28 U.S.C. § 2254.

PROCEDURAL HISTORY

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).

BACKGROUND

The factual findings of a state trial or appellate court are presumed correct in a federal habeas proceeding unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1). There is no evidence before the court to rebut this presumption. Accordingly, the court adopts the Illinois appellate court's statement of facts.*fn1 See Aleman, 313 Ill. App.3d at 54, 729 N.E.2d at 25.

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.

DISCUSSION

I. Standard of Review

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 Cir. 2000).

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. 2002).

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 v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)). Section 2244's ...


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