The opinion of the court was delivered by: Blanche M. Manning United States District Court Judge
Petitioner Joseph Bravieri's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, Bravieri's petition is denied.
I. Statute of Limitations
Bravieri's conviction became final prior to the April 26, 1995, enactment of a one-year statute of limitations in 28 U.S.C. § 2244(d)(1). He thus needed to file his § 2254 petition by April 24, 1997. See Newell v. Hanks, 283 F.3d 827, 833 (7th Cir. 2002). He did so and made it just under the wire by filing his petition on April 22, 1997. The court dismissed his petition for failure to exhaust and instructed him to refile within thirty days after his state court proceedings concluded. Bravieri, however, sought to reinstate this case after the thirty-day period had expired.
The court allowed him to do so and noted that in granting the motion to reinstate, the court "effectively revived the original case, thus avoiding any statute of limitations problem associated with filing a new [case]." See Fahy v. Page, No. 01 C 7532, 2004 WL 1093376 at 2 (N.D. Ill. May 07, 2004). In its answer, the respondent nevertheless reasserts its argument that Bravieri's habeas petition is time-barred.
As the court has previously noted, it told Bravieri back in 1997 that he could seek leave to reinstate and did not enter a final judgment, and then recently granted leave to reinstate. The court had the power to do this because it has the ability to reconsider its prior interlocutory orders prior to the entry of a final judgment. See Smith v. Massachusetts, 125 S.Ct. 1129, 1139 (2005) (the court has the "inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment"). Moreover, even if the order dismissing the case with leave to reinstate was somehow considered a final order, the court has the power to revisit it under Rule 60(b)(6). See Gonzalez v. Crosby, 125 S.Ct. 2641, 2648 (2005) (Rule 60(b)(6) may be used to attack a defect in the integrity of the federal habeas proceeding and thus may be used to contend that the court erred when it applied the federal statute of limitations for habeas cases).
In addition, the Seventh Circuit has held that in situations such as this, reopening the original case is the proper course of action. Newell v. Hanks, 283 F.3d 827, 834 (7th. Cir. 2002). When the court originally dismissed Bravieri's petition, it did not have the benefit of the Seventh Circuit's subsequent decisions holding that his federal habeas action should have been stayed, rather than dismissed, while the state court ruled on Bravieri's post-conviction petition. See id. According to the Seventh Circuit, vacating the prior dismissal order fixes any statute of limitations problems because it turns the dismissal into a stay. See id. ("By vacating the dismissal, the district court effectively converted it into a stay; this could not have been an abuse of discretion because we now know that staying the action was the right step to take in the first place"). Because the court converted its dismissal into a stay by reopening this case, the case was, in effect, stayed from 1997 until now. See id. Thus, Bravieri's petition is timely.
The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Bravieri has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts which are relevant to Bravieri's § 2254 petition. See People v. Bravieri, No. 1-92-4377 (1st Dist. Aug. 19, 1994) (unpublished order) (direct appeal); People v. Bravieri, No. 1-02-442 & 1-02-443 (1st Dist. Feb. 17, 2004) (unpublished order) (post-conviction appeal).
The state court held separate but simultaneous bench trials for Bravieri and his co-defendant, Richard Zuniga, to determine if they had committed first degree murder in connection with the shooting death of Joann Gasic and the death of Carmen Sarlo due to shooting, stabbing, and blunt trauma. At trial, Sandra Ault testified that she shared an apartment with Gasic. At about 7 a.m. on the morning of December 18, 1988, she was awakened when Bravieri, Zuniga and Sarlo arrived at the apartment. Ault had known Bravieri and Zuniga for some time, and they often came to the apartment.
Bravieri, Zuniga and Sarlo, who were longstanding friends, decided to play cards at the dining room table, and Ault joined them. Everyone except Gasic (who had gone to sleep on the living room couch) ingested cocaine. At some point during the card game, Bravieri left the dining room and headed towards the living room. Ault looked up, saw Bravieri pointing a gun at Gasic and heard him say, "You got to go Joann, you just got to go," followed by the sound of two gunshots.
Bravieri walked back into the dining room and pointed the gun at Ault. The gun went off and Ault dropped to the floor as if she had been shot in the hopes that Bravieri would think she had been killed and leave her alone. Ault then heard Sarlo tell Bravieri and Zuniga that they should leave, but Bravieri told Sarlo, "No, you got to go, Carmie. You got to go, too." Ault testified that a struggle ensued between Sarlo, Zuniga, and Bravieri. In a custodial statement from Zuniga, he said that he returned from the restroom to find Sarlo and Bravieri fighting for control of a shotgun.
Ault managed to flee from the apartment. As she did so, she heard the sounds of a struggle, plus Bravieri telling Zuniga, "You got to shoot him in the head, Ricky. You got to shoot him in the head." She also heard Bravieri going through the silverware drawer where the knives were stored.
The police captured Bravieri and Zuniga at a friend's home where they had removed their bloody clothes, placed them into garbage bags, and changed into clean clothes. While in police custody, Zuniga made a statement to the effect that he and Bravieri were partners in the killings and suggested that Bravieri shot Gasic as a result of cocaine intoxication. He also corroborated Ault's testimony regarding Bravieri's attempt to kill her by telling the police that Bravieri shot at Ault but missed.
Ault also testified that when Bravieri entered the apartment on the day of the murders, he was carrying Zuniga's coat in front of him in a strange manner that suggested that he was hiding a gun under the coat. Upon cross-examination, she admitted that she told the prosecutor this information months before trial but that this statement was not in her grand jury testimony. Bravieri's counsel objected to the admission of Ault's testimony about the coat, claiming that the State had violated its duty to disclose this information prior to trial. The State argued that there was no discovery violation because the statement had not been reduced to writing. The trial court overruled Bravieri's objection and admitted the evidence.
In addition to Ault's eyewitness testimony, the State presented testimony from the medical examiner regarding Gasic's and Sarlo's injuries. Gasic was killed by two shots from a shotgun. Sarlo died from blunt trauma, stabbing, and shooting which occurred over a short period of time, and any of which could have been fatal. In all, he had approximately 22 blunt trauma injuries to his head, 24 stab wounds, and 4 gunshot wounds. In addition, his hands were slashed in what the medical examiner described as "defensive type wounds." The caliber of the bullets recovered from Sarlo's body matched the caliber of a pistol that Zuniga owned and admitted to throwing into a river after Sarlo's death.
Bravieri testified in his own defense. Before the day of the shootings, Gasic asked Bravieri to keep a shotgun that she had been given as payment for cocaine, and Bravieri claimed that he refused to do so. Like Ault, Bravieri also testified that he, Zuniga, and Sarlo arrived at Gasic's apartment early in the morning on December 18, 1988, and they played cards and snorted cocaine. According to Bravieri, however, Sarlo was mad at him and Zuniga because they would not help him take over Gasic's cocaine business.
Thus, Sarlo got up from the table, shot Gasic, and came at him and Zuniga with a gun. With respect to the struggle in the kitchen, Bravieri stated that while he and Sarlo struggled, he stabbed Sarlo in the chest and back using three knives in order to defend himself. Bravieri also testified that Zuniga shot Sarlo and hit Sarlo in the head with a pistol as Sarlo and Bravieri fought with knives. The trial court found that Zuniga and Bravieri were guilty of first degree murder in connection with the deaths of Gasic and Sarlo, and sentenced them to life imprisonment.
B. Bravieri's Direct Appeal
In his briefs filed with the Illinois Appellate Court, Bravieri contended that: (1) the State failed to establish that he was guilty of Sarlo's murder beyond a reasonable doubt; (2) the State prevented him from receiving a fair trial by admitting Ault's testimony regarding Zuniga's coat; (3) the State prevented him from receiving a fair trial by failing to disclose an exculpatory police report; and (4) the burden-shifting provision in Illinois' homicide statute violated his due process rights.
The Illinois Appellate Court declined to disturb the trial court's assessment of the witnesses' credibility or its resolution of the conflicts in the testimony. It thus rejected Bravieri's sufficiency of the evidence claim.
With respect to Bravieri's claim based on Zuniga's coat, the Illinois Appellate Court found that admission of Ault's testimony did not violate state law. It also noted that, in any event, the testimony about the shotgun allegedly under the coat was harmless given that Bravieri testified that Gasic had asked him to keep a shotgun for her. According to Bravieri, he had refused to do so. Thus, accepting this testimony as true, Bravieri would have known that there was a shotgun at the apartment. The Illinois Appellate Court, therefore, observed that regardless of whether Bravieri brought the shotgun to the apartment wrapped in a coat or it was already there, Bravieri would have been aware that there was a gun in the apartment.
Bravieri also took issue with the State's failure to provide him with a copy of a police report prior to trial. The report indicated that an officer investigating the case spoke with Darlene Silvestri, who claimed to have seen Sarlo and Bravieri in a bar the night before the murders. According to the report, Silvestri did not hear what the men were saying, and stated that they appeared to be speaking normally. Characterizing the report as exculpatory, Bravieri contends that production of the report "may have led to evidence which would have corroborated [his] testimony." Bravieri, however, conceded that the State did not have the report in its possession (Bravieri obtained it after Zuniga subpoenaed documents from the Chicago police department).
Citing to Brady v. Marlyand, 373 U.S. 83 (1963), the Illinois Appellate Court held that the State did not suppress the evidence, given that Bravieri admitted that the prosecution did not possess the report and had not seen it at the time of the trial. It also rejected Bravieri's claim that the prosecutor had a duty to look for the report and give it to Bravieri, because the report did not support Bravieri's claim of innocence. Specifically, Silvestri did not hear what Bravieri and Sarlo said at the bar and the record contained ample evidence indicating that Bravieri and Sarlo were friends and socialized together frequently. The Illinois Appellate Court also found that Bravieri's claim that production of the ...