United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
W. GETTLEMAN, UNITED STATES DISTRICT JUDGE
Robert Gacho, a prisoner incarcerated at the Menard
Correctional Center, brings this pro se habeas
corpus action pursuant to 28 U.S.C. § 2254 challenging
his 1984 double murder, aggravated kidnapping, and armed
robbery convictions from the Circuit Court of Cook
County.Petitioner claims that disgraced Judge
Thomas Maloney, who presided over his case, took a bribe from
Petitioner's codefendant. In exchange, Maloney allegedly
agreed to acquit the codefendant at a bench trial, and as
part of the cover up, promised to insure that Petitioner was
convicted at his jury trial. Petitioner raises 18 claims ---
some as to the alleged bribery, others on unrelated matters.
For the reasons set forth below, the Court denies the
petition on the merits. The Court grants a certificate of
appealability as to the judicial bias claim, but declines to
issue a certificate of appealability on all other claims.
Petitioner's fourth habeas corpus petition in the
Northern District of Illinois. The first three were dismissed
for failure to exhaust available state court remedies.
Gacho v. Butler, 792 F.3d 732 (7th Cir. 2015). Those
prior petitions do not count towards the prohibition on
second and successive petitions, 28 U.S.C. § 2244(b).
Slack v. McDaniel, 529 U.S. 473, 486 (2000);
Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003)
(per curiam). This is Petitioner's “first”
petition for purposes of 28 U.S.C. § 2244(b).
Court draws the following factual history from the state
court record. (Dkt. 22-24.) State court factual findings are
presumed correct, and Petitioner has the burden of rebutting
the presumption by clear and convincing evidence.
Brumfield v. Cain, 135 S.Ct. 2269, 2282 n.8 (2015)
(citing 28 U.S.C. § 2254(e)(1)). Petitioner has not made
such a showing.
December 12, 1982, at approximately 9:15 a.m., a forest
preserve officer came across a parked car by the Des Plaines
River in Lamont, Illinois. Illinois v. Gacho, 522
N.E.2d 1146, 1150 (Ill. 1988) (“Direct
Appeal”). Hearing pounding from inside the trunk
the officer called the local police and fire departments.
Id. The first responders opened the trunk, revealing
two men inside. Id. The men, Tullio Infelise, and
his uncle, Aldo Fratto, were bloodied with their hands tied
behind their backs. Id. Infelise was still alive,
while Fratto was dead. Id. Both suffered multiple
gunshot wounds. Id. at 1156. Infelise was inside the
trunk for six and half hours before his rescue. Id.
officer immediately asked Infelise who did this to him.
Id. at 1151. Infelise responded, “Robert Gott
or Gotch.” Id. The officer had a difficult
time understanding the response because Infelise was in pain
and having trouble breathing. Id. In response to the
question of where the police could find the assailant,
Infelise responded “Florida.” Id.
fifteen minutes after Infelise was freed from the trunk, he
identified “Robert Gacho” as the assailant to the
police. Id. at 1152. Infelise told the police that
“Dino, ” and “Joe” were also
assailants. Id. Dino Titone and Joseph Sorrentino
would later be charged along with Petitioner. Infelise died
from his injuries 16 days later. Id. at 1156-57.
police notified Infelise's wife a few hours after he was
discovered in the trunk. Id. at 1152. Infelise's
brother, Frank, told the police that Petitioner worked with a
third Infelise brother, Rosario. Id. Frank Infelise
said he believed that Tullio Infelise and Fratto had gone to
Gacho's house the night before, but he was not certain of
police arrested Petitioner at his home that same afternoon.
Id. at 1152. Petitioner confessed to the police
later that evening, and a transcribed confession was taken by
a Cook County Assistant State's Attorney. Id. at
1151. Petitioner brought a pretrial motion to suppress the
statement, and repudiated the confession at trial, alleging
that he was physically and mentally coerced by the police.
Id. Maloney rejected Petitioner's motion to
suppress, and Petitioner's confession was introduced at
trial. Id. at 1152-54.
confession stated that he, along with codefendants Sorrentino
and Titone, met victims Infelise and Fratto at
Petitioner's home late in the evening of December 11,
1982. Id. at 1151. The victims brought three
quarters of a kilogram of cocaine to sell to Petitioner,
Titone, and Sorrentino. Id. However, the assailants
robbed the victims of their money and drugs. Id.
victims were driven to Lamont where they were shot.
Id. Petitioner did not shoot the victims, instead
waiting in a second car. Id. He heard a total of
eight shots. Id. The assailants took cocaine, as
well as somewhere between $1, 500 to $2, 000 from the
victims. Id. Petitioner received $500 and half of
the cocaine. Id. Petitioner told Sorrentino to take
his share of the cocaine, so it was not stored in
Petitioner's home. Id. The police recovered
cocaine from Sorrentino's girlfriend's home. (Dkt.
23-9, pg. 7-9.)
girlfriend, Katherine De Wulf, testified on behalf of the
prosecution at trial. Direct Appeal, 522 N.E.2d at
1150. (Petitioner was married with a wife and two young
children while romantically involved with De Wulf.) De Wulf
explained that Petitioner called her sometime between 10:30
and 11:00 p.m. on the evening of December 11, 1982,
instructing her to drive to his house because he needed a
“back-up car.” Id. He told her he would
call her later that evening when she needed to arrive.
Id. Petitioner summoned De Wulf to his home at 1:45
a.m. on December 12th. Id.
parked in the alley behind Petitioner's home.
Id. She witnessed Sorrentino walk out of the home
with the two victims. Id. She recognized the victims
because she had previously seen them at Petitioner's body
shop. Id. The victims' hands were tied behind
their backs as they walked to a blue car. Id.
Sorrentino sat in the blue car's driver's seat, while
Titone was in the front passenger's seat. Id.
The victims were in the backseat of this car. Id.
Petitioner exited his home and sat in the front passenger
seat of De Wulf's car. Id. He gave her a gun to
put in her purse, but she was unable because the gun was too
large. Id. Petitioner told De Wulf that they were
taking the victims somewhere to “waste
cars departed from Petitioner's home with the blue car in
the lead followed by De Wulf's car. Id. After a
few blocks, Petitioner told De Wulf he wanted to drive, and
they switched positions. Id. The caravan traveled
approximately 30 minutes to the area in Lamont where the
victims were later discovered shot in the trunk. Id.
Once at the forest preserve, Petitioner and De Wulf stopped
while the first car travelled down a gravel or dirt road.
Id. De Wulf heard “several” gunshots.
Id. Titone and Sorrentino came walking up the road
to De Wulf's car. Id. They reported that they
shot the victims, who were dead. Id. They said the
victims begged for their lives, but, Titone and Sorrentino
“just laughed” at their pleas. Id. De
Wulf and the three assailants drove back to Petitioner's
home discussing the robbed cocaine on the way. Id.
was found guilty by a jury, and sentenced to death.
Id. at 1149. The Supreme Court of Illinois affirmed
the convictions on direct appeal, but vacated the death
penalty sentence and remanded for resentencing. Id.
at 1166. Petitioner was resentenced to life imprisonment.
Illinois v. Gacho, 967 N.E.2d 994, 996 (Ill.App.Ct.
2012) (“Post Conviction Appeal I”). He
then filed a postconviction petition. Id. The state
trial court initially dismissed the petition, but the
appellate court remanded for an evidentiary hearing.
Id. The trial court denied the petition following
the evidentiary hearing, and the appellate court affirmed.
Illinois v. Gacho, 53 N.E.3d 1054, 1054 (Ill.App.Ct.
2016) (“Post Conviction Appeal II”). The
state postconviction petition proceedings concluded with the
denial of the petition for leave to appeal (PLA) by the
Supreme Court of Illinois. Illinois v. Gacho, No.
120808, 60 N.E.3d 877 (Ill. Sept. 28, 2016) (Table).
Petitioner now brings the instant habeas corpus petition
before this Court.
raises the following claims in the habeas corpus petition:
A. Inordinate delay by the state courts in resolving
Petitioner's postconviction petition.
B. Maloney's participation in the case denied Petitioner
a fair and impartial trial.
C. Ineffective assistance of trial counsel when
Petitioner's counsel attempted to bribe Maloney.
D. Ineffective assistance of trial counsel when counsel was
suffering from an actual conflict.
E. Ineffective assistance of trial counsel for various errors
made by counsel during trial.
F. A Fourth Amendment violation when the officers wrongfully
arrested Petitioner at his home.
G. The police wrongfully interrogated Petitioner after he
invoked his right to counsel.
H. Maloney wrongfully excused a juror from the case.
I. The prosecution wrongfully introduced impermissible
J. The prosecution wrongfully brought up the improper
out-of-court statements during closing arguments.
K. There is insufficient evidence to support the conviction.
L. The prosecution examined Petitioner on improper topics.
M. A prior consistent statement was wrongfully introduced
into evidence at trial.
N. The prosecutors wrongfully cross-examined Petitioner's
wife on improper topics.
O. Petitioner's wife's gun was wrongfully introduced
into evidence at trial.
P. Improper hearsay evidence was introduced at trial.
Q. The prosecution's closing argument improperly
minimized the burden of proof.
R. Ineffective assistance of appellate counsel.
asserts inordinate delay in the adjudication of his state
postconviction petition. It took the state courts 25 years to
complete Petitioner's postconviction proceedings. See
Post Conviction Appeal II, 53 N.E.3d at 1057 (stating
that Petitioner's initial postconviction petition was
filed in the state court on February 15, 1991);
Gacho, No. 120808, 60 N.E.3d at 877 (Table) (denial
of PLA on September 28, 2016, completing postconviction
Court previously addressed the inordinate delay arguments in
a previously habeas corpus petition. Gacho v.
Harrington, No. 13 C 4334, 2013 WL 5993458, at *1 (N.D.
Ill. Nov. 7, 2013). In 2001, this Court denied
Petitioner's inordinate delay argument, holding that many
of the delays in the state court were attributable to
Petitioner. Id. In 2007, Petitioner renewed his
inordinate delay argument. The Court expressed “serious
concerns” about the delay, but the argument was
voluntarily withdrawn via an agreement of the parties.
Id. In 2013, the Court held that there was no
inordinate delay because the state court was actively
adjudicating Petitioner's claims at that time.
Id. at *2. Petitioner appealed the Court's
inordinate delay ruling, but the Seventh Circuit dismissed
the appeal for want of appellate jurisdiction.
Gacho, 792 F.3d at 737.
state court completed the adjudication of Petitioner's
postconviction proceedings prior to the filing of the present
habeas corpus petition. Gacho, No. 120808, 60 N.E.3d
at 877 (Table). Petitioner's present argument is not that
inordinate delay should excuse completing the state court
proceedings, but instead the 25 years it took the state
courts to resolve his postconviction petition prejudiced him
through the death of witnesses who supported his claims.
inordinate delay can excuse the exhaustion requirement, it is
not a free-standing ground for habeas corpus relief.
Jackson v. Duckworth, 112 F.3d 878, 880-81 (7th Cir.
1997). There is no constitutional right to bring a state
postconviction petition, “let alone [a] prompt”
one. Montgomery v. Meloy, 90 F.3d 1200, 1206 (7th
Cir. 1996) (citing Pennsylvania v. Finley, 481 U.S.
557 (1987)). A prisoner must point to a separate federal
constitutional right violated in his postconviction
proceedings to raise a claim, and a delay in a postconviction
proceeding does not violate federal due process.
Jackson, 112 F.3d at 881. Consequently, Petitioner
invokes no freestanding constitutional ground.
even if Petitioner could identify a freestanding
constitutional claim, his argument that he was prejudiced is
refuted by the record. It is true that three witnesses were
deceased by the time the state trial court conducted an
evidentiary hearing on his postconviction claims in 2013, but
the state court allowed the introduction of previously
obtained affidavits from these witnesses. Post Conviction
Appeal II, 53 N.E.3d at 1058. There is no indication
that Petitioner was prejudiced by the length of his
postconviction proceedings. Claim A is denied.
two is the Maloney judicial bias claim. Maloney, who presided
over Petitioner's trial, served as a Cook County Circuit
Court judge from 1977, until his retirement in 1990.
United States v. Maloney, 71 F.3d 645, 649 (7th Cir.
1995). “Maloney was one of the many dishonest judges
exposed and convicted through Operation Greylord, a
labyrinthine federal investigation of judicial
corruption” in the Circuit Court of Cook County.
Bracy v. Gramley, 520 U.S. 899, 901 (1997). He was
indicted in 1991, and a federal jury convicted him in 1993 of
racketeering conspiracy, racketeering, extortion under the
color of official right, and obstruction of justice in
connection with taking bribes to fix four separate cases ---
an attempted murder case, a deceptive practices case, and two
murder cases. Bracy, 520 U.S. at 901;
Maloney, 71 F.3d at 649. Maloney took bribes through
the use of a bagman --- first his bailiff, Lucius Robinson,
and later a lawyer, Robert McGee, with whom Maloney
previously practiced before becoming a judge.
Maloney, 71 F.3d at 650.
was a defense attorney prior to becoming a judge.
Bracy, 520 U.S. at 901. He had close ties to
organized crime, who often paid off judges in criminal cases.
Id. at 901-02. Maloney utilized these corrupt
relationships to solicit bribes for himself once he became a
judge. Id. Maloney developed a reputation as a
strict prosecution oriented judge. Bracy v. Schomig,
286 F.3d 406, 413 (7th Cir. 2002) (en banc). He adopted the
tough persona intentionally to deflect suspicion from his
criminal activities, and to encourage defendants before him
to pay him bribes. Id. Maloney died in 2008.
United States ex rel. Wadley v. Hulick, No. 06 C
258, 2008 WL 4724429, at *7 n.2 (N.D. Ill. Oct. 24, 2008).
alleges two bribery schemes involving Maloney in his case. He
also mentions Maloney's organized crime connections.
first bribery scheme, codefendant Dino Titone's father
alleged that he agreed to pay a bribe to Maloney on his
son's behalf. (Dkt. 23-14, pg. 69.) The scheme,
facilitated through Dino Titone's attorney, Bruce Roth,
had Titone's father pay Maloney $10, 000. Post
Conviction Appeal II, 53 N.E.3d at 1057. Titone's
father neither spoke directly to Maloney nor gave him the
money; instead Roth presented the bribery scheme to
Titone's father, and allegedly acted as the go between.
Id. According to Titone's father, Roth said he
would give the $10, 000 to Maloney's bagman (McGee), who
then would pass the money onto Maloney. (Dkt. 23-14, pg. 69.)
was convicted in Greylord. United States v. McGee,
No. 97 C 3129, 1997 WL 757411 (N.D. Ill. Nov. 21, 1997). So
too was Roth. United States v. Roth, 860 F.2d 1382,
1383 (7th Cir. 1988). Roth's Greylord case showed he was
a broker who matched willing lawyers and judges open to
and Titone's trials before Maloney were severed, but
conducted simultaneously with Petitioner proceeding before a
jury, and Titone taking a bench trial. Post Conviction
Appeal II, 53 N.E.3d at 1057. According to the
father's affidavit, Maloney agreed to acquit Titone, and
promised to insure Petitioner and Sorrentino were convicted
as cover. Id.
father explained that Maloney had an upcoming judicial
retention election a year later in 1984. (Dkt. 23-14, pg.
70.) The father understood that convicting Petitioner and
Sorrentino would give Maloney sufficient cover for the
election allowing him to acquit Titone. Id.
father's affidavit also alleged that Roth and Maloney
discussed the then ongoing Greylord investigation.
Id. According to Titone's father, Roth allegedly
assured Maloney that he would not cooperate with
purported deal apparently fell through as Maloney found
Titone guilty and sentenced him to death. Id.
Titone's father's affidavit presents a number of
possible theories as to what happened (including that Roth
stiffed Maloney, or Roth and/or Maloney got cold feet in
light of the upcoming election and/or Greylord
investigation). (Dkt. 23-14, pg. 70-71.) The affidavit is
clear that Titone's father does not know what happened to
the bribery agreement, only that Titone was not acquitted as
promised by Roth (purportedly on Maloney's behalf).
affidavit from Roth is also in the record. (Dkt. 23-20, pg.
41.) Given in 1988, while in federal custody for his Greylord
case, Roth explains that he was unwilling to give an
affidavit regarding the Titone case until his own federal
prosecution was complete. Id. He did speak to
Titone's postconviction attorney, Ian Ayers, who provided
his own affidavit detailing his discussions with Roth while
Roth was in federal custody. Ayers's affidavit
memorializing his conversations with Roth makes no mention of
Petitioner. (Dkt. 23-20, pg. 43-47.)
second alleged scheme involved a bribe of Maloney suggested
by Petitioner's initial attorney, Daniel Radakovich.
Post Conviction Appeal II, 53 N.E.3d at 1058.
Petitioner alleges that Radakovich, who had been hired by one
of Petitioner's friends to represent Petitioner, told
Petitioner that Maloney would acquit him if he paid a bribe
of $60, 000, or the equivalent in cocaine. Id.
Although interested, Petitioner and his family could not
raise the necessary money or drugs. Id. Radakovich
allegedly became disinterested in Petitioner's case once
it became clear that Petitioner could not come up with the
bribe money. Id. Petitioner again spoke to his
friend about a new lawyer, and soon after his aunt hired
Robert McDonnell. Id.
mother provided an affidavit attesting that Radakovich told
her that Maloney could be bought for $60, 000. Id.
at 1057. She responded that she could not raise that amount
of money. Id. Petitioner's aunt also provided an
affidavit attesting that Petitioner told her that the judge
could be bribed. Id.
final argument regarding Maloney's alleged bias is that
one of the victims, Tullio Infelise, was a member of
organized crime. He also points out that Maloney had known
connections to organized crime. Bracy, 520 U.S. at
901-02. Petitioner does not explain the relevance of the
organized crime allegation, instead adding it to the
case's milieu as an “additional fact of import
which applies to Judge Maloney's bias in the case. . .
.” (Dkt. 1, pg. 22.)
true that organized crime is in the ether of this case.
Beyond Maloney, Petitioner's second attorney, McDonnell,
who replaced Radakovich, had his own underworld connections.
Considered an “outfit” lawyer, Bracy,
286 F.3d at 414, McDonnell was the son-in-law of Sam
Giancana, longtime boss of the Chicago Outfit.
Gacho, 792 F.3d at 734. McDonnell served a two-year
federal sentence for conspiracy to distribute counterfeit
money in 1966, and was convicted of income tax evasion in
1968. Bracy, 286 F.3d at 414. He was disbarred in
1972, but reinstated in 1980. Id. In 1989, he was
convicted of conspiracy to defraud the government, and
solicitation to influence the operation of an employee
benefits plan. Id. He was sentenced to six years
imprisonment, and withdrew his name from Illinois's roll
of attorneys to avoid disbarment for a second time.
Id. McDonnell died in 2006. Trevor Jensen,
Robert McDonnell: 1925-2006, Chi. Trib., Nov. 7,
2006, at 4.
McDonnell and Maloney, Petitioner alleges that the Infelise
family were members of organized crime, and codefendant
Titone was related to noted mobster Frank Calabrese, Sr.
(Dkt. 1, pg. 22.).
The State Court's Review of Petitioner's
evidentiary hearing on Petitioner's postconviction
petition was held before Cook County Circuit Court Judge
Diane Cannon. (Dkt. 23-22, pg. 66-180; Dkt. 23-23, pg.
2-139.) Titone's father, and Petitioner's mother and
aunt had all passed away by the time of the evidentiary
hearing. Post Conviction Appeal II, 53 N.E.3d at
1059. Judge Cannon, however, allowed the introduction of
their affidavits into evidence. Id. Petitioner
testified on his own behalf at the hearing, reasserting his
claim that Radakovich told him that Maloney could be bought,
and he became disinterested in the case once Petitioner and
his family could not raise the money. Id. at 1058.
other witness was Ronald Barrow. Id. Barrow, who is
serving a life sentence for an unrelated murder, testified
that he met Titone in May 1995, at the Cook County Jail while
Barrow was waiting to testify on a different matter.
Id. According to Barrow, Titone said, “he felt
it was bad karma when the judge double crossed him on a deal
he had made to slam Bob Gacho and convict him.”
Id. Titone, per Barrow, had said that his father
paid the $10, 000 bride to Malone. Id.
state impeached Barrow with the jail's records showing
that Barrow was not there after May 1995, while Titone was at
the jail between October 1997, and October 1998. Id.
testified on the state's behalf at the hearing.
Id. He denied engaging in any type of misconduct and
denied saying to Petitioner or anyone that Maloney could be
bribed. Id. He further claimed to actively
participate in Petitioner's case because he had filed
pretrial answers to discovery, and prepared a motion to
suppress on Petitioner's behalf. Id.
Cannon denied Petitioner's judicial bias claim (Dkt.
22-5, pg. 46-48.), and the state appellate court affirmed.
Post Conviction Appeal II, 53 N.E.3d at 1061-63. The
state appellate court's decision is the subject of this
Court's review because it was the last state court
decision to address Petitioner's claim on the merits.
Harris v. Thompson, 698 F.3d 609, 623 (7th Cir.
2012) (citing Green v. Fisher, 565 U.S. 34, 40
(2011); Garth v. Davis, 470 F.3d 702, 710 (7th Cir.
state appellate court concluded that, “[t]here is no
direct evidence in the record that Maloney solicited,
received, or agreed to accept a bribe to influence his
rulings in defendant's case.” Post Conviction
Appeal II, 53 N.E.3d at 1061. As to Titone, the
appellate court recognized that the father's affidavit
“consists nothing more than hearsay, ” of what
Roth allegedly told the father. Id. at 1062.
the fact that there was no evidence to support the Titone
bribery allegation, the appellate court recognized that there
were two decisions that “make a factual reference to
Titone having given Maloney a $10, 000 bribe to find him not
guilty but that Maloney convicted him anyway and sentenced
him to death.” Id. at 1061 (citing
Bracy, 286 F.3d at 412; United States ex rel.
Titone v. Sternes, No. 02 C 2245, 2003 WL 21196249, at
*1 (N.D. Ill. May 15, 2003) (Zagel, J.)).
Titone's 28 U.S.C. § 2254 case, Judge Zagel's
opinion found that Titone paid a $10, 000 bribe to Maloney
for an acquittal. United States ex rel. Titone, No.
02 C 2245, 2003 WL 21196429, at *1. Judge Zagel stated,
“there was evidence that [Roth] paid Judge Maloney $10,
000 to find [Titone] not guilty, ” but Maloney returned
the money after he found out he was under investigation in
convicted Titone and sentenced him to death “presumably
in an effort to protect himself from bribery and conspiracy
charges.” Id. This resulted in the state court
granting Titone's postconviction petition and ordering a
retrial. Id. Titone was convicted at retrial, and
that new conviction was the subject of the habeas corpus
petition before Judge Zagel, which he denied. Id.
Seventh Circuit's Bracy en banc decision also
discusses Titone's case. Titone was not before the
Seventh Circuit in Bracy; instead his case was used
as an example of Maloney engaging in compensatory bias. 286
F.3d at 412. The Seventh Circuit stated that Titone paid the
$10, 000, but Maloney convicted him anyway “to deflect
suspicion from himself.” Id. Notably, there is
no mention of Petitioner in either the Seventh Circuit's
Bracy opinion or Judge Zagel's ruling on
Titone's habeas corpus petition.
light of the statements in those cases, the state appellate
court “assume[d],  for the purposes of our analysis,
that Titone did bribe Maloney, and that Maloney convicted
Titone to deflect suspicion from himself.” Post
Conviction Appeal II, 53 N.E.3d at 1061. However, the
appellate court held that even under that assumption, there
was no evidence that Maloney also engaged in compensatory
bias against Petitioner. Id. at 1063.
the state court found there was no evidence that Petitioner
ever attempted to bribe Maloney. Id. at 1061. Judge
Cannon credited Radakovich's testimony, finding him
credible, and rejected Petitioner's testimony as
incredible. Id. She further found that the
affidavits from Petitioner's mother and aunt contained
hearsay, and also were incredible. Id. The appellate
court found no reason to reject Judge Cannon's
credibility determinations. Id. Concluding that
there was no evidence of either bias as the result of direct
bribery or compensatory bias, the state appellate court
affirmed the denial of Petitioner's judicial bias claim.
Discovery in this Court
did not seek discovery on his judicial bias claim in this
Court. However, the Court briefly considers the discovery
question sua sponte because the Supreme Court
granted the prisoners in Bracy v. Gramley leave to
conduct discovery on their judicial bias claims regarding
Maloney. 520 U.S. 889 (1997). The Court concludes discovery
is improper in this case due to the intervening passage of
the Antiterrorism and Effective Death Penalty Act, (AEDPA),
as well as the Supreme Court's decision in Cullen v.
Pinholster, 563 U.S. 170, 185 (2011).
mentioned, the prisoners in Bracy were given leave
to conduct discovery as to their judicial bias claim.
However, Bracy applied the pre-AEDPA standards from
Harris v. Nelson, 394 U.S. 286 (1969), and Rule 6(a)
of the Rules Governing Habeas Corpus Cases Under Section
2254. 520 U.S. at 904, 908-09. Although the AEDPA was enacted
a year earlier, the Supreme Court understandably did not
discuss the AEDPA in Bracy because it was a death
penalty case, and Congress explicitly exempted pending death
penalty cases from a retroactive application of the AEDPA.