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Gacho v. Lawrence

United States District Court, N.D. Illinois

October 29, 2019

Robert Gacho, N44112, Petitioner,
v.
Frank Lawrence, Acting Warden, Menard Correctional Center, Respondent.

          MEMORANDUM OPINION AND ORDER

          ROBERT W. GETTLEMAN, UNITED STATES DISTRICT JUDGE

         Petitioner 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.[1]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.

         I. Background

         This is 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).

         The 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.

         On 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. at 1155.

         The 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.

         Approximately 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.

         The 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 this. Id.

         The 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.

         Petitioner's 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.

         The 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.)

         Petitioner's 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.

         De Wulf 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 ‘em.” Id.

         The two 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.

         Petitioner 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.

         II. Analysis

         Petitioner 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 out-of-court statements.
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.

         A. Claim A

         Petitioner 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 process).

         The 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.

         The 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.

         Although 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.

         Moreover, 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.

         B. Claim B

         1. Petitioner's Allegations

         Claim 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.[2] 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.

         Maloney 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).

         Petitioner alleges two bribery schemes involving Maloney in his case. He also mentions Maloney's organized crime connections.

         In the 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.)

         McGee 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 bribery. Id.

         Petitioner 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.

         Titone's 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.

         Titone's 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 investigators. Id.

         The 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).

         An 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.)

         The 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.

         Petitioner's 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.

         Petitioner's 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.)

         It is 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.

         Beyond 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.).

         2. The State Court's Review of Petitioner's Claim

         An 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.

         Petitioner's 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.

         The 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.

         Radakovich 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.

         Judge 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. 2006)).

         The 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.

         Despite 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.)).

         In 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 Greylord. Id.

         Maloney 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.

         The 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.

         In 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.

         Equally, 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.

         3. Discovery in this Court

         Petitioner 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).

         As 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. ...


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