Robert Gacho v. Kim Butler
2015 U.S. App. LEXIS 11481
| 7th Cir. | 2015Background
- In 1984 Robert Gacho was convicted of murder in Judge Thomas Maloney’s Cook County court; Maloney was later indicted and convicted for bribery in Operation Greylord.
- Gacho claims his conviction was tainted by Maloney’s judicial corruption (compensatory bias) and by ineffective assistance/conflict of interest from trial counsel Robert McDonnell.
- Gacho pursued state postconviction relief beginning in 1991; proceedings were slow, with multiple amendments and a 2013 evidentiary hearing; the state trial court denied relief and that decision was under appeal in the Illinois Appellate Court when this appeal was heard.
- Gacho filed multiple federal habeas petitions under 28 U.S.C. § 2254 seeking to excuse exhaustion due to excessive delay in the state process; the district court dismissed the 2013 petition without prejudice for failure to exhaust and invited refiling after state proceedings conclude.
- The district court concluded state proceedings were moving at a reasonable rate and that the exhaustion exception for ineffective state process (§ 2254(b)(1)(B)(ii)) did not apply.
- Gacho appealed the dismissal; the Seventh Circuit dismissed the appeal for lack of appellate jurisdiction because the district court’s dismissal without prejudice was nonfinal and expressly left the door open to refiling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court should excuse exhaustion under § 2254(b)(1)(B)(ii) due to excessive delay | Gacho: 25 years of state postconviction delay makes state process ineffective; federal habeas should proceed now | State/District: State proceedings are ongoing and moving reasonably; exhaustion required | Dismissal without prejudice for lack of exhaustion affirmed as nonfinal; no relief now |
| Whether a dismissal without prejudice is appealable under 28 U.S.C. § 1291 | Gacho: excessive-delay claim makes dismissal functionally final and appealable | State/District: Order explicitly contemplates refiling; therefore nonfinal and not appealable | Order nonfinal and not appealable; appeal dismissed for lack of jurisdiction |
| Whether any exceptions render the nonfinal order appealable (e.g., inability to refile or time-bar) | Gacho: argues Moore is distinguishable because of excessive-delay claim | State/District: No procedural bar prevents refiling; dismissal curable by exhaustion completion | No exceptions apply; Moore controls; dismissal nonfinal |
Key Cases Cited
- Bracy v. Gramley, 520 U.S. 899 (recognizing theory of compensatory bias from judicial corruption)
- Moore v. Mote, 368 F.3d 754 (7th Cir.) (dismissal without prejudice for failure to exhaust is nonfinal and not appealable)
- Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093 (7th Cir.) (dismissal without prejudice is normally nonfinal)
- Schering-Plough Healthcare Prods., Inc. v. Schwarz Pharma, Inc., 586 F.3d 500 (7th Cir.) (no general rule that dismissals without prejudice are always nonfinal; functional finality controls)
- Larkin v. Galloway, 266 F.3d 718 (7th Cir.) (dismissal nonfinal when plaintiff can amend; final when amendment impossible)
- Dolis v. Chambers, 454 F.3d 721 (7th Cir.) (dismissal may be appealable if refiling would be time-barred)
- Stanley v. Chappell, 764 F.3d 990 (9th Cir.) (dismissing appeal for lack of appellate jurisdiction in similar prolonged state postconviction context)