172 F.3d 991 (7th Cir. 1999), 98-1722, Crivens v. Roth

Docket Nº:98-1722.
Citation:172 F.3d 991
Party Name:Algie CRIVENS, Petitioner-Appellant, v. Thomas P. ROTH, Warden, Dixon Correctional Center, Respondent-Appellee.
Case Date:April 12, 1999
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 991

172 F.3d 991 (7th Cir. 1999)

Algie CRIVENS, Petitioner-Appellant,


Thomas P. ROTH, Warden, Dixon Correctional Center,


No. 98-1722.

United States Court of Appeals, Seventh Circuit

April 12, 1999

Argued Dec. 4, 1998.

Rehearing Denied April 28, 1999.

Page 992

[Copyrighted Material Omitted]

Page 993

Brian D. Roche, J. Samuel Tenenbaum (argued), Lisa J. Krasberg, Henry Pietrkowski, Sachnoff & Weaver, Chicago, IL, for Petitioner-Appellant.

Domenica Osterberger (argued), Office of Attorney General, Chicago, IL, for Respondent-Appellee.

Before POSNER, Chief Judge, and EASTERBROOK and KANNE, Circuit Judges.

KANNE, Circuit Judge.

After exhausting his state remedies, 1 Algie Crivens asks this Court to release him from the Dixon Correctional Center in Dixon, Illinois, under a writ of habeas corpus, alleging that he was denied due process when the State of Illinois failed to provide him, as he requested, with the criminal records of the state's witnesses. We agree that this failure violated the law established in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and, therefore, reverse the district court's decision and order it to grant the writ.

I. History

Crivens filed his petition for a writ of habeas corpus in 1994. In 1992, after a bench trial, the judge found Crivens guilty of first degree murder for shooting Cornelius "Corndog" Lyons in a Jewel parking lot in Chicago in 1989. In his initial motion for discovery in 1989, Crivens requested the "[p]rior criminal records of State's witnesses to be used for impeachment" as well as any pending criminal or civil actions against those witnesses involving the State of Illinois or a subdivision of it. In response, the state answered that "[t]he People have no knowledge at this time that any of its potential witnesses have any criminal convictions." Crivens subsequently filed a "Motion for Production of Arrest Records" in which he stated that the state had not complied with his previous request for "rap sheets with respect to all state witnesses." He also requested "all records of any arrests or cases pending at the time of the arrest of [Crivens] or during the course of this case" and moved to require the state to "make specific inquiries of each of its witnesses as to any criminal convictions within the last 10 years or of any time in custody within the last 10 years." In response to this motion, the trial court ordered the state to tender "all records of any arrests or cases pending at the time of the arrest of [Crivens] or during the course of this case, of any state witnesses," as well as the rap sheets of all state witnesses and to make the specific inquiries requested by Crivens. The record does not contain a response from the state with regard to this second request, and Crivens did not pursue the matter further, assuming the lack of response indicated no such information existed.

At trial, the state presented the testimony of Julius Childs, who was a friend of Lyons and was with him when he was shot. Childs described the shooter to police as a black man with a light complexion and blond hair who was about six feet tall and weighed 140-150 pounds. At trial, he identified Crivens as the man he had seen fire the gun. The state also introduced the testimony of Odell Kelly, also a friend of Lyons, who was inside the Jewel store when he heard the shot ring out. He

Page 994

testified to seeing Crivens running away from the scene.

As part of his defense, Crivens attempted to introduce the testimony of Titonia Smith. Crivens proffered that Smith would testify that Marcus Williams had confessed to Smith that he, and not Crivens, had shot Lyons. The court refused to hear Smith's testimony on the ground that it was unreliable hearsay. Crivens presented the remainder of his case, which included the testimony of Williams, who denied having confessed and having shot Lyons.

After submission of evidence had been concluded, the judge found Crivens guilty. In its findings, the court focused predominately on the testimony of Childs and Kelly, concluding that their testimony was credible. "I didn't hear any reason why either one of them would get on the stand and lie." The court then sentenced Crivens to twenty years imprisonment.

Crivens moved for a new trial based on a claim of newly discovered evidence. He claimed that Demetrius Taylor, who had not testified during Crivens's trial, had identified Williams as the person who shot Lyons. The state court held an evidentiary hearing based upon this information. During this hearing, Taylor testified that he saw Williams shoot Lyons and that Williams was the only person with a gun the evening of the shooting. The court denied Crivens's motion, concluding that the testimony would not change the outcome of the trial.

After exhausting his state appeals, Crivens filed a motion for a writ of habeas corpus in federal district court. He alleged that the state violated his constitutional right to due process when the trial court refused to admit Smith's testimony and grant his motion for a new trial based upon the newly discovered evidence. He also claimed that the state's suppression of Childs's criminal history violated his constitutional rights. Six years after his trial, Crivens learned that Childs had been convicted of possessing crack cocaine with the intent to deliver it and had been sentenced to thirty months probation before Crivens's trial began. During this probation period and four months before Crivens's trial, Childs had been charged with criminal trespass to a vehicle after being arrested for driving a stolen car. Because he failed to appear in court on this second charge, a warrant was issued for his arrest. The state had not disclosed this information to Crivens upon his request or the order of the trial court. Crivens contended this failure to disclose Childs's criminal history violated the government's obligation to turn over such information as required by Brady.

The district court denied Crivens's petition. It concluded that Smith's testimony did not assure a level of trustworthiness that would permit the testimony to come into evidence as a declaration against interest. With regard to Taylor's testimony, the district court agreed with the state trial court, concluding that it also lacked sufficient indicia of trustworthiness. In addition, the district court noted that the state trial court heard either the offer of proof or the actual testimony of these witnesses, was able to determine credibility, and knew the substance of the evidence these individuals offered when reaching its decision. Finally, the district court found no merit to Crivens's Brady claim. It concluded that the criminal history was immaterial because the conviction occurred after Lyon's murder, but before Childs testified. In addition, the district court found no evidence existed that would lead it to conclude Childs would have changed his testimony as a result of the conviction or that the trial court would have looked upon Childs's record as altering his credibility. Crivens appeals this decision.

II. Analysis

Under the habeas statute, 2 federal courts "shall entertain an application for a

Page 995

writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (1994). Crivens claims that the state denied him his right of due process under the Fourteenth Amendment to the United States Constitution in three respects: by failing to admit Smith's testimony; by refusing to grant his motion for a new trial based upon newly discovered evidence; and by suppressing Childs's criminal history. Because we resolve Crivens's Brady claim in his favor, we need not reach the merits of his other claims regarding Smith's and Taylor's testimony.

  1. Standard of Review

    In reviewing Crivens's allegations of constitutional error in the context of a habeas petition, we apply a de novo standard of review. See Milone v. Camp, 22 F.3d 693, 698 (7th Cir.1994). However, with regard to the state court's determination of historical factual issues, we apply the presumption of correctness. See Porter v. Gramley, 112 F.3d 1308, 1316 (7th Cir.1997) (concluding that the presumption of correctness applies under either pre or post-AEDPA law with regard to determinations of factual issues), cert. denied, --- U.S. ----, 118 S.Ct. 886, 139 L.Ed.2d 873 (1998). Under this presumption, if in state court the petitioner had " 'a full and fair hearing ... resulting in reliable findings,' the federal court 'ordinarily should ... accept the facts as found' by the state tribunal." Thompson v. Keohane, 516 U.S. 99, 109, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995) (quoting Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963)). Factual findings that depend upon credibility determinations should be afforded such deference. Id. at 111, 116 S.Ct. 457. However, we do not afford this deferential standard to mixed questions of law and fact. See Brewer v. Aiken, 935 F.2d 850, 855 (7th Cir.1991).

  2. Procedural Default

    Before we examine the merits of Crivens's habeas appeal, we must ensure that he exhausted his state remedies and did not procedurally default on the issues. See Jones v. Washington, 15 F.3d 671, 674-75 (7th Cir.1994), overruled on other grounds by Hogan v. McBride, 74 F.3d 144, 147 (7th Cir.1996). The district court found that Crivens had exhausted his state remedies and did not default on any of his claims. The state, however, argues that Crivens procedurally defaulted on his Brady claim by not first submitting it to the state courts.

    We agree with the district court's assessment that Crivens did not procedurally default on his Brady claim. As a general rule, habeas petitioners must first...

To continue reading