U.S. ex rel. Wilson v. Warden Cannon, Stateville Penitentiary

• Decision Date: 28 July 1976
• Docket Number: No. 76-1050,76-1050
• Citation: 538 F.2d 1272
• Parties: UNITED STATES of America ex rel. Clarence Eugene WILSON, Petitioner-Appellant, v. WARDEN CANNON, STATEVILLE PENITENTIARY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1272

538 F.2d 1272

UNITED STATES of America ex rel. Clarence Eugene WILSON, Petitioner-Appellant, v. WARDEN CANNON, STATEVILLE PENITENTIARY, Respondent-Appellee.

No. 76-1050.

United States Court of Appeals, Seventh Circuit.

Argued June 17, 1976.

Decided July 28, 1976.

James A. Klenk, Chicago, Ill., for petitioner-appellant.

Clarence E. Wilson, pro se.

William J. Scott, Atty. Gen., Jayne Carr, Asst. Atty. Gen., Chicago, Ill., for respondent-appellee.

Before TONE and BAUER, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

BAUER, Circuit Judge.

Clarence Wilson appeals from an order denying his petition for a writ of habeas corpus, primarily contending that he was deprived of his right to due process of law through the prosecution's knowing use of perjured testimony to obtain his conviction.

Wilson was convicted in the Circuit Court of Wayne County, Illinois, of murder, felony murder, and attempted burglary. Before sentencing, the prosecution nolle prossed the felony murder count. On direct appeal to the Illinois Supreme Court the convictions on the remaining two counts were affirmed. People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626 (1972). Wilson then filed a petition in the state trial court for post-conviction relief pursuant to the Illinois Post-Conviction Hearing Act, Ill.Rev.Stat.1971, Ch. 38, § 122-1 et seq., alleging that the prosecutor knowingly used perjured testimony to obtain his conviction. After a hearing, the petition was dismissed. ¹ The Illinois Appellate Court affirmed the ruling. Wilson v. People, 13 Ill.App.3d 675, 300 N.E.2d 576 (1973). Without opinion, the Illinois Supreme Court denied petitioner leave to appeal. After again attempting to vacate his conviction in the state courts through a post-conviction action pursuant to Ill.Rev.Stat.1971, Ch. 110, § 72, Wilson filed the instant petition for habeas corpus relief under 28 U.S.C. § 2254, et seq.

I.

The case against the petitioner in the trial court rested primarily on the testimony of four eyewitnesses to the events: two bystanders, Terry Goodwin and Wendel Newcomb, and the petitioner's two accomplices, James Sharp and Donald Lee Mitchell.

Goodwin and Newcomb testified to the following. In the early morning of June 1, 1970, they were riding with Oblong, Illinois, Police Chief Jack Fancil as he patrolled the community. About 2:30 a. m. Fancil drove into the driveway of a local grocery and parked directly in front of the open door to a wire cage enclosing a rear entrance to the store. The officer left his car, drew his handgun, and in Goodwin's words, "hollered twice for somebody to come out." Two men then emerged from the cage and, at Fancil's direction, assumed a spread-eagle position facing the market wall about 5 to 7 feet from the cage. While the two men were against the wall, a third man still in the cage fired at Officer Fancil. Fancil returned the fire before falling to the ground fatally wounded. Newcomb testified that the man closest to the cage also fell down. Neither Goodwin nor Newcomb could identify any of the men involved in the burglary.

The petitioner's accomplices, Sharp and Mitchell, testified that they and the petitioner attempted to burglarize the market. By their account, all three men were in the cage when Officer Fancil arrived and the two of them left the cage upon Officer Fancil's command, Wilson remaining inside. They said that they were spread-eagled against the wall when the shooting began. Mitchell testified that shots came from the cage. Sharp could not pinpoint the source of the shots. Sharp testified to having a gun on his person at the time and admitted discharging it during the shootout, but denied firing at Officer Fancil. Mitchell testified that he did not see Sharp fire any shots.

Wilson and Sharp both were shot during the exchange of gunfire. A ballistics specialist testified that a bullet removed from Wilson's leg possibly could have been fired from Officer Fancil's weapon, but he could not definitely establish its source.

A woman who lived two doors from the grocery store testified that after she was awakened by the shooting she saw one man drag another through the backyard of the home adjacent to the store into the backyard of her home. Wilson was found lying wounded in the woman's backyard. Burglary tools and the weapon used to murder Officer Fancil were found later in the yard through which the man was dragged.

Prior to Wilson's trial, Mitchell pleaded guilty to burglary and Sharp pleaded guilty to murder and attempted burglary. Neither had been sentenced at the time of Wilson's trial. At the trial, both Mitchell and Sharp denied that they had been offered leniency or any other promises in exchange for their testimony. ² Sharp also denied that he had had a chance to discuss the case with Mitchell prior to trial. ³ State's Attorney Robert Whitmer emphasized these matters in his final argument to the jury. ⁴

At the hearing in the state trial court on Wilson's petition for post-conviction relief, both Mitchell and Sharp testified that they had entered into agreements with the prosecution. Sharp disclosed that he pleaded guilty to murder and attempted burglary and agreed to testify against Wilson in exchange for the prosecutor's promise to recommend a sentence of from 16 to 40 years on the murder charge. Mitchell testified that he pleaded guilty to burglary and promised to testify against Wilson in exchange for the prosecutor's promise to drop the murder charge pending against him. Both witnesses testified that the prosecutor had instructed them to deny at trial the existence of any such agreements. After the petitioner's conviction, Sharp received the promised sentence and Mitchell was sentenced only on the burglary charge.

State's Attorney Whitmer testified at the hearing:

"We did have some plea negotiations and promises of sentences provided the facts substantiated their position as a result of the hearing of the facts at the trial of Mr. Wilson. They were promises made upon pleas of guilty provided the facts were as they appeared from both their separate statements."

He then said that there was no formal agreement in exchange for Mitchell and Sharp's testimony, and acknowledged that he had instructed Mitchell to deny, if asked at trial, that he had been promised leniency in exchange for his testimony.

Sharp and Mitchell also disclosed that they conversed in the Crawford County Jail prior to petitioner's trial through a hole in the floor between their cells. Sharp testified that the State's Attorney instructed him to deny that he and Mitchell had talked before trial.

Robert Stewart, the Crawford County Sheriff, testified that to his knowledge Mitchell and Sharp had no opportunity to communicate before trial. He did, however, acknowledge that Sharp was jailed on the floor below Mitchell; that there was a hole in the floor and that it was possible to talk through that hole. State's Attorney Whitmer also testified that to his knowledge Mitchell and Sharp had no opportunity to communicate before trial. Whitmer could not recall whether he had instructed Mitchell and Sharp to deny that they had talked before trial.

During the oral argument before this Court, counsel for the respondent State of Illinois acknowledged that Sharp and Mitchell testified untruthfully at trial regarding their agreements with the prosecutor and that the State's Attorney knew that their testimony on that issue was untruthful.

II.

Petitioner argues that the presentation of the perjured testimony at trial regarding Mitchell and Sharp's plea bargaining and pretrial communications prejudiced his trial so as to deprive him of his right to due process of law under the Fourteenth Amendment.

The district court granted summary judgment to the respondent on these claims on the ground that they were based on factual issues determined by the Illinois court and that the state court record fairly supported such a determination. 28 U.S.C. § 2254(d) (unpublished Memorandum Opinion and Order, No. 74 C 1417, November 25, 1974).

In the context of this case, we think 28 U.S.C. § 2254(d) is inapplicable. The issue of the use of perjured testimony presented in this habeas petition is one of law, not of fact. No question remains regarding whether perjury occurred or whether the prosecutor knew perjury occurred, as counsel for the state acknowledged during oral argument. The only question left is whether the perjured testimony so tainted the trial that the petitioner was deprived of his constitutional right to due process of law. This inquiry involves the application of federal constitutional standards to the facts found in the state post-conviction hearing. The federal courts are obligated to independently conduct such an inquiry. As the Supreme Court stated in Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963):

"Although the district judge may, where the state court has reliably found the relevant facts, defer to the state court's findings of fact, he may not defer to its findings of law. It is the district judge's duty to apply the applicable federal law to the state court fact findings independently. The state conclusions of law may not be given binding weight on habeas."

III.

The federal constitutional standards we must apply were set forth in Giglio v. United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972):

"As long ago as Mooney v. Holohan, 294 U.S. 103, 112, (55 S.Ct. 340, 342, 79 L.Ed. 791) (1935), this Court made clear that deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with 'rudimentary demands of justice.' This was reaffirmed in Pyle v. Kansas, 317 U.S. 213, (63 S.Ct. 177, 87 L.Ed. 214) (1942). In Napue v. Illinois, 360 U.S. 264, (79 S.Ct. 1173, 3 L.Ed.2d 1217) (1959), we said, '(t)he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it...