Shore v. Warden, Stateville Prison

• Decision Date: 30 August 1991
• Docket Number: No. 90-2653,90-2653
• Citation: 942 F.2d 1117
• Parties: Steve SHORE, Petitioner-Appellee, v. WARDEN, STATEVILLE PRISON, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1117

942 F.2d 1117

Steve SHORE, Petitioner-Appellee, v. WARDEN, STATEVILLE PRISON, Respondent-Appellant.

No. 90-2653.

United States Court of Appeals Seventh Circuit.

Argued Feb. 13, 1991.

Decided Aug. 30, 1991.

Andrea Lyon (argued), Office of Cook County Defender, Evanston, Ill., for petitioner-appellee.

Neil F. Hartigan, Atty. Gen., Richard S. London, Asst. Atty. Gen. (argued), Office of the Atty. Gen., Terence M. Madsen, Asst. Atty. Gen., Kathryn M. Frost, Office of the Atty. Gen., Criminal Appeals Div., Chicago, Ill., for respondent-appellant.

Before MANION and KANNE, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

Petitioner Steve Shore was convicted of the 1982 murder of a security guard in Chicago, Illinois and was sentenced to 35 years imprisonment. His first petition for a writ of habeas corpus under 28 U.S.C. § 2254 was denied. On December 12, 1989, he filed his second petition for a writ of habeas corpus contending that he was entitled to a new trial on the basis of newly discovered evidence in the form of the recanted testimony of one of the state's witnesses, and that the trial court violated his "constitutional" rights when it denied him that relief. Judge Paul Plunkett, the United States District Court for the Northern District of Illinois, denied Shore's first petition, but granted the second. The State of Illinois, on behalf of the Warden of Stateville Prison, appeals, contending that the district court improperly applied the standard of review by which it was bound and improperly substituted its own credibility findings for those of the trial court. We agree, and accordingly reverse the judgment of the district court.

PRIOR PROCEEDINGS

A. The First Petition For Habeas Corpus

The underlying facts of this case are set forth in this court's opinion affirming the denial of Shore's first petition for habeas corpus which challenged the credibility of the state's key witnesses, David "Bo" Burns and Chester "Blood" Bland. See United States ex rel. Shore v. O'Leary, 833 F.2d 663, 664-65 (7th Cir.1987). In denying that petition, Judge Plunkett acknowledged that had he been the factfinder, he probably would not have found Shore guilty, but noted that he was bound by the general rule in habeas cases which prohibits appellate review of credibility "absent extraordinary circumstances." United States v. Tanner, 471 F.2d 128, 135 (7th Cir.), cert. denied, 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220 (1972); United States v. Noble, 754 F.2d 1324, 1332 (7th Cir.), cert. denied, 474 U.S. 818, 106 S.Ct. 63, 88 L.Ed.2d 51 (1985). Judge Plunkett concluded that such circumstances were not present in Shore's case; that the trial court's credibility determinations were adequately supported by the record before the state court when viewed in its entirety and in a light most favorable to the state as required under Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); and that Shore's petition for habeas relief should be denied. We affirmed. United States ex rel. Shore v. O'Leary, 833 F.2d 663 (7th Cir.1987) ("Shore I ").

B. Shore's Second Petition for Post-Conviction Relief

When we affirmed the district court's denial of shore's first habeas petition, we did not address in detail the trial testimony of one of the state's witnesses, Myra Sexton. It was unnecessary. Sexton was not an eyewitness to the murder. Her testimony At trial, Sexton testified that she was in front of her apartment building on Drexel Avenue around 7:00 or 8:00 p.m. with Shore, Burns, Bland, Willie Adams and Andrew "Rab" Shaffer when Shore and Adams got into an argument over a television set. She went up to her apartment during the argument and looked out her window. She saw Shore and Adams walk across the street to the park, talk for a while and then return. After they came back, Adams said something to Shore and the next thing she knew Shore had a gun. Sexton called to Shore and asked him to come upstairs; when he did, she asked him if he wanted "to leave the gun and go cool out." Shore purportedly made no reply, and left. Sexton testified that she did not know what Shore did with the gun, and that after he left her apartment she closed the window and did not see Shore, Burns, Bland or Adams again that night. Burns' and Bland's testimony regarding the argument between Shore and Adams was virtually identical to Sexton's.

merely corroborated that of the state's key witnesses, Burns and Bland, with regard to an incident which occurred on the day of the murder and placed Shore at the scene several hours before the murder and in possession of a gun.

On March 17, 1987, Shore filed a Post-Judgment Petition for Relief from Judgment in the state court alleging that Myra Sexton had committed perjury in exchange for money. A fact which, according to the petition, was unknown to Shore's counsel until March 1986 and could not have been discovered before trial. The petition was supported by the affidavit of Mark Rachel in which Rachel attests that Sexton told him she was paid by "some dudes" whom she identified as El Rukns "to lie against Steve in court and to say she had seen him with a gun when she had not." Shore also attached a signed statement by Myra Sexton in which she states that while she did see Shore and Adams arguing about a television set on the day of the shooting, the argument occurred in the morning, and not at night. She also states that before the argument started, Adams handed Shore a gun, that Shore looked at the gun, and returned it to Adams, and that she and a girlfriend whom she identified only as "Zeke" were with Shore, "Bo," "Blood" and "Rab" in front of her apartment from 3:00 to 7:00 p.m. when the group broke up, and she went inside where she stayed for the rest of the night.

The state court, Judge Heyda, conducted an evidentiary hearing on Shore's motion for post-conviction relief, during the course of which both Rachel and Sexton testified. Sexton initially testified that she did not know Rachel; that she had never been paid to testify against Shore; and that she did not lie under oath at Shore's trial. Her testimony changed, however, after the defense called Rachel to the stand.

Rachel testified that during a conversation with Sexton in June 1986, she mentioned a mutual acquaintance, Robert Lee, and a man identified only as "Steve," and stated that she had been paid by the El Rukns to testify that she had seen "Steve" with a gun on the night the security guard was murdered, when in fact, she had not. According to Rachel's testimony, he saw Robert Lee seven months later and told him what Sexton had said. Lee reportedly told Rachel where to find Shore's attorney, and Rachel then related the conversation to her.

On cross-examination, Rachel stated that he was in custody for residential burglary, and that he had been convicted of possession of controlled substances. He also testified that he had not seen Myra Sexton before that night in June 1986, or after; that he did not know Sexton's last name until he bumped into Lee seven months later; that Myra Sexton never told him Shore's last name; and that he did not know the defendant, Steve Shore.

Following Rachel's testimony, Sexton was recalled to the stand as a hostile witness. After initially pleading the Fifth Amendment, she decided to answer the prosecutor's questions. Sexton stated that the argument she had witnessed between Shore and Adams on August 9, 1982 occurred at 11:30 a.m., not 7:00 p.m.; that while Shore was holding a gun during the At the conclusion of the evidence, Judge Heyda denied the motion for new trial, stating that he believed Sexton's original trial testimony and discrediting both Rachel's testimony and Sexton's recantation. (Tr. at 154 and 159).

                argument, she last saw the gun in Adams' hand;  that she never asked Shore for the gun when he came up to talk to her that day;  that the last time she saw Shore was about 7:00 p.m. in front of her apartment, when he left on his bike and she went inside where she stayed until the next morning.   Sexton reiterated her earlier testimony that she had not been paid for the testimony she gave at Shore's trial
                

The Illinois Court of Appeals concurred in those findings and conclusions. It noted, moreover, that the discrepancies between Sexton's testimony at trial and her "recanted testimony" were minor and would not support Shore's claim of perjury. The Illinois Supreme Court denied Shore's motion for leave to appeal.

C. The Second Habeas Petition

Having once again exhausted his state court remedies, Shore filed his second petition for habeas corpus in the district court. The issue raised in Shore's second petition is identical to the one raised in the appeal of his postconviction petition to the Illinois Court of Appeals: whether the trial court properly denied his request for a new trial based on "newly discovered evidence." Shore contended that the state's case against him was weak and that the introduction of Sexton's allegedly perjured testimony should therefore have been sufficient grounds for granting a new trial. He concluded in cursory fashion that the denial of his motion for new trial was "unconstitutional." The only constitutional claim which he raised, however, was a procedural attack on the Illinois Court of Appeals. Shore alleged that he had been denied a full and fair hearing by the Illinois Court of Appeals when it issued its opinion affirming the denial of post-conviction relief without benefit of the trial transcript, and failed to "inform defense counsel that none of the three justices who reviewed the direct appeal would sit in judgment on this appeal." Shore's due process allegations were not addressed by the district court in granting habeas relief, nor were they repeated on appeal. ¹ Shore does not contend that he was denied a full and fair hearing at the trial court level with respect to his second motion for...