Kiley, Fairchild and Kerner, Circuit Judges.
Petitioner Clarke appeals from a district court judgment dismissing his habeas corpus petition after an evidentiary hearing. We affirm.
Clarke was convicted in a Wisconsin state court of robbery and rape. He was represented by court-appointed counsel. His conviction was affirmed. State v. Clarke, 36 Wis.2d 263, 153 N.W.2d 61 (1967). The habeas proceeding before us followed, and the district court appointed new counsel for Clarke.
The issues presented on appeal are whether the district court erred in deciding that Clarke's Fourteenth Amendment right to due process was violated by the Wisconsin prosecutor's failure to disclose to Clarke's trial counsel favorable evidence in his possession, and in deciding that Clarke was not denied his Sixth Amendment right to effective assistance of counsel at the trial.
The critical issue at the trial of this case in the Wisconsin court was the identification of Clarke as the assailant. The victim, Mrs. Anderson, and a Harold Traas, who was a deliveryman to the restaurant where the rape and robbery occurred, testified unequivocally that petitioner was the assailant.
There was testimony at the trial of the presence of persons other than Mrs. Anderson and Mr. Traas at the scene. Mrs. Anderson testified that after the rape, her assailant forced her to accompany him as he made his escape, and that in the course of the escape they encountered the building's janitor. Traas testified that at the time of the assault he stood with a waitress from a nearby restaurant, observing the assailant and victim through the window. Although both were mentioned during, neither was named or testified at, the trial.
There was also testimony that at the police lineup Mr. Traas identified Clarke as the assailant and that other witnesses viewed the lineup with him. The names of the other witnesses were not stated, and defense counsel did not seek their production.
At the evidentiary hearing on Clarke's habeas petition, Clarke's trial counsel testified that the janitor, Adam Murawski, had told him at the close of trial that Clarke was not the man he had seen in the basement of the building. However, Murawski testified at the hearing that he did not see the assailant sufficiently to be in a position to identify him. The other witness mentioned at the trial, Bonnie Fuerstenberg, could not be found for service of subpoena to appear at the hearing.
Police records of the lineup conducted in relation to the investigation of the crimes were also received in evidence at the hearing. These records disclosed that Bonnie Fuerstenberg and Murawski viewed the lineup with Traas; that Bonnie Fuerstenberg picked out a man other than Clarke as being similar in appearance to the man she saw in the restaurant, but could not make a positive identification; and that Murawski was unable to identify the assailant.
Defense trial counsel candidly admitted that he failed, through ignorance of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to make a request at trial for production of evidence upon learning of "other witnesses" than those called by the government, although the testimony of both was referred to frequently, albeit not by name; and that after interviewing the janitor between closing of proofs on Friday and arguments to the jury on Monday he failed to discuss with the prosecutor his "impression" that the janitor could not identify the assailant at the lineup. Clarke's first reliance upon the janitor's testimony was in an unsuccessful motion for new trial.
Following the hearing and submission of briefs the district court found that Clarke failed to prove by a preponderance of evidence that the Wisconsin prosecutor knew of any evidence favorable to Clarke prior to his motion for new trial; and that there was no showing of suppression of evidence favorable to Clarke to justify application of the rule of Brady v. Maryland, supra.
We think the district court's denial of habeas relief was not erroneous. There was no showing that the prosecutor -- deceased at the time of the hearing -- had knowledge of the statement of the two witnesses at the lineup. The police testimony at the habeas hearing did not show that the records were given to the prosecutor. And in the absence of a request it is probable that ...