Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 74 C 1417 Frank J. McGARR, Judge.
Tone, Bauer, Circuit Judges, and Campbell, Senior District Judge.*fn*
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.*fn1 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.
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 shoot-out, 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.*fn2 Sharp also denied that he had had a chance to discuss the case with Mitchell prior to trial.*fn3 State's Attorney Robert Whitmer emphasized these matters in his final argument to the jury.*fn4
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 ...