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United States v. Brierton

decided: August 12, 1977.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76-C-345 - Thomas R. McMillen, Judge.

Pell, Circuit Judge, Wood, Circuit Judge, and Myron L. Gordon, District Judge.*fn*

Author: Gordon

GORDON, District Judge.

The petitioner-appellant Lyman Moore has appealed the district court's ruling dated July 26, 1976, denying his petition for a writ of habeas corpus. In this case, we are called upon to apply the United States Supreme Court's decision in United States v. Agurs, 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976), which delineates a prosecutor's obligation to provide a defendant with exculpatory materials. For the reasons stated below, we affirm the ruling of the district court.

On April 25, 1962, around 11 P. M., Bernard Zitek was murdered in the bar-restaurant which he operated in Lansing, Illinois. The murderer was an individual who returned to the bar about an hour after Zitek had ejected him and a companion because of their profanity. In 1964, the petitioner was convicted in state court after a jury trial of the first-degree murder of Zitek. He was sentenced to death.

Moore's first petition for post-conviction relief was denied by the state trial court. That denial and also the petitioner's conviction and sentence were affirmed on appeal by the Supreme Court of Illinois. 42 Ill.2d 73, 246 N.E.2d 299 (1969). The United States Supreme Court affirmed the conviction but reversed the judgment as to the death sentence imposed and remanded the case. Moore v. Illinois, 408 U.S. 786, 33 L. Ed. 2d 706, 92 S. Ct. 2562 (1972), reh. den. 409 U.S. 897, 93 S. Ct. 87, 34 L. Ed. 2d 155. On remand, the state trial court then sentenced the petitioner to the term of 60 to 100 years' imprisonment, which he is presently serving.

After his resentencing, the petitioner filed a second post-conviction petition in the state trial court, and the denial of that application was affirmed on appeal. 60 Ill.2d 379, 327 N.E.2d 324 (1975). Rehearing was denied on March 24, 1975. The United States Supreme Court denied certiorari, Moore v. Illinois, 423 U.S. 938, 46 L. Ed. 2d 270, 96 S. Ct. 298 (1975); however, Mr. Justice Stewart stated in part:

"I do not quarrel with today's denial of Moore's petition for certiorari, for we cannot from this vantage point intelligently reassess the state courts' determination of questions of credibility. I write only to point out that those questions will be fully amenable to reassessment in a federal habeas corpus proceeding. See Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745." 423 U.S. 938, 96 S. Ct. 298, 46 L. Ed. 2d 270 (1975).

Moore did file a petition for a writ of habeas corpus in the federal district court. This petition was denied, United States ex rel. Moore v. Brierton, 76-C-345 (N.D. Ill., July 26, 1976), and a petition for rehearing was denied on September 16, 1976. Moore has now appealed to this court.

The substance of the testimony at trial has been set forth at length in Moore v. Illinois, 408 U.S. at 788-791, and summarized in the district court decision. We highlight that testimony here.

At trial, Patricia Hill, a waitress in the bar where the murder occurred, identified the petitioner as the ejected patron who returned and shot Bernard Zitek. Henley Powell, who was playing cards in the bar at the time of the murder, also positively identified Moore as the murderer. Powell pursued the person who killed Zitek, but he abandoned the chase when threatened by the killer.

Donald O'Brien, another cardplayer, testified that Moore was not the individual ejected from the bar at 10 P.M. on the evening of the murder. The district court made no mention of this testimony. Previously, the United States Supreme Court had noted other testimony to the effect that O'Brien was drunk at the time.

Virgil Sanders testified that two days after the murder, on April 27, 1962, he was in a nearby tavern known as the Ponderosa Tap. At that time, another patron, who Sanders called "Slick," said to Sanders that it was "open season on bartenders" and that he [Slick] had shot one in Lansing. At the trial, Sanders testified that Moore was the man he knew as "Slick".

William Joyce, the Ponderosa Tap's bartender, testified that he arranged to have Bob Fair give Moore and a companion, who were both in the Ponderosa Tap on April 27, 1962, a ride to Harvey, Illinois. Bob Fair, owner of the Ponderosa Tap, testified that he provided Moore and the companion such transportation and that on the way, one of his passengers said something to this ...

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