On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. The Honorable Bernard M. Decker, Presiding.
Before Swygert, Lay*fn* and Pell, Circuit Judges.
This case presents consolidated appeals from final orders of the federal district court denying petitioner's first application for a writ of habeas corpus (No. 78-1219) and granting petitioner's second application (No. 78-2219).
In 1969 Leroy Hairston, a member of a Chicago youth gang, was convicted for murder and sentenced to 75-100 years in prison following a jury trial in Illinois state court. In pretrial proceedings the petitioner unsuccessfully challenged the constitutionality of the Illinois alibi-notice statute.*fn1 The conviction was affirmed by the Illinois Appellate Court, and leave to appeal to the Illinois Supreme Court was denied. While his motion was pending before the Illinois Supreme Court the decision of Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973), declaring the Oregon alibi-notice statute unconstitutional was decided by the Supreme Court of the United States.*fn2
Having thus exhausted his state remedies, petitioner filed the first of two applications for a writ of habeas corpus in federal district court. As grounds for relief he asserted that the alibi-notice statute operated to deny him a fair trial, and that his trial was prejudiced by pretrial publicity and references made at trial concerning youth gang warfare in Chicago. Petitioner's counsel filed an affidavit stating that several witnesses could verify petitioner was in a location other than where the murder occurred; that counsel had verified the existence of the alibi witnesses; and counsel believed that any attempt to offer an alibi defense without compliance with the notice of alibi statute would have been futile since the trial court denied petitioner's alternative motions to obtain discovery of the prosecution's case or have the alibi disclosure statute declared unconstitutional. The district court, the Hon. William J. Lynch presiding, granted the writ of habeas corpus, ruling that the Wardius decision was to be applied retrospectively to petitioner's case.
On appeal, this court reversed the district court's decision. The court stated:
(W)e need not consider the retroactivity of Wardius because it is clear from the state court record that petitioner was not harmed by application of the Illinois statute.
Petitioner concedes that no alibi evidence was excluded in this case, but he contends that the trial court's ruling on his motion to quash was the equivalent of such exclusion. We disagree.
Petitioner's argument to the state court on the motion to quash was directed primarily at obtaining reciprocal discovery, not only of the state's rebuttal witnesses but also grand jury minutes, police reports and other materials. Petitioner never requested a ruling that any alibi evidence would be excluded if he offered it without complying with the statute. In addition, the statute provides that the court may exclude the evidence. Illinois courts have interpreted this provision to make the decision discretionary with the trial judge. People v. Cline, supra, 8 Ill.App.3d 917 at 921, 290 N.E.2d 622. We cannot conclude, therefore, that had alibi evidence been offered at trial, it would have been excluded. For this reason, the alibi-notice statute was not unconstitutionally applied in this case.
(Emphasis added.) (Footnotes omitted.)
Because the district court did not address the prejudicial pretrial publicity claim, this court remanded the case to the district court for consideration of this cause.
On remand the district court, Judge Bernard M. Decker presiding, noted that this court limited the remand to consideration of the prejudicial publicity claim and therefore denied petitioner's motion for renewed consideration of the Wardius claim. With regard to the merits of petitioner's claim of prejudicial publicity the district court denied the writ. From this order petitioner now appeals (No. 78-1219).
Thereafter petitioner filed a second petition for a writ of habeas corpus again asserting that the right to present alibi testimony was impaired by application of the Illinois alibi-notice statute. The district court, Judge Bernard M. Decker presiding, held that a successive petition was appropriate under the unusual circumstances presented in the case. The court reasoned:
In support of this motion, the petitioner has filed an affidavit from his trial counsel supplementing the original affidavit filed before Judge Lynch, and an affidavit from counsel for his codefendant. Both affidavits essentially reiterate the belief of counsel that the court had clearly indicated that an alibi defense would not be permitted without compliance with the statute. The supplemental affidavit from Hairston's trial counsel also refers to his fear that any further attempt to present an alibi ...