The opinion of the court was delivered by: Bua, District Judge.
Marion Kowal ("petitioner") was convicted of retail theft
and sentenced to three years imprisonment on November 12,
1980, in the Circuit Court of DuPage County. Prior to his
sentencing, he moved for a new trial on the basis of newly
discovered evidence and ineffective assistance of counsel.
After a hearing, the trial court denied the motion and the
Illinois Appellate Court affirmed. People v. Marion Kowal,
100 Ill. App.3d 1199, 57 Ill.Dec. 812, 429 N.E.2d 929 (1981). The
Illinois Supreme Court denied a petition for leave to appeal,
after which petitioner filed this writ of habeas corpus. The
state, through the office of the Attorney
General, has filed a motion to dismiss. This Court's
jurisdiction rests upon 28 U.S.C. § 2254.
In this proceeding, petitioner essentially renews his state
court claims asserting that: 1) his conviction was procured
through the use of allegedly perjured testimony thus
constituting a violation of the due process clause of the
Fourteenth Amendment; 2) he was denied his fundamental due
process rights when the trial court invoked the doctrine of
due diligence to deny his motion for a new trial, and; 3) his
attorney's failure to investigate the scene of the crime
constituted ineffective assistance of counsel.
The record discloses that on the evening of November 12,
1979, petitioner was arrested outside the Yorktown Shopping
Center by two Lombard police officers, Alan Mollsen and Steven
Skultety. On June 4, 1982, a hearing was held on a motion to
quash the arrest and to suppress evidence, at which time both
officers testified as to the events leading up to the arrest.
The officers were on a surveillance detail looking for a
rape suspect. Mollsen was positioned on the second floor roof
of the Yorktown Shopping Center observing the parking lot
through a pair of binoculars, while Skultety was stationed in
an unmarked car below. The two maintained contact with one
another through a two-way radio.
Mollsen stated that sometime between 8:00 and 9:30 P.M.
petitioner pulled his vehicle into the parking lot and parked
some seventy feet away in an angular position. Mollsen
observed petitioner empty merchandise from a brown paper bag
into his trunk, re-roll the top of the bag and carry it with
him into the shopping center. Petitioner returned to his
vehicle some ten minutes later carrying the same bag and
repeating the same procedure. By this time Mollsen had
notified Skultety that a professional booster*fn1 was working
the area and requested that Skultety move into the immediate
vicinity. Petitioner re-entered the store a second time
carrying the bag with him.
Skultety, from some twenty-five feet away, observed
petitioner exit the store carrying a brown re-enforced paper
bag with tape along the edges. Upon reaching his vehicle,
petitioner threw the bag on the rear seat, got into his
vehicle and began driving away. With the aid of the Lombard
police, Skultety stopped petitioner some 150 feet away. As he
approached petitioner's vehicle, Skultety noticed various
items of merchandise on the rear seat for which petitioner
could not produce any receipts. A local merchant was called
out to the car and verified that the merchandise was stolen.
Petitioner was then placed under arrest.
Following arguments from both sides, the trial judge denied
petitioner's motion to quash the arrest and suppress evidence.
Thereafter, on August 21, 1980, a jury returned a verdict of
guilty on two counts of retail theft. Before his sentencing,
petitioner obtained additional counsel, who moved for a new
trial based upon newly discovered evidence and ineffective
assistance of counsel. At the hearing, petitioner attempted to
establish that the pre-trial and trial testimony of Officers
Skultety and Mollsen was perjurous. In support of this claim,
petitioner sought to introduce newly discovered evidence
consisting, in part, of a videotape reconstruction of the
crime scene which petitioner alleged would demonstrate that
some of the claimed observations of Skultety and Mollsen were
physically impossible. The trial judge*fn2 refused to
consider the tape as newly discovered evidence, finding that
petitioner had failed to exercise due diligence to obtain this
evidence prior to or at trial. Additionally, the trial judge
found the tape would only impeach and discredit one of the
witnesses and not
materially effect the outcome of trial.*fn3 The Illinois
Appellate Court affirmed on both grounds. After a careful
examination of the record, this Court concludes that
petitioner has failed to state a claim warranting habeas
Petitioner contends that his conviction was procured through
the use of perjured testimony. In support of this claim, he
maintains, as he did in the state courts, that newly
discovered evidence demonstrates that certain portions of the
pre-trial and trial testimony of Officers Mollsen and Skultety
were perjurous. Specifically, this evidence allegedly
indicates: 1) Mollsen's ability to view petitioner's trunk
from the second floor roof of the shopping center was
physically impossible; 2) contrary to Skultety's testimony,
brown paper bags were distributed by the store from which
petitioner had exited preceding his arrest; 3) even with the
aid of a high powered lens, Skultety could not have seen any
tape on the top of the bag which petitioner used to carry the
stolen merchandise. It is petitioner's contention that
consideration of this evidence would have resulted in
acquittal upon re-trial.
For petitioner to prevail on a perjured testimony claim, he
must establish that perjured testimony was knowingly and
intelligently introduced at trial by the prosecuting
authorities. United States ex rel. Burnett v. Illinois,
619 F.2d 668, 674 (7th Cir.), cert. denied, 449 U.S. 880, 101 S.Ct.
229, 66 L.Ed.2d 104 (1980). See Giglio v. United States,
405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Napue v.
Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959);
United States ex rel. Wilson v. Warden Cannon, 538 F.2d 1272
(7th Cir. 1976). The Court does not believe that petitioner has
made the required showing.
As a threshold matter, this Court must dispose of one of
respondent's arguments in support of his motion to dismiss,
namely that petitioner failed to show knowing or intentional
use of perjured testimony by the prosecution. Respondent argues
that the alleged use of perjured testimony on the part of the
officers alone is not sufficient to support petitioner's claim,
where there is no allegation of knowledge of that use on the
part of the attorneys. In reply, petitioner contends that
knowing use on the part of the prosecutor need not be shown
here where the claim is against agents of the state. A review
of the case law, as well as simple logic, dictates that
petitioner is correct.
A due process claim will lie where there has been knowing
use of perjured testimony on the part of the "prosecuting
authorities." United States v. Jakalski, 237 F.2d 503, 504-505
(7th Cir. 1956) citing Mooney v. Holohan, 294 U.S. 103, 55
S.Ct. 340, 79 L.Ed. 791 (1935) (emphasis added), cert. denied,
353 U.S. 939, 77 S.Ct. 817, 1 L.Ed.2d 761 (1957). As law
enforcement officers, Mollsen and Skultety are members of the
prosecuting team. It is sufficient to allege that these
officers were representatives of the state, as petitioner has
done. "[A] constitutional due process claim is not defeated
merely because the prosecuting attorney was not personally
aware of the [alleged] prosecutorial activity," Schneider v.
Estelle, 552 F.2d 593, 595 (5th Cir. 1977).
Turning to the issue of whether perjured testimony was in
fact introduced at trial, this Court concludes that the
challenged evidence was not perjurous at all. At best the
testimony merely discredits the officers' observations.
Indeed, the state trial court, with which the Illinois
Appellate Court concurred, found the evidence was collateral,
tending "at most to contradict, discredit or impeach the
testimony of the officers and does not establish perjury on
their part." People v. Marion Kowal, 100 Ill. App.3d 1199, 57
Ill.Dec. 812, 429 N.E.2d 929 (1981). These state court findings
are entitled to a presumption of correctness especially
where, as here, they are based on the same record now before
this court. 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539,
547, 101 S.Ct. 764, 769, 66 L.Ed.2d 722 (1981); United States
ex rel. Jones v. Franzen, 676 F.2d 261, (7th Cir. 1982). This
Court's only inquiry, therefore, is whether the state's
findings "are fairly supported by the ...