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October 26, 1982


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 relief.

Perjured Testimony

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 ...

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