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June 2, 1983


The opinion of the court was delivered by: Bua, District Judge.


Herman Banks ("petitioner") was charged with murder in the Circuit Court of Cook County, Illinois. After a bench trial, he was found guilty as charged and was sentenced to 25 to 40 years imprisonment. The Illinois Appellate Court affirmed the conviction. People v. Banks, 102 Ill. App.3d 877, 58 Ill.Dec. 570, 430 N.E.2d 602 (1st Dist. 1981).

After exhausting his state remedies, Banks filed a petition for a writ of habeas corpus with this Court claiming that: (1) the State improperly admitted the testimony of an occurrence witness whose current address or telephone number had not. been provided in accordance with pretrial discovery procedures; (2) the trial court's consideration of preliminary hearing testimony was improper; and (3) the State failed to prove him guilty of murder beyond a reasonable doubt. In response, the State ("respondent") has filed a motion for summary judgment unsupported by affidavits.

After a careful review of the Illinois Appellate Court's factual determinations, this Court grants respondents' motion for summary judgment and denies the writ. This Court's jurisdiction rests upon 28 U.S.C. § 2254 (1976).


This discussion must begin by noting the limited review power of federal courts in habeas proceedings. A federal court is called upon to make its determinations based on the identical record that was considered at length by the state appellate court. Findings of fact made by a state appellate court are considered "determination[s] after a hearing on the merits" so that they fall within the scope of 28 U.S.C. § 2254(d)(1976).*fn1 Sumner v. Mata, 449 U.S. 539, 546, 101 S.Ct. 764, 768, 66 L.Ed.2d 722 (1981); United States ex rel. Jones v. Franzen, 676 F.2d 261, 264 (7th Cir. 1982). Consequently, the state appellate court findings are to be afforded a "presumption of correctness" and in the absence of a specific finding that the contested matter falls within the purview of paragraphs (1) through (7) of 28 U.S.C. § 2254(d)(1976), this Court must defer to the state court findings.*fn2 Sumner, 449 U.S. at 547, 101 S.Ct. at 769; United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1184 (7th Cir. 1982). "If none of those seven conditions were found to exist, or unless the habeas court concludes that the relevant state determination is not `fairly supported by the record,' `the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the state court was erroneous.'" Sumner, 449 U.S. at 550, 101 S.Ct. at 770 (footnote omitted) (emphasis in original).

Though perhaps unclear at times, there is a material distinction between state court factual determinations, which warrant the "presumption of correctness," and mixed determinations of fact and law, which do not. The Supreme Court stated in Townsend v. Sain, 372 U.S. 293, 88 S.Ct. 745, 9 L.Ed.2d 770 (1963), the precursor to Section 2254(d), that the phrase "issues of fact" refers "to what are termed basic, primary, or historic facts; facts `in the sense of a recital of external events and the credibility of their narrators. . . .'" Id. at 309, n. 6, 83 S.Ct. at 755, n. 6, quoting Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 445, 97 L.Ed. 469 (1953)(opinion of Frankfurter, J.); United States ex rel. Ross v. Franzen, 688 F.2d 1181, 1184 (7th Cir. 1982). By contrast, in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court held that if the issue is one requiring an application of legal principles to the historical facts of the case, the presumption does not apply and the state court holding is open to review de novo in a federal habeas proceeding. Id. at 341-42, 100 S.Ct. at 1714. Cain v. Smith, 686 F.2d 374, 379-80 (7th Cir. 1982).

The Supreme Court's treatment of the Sumner case further illuminates this distinction. Initially, Sumner focused on the issue of whether pretrial photographic identification procedures employed by the police violated the petitioner's due process rights. The state appellate court made the following factual determinations: 1) that "the photographs were available for cross-examination purposes at the trial;" 2) that "there . . . [was] no showing of influence by the investigating officers;" 3) "that witnesses had an adequate opportunity to view the crime;" and 4) "that their descriptions [were] accurate." quoted in Sumner v. Mata, 449 U.S. at 542, 101 S.Ct. at 766 (1981)(hereinafter referred to as Mata I). From these factual determinations, the state appellate court concluded that "[t]he circumstances thus indicate inherent fairness of the procedure, and we find no error in the admission of the identification evidence." Id.

After viewing the identical state court record, the Ninth Circuit Court of Appeals made the following factual determinations: "(1) the circumstances surrounding the witness' observation of the crime was such that there was a grave likelihood of misidentification; (2) the witnesses had failed to give sufficiently detailed descriptions of the assailant; and (3) considerable pressure from both prison officials and prison factions had been brought to bear on the witnesses." Id. at 543, 101 S.Ct. at 767. From these determinations, the Ninth Circuit concluded that "`the photographic identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Id.

On certiorari, the Supreme Court did not take issue with the Ninth Circuit's contrary conclusion, but found that its underlying factual determinations were "considerably at odds" with those made by the California Court of Appeals. The Court remanded the case to the Ninth Circuit either to apply the "presumption of correctness" or to articulate reasons for not doing so.

The Ninth Circuit did neither, concluding that Section 2254(d) was irrelevant because "the `impermissible suggestiveness' of the pretrial identification procedure used in this case is a mixed question of law and fact, freely reviewable by a federal court on habeas." Mata v. Sumner, 649 F.2d 713, 717 (9th Cir. 1981).

The Supreme Court once more granted certiorari. It agreed with the Ninth Circuit that "the ultimate question as to the constitutionality of the pretrial identification procedures used in this case is a mixed question of law and fact that is not governed by § 2254. . . . But the questions of fact that underlie this ultimate conclusion are governed by the statutory presumption." Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982)(emphasis in original) (hereinafter referred to as Mata II). In clarifying what it meant by "questions of fact that underlie this ultimate conclusion," the Supreme Court stated:

  "In Neil v. Biggers, . . . 409 U.S. [188] at 199-200
  [93 S.Ct. 375 at 382, 34 L.Ed.2d 401 (1972)] . . ., we
  noted that `the factors to be considered in evaluating
  the likelihood of misidentification include the
  opportunity of the witness to view the criminal at the
  time of the crime, the witness' degree of attention,
  the accuracy of the witness' prior description of the
  criminal, the level of certainty demonstrated by the
  witness at the confrontation, and the length of time
  between the crime and the confrontation.' Each of
  these `factors' requires a finding of historical fact
  as to which ยง 2254 applies. The ultimate

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