United States District Court, Northern District of Illinois, E.D
June 2, 1983
UNITED STATES OF AMERICA EX REL. HERMAN BANKS, PETITIONER,
KENNETH MCGINNIS, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Bua, District Judge.
MEMORANDUM AND ORDER
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
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).
I. SCOPE OF REVIEW
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
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
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
"In Neil v. Biggers, . . . 409 U.S.  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 § 2254 applies. The ultimate
conclusion as to whether the facts as found state a
constitutional violation is a mixed question of law
and fact as to which the statutory presumption does
Sumner, 455 U.S. at 597, n. 10, 102 S.Ct. at 1307, n. 10.
From the foregoing, it is clear that a federal court on habeas must
apply the "presumption of correctness" to state appellate court underlying
factual determinations, although it may draw different conclusions as to
those facts as found. On the other hand, the federal court need not be
bound by those underlying factual determinations, if it concludes that
they are not "fairly supported by the record."*fn3 Nor need the federal
court apply the presumption if one of the first seven statutory
exceptions to 28 U.S.C. § 2254(d) is found to exist or if the
petitioner establishes by "convincing evidence" that the state court's
findings are clearly erroneous. 28 U.S.C. § 2254(d)(1976).
This Court agrees with the state appellate court's underlying factual
determinations. Since petitioner has not rebutted these determinations
with "convincing evidence" and since none of the statutory exceptions
exist, the Court will apply the "presumption of correctness" to these
findings and apply the law accordingly.
II. PETITIONER'S CLAIMS
A. Pre-Trial Discovery Procedures
Petitioner's objection to the discovery procedures employed in his case
is based on the state's failure to disclose the telephone number and
current address of one of its occurrence witnesses, thus violating
Illinois Supreme Court Rule 412(a)(1). This violation allegedly
prejudiced petitioner by causing him to waive his right to a jury trial
and by impeding the effectiveness of his cross-examination.
When, the government does not affirmatively or in bad faith make a
witness unavailable, its conduct does not rise to the level of
constitutional violation regardless of prejudicial effect. United States
v. Henao, 652 F.2d 591, 593 (5th Cir. 1981). While the government has a
duty to disclose the address of a potential witness upon request absent
valid reasons, the burden rests with the defendant to show that he was
prejudiced by lack of access to evidence
"likely to be material to his defense, favorable, and unavailable from
other sources." United States v. Fischel, 686 F.2d 1082, 1092 (5th Cir.
The state appellate court made the following findings
Collier was listed as a witness. There is nothing in
the record demonstrating that the defense sought to
contact Collier either in Chicago or New York.
Defendant was informed that witnesses were to be flown
in from other states. Defendant made no showing that
the unlisted witness could have been impeached had
preparation been afforded; indeed, the State's
assertion that Collier's testimony was consistent with
the police statement and his preliminary hearing
testimony has not been refuted. He was given the
opportunity to interview Collier before he testified.
Finally, no continuance was sought to further prepare
but defendant proceeded to trial.
People v. Banks, 102 Ill. App.3d 877, 880, 58 Ill.Dec. 570, 573,
430 N.E.2d 602
, 605 (1st Dist. 1981).
These underlying factual determinations are fairly supported by the
record. Petitioner has not rebutted them by convincing evidence. From
those facts, there is no indication that the state affirmatively or in
bad faith made Collier unavailable, nor is there any showing by the
petitioner that he was prejudiced by Collier's testimony. Therefore, this
Court concludes that petitioner's right to confrontation was not
Petitioner next contends that the State's failure to comply with
pretrial discovery procedures rendered his jury waiver invalid. A jury
waiver to be valid must be express and intelligent. Patton v. United
States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930). What constitutes
an intelligent decision by a defendant was articulated in Brady v. United
States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In that
case, the Court rejected the defendant's contention that because he
pleaded guilty under the incorrect assumption that his sentence of death
could be imposed only by a jury, the plea was not intelligent:
"The rule that a plea must be intelligently made to be
valid does not require that a plea be vulnerable to
later attack if the defendant did not assess every
relevant factor entering into his decision. A
defendant is not entitled to withdraw his plea merely
because he discovers long after the plea has been
accepted that his calculus misapprehended the quality
of the State's case and the likely penalties attached
to alternative courses of action."
Brady, 397 U.S. at 757, 90 S.Ct. at 1473.
The record clearly indicates that at the time petitioner tendered his
signed jury waiver to the Court, he was thoroughly admonished of his
right to and the nature of a jury trial. The state included Collier's name
in its list of potential witnesses and stated before trial that it needed
a continuance because witnesses were to be flown in from out-of-state.
Indeed, the trial court advised petitioner that he should proceed in the
expectation that out-of-state witnesses would appear. Given these
underlying facts, this Court cannot say that petitioner's jury waiver was
not intelligent merely because "his calculus misapprehended the quality
of the state's case or the likely penalties attached to alternative
courses of action." Therefore, the Court concludes that petitioner's jury
waiver was express, knowing and intelligent.
B. Preliminary Hearing Testimony
Petitioner contends that the trial court denied him his right to due
process when it considered Collier's preliminary hearing testimony (which
had not been introduced into evidence) in finding him guilty. The
petitioner's claim is based on the Trial Court's statement that Collier's
testimony at trial was not impeached by his preliminary hearing
As a general proposition, a habeas corpus action is not considered a
proper remedy to correct trial errors or irregularities absent a denial of
due process. Jackson v. California, 336 F.2d 521, 524 (9th Cir. 1964). To
establish a denial of due process
in this regard, the petitioner must prove that the error so fatally
infected the trial as to deprive the petitioner of the fundamental
fairness mandated by the fourteenth amendment. Lisenba v. California,
314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941).
The state appellate court found that the trial court did not consider
Collier's preliminary hearing testimony for the purpose of determining
petitioner's guilt or innocence. Rather, it found that the trial court
merely sought to establish whether, because of the state's disregard of
discovery rules, the petitioner had been surprised by the content of
Collier's testimony at trial, thus entitling him to a new trial. This
factual determination is fairly supported by the record and therefore is
presumptively correct. Applying the aforementioned legal standards to the
facts, this Court concludes that petitioner's right to due process was
C. Guilt Beyond a Reasonable Doubt
Finally, petitioner contends that the State did not prove his identity
as the assailant of Nolan Claire, the victim, beyond a reasonable doubt,
because two occurrence witnesses failed to identify him and the third
(Collier) had an inadequate opportunity to observe the attacker.
The standard to be applied by a federal court on habeas review in
assessing the sufficiency of the evidence supporting a state court
conviction was set forth by the Supreme Court in Jackson v. Virginia,
443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979):
"[T]he applicant is entitled to habeas relief if it is
found that upon the record evidence adduced at trial
no rational trier of fact could have found proof of
guilt beyond a reasonable doubt."
The scope of habeas review being limited, the Court must not attempt to
fully reevaluate guilt but instead must only determine if a rational fact
finder could have found guilt beyond a reasonable doubt. In this regard,
it should be noted that "the testimony of a single uncorroborated witness
is generally sufficient to support a conviction." United States v.
Danzey, 594 F.2d 905, 916 (2nd Cir. 1979). Finally, 28 U.S.C. § 2254(d)
"gives federal habeas courts no license to redetermine credibility of
witnesses whose demeanor has been observed by the state trial court, but
not by them." Marshall v. Lonberger, ___ U.S. ___, ___, 103 S.Ct. 843,
851, 74 L.Ed.2d 646 (1983).
The trial court and appellate court both concluded upon the evidence
adduced at trial that petitioner was proved guilty beyond a reasonable
doubt. This finding is fairly supported by the record. Therefore, this
Court believes it must be upheld.
IT IS SO ORDERED.