Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 81 C 3197 -- Gerald B. Cohn, Magistrate.
Eschbach and Coffey, Circuit Judges, and Neaher, Senior District Judge.*fn*
Petitioner-appellant William Griswold was tried before a jury in an Illinois state trial court and found guilty of armed robbery. The Illinois Appellate Court affirmed the conviction and the Supreme Court of Illinois denied Griswold leave to appeal. After exhausting all available state post-conviction remedies, Griswold filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Illinois, East St. Louis Division. Both parties signed a written consent form permitting a United States Magistrate to hear the case and the magistrate subsequently denied Griswold's petition in an unpublished order. We affirm.
Upon direct appeal of the petitioner's conviction the Illinois Appellate Court made the following findings of fact:
"According to the evidence introduced at trial, Police Sergeant Robert Keckler of the Bartonville Police Department was on patrol the night of December 23, 1975, when, because of a headache, he decided to buy some aspirin at Oakford's Super Value Store. As he started to turn into the parking lot adjoining the store, his way was blocked by a tan Ford Automobile. He stopped and honked his horn until the car backed out of his way. For about 30 seconds, he viewed the driver of the tan car in the light of his headlights. Sgt. Keckler parked the squad car and walked toward the tan car on his way into the store. He observed the driver from the side for 20 or 30 seconds by the outdoor lights of the store, and he noticed the driver duck his head. The policeman went on into the store where Clark Eggers was in the process of robbing the store manager at gunpoint. When Eggers left the store with the manager, Sgt. Keckler ran outside after them. He saw Eggers get into the tan car, and he ordered the men to stop. As the car sped away, Sgt. Keckler fired a shot, and then pursued the robbers in his squad car. During the chase, Sgt. Keckler radioed for additional help and dodged at least four shots from the fleeing bandits.
After traveling about one-half mile, the robbers turned into a dead-end street, and their car crashed into a house. Sgt. Keckler saw the driver jump from the car and flee on foot into a wooded ravine. Sgt. Keckler arrested Eggers, recovered the money taken from the store and then directed the unsuccessful manhunt for the missing driver. After his arrest, Eggers told the police officers that defendant [Griswold] was the driver.
When Sgt. Keckler returned to the police station about two hours after the robbery, another officer showed him a single photograph of defendant which Sgt. Keckler identified as the driver of the get-away car. Defendant was arrested two weeks later. After arrangements for a lineup were made and then cancelled because defense counsel was unavailable, Sgt. Keckler selected a more recent picture of defendant from a group of ten photographs.
Defendant's first trial ended in a mistrial when the jury was unable to agree on a verdict. During the trial, defendant's motion to exclude Sgt. Keckler's identification testimony was denied. The State called Eggers who testified that defendant did not drive the get-away car but rather someone named 'Joe' was the driver. The court rejected the prosecution's claim that Eggers' testimony was unexpected.
At trial Sgt. Keckler testified as to the lighting, his observations of the driver, and the photographic identification. After identifying defendant in the courtroom, Sgt. Keckler stated that he had known defendant as a boy when he attended grade school and high school with defendant's brother. His testimony as to what occurred in the parking lot was corroborated by two disinterested eyewitnesses. The store manager also testified for the State, but Eggers was not called by the prosecution in this trial. Defendant presented no evidence. The jury returned a verdict of guilty, and defendant was sentenced to 15-30 years in the penitentiary."
People v. Griswold, 54 Ill.App.3d 246, 369 N.E.2d 392, 393-94, 11 Ill. Dec. 938 (1977).
After exhausting his direct appeals, the petitioner filed a state petition for post-conviction relief in the trial court. The document filed was entitled, "Petition for Relief under Illinois Revised Statutes, Chapter 110, Section 72, or alternatively Post-Conviction Relief." In his petition, Griswold alleged inter alia that Sgt. Keckler's identification of the petitioner was the tainted product of an unnecessarily suggestive pre-trial identification procedure. Griswold also contended that while he was imprisoned in Menard Correctional Center, he learned, for the first time, that one Robert Powell, also a prisoner at Menard, was in fact, Eggers' partner in crime as the driver of the getaway car involved in the armed robbery in question. The Illinois Appellate Court affirmed the trial court's denial of the petitioner's post-conviction petition. People v. Griswold, 89 Ill. App. 3d 661, 411 N.E.2d 1224, 44 Ill. Dec. 858 (1980). The Supreme Court of Illinois thereafter denied his petition for leave to appeal from the appellate court's order of affirmance.
On March 25, 1981, the petitioner filed a federal habeas corpus petition alleging: (1) That his "conviction [was] obtained by the admission of impermissibly tainted identification"; (2) That "he was deprived of effective assistance of Court-Appointed Counsel"; (3) That "the Trial Court refused to hear evidence exculpitating [sic] petitioner because it was untimely"; and (4) That "the State Court denied petitioner his right to Appeal." The magistrate denied Griswold's habeas corpus petition after oral argument, concluding that the Illinois Appellate Court had found that Officer Keckler's testimony was sufficiently independent in origin and reliable to "outweigh the corrupting effect of the suggestive identification itself." The reliability of the photographic identification evidence was thus a factual determination, according to the magistrate, and since the subject had previously been fully considered by both the trial court and ...