to defense counsel's efforts to reveal that perjury, resulting
in a violation of due process and the right to confront and
cross-examine witnesses; and (2) petitioner was denied the
effective assistance of counsel. In response, the State filed
a motion, styled a motion for summary judgment, requesting the
Court to deny the petition for failure to exhaust state
remedies as required by 28 U.S.C. § 2254(c). The Court treated
respondent's motion as a motion to dismiss, and denied it,
holding that petitioner had exhausted all state remedies.
Memorandum Order, April 7, 1983. Respondent then filed a motion
for summary judgment, and petitioner filed a cross-motion for
Although the Appellate Court for the First District of
Illinois decided that petitioner's claims did not warrant
disturbing the trial court's judgment, it is clear that this
Court is required to make its own independent examination of
the record. Townshed v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745,
758-759, 9 L.Ed.2d 770 (1963); Napue v. Illinois, 360 U.S. 264,
271, 79 S.Ct. 1173, 1178, 3 L.Ed.2d 1217 (1959). At the same
time, the state appellate court findings are to be afforded a
presumption of correctness, and, as here, in the absence of a
specific finding that the contested matters fall 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.
Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 769, 66
L.Ed.2d 722 (1981); United States ex rel. Ross v. Franzen,
688 F.2d 1181, 1184 (7th Cir. 1982). After a thorough review of the
record and a study of the Illinois Appellate Court's carefully
considered 15-page opinion, this Court agrees with the state
appellate court's underlying factual determinations.
Furthermore, this Court also agrees with the state appellate
court's determinations of the issues of law, as discussed
I. PETITIONER'S CLAIMS
A. The State's Knowing Use of Perjured Testimony
The facts underlying petitioner's first claim are fully set
out in the state appellate court's opinion. People v. Dowd,
101 Ill. App.3d 830, 57 Ill.Dec. 214, 428 N.E.2d 894, 896-902 (1st
Dist. 1981). To summarize, petitioner was romantically involved
with one Kenneth Wilhelm, a married man. She and Wilhelm were
indicted for murdering Wilhelm's wife. Wilhelm pled guilty to
the murder charge, and received the minimum sentence, in return
for which he agreed to affirm a statement that he had given to
police implicating petitioner in the crime. Later, petitioner
was tried, and Wilhelm appeared as a witness against her. His
testimony was extensive and highly damaging to petitioner's
case. Defense counsel attempted to impeach Wilhelm on
cross-examination. He elicited from Wilhelm the admission that
Wilhelm had, on an earlier occasion, given a substantially
different story to police — a version which exculpated
petitioner. Defense counsel then inquired into Wilhelm's own
guilty plea and his sentence. Wilhelm testified that as a
condition of his sentencing, he was required to affirm the
later version of his story to the police — the version which
inculpated petitioner. On redirect, the prosecutor attempted to
minimize the impact of Wilhelm's admission by asking, "Did the
State make you any deals for your plea?" Wilhelm answered,
"No." This interchange prompted defense counsel to conduct
recross-examination, in order to reassert and clarify Wilhelm's
original testimony that Wilhelm's sentence was conditioned on
his affirming the story incriminating to petitioner. The
prosecution thwarted this effort with a series of objections,
interlaced with the comments, "There was no bargain. He
[Wilhelm] testified that there was no bargain;" and "Since when
is 14 years a bargain . . . ?" See People v. Dowd, 57 Ill.Dec.
at 218, 428 N.E.2d at 898.
On appeal, petitioner claimed, and the Illinois Appellate
Court agreed, that "the prosecutor's behavior was outrageous
and inexcusable. He not only failed to correct testimony which
he knew was likely to convey a false impression to the jury,
but he deliberately emphasized the testimony
by repeating it." 57 Ill.Dec. at 222, 428 N.E.2d at 902.
Petitioner maintains that as a result of the prosecutor's
misconduct and the trial judge's sustaining of the
prosecutor's objections, the jury was deprived of the
opportunity to truly evaluate the credibility of Wilhelm, the
State's key witness. Had the jury known that Wilhelm was given
lenient treatment by the prosecution, petitioner argues, the
credibility of Wilhelm's testimony would have been greatly
Responding to this same argument when presented earlier on
appeal, the Illinois Appellate Court held that even had the
perjury been corrected, the jury would have reached the same
verdict, and therefore rejected petitioner's argument. 57
Ill.Dec. at 222-223, 428 N.E.2d at 902-03. The state appellate
court correctly relied upon the test laid down by the U.S.
Supreme Court in Napue v. Illinois, 360 U.S. 264, 271-72, 79
S.Ct. 1173, 1178 (1959), and subsequently reaffirmed in Giglio
v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31
L.Ed.2d 104 (1972) and United States v. Agurs, 427 U.S. 97, 96
S.Ct. 2392, 49 L.Ed.2d 342 (1976): Knowing use by the
government of perjured testimony must be set aside if "there is
any reasonable likelihood that the false testimony could have
affected the judgment of the jury." United States v. Agurs, 427
U.S. at 103, 96 S.Ct. at 2397. The Supreme Court has further
"The principle that a State may not knowingly use
false evidence, including false testimony, . . .
does not cease to apply merely because the false
testimony goes only to the credibility of the
witness. The jury's estimate of the truthfulness
and reliability of a given witness may well be
determinative of guilt or innocence, and it is
upon such subtle factors as the possible interest
of the witness in testifying falsely that a
defendant's life or liberty may depend."
Napue v. Illinois, 360 U.S. at 269, 79 S.Ct. at 1177.
The Illinois Appellate Court recognized the importance of
Wilhelm's credibility in the case. That court, however, found
that the evidence, taken as a whole, so substantiated and
corroborated Wilhelm's testimony that neither the judgment of
the jury nor the outcome of the trial would have been affected
by the knowledge that Wilhelm was being untruthful when he
denied having made a deal with the State. 57 Ill.Dec. at 223,
428 N.E.2d at 903.
The Napue test is a strict one, which often results in the
granting of habeas corpus writs. To deny petitioner's claim
concerning the prosecution's knowing use of perjured testimony,
this Court must be able to conclude that there is simply no
reasonable likelihood that the jury would have disbelieved
Wilhelm's story if it had known of his plea- related motive for
testifying as he did.
This Court, after an independent review of the record in
light of the stringent standard laid down in Napue, finds
itself in full agreement with the conclusion of the Illinois
Appellate Court. The jury had before it independent and
overwhelming evidence that Wilhelm was telling the truth as to
petitioner's role in the murder. The testimony of several
witnesses and other evidence, such as the presence in
petitioner's residence of the cord used to strangle the victim,
all corroborated Wilhelm's testimony. This Court fully concurs
with the detailed analysis which the state appellate court used
in reaching the same conclusion. See, People v. Dowd, 57
Ill.Dec. at 222-223, 428 N.E.2d at 902-3.
That the corroborating evidence was conclusive in
establishing Wilhelm's credibility is demonstrated by the fact
that the jurors used it to reject two of the defense counsel's
other successfully executed attempts to impeach Wilhelm.
First, the jury had been made aware that Wilhelm was a
convicted felon. Second, the defense had clearly established
that Wilhelm had told the police two vastly differing stories,
one inculpating petitioner and the other exculpating her.
Despite these challenges to Wilhelm's credibility, the jury
story. The strength of the evidence substantiating Wilhelm's
testimony overcame any doubts as to his honesty on this
occasion. Even if the defense had been able to fully explore
the terms of the plea bargain and Wilhelm's possible motives
for testifying against petitioner, it is entirely unlikely
that a reasonable doubt would have been raised in the minds of
the jurors that Wilhelm was lying.
The Court also notes in passing that petitioner's case is
not one in which the jury was confronted with a key witness'
flat denial, and nothing more, of a plea agreement. Here,
petitioner's counsel did successfully elicit testimony from
Wilhelm that his sentence was conditioned on an affirmation of
one of the two conflicting stories told to the police.
Although this testimony was later obscured, and perhaps
totally distorted by the prosecution's misconduct, the fact is
that the jury was not completely unaware of at least the
possibility that Wilhelm's testimony may have been motivated
by the hope for leniency.
Petitioner relies on four cases that apply the
Napue test to facts remarkably similar to those in the instant
case, and which result in the granting of habeas writs. All
four cases, however, are dissimilar to the case at bar in one
essential respect: each involves the very real possibility that
knowledge by the jury of the key witness' plea bargain would
have affected the jury's verdict.
In United States ex rel. Wilson v. Warden, 538 F.2d 1272 (7th
Cir. 1976), the entire case rested on the credibility of the
two key witnesses, both of whom had entered into plea
agreements regarding their testimony. There was virtually no
evidence in the record which would lend weight to their
stories. Hence, the jury might well have disbelieved them if
the existence of the plea agreements had not been perjuriously
denied. Likewise, in United States v. Bigeleisen, 625 F.2d 203
(8th Cir. 1980), the court found that the record provided the
jury with no evidence to evaluate the key witness' credibility.
The testimony of other witnesses not only did not corroborate
his story, it actually contradicted it. Thus, the government's
knowing use of the witness' perjured denial of a plea bargain
was likely to have affected the jury's evaluation of his
DuBose v. LeFevre, 619 F.2d 973 (2nd Cir. 1980) and United
States ex rel. Washington v. Vincent, 525 F.2d 262 (2nd Cir.
1975) are inapposite for basically the same reasons as Wilson
and Bigeleisen. With credibility of a key witness a major issue
in all four cases, and, unlike the case at bar, virtually no
independent basis for weighing the witness' honesty, it was
reasonably likely that a perjured denial of a plea bargain
could have affected the jury's judgment. These four cases
illustrate by way of contrast why the facts of petitioner's
case do not provide a basis for a writ of habeas corpus.
B. Denial of Petitioner's Sixth Amendment Right to
The U.S. Supreme Court has held that "a denial of
cross-examination without waiver . . . would be constitutional
error of the first magnitude and no amount of showing of want
of prejudice would cure it." Alford v. U.S., 282 U.S. 687,
692-94, 51 S.Ct. 218, 219-220, 75 L.Ed. 624 (1931); Smith v.
Illinois, 390 U.S. 129, 132, 88 S.Ct. 748, 750, 19 L.Ed.2d 956
(1968); Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105,
1111, 39 L.Ed.2d 347 (1974). Petitioner argues that the trial
court denied her the right to effectively cross-examine Wilhelm
by sustaining the prosecution's objections to questions which,
if allowed, might have revealed a motive on the part of Wilhelm
to testify falsely. If, in fact, the trial court did completely
block defendant's inquiry into the subject of plea bargains,
then unquestionably, reversible error occurred. "[C]ross
examination for the purpose of [showing bias] is a right.
[Emphasis in original.] . . . This right to cross- examine a
witness about a pending charge against him to show bias cannot
be defeated merely because there is other evidence that the
witness is biased; nor can it be defeated by a claim of lack of
prejudice." People v.
Kellas, 72 Ill. App.3d 445, 28 Ill.Dec. 9, 389 N.E.2d 1382,
1390 (1st Dist. 1979).
The fatal infirmity in petitioner's case, however, is that
the trial judge did not cut off defense counsel's plea bargain
related inquiry into Wilhelm's possible bias. Based on a
careful reading of the trial record, this Court finds that it
was defense counsel, itself, who voluntarily abandoned this
line of questioning. True, the trial court had sustained two
objections by the prosecution relating to plea bargains. But
then, as defendant tried a third tack, still with the same
objective of exposing Wilhelm's bias, the court overruled the
prosecution's objection, saying, "Let him go ahead. He can
answer." As the defense counsel once again zeroed in on the
sensitive area of a negotiated plea, the state once again
objected on grounds of relevancy. This time the trial judge
responded, "No question pending." At this point, the defense
counsel simply abandoned his impeachment effort, without any
further attempt to rephrase his question, to ask the judge for
clarification of his comment, or to argue the point. As did the
Illinois Appellate Court, this Court finds the record devoid of
anything that shows that the trial court denied
cross-examination. People v. Dowd, 57 Ill.Dec. at 224, 428
N.E.2d at 904.
Petitioner has called this Court's attention to Chavis v. No.
Carolina, 637 F.2d 213 (4th Cir. 1980), in which the trial
court's refusal to let defense counsel pursue a line of
bias-related questioning on a key witness' plea bargain
resulted in the granting of a writ of habeas corpus. But the
trial judge's unequivocal and repeated sustainings of
prosecution objections, 637 F.2d nn. 11 and 12 at 220-21,
distinguishes Chavis from the instant case.
In sum, petitioner suffered no violation of her Sixth
Amendment right to confrontation by virtue of the cessation of
her cross-examination of Wilhelm.
C. Denial of Petitioner's Sixth Amendment Right to Effective
Assistance of Counsel
Petitioner asserts that the representation afforded her at
trial was ineffective as demonstrated by defense counsel's
repeated demonstration of ignorance of rules of evidence and
the failure to: (1) bring forward critical impeaching
evidence; (2) object to grossly improper questions and
argument by the prosecutor; and (3) correct perjured testimony
or tender a necessary instruction.