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April 8, 1985


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


This action is before the court on the petition for a writ of habeas corpus, 28 U.S.C. § 2254, of Warren Lee Harris. The parties have briefed respondent's motion for summary judgment. Moreover, the parties have provided the court with additional materials from the state court record. For the reasons stated below, respondent's motion for summary judgment is granted in part and denied in part. An evidentiary hearing is required to determine the merits of the one outstanding claim. The court therefore will appoint an attorney to aid Harris in this evidentiary hearing.

Factual Discussion

On December 21, 1977, after a three-day jury trial, Harris was found guilty of murder on the testimony of the state's one occurrence witness, Antonio Slater. According to Slater, Harris shot and killed one Earnest Howard on the night of July 9, 1977, near the area of 16th and Christiana streets in Chicago, Illinois. On February 2, 1978, Harris was sentenced to serve 50 to 100 years in the state penitentiary.

At trial, Public Defenders Todd Musberger and Kathy Kuhlen represented Harris. In her opening statement on December 19, 1977, Kuhlen made the following remarks:

    At this time, I would like to mention one of
  the names that Mr. Fuenty [prosecutor] brought up
  and also another name that he didn't mention that
  I think will figure quite prominently in this
  trial, that other name is Melvin McWhorter, also
  known as Buster on the street.
    To understand the importance of Mr. McWhorter
  and of Antonio Slater, it is necessary to give
  you a brief review of the police investigation in
  this case. During the days immediately following
  the shooting of Earnest Howard the police talked
  to a number of people who were present in the
  area of 16th and Christiana, people who lived
  there and also to relatives of Earnest Howard.
  They learned that Earnest Howard was a narcotics
  dealer who sold in that neighborhood at 16th and
    We believe the evidence will also show that the
  police learned that two persons immediately after
  the shooting were seen running away from the
  scene of the shooting in a northeast direction
  through a lot on the north side of Christiana.
  Through further investigation, the police learned
  that one of those individuals was Melvin
  McWhorter. They had Melvin McWhorter come to Area
  Four Police Headquarters, advised him of his
  rights and interrogated him.
    At that time he denied knowing anything about
  the shooting. They then placed Mr. McWhorter in a
  lineup and two persons positively identified him
  as one of the individuals they had seen running
  away from the scene immediately after the
    The police then confronted Mr. McWhorter again
  and Mr. McWhorter changes his story and says what
  he said before was a lie, and then tells the
  police that . . . he was across the street at the
  time of the shooting but that he didn't see the
  shooting itself.

(Trial Transcript 31-33.) Kuhlen continued, discussing how Slater's statement to the police switched the focus of suspicion to Harris from McWhorter, and asking the jury to examine carefully Slater's credibility.

The state first called Howard's father to testify that he identified his son's body at the morgue. This was not objected to, although the identity of the victim was not in dispute. Harris does not claim error from this failure.

The state next called Maurice Williams, who knew the victim as "Pete." Williams came to Pete's aid soon after the shooting by calling the police. Williams testified that he noticed McWhorter (Buster) among the crowd of persons that had gathered around the scene of the shooting. (Tr. 46, 51.)

On December 20, 1977, the state examined Officer Joseph Michello, one of the police officers that appeared on the scene after the shooting. Musberger's cross-examination centered on the location of Howard's body upon his arrival on the scene.

The state next called Antonio Slater, who explained on direct examination that he arrived at the scene of the shooting while driving south on Christiana (a one-way southbound street) at about 20 m.p.h. Slater testified that he crossed the intersection of 15th and Christiana and when he was about 12 feet behind a parked vehicle that was blocking his way, he heard a shot and noticed two men standing near each other. He witnessed the man with his back to Slater push the other man, who fell. This occurred about 12 feet in front, or south, of the car that was parked in front of Slater's. The man who had pushed the other man down, turned and ran to the parked car, turned and faced Slater, pulled up a pistol at Slater, and jumped into the passenger section of the car. (R. 71-76.) When the pistol was pointed at him, Slater crouched. (R. 79.) The car pulled away. (R. 76.)

When asked to identify the man who apparently shot Howard, Slater responded, "Wayne" and in court identified Harris as Wayne. (R. 77-78.) Slater testified that he knew Wayne from a poolroom at 13th and Kedzie. He testified:

  I don't actually know [Harris], I know him by
  people speaking to him, you know, but about two
  years I have seen him up there. . . . about once
  or twice a month.

(R. 78.) Slater was able to see Wayne because gold street lights along Christiana were lit and because his headlights were shining on Wayne's waist. (R. 81.)

Slater was next asked about going to the police station. He testified that he went there in August 1977 with his uncle and talked to Investigator Tom Shine. Slater testified that he had not been contacted before he went to the station. (R. 84.)

Musberger then cross-examined Slater. He first pointed out that it took Slater six weeks to go to the police with his story. (R. 89.) He highlighted that Slater had changed his reason for having been in the area of 15th and Christiana on that night. Musberger also highlighted inconsistencies between Slater's pretrial statements and his trial testimony. Musberger also impeached Slater's story that he had seen Wayne several times over the previous two years. (R. 109-110.)

After Slater, two other witnesses were called by the prosecution on the issue of the cause of death. On December 21, 1977, the defense rested without putting on any evidence. (R. 130.) The portions of the opening argument suggesting that McWhorter or others might have been responsible for the shooting were ignored completely. Later that afternoon, the jury returned a verdict that Harris was guilty of murder.

After sentencing, Harris was represented by an Assistant Appellate Defender, Nancy Abrahams, on direct appeal. Abrahams presented one argument on appeal, namely, that the evidence was insufficient constitutionally to support a conviction for murder. (Respondent's Attachment, filed 2/15/85, Brief for Appellant.) On June 4, 1979, the Appellate Court found the evidence constitutionally sufficient and affirmed the conviction. (Id. at Order Disposing of Appeal under Supreme Court Rule 23 [direct appeal]).

On July 17, 1979, Abrahams, as Harris's stand-by counsel, filed Harris's pro se petition for post-conviction relief. (Harris's Motion in Opposition, filed 11/21/83, at 8-9.) In the post-conviction petition, Harris raised two issues: (1) ineffective assistance of trial counsel, and (2) newly discovered evidence. The public defender's office was granted leave to withdraw, and Attorney Loretta Hall Hardiman assumed prosecution of the petition. She filed an amended post-conviction petition, dropping the newly discovered evidence claim.

The lower post-conviction court held a hearing on March 27, 1980. A second hearing on the amended petition occurred on March 19, 1981. (The transcript is attached as Exhibit 3 to Harris's Motion to Reconsider, filed 10/18/82.) The court denied the petition at the close of that hearing, without convening a hearing in which to take testimony. Id. at 27. Assistant Appellate Defender Bruce Mosbacher represented Harris on appeal of this decision. The denial of post-conviction relief was affirmed on February 22, 1983. (Respondent's Answer and Memorandum, filed 10/21/83, Order Disposing of Appeal Under Supreme Court Rule 23 [post-conviction].)

Claims for Relief

Harris first claims that he was unduly prejudiced by the state court delay in disposing of his post-conviction petition. According to Harris, certain alibi witnesses (the Connor family) moved to Mississippi in late 1979 and Z. Mary Connor died in December 1979. (Original Petition, attachment, at 1-2.) This loss of evidence, caused by the alleged inexplicable delay, is offered as support for the claim that Harris is now in custody in violation of the federal constitution.

Harris's second claim for relief is based on alleged ineffective assistance of counsel. According to Harris, his trial counsel failed properly to investigate witnesses and to impeach the testimony of Antonio Slater. Harris listed several errors in his amended petition for habeas corpus, all of which were raised in his amended petition for post-conviction relief:

  1. Counsel failed to interview or call as
  witnesses Investigators B. Peck and L. Sykes to
  impeach Slater. These witnesses would testify
  that "the victim was shot in the gangway,"
  although Slater testified the victim was shot on
  Christiana street. (Amended Petition for Habeas
  Corpus Item H.)
  2. Counsel failed to interview or call as
  witnesses Alice Riles or Leroy Carter. Both saw
  two men running from the scene of the shooting at
  the time of the shooting. Both identified
  McWhorter as one of the two men. Riles indicated
  in the police report that she could identify the
  other man by appearance. Police records contained
  this information.
  3. Counsel failed to investigate or call as a
  witness George Williams. Williams would testify
  that he was with McWhorter the night of the
  shooting, that he knew the victim through a long
  history of drug dealings, and that Harris was not
  at the scene of the shooting. Police records
  contained this information.
  4. Counsel failed to call police investigator
  Shine or any other investigator to impeach
  Slater's testimony that he did not hang out in
  the area of the shooting and that he had never
  been in that area. Shine also could have
  impeached Slater's statement that he came to the
  police station voluntarily, although Shine's
  report indicates an informant provided Slater's
  name and the police contacted Slater. Counsel
  also did not seek the identity of the informant.
  5. Counsel failed to offer into evidence the
  agreed stipulation that "would have perfected the
  impeachment of the witness Slater [sic] trial
  testimony that he turned off Christiana from 16th
  Street and witness [sic] the crime."
  (Id. at Item O.)
  6. Counsel failed to call or investigate
  residents of 13th and Kedzie, who could testify
  that no pool room existed at that corner, thereby
  impeaching Slater's testimony that he knew Harris
  as Wayne from "seeing him every month at a
  poolroom on 13th and Kedzie." (Id. at Item Q.)
  7. Counsel failed to interview, investigate, or
  call as witnesses four alibi witnesses: Jewel
  Connor, Z. Mary Connor, Genise Connor, and
  Charles Thomas. Harris provided counsel with the
  names and addresses of the witnesses. These
  witnesses would have testified that Harris was
  ill and in bed at the Connor's home on the night
  of July 9, 1977 and was later hospitalized on
  July 13, 1977 for that same illness. (See
  Affidavits attached to original petition for
  habeas corpus.)
  8. Counsel failed to call any of the doctors who
  treated Harris at Cook County Hospital to testify
  and corroborate his alibi witnesses' story that
  he was hospitalized on July 13, 1977 with an
  illness that would indicate he was also ill on
  July 9, 1977.

All of the names contained in this list of alleged errors, except the names of the alibi witnesses, are contained in the police records and in the state's list of potential witnesses. (See Harris's Requested Records and Information, filed 2/25/85 [Answer to Discovery].) According to Harris's amended post-conviction petition, he did not learn that counsel would present no defense evidence until December 21, 1977, the last day of trial. (Harris's Motion to Reconsider, filed 10/18/82, Exhibit 1 at p. 3 [Amended Petition for Post-Conviction Relief].)

Harris's final claim is that the evidence was constitutionally insufficient to convict him of murder beyond a reasonable doubt. He claims Slater's testimony ...

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