Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 83 C 5629, Susan Getzendanner, Judge.
Before CUMMINGS, Chief Judge, RIPPLE, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
RIPPLE, Circuit Judge. In 1980, following a jury trial in state court, the appellant, Rudolph Bonner, was convicted of rape, deviate sexual assault, unlawful restraint and armed violence. he is currently in the custody of the Illinois Department of Corrections. After exhausting his state remedies, Mr. Bonner filed a petition for habeas corpus in the district court. On March 29, 1985, the district court, on respondents' motion for summary judgment, denied Mr. Bonner's petition. We affirm the district court's judgment.
At approximately 12:30 a.m. on October 19, 1979, Patricia Phillips was walking alone on her way home. As she passed through a park, someone approached her from behind, pushed her to the ground and said: "If you scream, I'll kill you. See the knife?" Tr. 294. The assailant told Ms. Phillips that he knew her sisters, Wanita and Pat. She informed him that she was Pat. The assailant then forced Ms. Phillips to walk over to some bushes near a lighted basketball court. There he raped her. Ms. Phillips testified that she had several opportunities to observe the offender during the crime.
Following the attack, the victim immediately went home. When the police arrived, she gave them a description of her attacker. She described him as 5'4" tall, weighing approximately 135 pounds. She said that he wore gold-framed glasses, had a goatee, possibly had a chipped tooth and wore a dark skull cap and a class ring. Initially, Ms. Phillips said that she did not recognize her assailant. However, while receiving treatment at the hospital, she indicated that the offender may have been Rudolph Bonner. Mr. Bonner was a high school acquaintance whom she had not seen for ten years.
Immediately after treatment at the hospital, Ms. Phillips went to the police station. Although Mr. Bonner's picture appeared twice in four books of photographs, Ms. Phillips did not identify anyone. Later that day, Ms. Phillips was asked to return to the police station to view a line-up. Despite the fact that officers told her they had Mr. Bonner in custody, she could not identify him. After a brief conversation with one of the police officers, Ms. Phillips viewed a second line-up. This time she selected the defendant, the only individual in the line-up with a goatee. According to testimony, Mr. Bonner is approximately 6 feet tall and weighs 165-170 pounds.
Following a trial in which both the pre-trial and in-court identifications were admitted into evidence, the jury returned a guilty verdict. Mr. Bonner appealed the conviction to the Illinois Appellate Court where he raised six issues: (1) whether the identification testimony of the complainant was sufficient to prove him guilty beyond a reasonable doubt; (2) whether there was sufficient evidence to prove sexual intercourse; (3) whether the trial court erred by not sua sponte giving a jury instruction defining sexual intercourse; (4) whether the court erred by giving an instruction on admissions; (5) whether the prosecutor's comments during closing arguments prejudiced the trial; and (6) whether Mr. Bonner's conviction for armed violence; unlawful restraint; and rape violated the one act--one crime rule. The appellate court found some merit in the final issue and, while affirming the rest of the conviction, it reversed the jury's verdict on the armed violence count. It held, however, that the unlawful restraint charge and the rape charge were based on independent acts. Mr. Bonner petitioned for leave to appeal to the Illinois Supreme Court. He raised only one issue: "whether the failure to tender a jury instruction defining an essential element of the crime automatically implies a deliberate choice by defense counsel and thereby precludes appellate review." R. 23, App. A at 2. The Illinois Supreme Court refused to grant leave to appeal.
Mr. Bonner raised six issues in his petition for habeas corpus filed in the district court. The first five are the same as those raised in the Illinois Appellate Court. Having been accorded some relief by the state court on the last issue, Mr. Bonner asked the district court to hold that the rape charge and the unlawful restraint charge also violated the one act--one crime rule. Holding that there was no genuine issue of material fact, the district court granted the respondents' motion for summary judgment and dismissed the habeas petition. On appeal, Mr. Bonner once again raises six issues. He also argues that the cumulative effect of the errors deprived him of his right to a fair trial.
We must first address an issue raised only tangentially by the parties. A federal court, reviewing a state conviction under 28 U.S.C. § 2254 (1966), may, as a general rule, consider only those contentions which the prisoner presented for decision to the state courts in the manner prescribed by state law. Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). As noted in the preceding section, in this case, after his conviction was affirmed in the Illinois Appellate Court, Mr. Bonner filed a petition for leave to appeal in the Illinois Supreme Court.*fn1 In that petition, he raised a single issue. No other issue was presented to the Illinois Supreme Court.
This is not, however, the "normal" case. The State of Illinois has not argued, either before the district court or here on appeal, that Mr. Bonner has waived all of his contentions by not presenting them to the Illinois Supreme Court.*fn2 In Barrera v. Young, 794 F.2d 1264 (7th Cir. July 9, 1986), this court held that the state may waive "the protection of the Wainwright doctrine by its inattention to it."*fn3 Here, the state has clearly failed to rely on Mr. Bonner's procedural default. Therefore, with the exceptions discussed in the following paragraphs,*fn4 we shall address the merits of the petitioner's claims.
Sufficiency of the Identification
Mr. Bonner argues that Ms. Phillips' identification was not sufficient to establish beyond a reasonable doubt that he was the assailant. As the district court noted, Ms. Phillips identification was not perfect. There were some inconsistencies between her original description of the assailant and Mr. Bonner's actual appearance.*fn5 In addition, Ms. Phillips did not immediately name Mr. Bonner as the offender. She also failed to pick out Mr. Bonner's photograph from a group of pictures and she did not recognize him in the first line-up. On the other hand, when Mr. Bonner arrived at the police station, he wore gold-framed glasses, a dark skull cap and a class ring. He also had a chipped tooth and a goatee. Each of these characteristics matched Ms. Phillips' original description of her ...