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1 v. Thieret

decided: August 3, 1988.

LARRY KURINA,*FN1 PETITIONER-APPELLANT
v.
JAMES THIERET, WARDEN, MENARD CORRECTIONAL INSTITUTION, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 C 6384 -- Milton I. Shadur, Judge

Posner, Easterbrook, and Kanne, Circuit Judges.

Author: Kanne

KANNE, Circuit Judge.

Petitioner-appellant Larry Kurina appeals from the district court's dismissal of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. ยง 2254. The district court dismissed Kurina's petition after considering seven of the eight grounds raised in the petition on their merits and finding that one ground had been waived. We affirm the district court's decision.

A.

On March 13, 1976, John Taylor and Emil Lauridson were fatally stabbed in an alley behind a neighborhood tavern in the city of Chicago. Kurina, Kurina's brother Brian, and several of Kurina's friends were the only individuals besides the victims in the alley at the time of the stabbing. Both Kurina and his friend Jim Damron were charged with two counts of murder. Kurina was tried and convicted in the Circuit Court of Cook County, Illinois.

The prosecution's chief witness, Rosemary Severs, testified that she was with Kurina and his friends on the evening of the murders. Severs testified that she saw Kurina leave his home earlier that evening with a knife which she later testified closely resembled the murder weapon. The entire group went to the Hi-Low Tavern. Shortly after their arrival, a fight took place in the alley behind the tavern. At the time of the fight, Severs was waiting for Kurina in his car. Severs testified that after going into the alley, Kurina ran to the car and said that he had just stabbed two men, that he did not know why he had done it, and that he had left the knife in one man's belly. Though a portion of Severs' testimony was corroborated by other witnesses, she alone saw Kurina with a knife and heard Kurina's confession. At trial, Severs admitted she had been drinking beer on the evening of the stabbings and that she had also taken a "downer."

Of those present in the alley at the time of the stabbing, only Kurina's brother Brian testified on Kurina's behalf. Brian did not see who stabbed Taylor and Lauridson nor did he see his brother or Damron with the murder weapon that night.

Because Severs' testimony was the only evidence directly linking Kurina to the crime, Kurina's attorney spent a good portion of the defense case attempting to discredit Severs. Kurina also attempted to show that a right-handed assailant had stabbed Taylor and Lauridson. It was established that Kurina is left-handed. In addition, Kurina called Dr. Shalgos, a forensic pathologist, to testify that the victims' wounds were consistent with an attack by a right-handed person.

The jury found Kurina guilty of both counts of murder and Kurina was sentenced to prison for 200-500 years.

Kurina raised three issues on direct appeal from his conviction, none of which was successful. The Illinois appellate court affirmed Kurina's conviction in People v. Kurena, 87 Ill.App.3d 771, 410 N.E.2d 277, 43 Ill. Dec. 277 (1st Dist. 1980). Leave to appeal from the state appellate court's decision was denied.

Kurina then sought relief under the Illinois Post-Conviction Hearing Act, Ill. Rev. Stat. Ch. 38, para. 122-1 to 122-7. In that petition, Kurina raised five issues not previously raised on direct appeal.*fn2 The petition for post-conviction relief was denied by the trial court and affirmed by the Illinois appellate court in an unpublished opinion. The Illinois Supreme Court denied leave to appeal.

Kurina then filed a petition for writ of habeas corpus with the federal district court. The district court dismissed Kurina's petition for a writ of habeas corpus and this appeal followed.

B.

Kurina presented eight reasons why a writ of habeas corpus should issue. Kurina argued that:

(1) he was denied his right to confrontation when the jury improperly experimented with a replica of the murder weapon during their deliberations;

(2) he was denied due process when the prosecution questioned his brother, Brian, on Brian's post-arrest silence;

(3) he was denied due process when the court improperly interjected itself into the questioning of two defense witnesses;

(4) he was denied due process when the court prevented him from presenting exculpatory evidence of a co-defendant's confession to the murders;

(5) his 5th Amendment rights were violated when the prosecution repeatedly referred to the "undenied and uncontradicted" testimony during closing arguments -- implicating Kurina's right to silence;

(6) he was denied due process when the prosecution mischaracterized the presumption of innocence during closing arguments;

(7) he was denied effective assistance of counsel on appeal since counsel failed to raise the issues of the court's questioning, the exculpatory confession, and the ...


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