for failure to adequately present it to the state courts. Collins Claim I will be denied.
The focus of Bracy's allegations (B P 59) is that it was erroneous to excuse Cooper for cause. It is conceded that this issue was not raised in the Illinois courts (B P 60), but it is contended that failure to do so was ineffective assistance of counsel. Neither Bracy nor Collins support this contention. Bracy makes no specific argument as to either the merits of this issue or the alleged ineffective assistance in failing to object at the time Cooper was excused. No grounds for excusing the procedural default is found. Bracy Claim II is held to be waived for failure to raise it in the state courts.
B. Nellum's Testimony - Discovery and a Hearing (B5, B6, C2)
In early 1992, a private investigator hired by Bracy's attorney spent 25 hours interviewing Morris Nellum.
Some of the interview was recorded. In July 1992, Nellum gave a sworn statement before a court reporter to counsel for Bracy. In the interview and in the statement, Nellum said that some of his testimony at Bracy's and Collins's trial was false.
Thereafter, in April 1993, counsel for Bracy partially deposed Nellum in the Arizona postconviction proceedings, but, after answering some questions, without adding to his earlier statements, Nellum declined to continue unless his testimony was taken before a judge. Thereafter, the Arizona court declined to continue the deposition. Petitioners seek further discovery and a hearing to introduce additional Nellum testimony.
Although not stated by Nellum, it is argued that the assistant State's Attorney knew his testimony was false when given, and knowing use of the false testimony is alleged by both petitioners.
In the interviews, statement, and deposition, Nellum does not testify that Collins and Bracy were not involved in the murders. He instead testifies that certain specific statements by him were false. Contrary to his trial testimony, Nellum said that he was beaten by and threatened by the police when he was first arrested and gave an initial statement. See Nellum Stmt.
10-11, 15, 17-18, 20. He also stated that he was on one side of a two-way mirror adjoining an interrogation room where he saw Bracy being beaten. Id. at 14, 18. He states that his testimony that he saw Hooper at the scene of the crime was false.
Id. at 12, 19-20. His testimony that he saw Bracy with a shotgun was also said to be false. Id. at 22-23. He confirmed his testimony that he saw Collins with guns and that he was in a car with Collins. Id. at 23. He also testified that the assistant State's Attorney helped him get a job with musicians. This was after the trial and not promised prior to the conclusion of the trial. See id. at 23-24. Earlier in 1992, he told the private investigator that he never heard any gunshots and that he did not see Collins and others lead the murder victims to the car. This recantation was not repeated in his sworn statement or partial deposition.
Respondents primarily argue that recantation issues have been waived because not presented to the Illinois courts. The 1992 statements of Nellum occurred after the opening brief had already been filed in the postconviction appeal. Postconviction counsel raised the issue of recantation by Nellum for the first time in a reply brief, but that section of the brief was stricken and the issue is not discussed by the Illinois Supreme Court. See Collins II. Petitioners do not dispute that this issue has never been adequately presented to the Illinois Supreme Court and that an argument can be made that it is too late to do so now. They contend, however, that it was newly discovered evidence and therefore cause exists for not having previously presented it to the Illinois Supreme Court. There is no contention by respondents that the information could have been discovered sooner had due diligence been exercised. The discovery of new evidence may, under certain circumstances, constitute cause. Cf. Murray, 477 U.S. at 488; Cornell v. Nix, 976 F.2d 376, 380 (8th Cir. 1992) (en banc), cert. denied, 123 L. Ed. 2d 450, 113 S. Ct. 1820 (1993). Here, however, the newly discovered evidence is in the nature of a partial recantation of peripheral facts which are independently supported by other testimony and exhibits.
Ordinarily, state court remedies must first be exhausted. The time for filing a postconviction petition had already expired at the time the new evidence was discovered. See 725 ILCS 5/122-1. The delay, however, will be excused if it was not due to the defendants' culpable negligence. Id. Respondents, though, do not point to any direct precedent that the Illinois courts would excuse the delay. Therefore, it is presumed that no remedy was still available in state court at the time the new evidence was discovered. Harris v. DeRobertis, 932 F.2d at 621.
The introduction of perjured testimony at a trial is not, by itself, a constitutional violation that will support the granting of habeas corpus relief. Shore v. Warden, Stateville Prison, 942 F.2d 1117, 1122 (7th Cir. 1991), cert. denied, 118 L. Ed. 2d 573, 112 S. Ct. 1973 (1992). There is only a constitutional violation if the prosecution knowingly used perjured testimony. Id.; Del Vecchio, 1994 WL 374790 at *23. Nellum's various statements do not support such a conclusion. Even if this element were satisfied, the recantation must be "substantially different" from the trial testimony and central to the decision in the case. See Shore, 942 F.2d at 1124. Mere impeachment generally will be insufficient. See id. The question is whether the new testimony is substantially different and central to the decision in the case. The recantation about being beaten and testifying falsely in Arizona only go to credibility. The false statement about whether Nellum saw Hooper at the crime scene is also peripheral to Bracy's and Collins's guilt if Nellum still links Bracy and Collins to the scene. Recanting of the testimony that he saw Bracy and Collins lead the victims to the car and that he heard gunshots does not substantially affect the State's case. Two other independent witnesses put Collins and Bracy at the scene of the abduction. Another independent witness heard the shots and the ballistics evidence strongly supports the use of a shotgun and the weapons found as a result of Nellum's information. Moreover, Nellum still states he picked up Collins at the murder site and does not expressly recant that Bracy was there.
Petitioners seek permission to conduct discovery and hold a hearing, calling Nellum to testify. An investigator spent 25 hours talking to him, a sworn statement was taken by a lawyer for Bracy and a deposition was partially taken without developing a substantial recantation. Under the circumstances, good cause does not exist for permitting further discovery. See Rules Governing § 2254 Cases Rule 6(a); Matta-Ballesteros v. Henman, 896 F.2d 255, 259 (7th Cir.), cert. denied, 498 U.S. 878, 112 L. Ed. 2d 169, 111 S. Ct. 209 (1990). Hearing additional testimony from Nellum fourteen years after the events is not warranted. Given all the facts and circumstances, additional recantation, which would have little, if any, credibility, could only be cumulative impeachment.
Collins' Claim II focuses on the use of Nellum's allegedly perjurious testimony that he was with Collins when Collins threw the murder weapon in Lake Michigan. It has not been shown that Nellum would now testify that this event did not occur or that the prosecutor knew his contrary testimony at trial was false. On postconviction review, the Illinois Supreme Court addressed the question of the gun in the lake testimony being knowing use of perjured testimony by the prosecutor. It held that "defendants have failed to provide any evidence in support of their allegation that the prosecution knowingly used perjured testimony. . . . Even if we were to accept the defendants' position, they were aware of Nellum's inconsistent statements at the time of their direct appeal and they failed to raise a due process challenge at that time. Accordingly, the issue is res judicata for purposes of this review." Collins II, 606 N.E.2d at 1143. Since Collins Claim II is held to lack merit, it is unnecessary to consider whether it was waived.
C. Prosecutorial Misconduct (B4, B14, C3)
Petitioners raise issues as to prosecutorial misconduct at three stages of the trial. It is contended that the prosecutors acted improperly by bringing out evidence that certain witnesses had been relocated for protection and by using certain evidence to impeach witnesses. Petitioners also complain about certain prosecution arguments that were used in the prosecution's closing statement and in the prosecution's argument at the death penalty phase.
Respondents contend that certain prosecutorial misconduct claims are waived because not fairly presented to the Illinois Supreme Court. Respondents argue that the claims presented to the Illinois Supreme Court were only argued on state law grounds and therefore the constitutional variations contained in the present petitions were not fairly presented to the Illinois Supreme Court. Following the Second Circuit, the Seventh Circuit has adopted the following standard as to fair presentation.
If the petitioner's argument to the state court did not: (1) rely on pertinent federal cases employing constitutional analysis; (2) rely on state cases applying constitutional analysis to a similar factual situation; (3) assert the claim in terms so particular as to call to mind a specific constitutional right; or (4) allege a pattern of facts that is well within the mainstream of constitutional litigation, then this court will not consider the state courts to have had a fair opportunity to consider the claim. However, the presence of any one of these factors, particularly factors (1) or (2), does not automatically avoid a waiver; the court must consider the specific facts of each case.
Verdin, 972 F.2d at 1473-74 (quoting Daye v. Attorney General of New York, 696 F.2d 186, 194 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048, 79 L. Ed. 2d 184, 104 S. Ct. 723 (1984)).
Here, petitioners cited only state cases. However, they identified the claims as ones for prosecutorial misconduct and asserted that there were violations of due process or the right to a fair trial. In Collins I, the Illinois Supreme Court referred to the right to a fair trial in discussing the prosecutorial misconduct claims before it. Since prosecutorial misconduct claims are in the mainstream of constitutional litigation; references to due process and the right to a fair trial were sufficient to inform the Illinois Supreme Court that the claims were constitutionally based. Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986); Chisholm v. Henderson, 736 F. Supp. 444, 446 (E.D.N.Y. 1990), aff'd by unpublished order, 953 F.2d 635 (2d Cir. 1991); United States ex rel. Boone v. Sandahl, 1992 WL 111089 *2 (N.D. Ill. May 8, 1992); Saunders v. Riley, 1991 WL 95352 *5 (S.D.N.Y. May 30, 1991). The claims presented to the Illinois Supreme Court
have not been waived for failure to fairly present them in constitutional terms.
To be grounds for habeas relief, prosecutorial misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 94 S. Ct. 1868 (1974)). Accord Romano v. Oklahoma, 129 L. Ed. 2d 1, 114 S. Ct. 2004, 2012 (1994); Pierson v. O'Leary, 959 F.2d 1385, 1387 (7th Cir.), cert. denied, 121 L. Ed. 2d 115, 113 S. Ct. 168 (1992); Williams v. Chrans, 945 F.2d at 949. "It 'is not enough that the prosecutors' remarks were undesirable or even universally condemned.'" Darden, 477 U.S. at 181 (quoting the court below). Viewed in the context of the entire case, any misconduct shown must be "so inflammatory and prejudicial to the defendant . . . as to deprive him of a fair trial," Williams v. Chrans, 945 F.2d at 949 (quoting United States v. Chaimson, 760 F.2d 798, 809 (7th Cir. 1985)) (ellipsis in Williams), and must have "likely changed the outcome of the trial." Pierson, 959 F.2d at 1387. This includes consideration of whether the misconduct was "invited" by conduct of defense counsel,
whether objections were sustained, and any corrective or related instructions given. See Darden, 477 U.S. at 182.
3. During Presentation of Evidence
Petitioners complain that evidence as to Lyles and Nellum being relocated was elicited by the prosecution and also raised in the prosecution's closing argument. The Illinois Supreme Court held as follows on this issue.
. . . During cross-examination of Lyles the defense brought out the fact that Lyles had received money from the State's Attorney's office. On redirect examination by the State, Lyles testified that the money had been for security deposits and rent. There is nothing unfair about allowing the State to explain on redirect examination why it gave one of its witnesses money when that fact had been brought out by the defense during cross-examination. In closing argument, the defense referred to Lyles as being "well taken care of." On rebuttal the State asked, "why do you think we moved her? Do you think we were concerned about her [sic] responsibility to Laverne Lyles?" Again, there is nothing unfair about allowing the State to explain in rebuttal argument why a defense witness was being "taken care of" by the State when that issue was raised by the defendant during closing argument. The complained-of testimony and arguments were invited by the defendants and thus did not deprive them of a fair trial. . . .