Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 8211--Matthew F. Kennelly, Judge.
Before Bauer, Posner and Kanne, Circuit Judges
The opinion of the court was delivered by: Bauer, Circuit Judge
Petitioner, Tod Harding, was convicted of murder and residential burglary in Illinois state court. Harding was sentenced to life imprisonment for the murder conviction and to a concurrent term of twenty-five years for the residential burglary conviction. Both convictions were affirmed on appeal, but his sentence for residential burglary was reduced to fifteen years. After exhausting all other state remedies, Harding sought habeas relief, claiming due process violations. The district court granted Harding's petition on one of the grounds raised therein: deprivation of due process due to the state's knowing use of perjured testimony and failure to correct such testimony. For the following reasons, we REVERSE the decision of the district court.
Harding was convicted for the murder of his mentally impaired paternal cousin, George Miller, and for the residential burglary of the Miller family home. At trial, one of Harding's cousins on his maternal side, James Harland, testified for the prosecution. Harland was a co-defendant who participated in the crime.
Harland's detailed testimony described the events that took place on the night of the murder. Among other things, Harland testified that Harding was at the scene of the crime and identified him as the man who shot Miller. In addition to these material facts, Harding contends that Harland offered perjured testimony during cross-examination and the prosecution was aware of the false testimony.
On cross-examination, the following exchange took place:
Q: Did your attorney tell you that the penalties would be different if you involved Todd [sic] or Gerald?
Q: Did anybody else tell you the penalties would be different if you testified?
Q: Why are you telling the jury that you have decided to testify and give this version today?
A: Because it just came to me that I had been arrested for a murder that I did not do. And, I--
Q: In Davenport, Iowa, the first day you were arrested, the police told you in the squad car they wanted the person who ...