The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter is before the Court on Petitioner Thomas Rice's Petition for Writ of Habeas Corpus (d/e 2) (Petition). Rice seeks relief pursuant to 28 U.S.C. § 2254. For the reasons set forth below, the Petition is DENIED.
In November 1995, Rice was tried in Sangamon County, Illinois, for the first degree murder of John W. Day, Jr. A mistrial was declared following the jury's inability to reach a unanimous verdict. In January 1996, Rice was retried. Larry Granderson, who, in the first trial, had testified as an eye witness to the shooting, failed to appear for the second trial, despite the fact that he was under subpoena.*fn1
The trial judge determined that Granderson had been properly served with a subpoena and knew his presence was required in court. Exhibit (d/e 25), Transcript of Jury Trial held January 24, 1996, p. 56. The court further determined that the prosecution acted with reasonable due diligence in attempting to secure his presence. Id., p. 57. Therefore, the court, over defense objection, allowed the prosecution to present Granderson's testimony from Rice's first trial. Rice was subsequently convicted of the first degree murder and sentenced to thirty-five years of incarceration.
Rice appealed, arguing that: (1) the trial court erred in allowing Granderson's prior testimony to be read to the jury in Rice's second trial, (2) the verdict was against the manifest weight of the evidence, and (3) the Illinois truth-in-sentencing statute violated Rice's constitutional rights. The Illinois Appellate Court for the Fourth District affirmed Rice's conviction and sentence by order dated February 7, 1997. Rice filed a Petition for Leave to Appeal to the Illinois Supreme Court, raising only the prior testimony issue. The Petition for Leave to Appeal was denied on October 1, 1997.
In January 1998, Rice filed a petition for post-judgment relief, alleging that his conviction was based on perjured testimony by Larry Granderson. In April 1998, Rice filed a petition for post-conviction relief in the state court, which he amended in August 1998. Rice alleged that: (1) he received ineffective assistance from trial counsel, (2) he received ineffective assistance from appellate counsel, (3) his conviction was based on perjured testimony, (4) the admission at the second trial of the transcript of Granderson's testimony from the first trial violated the confrontation clause, and (5) he was wrongfully denied good time credit.
The trial court held a hearing on Rice's requests for post-judgment and post-conviction relief. Exhibit (d/e 28), Transcript of Proceedings held July 17, 1998. At the hearing, Granderson testified. The following colloquy took place between Granderson and the trial judge:
THE COURT: You indicate in your written--your handwritten statement, which is attached to the transcript here, that Ms. Strickland was looking through the panes of glass in the front door at the time of the shooting, and now you testify that she was unable to see anything about a shooting. Doesn't that seem to be inconsistent to you?
A. That is inconsistent, but let me explain something:
When she was in the kitchen, we heard a shot, pow. She's the one run out to the kitchen, went to the door and looked outside, and said, "John is shot." I ran out the kitchen into-- following exactly--followed her motion, went into the living room, looked out the window, and saw John laying on the ground, and that is all I seen.
THE COURT: Okay. But, the question is what she saw? I mean, that is my question to you.
THE COURT: Because you've testified here that she was incapable of seeing out the door.
A. At the time of the shooting
THE COURT: At the time of the shooting, but in your written statement, you indicate that she, when you came in, and John was ...