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Perjury by state’s witness gets habeas petitioner a new trial

Paysun Long v. Kim Butler, 7th Circuit Court of Appeals Case No. 13-3327, 10/27/15

Long is entitled to habeas relief because the prosecutor in his state murder trial failed to correct perjured testimony given by a state’s witness.

Four eyewitnesses told police Long shot a person named Sherman. At Long’s trial, one witness maintained her identification, two recanted their identification, and one, Irby, identified Long but also testified she had told the police and prosecutor her identification was a lie. Long’s conviction was reversed on direct appeal (for reasons not relevant here). At Long’s second trial Irby again identified Long. The prosecutor didn’t ask Irby about her recantation at the first trial, however; and when Long’s attorney asked her about her recantation at the first trial, she denied telling the police and prosecutor her identification was lie. The prosecutor did nothing to correct Irby’s testimony (e.g., by impeaching her with her testimony from the first trial), though Long’s lawyer called Walter, a police investigator, to testify that Irby recanted her identification at the first trial—evidence the prosecutor cited in closing as a basis for finding her credible in the second trial. (Slip op. at 2-4).

The Seventh Circuit holds that the prosecutor’s failure to correct Irby’s testimony entitles Long to habeas relief:

The Illinois Appellate Court’s finding that the Irby perjury issue was “not meritorious” was an unreasonable application of clear Supreme Court precedent holding that “a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” See United States v. Agurs, 427 U.S. 97, 103, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976). “[A] conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue [v. Illinois], 360 U.S. [264,] 269 [(1959)]. A constitutional violation occurs if the State allows perjured testimony to go uncorrected, even if it did not solicit the false evidence. Id. ….


A government lawyer’s use of perjured evidence is a threat to the concept of ordered liberty. See Napue, 360 U.S. at 269. This threat is just as pernicious if the testimony goes only to the credibility of the witness, because “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend.” Id. Illinois separately acknowledges the State’s obligation in this regard, see, e.g., People v. Steidl, 685 N.E.2d 1335, 1345, 177 Ill. 2d 239, 226 Ill. Dec. 592 (1997) (“If a prosecutor knowingly permits false testimony to be used, the defendant is entitled to a new trial.”), and has incorporated this concept into its rules of professional conduct, see Ill. Supreme Ct. Rules of Prof’l Conduct R. 3.8 [(intro.)] (“The duty of a public prosecutor is to seek justice, not merely to convict.”).

That defense counsel later did what he could to minimize the damage of Irby’s perjured testimony does nothing to reduce the State’s duty to correct the perjured testimony. Just because the jury heard Walter explain during the defense case that Irby’s story had changed does not turn “what was otherwise a tainted trial into a fair one.” Napue, 360 U.S. at 270; … Additionally, the fact that the jury heard from another witness who challenged Irby’s recollection merely set up the kind of credibility comparison that is the bread and butter of a trial—it does not address the problem that the jury should never have heard that testimony in the first place. Even if this evidence was only used by the jury to assess Irby’s credibility, the State’s failure to correct that evidence was a clear due process violation and the Illinois court’s decision to the contrary was unreasonable. Napue, 360 U.S. at 270.

(Slip op. at 13-15).

As frequently happens in habeas cases, Long has to maneuver his claims through the tangled thicket of procedural default before the court gets to the merits. For starters, the State argued Long procedurally defaulted his Napue issue, but the court disagrees. The issue wasn’t raised on Long’s direct appeal, but in his pro se collateral attack after the direct appeal was over. Counsel was appointed to assist Long on collateral attack, but after counsel didn’t file an amended petition the petition was dismissed. Long appealed this dismissal, arguing counsel on direct appeal was ineffective for failing to raise the Napue issue. The state appellate court rejected this appeal, holding Long’s appellate counsel wasn’t ineffective because the failure to correct the false testimony wasn’t prejudicial. (Slip op. at 5-6). The State, relying on Lewis v. Sternes, 390 F.3d 1019 (7th Cir. 2004), claims this history means the Napue issue wasn’t “fairly presented” to the state courts because it was raised through the prism of ineffective assistance. The court disagrees, holding, consistent with Malone v. Walls, 538 F.3d 744 (7th Cir. 2008), that Lewis didn’t announce a broad rule that a constitutional claim embedded in an ineffective assistance claim has never been fairly presented to the state courts:

As in Malone, Long has raised an ineffective assistance of appellate counsel claim as a means for the Court to reach the perjured testimony claim. See 538 F.3d at 75…. Long’s operative petition is his self-drafted petition because appointed counsel never amended, therefore it should be given a “generous interpretation” in this Court. See Lewis, 390 F.3d at 1027. The ineffective assistance of Long’s appellate counsel, discussed below, gave him “cause” for failing to raise the Napue claim in the state courts. Although embedded in his ineffective assistance of counsel claim, Long fairly presented the factual and legal basis for the perjured testimony claim to the Illinois state court and, importantly, that court considered the issue on its merits.

(Slip op. at 10-11). On some of his other issues, however, Long doesn’t avoid default. An issue Long raised in direct appeal was found by the state appellate court to have been waived by lack of contemporaneous objection at trial; that claim is defaulted on state law grounds, and can’t be saved by a claim postconviction counsel was ineffective for failing to call appellate counsel ineffective for not raising an ineffective trial counsel claim. Also, Long’s pro se appeal from the denial of his collateral attack alleged that postconviction counsel was ineffective for not amending the collateral attack petition to include various other claims. The state appellate court didn’t reach the merits of those issues because it held—again as a mater of state law—that collateral counsel was not obligated to raise the issues. Those issues are defaulted, too. (Slip op. at 17-26).

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