Harding, Tod v. Walls, Jonathan R.

In the

United States Court of Appeals

For the Seventh Circuit

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No. 01-2929

TOD HARDING,

Petitioner-Appellee,

v.

JONATHAN R. WALLS,

Respondent-Appellant.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 99 C 8211—Matthew F. Kennelly, Judge.

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ARGUED MAY 17, 2002—DECIDED AUGUST 13, 2002

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Before BAUER, POSNER and KANNE, Circuit Judges.

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 ha-

beas 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 cor-

rect such testimony. For the following reasons, we REVERSE

the decision of the district court.

2 No. 01-2929

Background

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?

A: No, sir.

Q: Did anybody else tell you the penalties would be

different if you testified?

A: No, sir.

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 ar-

rested 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 did the shooting. You admit that?

A: Right.

Q: You are—Are you saying that was never told to you

again?

No. 01-2929 3

A: They could have said it. I really didn’t pay too

much attention. I was trying to listen to what

they said. I didn’t want to answer none of their

questions until I had gotten a hold of my lawyer.

Q: In November of 1982, were you at the Miller resi-

dence?

A: Yes.

Q: That was the occasion you went hunting out there?

A: Yes.

Q: Have you been promised anything in return for

your testimony?

A: No, sir.

Q: Have you asked for anything in return for your

testimony?

A: No, sir.

Q: That is you asked your attorney if you will get

anything in return for your testimony?

A: Not really, no, sir.

Q: Well, not really, what have you asked him?

A: I just asked him, you know, you know, if I am go-

ing to get charged for a murder that I have not

done.

Q: Do you think the murder charge is going to be

dropped against you in return for your testimony?

A: No, sir.

Q: Is that what you are testifying?

A: No, sir.

R. 28-2, at 337-39. Harding argues that Harland lied when

asked by defense counsel about whether he had asked for

4 No. 01-2929

or otherwise been promised consideration in return for his

testimony.

In the post-conviction trial court, Harding filed an

affidavit signed by Harland in which Harland states that

he discussed his case with his attorney and the prosecu-

tor prior to trial. The affidavit also states that, during

those discussions, Harland was reassured that testify-

ing against Harding would benefit his own case. In re-

sponse, the state filed affidavits of both the trial prosecutor

and Harland’s defense counsel, attesting to the fact that

Harland received no promises nor were there any agree-

ments for a charge reduction or an agreed sentencing term

prior to Harland testifying.

In granting the prosecution summary judgment on

Harding’s post-conviction petition, the state trial court

found that Harland’s affidavit failed to raise a genuine

issue of material fact and that the jury would not have

reached a different verdict had they known Harland

expected something in return for his testimony. The Illi-

nois Appellate Court affirmed, noting the vagueness of

Harland’s testimony, and further stating that the absence

of any quid pro quo agreement left Harland with only the

hope of receiving beneficial treatment in exchange for his

testimony.

The district court disagreed with the conclusions reached

by the Illinois courts, finding: (1) that Harland did lie

about whether he had asked for or otherwise been prom-

ised consideration in return for his testimony; (2) that

the prosecutor knew Harland lied; and (3) that the pros-

ecution’s error in failing to correct Harland’s perjured

testimony was not harmless. Based on these findings, the

district court granted Harding habeas relief.

No. 01-2929 5

Discussion

We review the district court’s factual findings for clear

error and legal conclusions as well as mixed questions

of law and fact de novo. Kapadia v. Tally, 229 F.3d 641,

644 (7th Cir. 2000); Kavanagh v. Berge, 73 F.3d 733, 735

(7th Cir. 1996).

Habeas relief may be granted if a state court adjudication:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based on an unrea-

sonable determination of the facts in light of the evi-

dence presented in the State court proceeding.

28 U.S.C. § 2254(d).1

With respect to section 2254(d)(1), relief may be granted

if the petitioner shows that, despite identifying the cor-

rect rule of law, the state court unreasonably applied it

to the facts of the case. Williams v. Taylor, 529 U.S. 362,

404 (2000). The unreasonable application of federal law,

however, is different from the incorrect or erroneous

application of federal law. Boss v. Pierce, 263 F.3d 734, 739

(7th Cir. 2001) (citing Williams, 529 U.S. at 410). A fed-

eral court simply disagreeing with the state court deci-

sion does not warrant habeas relief. Under section

2254(d)(2), relief may be had where the petitioner can

show by clear and convincing evidence that the state

1

Respondent spends some time briefing the propriety of the

district court’s apparent reliance on both sections 2254(d)(1) and

2254(d)(2). No examination of this issue is necessary as neither

section affords habeas relief to Harding. The decision of the Illi-

nois Appellate Court was reasonable as a matter of law and fact.

6 No. 01-2929

court’s factual determinations were unreasonable. 28

U.S.C. § 2254(e)(1). Even if the petitioner demonstrates

constitutional error under section 2254(d)(1) and/or sec-

tion 2254(d)(2), he or she still may not be entitled to ha-

beas relief where such error is deemed harmless; that is,

could not have had a substantial and injurious effect or

influence on the jury’s verdict. O’Neal v. McAninch, 513

U.S. 432, 436 (1995) (citations omitted).2

It is well established that the introduction of perjured

testimony, without more, does not rise to the level of a

constitutional violation warranting habeas relief. Tayborn

v. Scott, 251 F.3d 1125, 1130 (7th Cir. 2001). A habeas pe-

titioner seeking a new trial on the ground that the prosecu-

tor used perjured testimony must establish “(1) that the

prosecution indeed presented perjured testimony, (2) that

the prosecution knew or should have known of the per-

jury, and (3) that there is some likelihood that the false

testimony impacted the jury’s verdict.” Id. (quoting United

States v. Thompson, 117 F.3d 1033, 1035 (7th Cir. 1997)).

Here, the district court found that the Illinois Appel-

late Court’s determination that Harland did not perjure

himself was unreasonable in light of the evidence pre-

sented. We disagree. After reviewing the testimony at is-

sue, the state court opined, “We cannot, on the basis of

the State’s Attorney’s ephemeral promise and Harland’s

vague testimony, conclude that the State obtained the

2

We say may not be entitled to habeas relief because there is

some question whether the harmless error standard articulated

in O’Neil has survived the passage of the AEDPA. See Ander-

son v. Cowan, 227 F.3d 893, 898 n. 3 (7th Cir. 2000) (discussing

divergence between circuit courts questioning application of the

O’Neal standard post-AEDPA). We need not address the viability

of the O’Neal standard, as Harding fails to demonstrate any con-

stitutional error in the first place.

No. 01-2929 7

defendant’s conviction by knowingly using perjured testi-

mony.” While the district court may legitimately disagree

with this conclusion, it is not unreasonable in light of the

record.

In rejecting the arguments that Harland falsely stated

that he was not promised anything nor asked for any-

thing in exchange for his testimony, the state court noted

that no quid pro quo agreement existed between Harland

and the prosecution. The court further noted that the

prosecution in fact refused to negotiate with Harland,

leaving him with only the hope that his testimony would

result in the benefit of leniency. The affidavits filed by

Harding in his post-conviction proceedings support these

findings.

As previously set forth, Harland’s affidavit averred

that he discussed his case with his attorney and the

prosecutor prior to trial and that, during those discussions,

he was “reassured” that his testifying against Harding

would benefit his own case. Additionally, the affidavits

of the prosecutor and defense counsel both state unequivo-

cally that Harland received no promises or any agree-

ments for a charge reduction or an agreed sentencing

term prior to testifying against Harding. The affidavit of

Harland’s defense attorney attested to the fact that the

prosecutor refused to negotiate a plea in exchange for

testimony. Mere reassurances given outside the realm of

negotiations hardly qualify as a definitive request or

promise for beneficial consideration. Indeed, as the re-

spondent points out, such reassurances reflect that

Harland was simply advised of the reality that cooperat-

ing with the prosecution might benefit him at a future

date. Absent anything more, it is not at all unreasonable

to conclude that Harland testified truthfully since he

had nothing more than a common sense hope that his

testimony might be beneficial to his own case.

8 No. 01-2929

Because we find that the state court’s determination

that Harland did not commit constitutional error by

perjuring himself was reasonable, we need not reach the

intertwined issues of harmless error and impact on the jury.

Conclusion

The decision of the district court conditionally grant-

ing the petitioner, Tod Harding, habeas relief is REVERSED

and REMANDED with instructions to deny the prayed for

writ.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—8-13-02