Cora v. Hardy

Filing 52

MEMORANDUM ORDER Signed by the Honorable Milton I. Shadur on 1/22/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.
TREMAYNE CORA #B79855,
Petitioner,
v.
MARCUS HARDY,
Respondent.

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Case No. 11 C 9230

MEMORANDUM ORDER
In this 42 U.S.C. § 2254 ("Section 2254") proceeding originally filed pro se by Tremayne
Cora ("Cora"), able appointed counsel Standish Willis filed a December 28, 2012 "Petitioner's
Response to Defendant's Reply" that focused in large part on the testimony during Cora's murder
trial by witness Tamika Day ("Day"), who later recanted that testimony by stating that threats by
the police had caused her to testify falsely. There is no question that Day's testimony at trial
loomed large in the prosecution's case -- the prosecutor characterized her as an "important
witness" and referred to her key statement that Cora had said he would "air out this whole
block" (that is, that he would engage in a shooting, which later took place and became the basis
for the murder charge and conviction) no fewer than five times in the opening statement, once in
the argument and once in the rebuttal phase of closing argument.
Day's assertedly perjurious testimony and her recantation were reflected in an affidavit
signed by her that was submitted to Circuit Court Judge Evelyn Clay (Cora's trial judge) in a
post-conviction petition, but Judge Clay summarily denied Cora's request for hearing on that

score. Cora then pursued that claim through an appeal of Judge Clay's order, but the Illinois
Appellate Court affirmed her denial of a hearing. Hence Cora did not have the opportunity to
develop those facts in evidentiary form at the state court level.
When attorney Willis raised that issue at the status hearing that followed his December 28
filing, this Court -- aware of the limitation posed on federal evidentiary hearings in connection
with the habeas review of state court convictions (see Section 2254(e)(2)) -- originally indicated
that Cora would have to pursue that matter through the state courts in the first instance, a result
that would call for a stay-and-abey order in this case. But this Court's later review of the
Supreme Court's now two-week-old decision in Ryan v. Gonzales, 81 U.S.L.W. 4025 (U.S.
2013) has led to its taking another look at Cullen v. Pinholster, 131 S.Ct. 1388 (2011) and at
Judge Ripple's opinion for our Court of Appeals in Toliver v. Pollard, 688 F. 3d 853 (7th Cir.
2012).
To begin with, Toliver, id. at 860 quoted this excerpt from Pinholster, 131 S.Ct. at 1401:
Section 2254(e)(2) continues to have force where § 2254(d)(1) does not bar
federal habeas relief. For example, not all federal habeas claims by state prisoners
fall within the scope of § 2254(d), which applies only to claims "adjudicated on
the merits in State court proceedings."
In Toliver (as in Cora's case) the state trial court denied a request for a evidentiary hearing,
relying instead on an earlier record that contained affidavits but no in-court testimony -- and like
Cora, plaintiff Toliver complained about that issue and attempted an appeal to the appellate court
(688 F. 3d at 860). And that being so, Toliver, id. at 860 held:
An evidentiary hearing under § 2254(e)(2) was proper in this case because
Mr. Toliver diligently tried to develop the facts of his two claims in state court.
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There was nothing else Mr. Toliver could have done to develop the factual record.
Therefore, the federal evidentiary hearing was proper under § 2254.
This Court's revisit to those controlling authorities has led it to reconsider its having
earlier opted for the stay-and-abey procedure. Instead this Court is prepared to engage in an
evidentiary hearing involving witness Day unless the Illinois Attorney General's office were to
provide some persuasive argument to the contrary. This action is set for a status hearing at
8:45 am. February 1, 2013 to discuss the matter.

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Milton I. Shadur
Senior United States District Judge
Date: January 22, 2013

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