Cora v. Hardy

Filing 55

MEMORANDUM ORDER Signed by the Honorable Milton I. Shadur on 1/31/2013. 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.
)
)
MICHAEL LEMKE,1 Warden,
)
)
Respondent.
)

No.

11 C 9230

MEMORANDUM ORDER
Assistant Attorney General David Iskowich has filed a
thorough--and thoroughly persuasive--Response to this Court's
January 22, 2013 memorandum order (“Order”), urging the reversal
of the Order's ruling that had granted habeas petitioner Tremayne
Cora (“Cora”) an evidentiary hearing to develop the factual basis
for his claim that police had coerced witness Tamika Day (“Day”)
to provide some assertedly false--and importantly, assertedly
material--statements during Cora's state court criminal trial.
That filing caused this Court to retrace its steps, a procedure
that uncovered the place where this Court had left the rails and
the Order had consequently taken the wrong turn.
In brief, the Order had operated on the premise that the
state post-conviction proceedings instituted by Cora had not
eventuated in an ultimate state court ruling on the merits as to

1

Because Michael Lemke has succeeded Marcus Hardy as the
Warden at Stateville Correctional Center, this case caption has
reflected his substitution as respondent.

the impact of the assertedly police-coerced false testimony of
Day--testimony that she later recanted.

As this Court had

mistakenly understood the matter, the Illinois Appellate Court
had not spoken to that issue in its review of the decision by the
Circuit Court of Cook County.2
In any event, immediately on receipt of the current Response
this Court had its law clerk print out the March 16, 2011
unpublished order of the Illinois Appellate Court in its Case No.
1-09-1663, in which that court affirmed as modified the order of
the Circuit Court of Cook County that had granted the State's
motion to dismiss Cora's state post-conviction petition without
calling for an evidentiary hearing.

Most critically, that

unpublished order (2011 WL 9692905) held that Cora's allegations
in that petition and its supporting materials had not made a
substantial showing that his constitutional rights had been
violated (citing People v. Orang, 195 Ill.2d 437, 448 (2001)).
On that score the Appellate Court expressly held that even if
Day's original version of events was perjurious, it was not
material in the sense that it influenced, or could have
influenced, the factfinding jury's deliberations on the issues

2

For some unexplained reason, this Court's retained
chambers file did not include the exhibits to the Answer to
Cora's Petition, though when this Court went back to review the
bidding on receipt of the current motion found that the Answer to
Cora's Petition filed May 17, 2012 had listed the Appellate
Court's disposition as its “Ex. M.”
2

presented to it.

As the Appellate Court summarized its

conclusion (2000 WL 9692905 at *3):
It is not likely the portion of Day's testimony that
she now recants would have influenced the jury to
convict defendant.
And that being so, the Appellate Court affirmed the Circuit
Court's dismissal of Cora's state post-conviction petition
without requiring an evidentiary hearing.
Although Cora's 28 U.S.C. §2254 (“Section 2254") Petition
for Writ of Habeas Corpus filed in this District Court had sought
to advance other grounds for relief in addition to that based on
Day's testimony, and although attorney Standish Willis (whom this
Court had appointed to represent Cora) had done a highly
commendable job of putting the best possible face on those added
grounds as well as on the Day-based ground, the Assistant
Attorney General's initial Answer to the Petition (filed May 17,
2012) demonstrated in detail and to this Court's satisfaction
that the other grounds did not survive scrutiny through the lens
of Section 2254(d) analysis.
That of course was the reason that the Order focused
exclusively on what appeared to be the Petition's only
potentially viable ground--the one based on the assertedly
tainted Day testimony.

And now, with that potential ground also

having succumbed in light of the restrictions imposed by Section
2254(d), the entire Petition has failed.

3

In sum, Section 2254(d) also precludes Cora's relitigation
of his Day-testimony-based claim unless the state court decision
was unreasonable--and this Court cannot say that.

That being so,

Section 2254(d) calls for this Court's reconsideration and
reversal of its analysis and of its determination that an
evidentiary hearing involving witness Day is called for (Cullen
v. Pinholster, 131 S.Ct. 1388 (2011)).

That calls for dismissal

of the Petition, and this Court so orders.

Finally, the

previously scheduled February 1 status hearing is no longer
necessary, and it is cancelled.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

January 31, 2013

4