author: ROBERT L. CARTER, District Judge.

text:
    OSTANO COMMERZANSTALT and Dr. Herbert Jovy, Plaintiffs, v. TELEWIDE SYSTEMS, INC. and Bernard L. Schubert, Defendants.
    No. 82 Civ. 4721 (RLC).
    United States District Court, S.D. New York.
    April 8, 1985.

      Walter, Conston & Schurtman, P.C., New York City, for plaintiffs; William M. Barron, Nicholas P. Giuliano, New York City, of counsel.
    Hall, Dickler, Lawler, Kent & Howley, New York City, for defendants.
   OPINION

ROBERT L. CARTER, District Judge.

I

Plaintiff Ostano Commerzanstalt (“Ostano”) is a Liechtenstein company with its principal place of business in Switzerland. Plaintiff Dr. Herbert Jovy is a citizen and resident of West Germany and pursuant to a power of attorney from Ostano has acted on the latter’s behalf and on behalf of its affiliate Technische Systeme Consult Gmbh. & Co. Communication International KG (“TSC”) in this lawsuit. Ostano is owned by Jovy’s wife and TSC is owned by Jovy's wife and son, Hanns-Arndt Jovy. Until 1983 TSC’s general manager was a Dr. Heinrich Tichawsky, but that position is now filled by young Jovy.

Defendant Telewide Systems, Inc. (“Telewide”) is a Delaware corporation with its principal place of business in New York City at 118 East 65th Street. Defendant Bernard L. Schubert, a citizen of New York and resident of New York City, is the president and sole shareholder of Telewide.

Plaintiffs instituted this action alleging that Telewide is guilty of breach of contract and breach of warranty as licensor of twenty-six feature films in the geographical area comprising the two Germanies, Austria, Switzerland, Holland, Luxembourg, Belgium and France (“the territory”) granting the licensee exclusive rights to rent, sell, distribute or otherwise exploit these films. Plaintiffs allege that the term of the license agreement is twelve years beginning May 13, 1980, and that Ostano stands in the shoes of the original licensee, Video Communications Inc. (“VCI”), as assignee.

Plaintiffs allege that Schubert is guilty of fraud and fraudulent misrepresentation. They seek both compensatory and punitive damages. Plaintiffs also allege that since the defense was frivolous and fraudulent evidence was introduced at trial, plaintiffs are entitled to an award of attorney’s fees to be assessed against defendants and their counsel.

There is remarkably little real dispute among the parties concerning the basic facts in this controversy. Defendants admit to some representations which were known to be false when made. Schubert’s testimony at trial has been marked by inconsistencies between what he said on the witness stand, in earlier deposition testimony, and in letters and telexes written or issued when the events at issue unfolded. Nonetheless, the area of factual dispute is quite narrow.

The case was tried to the court April 16-23,1984. The testimony adduced at the trial established the following facts: Jovy was in the United States early on in 1980, and was told by a business associate in Houston that VCI had a great many television films. Jovy was interested in selling, leasing and distributing TV films in the territory. Jovy flew to Tulsa and had several conversations with VCI’s president Bill Blair about securing the right to distribute, sell, rent, etc. various films in the territory.

In the previous year Blair had had discussions with Schubert about VCI becoming an exclusive licensee for the sale and distribution of various Telewide films. Nothing had come of these discussions. When Blair met Jovy he had in his possession a list of Telewide films he had received from Schubert in connection with these earlier conversations, and he showed this listing to Jovy. Jovy had Tichawsky, a film expert, go over the list, and Tichawsky selected twenty-six films that he felt would do well in the territory.

Blair advised Schubert of his discussions with Jovy, and Blair and Schubert thereafter entered into a licensing agreement dated May 13, 1980. Pursuant to thié agreement VCI was given “exclusive rights to distribute, rent, exhibit, exploit, transmit, release, sublease or otherwise market [twenty-six motion pictures listed for twelve years beginning May 15, 1980, and ending May 31, 1992 in the territory] by means of aural and visual television.” The licensee was obligated to pay $442,000, or $17,000 per title, 10% ($44,200) of which was to be paid immediately with the balance ($397,800) to be paid on receipt of laboratory letters addressed to laboratories, persons or firms in which any of “the pre-print materials or elements of the pictures are located.” These letters were notice of VCI’s right to order 16 mm. prints, video tapes and disks. The agreement certified that Telewide “has the right without any limitation or restriction whatsoever to grant [VCI] the exclusive license to lease” the twenty-six motion pictures and “the full right, powers, and authority to enter into and perform this agreement.” Plaintiffs’ Ex. 1A.

The titles of the twenty-six films were listed in a Schedule A attached to the agreement. They were: Betrayed Woman, Big Tip-Off, Blue Gardenia, Cash On Delivery, Devil’s Harbor, Fighter,' Gilded Cage, Girl Of The Night, Trapped, Last Rebel, Las Vegas Story, Lucky To Be A Woman, Main Street To Broadway, Marry Me Again, Mourning Becomes Electra, Night Freight, Port Of Hell, Port Of New York, San Francisco Story, Shanghai Gesture, Sun Sets At Dawn, Sword Of Venus, Toughest Man Alive, Treasure Of Ruby Hill, Women in Paradise and Impulse.

About a week after the agreement between Telewide and VCI was concluded, on or about May 20, 1980, Ostano and VCI entered into an agreement for VCI to license these twenty-six films to Ostano at $27,000 per negative for each film. Jovy, before entering the agreement with Blair, discussed the status of the copyrights to the films, who possessed negatives and Ostano’s right of access. Blair assured him that the films’ copyrights were held by Telewide and that Jovy could secure prints from negatives on receipt from VCI of appropriate letters of access.

In September, 1980, Jovy again asked Blair about the copyright status of the twenty-six films he was interested in since he had heard rumors that some of the films had no copyright protection. (Pl.Ex. 4). Blair advised Jovy by telex on September 3, 1980, that he had a call into Telewide about this and that he had “paid for exclusive and will demand same.” (Pl.Ex. 5). On September 5, 1980, after being given Schubert’s assurances on the matter or at the least implying to Jovy that he had received Schubert’s assurances, Blair telexed Jovy that “none of the films are in [the] public domain. All are protected by copyright.” (Pl.Ex. 6).

Blair and Jovy renegotiated the May 20, 1980 agreement, replacing it with a contract dated November 26, 1980. Ostano licensed its rights in West Germany under that agreement to TSC. Ostano or TSC made payments to VCI by March 19, 1981, totalling $512,021.75, and as of March 10, 1981, VCI had paid Telewide some $422,-000.

Between roughly mid-1980 and the beginning of 1981, Jovy and Tichawsky had three meetings with representatives of Springer Publications, a large European publisher which was in the process of purchasing a television channel. They discussed the possibility of Springer leasing from TSC some of the films that TSC held, including the twenty-six involved in this litigation. Films are leased in Germany, as I understand it, for television distribution at a fixed price of 126,000 Deutschmarks (“DM”) per film. Discussions embraced twelve of the twenty-six films involved in the agreement with VCI. Prices in excess of DM 126,000 were discussed for three of these films. Nothing came of the discussions. Jovy testified that Springer learned that an Italian interest claimed possession of the copyright to Lucky To Be A Woman, which was one of the key films of interest to Springer. Jovy traced Springer’s failure to come to agreement with TSC to his learning that TSC did not hold the copyright to Lucky To Be A Woman.

The critical issue that probably generated the start of the trek to the courthouse was Jovy’s concerns about copyright protection for the films covered by the agreement and the failure of VCI to clear that matter up. Jovy sought assurances that VCI possessed copyright protection for Lucky To Be A Woman, Trapped, Shanghai Gesture, Girl Of The Night, Last Rebel, and Mourning Becomes Electra. On June 17,1981, Eugene Dennison, VCI’s attorney, wrote to Schubert asking “[p]ursuant to our discussions this date [for] immediate clearance on rights to ‘Girl Of The Night’, ‘Shanghai Gesture’, ‘Lucky to be a Woman’, ‘Sword of Venus’, ‘Woman [sic] in Paradise’, ‘Last Rebel’ [and] ‘Mourning Becomes Electra’ ”. (Pl.Ex. 35). On June 24, 1981, Schubert wrote Dennison that Lucky To Be A Woman was the only title of those listed in the latter’s June 17, 1981 letter that “we believe to be in dispute. We had substituted Trapped for it several months ago____” He added that prints had been ordered for the balance of the titles and were expected shortly. (Pl.Ex. 41).

On July 10, 1981, Dennison asked Schubert for access letters for the Last Rebel, Shanghai Gesture, Women In Paradise, Girl Of The Night and Sword Of Venus and substitutes for Blue Gardenia and Lucky To Be A Woman. (Pl.Ex. 42). On July 13, 1981, Schubert wrote Dennison in response to the latter’s advice that third parties were claiming rights to Shanghai Gesture and Girl Of The Night, that he was investigating their status (Pl.Ex. 44), and offered to substitute Pancho Villa Returns, Caltiki The Immortal Monster and Amorous Mr. Prawn for Blue Gardenia and Lucky To Be A Woman (Pl.Ex. 43). Plaintiffs refused this offer.

On September 19, 1981, plaintiff instituted suit against VCI in the Northern District of Oklahoma. On November 9, 1981, the Oklahoma' litigation was settled. As part of the settlement Ostano was assigned all of VCI’s rights under the May 13, 1980 license agreement between Telewide and VCI. The next day, November 10, 1981, Jovy flew to New York and met with Schubert personally. During this meeting Jovy requested laboratory access letters for the films and stressed his need for documentation as to copyright protection for the films. Schubert was cooperative. He indicated that there might be some problem concerning Lucky To Be A Woman and possibly Mourning Becomes Electra but assured Jovy that substitutions would be supplied.

From December 2, 1981, onward, however, Schubert manifested a changed attitude. In a December 2,1981 letter to Jovy, he wrote advising of receipt of notice from VCI assigning its contract directly to “your organization.” He told Jovy that he had consulted his attorneys and as soon as he heard from them, he would be in touch. (Pl.Ex. 13). Subsequently in a December 28, 1981 letter to Jovy, Schubert wrote “[y]ou were advised when you met with me, that our agreement with V.C.I. did not permit an assignment of the license agreement without our approval.” (Pl.Ex. 15). On February 28, 1982, Schubert wrote to Jovy denying the existence of any license agreement between him and TSC and asserting that the license agreement did not give VCI “the right to assign their contract.” Schubert added, “[S]ince there appear to be many disputes, we will not agree to the assignment of the contract dated May 13, 1980. I should also caution T.S.C. that we are the owners to [sic] the copyrights on the various films licensed to V.C.I. Any unauthorized use of this material will result in a violation of international copyrights law, and the offender will be held strictly accountable.” (Pl.Ex. 16).

In response to a June 23, 1982 letter from plaintiffs’ New York counsel, Schubert wrote “[w]e are prepared to deliver access letters on all of the titles we have available under the V.C.I. contract,” with the exception of Shanghai Gesture, Lucky To Be A Woman and Girl Of The Night, and “to make an adjustment on the V.C.I. contract.” (Pl.Ex. 64). In a letter of the same date defendants’ counsel advised plaintiffs’ New York counsel that “Telewide does not take the position that it will not recognize your client as assignee entitled to the rights granted to VCI under the contract between Telewide and VCI.” (Pl.Ex. 29).

Plaintiffs seek $5,518,038.24 in damages against Telewide and Schubert jointly and severally for fraud and fraudulent breach of warranty. In the alternative, plaintiffs seek $5,518,038.24 in damages against Telewide for breach of warranty and breach of contract. In addition plaintiffs, on the grounds that the affirmative defenses asserted in the action and maintained throughout several days of trial were frivolous and without merit and known by counsel to be so before suit commenced, seek $1,000,000 in punitive damages against Telewide and Schubert, plus an award of attorney’s fees against defendants and their counsel, Hall, Dickler, Lawler, Kent & Howley, the amount of the award to be subsequently determined by the court. Moreover, plaintiffs contend defendants and their counsel produced concocted evidence and fraudulent documents in an attempt to support a claim of full disclosure to VCI. Plaintiffs charge defendants and their counsel with participating in the attempted perpetration of this fraud.

Defendants deny the fraud charge and contend that plaintiffs incurred no damages because of their acts. They also deny plaintiffs’ claim that Schubert introduced fabricated and fraudulent evidence at the trial. In the pretrial order defendants concede that Telewide had no distribution rights in the territory for Lucky To Be A Woman, Shanghai Gesture, Girl Of The Night, Impulse, Gilded Cage, and Las Vegas Story and no copyright registration for Lucky To Be A Woman, Women In Paradise, The Fighter, Port Of New York, Sun Sets At Dawn, Sword of Venus and Trapped. The evidence at trial showed that Telewide had no distribution rights in the territory to five additional films: Blue Gardenia, Devil’s Harbor, Last Rebel, San Francisco Story and Women In Paradise.

II

The evidence is uncontroverted that Schubert knew when he signed the May 13, 1980 license agreement that he had no authority to license the twenty-six films in question for distribution in the territory. While defendants contend that the May 13, 1980 agreement made no representation as to copyright, the agreement does purport to grant the “exclusive right to distribute, sell, exhibit etc.” Schubert testified at trial that having the copyright was not important. What was critical was possession of the negative. In the context of this case, that contention is irrelevant. An exclusive license “is the permission to do a thing, and a contract not to give leave to any one else to do the same thing.” Overman Cushion Tire Co. v. Goodyear Tire and Rubber Co., 59 F.2d 998, 999 (2d Cir.), cert. denied sub. nom. Kelly-Springfield Tire Co. v. Overman Cushion Tire Co., 287 U.S. 651, 53 S.Ct. 97, 77 L.Ed. 562 (1932). As to the twenty-six titles involved, defendants had no authority or power to grant an exclusive license in the territory to anyone. Schubert knew when he signed the agreement that he and Telewide lacked the authority to grant to VCI what the license agreement purports to authorize. Jovy and Tichawsky testified that for their purposes Lucky To Be A Woman, Blue Gardenia, Trapped, Girl Of The Night, Port Of New York, Shanghai Gesture, Fighter and San Francisco Story were the critical films. The value of the license to Ostano and TSC was dependent upon their ability to market the above eight films. Jovy testified that in Germany TV stations will buy blocks of films if various critical films are in the package.

Defendants contend that Jovy and Ostano knew that Telewide did not hold rights to many of these films and that, therefore, there can be no actionable claim for fraud or fraudulent representation, citing 200 East End Avenue Corp. v. General Electric Co., 5 A.D.2d 415, 172 N.Y.S.2d 409 (1st Dep’t.1958), aff'd, 6 N.Y.2d 731, 185 N.Y.S.2d 816, 158 N.E.2d 508 (1959); Rosenbloom v. Adams, Scott & Conway, Inc., 521 F.Supp. 372 (S.D.N.Y.1981) (Cooper, J.), aff'd mem., 688 F.2d 816 (2d Cir.1982). These cases, one on the basis of New York law, the other on the basis of California law, hold that one with actual knowledge of the facts cannot use those facts as the basis for a fraud claim. To bring plaintiffs within the ambit of that proposition, it would have to be established that they knew prior to entering the May 20, 1980 agreement with VCI that Telewide and Schubert had no authority in re the twenty-six films in question to grant or transfer any licensing or distribution rights to Ostano or TSC.

At best the record supports knowledge on plaintiffs’ part only after assignment of VCI’s rights in the May 13, 1980 licensing agreement to Ostano in November, 1981. The record shows that in the spring of 1980, Jovy, while in Houston, heard about VCI’s possession of a large number of films. He went to Tulsa in an attempt to acquire the right to exploit various suitable films he and Tichawsky selected for TV sale and distribution in the territory. Jovy was concerned about copyright to these films and sent his son to Washington, D.C. in May, 1981, to check on that. The son was unable to make any conclusive determination one way or the other. Subsequent to his Washington visit the son spoke by telephone to Schubert about a third party claim to the German track to Lucky To Be A Woman, but Schubert assured him that he held the rights to that film from a bankrupt Italian company. That satisfied young Jovy. While plaintiffs were VCI sublicensees, they were not able to deal directly with Schubert. Indeed, the Oklahoma litigation makes clear that plaintiffs attributed their problems and frustrations to VCI. When plaintiffs agreed to settle the Oklahoma litigation in exchange for VCI’s assigning to them all their rights to the May 13, 1980 license agreement with Telewide, plaintiffs did so in the belief and expectation that they had gained something of value. Since they now could deal with Schubert directly, plaintiffs felt confident that the problems that heretofore had plagued them in their dealings with VCI would be resolved.

An exclusive license is enforceable under traditional contract analysis. See, e.g., Rohauer v. Killiam, 37 A.D.2d 547, 322 N.Y.S.2d 589 (1st Dep’t.1971). Telewide clearly breached the agreement. Telewide could not and did not provide the exclusivity the agreement called for. Telewide failed to provide the laboratory access letters as required by the agreement. These letters were needed for Ostano to secure prints and preprint material to market the films. Moreover, Schubert wrongfully repudiated Telewide’s contractual obligations to Ostano on learning that the VCI rights in the May 13, 1980 agreement had been assigned to Ostano. The statement to Jovy that VCI had no authority to assign its rights to Ostano was without foundation. The May 13, 1980 agreement had no such restriction. His threats to move against Ostano and Jovy for copyright infringement were fraudulent as well, since neither he nor Telewide had standing to bring such an action.

Telewide expressly warranted that it held exclusive rights to the twenty-six films and that it had the right to grant an exclusive license to a third party to distribute the films in the territory. As we have seen, Telewide had no authority to grant distribution rights in the territory to eleven of the twenty-six films, and Schubert knew this when he signed the agreement. Accordingly, Telewide was guilty of breach of warranty from the very inception of the agreement. Ainger v. Michigan General Corp., 476 F.Supp. 1209 (S.D.N.Y.1979) (Cannella, J.), aff'd, 632 F.2d 1025 (2d Cir.1980). While there is some confusion as to whether under New York law a showing of reliance is necessary for recovery of a breach of warranty, id., the record is clear that Jovy paid a half million dollars to VCI in reliance on Telewide’s having valid and exclusive ownership to the rights to twenty-six films he wanted to distribute and the authority to license, distribute and exploit those films in the territory.

Schubert was guilty of fraud and fraudulent representation. The 1979 Blair-Schubert negotiations concerning VCI’s buying a Telewide film library came to nothing until Jovy met with Blair in 1980. Blair advised Schubert of Jovy's interest in being licensed to distribute twenty-six Telewide films in the territory, and asked Schubert if he was willing to make a deal. Schubert agreed, and the May 13, 1980 agreement was signed. The license to VCI was clearly in contemplation of VCI sublicensing the rights it secured to Jovy. Schubert denies that he knew anything about Blair’s dealings with Jovy, but his statements, like most of his testimony, cannot be credited. Schubert represented in the May 13, 1980 agreement exclusive ownership to twenty-six films and the right to grant VCI an exclusive license to distribute those films in the territory. He knew as to eleven of those films that this representation was false. Ostano, as VCI’s assignee under the May 13, 1980 agreement, acquired VCI’s claims for fraud and fraudulent representations in that agreement. American Hemisphere Marine Agencies, Inc. v. Kreis, 40 Misc.2d 1090, 244 N.Y.S.2d 602 (S.Ct.N.Y.Co.1963); Viacom International, Inc. v. Tandem Productions, Inc., 368 F.Supp. 1264, 1274 (S.D.N.Y.1974) (Gurfein, J.), aff'd, 526 F.2d 593 (2d Cir.1975).

Under New York law a prima facie case of false representation is made on a showing of a representation as to a material fact, that the representation was false and was made knowing that it was false, and that the party claiming to be victimized relied on the representation to his detriment. Mallis v. Bankers Trust Co., 615 F.2d 68, 80 (2d Cir.1980), cert. denied, 449 U.S. 1123, 101 S.Ct. 938, 67 L.Ed.2d 109 (1981). The record is clear that all of these elements are present in this case. The representations as to exclusive ownership of the films and power to license them for distribution in the territory were material; these representations were false and known by Schubert to be false at the time he made them, and Jovy and Ostano relied on them to their detriment.

Defendants argue that plaintiffs suffered no damages but that argument is without merit. Ostano paid $512,071.75 for a worthless license. Ostano contends that it lost a lucrative contract with Springer because of the cloud on its right to distribute some of the films in question. While damages need not be proved with precision as long as there is a reasonable basis in the record supporting the damages alleged, Lexington Products, Ltd. v. B.D. Communications, 677 F.2d 251 (2d Cir.1982), evidence concerning a putative agreement with Springer was not sufficient to show that a contract would have been signed but for the problem of Telewide’s rights to the film. It is true that there was testimony of three meetings between TSC and Springer representatives. It is also true that an apparent accord was reached as to prices for some films. However, a great many films were discussed not only the twenty-six Telewide films, but also many others. Nothing came of these discussions. From the meager evidence in the record, I am not satisfied that but for Springer’s hearing that Lucky To Be A Woman belonged to someone else, he would have signed an agreement with TSC.

While the Springer discussions cannot be the basis for an award of compensatory damages, what plaintiffs paid for had value. Defendants as part of their affirmative defenses have placed a value of $750,-000 on an exclusive license, such as plaintiffs thought they had in the territory, in Zaire and Morocco. Plaintiffs have shown that there are 761,000 TV sets in those two countries. (See Ex. 57, the World Almanac). In the territory the number of TV sets is 51,705,000. Id. Taking defendants’ figures for Morocco and Zaire there seems to be almost a one to one relationship between the value of an exclusive license and the number of TV sets. Thus, the value of an exclusive license in the territory would approximate $50,000,000. Thus, placing a value of an exclusive license in the territory at five times greater than a license for Morocco and Zaire would not appear to be unreasonable. On the basis of that approach, the value of the license in the territory approximates $3,750,000. Therefore, plaintiffs’ compensatory damages should be $3,750,000 plus $512,021.75 they paid for the worthless and fraudulent license, or $4,262,021.75.

Accordingly, for breach of contract and breach of warranty, plaintiffs are entitled to recover $4,262,021.75 against Telewide in compensatory damages. For false representation, fraud, and breach of warranty, plaintiffs are entitled to recover against Telewide and Schubert jointly and severally $4,262,021.75.

The fraud here was so blatant and egregious that punitive damages are virtually mandated. Moreover, the defendants and their counsel misused the court process by pressing a defense known to have no merit. They contended until well into the trial that Jovy’s rights were flawed since VCI had no right of assignment. Finally that claim was abandoned, but counsel knew it had no merit at the outset. In addition, the evidence is persuasive and convincing that Schubert fabricated evidence and introduced this false evidence at trial as genuine, and that counsel knew, or at least had reason to suspect, that the evidence was not genuine but sought to help his client mislead the court.

During Schubert’s testimony Defendants’ Ex. U was introduced purporting to establish that Schubert had disclosed to VCI everything concerning Telewide’s rights to the twenty-six films. Ex. U is a fake. All Telewide letterhead stationery introduced in this case from September, 1979, to July 8, 1981, has a telex number. All Telewide letterhead stationery subsequent to July 8, 1981 has no telex number. Ex. U, purportedly written in April, 1980, is on Telewide stationery without the telex number. Moreover, Ex. U shows a variety of typographical errors indicating amateur typing. Examples: The n in Eugene (Dennison), Esq. is typed over, there is no space between the comma and Esquire. There is a percentage sign before Video Communications, Inc. for % to indicate in care of; there is no space between the comma after Communications and Inc. In the first line of the message the tr in contracts is typed over. There is no apostrophe in Devil’s Harbor. The r in Port Of Hell is typed over. Sets in Sun Sets At Dawn is in lower case. There are other errors of this type but these examples are sufficient to show the uniqueness of this document. All other Telewide letters have the professional touch.

Moreover, purportedly enclosed in the letter (Ex. U) are copies of contracts for listed films, one of which is Port Of Hell. In a letter to Dennison dated July 16, 1980, (Ex. V), Schubert sent copies of contracts for listed films, one of which is Port Of Hell. Also in both the April 17, 1980 letter (Ex. U) and the July, 1980 letter (Ex. V) is the same message. The April 17 letter states, “Please remember, American Leisure was the successor to Lin Medallion, the successor to Medallion Films.” The letter dated July 16, 1980, states “For the record, American Leisure was the successor to Lin Medallion, the successor to Medallion Films”. Ex. U was never produced for plaintiffs counsel before trial although his discovery requests required its production. Indeed, defendants’ counsel had never seen the letter until Schubert showed it to him the night before it was introduced.

The many simple errors and lack of a teletype number present on all Telewide letterhead stationery during the time the letter was purportedly typed, the fact that it had not been produced for plaintiffs’ counsel and that defendants’ counsel had never seen it give credence to plaintiffs’ contention of recent fabrication.

Counsel for defendants told the court when the letter was first introduced that it had been seen by plaintiffs’ counsel. Defendants’ counsel said “it is my recollection that it was available for document discovery. But since I am not positive, I will not quarrel with Mr. Barron’s statement” (Tr. 624). Later defendants’ counsel said in response to the court’s statement that Mr. Barron’s complaint was that he never had seen Ex. U, “I can’t say that he did or did not. These documents were made available for inspection. I honestly cannot tell you whether specifically that document was there or not at the time”. (Tr. 692). He further embellished that remark by adding, “All I am saying is that to my best recollection those documents were made available during pretrial document production.” (Tr. 693).

However, at a hearing on May 24, 1984, on defendants’ motion to reopen the trial, when pressed by the court, defendants’ counsel admitted that he had never seen the document until it was presented to him the night before it was produced in court. If plaintiffs’ counsel’s diligence had not caught all the gross errors in Ex. U and the discrepancy as to the teletype number as well as the enclosure of a copy of the contract for the same films in the suspect letter dated April 17, 1980, and a later letter dated July 16, 1980, it is clear that defendants’ counsel would have continued to tell the court that this recently produced letter had been seen by Mr. Barron. He knew when he first told the court that the letter had been available during document production that he had not seen it himself at that time.

The record suffices to show counsel, at a minimum, cooperated with his clients’ effort to corrupt the court record with a fraudulent piece of evidence. It was counsel’s responsibility to have disclosed to the court when the issue arose that he, like Mr. Barron, had never before seen Exh. U. Instead, he sought to give the impression that the document had been available to Barron and by implication that he, counsel for defendants, had seen the document during the time of document production as well.

Plaintiffs are clearly entitled to an award of punitive damages for defendants’ egregious conduct. While the purpose of punitive damages is to punish and deter bad conduct and evidence of a party’s wealth is material in determining what amount of punitive damages is appropriate, Varriale v. Saratoga Harness Racing, Inc., 76 A.D.2d 991, 429 N.Y.S.2d 302 (3d Dept.1980); Rupert v. Sellers, 48 A.D.2d 265, 368 N.Y.S.2d 904 (4th Dep’t.1975), no evidence concerning defendants’ financial resources were put in the record. However, defendants were on notice from the initiation of this litigation that plaintiffs were seeking punitive damages. It was defendants’ burden to show their net worth, if they desired that to be a consideration in mitigation of damages. Zarcone v. Perry, 572 F.2d 52 (2d Cir.1978). See also Micari v. Mann, 26 Misc.2d 422, 481 N.Y.S.2d 967 (Sup.Ct.N.Y.Co.1984). But cf. Chilvers v. New York Magazine, 114 Misc.2d 996, 453 N.Y.S.2d 153 (Sup.Ct.N.Y.Co.1982). Taking into account the deliberate and willful nature of defendants’ fraud and misrepresentation, Schubert’s persistence in his misrepresentations on the witness stand and the introduction of fabricated testimony, punitive damages of $500,000 are awarded against Schubert and Telewide jointly and severally.

Plaintiffs are also entitled to an award of attorney’s fees in this case. The affirmative defense asserted that VCI had no authority to assign the license to plaintiffs was clearly without merit and known to be without merit from the outset. A year before this case was tried, plaintiffs moved for partial summary judgment striking the affirmative defense. Defendants opposed the motion alleging that additional discovery was needed to determine the validity of the assignment. The motion was denied. However, defendants knew then that there was nothing they were likely to uncover in plaintiffs’ records on that question. This conduct might be overlooked, but when it is coupled with Ex. U and counsel’s cooperation with Schubert in attempting to mislead the court, sanctions become warranted.

The court will award attorney’s fees to plaintiffs to be assessed against both defendants and their counsel, Hall, Dickler, Lawler, Kent & Howley, jointly and severally. Plaintiffs are to submit proof of attorney’s fees expended in this litigation, supported by counsel’s affidavit and a memorandum of law. Defendants may file opposing affidavits and a memorandum of law. The matter will be determined on those submissions unless something additional is required. Plaintiffs’ submission should be filed within three weeks from the date of the order to be entered herein. Defendants’ opposition papers should be filed one week later.

In sum plaintiffs are granted judgment against Telewide for breach of contract and breach of warranty in the sum of $4,262,-021.75. Plaintiffs are granted judgment jointly and severally against Telewide and Schubert for fraud and fraudulent representation and fraudulent breach of warranty in the sum of $4,262,021.75. On each of these judgments plaintiffs are entitled to recover prejudgment interest from May 20, 1980. Plaintiffs are granted punitive damages assessed jointly and severally against Schubert and Telewide in the sum of $500,-000. Finally, plaintiffs are entitled to an award of attorney’s fees to be assessed against defendants and their counsel. Plaintiffs are to recover their costs.

Plaintiffs should submit an order and judgment for the court’s signature on notice to defendants, and defendants may submit a counter order.

IT IS SO ORDERED.


source: Caselaw Access Project

author: GETZENDANNER, District Judge:

license: Public Domain

text:
    UNITED STATES of America ex rel. Warren Lee HARRIS, Petitioner, v. Marvin REED, Respondent.
    No. 80 C 513.
    United States District Court, N.D. Illinois, E.D.
    April 8, 1985.

      Warren Lee Harris, pro se.
    Jack Donatelli, Asst. Atty. Gen., Chicago, Ill., for respondent.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This action is before the court on the petition for a writ of habeas corpus, 28 U.S.C. § 2254, of Warren Lee Harris. The parties have briefed respondent’s motion for summary judgment. Moreover, the parties have provided the court with additional materials from the state court record. For the reasons stated below, respondent’s motion for summary judgment is granted in part and denied in part. An evidentiary hearing is required to determine the merits of the one outstanding claim. The court therefore will appoint an attorney to aid Harris in this evidentiary hearing.

Factual Discussion

On December 21, 1977, after a three-day jury trial, Harris was found guilty of murder on the testimony of the state’s one occurrence witness, Antonio Slater. According to Slater, Harris shot and killed one Earnest Howard on the night of July 9, 1977, near the area of 16th and Christiana streets in Chicago, Illinois. On February 2, 1978, Harris was sentenced to serve 50 to 100 years in the state penitentiary.

At trial, Public Defenders Todd Musberger and Kathy Kuhlen represented Harris. In her opening statement on December 19, 1977, Kuhlen made the following remarks:

At this time, I would like to mention one of the names that Mr. Fuenty [prosecutor] brought up and also another name that he didn’t mention that I think will figure quite prominently in this trial, that other name is Melvin McWhorter, also known as Buster on the street.
To understand the importance of Mr. McWhorter and of Antonio Slater, it is necessary to give you a brief review of the police investigation in this case. During the days immediately following the shooting of Earnest Howard the police talked to a number of people who were present in the area of 16th and Christiana, people who lived there and also to relatives of Earnest Howard. They learned that Earnest Howard was a narcotics dealer who sold in that neighborhood at 16th and Christiana.
* >1< Sit S|C %
We believe the evidence will also show that the police learned that two persons immediately after the shooting were seen running away from the scene of the shooting in a northeast direction through a lot on the north side of Christiana. Through further investigation, the police learned that one of those individuals was Melvin McWhorter. They had Melvin McWhorter come to Area Four Police Headquarters, advised him of his rights and interrogated him.
At that time he denied knowing anything about the shooting. They then placed Mr. McWhorter in a lineup and two persons positively identified him as one of the individuals they had seen running away from the scene immediately after the shooting.
The police then confronted Mr. McWhorter again and Mr. McWhorter changes his story and says what he said before was a lie, and then tells the police that ... he was across the street at the time of the shooting but that he didn’t see the shooting itself.

(Trial Transcript 31-33.) Kuhlen continued, discussing how Slater’s statement to the police switched the focus of suspicion to Harris from McWhorter, and asking the jury to examine carefully Slater’s credibility-

The state first called Howard’s father to testify that he identified his son’s body at the morgue. This was not objected to, although the identity of the victim was not in dispute. Harris does not claim error from this failure.

The state next called Maurice Williams, who knew the victim as “Pete.” Williams came to Pete’s aid soon after the shooting by calling the police. Williams testified that he noticed McWhorter (Buster) among the crowd of persons that had gathered around the scene of the shooting. (Tr. 46, 51.)

On December 20, 1977, the state examined Officer Joseph Michello, one of the police officers that appeared on the scene after the shooting. Musberger’s cross-examination centered on the location of Howard’s body upon his arrival on the scene.

The state next called Antonio Slater, who explained on direct examination that he arrived at the scene of the shooting while driving south on Christiana (a one-way southbound street) at about 20 m.p.h. Slater testified that he crossed the intersection of 15th and Christiana and when he was about 12 feet behind a parked vehicle that was blocking his way, he heard a shot and noticed two men standing near each other. He witnessed the man with his back to Slater push the other man, who fell. This occurred about 12 feet in front, or south, of the car that was parked in front of Slater’s. The man who had pushed the other man down, turned and ran to the parked car, turned and faced Slater, pulled up a pistol at Slater, and jumped into the passenger section of the car. (R. 71-76.) When the pistol was pointed at him, Slater crouched. (R. 79.) The car pulled away. (R. 76.)

When asked to identify the man who apparently shot Howard, Slater responded, “Wayne” and in court identified Harris as Wayne. (R. 77-78.) Slater testified that he knew Wayne from a poolroom at 13th and Kedzie. He testified:

I don’t actually know [Harris], I know him by people speaking to him, you know, but about two years I have seen him up there____ about once or twice a month.

(R. 78.) Slater was able to see Wayne because gold street lights along Christiana were lit and because his headlights were shining on Wayne’s waist. (R. 81.)

Slater was next asked about going to the police station. He testified that he went there in August 1977 with his uncle and talked to Investigator Tom Shine. Slater testified that he had not been contacted before he went to the station. (R. 84.)

Musberger then cross-examined Slater. He first pointed out that it took Slater six weeks to go to the police with his story. (R. 89.) He highlighted that Slater had changed his reason for having been in the area of 15th and Christiana on that night. Musberger also highlighted inconsistencies between Slater’s pretrial statements and his trial testimony. Musberger also impeached Slater’s story that he had seen Wayne several times over the previous two years. (R. 109-110.)

After Slater, two other witnesses were called by the prosecution on the issue of the cause of death. On December 21, 1977, the defense rested without putting on any evidence. (R. 130.) The portions of the opening argument suggesting that McWhorter or others might have been responsible for the shooting were ignored completely. Later that afternoon, the jury returned a verdict that Harris was guilty of murder.

After sentencing, Harris was represented by an Assistant Appellate Defender, Nancy Abrahams, on direct appeal. Abrahams presented one argument on appeal, namely, that the evidence was insufficient constitutionally to support a conviction for murder. (Respondent’s Attachment, filed 2/15/85, Brief for Appellant.) On June 4, 1979, the Appellate Court found the evidence constitutionally sufficient and affirmed the conviction. (Id. at Order Disposing of Appeal under Supreme Court Rule 23 [direct appeal]).

On July 17, 1979, Abrahams, as Harris’s stand-by counsel, filed Harris’s pro se petition for post-conviction relief. (Harris’s Motion in Opposition, filed 11/21/83, at 8-9.) In the post-conviction petition, Harris raised two issues: (1) ineffective assistance of trial counsel, and (2) newly discovered evidence. The public defender’s office was granted leave to withdraw, and Attorney Loretta Hall Hardiman assumed prosecution of the petition. She filed an amended post-conviction petition, dropping the newly discovered evidence claim.

The lower post-conviction court held a hearing on March 27,1980. A second hearing on the amended petition occurred on March 19,1981. (The transcript is attached as Exhibit 3 to Harris’s Motion to Reconsider, filed 10/18/82.) The court denied the petition at the close of that hearing, without convening a hearing in which to take testimony. Id. at 27. Assistant Appellate Defender Bruce Mosbacher represented Harris on appeal of this decision. The denial of post-conviction relief was affirmed on February 22, 1983. (Respondent’s Answer and Memorandum, filed 10/21/83, Order Disposing of Appeal Under Supreme Court Rule 23 [post-conviction].)

Claims for Relief

Harris first claims that he was unduly prejudiced by the state court delay in disposing of his post-conviction petition. According to Harris, certain alibi witnesses (the Connor family) moved to Mississippi in late 1979 and Z. Mary Connor died in December 1979. (Original Petition, attachment, at 1-2.) This loss of evidence, caused by the alleged inexplicable delay, is offered as support for the claim that Harris is now in custody in violation of the federal constitution.

Harris’s second claim for relief is based on alleged ineffective assistance of counsel. According to Harris, his trial counsel failed properly to investigate witnesses and to impeach the testimony of Antonio Slater. Harris listed several errors in his amended petition for habeas corpus, all of which were raised in his amended petition for post-conviction relief:

1. Counsel failed to interview or call as witnesses Investigators B. Peek and L. Sykes to impeach Slater. These witnesses would testify that “the victim was shot in the gangway,” although Slater testified the victim was shot on Christiana street. (Amended Petition for Habeas Corpus Item H.)
2. Counsel failed to interview or call as witnesses Alice Riles or Leroy Carter. Both saw two men running from the scene of the shooting at the time of the shooting. Both identified McWhorter as one of the two men. Riles indicated in the police report that she could identify the other man by appearance. Police records contained this information.
3. Counsel failed to investigate or call as a witness George Williams. Williams would testify that he was with McWhorter the night of the shooting, that he knew the victim through a long history of drug dealings, and that Harris was not at the scene of the shooting. Police records contained this information.
4. Counsel failed to call police investigator Shine or any other investigator to impeach Slater’s testimony that he did not hang out in the area of the shooting and that he had never been in that area. Shine also could have impeached Slater’s statement that he came to the police station voluntarily, although Shine’s report indicates an informant provided Slater’s name and the police contacted Slater. Counsel also did not seek the identity of the informant.
5. Counsel failed to offer into evidence the agreed stipulation that “would have perfected the impeachment of the witness Slater [sic] trial testimony that he turned off Christiana from 16th Street and witness [sic] the crime.” (Id. at Item 0.)
6. Counsel failed to call or investigate residents of 13th and Kedzie, who could testify that no pool room existed at that corner, thereby impeaching Slater’s testimony that he knew Harris as Wayne from “seeing him every month at a poolroom on 13th and Kedzie.” (Id. at Item Q.)
7. Counsel failed to interview, investi'gate, or call as witnesses four alibi witnesses: Jewel Connor, Z. Mary Connor, Genise Connor, and Charles Thomas. Harris provided counsel with the names and addresses of the witnesses. These witnesses would have testified that Harris was ill and in bed at the Connor’s home on the night of July 9, 1977 and was later hospitalized on July 13, 1977 for that same illness. (See Affidavits attached to original petition for habeas corpus.)
8. Counsel failed to call any of the doctors who treated Harris at Cook County Hospital to testify and corroborate his alibi witnesses’ story that he was hospitalized on July 13, 1977 with an illness that would indicate he was also ill on July 9, 1977.

All of the names contained in this list of alleged errors, except the names of the alibi witnesses, are contained in the police records and in the state’s list of potential witnesses. (See Harris’s Requested Records and Information, filed 2/25/85 [Answer to Discovery].) According to Harris’s amended post-conviction petition, he did not learn that counsel would present no defense evidence until December 21, 1977, the last day of trial. (Harris’s Motion to Reconsider, filed 10/18/82, Exhibit 1 at p. 3 [Amended Petition for Post-Conviction Relief].)

Harris’s third contention is that his detention is unconstitutional because newly discovered evidence establishes his innocence. This evidence is an affidavit executed by Melvin McWhorter, who would testify that Slater was not present at the scene of the shooting and that he witnessed George Williams shoot the victim. Harris notes that Riles, Carter, and Williams corroborate some of these facts, including that Williams and McWhorter were together that night and that McWhorter was seen leaving the scene of the shooting. (The court notes that, accepting as true Harris’s counsel’s opening statements, this would be McWhorter’s third story. The first was that he knew nothing about the shooting; the second, that he was across the street from the shooting but saw nothing; and the third, that he saw Williams shoot Howard.)

Harris’s final claim is that the evidence was constitutionally insufficient to convict him of murder beyond a reasonable doubt. He claims Slater’s testimony was so inconsistent as to be incredible.

Legal Discussion

I. Post-Conviction Delay

Harris’s first claim for relief stems from alleged prejudicial delay in the disposition of his Illinois petition for post-conviction relief. This claim was raised in Harris’s original habeas corpus petition, which was received by the Clerk of the United States District Court on January 31, 1980 and filed on February 8, 1980. Harris had previously filed, on July 17, 1979, a petition for post-conviction relief. (Stand-by counsel Abrahams’ affidavit evidences that she filed the petition on that date. See Abrahams Aff., attached to original petition for habeas corpus.)

Starting in early 1980, therefore, Harris had proceedings concerning the validity of his conviction pending simultaneously in both federal and state court. While District Judge Joel Flaum considered various issues regarding Harris’s petition (basically mootness and exhaustion), Harris attempted to get his claims resolved in state court as well. The post-conviction petition was denied by the lower state court on March 21, 1981. On October 4, 1982, the federal district court dismissed Harris’s petition for failure to exhaust available state remedies, because Harris at that time had an appeal of the post-conviction decision pending in the Illinois Appellate Court. On April 4, 1983, Judge Flaum granted Harris’s motion to reinstate his action and file an amended petition for habeas corpus, as exhaustion had been accomplished by that date.

Harris complains that his petition for post-conviction relief was “in limbo” for 7V2 months before any action thereon was taken by the Illinois courts. Since one of his four alibi witnesses died in late December 1979 and all had moved to Mississippi by the end of 1979, Harris contends that the delay in processing his post-conviction petition was unconstitutionally prejudicial.

To the extent that Harris’s claim based on post-conviction delay sought relief from the exhaustion requirement in habeas cases, that claim is clearly moot. Inordinate delays in state procedures, such as post-trial motions, appeals, and post-conviction remedies, may excuse exhaustion in circuits where exhaustion is not considered a jurisdictional requirement. See McGee v. Estelle, 722 F.2d 1206, 1209-11 (5th Cir.1984); Baldwin v. Lewis, 442 F.2d 29, 32-33 (7th Cir.1971). The remedy for inordinate delay is normally immediate consideration by the federal court of petitioner’s federal claims, an effective waiver of the exhaustion requirement. See Dixon v. State of Florida, 388 F.2d 424, 426 (5th Cir.1968); Rheuark v. Wade, 540 F.2d 1282, 1283 (5th Cir.1976) (direct appeal); cf. United States ex rel. Smith v. Twomey, 486 F.2d 736, 738-39 (7th Cir.1973), cert. denied, 416 U.S. 994, 94 S.Ct. 2408, 40 L.Ed.2d 773, reh’g denied, 417 U.S. 959, 94 S.Ct. 3089, 41 L.Ed.2d 677 (1974). However, because Harris has exhausted his state appellate and post-conviction remedies, such a claim would now be moot.

Harris may also be arguing that the Illinois delay effectively deprived him of the right to present his constitutional claims in a federal forum, as evidence was lost during the delay. Harris is thus not attacking the adequacy of Illinois post-conviction procedures per se — an attack that would probably not rise to a constitutional violation, see Williams v. State of Missouri, 640 F.2d 140, 143-44 (8th Cir.), cert. denied, 451 U.S. 990, 101 S.Ct. 2328, 68 L.Ed.2d 849 (1981) — but the effect of Illinois post-conviction procedures on the federal right of habeas corpus. At least one court has hinted that an inordinate delay, in that case twelve years, may violate petitioner’s rights, even absent any trial error. Codispoti v. Howard, 589 F.2d 135, 142 (3d Cir.1978).

Assuming that the Illinois delay in disposing of Harris’s post-conviction petition was inordinate and could violate his right to a full and fair consideration of his federal habeas claims in federal court, however, Harris’s claim appears to be without merit. The death of one of four alibi witnesses, Z. Mary Connor, alone is not prejudicial, since her testimony would be cumulative (all were in the same dwelling with Harris on the night of the shooting; three, including the deceased witness, executed affidavits to that fact). Moreover, while the witnesses now live out of state, Harris does not claim that they are inaccessible should their testimony be needed. On the present record, therefore, Harris has suffered no prejudice from the delay.

The court doubts that post-conviction delays, absent a showing of prejudice, alone could justify release of a petitioner for federal habeas corpus relief. Even if such a delay by itself could be reason for release, however, the delay in this case could not have violated Harris’s federal due process rights. This delay appears to have been the result of misplacement of Harris’s post-conviction petition. Moreover, cases examining delays in state procedures involve time periods far in excess of seven months. The month delay in this case is not so egregious that, absent prejudice, it could justify issuance of the writ for violation of Harris’s federal due process rights.

Respondent’s motion for summary judgment is granted as to Harris’s claim of post-conviction delay.

II. Ineffective Assistance of Counsel

A. Waiver

As was discussed above, the one issue presented on direct appeal by Assistant Appellate Defender Nancy Abrahams was the lack of sufficient evidence on which to convict. The court’s own examination of Harris’s and the state’s legal memoranda on direct appeal confirms this fact. Moreover, the Illinois Appellate Court’s opinion on direct appeal addressed only the sufficiency of the evidence, and not the other issues raised by Harris in his petition for federal collateral review.

The original and amended post-conviction petitions raised the issue of ineffective assistance of trial counsel. The court is provided with the transcript of the March 19, 1981 lower court post-conviction hearing. The transcript reveals that Harris’s attorney Hardiman and the state vigorously disputed the merits of the ineffective assistance of counsel claim. (Harris’s Motion to Reconsider, filed 10/18/82, Exhibit 3 at pp. 6-27 [Transcript].) However, the parties also discussed the possibility that Harris waived his right to raise the issue through failure to preserve it on direct appeal. (Id. at 3-4, 7.) Moreover, the hearing court was aware of the waiver issue, as demonstrated by this comment:

My question as a judge in this case is to determine whether or not, as a result of the trial that was had, the defendant had a fair trial, ... and if not, any matters that were improperly handled, those matters should have been raised on the basis of an appeal [sic].
(Id. at 26.) In any case, the hearing court also appeared to reach the merits of the ineffective assistance claim:
On the basis of [the fact that the alibi witnesses were Harris’s friends], I have considered all aspects, I have heard your arguments, I have heard the arguments of the state, and it is the opinion of the court that the defendant had been properly represented, that he had been given proper consideration on his appeal, both by the appellate court and the supreme court, and accordingly, this court is hereby denying your petition, and it is hereby dismissed.

(Id. at 27.)

In affirming the denial of Harris’s post-conviction petition, the Illinois Appellate Court noted that in Illinois, arguments raised in post-conviction proceedings but not preserved on appeal are barred by res judicata if the arguments are based on facts that are of record. See People v. Edmonds, 79 Ill.App.3d 33, 34 Ill.Dec. 555, 398 N.E.2d 230 (1st Dist.1979). The Court then pointed out that all facts, except those relating to the alibi witnesses, were reflected in the trial court record.

After making this point, the Court did not conclude that Harris had waived his ineffective assistance claims in full, but instead went on to consider the merits of those claims. The Court’s manner of addressing the claims indicates that it considered the merits of the ineffective assistance arguments with respect to the alibi witnesses as well as with respect to of-record evidence:

Competency is determined from the totality of counsels’s conduct at trial. [Citation omitted.] In order to establish that he was deprived of his right to the effective assistance of counsel, defendant must demonstrate that his appointed counsel was actually incompetent, as reflected in the performance of his duties as a trial attorney....
Defendant also contends that he was denied the effective assistance of counsel because his trial counsel failed to interview and present alibi witnesses and to present an alibi defense.

(Respondent’s Answer and Memorandum, filed 10/21/83, “Order Disposing of Appeal Under Supreme Court Rule 23”, at 5-6 [post-conviction].) (emphasis added.)

The Court continued to discuss the standards of effective assistance and to evaluate the quality of the assistance provided in Harris’s ease. For example, the Court noted trial counsel’s vigorous cross-examination of Slater, which highlighted certain inconsistencies between his trial testimony and his pre-trial statements. The Court also pointed out that trial counsel has great discretion in determining which, if any, witnesses to call in his or her client’s defense. According to the Court, Harris’s counsel could . reasonably and competently have chosen to rely on cross-examination of state witnesses and the state’s failure to sustain its burden in prosecuting Harris. (Id. at 6.) The Court concluded that “the representation [Harris] received at trial [did not result] in substantial prejudice without which the outcome would probably have been different.” (Id. at 7.)

It is clear that in Illinois, failure to raise on appeal the issue of ineffective assistance of trial counsel results in waiver of that issue for post-conviction review. People v. Edmonds, supra; see cases collected in United States ex rel. Devine v. DeRobertis, 754 F.2d 764, 766 n. 1 (7th Cir.1985). These authorities indicate that an exception to the waiver rule occurs when the basis for the claim is not found in the record.

In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the Supreme Court held that a petitioner could not litigate collaterally in federal court an issue that state procedural law prevented from being presented to the state appellate courts. This ruling was extended by the Seventh Circuit in United States ex rel. Spurlack v. Wolff, 699 F.2d 354, 356 (7th Cir.1983), to a failure to present properly preserved trial objections on appeal.

Under Sykes, such a “waiver” of the right to present an issue to the federal courts on collateral review may be overcome only by a showing of “cause” and resulting “prejudice.” Cause and prejudice are flexible concepts, satisfaction of which changes with the circumstances of a particular petitioner. Clay v. Director, Juvenile Division, Department of Corrections, 749 F.2d 427, 433-34 (7th Cir.1984). Moreover, under circumstances constituting a “miscarriage of justice,” a Sykes waiver, not cured by satisfaction of the cause and prejudice test, may be ignored. Id.

Sometimes a state court will consider the merits of an issue that may not have been properly preserved by timely objection or appeal. Where a state court ignores a procedural default and reviews the substantive merits of what would otherwise be a waived issue, federal courts must review the merits of that issue in a petition for habeas corpus. United States ex rel. Williams v. Franzen, 687 F.2d 944, 951, (7th Cir.1982). However, where a state court has clearly reached both the merits of the waiver question and the substantive merits of the improperly raised issue, the Seventh Circuit has found that absent a showing of cause and prejudice, Sykes bars federal collateral review. Farmer v. Prast, 721 F.2d 602, 605 & n. 5 (7th Cir.1983) ; United States ex rel. Veal v. DeRobertis, 693 F.2d 642, 650 (7th Cir.1982); see Jentges v. Milwaukee County Circuit Court, 733 F.2d 1238, 1243 n. 1 (7th Cir.1984) .

In the present case, the Illinois Appellate Court made clear, and respondent agrees, that the issue of ineffective assistance of counsel was not waived as to facts not in record. According to the Appellate Court, those facts include the affidavits of the four alibi witnesses. This court notes additionally that the record appears to contain no indication (1) that Harris might have been confined to Cook County Hospital shortly after the shooting as a result of a serious illness, (2) that no poolroom existed at 13th and Kedzie, and (3) that McWhorter swore that George Williams committed the shooting. Respondent argues that to the extent that Harris’s ineffective assistance of counsel claim depends on trial counsel’s omissions indicated in the record, the claim was waived.

The court’s review of the trial and appellate opinions on post-conviction review persuades it that the Illinois state courts ignored any waiver by Harris of his right to rely on “record” omissions. The question is whether Harris’s case is more like that presented by Williams or by Farmer. If more like the former case, then federal collateral review is proper with respect to all omissions raised in the amended post-conviction petition also raised in the pending petition for habeas corpus.

In Williams, the Illinois Appellate Court “note[d] at the outset [that] the State is correct in its argument [that] the defense counsel waived [this issue] by failing to object to the trial court’s [ruling].” People v. Ross, 63 Ill.App.3d 884, 20 Ill.Dec. 688, 692, 380 N.E.2d 897, 901 (1st Dist.1978). The Court followed this statement with citations to three Illinois Supreme Court cases supporting the state’s waiver argument. Id. However, the Court never explicitly stated that the issue was waived. The Court then continued to reach the merits of the claim, finding that the improperly raised issue was substantively without merit. According to the Seventh Circuit in Williams, this treatment of what would otherwise be a waived claim allowed federal collateral review of that claim. Williams, 687 F.2d at 951.

In contrast, the Farmer Court, on appeal from denial of a post-conviction petition, explicitly found that the petitioner had waived his claim before examining the issue presented. Farmer, 721 F.2d at 605. Similarly, the Court in Veal distinguished an express ruling on procedural default from a mere discussion thereof for purposes of applying the Sykes bar to collateral review. Veal, 693 F.2d at 650. An express ruling on procedural default, presented as an independent and alternative ground for denying relief, prevents federal collateral review.

The treatment of Harris’s claim is strikingly similar to that involved in Ross. In the February 22, 1983 denial of Harris’s post-conviction appeal, the Court simply noted that waiver appeared to operate, but then continued to treat the merits of the improperly raised issue. Both the Harris and the Ross courts did not appear to make two rulings in the alternative, but rather to note a procedural default and then ignore it, reaching the merits instead. The court is therefore persuaded that Harris’s ineffective assistance of counsel claim may be presented to the federal court with respect to all omissions raised in the amended post-conviction petition.

B. Merits of Ineffective Assistance Claim

The United States Supreme Court has recently issued two opinions concerning the scope of the sixth and fourteenth amendment right to effective assistance of counsel. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); United States v. Cronic, — U.S. -, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). The Court noted the universally accepted principle that the federal constitution guarantees “reasonable effective assistance.” Strickland, 104 S.Ct. at 2062. A convicted defendant, to prevail on an ineffective assistance of counsel claim, must demonstrate that “counsel’s representation fell below an objective standard of reasonableness.” Id. at 2065.

The Strickland Court stressed that “[c]ounsel ... has the duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process,” id., and that “counsel’s function ... is to make the adversarial testing process work in the particular case,” id. at 2066. Reasonable professional judgments must support counsel’s actions. If counsel did not conduct a complete investigation of a particular matter, a reasonable professional basis for not conducting that investigation will defeat an ineffective assistance claim. Id. at 2066.

In addition to demonstrating an unreasonable professional error by counsel, a defendant must also show that the error had an effect on the judgment:

The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

Id. at 2067. The court went on to describe the circumstances under which prejudice is presumed, see id. at 2607; United States v. Cronic, 104 S.Ct. at 2046-2047 & n. 25, and under which prejudice must be affirmatively shown by defendant, Strickland, 104 S.Ct. at 2067-68. Where defendant must demonstrate prejudice, as in this case, the test that must be satisfied is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” When a petitioner challenges his conviction, “the question is whether there is a reasonable probability that, absent the error, the factfinder would have had a reasonable doubt respecting guilt.” Id. at 2069.

Defendants challenging the constitutional sufficiency of their counsel must prove both parts of this test. Thus, the Strickland Court made clear that a finding that one part was not established obviates a decision regarding the other part. Id. A court may also review counsel’s performance by addressing the prejudice component first, or vice versa. Id. When examining counsel’s performance, “ ‘a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance’ that might be considered sound trial strategy.” Rogers v. Israel, 746 F.2d 1288, 1294 (7th Cir.1984) (citing Strickland, 104 S.Ct. at 2065-66). E.g., McKinney v. Israel, 740 F.2d 491, 492 (7th Cir.1984) (court addressed only prejudice element and finding lack thereof, declined to reverse denial of writ); Crisp v. Duckworth, 743 F.2d 580 (7th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1221, 84 L.Ed.2d 361 (1985) (finding of incompetent counsel performance without resultant prejudice; court affirmed denial of writ).

Regarding proper defense counsel preparation, the Seventh Circuit has explained:

It is undisputed that a defense counsel “should make reasonable investigations into all defenses,” United States v. Zylstra, 713 F.2d [1332] at 1338 [(7th Cir.1983)], and that such investigations encompass the interviewing of witnesses. United States v. Decoster, 624 F.2d 196, 209 (D.C.Cir.1976) (en banc) (plurality opinion).

Arrowood v. Clusen, 732 F.2d 1364, 1370 (7th Cir.1984). In Crisp v. Duckworth, the Seventh Circuit examined extensively claims of ineffective assistance of counsel at the investigation and trial preparation stages, the stages implicated in the present petition. In that opinion, the Court stressed again the importance of pretrial investigation to reasonably competent representation:

Effective representation hinges on adequate investigation and pre-trial preparation. See United States ex rel. Spencer v. Warden, Pontiac Correctional Center, 545 F.2d 21, 24-25 (7th Cir.1976) (as corrected) (mere appearance of in-court effectiveness cannot compensate for inadequate pre-trial preparation)____ Investigation may help an attorney develop or even discover a defense, locate witnesses, or unveil impeachment evidence. Though there may be unusual cases when an attorney can make a rational decision that investigation is unnecessary, as a general rule an attorney must investigate a case in order to provide minimally competent professional representation. [Citations omitted.]
* >k sk * * *
We do not agree that police statements can generally serve as an adequate substitute for a personal interview. See United States v. Tucker, 716 F.2d [756] at 583 & n. 17 [(9th Cir.1983)]; United States v. DeCoster, 487 F.2d [1197] at 1204 [ (D.C.Cir.1973) ] (“a defense attorney ... should interview not only his own witnesses but also those that the government intends to call”).

743 F.2d at 583-584. It is true that a defense attorney’s discretion is broad, and that so-called “trial strategy” may excuse omission's that otherwise would appear inexcusable. However, the Seventh Circuit clearly recognized in Crisp that

[t]hough there may be instances when the decision not to contact a potential defense witness is justified, [citation omitted], an attorney who fails even to interview a readily available witness whose noncumulative testimony may potentially aid the defense should not be allowed automatically to defend his omission simply by raising the shield of “trial strategy and tactics,” [citation omitted]; see also Davis v. Alabama, 596 F.2d [1214] at 1217 [ (5th Cir.1979) ] (“An attorney does not provide effective assistance of counsel if he fails to investigate sources of evidence which may be helpful to the defense.”); United States v. DeCoster, 487 F.2d at 1201 (A court should not “second guess strategic and tactical choices made by trial counsel. However, when counsel’s choices are uninformed ... a defendant is denied the effective assistance of counsel.”)

743 F.2d at 584.

In this case, Harris claims that his counsel failed to interview and to call numerous witnesses. Some of the omissions could have led to impeachment, such as Slater’s claim that he voluntarily appeared at the police department, that he did not hang around the crime scene area, and that there was a poolroom on Kedzie and 13th where he frequently saw Harris and knew him as “Wayne.” In a case dependent solely on eye witness identification, where the identification is bolstered by the witness’s prior knowledge of the defendant, this impeachment is important. Counsel’s alleged failure to investigate certain witnesses could also amount to ineffective assistance of counsel. For example, Harris claims that his counsel did not interview Carter and Riles, who were present on the first day of trial. These two witnesses identified two men running from the scene of the crime. One of the men was McWhorter, according to both witnesses, and the other’s identity is unclear. Riles told the police she could identify the other if shown his picture. Perhaps Riles and Carter could have identified Williams as the man running from the scene with McWhorter (Williams claims he was with McWhorter that night). This testimony could have been offered by the defense as an exculpatory version of the shooting. Finally, alibi witnesses, willing and available, were not called and the hospital records allegedly were not checked.

Taking Harris’s allegations as true, his trial counsel’s failure to conduct the above-described investigations would fall below the standard of reasonably competent representation. It is axiomatic that a defense counsel must interview witnesses to the crime and alibi witnesses. Trial counsel should also interview witnesses such as Riles and Carter, who did not witness the shooting but who observed areas near the crime scene at the time of the shooting. Finally, possible suspects, such as Williams, should be interviewed as possibly providing an alternative, exculpatory version of the events. (Such a version was alluded to by Kuhlen in Harris’s opening statement.)

Respondent, the party moving for summary judgment, offers the October 14, 1983 affidavit of Todd Musberger as evidence of Musberger’s competency. Musberger states that, “My best recollection is that Alice Riles and Leroy Carter were among the witnesses that could not be located. All police witnesses were interviewed before the trial and each cross examination was made with the most effective trial strategy in mind.” (Respondent’s Answer and Motion, filed 10/21/83, Musberger Affidavit.) However, the trial record indicates that Riles and Carter were in court on the day trial started, (Tr. 23), at least one because of Musberger’s subpoena. This inconsistency, plus Musberger’s failure to state explicitly whether he interviewed these two witnesses, prevent the court from determining on this motion that Musberger did investigate these witnesses and make an informed judgment regarding use of their testimony at trial.

Regarding the alibi witnesses, Musberger states:

On two occasions that I presently recall, I interviewed Jewel Connor, Mary Con-nor and Genise Connor. I recall interviewing Thomas Charles on one occasion. It was my considered opinion that the jury would not find these people credible. Therefore I decided as a matter of trial strategy not to call any of these people as witnesses at Mr. Harris’s trial.

(Id.) Musberger does not indicate whether he checked the Cook County Hospital records in an attempt to corroborate this story.

In the affidavits of the alibi witnesses, Z. Mary Connor and Genise Connor state that they were available to testify and were not called, but do not mention whether Musberger interviewed them. Jewel Connor’s affidavit indicates that she twice contacted Musberger in an attempt to explain her story to him. Musberger’s affidavit is thus technically consistent with these alibi witness affidavits, although Musberger provides no reason for his conclusion that the witnesses were not credible.

Musberger states that he interviewed all police witnesses. As Harris does not claim that Musberger did not interview McWhorter, the court will assume that McWhorter was interviewed. Musberger does not expressly state that he interviewed Williams, who could have testified that Harris was not at the scene of the shooting.

Musberger does not respond to Harris’s claims concerning impeachment evidence. While Musberger may not have been allowed to present extrinsic impeachment evidence, reasonably competent counsel should investigate possible avenues of impeachment. The evidence that Slater could not have known Harris through frequent contacts at a poolroom which allegedly did not exist is such an apparent avenue of impeachment.

This discussion reveals that one part of the ineffective assistance of counsel test — that pertaining to reasonably competent professional representation — cannot be decided on this motion. Musberger’s affidavit is too general to answer all of Harris’s claims. The court may deny a claim of ineffective assistance, however, if the prejudice component is not satisfied. Should Harris’s allegations be true, however, he may have satisfied the prejudice test. On this record and with Musberger’s conclusory affidavit, the court cannot make a finding that the alibi witnesses were not credible. Moreover, impeachment of Slater additional to that accomplished at trial would cast further doubt on the reliability of the verdict. This is especially true regarding the nonexistence of a poolroom at 13th and Kedzie, which would impeach Slater’s credibility as well as his identification. Finally, the alternative possible version of events, that Williams or McWhorter may have been responsible for the shooting, also casts further doubt on the verdict. Hence, both the competence of counsel’s representation and the possible prejudice resulting therefrom should be examined in an evidentiary hearing. Such a hearing is appropriate when facts are in dispute and petitioner was not afforded a full and fair hearing on the ineffective assistance issue in the state system. Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 756-57, 9 L.Ed.2d 770 (1963).

Respondent’s motion for summary judgment as to ineffective assistance of counsel is denied. An evidentiary hearing on this claim will be set. Harris will be appointed counsel to aid him in this hearing. Rules Governing § 2254 Cases, 28 U.S.C. fol. § 2254, Rule 8(c).

III. Newly Discovered Evidence

Harris’s third claim is that his custody violates the federal constitution, as newly discovered evidence demonstrates he is innocent of the charged crime. In Harris’s original post-conviction petition, which Abrahams states she filed on July 17, 1979, Harris requested a new trial based on newly discovered evidence and on ineffective assistance of counsel. Paragraphs 1 through 6 contain the allegations of newly discovered evidence, namely, the affidavit testimony of Melvin McWhorter. This affidavit reads in part:

I was acquainted with Pete Earnest Howard befor [sic] he was killed and have on occasion, purchased narcotics from him.
On July 9, 1977, at about 10:00 PM., I was present in the fifteen-hundred block of South Christiana Avenue and consequently, witnessed the shooting of Mr. Howard. He was shot by George Williams, whom I have known for over twelve (12) years.
I am also acquainted with Antonio Slater____ On July 9, 1977, Antonio Slater was not present in the fifteen-hundred block of South Christiana at 10:00 oclock [sic] pm. the night Pete Earnest Howard was killed.

(McWhorter Aff., dated June 29, 1979.) Harris alleges in his original post-conviction petition that this evidence was not and could not have been discovered by him or his counsel at an earlier date.

The amended post-conviction petition, however, omits the claim of newly discovered evidence. Rather, the entire claim rests on the allegation of ineffective assistance of counsel. No mention is made of the McWhorter affidavit, although it was incorporated as an exhibit to the amended petition. (Motion to Reconsider, filed 10/18/82, Exhibit 3 at pp. 1-6 [Transcript].) At the March 19, 1979 hearing, Harris’s attorney Hardiman did not mention the McWhorter evidence.

As discussed above, the lower post-conviction court found that Harris had been provided effective assistance of counsel. It did not mention newly discovered evidence. On appeal of the postconviction petition, it is clear that ineffective assistance was also the only issue presented. {See Motion of Exceptions, filed 8/20/82, Exhibit [Brief and Argument for Petitioner-Appellant].) The Appellate Court clearly reached only the ineffective assistance argument. Although it noted the McWhorter affidavit on page 3, the Court failed to mention it again in the opinion.

In Illinois, in order to obtain a new trial based on newly discovered evidence, a defendant must show that the evidence could not have been produced at trial by use of reasonable diligence, that the evidence is noncumulative, and that the evidence is of such a conclusive character that it would probably change the result. People v. Sullivan, 95 Ill.App.3d 571, 51 Ill.Dec. 60, 420 N.E.2d 474 (1st Dist.1981). Motions for new trial are subject to close scrutiny, People v. Carpenter, 74 Ill. App.3d 770, 30 Ill.Dec. 395, 393 N.E.2d 50 (1st Dist.1979), and have been frequently characterized as “disfavored,” e.g., People v. Wolf, 48 Ill.App.3d 736, 6 Ill.Dec. 720, 363 N.E.2d 402 (2d Dist.1977), cert. denied, 435 U.S. 915, 98 S.Ct. 1469, 55 L.Ed.2d 506 (1978); cf. United States v. Feldman, 756 F.2d 556, 560 (7th Cir.1983).

Newly discovered evidence must be presented to the trial court in a motion for new trial. Motions for new trial are governed by Ill.Rev.Stat. ch. 38, ¶ 116— 1, which provides that they must be brought “within 30 days following the entry of a finding or the return of a verdict.” Id. at ¶ 116-l(b). Exceptions to this 30-day requirement are narrow. People v. Ferguson, 102 Ill.App.3d 702, 57 Ill.Dec. 958, 429 N.E.2d 1321 (1st Dist.1981), cert. denied, 459 U.S. 872, 103 S.Ct. 159, 74 L.Ed.2d 133 (1982) (where sole prosecution witness recants or where prosecution prevented defendant from discovering evidence). Harris has not alleged compliance with these procedures. Moreover, Harris does not claim that these procedures themselves violate his federal due process rights. Cf. Griswold v. Greer, 712 F.2d 1200, 1205 (7th Cir.1983).

A. Waiver

The court will assume that Harris filed a timely motion for new trial based on newly discovered evidence. However, unlike the ineffective assistance of counsel argument, the newly discovered evidence argument was not presented to nor considered by the reviewing Illinois courts. As described above, Harris omitted to make this claim before both the post-conviction and the direct appeal lower and appellate courts. Hence, this court is barred from considering the merits of the claim. Wainwright v. Sykes, supra. Harris has advanced no explanation for this procedural default.

B. Merits of Newly Discovered Evidence Claim

Were the court to consider this issue, review would be narrow. In a federal habeas action, courts review the state proceedings for violations of federal constitutional rights. 28 U.S.C. § 2254(a). Hence, a federal court will not review the merits of a state court’s denial of a new trial motion solely under the state standards for the granting of a new trial. United States ex rel. Guillen v. DeRobertis, 580 F.Supp. 1551, 1556 (N.D.Ill.1984).

The scope of federal habeas corpus review concerning newly discovered evidence is described in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). In that case, the Court explained:

Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant’s detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.

Id. at 317, 83 S.Ct. at 759. This reason has led courts to the principle that a denial of a motion for new trial based on newly discovered evidence may be reviewed only for the presence of an error of constitutional magnitude. Subilosky v. Callahan, 689 F.2d 7, 9 (1st Cir.1982), cert. denied, 460 U.S. 1090, 103 S.Ct. 1788, 76 L.Ed.2d 356 (1983); Guillen, 580 F.Supp. at 1556. The Fifth Circuit has explained this test as follows:

Questions of guilt or innocence are not matters to be considered upon petition for habeas corpus. ... Newly discovered evidence in the form of a confession by another does not render the conviction void and subject to collateral attack by habeas corpus because it goes to the merits of the conviction, not to its legality ... [T]he confession ‘might be urged as a proper subject for executive ciernency, but it affords no basis for judicial action.’

Anderson v. Maggio, 555 F.2d 447, 451 (5th Cir.1977) (citing Shave v. Ellis, 255 F.2d 509, 511 (5th Cir.1958)). This discussion is consistent with the Supreme Court’s analysis that a petitioner in Harris’s position have some “justifiable reason” for failing to present the newly discovered evidence to the trial court. Townsend v. Sain, 372 U.S. at 317, 83 S.Ct. at 759.

Even assuming, however, that this court should apply the standards the Illinois courts would apply to a newly discovered evidence claim, Harris has not satisfied those standards. First, it is clear that McWhorter was known to Harris and his counsel at least at the time of the state’s disclosure of certain police reports in pretrial discovery. Harris does not explain why he or his counsel could not obtain McWhorter’s statement before trial. Moreover, Harris does not claim that his counsel was ineffective with respect to investigation of McWhorter. Hence, Harris has not offered a “justifiable reason” for not presenting this evidence at trial. Second, the lack of credibility of the McWhorter testimony would also justify a finding by the Illinois courts that the evidence was not of such a conclusive character as to make it probable that the result would be different. On two occasions before the execution of the affidavit, McWhorter had stated that he did not see the shooting. His third story was thus subject to damaging impeachment. Harris’s failure to satisfy this standard, which is at least as demanding as any federal constitutional standard would be, provides a second, alternative, reason to grant respondent’s motion for summary judgment as to the newly discovered evidence claim.

IV. Sufficiency of the Evidence

Harris's final claim is that the evidence presented by the state was constitutionally inadequate to support his conviction. The Illinois Appellate Court examined the record on the question of sufficiency and affirmed Harris’s conviction. A question is raised as to the test to be applied in determining the sufficiency of the evidence in a § 2254 case.

The Seventh Circuit clearly applies the so-called “reasonable doubt” test in determining whether federal convictions are supported by constitutionally sufficient evidence. United States v. Moya, 721 F.2d 606, 609-10 (7th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984); United States ex rel. Foster v. DeRobertis, 741 F.2d 1007, 1012 (7th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 972, 83 L.Ed.2d 975 (1985). The “reasonable doubt” test is satisfied when a reviewing court finds that, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Foster, 741 F.2d at 1012. In applying this test, the reviewing court must “assume that the jury drew all reasonable inferences in the prosecution’s favor____” Id. See also United States v. Herrera, 757 F.2d 144, 149-150 (7th Cir.1985).

The Seventh Circuit has applied this test in reviewing state court convictions as well. See Foster, supra; Rowan v. Owens, 752 F.2d 1186, 1187 (7th Cir.1984). There is some question as to whether this test would apply to an Illinois conviction based only on circumstantial evidence, see Foster, 741 F.2d at 1012-13, but the present case does not require resolution of this issue.

The court has carefully reviewed the trial transcript in this case. The review centers on what was presented at trial, not what could or should have been raised therein. The present record therefore supports Harris’s conviction with sufficient evidence. The jury was presented with the occurrence testimony of Antonio Slater. As discussed above, Slater testified that he witnessed the shooting, and that Harris, whom he knew as “Wayne,” was the perpetrator. Slater further testified that he had at least a few seconds to view the perpetrator’s face, which was illuminated both by street lights and by Slater’s headlights. Additionally, Slater’s identification was enhanced by his prior knowledge of Harris. Harris’s cross-examination of Slater, while lengthy, delved into minor inconsistencies in Slater’s story. This cross-examination affected the weight of Slater’s testimony, but cannot be characterized as destroying his credibility or the consistency between his pre-trial and in-court stories.

The jury could reasonably believe Slater’s testimony and his ability to identify the perpetrator. A rational jury thus could have found the elements of the offense of murder beyond a reasonable doubt. Whether that would have been the finding if Harris’s counsel had taken the course of defense recommended by Harris is not relevant to the present inquiry concerning sufficiency of the evidence. Respondent’s motion for summary judgment on this ground is therefore granted.

Conclusion

Respondent’s motion for summary judgment is granted except as to the ineffective assistance of counsel claim. An evidentiary hearing shall be held on the remaining claim. The court will appoint an attorney for Harris under Rule 8(c), 28 U.S.C. fol. § 2254.

It is so ordered.