Paysun Long v. Randy Pfister

874 F.3d 544, 2017 WL 4707324, 2017 U.S. App. LEXIS 20611
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 20, 2017
Docket13-3327
StatusPublished
Cited by28 cases

This text of 874 F.3d 544 (Paysun Long v. Randy Pfister) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paysun Long v. Randy Pfister, 874 F.3d 544, 2017 WL 4707324, 2017 U.S. App. LEXIS 20611 (7th Cir. 2017).

Opinions

EASTERBROOK, Circuit Judge.

Larriec Sherman was shot to death in June 2001. Four witnesses identified Pay-sun Long as the gunman; their statements were recorded on video. Two of the four recanted before Long’s trial. The other two—Keyonna Edwards and Brooklyn Irby—testified, while the video statements of the two recanting witnesses were introduced. Irby, too, had recanted before trial, telling Frank Walter, an investigator for the State’s Attorney, that police officers had coerced her to name Long as the shooter. But Irby testified consistently with her video statement. On cross-examination she conceded recanting but told the jury that her original statement was true and her recantation false. The jury believed the testimony that Irby and Edwards gave in open court, convicting Long of murder.

A state court vacated this conviction because the prosecutor had argued, without support in the record, that the" recanting witnesses feared Long and his friends. At Long’s second trial the evidence proceeded as at the first. Edwards and Irby identified Long in court as the killer; the other witnesses’ video- statements were introduced. But this time, when asked on cross-examination about her recantation, Irby denied telling Walter that she had been coerced to identify Long. The defense called Walter, who testified that Irby had indeed told him that her identification had been coerced. The prosecutor did not contest Walter’s testimony either on cross-examination or during closing argument. The jury convicted Long a second time, and he was sentenced to 51 yéars in prison. The state’s appellate court affirmed on direct appeal and affirmed again after a judge denied Long’s application for collateral relief. 409 Ill. App. 3d 1178, 377 Ill. Dec. 757, 2 N.E.3d 673 (2011).

A district court denied Long’s application for relief under 28 U.S.C. § 2254, but a panel of this court reversed. 809 F.3d 299 (7th Cir. 2015), The panel concluded that, by not spontaneously correcting Irby’s testimony, the prosecutor violated the rule of Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), and successors such as Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The panel understood these cases to establish that, whenever any witness makes a statement that the prosecutor knows is untrue, the Due Process Clause of the Fourteenth Amendment requires the prosecutor to correct that statement immediately. That was not done in Long’s second trial, and the panel held that Long therefore is entitled to collateral relief. T5 reach this conclusion the panel also had to address Long’s procedural default in state court, which it did by holding that Long’s appellate lawyer had rendered ineffective assistance by not making a Napue argument on direct appeal.

Because this case entails federal collateral review of a state conviction, we start with 28 U.S.C. § 2254(d), which as amended in 1996 by the Antiterrorism and Effective Death Penalty Act (AEDPA) provides:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]

The Appellate Court of Illinois ruled that any error was harmless in light of the other evidence inculpating Long. Davis v. Ayala, — U.S. -, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015), holds that a harmless-error decision is one “on the merits” as § 2254(d) uses that phrase. The state court concluded that Long had a good position as a matter of state law, because People v. Lucas, 203 Ill. 2d 410, 424, 272 Ill.Dec. 298, 787 N.E.2d 113 (2002), holds that a prosecutor must correct false testimony that the defense elicits. Given the harmless-error ruling, however, that conclusion did not benefit Long. The panel of our court, by contrast, went straight to federal law under Napue and its successors, and after holding that the prosecutor had violated the rule of Napue stated that Long is entitled to a new trial. The panel did not mention the doctrine of harmless error or apply the standard of Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Our order setting this case for rehearing en banc vacated the panel’s decision. .

Long contends that the state courts rendered decisions “contrary to” Napm and similar decisions. Of course the state judges didn’t disparage or contradict Napue-, by citing Lucas the Appellate Court ruled in Long’s favor, though as a matter of state law. The state court did not analyze Napue at all. (It was cited once but not elaborated on, given Lucas.) But we know from Harrington v. Richter, 562 U.S. 86, 97-100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011), that it does not matter whether a state court discusses federal precedent; § 2254(d)(1) applies whenever the state court makes a decision on the merits, no matter what the state judiciary says. See also Johnson v. Williams, 568 U.S. 289, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013). So we start with the merits—and because we conclude .that the' Supreme Court has not “clearly, established” that the doctrine of Lucas is a rule of federal constitutional law, we need not- address harmless error (or for that matter the procedural-default issue).

Long understands Napue and its successors to establish that the prosecutor must immediately correct any false-testimony— and that it does not matter whether the defense already knows the. truth, or whether the jury learns the truth before deliberating. It is not hard to find statements that, taken at a high level of.generality, could be so understood. The Court summarized the Napue principle this way in California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984): “The most .rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses, lie under oath.” This statement does not contain exceptions for testimony elicited by the defense, or testimony known by the defense to be false, or testimony corrected before the jury deliberates. But then the Supreme Court has never considered any of those possible qualifications. All Napue itself holds is that perjury known to the prosecution must be corrected before the jury retires. The Court did not say when or by whom. And Giglio identifies as the constitutional problem a prosecutor’s deliberate deception of the jurors, which can’t occur when the truth comes out at trial and the prosecutor does not rely on the falsehood.

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Cite This Page — Counsel Stack

Bluebook (online)
874 F.3d 544, 2017 WL 4707324, 2017 U.S. App. LEXIS 20611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paysun-long-v-randy-pfister-ca7-2017.