IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex rel.)

TREMAYNE CORA #B79855, )

)

Petitioner, )

)

v. ) No. 11 C 9230

)

MICHAEL LEMKE, Warden, )

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)

Respondent. )

MEMORANDUM ORDER

Assistant Attorney General David Iskowich has filed a

thorough--and thoroughly persuasive--Response to this Court's

January 22, 2013 memorandum order (“Order”), urging the reversal

of the Order's ruling that had granted habeas petitioner Tremayne

Cora (“Cora”) an evidentiary hearing to develop the factual basis

for his claim that police had coerced witness Tamika Day (“Day”)

to provide some assertedly false--and importantly, assertedly

material--statements during Cora's state court criminal trial. 

That filing caused this Court to retrace its steps, a procedure

that uncovered the place where this Court had left the rails and

the Order had consequently taken the wrong turn.

In brief, the Order had operated on the premise that the

state post-conviction proceedings instituted by Cora had not

eventuated in an ultimate state court ruling on the merits as to

 Because Michael Lemke has succeeded Marcus Hardy as the 1

Warden at Stateville Correctional Center, this case caption has

reflected his substitution as respondent.
the impact of the assertedly police-coerced false testimony of

Day--testimony that she later recanted. As this Court had

mistakenly understood the matter, the Illinois Appellate Court

had not spoken to that issue in its review of the decision by the

Circuit Court of Cook County.2

In any event, immediately on receipt of the current Response

this Court had its law clerk print out the March 16, 2011

unpublished order of the Illinois Appellate Court in its Case No.

1-09-1663, in which that court affirmed as modified the order of

the Circuit Court of Cook County that had granted the State's

motion to dismiss Cora's state post-conviction petition without

calling for an evidentiary hearing. Most critically, that

unpublished order (2011 WL 9692905) held that Cora's allegations

in that petition and its supporting materials had not made a

substantial showing that his constitutional rights had been

violated (citing People v. Orang, 195 Ill.2d 437, 448 (2001)). 

On that score the Appellate Court expressly held that even if

Day's original version of events was perjurious, it was not

material in the sense that it influenced, or could have

influenced, the factfinding jury's deliberations on the issues

 For some unexplained reason, this Court's retained 2

chambers file did not include the exhibits to the Answer to

Cora's Petition, though when this Court went back to review the

bidding on receipt of the current motion found that the Answer to

Cora's Petition filed May 17, 2012 had listed the Appellate

Court's disposition as its “Ex. M.”

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presented to it. As the Appellate Court summarized its

conclusion (2000 WL 9692905 at *3):

It is not likely the portion of Day's testimony that

she now recants would have influenced the jury to

convict defendant.

And that being so, the Appellate Court affirmed the Circuit

Court's dismissal of Cora's state post-conviction petition

without requiring an evidentiary hearing.

Although Cora's 28 U.S.C. §2254 (“Section 2254") Petition

for Writ of Habeas Corpus filed in this District Court had sought

to advance other grounds for relief in addition to that based on

Day's testimony, and although attorney Standish Willis (whom this

Court had appointed to represent Cora) had done a highly

commendable job of putting the best possible face on those added

grounds as well as on the Day-based ground, the Assistant

Attorney General's initial Answer to the Petition (filed May 17,

2012) demonstrated in detail and to this Court's satisfaction

that the other grounds did not survive scrutiny through the lens

of Section 2254(d) analysis.

That of course was the reason that the Order focused

exclusively on what appeared to be the Petition's only

potentially viable ground--the one based on the assertedly

tainted Day testimony. And now, with that potential ground also

having succumbed in light of the restrictions imposed by Section

2254(d), the entire Petition has failed.

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In sum, Section 2254(d) also precludes Cora's relitigation

of his Day-testimony-based claim unless the state court decision

was unreasonable--and this Court cannot say that. That being so,

Section 2254(d) calls for this Court's reconsideration and

reversal of its analysis and of its determination that an

evidentiary hearing involving witness Day is called for (Cullen

v. Pinholster, 131 S.Ct. 1388 (2011)). That calls for dismissal

of the Petition, and this Court so orders. Finally, the

previously scheduled February 1 status hearing is no longer

necessary, and it is cancelled.

________________________________________

Milton I. Shadur

Senior United States District Judge

Date: January 31, 2013

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