UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

VINCENT BUCKNER,

Petitioner, Case No. 11-CV-50381

v. Judge John Robert Blakey

JON VARGA, 

Respondent.

MEMORANDUM OPINION AND ORDER

This case is before the Court on Respondent’s motion for reconsideration [78]. 

Respondent asks the Court to reconsider its prior decision to conduct an evidentiary 

hearing in connection with Petitioner’s claim that the State knowingly introduced 

perjured testimony, which impacted the trial judge’s sentencing decision. For the 

reasons explained below, the Court grants the motion. 

Background & Procedural History

In 2005, a jury found Petitioner Vincent Buckner guilty of predatory criminal 

sexual assault and aggravated criminal sexual assault in connection with the rape of 

an eleven-year-old girl. Petitioner’s victim, L.D., was the daughter of Petitioner’s 

friend. L.D. testified at Petitioner’s trial, and she told the jury that she had sex with 

Petitioner on multiple occasions between 2001 and 2002. As a result of these sexual 

encounters, L.D. became pregnant, and she later gave birth to Petitioner’s child. 

After the jury returned its verdict, the trial judge merged the aggravated criminal 

sexual assault and predatory criminal sexual assault counts and entered judgment 
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on the predatory criminal sexual assault count only. Petitioner moved for a new trial;

the judge denied the motion and sentenced Petitioner to thirty years in prison. 

Petitioner appealed, based upon the trial court’s decision to limit his cross 

examination of the prosecution expert who had tested his DNA, L.D.’s DNA and the 

DNA of L.D.’s baby. The appellate court affirmed the trial court’s judgment and 

sentence on several bases, including that Petitioner did not deny that L.D.’s baby –

born when L.D. was twelve – was his child. Also significant to the court of appeals 

was the fact that the DNA expert did not herself analyze the DNA, but instead sent 

her results to a separate lab for analysis. 

Petitioner moved for rehearing, repeating his arguments about the DNA 

expert, but also arguing that the trial judge erred when he refused to allow Petitioner 

to introduce a “letter written by L.D. contradicting her trial testimony.” [19-2] at 4. 

That letter (really an affidavit), states as follows:

1. I was suppose to been the victim in this case against Vincent 

Buckner.

2. At trial I was forced into the court room by the State. I did not 

want to come into that court room because I had to lie on Vincent. I was 

picked up off my feet and carried into the court room and placed on the 

witness stand by force. 

3. I told the State people and everybody else what really happened 

between me and Vincent. The State people scared me and had me really 

confused. They threaten to detain me and take my son away from me if 

I didn’t say what they wanted me to say. My trial testimony was all a 

lie. 

4. The truth is one time Vincent Buckner came over to our house 

and got real drunk and I took advantage of him sexually. I looked at his 

face and saw that he was so drunk that he did not know who I was or 

what was really going on. The next morning I told him what happen. 
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Nothing else has ever happened between use. He has always treated 

me nice and respectful.

5. Even right now I am scared of the State people, but it is not fare 

that Vincent be locked up and I be forced to lie on him. At least I feel 

the truth should be told. Like I said I did want to tell the truth at trial 

but the State people had me scared and confused. 

6. Two weeks after Vincent was convicted I went to visit him at the 

county Jail, Div. II. I wanted him to know that I lied on him because 

the State people forced me to by threatening to take my son and lock me 

up. Everybody I told thought it was wrong for them to force me to lie 

but I was scared.

Pursuant to 735 ILCS 5/1-109 I declare under penalty of perjury, that 

everything contained herein is true and accurate to the best of my 

knowledge and belief. 

Id. at 8. The affidavit appears to have been signed initially on July 9, 2006; that date 

is crossed out and the date is rewritten for March 6, 2007. Id. The petition for 

rehearing was summarily denied. Id. at 11.

On December 3, 2007, Petitioner filed a petition for leave to appeal with the 

Illinois Supreme Court, raising only the arguments about the DNA expert. [19-2] at 

12–41. The Illinois Supreme Court summarily denied the PLA on January 1, 2008. 

Id. at 42. 

Petitioner filed a post-conviction petition raising a host of issues, including that 

the jury was prejudiced against him when complaining witness, L.D., was physically 

forced into the courtroom and that the trial court erred in failing to grant a mistrial 

due to the actions of the victim, L.D. [19-3] at 40. The court rejected the arguments, 

finding that L.D.’s behavior did not prejudice the jury: 

When the victim, L.D., was called to testify during petitioner’s 

trial, she was resistant and the State had to attempt to force her 
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through the doors of the courtroom. Petitioner claims that this event 

prejudiced the jury against him. He argues that had he been the one 

to physically force the victim into the courtroom that day, he would be 

subject to criminal charges. This argument is irrelevant and does 

nothing to support his claim. In a post-conviction proceeding, petitioner 

bears the burden to establish a substantial deprivation of his 

constitutional rights. People v. Coleman, 206 Ill. 2d 261,277 (2002). 

While the Sixth and Fourteenth amendments to the United States 

Constitution grant a defendant the right to a fair and impartial jury 

trial, this court views the event as immaterial and non-prejudicial. 

Here, the brief disturbance happened outside the doors to the 

courtroom. The victim did not enter while the jury was seated. 

When the incident occurred, the jury was removed from the 

courtroom; then the victim entered. Upon the jury's return, the 

victim was seated in the witness chair. Not only was the 

interruption short-lived and outside the presence of the jury, but 

petitioner fails to demonstrate how its impact could have possibly 

affected the result of the trial. L.D. testified at trial to engaging 

in sexual intercourse with petitioner multiple times. One of these 

encounters occurred nine months before L.D. gave birth to a son, 

whose DNA sample matched a sample provided by petitioner. 

The State’s evidence was overwhelming, and petitioner's claim is 

patently without merit. 

Id. at 44. 

Petitioner also argued in his post-conviction petition that he was actually 

innocent, and he based his claim on L.D.’s affidavit. The court rejected this claim as 

well: 

L.D’s affidavit does not provide evidence that would possibly change the 

result on retrial. She merely alleges that petitioner was drunk. The 

judgment of intoxication by an 11 year old victim of sexual abuse, as 

presented in an affidavit that recants trial testimony is not enough to 

conclusively negate the existence of required mental state for conviction.

Id. at 56–57. Petitioner appealed the dismissal of his post-conviction petition, and 

the court of appeals affirmed. Id. at 58–65. He petitioned for rehearing, and the court 
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of appeals denied his petition. Id. at 162; [19-4] at 1. He then filed a petition for 

leave to appeal, [19-4] at 2–19, which the Illinois Supreme Court denied. [19-5] at 75. 

Proceedings Before Judge Zagel

After his postconviction petition was denied, on December 23, 2011, Petitioner 

initiated this federal case by filing a petition for writ of habeas corpus raising twelve 

claims (claims A through L). See [1]. On January 4, 2013, Judge James B. Zagel, to 

whom the case was previously assigned, determined that ten of Petitioner’s twelve 

claims were defaulted, and that only two (claims H and L) were properly before him. 

See [30] at 8. Judge Zagel then denied claim L on the merits. Id. at 8–9. But Judge 

Zagel determined that ostensibly the state courts failed to consider Petitioner’s claim 

regarding L.D.’s allegedly perjured testimony (claim H) and thus found that an 

evidentiary hearing was necessary before that claim could be resolved. See [26]. In 

an amended order issued January 10, 2013, Judge Zagel held that a hearing was 

required because neither the state trial judge, nor the state appellate court “fully 

considered the potential impact of L.D.’s affidavit on Petitioner’s prison sentence – a 

sentence, it is worth nothing, of 30 years.” [30] at 10. Noting that, under the preAEDPA standard, “a federal hearing is required if (1) a habeas petitioner alleges facts 

which, if proved, would entitle him to relief and (2) the state courts – for reasons 

beyond the control of the petition – never considered the claim in a full and fair 

hearing.” Id. at 11 (citing Richardson v. Briley, 401 F.3d 794, 800 (7th Cir. 2005)). 

Judge Zagel commenced the evidentiary hearing on January 10, 2013 but 

continued the matter to allow the parties to conduct discovery. See [67]. Judge Zagel 
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did not set a deadline for the close of such discovery. By April 10, 2017, when the 

case was reassigned to this Court, the parties still had not completed that discovery. 

Thus, after discussing the status of discovery with the parties, this Court set a 

discovery deadline of October 12, 2017. See [72]. Based upon the representations of 

counsel, this Court then reset the evidentiary hearing for January 3, 2018 (almost 

five years after the initial hearing). The Court reset the evidentiary hearing date 

twice, again at the parties’ request, and set the case for a status hearing the last time 

the parties indicated that they still were not ready to proceed. See [73], [74], [76]. 

On March 27, 2018, the parties appeared at the status hearing and reported 

that, when deposed, L.D. did not testify consistent with her affidavit. In fact, counsel 

for Petitioner reported, she testified to the contrary. As a result, the Court granted 

Petitioner leave to amend his petition, assuming that the claim, as pled, could no 

longer proceed. But Petitioner did not file an amended petition. 

On April 3, 2018, Respondent filed a motion asking the Court to reconsider the 

decision to hold an evidentiary hearing [78]. 

Discussion

Federal Rule of Civil Procedure 54(b) provides that: any order or other form of 

decision, however designated, which adjudicates fewer than all the claims or the 

rights and liabilities of fewer than all the parties shall not terminate the action as to 

any of the claims or parties, and the order or other form of decision is subject to 

revision at any time before the entry of judgment adjudicating all the claims and the 

rights and liabilities of all the parties. A motion to reconsider should be granted 
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when: (1) the Court’s decision rests on grounds outside the adversarial issues 

presented to the Court by the parties; (2) the Court patently misunderstood a party; 

(3) the Court made an error not of reasoning but of apprehension; (4) there has been 

a controlling or significant change in the law since the submission of the issue to the 

Court; or (5) where there has been a controlling or significant change in the facts of 

the case. E.g., Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 

(7th Cir. 1990).

As a practical matter, the legal basis for holding a hearing has not changed. 

As Judge Zagel correctly held, a habeas petitioner is not entitled to an evidentiary 

hearing as a matter of course. United States v. Coleman, 149 F.3d 674, 677 (7th Cir. 

1998). But a hearing is warranted under the pre-AEDPA standard “if (1) a habeas 

petitioner alleges facts which, if proved would entitle him to relief; and (2) the state 

courts – for reasons beyond the control of the petitioner – never considered the claim 

in a full and fair hearing.” Richardson v. Briley, 401 F.3d 794, 800 (7th Cir. 2005). 

Because Petitioner has not amended his petition, it is still the case that Petitioner 

has alleged facts which, if proved, would entitle him to relief and that the state courts 

– for reasons beyond the control of the petitioner – never considered the claim in a 

full and fair hearing. Indeed, counsel for Petitioner correctly notes in his response 

brief, “[i]f L.D.’s affidavit is taken as being true, then an evidentiary hearing 

continues to be warranted.” [79] at ¶ 8. 

The factual landscape of the case has changed dramatically, however, as 

discovery has shown that the facts asserted in the affidavit are not true. At her 
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deposition in these proceedings, L.D. testified that Petitioner asked her to lie during 

trial and say that Petitioner got drunk at L.D.’s mother’s house and that she took 

advantage of him; instead, she testified, she told the truth at trial. [78-1] at 25–26. 

Petitioner’s counsel admits in his response, consistent with his representations in 

court, that, when she was deposed, L.D. denied the contents of the affidavit and even 

denied signing the affidavit. As a result, holding an evidentiary hearing would be an

utter waste of time and resources, as Petitioner appears to have no evidence now to 

show that L.D.’s affidavit is true. Nor has he proffered any evidence at all to support 

his claim that prosecutors knowingly presented perjured testimony. 

Petitioner’s counsel represents that two witnesses, Petitioner’s father and the 

father’s companion, if questioned, would testify that they drove L.D. to a currency 

exchange to execute the affidavit. Such testimony may contradict L.D.’s denial that 

she signed the affidavit, but it still fails to establish the truth of the facts included in 

the affidavit. Based upon the parties’ submissions, not a single witness has testified 

that the facts stated in the affidavit are true. In fact, when questioned by Petitioner’s 

counsel, L.D. testified at her deposition that the story reflected in the affidavit was 

contrived by Petitioner, and she flatly rejected it. L.D. unequivocally stated at her 

deposition that her trial testimony was true. Petitioner has had more than five years 

to find evidence to support his claim that L.D. lied, and he has failed to do so (despite 

his apparent attempts to obstruct justice, suborn perjury and further harass the child 

victim of his sexual assault).
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Petitioner’s claim requires proof, not only that L.D.’s trial testimony was false, 

but that the State knowingly presented the perjured testimony. Again, after more 

than five years, Petitioner has offered no witness or documentary evidence to support 

the notion that the prosecutors presented perjured testimony. Even in response to 

the motion for reconsideration, Petitioner fails to offer anything on this point. If 

Petitioner cannot show that L.D. perjured herself at trial, he cannot show that the 

State knowingly presented L.D.’s perjured testimony. And, certainly on the record 

before it, this Court cannot, and does not, find that the State knowingly presented

perjured testimony. As a result, the record does not warrant any further hearing and 

Petitioner’s claim H fails. 

Certificate of Appealability

Under § 2253(c)(2), a “certificate of appealability may issue . . . only if the 

applicant has made a substantial showing of the denial of a constitutional right.” An 

applicant has made a “substantial showing” when “reasonable jurists could debate 

whether (or, for that matter, agree that) the petition should have been resolved in a 

different manner or that the issues presented were adequate to deserve 

encouragement to proceed further.” Resendez v. Knight, 653 F.3d 445, 446-47 (7th 

Cir. 2011) (internal citations and quotation marks omitted). Here, the Court 

concludes that the Petitioner has not made a substantial showing of the denial of a 

constitutional right, nor has he shown that reasonable jurists would debate the 

resolution of his claims. Accordingly, the Court declines to issue a certificate of 

appealability.
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Conclusion

Given the significant change in the facts of this case, the motion for 

reconsideration [78] is granted. Additionally, given that the record before the Court 

contains nothing to suggest that the prosecutors knowingly presented perjured 

testimony at Petitioner’s trial or sentencing, Petitioner’s claim H is denied on the 

merits. For this reason, and for the reasons previously explained by Judge Zagel, the 

petition for writ of habeas corpus is denied. The Court declines to issue a certificate 

of appealability. The Clerk is instructed to enter a judgment in favor of Respondent 

and against Petitioner. Civil case terminated. 

Dated: September 17, 2018

Entered:

____________________________

John Robert Blakey

United States District Judge