                              In the
 United States Court of Appeals
                  For the Seventh Circuit
                          ____________

No. 01-2929
TOD HARDING,
                                               Petitioner-Appellee,
                                 v.

JONATHAN R. WALLS,
                                           Respondent-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
          No. 99 C 8211—Matthew F. Kennelly, Judge.
                          ____________
     ARGUED MAY 17, 2002—DECIDED AUGUST 13, 2002
                     ____________


  Before BAUER, POSNER and KANNE, Circuit Judges.
  BAUER, Circuit Judge. Petitioner, Tod Harding, was
convicted of murder and residential burglary in Illinois
state court. Harding was sentenced to life imprisonment
for the murder conviction and to a concurrent term of
twenty-five years for the residential burglary conviction.
Both convictions were affirmed on appeal, but his sentence
for residential burglary was reduced to fifteen years. After
exhausting all other state remedies, Harding sought ha-
beas relief, claiming due process violations. The district
court granted Harding’s petition on one of the grounds
raised therein: deprivation of due process due to the state’s
knowing use of perjured testimony and failure to cor-
rect such testimony. For the following reasons, we REVERSE
the decision of the district court.
2                                               No. 01-2929

                        Background
  Harding was convicted for the murder of his mentally
impaired paternal cousin, George Miller, and for the
residential burglary of the Miller family home. At trial, one
of Harding’s cousins on his maternal side, James Harland,
testified for the prosecution. Harland was a co-defendant
who participated in the crime.
  Harland’s detailed testimony described the events that
took place on the night of the murder. Among other things,
Harland testified that Harding was at the scene of the
crime and identified him as the man who shot Miller.
In addition to these material facts, Harding contends
that Harland offered perjured testimony during cross-
examination and the prosecution was aware of the false
testimony.
    On cross-examination, the following exchange took place:
     Q: Did your attorney tell you that the penalties would
        be different if you involved Todd [sic] or Gerald?
     A: No, sir.
     Q: Did anybody else tell you the penalties would be
        different if you testified?
     A: No, sir.
     Q: Why are you telling the jury that you have decided
        to testify and give this version today?
     A: Because it just came to me that I had been ar-
        rested for a murder that I did not do. And, I—
     Q: In Davenport, Iowa, the first day you were arrested,
        the police told you in the squad car they wanted
        the person who did the shooting. You admit that?
     A: Right.
     Q: You are—Are you saying that was never told to you
        again?
No. 01-2929                                            3

   A: They could have said it. I really didn’t pay too
      much attention. I was trying to listen to what
      they said. I didn’t want to answer none of their
      questions until I had gotten a hold of my lawyer.
   Q: In November of 1982, were you at the Miller resi-
      dence?
   A: Yes.
   Q: That was the occasion you went hunting out there?
   A: Yes.
   Q: Have you been promised anything in return for
      your testimony?
   A: No, sir.
   Q: Have you asked for anything in return for your
      testimony?
   A: No, sir.
   Q: That is you asked your attorney if you will get
      anything in return for your testimony?
   A: Not really, no, sir.
   Q: Well, not really, what have you asked him?
   A: I just asked him, you know, you know, if I am go-
      ing to get charged for a murder that I have not
      done.
   Q: Do you think the murder charge is going to be
      dropped against you in return for your testimony?
   A: No, sir.
   Q: Is that what you are testifying?
   A: No, sir.
R. 28-2, at 337-39. Harding argues that Harland lied when
asked by defense counsel about whether he had asked for
4                                                No. 01-2929

or otherwise been promised consideration in return for his
testimony.
  In the post-conviction trial court, Harding filed an
affidavit signed by Harland in which Harland states that
he discussed his case with his attorney and the prosecu-
tor prior to trial. The affidavit also states that, during
those discussions, Harland was reassured that testify-
ing against Harding would benefit his own case. In re-
sponse, the state filed affidavits of both the trial prosecutor
and Harland’s defense counsel, attesting to the fact that
Harland received no promises nor were there any agree-
ments for a charge reduction or an agreed sentencing term
prior to Harland testifying.
  In granting the prosecution summary judgment on
Harding’s post-conviction petition, the state trial court
found that Harland’s affidavit failed to raise a genuine
issue of material fact and that the jury would not have
reached a different verdict had they known Harland
expected something in return for his testimony. The Illi-
nois Appellate Court affirmed, noting the vagueness of
Harland’s testimony, and further stating that the absence
of any quid pro quo agreement left Harland with only the
hope of receiving beneficial treatment in exchange for his
testimony.
  The district court disagreed with the conclusions reached
by the Illinois courts, finding: (1) that Harland did lie
about whether he had asked for or otherwise been prom-
ised consideration in return for his testimony; (2) that
the prosecutor knew Harland lied; and (3) that the pros-
ecution’s error in failing to correct Harland’s perjured
testimony was not harmless. Based on these findings, the
district court granted Harding habeas relief.
No. 01-2929                                                      5

                          Discussion
  We review the district court’s factual findings for clear
error and legal conclusions as well as mixed questions
of law and fact de novo. Kapadia v. Tally, 229 F.3d 641,
644 (7th Cir. 2000); Kavanagh v. Berge, 73 F.3d 733, 735
(7th Cir. 1996).
    Habeas relief may be granted if a state court adjudication:
      (1) resulted in a decision that was contrary to, or
      involved an unreasonable application of, clearly estab-
      lished Federal law, as determined by the Supreme
      Court of the United States; or
      (2) resulted in a decision that was based on an unrea-
      sonable determination of the facts in light of the evi-
      dence presented in the State court proceeding.
28 U.S.C. § 2254(d).1
   With respect to section 2254(d)(1), relief may be granted
if the petitioner shows that, despite identifying the cor-
rect rule of law, the state court unreasonably applied it
to the facts of the case. Williams v. Taylor, 529 U.S. 362,
404 (2000). The unreasonable application of federal law,
however, is different from the incorrect or erroneous
application of federal law. Boss v. Pierce, 263 F.3d 734, 739
(7th Cir. 2001) (citing Williams, 529 U.S. at 410). A fed-
eral court simply disagreeing with the state court deci-
sion does not warrant habeas relief. Under section
2254(d)(2), relief may be had where the petitioner can
show by clear and convincing evidence that the state


1
  Respondent spends some time briefing the propriety of the
district court’s apparent reliance on both sections 2254(d)(1) and
2254(d)(2). No examination of this issue is necessary as neither
section affords habeas relief to Harding. The decision of the Illi-
nois Appellate Court was reasonable as a matter of law and fact.
6                                                 No. 01-2929

court’s factual determinations were unreasonable. 28
U.S.C. § 2254(e)(1). Even if the petitioner demonstrates
constitutional error under section 2254(d)(1) and/or sec-
tion 2254(d)(2), he or she still may not be entitled to ha-
beas relief where such error is deemed harmless; that is,
could not have had a substantial and injurious effect or
influence on the jury’s verdict. O’Neal v. McAninch, 513
U.S. 432, 436 (1995) (citations omitted).2
   It is well established that the introduction of perjured
testimony, without more, does not rise to the level of a
constitutional violation warranting habeas relief. Tayborn
v. Scott, 251 F.3d 1125, 1130 (7th Cir. 2001). A habeas pe-
titioner seeking a new trial on the ground that the prosecu-
tor used perjured testimony must establish “(1) that the
prosecution indeed presented perjured testimony, (2) that
the prosecution knew or should have known of the per-
jury, and (3) that there is some likelihood that the false
testimony impacted the jury’s verdict.” Id. (quoting United
States v. Thompson, 117 F.3d 1033, 1035 (7th Cir. 1997)).
  Here, the district court found that the Illinois Appel-
late Court’s determination that Harland did not perjure
himself was unreasonable in light of the evidence pre-
sented. We disagree. After reviewing the testimony at is-
sue, the state court opined, “We cannot, on the basis of
the State’s Attorney’s ephemeral promise and Harland’s
vague testimony, conclude that the State obtained the


2
   We say may not be entitled to habeas relief because there is
some question whether the harmless error standard articulated
in O’Neil has survived the passage of the AEDPA. See Ander-
son v. Cowan, 227 F.3d 893, 898 n. 3 (7th Cir. 2000) (discussing
divergence between circuit courts questioning application of the
O’Neal standard post-AEDPA). We need not address the viability
of the O’Neal standard, as Harding fails to demonstrate any con-
stitutional error in the first place.
No. 01-2929                                                7

defendant’s conviction by knowingly using perjured testi-
mony.” While the district court may legitimately disagree
with this conclusion, it is not unreasonable in light of the
record.
  In rejecting the arguments that Harland falsely stated
that he was not promised anything nor asked for any-
thing in exchange for his testimony, the state court noted
that no quid pro quo agreement existed between Harland
and the prosecution. The court further noted that the
prosecution in fact refused to negotiate with Harland,
leaving him with only the hope that his testimony would
result in the benefit of leniency. The affidavits filed by
Harding in his post-conviction proceedings support these
findings.
  As previously set forth, Harland’s affidavit averred
that he discussed his case with his attorney and the
prosecutor prior to trial and that, during those discussions,
he was “reassured” that his testifying against Harding
would benefit his own case. Additionally, the affidavits
of the prosecutor and defense counsel both state unequivo-
cally that Harland received no promises or any agree-
ments for a charge reduction or an agreed sentencing
term prior to testifying against Harding. The affidavit of
Harland’s defense attorney attested to the fact that the
prosecutor refused to negotiate a plea in exchange for
testimony. Mere reassurances given outside the realm of
negotiations hardly qualify as a definitive request or
promise for beneficial consideration. Indeed, as the re-
spondent points out, such reassurances reflect that
Harland was simply advised of the reality that cooperat-
ing with the prosecution might benefit him at a future
date. Absent anything more, it is not at all unreasonable
to conclude that Harland testified truthfully since he
had nothing more than a common sense hope that his
testimony might be beneficial to his own case.
8                                              No. 01-2929

  Because we find that the state court’s determination
that Harland did not commit constitutional error by
perjuring himself was reasonable, we need not reach the
intertwined issues of harmless error and impact on the jury.


                       Conclusion
  The decision of the district court conditionally grant-
ing the petitioner, Tod Harding, habeas relief is REVERSED
and REMANDED with instructions to deny the prayed for
writ.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-97-C-006—8-13-02
