In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2317

DARRYL TAYBORN,

Petitioner-Appellant,

v.

AUGUSTUS SCOTT, JR., Warden,

Respondent-Appellee.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 5704--George M. Marovich, Judge.

Argued FEBRUARY 27, 2001--Decided May 29, 2001



  Before COFFEY, RIPPLE, and EVANS, Circuit
Judges.

  COFFEY, Circuit Judge. In 1992, Darryl
Tayborn was convicted in Illinois state
court of attempted murder, aggravated
discharge of a firearm, and aggravated
battery with a firearm. The state trial
judge sentenced the defendant to
concurrent prison terms of thirty years
for attempted first degree murder, twenty
years for aggravated battery with a
firearm, and fifteen years for aggravated
discharge of a firearm./1 After
exhausting his Illinois state court
remedies, he filed a federal habeas
petition in the Northern District of
Illinois alleging various deficiencies in
his conviction. The district court judge
denied his petition, but granted a
certificate of appealability as to
whether the prosecution knowingly used
perjured testimony during Tayborn’s
trial./2 We affirm.

I.   BACKGROUND

  Because Tayborn does not challenge the
facts set forth in the Illinois Appellate
Court decision, we must presume for the
purposes of this appeal that these facts
are correct. 28 U.S.C. sec. 2254(e)(1).
According to the Illinois Appellate
Court’s decision affirming Tayborn’s
conviction, with modifications, the
following events occurred:

On June 25, 1991, a fan and a radio were
taken from [Eric] Murchinson’s home.
Murchinson learned that Matthew Tayborn,
defendant’s brother, had taken the items,
and on June 26, 1991, at 8 or 9 p.m.,
Murchinson saw Matthew Tayborn in the
alley around the corner from his house.
Murchinson exchanged words with Matthew
and a scuffle ensued between them. The
two men engaged in a fistfight for about
five minutes, then Matthew ran away.
After the fight, Murchinson went across
the street to visit his friend Devon
Forest. From Forest’s house, Murchinson
saw defendant run up the street toward
his (Murchinson’s) house, and run up to
his porch. At that time, defendant was
with another young man whose name
Murchinson did not know. Defendant picked
up the chairs on Murchinson’s porch and
started to break Murchinson’s front
windows with the chairs. Murchinson ran
across the street to his house and
approached defendant. When defendant saw
Murchinson, he stated, "is that the one?"
then the other man pulled a gun out of
his waist and tried to shoot Murchinson,
firing the gun five times. Murchinson ran
southbound, around the corner, to a
friend’s house on 114th Street and
Forest. Murchinson stated that he did not
call the police because he lives in a
rough neighborhood and the police would
not have helped him. After the incident,
Murchinson and his family boarded up the
windows and spent the night at his
grandmother’s house.

Murchinson stayed at his grandmother’s
house until approximately 5 p.m. the
following day, when he met his brother,
Johnny Hatfield, and they went to
Michelle McGee’s house at 114th and
State. They stayed at McGee’s house until
approximately 1 a.m. and then proceeded
home. En route, Murchinson observed a
group of about ten men standing on the
corner of 114th and Calumet, across the
street from his house. Murchinson
recognized defendant in the group.

Murchinson and Hatfield went into their
house and upstairs to their bedroom.
Murchinson looked out thewindow for about
two minutes and saw four of the men cross
the street toward his house. The four men
went to the back of Murchinson’s house,
then came around the side of the house to
the front and approached the front porch.
Murchinson saw the men take guns from
their waists; three men were carrying
"Tech-9" pistols, and the other person
had a single-gauge shotgun. Defendant was
carrying a Tech-9. Murchinson ran
downstairs to warn his family. He peeked
through the curtains of the front door
and saw the men trying to break the door
lock. Murchinson crawled from the front
door to the dining room. Suddenly, he
heard one of the men tell another to bust
down the door, and the men started
shooting. They shot through the boarded-
up windows, and continued for about 15
seconds, firing approximately 60 shots
all together. Hatfield was hit in his
side when a bullet came through the
living room wall.

The police arrived approximately 20 to 30
minutes after the shooting. Murchinson
told the police that defendant was one of
the shooters, and gave the police a
description. About an hour later,
Murchinson identified defendant in police
custody.

Johnny Hatfield testified that on June
26, 1991, he came home at 8 or 9 p.m. to
find the front windows of his house
broken. The police arrived, and Hatfield
talked to them. Subsequently, Hatfield
and his mother boarded up the windows.
Hatfield found two .38 caliber shell
casings outside around the front porch
area at the bottom of the stairs. He
picked them up, brought them inside, and
placed them on the dining room table.

Hatfield returned to his house the next
morning at 9 a.m. and noticed that the
board on the front window had been kicked
in. When he entered the house, he noticed
that the color television set was
missing. He replaced the window board and
his mother called the police. He stayed
at the house until approximately noon,
and then returned to his grandmother’s
house.

Hatfield testified corroborating
Murchinson’s testimony as to the events
on the evening of June 26 and the
shooting in the early morning hours of
June 27, 1991. Hatfield was taken to the
hospital after the shooting and treated
for a gunshot wound. The bullet removed
from his side was a .9 millimeter.
Officer John R. Butler, a Chicago Police
Department evidence technician, testified
that on June 28, 1991, at 1:50 p.m. he
investigated the crime scene at 11426
South Calumet. Officer Butler found the
front door and windows broken and boarded
up, and noticed bullet holes in the
boards. He recovered a fired bullet and
eight .9 millimeter cartridge cases from
the front porch. Officer Butler also
recovered two .32 caliber automatic
bullets that had not been fired.

Officer Butler found that some of the
boarding from the front windows had been
knocked into the living room. He noticed
firearms damage to furniture and
approximately six bullet holes in the
walls. He recovered additional fired
bullets from the shelf of a table next to
the couch, and inside the coffee table.
In the dining room, he observed damage to
furniture and bullet holes in the walls,
and firearms cartridges on the floor. He
recovered two spent cartridges and two
.38 special "plus P" caliber rounds from
underneath the dining room table.

Chicago Police Officer David Edison
testified that on June 28, 1991, at 1:16
a.m. he and his partner Alma Runsford
investigated the shooting at 11426 South
Calumet. When he arrived at the scene, he
noticed a crowd of at least ten people in
front of the house. Officer Edison walked
up to the front porch and saw numerous
expended .9 millimeter shells. As he
entered the house, he saw the same type
of shell on the floor in the front room,
bullet holes in the walls, and spent
bullets on the floor. He found Johnny
Hatfield sitting on the dining room floor
and saw that he had a bullet wound.
Officer Edison called for an ambulance
and the mobile crime lab.

Officer Edison then questioned
Murchinson. Murchinson told Officer
Edison that he and Hatfield were walking
home at 1 a.m., and as they approached
their residence, they noticed a large
crowd of black males across the street.
Murchinson and Hatfield entered the
house. Murchinson said he was suspicious
of the group, so he went upstairs and
looked out of the second floor window. At
that point, Murchinson saw 4 men crossing
the street towards his porch. Murchinson
then saw three of the men pull out
"Tech-9s," .9 millimeter semi-automatic
pistols, and the fourth man pull out a
shotgun. Murchinson identified defendant
as one of the men who pulled out a gun as
he crossed the street toward Murchinson’s
house. Murchinson also told Officer Edison
about the conflict that had arisen
between him and Matthew Tayborn.

Officer Terrence Gibbons testified that
on June 28, 1991, at approximately 1:15
a.m. he and his partner Officer Fred
Benson responded to a call regarding
gunshots fired at 11426 South Calumet.
When they arrived, Officer Edison was
already there, and a crowd of people had
gathered on the sidewalk. Officers
Gibbons and Benson found shell casings
and bullet holes on the front porch. They
entered the house and found Hatfield
lying on the dining room floor, and also
observed bullet holes in the interior
walls of the house and in some of the
furniture. Gibbons interviewed Murchinson
and his mother at the scene and learned
that the offenders ran three or four
doors north to hide in an abandoned
building, and that they were armed with
Tech-9 pistols, a type of machine gun.
The officers went to the abandoned house
and searched the grounds.
After about twenty minutes, the officers
returned to 11426 Calumet. The officers
spoke to Murchinson and his mother again
and learned defendant’s name, address and
physical description. The officers then
went to 11421 Forest and found defendant.
The officers searched defendant and took
him back to the scene. At the scene,
defendant was identified as the offender
in the shooting.

Andrea Harris, Murchinson’s and
Hatfield’s mother, testified on behalf of
the State that on June 26, 1991, she came
home at approximately 8 p.m. and found
all of the front windows of her house
broken. She boarded up the windows, and
then went to stay at her mother’s house.
She returned to her house the next
morning at 9 a.m. and found her
television missing. The windows that she
had boarded were kicked down, and the
front door was open. Her stereo had been
taken apart and it was standing by the
front door. She and Hatfield re-boarded
the windows and she called the police.

At 12:45 a.m. on June 27, Harris heard
Murchinson and Hatfield come in the front
door. She went to the kitchen to meet
Hatfield, and Murchinson went upstairs.
She then looked out of the front door and
saw a man ride by on a bicycle. She also
noticed a group of men standing across
the street. She yelled upstairs to
Murchinson, asking him if something was
wrong and he said no. Harris then saw the
same person ride past the house on a
bicycle again, and this time another
person was with him, an individual she
recognized as Derrick. The bicycle rider
dismounted the bicycle and gave the
bicycle to Derrick. They then stood for a
few seconds in front of the house, at the
bottom of the porch steps. Harris began
to walk back toward the kitchen, when
Murchinson yelled "get down, get down,
they have Tech-9s." Harris then saw
shadows on the porch, the board was
kicked in and she heard gunfire. She
could see the flashes of the guns in the
mirror on the wall, and could hear the
bullets hitting different things.
Hatfield yelled that he was hit, Harris
turned on the light and saw that there
was blood everywhere and Murchinson was
holding Hatfield. The neighbors came
over, and then the police arrived. Harris
spoke with police officers, then rode in
an ambulance to the hospital with her
son.

Tayborn, 627 N.E.2d at 10-13.

The defense presented one witness.

Ravin Houskins, a Cook County Department
of Corrections social worker testified on
behalf of the defense that she lives at
11440 South Forest, and that Calumet
Street is east of her house. On June 28,
1991, at approximately 1 a.m., Houskins
was sitting on her front porch waiting
for her daughter to get home. She saw
defendant and Derrick pushing bikes in
the middle of the street. After they
walked by she heard gunshots coming from
a northeasterly direction. When she
looked over, she saw defendant and
Derrick still standing in the street. On
cross-examination, Harris admitted that
she was not sure of the exact time she
saw defendant and Derrick in the street.
Harris stated that she sat on her porch
until 1:25 when she went to pick up her
daughter. After Harris’ testimony, the
defense rested.

Id. at 13.
  As mentioned previously, a jury
convicted the defendant of attempted
first degree murder, aggravated battery
with a firearm, and aggravated discharge
of a firearm. The trial court sentenced
the defendant to three concurrent prison
terms of thirty years for attempted first
degree murder, twenty years for
aggravated battery with a firearm, and
fifteen years for aggravated discharge of
a firearm./3

  With regard to the one issue on appeal,
whether the prosecution knowingly used
perjured testimony, Tayborn argued that
two individuals, Murchinson and Hatfield,
committed perjury when identifying him as
the assailant. With respect to
Murchinson, Tayborn claimed that he
(Murchinson) "gave three different
accounts" of what happened on the night
in question--1) in an interview with the
police; 2) at the preliminary hearing;
and 3) at trial. Specifically, Tayborn
asserted that Murchinson’s version of
events contained the following
discrepancies: 1) whether he heard a
noise before looking down from the porch
to identify the attackers; 2) whether he
gave the police the names of Tayborn and
his brothers; 3) the number of shots
fired; and 4) whether, in fact, he gave
the police a physical description of the
other men involved. Tayborn further
asserted that Murchinson lied concerning
the type of guns he saw and also
fabricated the fact that he could see the
attackers from the front porch.

  With respect to Tayborn’s claim that the
government knowingly used perjured
testimony from Murchinson, the district
judge concluded that the statements that
Tayborn pointed to were inconsistences
rather than fabrications and therefore
fell short of perjurious testimony.
Additionally, the court concluded that
even if it were to assume that the
statements did amount to perjury, Tayborn
failed to offer any evidence that the
government knowingly used such false
testimony. In fact, all Tayborn had to
say in this regard was

that the prosecution must have known that
[Murchinson’s] testimony, which it
elicited, was false. He further argues
that only through gross negligence could
the prosecutor have failed to conclude
that the testimony was perjured. If in
fact the prosecutor did fail to draw that
conclusion, petitioner argues that the
state should nevertheless be charged with
it.

Not surprisingly, Tayborn offered no
legal authority for his theory.

  With respect to Hatfield, Tayborn
submitted an affidavit by him (Hatfield)
in support of his claim that the prosecu
tion knowingly used perjured testimony.
Although Hatfield testified at Tayborn’s
trial that he saw Darryl Tayborn standing
in a group of men on the night in
question, his affidavit states that "I
did not see Darryl Tayborn, instead I was
told by the Assistant State’s Attorney
and my brother [Murchinson] that it was
Darryl Tayborn, who had shot me, and that
is what caused me to testify falsely."

  The district court determined that even
if Hatfield’s testimony was false, "there
is no likelihood that this purported
false testimony affected the judgment of
the jury." This was so because, according
to the district judge, "Hatfield’s
testimony that he saw Tayborn in a group
of men in front of his house on the night
in question was merely cumulative and
essentially tangential." The judge then
went on to deny Tayborn’s petition, but
granted the petitioner a certificate of
appealability as to whether the
government knowingly used perjured
testimony.

II.   ANALYSIS/4

  It is well-established that the
introduction of perjured testimony,
without more, does not rise to the level
of a constitutional violation warranting
federal habeas relief. Shore v. Warden,
942 F.2d 1117, 1122 (7th Cir. 1991).
Rather, when a defendant seeks a new
trial on the ground that the government
used perjured testimony, he "must
establish (1) that the prosecution indeed
presented perjured testimony, (2) that
the prosecution knew or should have known
of the perjury, and (3) that there is
some likelihood that the false testimony
impacted the jury’s verdict." United
States v. Thompson, 117 F.3d 1033, 1035
(7th Cir. 1997).

  With respect to Murchinson, Tayborn
argues that several inconsistencies in
his testimony rendered his testimony
perjurious and that the prosecution
should have known it was perjurious.
However, Tayborn only points to
collateral inconsistencies in
Murchinson’s testimony like: 1) whether
he heard a noise before looking down from
the porch to see the attackers; 2)
whether he gave the police the names of
Tayborn and his brothers; 3) the number
of shots fired; and 4) whether he gave a
physical description of the other men
involved.

  None of these supposed inconsistencies
go to the heart of Murchinson’s
testimony--that Tayborn committed the
crimes charged. We have emphasized, and
the district judge recognized, that mere
inconsistencies in the testimony of a
government witness fall short of
establishing that the government
knowingly used false testimony and that
"the alleged perjured testimony must bear
a direct relationship to the defendant’s
guilt or innocence." United States v.
Magana, 118 F.3d 1173, 1191 (7th Cir.
1997). Because none of Tayborn’s alleged
inconsistencies with respect to
Murchinson relate directly to the
question of the petitioner’s guilt or
innocence, his habeas petition cannot
succeed on this ground.

  The petitioner also relies on the
recantation provided in Hatfield’s
affidavit to support his claim that the
government knowingly used perjured
testimony. As mentioned previously,
Hatfield testified at trial that he saw
Tayborn in the group of men near his
house on the night in question. In his
affidavit, however, Hatfield states that
he did not personally see Tayborn on the
night in question and that he identified
Tayborn only because his brother and an
unnamed Assistant State’s Attorney told
him that Tayborn was the man who shot
him.

  Even assuming Hatfield’s testimony was
false at the trial, the falsehood is
deemed to be material only "if there is
any reasonable likelihood that the false
testimony could have affected the
judgment of the jury." United States v.
Agurs, 427 U.S. 97, 103 (1976); see also
Giglio v. United States, 405 U.S. 150,
154 (1972); Napue v. Illinois, 360 U.S.
264, 271 (1959). As the Supreme Court has
held, this standard of materiality is
equivalent to the Chapman v. California,
386 U.S. 18, 24 (1967), "harmless beyond
a reasonable doubt" standard. United
States v. Bagley, 473 U.S. 667, 679 n.9
(1985).

  As recognized by the district court,
Hatfield’s testimony was merely
cumulative to that of the state’s chief
witness, Murchinson. It was Murchinson
who provided the jury with testimony
concerning Tayborn’s motive as well as
identified Tayborn as the assailant.
Additionally, there was physical evidence
supporting Murchinson’s testimony.

  For example, Murchinson testified that
he saw Tayborn with a Tech-9 pistol, a 9
millimeter handgun. Importantly, the
bullet removed from Hatfield was a 9
millimeter and 9 millimeter cartridge
cases were removed from the front porch
after the shooting. Further, Officer John
R. Butler, an evidence technician,
verified the testimony regarding the
damage to the boarded up windows, which
was part of the dispute that led up to
the shooting.

  Thus, we are of the opinion that Tayborn
has failed to establish that there is any
reasonable likelihood that the jury would
have reached any different conclusion
without the allegedly false testimony
provided by Hatfield. For in the end,
Hatfield’s recantation does not say that
Tayborn did not shoot him, all it says is
that he did not see Tayborn on the night
he was shot.

  The decision of the district court is

AFFIRMED.


FOOTNOTES

/1 Tayborn’s aggravated battery conviction was
overturned by the Illinois Appellate Court, see
Illinois v. Tayborn, 627 N.E.2d 8 (1st Dist.
1993), but his other two convictions were
affirmed.

/2 Tayborn’s motion to expand the certificate of
appealability is denied.

/3 As mentioned before, the Illinois Appellate Court
overturned Tayborn’s aggravated battery convic-
tion.
/4 Although the government concedes that, with
respect to the issue of whether the government
knowingly used perjured testimony, there is no
state court decision to which we must defer to
under 28 U.S.C. sec. 2254(d)(1), we still defer
to the state’s determination of the facts sur-
rounding Tayborn’s actions on the night in ques-
tion. 28 U.S.C. sec. 2254(e)(1).
