Moleterno v. Nelson

Citation114 F.3d 629
Decision Date19 May 1997
Docket NumberNo. 96-1826,96-1826
PartiesJeffrey MOLETERNO, Petitioner-Appellee, v. Keith O. NELSON, Respondent-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Barry Levenstam, Jerold S. Solovy, Theodore T. Eidukas (argued), Jenner & Block, Chicago, IL, for Petitioner-Appellee.

Michael M. Glick (argued), Office of Attorney General, Chicago, IL, for Respondent-Appellant.

Before POSNER, Chief Judge, and CUDAHY and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

It is a rare case in which a district court grants a state prisoner's petition for a writ of habeas corpus under 28 U.S.C. § 2254, and it is equally rare that federal appellate courts find this relief warranted. The Administrative Office of the United States Courts reported, for example, that in the twelve-month period ending September 30, 1995, a total of 1,062 such petitions were filed in federal district courts in the Seventh Circuit. See Judicial Business of the U.S. Courts: Report of the Director 147, 159 (1995); Memorandum from the Analysis & Reports Branch, Statistics Division, Administrative Office of the U.S. Courts (April 23, 1997). Of that number, the district courts disposed of 986 petitions, granting only 14. A grant rate of about 1.5% hardly indicates a federal judiciary that routinely second-guesses the results reached in state courts. Nonetheless, considerations of finality and comity require us to pay careful attention on appeal to all cases in which the writ is issued, just as the need to respect constitutional limitations and fundamental principles of federal law counsels care in evaluating prisoner appeals.

The district court in Jeffrey Moleterno's case found that the petition presented one of those rare occasions on which the writ should issue, finding that he had been denied due process of law through inadequate jury instructions on the State's burden of disproving his affirmative defenses. We conclude, however, that under both the amended version of § 2254(d), which we have found applicable to pending cases in Lindh v. Murphy, 96 F.3d 856 (7th Cir.1996 en banc), cert. granted, --- U.S. ----, 117 S.Ct. 726, 136 L.Ed.2d 643 (1997), and the prior version of § 2254, the district court erred. We therefore reverse the judgment of that court.

I

On February 3, 1987, Moleterno fatally shot Timothy Bolger after an altercation that largely took place while both men were driving their cars. See People v. Moleterno, 199 Ill.App.3d 15, 145 Ill.Dec. 85, 556 N.E.2d 703 ("Moleterno I"), appeal denied, 133 Ill.2d 567, 149 Ill.Dec. 331, 561 N.E.2d 701 (1990). An eyewitness, Russell Marquardt, observed the two cars, noting that they appeared to be jockeying for position and attempting to cut one another off. Ultimately, while both cars were stopped in the middle of the traffic lanes, Moleterno got out of his car and began pointing at Bolger with his left hand while holding a gun behind his back with his right hand. As Moleterno shouted at Bolger, Bolger emerged from his car and took a couple of steps toward him. Moleterno then pivoted, pointed the gun at Bolger's chest, and fired. After that, Moleterno fled, but Marquardt identified him in a police line-up later that evening.

At his trial for murder, which took place in December 1987, Moleterno argued that he acted in self-defense, under what is now 720 Ill.Comp.Stat.Ann. 5/7-1 (West 1997), and he raised two forms of the partial affirmative defense of voluntary manslaughter, see 38 Ill.Rev.Stat. 9-2(a)-(b) (voluntary manslaughter based on passion resulting from provocation or based on unreasonable belief in justified use of force), repealed by P.A. 84-1450, § 2 (effective July 1, 1987) (current version at 720 Ill.Comp.Stat.Ann. 5/9-2 (West 1997)). (The new law replaced voluntary manslaughter with second degree murder and also shifted the burden of proving its mitigating states of mind to the defendant. See 720 Ill.Comp.Stat.Ann. 5/9-2(c) (West 1997). Although the new law states that it applies to homicides occurring after December 31, 1986, see People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 6, 526 N.E.2d 141, 146 (1988), and thus to Moleterno's case, neither party has presented an argument based on the retroactive nature of the revision. We therefore analyze the case, as the state courts and the district court did, as if it were clear that the pre-revision statute applies.)

At Moleterno's trial, the court gave the jury Number 7.02 of the Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) ("IPI Criminal") on the State's burden of proof on the murder charge, IPI Criminal No. 7.04 on the offense of voluntary manslaughter based on provocation, and IPI Criminal No. 7.06 on the offense of voluntary manslaughter based on an unreasonable belief in a justified use of force. Reflecting the pre-Reddick and pre-statutory revision law, both IPI Criminal Nos. 7.04 and 7.06 instructed the jury that the State had the burden of proof on the offense of voluntary manslaughter. The jury convicted Moleterno of first-degree murder, he was sentenced to 20 years' imprisonment, and on February 16, 1988, he filed a direct appeal in the state court.

On June 20, 1988, the Illinois Supreme Court decided Reddick, in which it held that under 38 Ill.Rev.Stat. 3-2(a) and (b) (now found at 720 Ill.Comp.Stat.Ann. 5/3-2(a)-(b) (West 1997)), IPI Criminal Nos. 7.02, 7.04, and 7.06, taken together, misstated the State's burden of proof on the question whether a defendant acted under an intense passion or unreasonable belief of justification, where one or more of those theories were offered as a defense to murder charges. 122 Ill.Dec. at 6, 526 N.E.2d at 146. As reflected in the Illinois Pattern Instructions, the State had the burden of proving the existence of intense passion or unreasonable belief in justification. The court held, relying on 38 Ill.Rev.Stat. 3-2(a) (defining "affirmative defense") and 38 Ill.Rev.Stat. 3-2(b) (allocating burden of proof to State on issues raised in affirmative defenses), that where either intense passion or unreasonable belief in justification was presented as a defense, the State should have had the burden of disproving the state of mind in question. Otherwise, the court concluded, under the current pattern instructions a verdict of voluntary manslaughter in a murder prosecution would be impossible: the People would not introduce evidence of unreasonable belief or heat of passion in their case in chief, and thus they would never satisfy the burden of proving either of those elements.

Moleterno filed his opening brief in the Illinois Appellate Court on September 29, 1988. There he argued only that (1) the evidence was insufficient as a matter of law to establish his guilt on the charge of murder, (2) the evidence showed that he was guilty of voluntary manslaughter at most, and (3) the trial court erred "in failing to instruct the jury, sua sponte, that the State had the burden of disproving beyond a reasonable doubt his affirmative defenses of self-defense and voluntary manslaughter, based on an unreasonable belief in the need to use deadly force." Moleterno I, 145 Ill.Dec. at 90, 556 N.E.2d at 708. On the last point, he did not cite Reddick. Instead, he relied solely on 38 Ill.Rev.Stat. secs. 3-2(a), 7-1 (use of force in defense of person), and 7-14 (defining justifiable use of force as affirmative defense), and two pre-Reddick Illinois Appellate Court decisions, People v. Bolden, 132 Ill.App.3d 1047, 87 Ill.Dec. 852, 477 N.E.2d 1380 (1985) (holding voluntary manslaughter is partial affirmative defense which must be disproved by State), and People v. Lester, 102 Ill.App.3d 761, 58 Ill.Dec. 416, 430 N.E.2d 358 (1981) (bench trial), only one of which discussed the issue of jury instructions.

The State filed its opposition brief on October 26, 1989. It cast Moleterno's argument on the jury instructions in terms of Reddick and then argued that Reddick "had nothing to do with" Moleterno's case. It also argued that (1) Moleterno was estopped from challenging the jury instructions given at trial because they were the ones submitted by his trial counsel, (2) legally, the evidence in Moleterno's case could not support a finding of voluntary manslaughter because Moleterno had acted as the aggressor, and (3) Reddick should not apply retroactively because it was based solely on a construction of Illinois statutes, citing People v. Erickson, 117 Ill.2d 271, 111 Ill.Dec. 924, 513 N.E.2d 367 (1987), for the proposition that Illinois courts are under no obligation to apply Illinois Supreme Court decisions retroactively unless they involve federal constitutional rights. Although it acknowledged that the question of Reddick 's retroactivity was then pending before the Illinois Supreme Court, in People v. Peggy Austin, 133 Ill.2d 118, 139 Ill.Dec. 819, 549 N.E.2d 331 (1989) (subsequently decided in favor of applying Reddick retroactively), the State argued that Reddick did not implicate the federal constitution, citing Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (not unconstitutional for state to place on defendant burden of proving mitigating state of mind). Moleterno responded in reply that he had not waived the issue of incorrect jury instructions since Reddick was decided nearly six months after his guilty verdict. In addition, he cited several decisions of the Illinois Appellate Court that had already applied Reddick retroactively, including People v. Brooks, 175 Ill.App.3d 136, 124 Ill.Dec. 751, 756, 529 N.E.2d 732, 737 (1988), and he quoted Brooks ' statement that Reddick was "incontestably of constitutional dimension."

The Appellate Court found it unnecessary to decide whether the Reddick issue was properly before it, or whether the Reddick decision should be applied retroactively. It concluded that even if the trial court's instructions were wrong, the error was harmless:

[t]he trial court...

To continue reading

Request your trial
40 cases
  • Welch v. Burke
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 26 Abril 1999
    ...IV" (November 10, 1993). 4. The substantive changes made by the AEDPA did not change the procedural default rules. Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir.1997); Breard v. Netherland, 949 F.Supp. 1255, 1262-63 (E.D.Va.1996), aff'd, 134 F.3d 615 (4th Cir.), cert. denied sub nom Br......
  • U.S. ex rel. Aleman v. Sternes
    • United States
    • U.S. District Court — Northern District of Illinois
    • 30 Mayo 2002
    ...occurs when the petitioner fails to raise fairly and properly an issue on direct appeal or post-conviction review. Moleterno v. Nelson, 114 F.3d 629, 633-634 (7th Cir.1997). The state concedes Aleman's claims were properly raised and presented to the Illinois courts on direct appeal. Finall......
  • Canaan v. Davis, Cause No. IP 97-1847-C H/K (S.D. Ind. 1/10/2003)
    • United States
    • U.S. District Court — Southern District of Indiana
    • 10 Enero 2003
    ...Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001), quoting Wilson v. Briley, 243 F.3d 325, 327 (7th Cir. 2001); accord, Moleterno v. Nelson, 114 F.3d 629, 634 (7th Cir. 1997); McGowan v. Miller, 109 F.3d 1168, 1172 (7th Cir. 1997). "If none of the four factors is present," the Seventh Circuit h......
  • Thirkield v. Pitcher
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 27 Marzo 2002
    ...6. The substantive changes in 28 U.S.C. § 2254(d) made by the AEDPA did not change the procedural default rules. Moleterno v. Nelson, 114 F.3d 629, 633-34 (7th Cir.1997); see Breard v. Netherland, 949 F.Supp. 1255, 1262-63 (E.D.Va.1996) (concluding that the AEDPA's stronger finality rules o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT