US EX REL. KING v. Peters, 91 C 3712.

• Decision Date: 05 November 1992
• Docket Number: No. 91 C 3712.,91 C 3712.
• Citation: 796 F. Supp. 1110
• Parties: UNITED STATES of America ex. rel. Kevin KING, Petitioner, v. Howard PETERS, Director of the Illinois Department of Corrections, Respondent.
• Court: U.S. District Court — Northern District of Illinois

796 F. Supp. 1110

UNITED STATES of America ex. rel. Kevin KING, Petitioner, v. Howard PETERS, Director of the Illinois Department of Corrections, Respondent.

No. 91 C 3712.

United States District Court, N.D. Illinois, E.D.

June 5, 1992.

Opinion Vacated November 5, 1992.^*

Kelvin King, pro se.

Susan G. Feibus, Louis B. Garippo, Kane, Obbish, Propes and Garippo, Chicago, Ill., for petitioner.

Steven Joseph Zick, Margaret Mary O'Connell, Illinois Attys. Gen., Chicago, Ill., for respondent.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

Kevin King is a convicted murdered who filed a pro se petition in this court for habeas corpus relief pursuant to 28 U.S.C. § 2254. Mr. King was convicted on June 17, 1985 of the murder of Arthur Warren and sentenced to thirty years in prison. Respondent has moved to dismiss on the grounds of exhaustion and procedural default. As outlined and explained below, the court requests that the parties submit additional briefing on the issue of whether Mr. King's voluntary dismissal of his Illinois Post-Conviction petition constitutes a procedural default.

Background

This review of the facts is taken verbatim from the opinion of the Illinois Appellate Court which affirmed the conviction. The trial court records have been lost. See Respondent's Memorandum of Law in Support of Denial of the Writ at 3; Petitioner's Supplemental Memorandum at 2. Factual findings made by a state appellate court are accorded the same statutory presumption of correctness as that accorded state trial courts in a habeas proceeding. See Dooley v. Duckworth, 832 F.2d 445, 448 (7th Cir.1987).

Celeste Warren, the deceased's estranged wife, testified for the state that on May 4, 1984, at 1:45 p.m., she saw the deceased when he stopped at her apartment. He was seeking treatment for a swollen eye which he received as a result of a fight with defendant. The deceased left, and Celeste returned to work at a nearby pharmacy. One hour later, defendant entered the pharmacy, stating that, "I just kicked your husband's m____ f____ ass and I should have killed him." Celeste went to the deceased's apartment, where she found paramedics entering the building. The deceased appeared comatose and had blood on his face. He died later at the hospital. The deceased had been recovering from a collapsed lung.

Iaggars Banga, a paramedic, testified that he treated the deceased at his apartment. The deceased was in acute respiratory distress. His condition deteriorated rapidly, with no blood pressure and only a slow and faint pulse. After 20 minutes, he was taken to the hospital.

Dr. Robin E. Graham testified for the State that on May 4, 1984 he treated the deceased at the hospital. In an unsuccessful attempt at resuscitation, surgery was performed to allow the deceased's heart to be manipulated manually. Dr. Graham observed that the deceased's abdominal cavity was filled with blood and his spleen was ruptured.

Dr. Eupil Choi testified for the State that on May 5, 1984 he performed an autopsy on the deceased. The cause of death was a traumatic rupture of the spleen. The deceased had a blunt trauma laceration on the chin, a small laceration on the lower lip, and three hemorrhages on the head. He had 11 fractured ribs, evidence of bleeding in the stomach area, and multiple lacerations on the spleen. An enlarged liver indicated cirrhosis, a condition which can cause the spleen to become enlarged. The size of the spleen, however, was within the normal range. Dr. Choi opined that the rib and head injuries could have been caused by kicking and punching.

Officer Dorothy Sopanick testified for the State that she and her partner investigated the incident. After defendant was advised of his Miranda rights, he stated that he "had an argument with Warren and hit him with his hands and feet." Officer Daniel Centracchio testified that he interviewed defendant on the following day. After being given his Miranda rights, defendant stated, "he argued with Warren, he hit him, he punched him, and when he fell down, kicked him."

Ernest Walker, a friend of the defendant and the deceased, testified for the defendant that on May 4, he accompanied Theresa Anderson and defendant to the deceased's apartment. Two other men, William Scott and "Chico," were also present. While Anderson and defendant waited, Walker and the deceased injected cocaine. The deceased and defendant began arguing and defendant slapped Warren, knocking him down. Walker testified that the deceased "lunged up" at defendant with a knife. Defendant hit the deceased several times. As Walker tried to hold defendant back, defendant threw him aside, and defendant punched and kicked the deceased several more times as the deceased was on the floor in a fetal position. The deceased never kicked or punched defendant. Walker later met defendant, who stated that he was going to tell Celeste Warren what had happened.

* * * * * *

Dr. Michael Schaffer, a toxicologist, testified for defendant that urine and blood tests revealed that the deceased had used cocaine prior to his death. Dr. Schaffer could not determine how soon before his death the deceased used the drug.

Gail Feiger, a law student, testified for the State in rebuttal that she was present on April 23, 1985 when Walker was interviewed by two assistant State's Attorneys. Walker did not mention that the deceased had a knife until he agreed that he had told defendant's attorney about the knife.

Procedural History

King appealed his conviction to the Illinois Appellate Court. On appeal, King argued that he received ineffective assistance of counsel at trial in violation of the Sixth Amendment. He also argued that the state did not prove him guilty of murder beyond a reasonable doubt. The Appellate Court ruled against him, upholding the conviction. King did not make a timely appeal to the Illinois Supreme Court. In his petition for habeas corpus, King explains that the failure was because his appellate lawyer did not inform him of the Appellate Court's decision until several months after the decision was made. After the Illinois Supreme Court's decision in People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988), King made a motion to the Illinois Supreme Court for leave to file a late petition for leave to appeal, but the motion was denied.

In his pro se petition, Mr. King raised three grounds for relief. First, raising an argument that he did not make in his direct appeal, he contended that his due process rights were violated because the jury that convicted him was not properly instructed regarding the then-existing Illinois law on murder and manslaughter. King argues that the instructions deprived him of a possible affirmative defense because they failed to instruct the jury that it may not convict him of murder if it found that King had acted under an unreasonable belief that he was justified in using force. Under Illinois law in force at the time, persons who kill another with an unreasonable belief that force was justified as self-defense have committed voluntary manslaughter rather than murder. See Falconer v. Lane, 905 F.2d 1129 (7th Cir.1990) (similar jury instructions on murder violated due process because they were confusing and could permit a jury to completely ignore whether the defendant had a mitigating mental state which would reduce the crime from murder to voluntary manslaughter); cf. People v. Reddick, 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141 (1988) (similar jury instructions on murder offend Illinois statutory law). Second, King argued that he received ineffective assistance of counsel in violation of the Sixth Amendment. Third, he argued that the State failed to prove him guilty of murder beyond a reasonable doubt.

The court appointed counsel for King on January 9, 1992. In King's Supplemental Memorandum in Support of Petition for Writ of Habeas Corpus, King's appointed counsel represent that King has decided to pursue only his "Reddick/Falconer claim." See Supp.Mem. at 2. Although his claim was referred to as a "Reddick/Falconer claim," it is actually just a Falconer claim. While both Reddick and Falconer ruled that Illinois' pattern jury instructions on murder were erroneous, only the latter opinion was based on federal law. The Seventh Circuit has explained that Falconer held that Illinois pattern jury instructions on murder violated the due process clause, whereas Reddick was grounded exclusively on state law. See Taylor v. Gilmore, 954 F.2d 441 (7th Cir. 1992), petition for cert. filed (U.S. Apr. 27, 1992) (No. 91-1738). As federal habeas corpus relief can not be granted based on a violation of state law, Reddick can not be the basis for relief. Id. Falconer, however, could be the basis for relief. Id.

At the time he filed his habeas corpus petition, King also had pending in Illinois state court a post-conviction proceeding brought pursuant to Ill.Rev.Stat. ch. 38, ¶ 122-1 (1989). That petition raised a Reddick argument and also asserted that the jury instructions violated due process (without citing Falconer). The petition, however, has been voluntarily dismissed by the petitioner with prejudice.

Procedural Default and Exhaustion

Before he dismissed with prejudice his post-conviction proceeding in Illinois state court, the state argued that King had failed to exhaust his state court remedies with respect to his jury instruction argument because the identical claim was pending in state court. At the same time, the state argued that King had procedurally defaulted on the jury instruction argument by failing to have raised it on direct appeal.

Because the post-conviction proceeding was voluntarily dismissed with prejudice, King can not raise that argument again in Illinois post-conviction proceedings. See Ill.Rev.Stat. ch. 38, ¶ 122-3; People v. Free, 122 Ill.2d 367, 119 Ill.Dec. 325, 522 N.E.2d 1184 (1988). Therefore, King presently has no unexhausted state remedies available to him....