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March 7, 1989


Brian Barnett Duff, United States District Judge.

The opinion of the court was delivered by: DUFF


 Petitioner Phyllis Falconer seeks a writ of habeas corpus from this court on the grounds that her murder conviction was infected by fundamentally unfair jury instructions regarding the proper allocation of the burden of proof on the lesser included offense of voluntary manslaughter. Her attorneys have filed a well-reasoned and well-written brief in support of her petition. Unfortunately, they have presented the brief, as well as the petition, to the wrong court. For this reason alone, the petition for habeas corpus must be dismissed.


 On May 26, 1986, petitioner stabbed her husband to death. She was subsequently charged with and tried for murder. As a defense, she produced evidence indicating that her husband had mistreated her for a long period of time prior to the fatal stabbing, and the jury was instructed on the offenses of murder and manslaughter, as well as on the justification of self-defense. The jury found her guilty of murder.

 On direct appeal, petitioner argued that "(1) she was not proved guilty beyond a reasonable doubt because the evidence established self-defense; (2) the murder conviction should be reduced to voluntary manslaughter; (3) the prosecutor made improper closing arguments; and (4) she was denied effective assistance of counsel." People v. Falconer, 168 Ill. App. 3d 618, 522 N.E.2d 903, 119 Ill. Dec. 241 (1988). The appellate court affirmed the conviction. Id.

 Petitioner subsequently filed a petition for leave to appeal with the Illinois Supreme Court, raising the same issues it had asserted on direct appeal. Before the Court ruled on her case, however, it issued its opinion in People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1 (1988). In that case, the Court held that the same pattern jury instructions on murder and voluntary manslaughter that had been given in petitioner's case were improper when given together:

The voluntary manslaughter instructions indicate that to obtain a voluntary manslaughter conviction the People must prove the existence of one of the alternative mitigating mental conditions which the people contend did not exist. By contrast, the murder instruction makes no mention of the mitigating mental conditions. These instructions essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter. The reason is that even if a mental state is proved, it will have been proved by the defendant, not the People.

 Id. at 194-95. The Court then held that, although one of the appellants in that case had not objected to the instructions in the trial court, reversal of his conviction was appropriate because the instructions constituted "grave error." Id. at 198-99.

 After learning of this ruling, petitioner filed a supplement to her petition for leave to appeal with the Illinois Supreme Court, arguing that the Reddick opinion established both that the trial court had erred in giving the murder and manslaughter instructions during petitioner's trial and that petitioner's failure to object to the instructions at trial did not bar her from raising the issue on appeal. The Supreme Court denied the petition for leave to appeal without an opinion. Petitioner then brought a habeas petition in this court, arguing as the sole ground for relief that the combination of the murder and manslaughter instructions given at her trial violated her Fourteenth Amendment right to due process of law.

 Respondents have moved to dismiss on three grounds. They first argue that petitioner has failed to exhaust her state court remedies by bringing this petition before seeking relief in Illinois courts under the Illinois Post-Conviction Hearing Act, ch. 38, §§ 122-1 et seq. They then argue that petitioner waived her objection to the jury instructions by not objecting to them during her trial. Finally, they argue that petitioner is procedurally barred from bringing a habeas petition in federal court because her supplemental brief to the Illinois Supreme Court did not frame the objections to the instructions as violations of federal constitutional rights. Because this court finds that the petition must be dismissed on exhaustion grounds, it need not and will not address the latter two arguments.


 The exhaustion requirement in federal habeas cases has judicial as well as statutory underpinnings. First enunciated in Ex Parte Royall, 117 U.S. 241, 29 L. Ed. 868, 6 S. Ct. 734 (1886), Congress codified the doctrine in 1948 as part of the federal habeas statute, 28 U.S.C. § 2254, and the Supreme Court has further refined it since, see, e.g., Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982).

 The statute is phrased in rather strict terms, generally prohibiting federal courts from issuing writs of habeas corpus unless and until "the applicant has exhausted the remedies available in the courts of the State," 28 U.S.C. § 2254(b), and further providing that an applicant shall not be deemed to have done so "if he has the right under the law of the State to raise, by any available procedure, the question presented." § 28 U.S.C. § 2254(c). The Supreme Court, however, has held that once a petitioner has "fairly presented" an issue to the state courts on direct review, the petitioner need not seek recourse through state collateral proceedings in order to satisfy the exhaustion requirement, even if such collateral avenues are available. Smith v. Digmon, 434 U.S. 332, 54 L. Ed. 2d 582, 98 S. Ct. 597 (1978); Brown v. Allen, 344 U.S. 443, 97 L. Ed. 469, 73 S. Ct. 397 ...

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