Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

UNITED STATES EX REL. VANSKIKE v. O'LEARY

June 16, 1989

UNITED STATES OF AMERICA ex rel., DANIEL VANSKIKE, Petitioner,
v.
MICHAEL O'LEARY, MICHAEL P. LANE, and NEIL F. HARTIGAN, Respondents


William T. Hart, United States District Judge.


The opinion of the court was delivered by: HART

WILLIAM T. HART, UNITED STATES DISTRICT JUDGE.

 Daniel Vanskike has petitioned this court for a writ of habeas corpus claiming that the Circuit Court of Randolph County, Illinois convicted him of a crime that does not exist under the laws of Illinois. The state has moved to dismiss the petition arguing (1) Vanskike has not exhausted his state court remedies, (2) his claim is not a constitutional claim cognizable in a federal habeas corpus petition, and (3) Vanskike was convicted of a crime existing under the laws of Illinois. If correct, any of these grounds would be a sufficient basis for denying relief. Although exhaustion should usually be resolved before considering the merits of a habeas petition and although the second argument might also logically -- or procedurally -- precede the third argument, the first two arguments can be better understood if the third argument -- the question of whether Vanskike was convicted of armed violence as defined by Illinois statute -- is resolved.

 I. Elements of Armed Violence

 On April 20, 1978, Vanskike, then incarcerated at Menard Correctional Center, stabbed another inmate in the chest with a knife made of sharpened wire. On July 12, 1978, a three-count amended information was filed charging the following offenses.

 
COUNT I
 
AGGRAVATED BATTERY in that the said defendant, in committing a Battery, in violation of Illinois Revised Statutes, Chapter 38, Section 12-3, without legal justification and while armed with a deadly weapon, a homemade knife, intentionally caused bodily harm to Donald Tharp, in that he stabbed Donald Tharp in the chest in violation of Illinois Revised Statutes, 1977, ch. 38, sec. 12-4(b)(1).
 
COUNT II
 
ARMED VIOLENCE in that the said defendant, while armed with a dangerous weapon, a homemade knife, performed acts prohibited by Illinois Revised Statutes, Chapter 38, Section 12-4(b)(1) in that he intentionally and without legal justification stabbed Donald Tharp in the chest, thereby causing bodily harm to Donald Tharp in violation of Illinois Revised Statutes, 1977, ch. 38, sec. 33 A-2.
 
COUNT III
 
ATTEMPT (MURDER) in that the said defendant, with the intent to commit the offense of Murder, in violation of Illinois Revised Statutes, Chapter 38, Section 9-1(a)(2), performed a substantial step toward the commission of that offense in that he without lawful justification stabbed Donald Tharp in the chest with a homemade knife knowing such act created a strong probability of death to Donald Tharp in violation of Illinois Revised Statutes, 1977, ch. 38, sec. 8-4(a).

 R. I 11C-12C. *fn1"

 At the time the relevant Illinois statutes provided:

 Ill. Rev. Stat. (1977), ch. 38, para. 12-3(a)(1) - Battery

 
(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual. . . .

 Ill. Rev. Stat. (1977), ch. 38, para. 12-4(a) - Aggravated Battery

 
(a) A person, who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.

 Ill. Rev. Stat. (1977), ch. 38, para. 12-4(b)(1) - Aggravated Battery2

 
(b) A person who, in committing a battery . . .:
 
(1) Uses a deadly weapon . . . commits aggravated battery.

 Ill. Rev. Stat. (1978), ch. 38, para. 33A-2 - Armed Violence3

 
A person commits armed violence when, while armed with a dangerous weapon, he commits any felony ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.