state law. The situation referred to in Hicks and West, however, is one where the state's highest court has not yet ruled on the issue and any ruling "remains a matter of conjecture." That is not the present situation. Subsequent to denying leave to appeal Vanskike I, the Illinois Supreme Court reached the exact same issue in Haron. Conjecture and speculation is not necessary; it is clear how the Illinois Supreme Court would rule. Haron makes abundantly clear that Vanskike I is not the law of Illinois. The rule of Hicks and West does not apply to the present case.
In Jones, it was necessary to distinguish Cole, 817 F.2d at 423-24, which held that failure of a state court to instruct the jury on a necessary element of a crime is a constitutional claim cognizable in federal habeas corpus proceedings.
Jones distinguished Cole on the ground that the relevant state ruling in Cole was not "reasoned." See Jones, 846 F.2d at 461. In Cole, a 1978 Wisconsin Supreme Court opinion had held that great bodily harm was a necessary element of a mayhem charge. When Cole was tried in 1981, however, a pattern jury instruction not containing that element was used without objection from Cole. On direct appeal, Cole cited the 1978 opinion, but the Wisconsin Court of Appeals, in an unpublished opinion, denied relief, apparently on the ground that the instruction had not been objected to. The Wisconsin Supreme Court denied review. In federal court, the state declined to press the waiver argument available to it. The Seventh Circuit held that the 1978 opinion was the source to look to for the state law definition of the elements applicable at Cole's trial because the opinion on Cole's direct appeal had not addressed the merits of that issue. Following state law as defined by the state courts, the Seventh Circuit held the jury had not been instructed on all necessary elements of the crime of mayhem and that Cole was therefore entitled to a grant of the writ.
In the present case, Vanskike I reached the merits of the elements of the crime of armed violence. However, as previously stated, it is not a binding interpretation of state law as recognized by the state courts. Absent special circumstances, post- Haron decisions in Vanskike's proceedings would be definitive statements of the proper elements of armed violence to apply in the present proceeding. Vanskike II, a ruling expressly stating that it was without prejudice to further proceedings, does not reach the merits of that issue. Vanskike III also does not reach the merits of the issue. Vanskike III ruled that Vanskike's claim could not state a constitutional claim and therefore there was no available procedure for Vanskike and it was unnecessary to determine the appropriate elements of his crime. If that court had reached the elements issue, this court would have been required to follow it.
The court, however, did not reach that issue and this court is not bound by Vanskike III's analysis of what states a constitutional claim. See Jackson, 443 U.S. at 307. Consistent with Cole, and Jones17 as well, this court applies the definitions of Vanskike's crimes that the Illinois courts would have found binding.
Vanskike's jury was instructed that he could be found guilty of a crime that does not exist under Illinois law. That is a fundamental error cognizable in a federal habeas corpus proceeding. The state's argument that Vanskike's conviction could have been upheld under Illinois law implies a harmless error argument. The state, however, does not expressly make such an argument and also makes no specific citations to the trial transcript as to the evidence on great bodily harm. Moreover, there is no argument that this is the type of claim to which harmless error may be applied, an issue itself that might not have a clear answer. See Cole v. Arkansas, 333 U.S. 196, 201-02, 92 L. Ed. 644, 68 S. Ct. 514 (1948); Rose v. Clark, 478 U.S. 570, 578, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986); United States v. Kerley, 838 F.2d 932, 937-39 (7th Cir. 1988); Cole v. Young, 817 F.2d at 427; Willard v. People, 812 F.2d 461, 464 (9th Cir. 1987). The court, therefore, does not consider harmless error analysis.
The writ will be granted and Vanskike's conviction for armed violence will be vacated. The state may, within sixty days, seek to resentence him on aggravated battery or retry him on armed violence to the extent either of those possibilities is an appropriate step to take consistent with state law and federal due process and double jeopardy principles.
IT IS THEREFORE ORDERED that:
(1) Respondents' motion to dismiss is denied.
(2) The Clerk of the Court is directed to enter judgment in favor of petitioner and against respondents granting the petition for a writ of habeas corpus with respect to the conviction of armed violence. Petitioner's conviction for armed violence is vacated without prejudice to respondents seeking, within 60 days, to reinstate and resentence petitioner on the conviction of aggravated battery or to retry him for the offense of armed violence.