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March 5, 1992

HOWARD PETERS, Director, Department of Corrections, Respondent.

The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Presently before this court is David Gladney's petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Gladney's sole assertion is that he was denied due process of law because the instructions given to the jury at trial allowed the jury to return a verdict of murder despite findings that should have resulted in a verdict of voluntary manslaughter. For the reasons stated below, the petition for writ of habeas corpus is granted.

 I. Background

 Following a jury trial in the Circuit Court of Cook County, Gladney was convicted of murder, Ill. Rev. Stat. ch. 38, P9-1(a), armed violence, Ill. Rev. Stat. ch. 38, P33A-2, and aggravated battery, Ill. Rev. Stat. ch. 38, P12-4(a). The following facts supporting these convictions are taken from the opinion of the appellate court on direct review, and are presumed accurate. 28 U.S.C. § 2254(d) (1988).

 On the evening of December 7, 1983, Marvin Gladney (defendant's brother), two 17-year-old girls, Tracy Jackson and Generia Major, two other young men, Angel Velez and John Green, and the defendant drove together to a liquor store. Tracy gave Angel money for liquor and cigarettes, but he was unable to make the purchase and gave the money to the defendant. Defendant returned to the car without the liquor but said he no longer had the 85 cents contributed by Tracy. An argument ensued over the money. Marvin drove the group about 4 blocks, parked, ordered the three men (defendant, Angel and John) out of the station wagon, and proceeded to search them. He recovered the 85 cents from his brother, the defendant. Everyone except the defendant returned to the car, with Marvin again in the driver's seat.

 Defendant then opened the driver's door. His brother got out, pushed defendant to the ground, and returned to the car which was only about two steps away. Defendant fired six shots into the car, shattering all three windows on the driver's side of the car. Tracy was shot twice in the wrist and hospitalized for 3 weeks. Generia was killed instantly from a shot to the head.

 Defendant was first interrogated by Detective Richter of the Chicago Police Department shortly after midnight on December 8, 1983. At that time he claimed to have been in the car at the time the shooting occurred. After talking to the other witnesses, Detective Ricter returned to defendant and gave him his Miranda rights. Defendant subsequently confessed to the shooting, contending that he only intended to frighten his brother.

 The trial court merged Gladney's aggravated battery conviction with the murder conviction, and sentenced him to concurrent terms of twenty-five years for murder and twenty years for armed violence.

 On direct appeal, Gladney argued that (1) he was denied his constitutional right to a jury drawn from a fair cross-section of the community; (2) the prosecutor committed prejudicial error during the closing rebuttal argument; (3) the trial judge improperly refused to instruct the jury on involuntary manslaughter; and (4) the voir dire examination was inadequate under the guidelines of People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062, 83 Ill. Dec. 128 (1984). The appellate court rejected Gladney's arguments and affirmed. People v. Gladney, 157 Ill. App. 3d 1159, 523 N.E.2d 732, 119 Ill. Dec. 976 (1st Dist. 1987). The Illinois Supreme Court subsequently denied Gladney's petition for leave to appeal the appellate court's decision. People v. Gladney, 117 Ill. 2d 548, 517 N.E.2d 1091, 115 Ill. Dec. 405 (1987).

 Gladney's current claim, i.e., the impropriety of the jury instructions, was raised initially in his petition for post-conviction relief. On October 30, 1990, however, the Circuit Court of Cook County dismissed Gladney's petition without an evidentiary hearing. That very day, Gladney filed a notice of appeal to the Appellate Court of Illinois, First District, Fourth Division. However, upon Gladney's own motion, the appeal was voluntarily dismissed. Thus, Gladney appears before this court seeking a writ of habeas corpus on the ground that the jury instructions given at trial violated his right to due process of law.

 II. Jury Instructions

 At the time of Gladney's conviction, murder was defined as the killing of an individual with either the intent to kill or do great bodily harm, or knowledge that the acts would cause, or create a strong probability of, death or great bodily harm. Ill. Rev. Stat. ch. 38, P9-1 (1983). The crime of voluntary manslaughter included the elements of murder as set forth in P9-1, coupled with a mitigating mental state--that the defendant acted either under a sudden and intense passion arising from serious provocation, or under an unreasonable, but honest, belief that deadly force was justified to prevent his imminent death or great bodily harm. Id. P9-2. *fn1" Finding that Gladney was entitled to instructions on both murder and ...

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