murder to voluntary manslaughter, then to sustain the murder conviction, the People must prove beyond a reasonable doubt that those defenses are meritless." Reddick, 123 Ill. 2d at 197, 526 N.E.2d at 145. Concluding that the jury instructions used in Reddick's trial--Illinois Pattern Jury Instructions Nos. 7.02, 7.04 & 7.06--"essentially assure that, if the jury follows them, the jury cannot possibly convict a defendant of voluntary manslaughter," the court invalidated the instructions under the Illinois Criminal Code of 1961. Id.
Two years later, in an effort to "effectuate the holding of Reddick," the Seventh Circuit held that the jury instructions at issue likewise run afoul of the due process clause of the United States Constitution. Falconer v. Lane, 905 F.2d 1129, 1136 (7th Cir. 1990). Citing the due process jurisprudence discussed in Cupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L. Ed. 2d 368 (1973), and United States ex rel. Reed v. Lane, 759 F.2d 618 (1985), cert. denied, 475 U.S. 1048, 106 S. Ct. 1268, 89 L. Ed. 2d 577 (1986), the court in Falconer found the jury instructions confusing when read together as a whole:
The hardship for the petitioner in this case is that even though the judge properly decided that the jury should consider a verdict of voluntary manslaughter, the jury may have been left with the false impression that it could convict the petitioner of murder even if she possessed one of the mitigating states of mind described in the voluntary manslaughter instruction. No matter which side carried the burden of proof on any particular element or defense, there can be no question that a murder verdict would have been improper if the jury had found one of the mitigating mental states. The murder instruction, in other words, read as though voluntary manslaughter did not exist as a crime.
Falconer, 905 F.2d at 1136. Accordingly, it is clear that this claim, initially addressed by the Illinois Supreme Court in Reddick under state law, is now cognizable in federal habeas corpus proceedings. See Taylor v. Gilmore, 954 F.2d 441, slip op. at 16-17 (7th Cir. 1992); United States ex rel. Fleming v. Huch, 924 F.2d 679, 682 (7th Cir. 1991); Rose v. Lane, 910 F.2d 400, 402 (7th Cir.), cert. denied, 111 S. Ct. 515, 112 L. Ed. 2d 526 (1990).
The State, however, argues that although the jury instructions used in Gladney's trial were constitutionally inadequate, Gladney nonetheless is not entitled to a writ of habeas corpus. Specifically, the State contends that (1) Gladney has procedurally defaulted his Falconer claim, (2) the Falconer decision should not be applied retroactively to Gladney's conviction, and (3) the erroneous jury instructions were harmless beyond a reasonable doubt. We address each argument in turn.
A. Procedural Default
Waiver of claims via the procedural default doctrine may occur at several different stages throughout the totality of the state proceedings. First, in states that maintain a contemporaneous objection rule--such as Illinois--failure to object at trial to the disputed jury instructions will ordinarily prevent federal habeas review. See United States v. Warner, 855 F.2d 372, 374 (7th Cir. 1988). Likewise, a petitioner generally forfeits the right to raise an issue he failed to raise on direct appeal. Farrell v. Lane, 939 F.2d 409, 411 (7th Cir.), cert. denied, 112 S. Ct. 387, 116 L. Ed. 2d 337 (1991); United States ex rel. Simmons v. Gramley, 915 F.2d 1128, 1132 (7th Cir. 1990). Finally, a claim is normally deemed waived for purposes of federal habeas review if the petitioner either neglects to raise the claim in a post-conviction petition or fails to appeal the denial of his post-conviction petition. Farrell, 939 F.2d at 411; Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990).
There is no dispute that Gladney did not object to the jury instructions at trial, nor did he raise the issue on direct appeal. However, as a threshold inquiry, if the Illinois courts would not preclude petitioner's claim under the above mentioned state-procedural rules, it may be reviewed in a federal habeas proceeding. Falconer, 905 F.2d at 1133 (citing Wainwright v. Sykes, 433 U.S. 72, 85-86, 97 S. Ct. 2497, 2505-06, 53 L. Ed. 2d 594 (1977)). Anticipating the dilemma posed by the procedural default doctrine, the Reddick court explicitly stated: "The instant cases involve grave error . . . . A reviewing court need not ignore grave errors of law which the parties on appeal either overlook or decline to address, and (under Illinois Supreme Court Rule 451(c), the "interest of justice" exception] we shall not ignore these grave errors in these causes." Reddick, 123 Ill. 2d at 198, 526 N.E.2d at 147. As such, the Reddick court reviewed defendants' claims despite the fact that they did not object to the jury instructions at trial or raise the issue in a post-trial motion. Id. Further, in People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674, 677, 149 Ill. Dec. 304 (1990), the Illinois Supreme Court examined the present question in the context of a post-conviction proceeding notwithstanding the fact that the claim was not raised on direct appeal. In light of the Illinois Supreme Court's application of Rule 451(c) in Reddick and Flowers, Gladney's current claim is not barred by his failure to make a contemporaneous objection nor by his failure raise the issue on direct appeal. See Falconer, 905 F.2d at 1133-34.
After the court's decision in Reddick, Gladney filed a post-conviction petition in state court asserting the impropriety of the jury instructions.
Upon denial of that petition, Gladney promptly filed a notice of appeal. However, he failed to pursue the appeal, moving for, and receiving, a voluntary dismissal. As such, the State contends that Gladney's claim should not be reviewed in a federal habeas proceeding. To be sure, neither Reddick nor any other case before the Illinois Supreme Court addressing the jury instructions issue involved a circumstance in which a defendant pursued post-conviction relief after failing to appeal the denial of his state post-conviction petition. Consequently, we cannot conclude with any degree of certainty that the Illinois Courts would address the merits of Gladney's claim despite his failure to pursue his appeal.
However, the default arising from Gladney's failure to pursue his appeal nevertheless must be excused under the "cause and prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977). Gladney withdrew his appeal in the face of People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674, 149 Ill. Dec. 304 (1990), which held that Reddick would not be applied retroactively to cases on post-conviction review. When an appeal to a state court would be futile due to adverse precedent, federal courts will review the claim despite the default. See, e.g., Lampkins v. Gagnon, 710 F.2d 374, 375 (7th Cir. 1983), cert. denied, 464 U.S. 1050, 104 S. Ct. 729, 79 L. Ed. 2d 189 (1984). Accordingly, this court is compelled to review Gladney's current claim despite the voluntary dismissal in the appellate court.
B. Retroactivity of Falconer
At the time that Gladney filed the instant petition, the issue of whether Falconer applied retroactively was unresolved, evoking polarized opinions in the district courts. Compare United States ex rel. Taylor v. Gilmore, 770 F. Supp. 445, 448 (C.D. Ill. 1991) (Falconer announces a new rule, thereby prohibiting retroactive application) with United States ex rel. Flowers v. Illinois Dep't of Corrections, 767 F. Supp. 880, 894 (N.D. Ill. 1991) (Falconer did not announce a new rule and thus applies retroactively). This question, however, has since been resolved. The Seventh Circuit in Taylor v. Gilmore, 770 F. Supp. 445, slip op. at 23 (7th Cir. 1992), a case challenging jury instructions identical to those presently at issue, held that "Falconer is not a new rule, and hence . . . [the petitioner] is entitled to its retroactive application."
In Taylor, the Seventh Circuit began its analysis with the criteria for determining whether criminal decisions should be applied retroactively. In general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060, 1075, 103 L. Ed. 2d 334 (1989). The question of whether a case announces a "new rule" under Teague involves an inquiry that can be described, at best, as insidiously labyrinthine. The Court in Teague defined a new rule as one that "breaks new ground or imposes a new obligation on the States or the Federal Government . . . [or] was not dictated by precedent existing at the time the defendant's conviction became final." Id. at 301, 109 S. Ct. at 1070 (emphasis in original). In subsequent cases, the Supreme Court has endeavored to refine its definition. See Butler v. McKellar, 494 U.S. 407, 414, 110 S. Ct. 1212, 1217, 108 L. Ed. 2d 347 (1990) (A decision announces a new rule if it is contrary to prior "reasonable, good-faith interpretations of existing precedents" made by lower federal courts or state courts, or if its outcome was "susceptible to debate among reasonable minds."); Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822, 2828-31, 111 L. Ed. 2d 193 (1990) (same). Unfortunately, these alternate formulations of the Teague definition do not always point in the same direction. See United States ex rel. Free v. Peters, 778 F. Supp. 431, 441-42 (N.D. III. 1991). In an attempt to clarify the analysis "in distinguishing 'old' from 'new' rules in murky cases," the Seventh Circuit in Taylor adopted the following inquiry:
First, we determine whether the case clearly falls in one category or another--if it overrules or significantly departs from precedent, or decides a question previously reserved, it is a new rule, while if it applies a prior decision almost directly on point to a closely analogous set of facts, it is not. Second, when the question is a close one, we will look to (1) whether the case at issue departs from previous rulings by lower courts or state courts, and (2) the level of generality of prior precedent in light of the factual context in which that precedent arose.
Taylor, slip op. at 12.
Notwithstanding United States ex rel. Peery v. Sielaff, 615 F.2d 402 (7th Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 794 (1980), and United States ex rel. Bacon v. De Robertis, 728 F.2d 874 (7th Cir.), cert. denied, 469 U.S. 840, 105 S. Ct. 143, 83 L. Ed. 2d 82 (1984), the Taylor court concluded that "Falconer is not the type of case that departed from precedent and hence obviously announced a new rule," and thus proceeded to apply the two-pronged analysis set forth above for "difficult" new rule cases. Id., slip op. at 18. Respecting the first inquiry--whether lower courts or state courts had previously disagreed with the ruling in Falconer--the court found no indication of a pre-Falconer difference of opinion. Id., slip op. at 19. Thus, the court advanced to consider the generality of the case law underlying Falconer. Although noting that none of the cases cited in Falconer, including Cupp v. Naughten, 414 U.S. 141, 146, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973), dictated the result of the case, the court nevertheless concluded that Falconer was dictated by specific precedent. While not cited by the court in Falconer, the Taylor court considered the principle laid out in Connecticut v. Johnson, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983), "indistinguishable from that applied in Falconer." Taylor, slip op. at 22-23. Accordingly, the court applied Falconer retroactively to grant Taylor's petition for writ of habeas corpus.
In light of the recent holding in Taylor, this court will apply the principle laid out in Falconer to the present case despite the fact that Gladney's conviction became final prior to the Seventh Circuit's decision.
C. Harmless Error
As a final barrier to habeas relief, the State contends that the erroneous jury instructions at Gladney's trial were harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 23-24, 87 S. Ct. 824, 827-28, 17 L. Ed. 2d 705 (1967). As an initial matter, it is far from settled that the harmless error doctrine applies to this particular constitutional violation. Indeed, the Seventh Circuit has repeatedly stated "the constitutional errors in the Illinois murder/manslaughter pattern instructions [are] 'inherently prejudicial.'" Taylor, slip op. at 23; Fleming, 924 F.2d at 683; Rose, 910 F.2d at 403; Falconer, 905 F.2d at 1137. However, while this strong language suggests that this court need not entertain the State's harmless error argument, each of the above cited cases includes some discussion pertaining to the prejudice each individual petitioner faced.
In any event, there can be no doubt that the erroneous jury instructions at Gladney's trial were not harmless beyond a reasonable doubt. The trial judge, by granting Gladney's request to tender the voluntary manslaughter instruction, apparently believed that there was enough evidence to support such a verdict. Indeed, our review of the record reveals that, at a minimum, Gladney has advanced a colorable claim of sudden passion arising from a serious provocation. He had been searched, pushed, and ridiculed by his brother--apparently not for the first time. Contrary to the State's assertion, this type of repeated humiliation certainly could have resulted in sudden and intense passion. For this court to find otherwise would in effect amount to a repudiation of cultural and historical reality.
For the reasons set forth above, we grant Gladney's petition for a writ of habeas corpus. The writ shall issue unless the State of Illinois elects to retry him within 120 days. It is so ordered.
MARVIN E. ASPEN
United States District Judge