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UNITED STATES EX REL. DANIEL v. PETERS

April 7, 1992

UNITED STATES OF AMERICA ex rel. ERWIN DANIEL, Petitioner,
v.
HOWARD A. PETERS, III, DIRECTOR DEPARTMENT OF CORRECTIONS, STATE OF ILLINOIS, Respondent.


HOLDERMAN


The opinion of the court was delivered by: JAMES F. HOLDERMAN

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, District Judge:

 Erwin Daniel has petitioned the court for habeas corpus relief pursuant to 28 U.S.C. § 2254. Daniel's sole basis for relief is that the jury instructions given at trial on murder and voluntary manslaughter violated his due process rights under the Fifth and Fourteenth Amendments.

 FACTS

 Following a jury trial in the Circuit Court of Cook County, Daniel was convicted of murder and aggravated battery and sentenced to 35 years in prison. The underlying facts are taken from the opinion of the Illinois appellate court on direct review, and are presumed accurate. 28 U.S.C. § 2254(d).

 Defendant was arrested for the shooting of Anthony Prater and the fatal shooting of Dimitric Grant. A jury trial was commenced on January 15, 1986, and the State's witnesses testified to the following occurrence of events.

 On June 14, 1985 the deceased drove with the other victim to Calumet High School. The deceased went into the school building for approximately 90 minutes while the other victim waited in the car. When the deceased returned, they drove toward 81st and May Streets, where they saw a large crowd of people surrounding a street fight. The deceased pulled the car up to the curb and asked "What happened to Shorty?" Someone in the crowd responded that he "kicked his butt." Defendant then appeared and approached the deceased victim's side of the car. After backing off, defendant reached into a bag, pulled out a gun, and fired the shots which fatally wounded deceased and injured the other victim.

 Corey Davis, who was with defendant at the time of the incident, also testified for the State. He stated that prior to the shooting, the deceased drove his car up within five feet of defendant and asked "What are you pussy rocks doing here." Corey Davis stated that this comment was a "gang intimidation insult" which would be spoken to a rival gang member.

 Although there was conflicting testimony as to what statements the deceased made to defendant prior to the shooting, the witnesses on both sides testified that no weapon was found on either victim or at the scene of the shooting.

 Following the incident defendant fled, but he met Corey Davis later that day and gave him the weapon which had been used in the shooting. Corey Davis testified that defendant told him that he shot the victims because the deceased victim called him a "pussy."

 Several hours after the incident defendant surrendered to the police. The weapon used in the shooting was recovered from Corey Davis, and defendant gave oral and written statements to Assistant State's Attorney James Morici. In response to questioning, defendant stated that he had seen the deceased three weeks prior to the incident, and that the deceased was with someone who shot defendant's friend. Defendant also stated that when he first saw the deceased on the day of the incident in question, the deceased his left hand "hanging" out of the car. The deceased asked defendant, "Don't I know you from somewhere?" Defendant responded affirmatively, moved closer to the car and fired two shots in the deceased's direction. Defendant acknowledged that he did not see either victim with a weapon, but said that he saw the deceased move toward the other victim.

 Dr. Robert Stein, the medical examiner, testified that the deceased was struck by two bullets in the chest; one perforated his heart and lung. Dr. Stein also stated that the path of the bullets was from the left to the right side of the body.

 Defendant testified that he shot the victims in self-defense. He stated that he saw the deceased move toward the other victim and remembered the incident three weeks earlier when he saw the deceased give a gun to someone else, who then shot and wounded defendant's companion.

 On direct appeal, Daniel contended that (1) he was not proven guilty beyond a reasonable doubt of murder and aggravated battery and (2) he was deprived of a fair trial due to prosecutorial misconduct. The Illinois appellate court rejected these arguments and affirmed the convictions. Daniel did not file a petition for leave to appeal to the Illinois Supreme Court.

 Daniel's claim of erroneous jury instructions was raised in his petition for post-conviction relief. The Circuit Court of Cook County dismissed Daniel's petition. Daniel did not appeal that dismissal. The issue presented to this court by Daniel's habeas petition is whether the murder and voluntary manslaughter jury instructions given at trial violated Daniel's due process rights.

 DISCUSSION

 At trial in the Circuit Court of Cook County, the court furnished the jury with Illinois Pattern Jury Instructions, Criminal Nos. 7.02 (murder) and 7.06 (voluntary manslaughter -- unreasonable belief of ...


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