402 (7th Cir. 1990); Gladney v. Peters, 790 F. Supp. 1364, 1992 U.S. Dist. LEXIS 2696, at *9 (N.D. Ill. 1992).
The State argues that Daniel procedurally defaulted by failing to appeal the denial of his post-conviction petition.
As stated above, that petition addressed the claim of constitutionally-violative murder/manslaughter jury instructions. When a prisoner like Daniel fails to give the state courts a full and fair opportunity to review his claims, a procedural default occurs. See Morrison v. Duckworth, 898 F.2d 1298, 1300 (7th Cir. 1990). Daniel can only bring his claim in a federal habeas petition if he can show cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice. See Barksdale v. Lane, 957 F.2d 379 (7th Cir. 1992). The United States Supreme Court has defined "cause" as "some external objective factor, such as interference by officials or unavailability of the factual or legal basis for a claim." Id. at 12.
Daniel claims that "any further state appeal from the denial of his post-conviction petition was rendered futile by the Illinois Supreme Court's decision in People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674, 149 Ill. Dec. 304 (1990)." (Petition, P12.) The futility of pursuing appellate review due to adverse precedent may establish "cause" because it is an "external objective factor" which makes unavailable the legal basis for a claim. See Barksdale, slip op. at 11; Lampkins v. Gagnon, 710 F.2d 374, 375 (7th Cir. 1983) (procedural default argument rendered meritless given futility of pursuing claims in state court), cert. denied, 464 U.S. 1050, 104 S. Ct. 729, 79 L. Ed. 2d 189 (1984); Gladney, 790 F. Supp. 1364, 1992 U.S. Dist. LEXIS 2696, at *14.
Daniel asserts that appealing the denial of his post-conviction petition was rendered futile by an Illinois Supreme Court decision decided while Daniel's petition was pending with the trial court. The post-conviction petition relied heavily on the retroactive application of Reddick. The Court in Flowers applied the retroactivity rules of Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), and held that the constitutionally-based holding of Reddick -- that the State should have the burden to disprove a voluntary manslaughter defense to obtain a murder conviction -- should not be applied retroactively to post-conviction proceedings. Flowers, 561 N.E.2d at 682-84. In Flowers, the highest court in Illinois directly addressed the constitutional argument presented by Daniel in his post-conviction petition. All Illinois appellate courts were bound by the Flowers holding. Thus, pursuit of the denial of Daniel's post-conviction petition would have been futile.
Accordingly, for purposes of bringing this habeas petition, it was unnecessary for Daniel to appeal the denial of his post-conviction petition.
This adverse precedent is not mitigated by Taylor v. Gilmore, 954 F.2d 441 (7th Cir. 1992), where the Seventh Circuit, also relying on the Teague retroactivity principles, held that the holding of Falconer -- that the Illinois murder/manslaughter pattern jury instructions violated the Due Process Clause -- is entitled to retroactive application. Id. at 453. Illinois courts are not bound by decisions of federal courts other than the United State Supreme Court. People v. Brisbon, 129 Ill. 2d 200, 544 N.E.2d 297, 308, 135 Ill. Dec. 801 (1989). Therefore, an Illinois appellate court considering Daniel's post-conviction petition must follow the Illinois Supreme Court's decision in Flowers, and not the Seventh Circuit's decision in Taylor.
Although the Seventh Circuit's opinion in Taylor is not precedent that an Illinois court must follow, it is binding on this court. In light of the holding in Taylor that Falconer be applied retroactively, this court finds Falconer applicable to this case despite the fact that Daniel's conviction became final prior to Falconer.
As for the "actual prejudice" prong of the procedural default bar to federal habeas claims, the Seventh Circuit has found that the constitutional errors in the Illinois murder/manslaughter pattern jury instructions are "inherently prejudicial." Taylor v. Gilmore, 954 F.2d at 454; Fleming, 924 F.2d at 683; Rose, 910 F.2d at 403; Falconer, 905 F.2d at 1137. Furthermore, the trial judge, by granting Daniel's request for a voluntary manslaughter instruction, apparently believed that there was enough evidence to support such a verdict. Because of the inherent prejudice, the court must reject the State's contention that the use of the jury instructions at issue constituted harmless error.
For these reasons, Daniel's petition for a writ of habeas corpus is GRANTED. The writ shall issue unless the State of Illinois has petitioner resentenced for voluntary manslaughter or retries him within 120 days of this order. See Falconer, 905 F.2d at 1137.
JAMES F. HOLDERMAN
United States District Judge
DATED: April 7, 1992
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED that petitioner, Erwin Daniel's petition for writ of habeas corpus is granted. The writ shall issue unless the State of Illinois has petitioner resentenced for voluntary manslaughter or retries him within 120 days of this order.
This cause of action is dismissed in its entirety.
There being no just reason for delay, this is a final and appealable order.