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UNITED STATES EX REL. CUEVAS v. WASHINGTON

May 15, 1992

UNITED STATES OF AMERICA ex rel. MARILYN CUEVAS, Petitioner,
v.
ODIE WASHINGTON, Warden, Dixon Correctional Center, Respondent.



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

 MARVIN E. ASPEN, District Judge:

 Petitioner Marilyn Cuevas is now before this court seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently, Cuevas raises the following claims: (1) that she 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; and (2) that her sentence for attempted murder was imposed simultaneously with the murder sentence and, as such, must be vacated in the event that the murder conviction is vacated. For the reasons set forth below, Cuevas' petition for habeas relief is granted in part and denied in part.

 I. Background

 Following a jury trial in the Circuit Court of Cook County, Cuevas was convicted of the murder of Hector Rivera and the attempted murder of Juana Torres. 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).

 
Hector Rivera (hereinafter the decedent) and Sally Evans, began living together in 1981. They were married in 1984 and remained married until decedent's death on June 7, 1984. Shortly after they were married, decedent moved in with defendant, but visited and telephoned his wife twice a week.
 
Sally Evans testified that she saw decedent on June 1, 1984 at her mother's house. On that day, defendant telephoned her looking for decedent. Defendant told Evans that "she was going to stab Evans and kill [decedent]--that she had her gun ready.
 
Juana Torres, decedent's girl friend, testified that on June 7, 1984, around 11 p.m., she and decedent visited a bar called La Zona Roja, where defendant worked. She saw defendant there. Defendant called Torres to the bathroom to talk. After their conversation, she left the bathroom and sat down with decedent and his brother, Miguel. Defendant approached them, called Torres a whore, pushed her to the floor and a fight began. Torres got up and pushed the defendant. When the fight was over, decedent, Torres and defendant were thrown out of the bar. Torres testified that she left the bar first, followed by decedent and the defendant.
 
Torres walked two or three blocks and stopped in a bar to use the telephone. Decedent and defendant followed Torres into the bar. Defendant stopped Torres from using the phone. Torres hung the phone up and left the bar intending to go to a nearby police station. Decedent and defendant also left the bar.
 
Torres testified that when she got near the police station, defendant called her a whore. Decedent then called the defendant a whore. Next, Torres heard a shot, looked at defendant, saw her with a revolver and saw the decedent grab his leg and walk towards defendant. Decedent then grabbed defendant's pistol, pulling her arm upwards. Defendant and decedent began struggling over the gun. Next, Torres saw defendant walking towards her with the pistol. When Torres looked backwards, decedent was already on the ground. Defendant pointed the revolver at decedent. Torres heard another shot but kept looking straight ahead. At that point, defendant began shooting at Torres. Torres felt heat in one of her hands. Defendant continued shooting at her as Torres walked in a zig-zag pattern to avoid the shots until she reached the police station where she called out for the police.
 
Chicago Police Officer Shirley Jobe testified that on June 7, 1984, at around 11:55 p.m., she was leaving the station when she heard several shots and saw people running towards her car. Defendant approached Jobe, still holding the gun in her hand, dangling it from her index finger. Defendant handed Jobe the gun and said, "Here is the gun. I just shot him." Jobe further testified that defendant appeared to be "half-bragging, almost bragging" when she ran up to her. Defendant told Jobe that the gun was empty. Jobe then took the defendant into the station where she was placed under arrest. Jobe read defendant her Miranda rights.
 
Defendant testified on her own behalf. She stated that early in the morning on June 7, 1984, she saw decedent with some other men outside of La Zona Roja as she was leaving work. Defendant got a gun from the man she was with before entering her apartment, because she feared decedent was going to get her. When she entered her building, decedent grabbed her with both hands and scratched her face. Defendant got the gun out and took a shot at him. She reported this incident to the police. Decedent was arrested for disorderly conduct.
 
Later that night, around 11 p.m., defendant and a friend went to the police station to post bond for the decedent, but he had already been released. At about 11:30 p.m., defendant went to La Zona Roja where she saw decedent dancing with Torres. Defendant told Torres to leave the bar but Torres refused. Decedent spoke to defendant and defendant became "real mad." Defendant said to decedent: "can she talk for herself? Isn't she enough woman to speak for herself ?" After that, defendant went to the bathroom and asked her friend for a knife in case decedent tried to get between Torres and herself. However, defendant's friend did not give her a knife. Instead, defendant took out and loaded a .22 caliber automatic gun, put the gun in her jeans and approached the table where decedent and Torres were sitting.
 
Defendant told Torres to leave, grabbed her by the blouse and pushed her. Decedent hit defendant once in the face. He picked defendant up and defendant bit him on the arm. Decedent punched defendant. After the ...

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