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June 5, 1992

HOWARD PETERS, Director of the Illinois Department of Corrections, Respondent.

The opinion of the court was delivered by: BRIAN BARNETT DUFF

 Kelvin King is a convicted murderer who filed a pro se petition in this court for habeas corpus relief pursuant to 28 U.S.C. ยง 2254. Mr. King was convicted on June 17, 1985 of the murder of Arthur Warren and sentenced to thirty years in prison. Respondent has moved to dismiss on the grounds of exhaustion and procedural default. As outlined and explained below, the court requests that the parties submit additional briefing on the issue of whether Mr. King's voluntary dismissal of his Illinois Post-Conviction petition constitutes a procedural default.


 This review of the facts is taken verbatim from the opinion of the Illinois Appellate Court which affirmed the conviction. The trial court records have been lost. See Respondent's Memorandum of Law in Support of Denial of the Writ at 3; Petitioner's Supplemental Memorandum at 2. Factual findings made by a state appellate court are accorded the same statutory presumption of correctness as that accorded state trial courts in a habeas proceeding. See Dooley v. Duckworth, 832 F.2d 445, 448 (7th Cir. 1987).

 Celeste Warren, the deceased's estranged wife, testified for the state that on May 4, 1984, at 1:45 p.m., she saw the deceased when he stopped at her apartment. He was seeking treatment for a swollen eye which he received as a result of a fight with defendant. The deceased left, and Celeste returned to work at a nearby pharmacy. One hour later, defendant entered the pharmacy, stating that, "I just kicked your husband's m/--f--- ass and I should have killed him." Celeste went to the deceased's apartment, where she found paramedics entering the building. The deceased appeared comatose and had blood on his face. He died later at the hospital. The deceased had been recovering from a collapsed lung.

 Iaggars Banga, a paramedic, testified that he treated the deceased at his apartment. The deceased was in acute respiratory distress. His condition deteriorated rapidly, with no blood pressure and only a slow and faint pulse. After 20 minutes, he was taken to the hospital.

 Dr. Robin E. Graham testified for the State that on May 4, 1984 he treated the deceased at the hospital. In an unsuccessful attempt at resuscitation, surgery was performed to allow the deceased's heart to be manipulated manually. Dr. Graham observed that the deceased's abdominal cavity was filled with blood and his spleen was ruptured.

 Dr. Eupil Choi testified for the State that on May 5, 1984 he performed an autopsy on the deceased. The cause of death was a traumatic rupture of the spleen. The deceased had a blunt trauma laceration on the chin, a small laceration on the lower lip, and three hemorrhages on the head. He had 11 fractured ribs, evidence of bleeding in the stomach area, and multiple lacerations on the spleen. An enlarged liver indicated cirrhosis, a condition which can cause the spleen to become enlarged. The size of the spleen, however, was within the normal range. Dr. Choi opined that the rib and head injuries could have been caused by kicking and punching.

 Officer Dorothy Sopanick testified for the State that she and her partner investigated the incident. After defendant was advised of his Miranda rights, he stated that he "had an argument with Warren and hit him with his hands and feet." Officer Daniel Centracchio testified that he interviewed defendant on the following day. After being given his Miranda rights, defendant stated, "he argued with Warren, he hit him, he punched him, and when he fell down, kicked him."

 Ernest Walker, a friend of the defendant and the deceased, testified for the defendant that on May 4, he accompanied Theresa Anderson and defendant to the deceased's apartment. Two other men, William Scott and "Chico," were also present. While Anderson and defendant waited, Walker and the deceased injected cocaine. The deceased and defendant began arguing and defendant slapped Warren, knocking him down. [Walker] testified that the deceased "lunged up" at defendant with a knife. Defendant hit the deceased several times. As Walker tried to hold defendant back, defendant threw him aside, and defendant punched and kicked the deceased several more times as the deceased was on the floor in a fetal position. The deceased never kicked or punched defendant. Walker later met defendant, who stated that he was going to tell Celeste Warren what had happened.

 * * *

 Dr. Michael Schaffer, a toxicologist, testified for defendant that urine and blood tests revealed that the deceased had used cocaine prior to his death. Dr. Schaffer could not determine how soon before his death the deceased used the drug.

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