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November 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, a convicted murderer, has petitioned this court for habeas corpus relief pursuant to 28 U.S.C. ยง 2254. The respondent moved to dismiss the petition on the grounds of exhaustion and procedural default. The facts and procedural history are set out in this court's earlier opinion, United States ex rel. King v. Peters, 796 F. Supp. 1110 (N.D. Ill. 1992) ("King I"), and will not be restated here except as necessary.

 In King I, the court held that while Mr. King, by failing to challenge jury instructions on direct appeal, had not defaulted, additional briefs were needed on the issue of whether King's voluntary dismissal of his Illinois Post-Conviction petition resulted in a procedural default. While those additional briefs were under consideration by this court, the Seventh Circuit decided Verdin v. O'Leary, 972 F.2d 1467 (7th Cir. 1992). Because Verdin reaches a conclusion irreconcilable with our earlier decision, King I is hereby vacated. For the reasons stated below, King's Petition for Habeas Corpus is denied.


 Mr. King's only claim of constitutional error in his conviction concerns the murder/manslaughter jury instruction given at his trial. He argues, relying on Falconer v. Lane, 905 F.2d 1129 (7th Cir. 1990), that the instructions deprived him of a possible affirmative defense by failing to instruct the jury that it could not convict him of murder if it found that he had acted under an unreasonable belief that he was justified in using force. King I, 796 F. Supp. at 1112. *fn1" The respondent argued in King I that Mr. King defaulted this claim in one of three ways: (1) by failing to raise it on direct appeal to the Illinois Appellate Court, (2) by failing to take a timely direct appeal to the Illinois Supreme Court, and (3) by voluntarily dismissing his Illinois Post-Conviction petition in state court. Id. at 1113.

 Only the first argument for default need be addressed here. In King I, this court held that Mr. King had not procedurally defaulted by failing to raise his Falconer argument on direct appeal. Id. Faced with the same issue in Verdin, 972 F.2d 1467, the Seventh Circuit reached the opposite conclusion. Because of the factual similarity of Verdin to this case, and the clarity of the Verdin holding, this court feels compelled to vacate its earlier determination in King I.

 The procedural history of these cases is strikingly similar. Mr. Verdin was convicted for the murders of two men in 1984; Mr. King was convicted in 1985. The jury in Verdin's case received the murder/manslaughter instruction challenged by Mr. King and subsequently invalidated in People v. Reddick, 123 Ill. 2d 184, 526 N.E.2d 141, 122 Ill. Dec. 1 (Ill. 1988) on state law grounds, and in Falconer v. Lane on federal constitutional grounds. The convictions of Verdin and King were affirmed by the Illinois Appellate Court, in both cases before the Illinois Supreme Court decided Reddick. Verdin, 972 F.2d at 1471; King I, 796 F. Supp. at 1112.

 The Seventh Circuit held that Verdin had procedurally defaulted on his Falconer claim by failing to raise it in constitutional terms on direct appeal. Verdin, 972 F.2d at 1472-73, 1479. Applying this decision to Mr. King's petition does not require the detailed analysis employed in Verdin to determine whether the challenge to the jury instruction was based on state or constitutional law. Unlike Mr. Verdin, Mr. King did not object to the murder/manslaughter jury instruction on any grounds on direct appeal. King I, 796 F. Supp. at 1112. *fn2" Under Verdin, Mr. King's Falconer challenge has been procedurally defaulted.

 This determination does not end the inquiry. The default may be excused if Mr. King can demonstrate cause for the default, and actual prejudice resulting from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91, 53 L. Ed. 2d 594, 97 S. Ct. 2497 (1977); United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 452-53 (7th Cir. 1984). Mr. King contends that challenging the jury instruction would have been futile at the time of his trial and appeal because "trial courts . . . in 1985 were required by Illinois law to follow the Illinois Pattern Jury Instructions, Criminal." (Petitioner's Reply to Motion to Dismiss at 1-2). He argues that he was not aware of the legal basis of the claim, and could not have raised it, until Reddick was decided, after his direct appeal. *fn3" (Id.)

 Mr. King's futility claim is itself futile in light of Engle v. Isaac, 456 U.S. 107, 71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982). Just as in this case, the petitioners in Engle failed to object to a jury instruction at trial and on direct appeal; the jury instruction was invalidated after petitioners' convictions were upheld on appeal. Id. at 110-13. The Supreme Court rejected the petitioners' claim that an objection would have been futile because the trial court was required to give the challenged instruction:

 We note at the outset that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at trial. If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.

 Id. at 130.

 Mr. King's argument that he could not have known the legal basis of his challenge to the instruction prior to Reddick fares no better. The Engle petitioners anticipated this contention as well, claiming that a criminal defendant cannot waive constitutional objections unknown at the time of trial. Id. at 131. The Court had no need to resolve this question, because the foundation for petitioners' due process claims had indeed been laid before their trials. Id. at 131-33 (in light of cases posing burden of proof challenges "we cannot say that [petitioners] lacked the tools to construct their constitutional claim.") Similarly, this court is unable to say that Mr. King could not have constructed a constitutional challenge to the instruction, given the Seventh Circuit's holding that Falconer did not establish a "new rule," for purposes of retroactive application under Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989). Taylor v. Gilmore, 954 F.2d 441 (7th Cir.) ("An examination of all relevant case law, particularly Cupp's [414 U.S. 141 (1973)] progeny, convinces us that there was precedent specific enough to have compelled each of these premises [underlying Falconer] at the time Falconer was decided"), cert. granted in part, 113 S. Ct. 52, 121 L. Ed. 2d 22, 1992 U.S. LEXIS 5559 (1992). *fn4" Because Mr. King has not shown cause for his default, we do not reach the prejudice prong of Wainwright v. Sykes. See Farrell v. Lane, 939 F.2d 409, 412 (7th Cir.), cert. denied, Farrell v. McGinnis, 112 S. Ct. 387, 116 L. Ed. 2d 337 (1991).

 Despite the absence of a showing of cause and prejudice, we may reach the merits of a procedurally defaulted claim where a failure to do so would result in a "miscarriage of justice." Murray v. Carrier, 477 U.S. 478, 495, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986) (quoting Engle v. Isaac, 456 U.S. at 135). This exception is extremely narrow, Sawyer v. Whitley, 120 L. Ed. 2d 269, 112 S. Ct. 2514, 2519 (1992), concerned with actual, rather than legal, innocence. In order to show "actual innocence," the petitioner "must show by clear and convincing evidence ...

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