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UNITED STATES EX REL. BOSEK v. PETERS

November 3, 1993

UNITED STATES ex rel. NORMAN BOSEK, Petitioner,
v.
HOWARD PETERS, III, et al., Respondents.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

Now before the court is Magistrate Judge Gottschall's Report and Recommendation ("Report") regarding the petitioner's petition for a writ of habeas corpus. The Magistrate Judge recommended that the court deny the petition for a writ of habeas corpus, concluding that the petitioner defaulted his claims for falling to raise them in the state courts; that the petitioner did not show that he received ineffective assistance of counsel at trial; that the petitioner did not show that constitutional violations led to the conviction of an innocent person; and that the evidence presented at trial was sufficient to support a finding of guilt beyond a reasonable doubt. For the reasons set forth below, this court accepts the recommendation of the Magistrate Judge and denies the petition.

 I. FACTS

 The facts are those set out in the Report and in the opinion of the appellate court on direct review, People v. Bosek, 210 Ill. App. 3d 573, 576-593, 569 N.E.2d 551, 553-564, 155 Ill. Dec. 370, appeal denied, 141 Ill. 2d 546 (1991), cert. denied, 112 S. Ct. 1180 (1992), and will not be fully set forth here. Some facts, however, warrant mention in this opinion.

 On the afternoon of November 21, 1988, the petitioner shot and killed his wife's lover at the Pratt Wayne Woods forest preserve. The petitioner admitted to shooting the victim, Lucien Gilbert, after he found his wife sitting in Gilbert's car with Gilbert. However, the petitioner claimed that he shot in self-defense, believing that the victim was about to fire a semi-automatic AKS-47 assault rifle at him. One witness to the killing testified at trial that she saw the petitioner pointing his gun at the victim and then heard the shots fired from that gun. Apparently, no witness saw whether the victim pointed a weapon at the petitioner. However, several witnesses saw the victim, before he was shot, leaning into the trunk of his car which at the time of the incident is where he kept the AKS-47 as well as a .357 magnum revolver. Several witnesses also testified that they saw the AKS-47 lying across the victim's legs after he had been shot.

 At trial, the State's theory was that the petitioner shot Gilbert as Gilbert stood facing the open hatchback of his car, with his back to the petitioner. After Gilbert fell to the ground, partially paralyzed by the petitioner's first shot, the petitioner then fired two more shots into Gilbert's heart, killing him.

 The petitioner, on the other hand, testified that Gilbert had picked up the AKS-47 and was standing erect when the petitioner shot him, and that the petitioner shot Gilbert only after he saw Gilbert appear to prepare to fire the AKS-47. The petitioner said that he fired the second and third shots after he saw Gilbert's hand move towards the trigger of the AKS-47; he believed that Gilbert was about to kill him.

 Each side presented extensive character evidence at trial to show that either the petitioner or the victim was the aggressor. The evidence showed that Gilbert had threatened the petitioner and his son in the past; in fact, only days before the shooting the petitioner's son had received a threatening letter from Gilbert. The evidence also showed that Gilbert was known to carry weapons, such as a hunting knife, a .357 revolver, and the AKS-47, all of which he had brought to the petitioner's home at various times; that his nickname at the security company at which he had been employed was "Rambo;" and that he had been fired from his security job for using unauthorized firearms and reporting to duty with alcohol on his breath.

 Evidence also indicated that the petitioner had struck his wife and had been abusive to his children in the past. His wife testified that after she brought home flowers Gilbert had given her for her birthday, the petitioner threw the flowers all over the driveway and broke the banister and threw it into the foyer. She testified that the petitioner then cut off her transportation and communication by fixing her car and the phones in the house so that they would not work.

 II. PROCEDURAL HISTORY

 The petitioner was charged with first degree murder. After a jury trial he was found guilty of second degree murder, and was sentenced to six years' imprisonment in the Illinois Department of Corrections. The petitioner appealed this conviction to the Illinois Appellate Court, raising five issues. First, the petitioner argued that he was deprived of his rights to due process when the trial court failed to instruct the jury as to the presumption of innocence and the State's burden of proof beyond a reasonable doubt on second degree murder. Bosek, 210 Ill. App. 3d at 593, 569 N.E.2d at 564. The appellate court rejected this contention. It noted that the petitioner had failed to object at trial to the omission of which he was complaining, and that the failure to object at trial to an asserted error in jury instructions waived the question on appeal. Bosek, 210 Ill. App. 3d at 594, 569 N.E.2d at 564 (citing People v. Huckstead, 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251, 65 Ill. Dec. 232 (1982)). The petitioner argued that he had preserved the error by raising it in his post-trial motion. However, the appellate court stated that to be preserved, error must be objected to at trial and raised in a post-trial motion. Bosek, 210 Ill. App. 3d at 594, 569 N.E.2d at 564-65 (citing People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, 119 Ill. Dec. 265 (1988)). Although this waiver rule would not apply if plain error had occurred, the court found that plain error had not occurred because the jury was properly instructed. Accordingly, the court concluded that the petitioner had waived this issue for appeal. Bosek, 210 Ill. App. 3d at 594-595, 569 N.E.2d at 565-66.

 Secondly, the petitioner argued that the evidence at trial proved beyond a reasonable doubt that he acted in self-defense when he killed Lucien Gilbert. Bosek, 210 Ill. App. 3d at 595, 569 N.E.2d at 566. The appellate court disagreed. The court stated that it need consider only whether the petitioner's belief was unreasonable. Noting that while the petitioner's version of the shooting supported his theory of self-defense, the State's version negated that theory, the court found that the jury properly had concluded that the petitioner's belief that he needed to shoot Gilbert in self-defense was unreasonable. The court found no basis for disturbing the jury's rejection of the petitioner's theory of self-defense. Bosek, 210 Ill. App. 3d at 595-596, 569 N.E.2d at 566.

 Thirdly, the petitioner argued that the trial court erred in rejecting his requested instruction to the jury that it could consider evidence of the victim's violent and aggressive behavior. Bosek, 210 Ill. App. 3d at 597, 569 N.E.2d at 567. The court rejected this argument, agreeing with the trial court that the requested non-Illinois Pattern Jury Instruction unduly singled out one aspect of the case. The court found that the jury in this case was accurately instructed as to the justifiable use of force by the petitioner and was properly instructed that it had to find beyond a reasonable doubt that the petitioner was not justified in using the force he had used in order to find him guilty of first degree murder. The court noted that the jury must have considered the ample evidence of the victim's aggressiveness and threatening nature since it found the petitioner guilty of second degree murder rather than first degree murder. Bosek, 210 Ill. App. 3d at 597-598, 569 N.E.2d at 567.

 Lastly, the petitioner contended that he received ineffective assistance of counsel, which resulted in his conviction. Id. He argued that his defense counsel had erred in falling to move to suppress the petitioner's statements to the deputy at the scene of the killing; in falling to object to testimony about the petitioner's past violent conduct; in failing to object to hearsay testimony and in making only 25 objections during a week-long trial; and in falling to have certain letters admitted into evidence. The court found that none of these alleged errors actually was error, and therefore held that defense counsel's assistance was not ineffective. Accordingly, the appellate court affirmed the petitioner's conviction. Bosek, 210 Ill. App. 3d at 599-601, 569 N.E.2d at 568-70.

 The petitioner petitioned for leave to appeal to the Illinois Supreme Court, which denied his petition without opinion. People v. Bosek, 141 Ill. 2d 546, 162 Ill. Dec. 495, 580 N.E.2d 121 (1991). The petitioner then filed a petition for certiorari in the United States Supreme Court, which also denied his petition without opinion. Bosek v. Illinois, 117 L. Ed. 2d 424, 112 S. Ct. 1180 (1992). The petitioner now has petitioned this court for a writ of habeas corpus.

 The petitioner raises the following issues in this court:

 
(1) His federal constitutional rights to due process of law and trial by jury were violated when the trial court failed to instruct the jury as to the presumption of innocence and the requirement that the State prove the petitioner guilty beyond a reasonable doubt of second degree murder; (Petition, pp. 4-5.)
 
(2) His conviction, despite the State's failure to prove him guilty beyond a reasonable doubt, denied the petitioner his federal constitutional right to due process; (Petition, pp. 5-6.)
 
(3) His rights to due process and a fair trial were violated when the court refused the petitioner's requested instruction that the jury may consider evidence of the victim's aggressive and violent character, along with the other facts and circumstances, to show who was the aggressor; (Petition, pp. 6-7.)
 
(4) His right to due process was violated by the State's presentation into evidence of alleged prior violent conduct of the petitioner in allegedly beating his son seven years earlier; (Petition, p. 8.)
 
(5) His rights to due process and effective assistance of counsel were violated by the conduct of his attorney during trial. (Petition, p. 8)

 Magistrate Judge Gottschall recommended that the court deny the petition for a writ of habeas corpus. This court will review the Report de novo pursuant to 28 U.S.C. § 636(b).

 III. DISCUSSION

 The State argues that four of the petitioner's five claims of error in his petition are procedurally defaulted from consideration on federal habeas review. Only the claim that the State failed to prove the petitioner guilty beyond a reasonable doubt is not challenged on the basis of procedural default. The State instead argues that ...


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