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O'REILLY v. PAGE

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION


October 31, 1994

DANIEL O'REILLY, Petitioner,
v.
THOMAS F. PAGE, Warden, Menard Correction Center, Menard, Illinois, Respondent and THE ATTORNEY GENERAL OF THE STATE OF ILLINOIS, Additional Respondent.

The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 This Court has just received a document captioned "Petition for a Writ of Habeas Corpus" (the "Petition") in which Daniel O'Reilly ("O'Reilly") seeks to level a constitutional attack under 28 U.S.C. ยง 2254 ("Section 2254") against his state court convictions of first degree murder and home invasion, both based on accountability. *fn1" After O'Reilly had been convicted of those charges following a jury trial, he was sentenced on July 25, 1991 to concurrent sentences of 38 and 30 years. There is no question that O'Reilly has exhausted his state remedies as required by Section 2254(b), because he has taken an unsuccessful appeal to the Illinois Appellate Court (250 Ill. App. 3d 622, 621 N.E.2d 194, 190 Ill. Dec. 325 (1st Dist. 1993)), *fn2" and he was then denied leave to appeal to the Illinois Supreme Court.

 O'Reilly's able habeas counsel have fashioned an ingenious argument that the trial judge committed constitutional error by refusing to give the jury an involuntary manslaughter instruction, thus failing to provide the jury with a third option to either convicting O'Reilly of felony murder *fn3" or letting him go free. *fn4" In that respect counsel rely heavily on People v Taylor, 212 Ill. App. 3d 351, 570 N.E.2d 1180, 156 Ill. Dec. 458 (5th Dist. 1991), which accepted a like argument where (as was the case with O'Reilly) the defendant did not admit his commission of a forcible felony. Taylor held that if the jury had found the defendant did not indeed commit the claimed robbery or other forcible felony, under the facts of that case it could have found defendant guilty of involuntary manslaughter.

 But that argument is fatally flawed. By definition O'Reilly reasons from analogy in invoking Taylor. However, the Illinois Appellate Court in O'Reilly's own case did not accept that analogy, distinguishing Taylor (Opinion at 328):

 

The State distinguishes Taylor on the grounds that the defendant was tried for murder based on his own act of assault, not murder based on the act of another. . . . In Taylor the defendant killed the deceased. In this case the defendant did not kill the deceased, Nieves did. It is Nieves' conduct, not the defendant's which is relevant to the issue of murder, and Nieves clearly intended to shoot Schultz.

 That was a vital difference, as the Appellate Court went on to explain (id.):

 

We find the court properly refused to instruct the jury on the lesser included offense of involuntary manslaughter because if the defendant was acquitted of felony murder, he could not be found guilty of involuntary manslaughter. It is undisputed that Nieves committed the murder. So the issue for the jury based on the instructions it received was whether the defendant: (1) committed a home invasion, (2) committed felony murder based on the home invasion, (3) assisted Nieves in committing a home invasion, (4) assisted Nieves in committing a murder, or (5) none of these. These are the only conceivable crimes the defendant could have committed. If the jury found the defendant guilty of the underlying home invasion, it could find the defendant guilty of felony murder. If the jury acquitted the defendant of home invasion, it could not find the defendant guilty of felony murder. and if the jury acquitted the defendant of felony murder, it could not then find him guilty of involuntary manslaughter, because he did not kill Schultz. The jury found the defendant guilty of home invasion and murder both based on accountability--perfectly consistent verdicts given the facts before them.

 Although the meaning of the United States Constitution is of course a matter of federal law, the substantive criminal law of a state is defined by its courts and not by federal courts sitting in habeas corpus. To put the matter in simplest terms, the definitive exposition of Illinois law applicable to this case is not that contained in People v Taylor but rather its expression in People v O'Reilly. What the Illinois Appellate Court has decided (and the Illinois Supreme Court has declined to re-examine) in O'Reilly's own case is that as a matter of state law O'Reilly "could not [be] guilty of involuntary manslaughter, because he did not kill Schultz." And by definition it could not have violated O'Reilly's federal constitutional rights for the trial court to refuse to give an instruction that would have told the jury that it could convict O'Reilly of something that was not a crime under Illinois law. *fn5"

 That dooms O'Reilly's Petition for the most basic of reasons. Accordingly "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court" (Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts). For that reason the petition is dismissed summarily (id.).

 Milton I. Shadur

 Senior U.S. District Judge

 Dated: October 31, 1994

 JUDGMENT IN A CIVIL CASE

 Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

 IT IS ORDERED AND ADJUDGED Petitioner's Petition for Writ of Habeas Corpus is dismissed.

 Date October 31, 1994


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