not support the conclusion that he possessed the specific intent required for a conviction on attempted murder.
As petitioner notes, specific intent is an element of the state's burden in proving attempted murder. People v. Solis, 216 Ill. App. 3d 11, 17, 576 N.E.2d 120, 123, 159 Ill. Dec. 451 (1991). The fact of specific intent to murder, however, can be inferred from "the nature of defendant's act and the surrounding circumstances." Id. "Defendant is presumed to intend all of the natural and probable consequences" of his actions, and "the natural tendency" of shooting someone in the neck can reasonably be thought of as "to shorten the victim's life." Id.
Petitioner's first ground for habeas relief fails.
III. RESTRICTIONS ON CROSS-EXAMINATION
Petitioner's other ground for habeas relief is that the trial judge improperly restricted his cross-examination of the state's rebuttal witnesses at trial. Respondents challenge this ground both on procedural default and the merits, so the court addresses both arguments.
A. Procedural Default
Petitioner, respondents concede, raised his cross-examination argument in his initial direct appeal and in his petition for leave to appeal to the Supreme Court of Illinois. (See Respondents' Answer Ex. A & D.) Respondents argue however, that the state appeals were not based on the federal constitution. While the claim need not have been labeled as a federal constitutional claim, "the claim must have been presented in such a way as to fairly alert the state court to any applicable constitutional grounds for the claim." United States ex rel. Sullivan v. Fairman, 731 F.2d 450, 453 (7th Cir. 1984).
Petitioner's state appeals do not specifically mention a constitutional claim or rely on federal cases. Nor did any state cases cited employ federal constitutional analysis. Plaintiff does not state his claim in terms so particular as to "'call to mind a specific right protected by the Constitution.'" Id. at 454 (citation omitted). Plaintiff does not "'allege[e] a pattern of facts that is well within the mainstream of constitutional litigation.'" Id. (citation omitted). In fact, an evidentiary ruling such as whether cross examination is within the scope of direct is primarily a state-law issue. Cf. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 479-81, 116 L. Ed. 2d 385 (1991).
No cause or prejudice for petitioner's omission is alleged. Wainwright v. Sykes, 433 U.S. 72, 87, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977). Nor do the facts suggest this is the case where "'a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Sawyer v. Whitley, 120 L. Ed. 2d 269, 112 S. Ct. 2514, 2519 n.6 (1991) (citation omitted). Accordingly, petitioner's failure to raise his constitutional issue before the state courts is a bar to forwarding the argument on this habeas review. Anderson v. Harless, 459 U.S. 4, 6-9, 103 S. Ct. 276, 277, 74 L. Ed. 2d 3 (1982).
The procedural default issue alone resolves this ground, but for the sake of completeness the court considers the merits.
The claim that the state trial judge improperly ruled regarding the restriction of cross-examination of a rebuttal witness based on the scope of direct testimony is a claim that is unlikely to succeed. The subject of admission of evidence is a state concern. Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. at 479-81. And Illinois law allows the trial court substantial discretion regarding the scope of cross-examination. People v. Dortch, 109 Ill. App. 3d 761, 767, 441 N.E.2d 100, 105, 65 Ill. Dec. 308 (1982).
The state's rebuttal witnesses were called to testify to prior inconsistent statements of witness Terresa Robinson. (R. 418, 420, 431, 433-38). The state elicited testimony regarding Robinson's earlier statements. (R. 419, 433-38). The trial judge was careful to limit the state to impeachment. (R. 420.) Similarly, the court sustained objections to questions on cross-examination regarding other statements by Robinson. (R. 429-32, 440-47.) There is simply no due process violation established in this ground.
Thomas Bryant's Petition for Writ of Habeas Corpus is denied with prejudice.
Date: NOV 30 1994
JAMES H. ALESIA
United States District Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to hearing before the Court. The issues have been heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that petitioner Thomas Bryant's petition for writ of habeas is denied with prejudice.
Date November 30, 1994