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UNITED STATES EX REL. KIRK v. WASHINGTON

July 10, 1996

UNITED STATES OF AMERICA ex rel. JEROME KIRK, Petitioner,
v.
ODIE WASHINGTON, Respondent.



The opinion of the court was delivered by: ALESIA

 Now before the court is a petition for a writ of habeas corpus submitted by petitioner Jerome Kirk ("Kirk"). For the reasons that follow, the court denies the petition.

 I. BACKGROUND

 The facts underlying Kirk's conviction are those set out in the opinion of the Illinois Appellate Court on direct review, People v. Kirk, No. 1-92-3578, slip. op. (1st Dist. Sept. 16, 1994). *fn1" However, since the appellate court's opinion is unpublished, this court will recount the important facts here.

 At his jury trial for murder, Kirk testified that the deceased and a man named Jesse approached Kirk while Kirk was sitting in his car. Kirk and the deceased began arguing. When Kirk attempted to get out of his car, the deceased hit him in the head and knocked him to the ground; when Kirk attempted to get up, the deceased knocked him down again. Kirk saw that the deceased had a knife. He ran towards his mother's house, followed by the deceased.

 At some point, however, Kirk ran back to his car and got his gun from the trunk. He saw the deceased about 10 feet away and started to run away from the deceased, but the deceased followed him. When the deceased was about five feet away, he reached out with the knife, and Kirk shot him. As the deceased fell, Kirk continued shooting. Kirk testified that he shot the deceased because he was afraid the deceased might try to take the gun from him.

 Robert Taylor testified for Kirk that when Kirk drove up, the deceased and another man approached Kirk's car. When Kirk got out of his car, the deceased hit Kirk in the jaw, and picked him up and slammed him to the ground. Kirk's mother intervened in the fight. When the deceased pulled out a knife, Kirk ran around his car a few times and eventually was able to get his gun from his trunk. The deceased yelled, "Come here punk. Let me stab you." Kirk then began shooting.

 Several other witnesses testified for the state. Their testimony indicated that Kirk was the aggressor. According to Sherry Kitchen, Kirk called the deceased over to Kirk's car. The two began arguing, and Kirk went to the trunk of his car and attempted to open it, but the deceased kept slamming the trunk down. Kirk had a crowbar in his hand and was swinging at the deceased when the deceased took out a knife from his pocket. Kirk's mother grabbed Kirk, and the two started to walk away. Sherry, the deceased, and Jesse also started to walk away.

 Sheila Kitchen, Sherry's sister, testified that as Sherry, the deceased, and Jesse walked away, Sheila heard her mother yell to Sherry. Sherry and the deceased looked back, and saw Kirk running towards them waving the gun. The deceased did not have his knife out then. Sherry, Jesse, and the deceased started running to Sherry's porch, but the deceased was unable to reach the porch. The deceased ran to a nearby gangway, but the gate was locked, so he ran toward the street. Kirk was right behind him, with the gun. Sherry and Sheila saw the deceased fall near a parked car, and, while Kirk was standing over him, yell for Kirk not to kill him. Sherry and Sheila saw Kirk shoot the deceased twice, pause, and shoot three more times.

 Walter Johnson also testified that before he heard Sherry and Sheila's mother yelling, he saw Kirk holding a gun and sneaking up on Sherry and the deceased. When the mother began yelling, Johnson ran down a gangway. He heard five shots as he was running, and when he exited the gangway, he saw the deceased lying next to a parked car.

 Before it began deliberating, the jury was instructed as to the mitigating factor of an unreasonable belief in the need for self-defense. The jury rejected the mitigating factor, and instead found Kirk guilty of first degree murder. The trial judge sentenced Kirk to 35 years in prison. Kirk appealed his conviction and sentence, both of which the appellate court affirmed. Kirk then filed a petition for leave to appeal to the Illinois Supreme Court raising insufficiency of the jury instructions, ineffective assistance of his trial counsel, and prosecutorial misconduct as grounds for leave to appeal. The Illinois Supreme Court denied his petition for leave to appeal. People v. Kirk, 161 Ill. 2d 534, 649 N.E.2d 421, 208 Ill. Dec. 365 (1995).

 Kirk now brings his petition for writ of habeas corpus in this court pursuant to 28 U.S.C. ยง 2254, making the same arguments in support of his habeas petition that he made in his petition for leave to appeal.

 II. DISCUSSION

 As a preliminary matter, the court notes that Kirk has presented to the Illinois appellate and supreme courts all of the grounds on which he seeks habeas relief. Accordingly, Kirk has not procedurally defaulted any of his claims raised in his habeas petition, and the court will address each of his claims on its merits. See Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S. Ct. 2546, 2555, 115 L. Ed. 2d 640 (1991).

 A. Improper jury instructions

 Kirk contends that the trial court deprived him of a fair trial by failing to instruct the jury as to the mitigating factor of sudden and intense passion caused by another's provocation. This mitigating factor, if found by the jury to exist, would have served to reduce Kirk's conviction from one of first degree murder to one of second degree murder. Instead, the trial court instructed the jury only as to the mitigating factor of unreasonable belief in the need for self-defense, which the jury rejected. The state responds that no credible evidence supported giving the sudden and intense passion instruction.

 Generally, a criminal defendant is entitled to have a jury instruction on any defense that provides a legal defense to the charge against him and has at least some foundation in the evidence. United States ex rel. Peery v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979), cert. denied, 446 U.S. 940, 100 S. Ct. 2163, 64 L. Ed. 2d 794 (1980) (citations omitted). However, also generally, the state trial court's failure "'to instruct on a lesser offense fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding.'" Id. at 404 (quoting James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976)).

 Thus, to bring a habeas claim based on the trial court's failure to instruct on a lesser offense, the petitioner must allege a "'fundamental defect which inherently results in a complete miscarriage of justice (or) an omission inconsistent with the rudimentary demands of fair procedure.'" Peery, 615 F.2d at 404 (quoting Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)). Put another way, the question is "whether the 'ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Peery, 615 F.2d at 404 (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400, 38 L. Ed. 2d 368 (1973)). Furthermore, where the issue before the habeas court is the omission of an instruction, "the petitioner's burden is 'especially heavy' because '(a)n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law.'" Peery, 615 F.2d at 404 (quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 1737, 52 L. Ed. 2d 203 (1977)).

  In the case before this court, then, the question is whether the evidence supporting the giving of the sudden and intense passion due to provocation instruction was so strong that failure to give the instruction constituted a fundamental miscarriage of justice. See Peery, 615 F.2d at 404; United States ex rel. Bacon v. DeRobertis, 551 F. Supp. 269, 274 (N.D. Ill. 1982), aff'd, 728 F.2d 874, 875 (7th Cir.) (adopting district court's opinion), cert. denied, 469 U.S. 840, 105 S. Ct. 143, 83 L. Ed. 2d 82 (1984) (in both cases, the evidence of serious provocation was not so unequivocally strong that failure to give the instruction amounted to a fundamental miscarriage of justice).

 On direct review of Kirk's conviction, the appellate court found that the evidence presented at trial did not support giving the sudden and intense passion instruction. That court stated:

 
.... Even accepting defendant's testimony as true, the [sudden and intense passion] instruction was not warranted in this case. According to defendant, the deceased was the initial aggressor, having beaten and kicked him numerous times as he exited his car. Defendant testified that when the deceased pulled out a knife, he ran toward his mother's house. However, rather than retreat to the house to escape the altercation, defendant ...

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