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August 5, 1998


The opinion of the court was delivered by: CASTILLO


 Petitioner Glenn Gill petitions this Court for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, Gill was convicted of first degree murder. In his pro se petition, Gill raises nine issues that he claims entitle him to relief from that judgment: 1) there was insufficient evidence of first degree murder because his confession was not corroborated by other evidence and his trial testimony stating that the stabbing of the decedent was an accident was not improbable, uncorroborated, or contradicted; 2) prosecutorial misconduct during closing argument denied him a fair trial; 3) his trial counsel was constitutionally ineffective where counsel failed to a) understand the law of self-defense and accident, b) to perceive the existence of prior inconsistent statements as substantive evidence, c) to submit a jury instruction on the use of prior inconsistent statements as substantive evidence, and d) to advance a defense of voluntary intoxication and present evidence of involuntary manslaughter; 4) the Illinois first and second degree murder statutes and corresponding jury instructions violate both federal and state due process principles; 5) the trial court abused its discretion during sentencing by relying on improper factors; 6) denial of due process where the initial indictment was flawed; 7) appellate counsel's representation was constitutionally insufficient where counsel a) failed to raise an ineffective assistance of trial counsel claim; and b) failed to raise the defense of involuntary intoxication and present evidence of involuntary manslaughter under the "plain error rule"; 8) post-conviction appellate counsel was ineffective for failing to properly comply with the requirements of Pennsylvania v. Finley ; and 9) the Illinois Appellate Court's denial of Gill's late petition for rehearing denied him due process of law. For the reasons set forth below, Gill's petition for a Writ of Habeas Corpus is denied.

 FACTS *fn1"

 As the Illinois appellate court has fully set forth the underlying facts, we will only summarize them here. People v. Gill, 264 Ill. App. 3d 451, 637 N.E.2d 1030, 202 Ill. Dec. 294 (1st Dist. 1992). Gill and his former wife, Alice Harris, attended a barbecue at the home of Ms. Gabrielle Cooper. Ms. Cooper's brother, Melvin Cooper, and neighbor Mrs. Smith were also present at the barbecue. According to defendant's trial testimony, Gill and Melvin spent the afternoon engaged in an ongoing argument. At one point, Melvin picked up a brick in a threatening manner before Harris and Smith convinced him to put it down. Gill claims that shortly thereafter, Melvin struck him from behind. Gill "blacked out" and "saw stars." Melvin allegedly bent down to pick up Gill, who was still holding a large barbecue knife. Gill claims that he accidently stabbed Melvin in the back during the scuffle. Gill fled the scene after throwing the knife across a busy street. Gill learned of Melvin's death a few hours later and turned himself in to the police.

 The State introduced the following evidence at Gill's trial. Essie Smiley, a neighbor with a view of the yard and barbecue, testified that he observed Gill running up the embankment behind his home. Smiley noted that Gill had a butcher's knife in his hand and that he watched Gill throw the knife across 167th Street while yelling for Alice Harris to pick him up. Smiley helped officers recover the knife. Although Smiley had an opportunity to observe the activity in Ms. Cooper's yard, he did not hear an argument or see Gill and the decedent fighting.

 The medical examiner ("M.E.") testified that Melvin died of a stab wound. His examination revealed that the knife penetrated the left chest cavity from back to front, approximately 6 inches. The knife pierced Melvin perpendicularly to the plane of the back, that is, parallel to the ground. The M.E. concluded that Melvin's blood alcohol level was twice the legal limit for driving under the influence.

 Officer Quinlan testified that he found the victim bleeding from the left side of his back. Quinlan interviewed Harris and Smith at the scene. The prosecution then called Detective Barron, who testified that Gill turned himself in to the police hours after stabbing Melvin and gave an oral statement to ASA Christopher Donnelly. Donnelly reduced the statement to writing and read the statement to Gill, who read and signed the statement and initialed the changes. The written statement related that "We were having a barbecue and I was cooking. Melvin and I got into a fight. He was walking away from me, turned and came at me. He slapped me in the head once and grabbed me [and] pick up [sic]. I had a knife in my hand and stabbed him in the back. This happened by the garage in the rear of the house."

 ASA Donnelly also testified at trial, offering an expanded version of Gill's written statement. According to Donnelly, Gill had explained to him "that [Melvin] had grabbed him, grabbed the defendant in this type of fashion, meaning grabbing both shoulders, with both hands, in this type of fashion, and then Gill, in response to that, had taken his left hand, after being grabbed on both shoulders, had taken his left hand and pushed Cooper aside in this fashion, to his left side, and then as Cooper had went by his body after he pushed him in this fashion, he had the knife in his right hand and then took the knife and put it into Cooper's back, in that fashion." According to Donnelly, Gill claimed that when he pushed Melvin aside, he stabbed Melvin as "he had went by his body."

 Gill testified on his own behalf, offering a less culpable explanation of the incident. According to Gill, he was at the barbecue pit turning meat and cutting ribs. With the butcher's knife still in his hands, he walked from the pit toward the garage. Suddenly Gill heard footsteps and as he started to turn around he was "struck upside the head," and blacked out. Gill realized that Melvin had struck him and was bending down to lift Gill by the knees. Gill recalled that:

When he picked me up at my knees, my knees went bent, when he pick [sic] me up he was going all the way up with me just straight up, that is when I come [sic] over his shoulder and I was headed head down and I still had the butcher knife inside my hand, that's how it appeared to have went [sic] into his back.

 Gill denied telling Donnelly that he was grabbed in the manner described by Donnelly. Perhaps in an attempt to explain why he signed the statement, Gill informed the jury that he had difficulty reading and writing at the time he made the confession.

 The defense also offered the testimony of Alice Harris. Harris testified that Gill and Melvin were arguing loudly on the afternoon of Mrs. Cooper's barbecue and that she saw Melvin wielding a brick. After the brick incident, Harris explained that she went back into the garage and, therefore, did not see any fighting or the stabbing. In rebuttal, police officers testified that Harris told investigators at the scene that she had observed the two men fighting -- Melvin armed with a brick, Gill with a chair-- and witnessed the stabbing. The officers further testified that Harris informed them that she saw Melvin leave the yard with the knife in his hand, yelling for Harris to get the car.

 The trial court issued both first and second degree murder instructions. The jury found Gill guilty of first degree murder and armed violence. The trial court sentenced Gill on both convictions to concurrent terms of twenty-five years imprisonment.

 Gill appealed, arguing that 1) he was deprived of due process because the initial indictment process was flawed; 2) his purported confession was not corroborated by other evidence; 3) his testimony stating the stabbing was accidental was not improbable, uncorroborated, nor contradicted; 4) the prosecutor misstated evidence during closing argument; 5) defense counsel's representation was constitutionally insufficient, as he misunderstood the law regarding self-defense and accident and failed to submit an instruction regarding prior inconsistent statements made by Donnelly; 6) the Illinois first degree and second degree murder statutes violate due process; 7) the Illinois pattern instructions used at trial where the jury was instructed on both first and second degree murder violated his due process rights; 8) his conviction for armed violence predicated on first degree murder must be vacated since it is based upon the same physical act as the conviction for first degree murder; and 9) the trial court abused its discretion in sentencing the defendant. The Illinois appellate court rejected all of Gill's contentions, with the exception of argument 8. Finding that the armed violence charge was based upon the same physical act as the first degree murder charge, the court vacated Gill's armed violence conviction. People v. Gill, 264 Ill. App. 3d 451, 464, 637 N.E.2d 1030, 1039, 202 Ill. Dec. 294 (1st Dist. 1992).

 The Illinois Supreme Court denied Gill's petition for leave to appeal ("PLA") without opinion on April 5, 1995. People v. Gill, 161 Ill. 2d 532, 649 N.E.2d 420, 208 Ill. Dec. 364 (Ill. 1995). After the trial court summarily denied Gill's post-conviction petition, Gill appealed. The appellate court affirmed and, once again, the Illinois Supreme Court denied Gill's PLA.


 Gill's filed this habeas petition on June 24, 1997, and is therefore governed by the recent amendments to 28 U.S.C. § 2254. Section 2254(d)(1) provides that habeas relief may be awarded only where the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law" as determined by the United States Supreme Court. Lindh v. Murphy, 96 F.3d 856, 868-70 (7th Cir. 1996). The "contrary to" provision refers to questions of law; that is, a federal court can review, de novo, whether a state court has deviated from the Constitution on legal questions. Id. "Unreasonable application," however, refers to mixed questions of law and fact. Id. at 870. The "unreasonable application" exception "tells federal courts: Hands off, unless the [state court] judgement is based on an error grave enough to be called 'unreasonable'." Id.

 Under § 2254(d)(2), habeas relief is only otherwise possible if the state court adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented" in the state court proceeding. 28 U.S.C. § 2254(d)(2) (1996). Having set forth the applicable standards, we will address each of Gill's arguments in turn.

 1. Sufficiency of the Evidence

 Petitioner's first claim alleges that the evidence presented at trial was insufficient to prove him guilty beyond a reasonable doubt because Gill testified that, while he did in fact stab Melvin, it was an accident. In addition, Gill argues, other than his confession, there was no other evidence introduced at trial establishing that a crime occurred. In support of his contention that reversal is therefore required, Gill cites to People v. Willingham, 89 Ill. 2d 352, 432 N.E.2d 861, 864, 59 Ill. Dec. 917 (Ill. 1982) and People v. Smith, 172 Ill. App. 3d 94, 526 N.E.2d 849, 858, 122 Ill. Dec. 456 (1st Dist. 1988). We will first determine whether Gill's confession was corroborated, and then determine whether this evidence was sufficient to support a conviction.

 Turning to the cases cited by Gill, we note that Willingham and Smith merely hold that "there must be some evidence, apart from the confession, demonstrating that a crime occurred." Smith, 172 Ill. App. 3d 94, 109, 526 N.E.2d 849, 858, 122 Ill. Dec. 456 (1st Dist. 1988). In the instant case, witnesses testified that Gill was alone in the yard with the victim immediately before the stabbing, the two men were engaged in a on-going dispute and the decedent had threatened Gill, Gill fled the scene at the time of the stabbing while carrying the murder weapon, and that Gill attempted to disposed of the knife used in the stabbing. This evidence is consistent with Gill's confession and constitutes sufficient independent corroboration. See Willingham, 89 Ill. 2d at 362, 432 N.E.2d at 866 (eye-witness placing defendant at the scene of the crime is sufficient corroboration).

 Having determined that Gill's confession was sufficiently corroborated, we turn to his claim that this evidence was insufficient to convict him of first degree murder, as he testified that the stabbing was justified. Under Jackson v. Virginia, the relevant inquiry is "whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). In making this inquiry, we ...

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