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U.S. EX REL. KING v. CAHILL-MASCHING

May 1, 2001

UNITED STATES OF AMERICA EX REL. ZITA M. KING, PETITIONER,
V.
LYNN CAHILL-MASCHING, WARDEN, DWIGHT CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Castillo, District Judge.

    MEMORANDUM OPINION AND ORDER

Zita M. King petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, attacking her state court attempted first degree murder and armed violence convictions and the resulting sentences. King claims that: (1) she was sentenced pursuant to Public Act 88-680, a law that was subsequently found unconstitutional; (2) under the Illinois Constitution, she cannot be convicted of both attempted murder and armed violence; (3) her twenty year sentence was excessive given her lack of criminal background; (4) the trial evidence was insufficient to establish her guilt for the crime of attempted first degree murder; and (5) her attorney rendered constitutionally ineffective assistance. After careful review, we deny King's petition.

RELEVANT FACTS

When considering a habeas corpus petition, the Court presumes that the factual determinations of the state court are correct. 28 U.S.C. § 2254(e)(1). Accordingly, we adopt the facts as set forth by the Illinois appellate court in People v. King, No. 1-96-1753, 1997 WL 1093439 (Ill.App. Ct. July 17, 1997).

On September 30, 1995, Consewille Thomas was at home with her two children when Zita King knocked on the front door and entered Thomas' bedroom. An argument ensued, during which King revealed a nine-millimeter pistol she was carrying. When Thomas told King to leave, King shot Thomas in the leg. According to Thomas, King then pointed the gun at Thomas' head and pulled the trigger, but the gun did not fire. Thomas' son testified that King shot Thomas in the leg and pulled the trigger again, but the gun did not fire. King then ran away.

The trial court found King guilty of attempted first degree murder and armed violence and sentenced her to concurrent prison terms of twenty years and fifteen years, respectively. The court specifically noted Thomas and her son's consistent testimony that, after shooting Thomas in the leg, King pulled the trigger again, but the gun did not fire. After hearing arguments in aggravation and mitigation at the sentencing hearing, the court also pointed out that there were two separate acts upon which the convictions were based: (1) the attempted first degree murder conviction was based on King's pointing the gun at Thomas' head and pulling the trigger; and (2) the armed violence conviction was based on the shot to Thomas' leg.

King then filed a pro se petition for post conviction relief, alleging that Thomas and her son's testimony conflicted and thus that there was reasonable doubt regarding the attempted first degree murder charge. King's petition for post conviction relief was dismissed on June 22, 1998. King appealed the dismissal to the appellate court, and her counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). King argued in her pro se response to the Finley motion that: (1) her attorney rendered constitutionally ineffective assistance when counsel failed to cross-examine key witnesses in order to show inconsistencies in the testimony of Thomas and her son; and (2) her twenty year sentence was excessive given her lack of criminal background. On October 12, 1999, the appellate court granted the public defender's motion to withdraw as counsel and affirmed the judgment of the trial court. People v. King, No. 1-98-2618 (Ill.App.Ct. Oct. 12, 1999). Subsequently, King filed a petition for leave to appeal to the Illinois Supreme Court, which was summarily denied on April 5, 2000.

On December 15, 2000, King petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her pro se petition, King raises the following issues: (1) she was sentenced pursuant to Public Act 88-680, a law that was subsequently found unconstitutional; (2) under the Illinois Constitution, she cannot be convicted of both attempted murder and armed violence; (3) her twenty year sentence was excessive given her lack of criminal background; (4) the trial evidence was insufficient to establish her guilt for the crime of attempted first degree murder; and (5) her attorney rendered constitutionally ineffective assistance.

HABEAS CORPUS STANDARDS

Initially, a federal court cannot address the merits of a habeas corpus petition unless the Illinois courts have first had a full and fair opportunity to review the petitioner's claims. See, e.g., Farrell v. Lane, 939 F.2d 409, 410 (7th Cir. 1991). Illinois courts have had a full and fair opportunity to consider the claims raised in a habeas petition if: (1) the petitioner has exhausted all available state remedies (the "exhaustion" doctrine); and (2) the petitioner has raised all of his claims during the course of the state proceedings (the "procedural default" doctrine). See, e.g., Rodriguez v. Peters, 63 F.3d 546, 555 (7th Cir. 1995). If the petitioner fails to overcome these two procedural hurdles, the habeas petition is barred. Id. In this case, the State concedes that King has exhausted all available state court remedies, and the State does not challenge whether King raised all of her claims during the course of the state proceedings. (R. 12-1, Answer to Am. Pet. for Writ of Habeas Corpus at 3.) As such, this Court now considers first the cognizability and then the merits of King's claims.

ANALYSIS

I. Noncognizable ...


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