The opinion of the court was delivered by: James B. Moran, Senior Judge, United States District Court
MEMORANDUM OPINION AND ORDER
Petitioner Charles Jackson filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. We granted petitioner's application to proceed in forma pauperis and respondent Jonathan Walls filed an answer to the petition. For the following reasons, Jackson's petition for a writ of habeas corpus is denied.
Following a jury trial, petitioner was convicted of attempted murder and attempted armed robbery and sentenced to consecutive sentences of 30 years and 15 years. The Illinois Appellate Court, First District, affirmed the conviction on August 27, 1999. Petitioner unsuccessfully filed a petition for post-conviction relief in the Illinois court. Both the Illinois Appellate Court and the Illinois Supreme Court affirmed denials of his petition. He then filed this action asserting that the mandatory sentencing provisions of 730 ILCS 5/5-8-4(a) and (b) violate his rights to due process and trial by jury in light of the United States Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000).
Habeas relief is limited to situations in which a conviction or sentence is based on "an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice;" Bischel v. United States, 32 F.3d 259, 263 (7th Cir. 1994). If the court finds that any of the above errors occurred, then the prisoner's conviction will be "vacated or set aside and the petitioner will be discharged, resentenced, or granted a new trial." Dikeocha v. United States, 2002 WL 31006136, *1 (N.D.Ill. 2002).
The Supreme Court decided Apprendi subsequent to petitioner's sentencing. A new Supreme Court decision may justify a collateral attack on a sentence only if it establishes a new rule of law made retroactive by the Supreme Court. Talbott v. Indiana, 226 F.3d 866, 868 (7th Cir. 2000) citing 28 U.S.C. § 2244(b)(2)(A), 2255 ¶ 8(2). Apprendi does not state that it applies retroactively to cases on collateral review, therefore no petition for habeas corpus can proceed under § 2244(b)(2)(A) or § 2255 ¶ 8(2). Talbott, 226 F.3d at 869.
Petitioner's claim falls squarely within the realm of Talbott. Unless the Supreme Court ultimately decides that Apprendi should apply retroactively to collateral attack on sentencing, petitioner's claim has no merit.
For the foregoing reasons, the petition for a writ of habeas corpus is denied.
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