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U.S v. McADORY

United States District Court, N.D. Illinois


February 2, 2004.

UNITED STATES OF AMERICA ex rel. TYRONE HOOD, Petitioner,
v.
EUGENE McADORY, Respondent

The opinion of the court was delivered by: ELAINE E. BUCKLO, District Judge

MEMORANDUM OPINION AND ORDER

On May 6, 1996, Tyrone Hood was convicted in the Circuit Court of Cook County of first degree murder and armed robbery. He was sentenced to serve consecutive prison terms of 50 years for the murder conviction and 25 years for the armed robbery conviction. On April 22, 2003, Mr. Hood filed a petition for a writ of habeas corpus, presenting six issues. I held that one issue was procedurally defaulted and that four others did not present a basis for relief. I ordered the parties to produce documents relating to Mr. Hood's final issue, and now address that issue.

Mr. Hood argues that his Fifth, Sixth, and Fourteenth Amendment rights were violated when consecutive sentences were imposed in violation of the rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000). Respondent originally argued that this issue was procedurally defaulted. However, the issue was presented to the Illinois Supreme Court and thus was preserved for evaluation on the merits. See, e.g., O'Sullivan v. Boerckel, Page 2 526 U.S. 838, 841-42 (1999); White v. Godinez, 192 F.3d 607 (7th Cir. 1999).

  Mr. Hood argues that the consecutive nature of his sentences violates the rule established in Apprendi, which holds that the jury must "determine all facts (other than a prior conviction) that would raise a sentence above its statutory maximum," United States v. Noble, 299 F.3d 907, 909 (7th Cir. 2002). So long as none of the individual sentences exceed the statutory maximum, the imposition of consecutive sentences does not implicate Apprendi, Id. The Illinois Supreme Court has specifically held that "Apprendi concerns are not implicated by consecutive sentencing," People v. Wagener, 196 Ill.2d 269, 286 (2001), stating that settled Illinois law stated that "sentences which run consecutively to each other are not transmuted thereby into a single sentence." Id, Further, Seventh Circuit law holds that the rule announced in Apprendi is not retroactive on collateral review. Curtis v. United States, 294 F.3d 841, 842 (7th Cir. 2002). The rule, announced in 2000, cannot therefore apply to Mr. Hood's 1996 conviction and sentencing. Mr. Hood's claim fails on the merits and his petition for a writ of habeas corpus is denied. Page 1

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