United States District Court, N.D. Illinois
March 19, 2004.
ENRIQUE B. GERVAIS, Petitioner,
EUGENE McADORY, Warden, Respondent
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Enrique Gervais, seeks a writ of habeas corpus against the
Menard Correctional Center Warden, Eugene McAdory, pursuant to
28 U.S.C. § 2254. Gervais raises two claims in the first writ: (1)
whether Apprendi v. New Jersey, 530 U.S. 466 (2000), is applicable to
defendants who enter guilty pleas and (2) whether the imposition of an
extended term for attempted murder and consecutive sentences violates the
rule in Apprendi.
On January 11, 1997, police arrested Gervais after he shot at three
police officers. The State charged Gervais by indictment with three
counts of attempted first-degree murder, one count of aggravated battery
with a firearm, and two counts of aggravated discharge of a firearm. The
State did not allege in any of the attempted murder counts that the
victims were police officers. In the remaining counts, the State alleged
that the same victims were police officers. During Gervais's arraignment,
at the state's request, the trial court advised Gervais that, because the
victims were police officers, Gervais could receive extended-term
sentences if convicted of attempted murder.
On April 9, 1997, Gervais pled guilty to the attempted murder of
Officer Hampton. That same day, the State filed an information alleging
that Gervais committed aggravated discharge of a
firearm by knowingly discharging a firearm in the direction of Officers
Ferry and Mercado, "peace officers engaged in their official duties."
Gervais agreed to plead guilty to this charge. In return for the guilty
pleas, the State nol-prossed the remaining counts.
During the guilty plea hearing, the State advised the court that it
would seek consecutive sentences because both offenses were Class X
felonies committed as part of a single course of conduct and Gervais
inflicted severe bodily injury. Defense counsel agreed that the extended
term for attempted murder applied. When the court admonished Gervais, it
advised him of the possibility of consecutive sentences and that the
extended sentencing range for attempted murder applied
On June 9, 1997, a sentencing hearing was conducted. Gervais was
sentenced to consecutive prison terms of 50 years for attempted murder
and 20 years for aggravated discharge of a firearm. Gervais filed a
motion to reconsider his sentence, which was denied by the court.
Gervais appealed the denial of his motion for reconsideration to the
Illinois Appellate Court, Second District. In an unpublished Rule 23
order, the appellate court held that the enhanced sentence ranges for
attempted murder and aggravated discharge of a firearm were
constitutionally invalid pursuant to the single subject clause of the
Illinois Constitution. Gervais's sentence was vacated, and the cause was
remanded for a new sentencing hearing.
Upon remand, the trial court imposed consecutive terms of 40 years for
attempted murder and 15 years for aggravated discharge of a firearm.
Gervais received consecutive sentences because the trial court found that
Gervais committed the offenses as part of a single course of conduct
during which there was no substantial change in the nature of the
criminal objective and Gervais inflicted severe bodily injury. See 730
ILCS 5/5-8-4(a). Gervais appealed his second sentence to the Illinois
Appellate Court, Second District. In his appeal, Gervais claimed: (1) the
improperly relied upon one part of the psychological evaluation; and (2)
the mittimus should be amended to allow for the correct date that Gervais
was taken into custody. In a supplemental brief, Gervais argues that the
imposition of an extended term for attempted murder and consecutive
sentences violated Apprendi.
The appellate court affirmed the consecutive sentences imposed by the
trial court and modified the mittimus to grant Gervais an additional day
of credit against his sentence. The appellate court further held that
Gervais's Apprendi arguments were without merit because the imposition of
consecutive sentences under 730 ILCS 5/5-8-4(a) did not violate the rule
in Apprendi and that Apprendi was not applicable because Gervais pled
guilty. Furthermore, the court held that even if an Apprendi violation
occurred, the imposition of an extended term for attempted murder was
harmless beyond a reasonable doubt because before Gervais pled guilty,
the trial court advised him that an extended range applied and Gervais
accepted such. Gervais never disputed that he knew or should have known
that the victim was a peace officer performing his official duties.
Gervais filed a petition for leave to appeal to the Illinois Supreme
Court raising two claims: (1) whether the imposition of an extended term
for attempted murder and consecutive sentences violated the rule in
Apprendi and (2) whether Apprendi was applicable to a defendant who pled
guilty. On May 30, 2002, the Illinois Supreme Court denied the petition
for leave to appeal.
On August 15, 2002, Gervais filed a writ of certiorari in the United
States Supreme Court, claiming that the Illinois courts improperly
refused to apply Apprendi to those defendants who entered guilty
pleas and received sentences in an enhanced range. On October 15, 2002,
Gervais's writ for certiorari was denied.
On November 6, 2002, Gervais filed a pro se post-conviction petition,
claiming (1) it was
error to allow the State to file an amended information on the morning of
Gervais's guilty plea, and (2) the trial court erred in imposing
consecutive sentences because the victims of the aggravated discharge of
a firearm offense did not suffer severe bodily injury. The trial court
summarily dismissed the post-conviction petition as frivolous and without
merit. On December 11, 2002, Gervais appealed the denial of his
post-conviction petition to the Illinois Appellate Court, Second
On January 23, 2003, Gervais filed the instant petition for Writ of
Habeas Corpus. On August 3, 2003, this Court granted Gervais's Motion to
Stay his habeas proceeding pending termination of his post-conviction
appeal in the Illinois Court.
On August 13, 2003, Gervais's counsel in the Illinois court appeal
filed a motion to withdraw the appeal pursuant to Pennsylvania v.
Finley, 481 U.S. 551 (1987). On August 26, 2003, Gervais advised this
Court that he wished to proceed before this Court and would not raise any
additional issues in his habeas petition that had not already been
raised, notwithstanding that his post-conviction appeal was still
pending. On October 15, 2003, the Appellate Court granted the Finley
motion and affirmed the dismissal of Gervais's post-conviction petition.
A federal court may grant a state habeas petitioner relief for a claim
that was adjudicated on the merits in state court only if that
adjudication "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1). The habeas petition bears the burden of
demonstrating a "contrary to" or "unreasonable application" of federal
law. See Woodford v. Visciotti, 123 S.Ct. 357, 360 (2002) (Woodford). The
reviewing court applies a highly deferential
standard when evaluating the state court's rulings, and the state court's
decision is given the benefit of the doubt. See Woodford, 123 S.Ct. at
A state court's ruling is "contrary to" clearly established federal law
if it applies a rule that contradicts the governing law set forth in
federal law or if it includes a set of facts that are materially
indistinguishable from a decision of the Supreme Court of the United
States and nevertheless arrives at a different result from the Supreme
Court precedent. See Mitchell v. Esparza, 124 S.Ct. 7, 10 (2003)
A state court's ruling is an "unreasonable application" of federal law
if the state court identifies the correct governing legal principle from
the Supreme Court precedent but unreasonably applies that principle to
the facts before the state court. See Wiggins v. Smith, 123 So. Ct 2527,
2535 (2003) (Wiggins). A state court's decision must be more than
incorrect or erroneous to find an unreasonable application of federal
law; the state court's application must be "objectively unreasonable." See
Wiggins, 123 S.Ct. at 2535.
Gervais argues that the state court incorrectly held that the Apprendi
rule did not apply to a defendant that pled guilty. Gervais contends that
the state court was incorrect because the defendant in Apprendi,
himself, had pled guilty.
The Illinois Appellate Court, citing People v. Chandler,
321 Ill. App.3d 292 (2001), found that Apprendi did not apply to the
imposition of consecutive sentences and an extended term because
Gervais, as in Chandler, was admonished about the possibility of
consecutive sentences and waived a jury trial on all issues. Therefore,
Gervais could not claim that he was unfairly deprived of a right to have
a jury determine any issue beyond a reasonable doubt.
The Illinois Supreme Court has also found that a guilty plea by a
defendant waives Apprendi-based sentencing objections on appeal. See
People v. Jackson, 199 Ill.2d 286 (2002) (Jackson). The Jackson court
specifically addressed the defendant's argument that a guilty plea did not
waive Apprendi-based sentencing objections because Apprendi had also pled
guilty. In Apprendi, the defendant pled guilty but reserved the right to
challenge the enhancement statute on grounds that it violated the United
States Constitution. See Apprendi, 530 U.S. at 471; Jackson, 199 Ill.2d at
297. Unlike Apprendi, the Jackson defendant (and Gervais) were clearly
apprised that the court could impose an extended-term sentence, and the
defendant unequivocally and without reservation waived the right to a
jury trial. See Jackson, 199 Ill.2d at 298; see also Hill v. Cowan,
202 Ill.2d 151, 154 (2002) (habeas petitioner's guilty plea foreclosed
him from raising an Apprendi challenge to his sentence).
A review of the Appellate Court's ruling demonstrates that the court
applied the governing federal law, and its application of that law was
not objectively unreasonable.
Gervais also argues in his first claim that his sentence is contrary to
Apprendi because he entered a guilty plea to attempted first-degree
murder, and only after his voluntary plea did the State file the
information adding the charge of aggravated discharge of a firearm.
Gervais's argument is without merit. The transcripts of the proceedings
clearly demonstrate that the new information charging Gervais with
aggravated discharge of a firearm was filed prior to his guilty plea and
that the trial court thoroughly reviewed the charge prior to the guilty
plea. Gervais's only guilty plea included the aggravated discharge of a
firearm charge. Furthermore, the trial court informed Gervais of the
possibility of consecutive sentences because of the aggravated discharge
of a firearm charge.
Gervais also argues that the imposition of an extended sentence for
attempted murder and consecutive sentences violated the rule of
Apprendi. Gervais again contends that he was unaware of the charges
against him and the possibility of an extended term and consecutive
sentence. However, the transcripts of the guilty plea clearly demonstrate
that Gervais was fully informed of and fully understood the charges
against him and the possibility of extended and consecutive sentences.
Gervais received an extended-term sentence for his attempted murder
charge because the victim was a peace officer performing his official
duties and the defendant knew or should have known that the individual
was a police officer. Gervais also received a consecutive sentence
because the trial court found that Gervais committed the same offenses as
part of a single course of conduct during which there was no substantial
change in the nature of the criminal objective and he inflicted severe
The Appellate Court, again citing to Chandler, found that the
imposition of the extended term and consecutive sentences were not a
violation of Apprendi because Gervais pled guilty to the charges against
him, which included knowledge that the victims were police officers and
that he inflicted great bodily harm. The Appellate Court also found that
Apprendi did not apply to the imposition of consecutive sentences because
the imposition of the consecutive sentence did not result in Gervais's
being sentenced in excess of the statutory maximum as must be decided by
a jury. Furthermore, the Appellate Court found that even if an Apprendi
violation had occurred, such would have been harmless error beyond a
Gervais has failed to demonstrate that the Appellate Court's ruling was
contrary to or an unreasonable application of federal law.
For the reasons stated above, Gervais's habeas petition is denied.
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