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GERVAIS v. McADORY

March 19, 2004.

ENRIQUE B. GERVAIS, Petitioner,
v.
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.

BACKGROUND

  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 Page 2 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 sentencing judge Page 3 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 Page 4 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 District.

  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 ...


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