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 ...