The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Petitioner Tyrone Restivo's
("Restivo") petition for writ of habeas corpus brought pursuant
to 28 U.S.C. § 2254. For the reasons stated below we deny the
petition.
Restivo is currently incarcerated at Stateville Correctional
Center ("Stateville") in Illinois. In 1996, after a jury trial,
Restivo was convicted of aggravated criminal sexual assault and
sentenced to 55 years imprisonment. Restivo appealed his
conviction and on July 7, 1998 an Illinois appellate court
affirmed the conviction. Restivo then filed for leave to appeal to the
Illinois Supreme Court and on October 6, 1998 the Illinois
Supreme Court denied Restivo leave to appeal. Restivo then filed
a post-conviction petition and an Illinois trial court dismissed
the post-conviction petition. Restivo appealed the dismissal and
on October 23, 2000 an Illinois appellate court affirmed the
dismissal. Restivo then filed a petition for leave to appeal to
the Illinois Supreme Court and on January 29, 2001 the Illinois
Supreme Court denied Restivo leave to appeal. On June 26, 2001
Restivo filed the instant habeas corpus petition. In his habeas
petition Restivo first argues that he received ineffective
assistance by trial counsel because his counsel allegedly "failed
to properly investigate and prepare to rebut and impeach the
opinion testimony of the prosecution's witness, and . . . failed
to properly investigate and prepare to rebut and impeach the
opinion testimony of the prosecution's expert witness." (Hab.
Pet. 3). Restivo also argues in his habeas petition that his
sentence is unconstitutional pursuant to Apprendi v. New
Jersey. 530 U.S. 406 (2000).
A district court may entertain a habeas corpus petition from a
"person in custody pursuant to the judgment of a State court only
on the grounds that he is in custody in violation of the
Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Pursuant to 28 U.S.C. § 2254 a habeas corpus
petition shall not be granted:
on behalf of a person in custody pursuant to the
judgment of a State Court . . . unless the
adjudication of the claim . . . (1) 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; or (2) resulted in a decision that
was based on an unreasonable determination of the
facts in light of the evidence presented in the State
court proceeding. . . .
28 U.S.C. § 2254(d).
A federal court will not address a question of federal law
presented in a habeas corpus petition brought to contest a state
court ruling if "the state decision rests upon a state procedural
ground that is independent of the federal question and adequate
to support the judgment." Page v. Frank, 343 F.3d 901, 905
(7th Cir. 2003). Before a plaintiff can present a claim in a
habeas corpus petition the petitioner must have presented it in
"one complete round of the State's established appellate review
process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).
Restivo first raised the argument that he received ineffective
assistance counsel in his post conviction proceedings. The
Illinois state appellate court that affirmed the dismissal of the
post-conviction petition affirmed the trial court's decision on
an independent and adequate state ground. The appellate court
found that this issue regarding adequacy of counsel could have been
raised on Restivo's direct appeal. Therefore, Restivo's arguments
regarding ineffective assistance of counsel are procedurally
defaulted and we can only address the arguments if an exception
applies.
A federal court can review defaulted claims if the petitioner
"shows cause for failure to raise them at the appropriate time
and actual prejudice which resulted from such failure" or,
"[a]bsent such a showing, a defaulted claim is reviewable only if
refusal to consider it would result in a `fundamental miscarriage
of justice. . . .'" Rodriguez v. Scillia, 193 F.3d 913, 917
(7th Cir. 1999). Restivo has not shown cause or prejudice,
and, after a review of the record and the briefs, we are not
convinced that if we did not consider the defaulted issues that
there would be a fundamental miscarriage of justice.
In regards to Restivo's claim that his sentence is
unconstitutional pursuant to Apprendi v. New Jersey.
530 U.S. 466 (2000), Restivo failed to properly raise this argument in the
state courts and the claim is procedurally defaulted. We are not
convinced that the above mentioned exceptions apply or that if we
did not consider the issue there would be a fundamental
miscarriage of justice. We note in any case that the argument is
without merit because the rule of law stated in Apprendi does
not apply retroactively to collateral proceedings. See Garrott
v. U.S., 238 F.3d 903, 906 (7th Cir. 2001) (stating that "no appellate court has
held" that "Apprendi applies retroactively on collateral
attack. . . ."); Talbott v. Indiana, 226 F.3d 866, 868 (7th
Cir. 2000) (stating that "retroactive application must be
declared by the Supreme Court itself.").
Based on the foregoing analysis, we deny the petition for ...