The opinion of the court was delivered by: ROBERT GETTLEMAN, District Judge
*fn1 The instant petition originally named Jonathan R. Walls,
warden of Menard Correctional Center. The proper respondent in
this case is Kevin L. Winters, the warden of the Western Illinois
Correctional Facility to which petitioner was transferred. The
court has amended the caption accordingly. See Szabo v. Walls,
313 F.3d 392, n. * (7th Cir. 2002).
MEMORANDUM OPINION AND ORDER
Petitioner was convicted of felony murder, attempted first
degree murder, and two counts of armed robbery following a
February 1997 bench trial in the Circuit Court of Cook County.
The state court sentenced petitioner to the Illinois Department
of Corrections for a total of 55 years: a thirty-five year term
for felony murder, a twenty year consecutive term for attempted
murder, and two concurrent fifteen year terms for armed robbery.
Petitioner seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254. For the reasons stated below, the petition is denied.
Petitioner's convictions arose from an incident on March 18,
1995, when he dropped off his codefendant Ralph Harris, parked
the car, and waited while Harris left carrying a handgun.
Petitioner then heard several gunshots. Harris returned shortly
thereafter, and told petitioner that he had robbed and shot two "dope" dealers, and gave petitioner
$100. One of the dealers, Eric Watkins, was killed, and the
other, James Henry, Jr., survived and testified at petitioner's
trial. After a bench trial, petitioner was convicted of felony
murder of Watkins, attempted first degree murder of Henry, and
two counts of armed robbery, all based on accountability (as the
getaway driver for Harris).
On direct appeal, petitioner argued that: (1) the police lacked
probable cause to arrest him and thus the trial court should have
sustained his motion to quash the arrest and suppress evidence;
(2) the State failed to prove that petitioner was guilty beyond a
reasonable doubt of felony murder because it failed to prove that
petitioner had the specific intent to aid and abet the shooter,
Ralph Harris; and (3) petitioner's fifty-five year sentence was
excessive and should be reduced. In an unpublished order, the
Appellate Court of Illinois affirmed the trial court's judgment
in its entirety. See People v. Brunt, No. 1-97-0935 (Ill.
App. 1st Dist. March 9, 1999). In his subsequent petition for
leave to appeal to the Illinois Supreme Court, petitioner
described the issue presented as "whether the appellate court
erred when it affirmed petitioner's conviction, even though the
trial court had committed reversible error when it denied the
Motion to Quash Arrest Suppress Evidence." On February 2, 2000,
the Illinois Supreme Court denied petitioner leave to appeal.
Petitioner then filed a pro se petition for post-conviction
relief pursuant to the Illinois Post-Conviction Act,
725 ILCS § 5/122-1 et seq, raising five issues: (1) trial counsel rendered
ineffective assistance by failing to move for a mistrial because
petitioner did not knowingly and intelligently waive his right to
a jury trial; (2) the trial court erred in overruling
petitioner's objection to testimony concerning "other crimes"
evidence in violation of the Fourteenth Amendment to the United States Constitution; (3) the State's
closing argument improperly referenced other crimes evidence in
violation of the Fourteenth Amendment to the United States
Constitution; (4) the trial court erroneously considered
petitioner's statements regarding other crimes in violation of
the Fourteenth Amendment to the United States Constitution; and
(5) appellate counsel rendered ineffective assistance by failing
to raise these claims on direct appeal. In an order dated April
14, 2000, the Circuit Court of Cook County held that petitioner's
claims were untimely, and that the issues raised by his petition
were frivolous and patently without merit.
Petitioner obtained counsel and appealed the denial of his
state petition for post-conviction relief. On appeal,
petitioner's counsel argued that: (1) his petition was not
untimely, because the statute of limitations should not have
started running until after his motion for reconsideration of his
sentence was denied; (2) petitioner's consecutive sentences
violated the rule announced in Apprendi v. New Jersey,
530 U.S. 466 (2000); (3) the enactment of Public Act 83-942, which amended
the Post-Conviction Hearing Act to require the dismissal of
certain post-conviction petitions prior to the appointment of
counsel, violates the single subject rule of the Illinois
Constitution; and (4) one of petitioner's convictions for armed
robbery must be reversed because a criminal defendant in Illinois
cannot be convicted of both felony murder and the underlying
predicate felony. In People v. Brunt, 332 Ill. App. 3d 974
(Ill.App. 1st Dist. 2002), the Illinois Appellate Court
vacated one of petitioner's armed robbery sentences, and affirmed
the circuit court's dismissal "on the basis that the petition was
frivolous and patently without merit." The appellate court
further held that, (1) petitioner's sentences did not violate
Apprendi, and (2) Public Act 83-942 does not violate the single
subject rule of the Illinois Constitution. In his petition for leave to appeal to the Illinois Supreme
Court, in which he was represented by counsel, the only issues
raised by petitioner related to Apprendi: (1) whether
petitioner's consecutive sentences violated Apprendi, and (2)
whether Apprendi applies retroactively on collateral review.
Petitioner was denied leave to appeal on December 5, 2002.
On May 19, 2003, petitioner filed the instant pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, raising
four issues: (1) his state post-conviction petition should not
have been dismissed as untimely; (2) his consecutive sentences
are unconstitutional under Apprendi; (3) the enactment of
Public Act 83-942 violates the single subject rule of the
Illinois Constitution; and (4) his conviction for armed robbery
must be vacated because he was convicted under the prosecution's
felony murder theory.
On September 26, 2003, the court denied petitioner's motion for
appointment of counsel as premature, stating that "whether the
interests of justice require appointment of counsel in this case
cannot be determined until after the court has had an opportunity
to review and consider respondent's answer to the petition."
Respondent answered the petition on November 17, 2003, and
petitioner was ordered to reply on or before January 12, 2004. On
December 29, 2003, petitioner filed another motion for
appointment of counsel. As of the date of this order, petitioner
has neither filed a reply nor sought additional time to reply to
In his answer, respondent argues that petitioner's claims under
Apprendi fail because Apprendi is not retroactively
applicable to cases on federal habeas review, and that
petitioner's claims regarding timeliness and the Illinois
constitution, (1) are state law claims that are not cognizable on
habeas review, and (2) are procedurally defaulted. As for
petitioner's claim that his armed robbery sentence ...