The opinion of the court was delivered by: JOAN H. LEFKOW, District Judge
*fn1 Charles L. Hinsley is the current Warden as the Menard
Correctional Center and is thus the proper respondent in this
habeas corpus action. See Rule 2(a) of the Rules Governing Habeas
Corpus cases under 28 U.S.C. § 2254. Therefore, the court
substitutes Hinsley as the respondent. See Fed.R. Civ. Pro.
MEMORANDUM OPINION AND ORDER
Petitioner Kwantey Dyse ("Dyse") was convicted in the Circuit
Court of Cook County, Illinois of one count of first-degree
murder and three counts of attempted first-degree murder. He was
sentenced to fifty years in prison for the murder conviction and
three twenty-year sentences for the remaining convictions, to be
served consecutively. In his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, Dyse contends that the imposition
of consecutive sentences violated his Sixth Amendment rights
under Apprendi v. New Jersey, 530 U.S. 466 (2000). For the
reasons stated below, the Court denies his petition. HABEAS STANDARDS
Pursuant to the Antiterrorism and Effective Death Penalty Act
("AEDPA"), this court must deny a petition for a writ of habeas
corpus with respect to any claim adjudicated on the merits in the
state court unless the state court's decision "was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States" or "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." See
28 U.S.C. § 2254(d); Price v. Vincent, 538 U.S. 634, 638-39 (2003). A
state court's decision is contrary to clearly established Supreme
Court precedent "if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of
law" or "if the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [it]." Williams v. Taylor,
529 U.S. 362, 405 (2000). In order for a state court decision to
be considered "unreasonable" under this standard it must be more
than incorrect, it must lie "well outside the boundaries of
permissible differences of opinion." Hardaway v. Young,
302 F.3d 757, 762 (7th Cir. 2002); see also Schultz v. Page,
313 F.3d 1010, 1015 (7th Cir. 2002) (reasonable state court
decision must be at least minimally consistent with the facts and
circumstances of the case).
Before reviewing the state courts' decisions, however, the
court must determine whether the petitioner fairly presented his
federal claims to the state courts, as any claim not presented to
the state's highest court is deemed procedurally defaulted.
O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).
Moreover, "[a] federal court will not review a question of
federal law decided by a state court if the decision of the state
court rests on a state procedural ground that is independent of the federal question and adequate to support the
judgment." Moore v. Bryant, 295 F.3d 771, 774 (7th Cir.
2002). A federal court may not grant habeas relief on a defaulted
claim unless the petitioner can demonstrate cause for the default
and actual prejudice as a result of the alleged violation of
federal law, or demonstrate that failure to consider the claim
will result in a fundamental miscarriage of justice. Coleman v.
Thompson, 501 U.S. 722, 750 (1991); Anderson v. Cowen,
227 F.3d 893, 899 (7th Cir. 2000).
On April 15, 1998, a jury sitting in the Circuit Court of Cook
County, Illinois found Dyse guilty of one count of first-degree
murder and three counts of attempted first-degree murder. Dyse
was sentenced to fifty years in prison for the murder conviction
and three twenty-year sentences for the remaining convictions. At
the sentencing hearing, the trial judge determined that Dyse had
inflicted "severe bodily injury" on the individual he had
murdered and ordered that Dyse's sentences run consecutively
pursuant to 730 Ill. Comp. Stat. 5/5-8-4(a).*fn2
Dyse appealed his sentences, but not his convictions. In an
unpublished order, the Illinois Appellate Court affirmed Dyse's
consecutive sentences. Dyse then filed two petitions for
rehearing, the second of which claimed that section 5-8-4(a) was
unconstitutional in light of Apprendi v. New Jersey.
530 U.S. 466 (2000). Based on the second petition, the Illinois Appellate
Court issued an order denying the rehearing petitions but
modifying Dyse's sentences to run concurrently. The State then
petitioned for leave to appeal the modification of Dyse's sentence, arguing that the appellate court erred in concluding
that section 5-8-4(a) was unconstitutional. Although the Illinois
Supreme Court denied this motion, it also vacated the Appellate
Court's judgement and directed the Appellate Court to reconsider
Dyse's sentences in light of People v. Wagener.
196 Ill. 2d 269 (Ill. 2001) (holding that Apprendi did not prohibit
consecutive sentences even though the court, not the jury, made
the findings prerequisite to consecutive sentencing). On August
24, 2001, the Illinois Appellate Court issued another modified
order vacating its previously modified order and affirming both
Dyse's convictions and his consecutive sentences.
Dyse petitioned for leave to appeal the second modified order
to the Illinois Supreme Court, again citing Apprendi. After the
Illinois Supreme Court denied this petition on December 5, 2001,
Dyse filed a petition for writ of certiorari to the United States
Supreme Court. On May 28, 2002, this petition was denied.
Having exhausted his state remedies, on May 27, 2003, Dyse
filed the instant petition for writ of habeas corpus, in which he
reiterates his claim that his consecutive sentences are
unconstitutional in light of Apprendi.
Dyse's argues that the imposition of consecutive sentences,
based on a fact found solely by the court, violates
Apprendi.*fn3 Apprendi requires that a jury determine
all facts (other than a prior conviction) that would raise a
sentence above its statutory maximum. 530 U.S. at 490. The
Seventh Circuit has clearly stated that Apprendi is not
violated by the imposition of consecutive sentences, based on facts found by a judge, so long as the
aggregate length of the sentence does not exceed the combined
statutory maximum sentences of the individual counts. See United
States v. Noble, 299 F.3d 907, 909-10 (7th Cir. 2002).
Section 5-8-1(a)(1) of the Illinois Code of Corrections
authorizes a maximum sentence of sixty years for first-degree
murder, and section 5-8-1(b)(3) authorizes a maximum sentence of
thirty years for attempted first-degree murder, a class X felony.
Dyse's 125-year combined sentence does not exceed the combined
maximum of the four individual sentences, so there was no
Apprendi violation. The state court's decision was neither
contrary to, nor involved an ...