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DYSE v. HINSLEY

United States District Court, N.D. Illinois, Eastern Division


October 12, 2004.

KWANTEY DYSE, Petitioner,
v.
CHARLES L. HINSLEY, Warden, Menard Correctional Center,[fn1] Respondent.

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. 25(d)(1).

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).

  PROCEDURAL HISTORY

  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.

  DISCUSSION

  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 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

  CONCLUSION

  For the foregoing reason, Dyse's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied. This case is terminated.


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