United States District Court, N.D. Illinois, Eastern Division
October 18, 2004.
UNITED STATES ex rel. DAMEN PRICE, Petitioner,
EUGENE McADORY, Warden, Menard Correctional Center, Respondent.
The opinion of the court was delivered by: AMY J. ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Before this Court is petitioner Damen Price's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254(d)(1). For the
reasons discussed below, Price's petition is denied.
A. Trial Evidence
Petitioner does not challenge the statement of facts set forth
in the Illinois Supreme Court opinions affirming the judgments of
the trial court, and thus those facts are presumed correct for
purposes of the Court's review. See 28 U.S.C. § 2254(e)(1);
Ward v. Hinsley, 377 F.3d 719, 721 (7th Cir. 2004). The
Court, therefore, adopts the underlying facts set forth by the
Appellate Court of Illinois, First Judicial District, in
Petitioner's direct and post-conviction appeals. See People v.
Price, No. 1-97-3195 (1st Dist. April 5, 1999) (unpublished
order); People v. Price, No. 00-2838 (1st Dist. July 11,
2002) (unpublished order).
The evidence presented a trial established that on October 9,
1994, a four year old victim was killed in an arson fire at 743
W. 103rd Street in Chicago. The arson involved gang retaliation. The fire resulted from Molotov cocktails being
thrown into the house from an alley adjacent to a gas station
parking lot. The victim's cousin was a member of the Gangster
Disciples and was the intended victim. Petitioner was a member of
a rival street gang. At approximately 2:00 a.m., a group of men,
including Petitioner, were in the alley behind the house and
threw at least two Molotov cocktails through the kitchen window
yelling G.D.K., meaning Gangster Disciple Killer.
B. Procedural Background
Following a jury trial in the Circuit Court of Cook County, the
jury found Petitioner guilty of first degree murder and
aggravated arson. The jury also found Petitioner eligible for the
death penalty, but determined that the court should not sentence
him to death. The Circuit Court thus sentenced Petitioner to
consecutive sentences of life imprisonment for first degree
murder and a 30-year prison term for aggravated arson.
Petitioner appealed his conviction to the First District
Appellate Court of Illinois. On appeal, Petitioner raised the
following issues: 1) he was denied a fair trial because the
prosecutor told the jury that defense counsel did not believe
Petitioner's testimony; 2) the court erred in sentencing
Petitioner without ordering a pre-sentence report and because the
parties did not agree to the imposition of a particular sentence;
and 3) the trial court abused its discretion when it sentenced
Petitioner to natural life imprisonment because the trial court's
sentence was unduly severe. (R. 15-1, Ex. A.) On April 5, 1999,
the Illinois Appellate Court, First Judicial District, affirmed
the Circuit Court. (Id. Ex. C.)
Next, Petitioner filed a petition for leave to appeal to the
Illinois Supreme Court. In his petition, he raised the same
issues that he presented in his direct appeal to the appellate
court. (Id. Ex. D.) On February 2, 2000, the Illinois Supreme Court
denied his petition for leave to appeal. (Id. Ex. E.)
Petitioner then filed a petition pursuant to the Illinois
Post-Conviction Hearing Act alleging that: 1) he received
ineffective assistance of trial counsel for failure to file a
motion to suppress statements; 2) he received ineffective
assistance of trial counsel for failure to adequately investigate
the crime scene; 3) he received ineffective assistance of trial
counsel for failure to call two individuals as witnesses who gave
statements after the State interviewed those witnesses; 4) he
received ineffective assistance of trial counsel for failure to
object after the trial court allowed co-defendant's statement
into evidence; 5) he received ineffective assistance of trial
counsel for failure to object when a certain State's witness
testified inconsistently from earlier testimony before the grand
jury; 6) he was denied a fair trial because the State did not
produce a witness to testify that Petitioner actually threw a
Molotov cocktail into the house; 7) he was denied a fair trial
after the trial court denied his motion for appointment of new
counsel; 8) he was denied a fair trial because the court admitted
co-defendant's written statement into evidence; 9) he was
prejudiced by the State's use of inflammatory remarks; 10) he was
prejudiced because the State failed to apprize the trial court
that one of its witnesses testified falsely; and 11) he received
ineffective assistance of appellate counsel for failure to comply
with Supreme Court Rule 341(e)(7). (Id. Ex. F). On June 20,
2000, the Circuit Court of Cook County denied Petitioner's
post-conviction petition. (Id. Ex. F.)
Shortly thereafter, Petitioner appealed the Circuit Court's
denial of his post-conviction petition to the Illinois Appellate
Court, First Judicial District. He claimed that the trial court
erred in summarily dismissing his pro se petition because it
included a non-frivolous claim of actual innocence based on an affidavit of his co-defendant, Imani
Thomas, and that his trial counsel was ineffective for failing to
present evidence that would have discredited the testimony of the
eyewitnesses. He also raised a claim based on Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Finally, Petitioner argued that the enactment of Public Act
83-942, which amended the Illinois Post-Conviction Hearing Act to
permit the dismissal of certain petitions prior to the
appointment of counsel, violated the single subject rule of the
Illinois Constitution. (Id. Ex. G.) On July 11, 2002, the
Illinois Appellate Court, First Judicial District, affirmed the
Circuit Court's summary dismissal of Petitioner's post-conviction
petition. (Id. Ex. J.) On August 1, 2002, the appellate court
denied Petitioner's petition for a rehearing. (Id. Ex. L.)
Petitioner then filed a petition for leave to appeal to the
Illinois Supreme Court arguing that: 1) his sentence violated
Apprendi; 2) the post-conviction court erred when it summarily
dismissed his pro se claims of actual innocence based on his
co-defendant's affidavit; and (3) the post-conviction court erred
because his post-conviction petition included a non-frivolous
claim that trial counsel was ineffective for failing to present
impeachment evidence. (Id. Ex. M.) On December 5, 2002, the
Illinois Supreme Court denied the petition for leave to appeal.
(Id. Ex. N.)
On February 4, 2003, Petitioner filed a successive
post-conviction petition raising the claim of actual innocence.
He again included Imani Thomas' affidavit. According to the
petition, Petitioner claimed that he misunderstood the law, and
thus was unable to adequately raise the claim in his first
petition. (Id. Ex. O.) On May 20, 2003, the Circuit Court of
Cook County dismissed the successive post-conviction petition as
procedurally barred and frivolous and without merit. (Id. Ex. P.)
Petitioner filed the present petition for habeas corpus with
the Court on September 5, 2003. Respondent filed its answer on
December 30, 2003, and Petitioner filed his reply in support of
his petition for habeas corpus relief on January 20, 2004.
Construing his pro se habeas petition liberally, see Calhoun
v. DeTella, 319 F.3d 936, 943 (7th Cir. 2003), Petitioner
asserts the following claims: 1) he was denied a fair trial
because the prosecutor's closing argument included a remark that
defense counsel did not believe the Petitioner's defense; 2) the
trial court abused its discretion in sentencing Petitioner to
life imprisonment, rather than a term of years; 3) the
post-conviction court erred in dismissing Petitioner's claim
based on actual innocence where he submitted the affidavit of
co-defendant Imani Thomas which stated that Petitioner was not
involved in the crime; 4) the post-conviction court erred when it
dismissed Petitioner's claim that counsel was ineffective for
failing to present impeachment evidence; and 5) Petitioner's
sentence was unconstitutional under Apprendi.
II. LEGAL STANDARDS
A. Habeas Standard
Under the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), habeas relief cannot be granted unless the state
court's decision was contrary to, or an unreasonable application
of law clearly established by the Supreme Court. See Rodriguez
v. Chandler, 382 F.3d 670, 672 (7th Cir. 2004); see also
Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 1519,
146 L.Ed.2d 389 (2000). In Williams, the Supreme Court
explained that a state court's decision is "contrary to" clearly
established Supreme Court law "if the state court arrives at a
conclusion opposite to that reached by this 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 ours." See id. at 405.
Under the "unreasonable application" prong under Section
2254(d)(1), a habeas petitioner must demonstrate that although
the state court identified the correct legal rule, it
unreasonably applied the controlling law to the facts of the
case. See Williams, 529 U.S. at 407. A state court's
application of Supreme Court precedent is unreasonable if the
court's decision was "objectively" unreasonable. See Lockyer v.
Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1174, 155 L.Ed.2d 144
(2003) (unreasonable application more than an incorrect or
erroneous decision). To be considered "unreasonable" under this
standard, a state court's decision must lie "well outside the
boundaries of permissible differences of opinion." See Hardaway
v. Young, 302 F.3d 757, 762 (7th Cir. 2002); see also
Conner v. McBride, 375 F.3d 643, 649 (7th Cir. 2004) (state
court decision must be minimally consistent with facts and
circumstances of the case).
B. Procedural Default
A petitioner's failure to present a constitutional claim to the
highest state court to which he may appeal it in the manner
required by state law results in a procedural default preventing
a federal court from deciding the claim on collateral review.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 848,
119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). "Fair presentment requires a
petitioner to put forward operative facts and controlling legal
principles." Sweeny v. Carter, 361 F.3d 327, 332 (7th Cir.
2004). Procedural default also occurs where the state court
rejects a petitioner's claim based on an independent and adequate
state procedural ground. See Harris v. Reed, 489 U.S. 255, 263,
109 S.Ct. 1038, 103 L.Ed 2d 308 (1989) (federal courts cannot
review questions of federal law if the state court decision rests
on a state procedural ground that is independent of the federal question and adequate to support the judgment); see
also Conner, 375 F.3d at 649 (same). Under Illinois law, waiver
is an independent and adequate state court ground. See Gomez v.
Jaimet, 350 F.3d 673, 677 (7th Cir. 2003).
A petitioner may overcome procedural default by demonstrating
cause for the default and actual prejudice as a result of the
alleged violation of federal law, or by showing that failure to
consider the claims will result in a "fundamental miscarriage of
justice." Coleman v. Thompson, 501 U.S. 722, 750,
111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991). A fundamental miscarriage of
justice is limited to "the extraordinary case, where a
constitutional violation has probably resulted in the conviction
of one who is actually innocent." Schlup v. Delo, 513 U.S. 298,
321, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).
A. Fair Trial Claim
Petitioner's first habeas claim is that he was denied a fair
trial because the prosecutor's closing argument included a remark
that defense counsel did not believe in the Petitioner's defense.
During the State's cross-examination of the Petitioner, the
following colloquy occurred:
Q: Where did you stay then?
A: Here and there.
Q: Where would be "here" and where would be "there"?
A: I don't know the addresses, here and there.
Q: Do you know the area?
Q: Where? A: In my neighborhood.
Q: Who would you stay with?
A: Different people.
Q: Like who?
A: Moe, Larry, Curly Joe.
Apparently, Petitioner's answer caused people in the courtroom
to laugh and the court admonished Petitioner's counsel to control
herself. During defense counsel's closing argument, she briefly
mentioned the colloquy and gave reasons for Petitioner's answer.
The State's rebuttal closing argument included the following:
When counsel got up here and talked to you for I
don't know how long, about how much time did she
spend on his testimony? How much did she really
reflect or tell you about the evidence concerning his
testimony? She even knows it's a joke.
When addressing this issue, the Illinois Appellate Court
concluded that Petitioner was not prejudiced by the State's
comments. The appellate court based its decision on Illinois case
law which holds that because prosecutors are permitted wide
latitude in their closing arguments, improper remarks in closing
are reversible error only if they result in substantial prejudice
or where the statements serve no other purpose except to evidence
the defendant's guilt. See People v. Williams, 181 Ill.2d 297,
330, 229 Ill.Dec. 898, 692 N.E.2d 1109 (Ill. 1998); People v.
Jackson, 293 Ill.App.3d 1009, 1016, 228 Ill.Dec. 319,
689 N.E.2d 191 (Ill.App.Ct. 1997). The appellate court concluded that
because the jury was present for the entire trial, including the
Petitioner's cross-examination where he made the comments, and
had the opportunity to view the witnesses and their demeanor,
Petitioner was not substantially prejudiced by the State's
remarks. See People v. Price, No. 1-97-3195, at 6. The Court concludes that this decision is minimally consistent
with the facts and circumstances of this case. See Conner,
375 F.3d at 649. Although the Illinois Appellate Court only relied on
Illinois case law, under the AEDPA, state courts are not required
to cite United States Supreme Court cases or even be aware of
such law, as long as neither the reasoning nor the result of the
state court decision contradicts clearly established Supreme
Court precedent. See Early v. Packer, 537 U.S. 3
123 S.Ct. 362
, 365, 154 L.Ed.2d 263 (2002). Here, the Illinois court's
reasoning did not contradict clearly established United States
Supreme Court precedent. Instead, the Illinois court's conclusion
that the State's remarks did not deny Petitioner a fair trial is
consistent with Darden v. Wainwright, 477 U.S. 168
106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) ("relevant question is whether
the prosecutors' comments so infected the trial with unfairness
as to make the resulting conviction a denial of due process.").
In any event, Petitioner does not explain how or why the
Illinois appellate court's decision was contrary to, or an
unreasonable application of clearly established Supreme Court
law. Instead, he requests a hearing on this claim. Federal habeas
courts are not an alternative forum for trying issues and facts
that a habeas petitioner did not pursue at the state court level.
See Williams, 529 U.S. at 437; Boyko v. Parke, 259 F.3d 781,
789-90 (7th Cir. 2001) (federal habeas court's ability to
hold evidentiary hearing for petitioner to supplement an
underdeveloped state court record is "severely circumscribed").
Section 2254(e)(2) provides that, if a factual basis of a claim
was not developed in the state court, the federal habeas court
"shall not hold an evidentiary hearing" unless the habeas
petitioner can show:
(A) the claim relies on
(i) a new rule of constitutional law, made
retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been
previously discovered through the exercise of due
(B) the facts underlying the claim would be
sufficient to establish by clear and convincing
evidence that but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.
See 28 U.S.C. § 2254(e)(2) (emphasis added).
Because Petitioner does not assert that a new rule of
constitutional law is implicated under this claim, he must
demonstrate that the failure to develop a factual record in the
state court was not his fault. See Williams, 529 U.S. at 432;
Newell v. Hanks, 283 F.3d 827, 838 (7th Cir. 2002). Also,
Petitioner must point to facts sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would find him guilty of the underlying
offense. See 28 U.S.C. § 2254(e)(2)(B); Harris v. McAdory,
334 F.3d 665, 669-70 (7th Cir. 2003). Because Petitioner has
failed to argue any facts that satisfy this strict standard, the
Court will not grant his unwarranted request for an evidentiary
B. Sentencing Claim
Next, Petitioner contends that the Circuit Court abused its
discretion in sentencing him to life imprisonment, rather than a
term of years. Construing Petitioner's pro se habeas petition
liberally, this is an Eighth Amendment claim because he contends
that his sentence was unduly severe. See Henry v. Page,
223 F.3d 477, 482 (7th Cir. 2000); see also Solem v. Helm,
463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (sentence
may violate Eighth Amendment if grossly disproportionate to
crime). If the trial court imposes a sentence within the
acceptable range established by Illinois law, however, a
sentence's severity is not sufficient grounds for federal habeas
relief. See Henry, 223 F.3d at 482. Thus, the Court turns to
the relevant Illinois statutes.
Under the Illinois statutes pertaining to first degree murder,
a court may sentence a defendant to the death penalty, life
imprisonment, or a term of years, contingent on mitigating and
aggravating factors and other circumstances involved in the
commission of the crime. See People v. Swift, 202 Ill.2d 378,
388, 269 Ill.Dec. 495, 781 N.E.2d 292 (2002) (citing statutes).
Here, the jury concluded that Petitioner was eligible for the
death penalty, but decided that he should not be sentenced to
death. The trial court consequently sentenced Petitioner to life
imprisonment. Not only is life imprisonment within the range
established by the Illinois statutes, the Court would be
hard-pressed to conclude that life imprisonment is unduly severe
given that the jury found Petitioner eligible for the death
penalty in the first instance. Accordingly, Petitioner's
sentencing claim fails.
C. Actual Innocence Claim
Petitioner claims that the post-conviction court erred in
dismissing his claim based on actual innocence because he
submitted his co-defendant's affidavit which averred that the
Petitioner was not involved in the murder and arson. The
post-conviction appellate court concluded that despite the fact
that Petitioner stapled his co-defendant's affidavit to his
post-conviction petition, Petitioner did not raise a claim of
actual innocence in his petition. In fact, there was no language
in the petition by which the appellate court could infer a claim
of actual innocence. Because Petitioner failed to properly raise
his actual innocence claim in his post-conviction petition, the
appellate court concluded that Petitioner waived this claim.
Therefore, this claim is procedurally defaulted because the
Illinois appellate court relied upon the independent and adequate
state ground of waiver in making its determination. See Harris
v. Reed, 489 U.S. at 263; Gomez, 350 F.3d at 677.
The Court's discussion, however, does not end here.
Petitioner's claim of actual innocence or the "fundamental
miscarriage of justice exception" may be the gateway for this
court to review his procedurally defaulted claim. See Herrera v.
Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed. 203 (1993).
In other words, Petitioner's claim of actual innocence may
provide the mechanism to allow the Court to review his
procedurally defaulted claim of actual innocence under Illinois
law.*fn1 Petitioner faces a very high burden in establishing
his actual innocence. "To establish the requisite probability,
the petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in the light of the new
evidence." Schlup, 513 U.S. at 327.
Petitioner provides the new evidence of his co-defendant's
affidavit as proof of his actual innocence. Thomas' affidavit
I was present on a 103th and Emerald October 9, 1994.
Me, lil Ralph, and some more guys went over there
because some folks had shot at lil-Ralph earlier that
day. Day-Day [Petitioner] was not there when the
shooting happened. He came over after lil-Ralph came
back. He got in the car with us because lil-Ralph was
supposed to drop him off somewhere. He did not know
what we were going to do. When we got out of the cars
Day-Day stay back.
Reviewing Petitioner's new evidence in light of the evidence
presented at trial, see id. at 328, the Court concludes that
Petitioner has not met the threshold requirement that "in light
of the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt." See id. at
329 (standard requires district court to make probabilistic
decision about what reasonable, properly instructed jurors would do).
There was considerable evidence at trial that placed the
Petitioner at the scene of the crime. Indeed, after his arrest
Petitioner told the police that he was at the scene of the arson.
In addition, one eyewitness saw Petitioner holding a Molotov
cocktail, that is, a glass bottle filed with an accelerant with a
flaming rag hanging out of it, getting ready to throw it. In
other words, Thomas' averment that Petitioner "stay back" is
unequivocally refuted by the evidence produced at trial that
Petitioner was at the scene of the offense.
Because Petitioner has not made a colorable claim of actual
innocence, his claim cannot act as a gateway to a merits
determination of any procedurally defaulted claims. See
Herrera, 506 U.S. at 404.
D. Ineffective Assistance of Counsel Claims
Next, Petitioner claims that his counsel provided
constitutionally ineffective assistance of trial counsel. To
establish ineffective assistance of counsel, Petitioner must
show: (1) his attorney's performance "fell below an objective
standard of reasonableness," Strickland v. Washington,
466 U.S. 668, 688, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); and (2) "but
for counsel's unprofessional errors the result of the proceeding
would have been different." Id. at 694. If a defendant fails to
make a proper showing under one of the Strickland prongs, the
Court need not consider the other prong. See Strickland,
466 U.S. at 697.
With respect to the first prong, a "court must indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy."
Strickland, 466 U.S. at 689 (citation and quotations omitted). Under the Strickland prejudice prong, Petitioner must establish
prejudice by a "reasonable probability." Id. at 694. "A
reasonable probability is a probability sufficient to undermine
confidence in the outcome." Id.
In the context of Section 2254(d), the bar for determining
whether a state court's application of Strickland is
"unreasonable" is a high one that requires a finding of clear
error. See Murrell v. Frank, 332 F.3d 1102, 1111-12 (7th
Cir. 2003); see also Holman v. Gilmore, 126 F.3d 876, 882
(7th Cir. 1997) (because the Strickland inquiry is
balancing test rather than bright-line rule, only clear error in
applying Strickland supports writ).
Petitioner contends that he received ineffective assistance of
trial counsel because his counsel failed to present evidence that
the gas station lights would not have illuminated the area where
the arson occurred. Had such evidence been presented, Petitioner
contends that the State's witnesses who testified that they saw
him with a Molotov cocktail in his hand would have been
impeached. Petitioner supports his claim with various photographs
showing the position of the gas station lights and by the
affidavit of Andre Gross, Jr., who stated: I used to live in the
area at 103rd and Emerald. . . . I have been around and in [the]
house and the lights from the gas station do no shine over into
The post-conviction appellate court first noted that many of
the photographs were not part of the record on appeal, and thus
by law, the appellate court indulged every reasonable presumption
in favor of the judgment, including the presumption that the
trial court ruled correctly. See People v. Price, No. 00-2838,
at 7. The appellate court discussed the post-conviction trial
court's reasoning that Petitioner had failed to demonstrate that
a reasonable probability existed that the outcome of the trial
would have been different had counsel photographed the crime area. In essence, the appellate court
deferred to the trial court's conclusion that counsel's failure
to provide photographs of the surrounding area did not fulfill
the Strickland prejudice prong. See id. at 7-8.
Next, the post-conviction appellate court assumed the
information as provided in the affidavit as true, yet concluded
that it was insufficient to support a claim of ineffective
assistance of counsel because the affidavit was provided five
years after the date of the offense, and it did not support that
fact that the lights from the gas station did not illuminate the
house's backyard, let alone on the night of the offense. Id. at
8. Accordingly, the appellate court concluded that the Petitioner
failed to demonstrate that counsel's decision not to present
evidence regarding the lighting on the night in question was
anything other than sound trial strategy. See id.
This Court concludes that the Illinois appellate court's
decision is minimally consistent with the facts and circumstances
of this case, and thus a reasonable application of Strickland
See Conner, 375 F.3d at 649. First, the appellate court
concluded that the outcome of the trial would not have been
different had the photographs been submitted into evidence and
Petitioner provides no argument as to why he was prejudiced by
counsel's failure to provide the photographs. Second, the
appellate court concluded that Petitioner did not overcome the
presumption that counsel's actions constituted sound trial
strategy. See Strickland, 466 U.S. at 689. Petitioner makes no
cogent argument as top why counsel's conduct fell below an
objective standard of reasonableness. Instead, he contends that
the photographs were readily available and that counsel fell
short of his responsibilities because the State presented
witnesses who identified him due to the illumination by the gas
station lights. Without more, Petitioner has failed to establish
that the appellate court unreasonably applied Strickland to the
facts of his case. See Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357,
154 L.Ed.2d 279 (2003) (petitioner has burden in establishing state
court applied facts of case in an objectively unreasonable
manner); Lechner v. Frank, 341 F.3d 635, 638 (7th Cir.
2003) (habeas petitioner bears burden of showing state court
rejected constitutional challenges in manner that was
"unreasonable application of" or "contrary to" clearly
established Supreme Court law).
In sum, because the Strickland inquiry is a balancing test
rather than a bright-line rule and the Court concludes that there
was no clear error, Petitioner's ineffective assistance of trial
counsel claim fails. See Holman, 126 F.3d at 882.
E. Apprendi Claim
Last, Petitioner argues that his sentence of life imprisonment
violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
147 L Ed. 2d 435 (2000). In Apprendi, the Supreme Court held
that "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Id. at 490. The Supreme Court decided
Apprendi after Petitioner's sentence became final. Because
Apprendi does not apply retroactively in a collateral
proceeding, Petitioner's request for habeas relief based on
Apprendi is denied. See Lambert v. McBride, 365 F.3d 557, 562
(7th Cir. 2004) citing Curtis v. United States,
294 F.3d 841, 844 (2002), cert. denied, 537 U.S. 976, 123 S.Ct. 451, 154
L.Ed.2d. 334 (2002) (Apprendi "does not disturb sentences that
became final before June 26, 2000, the date of its release."). CONCLUSION
For these reasons, Petitioner's petition for a writ of habeas
corpus is denied.