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MACK v. BATTAGLIA

August 25, 2005.

LARRY MACK, Petitioner,
v.
DEIRDRE BATTAGLIA, Respondent.



The opinion of the court was delivered by: RUBEN CASTILLO, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Larry Mack — who is currently serving a natural life sentence for first-degree murder — has petitioned this Court for a writ of habeas corpus pursuant to Section 2254 of the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254. (R. 1-1.) In support of his petition, Mack argues that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which 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." His petition challenges the Illinois Appellate Court's decision affirming his natural life sentence on the ground that the trial court's Apprendi violation was harmless. (R. 1, Pet. at 16.) Specifically, Mack argues that the Appellate Court's application of the harmless error doctrine was contrary to and involved an unreasonable interpretation of the federal law and arose from an unreasonable determination of the facts of his case. (Id. at 15-20.)

Mack's petition sets forth two additional bases for relief. First, Mack argues that, in the absence of a jury verdict, an Apprendi violation can never be harmless error. (Id. at 20.) Second, Mack argues that his due process rights under the Fourteenth Amendment were violated because the judge who decided his appeal in state court was the Illinois Attorney General at the time of his conviction and direct appeal. (Id. at 20-22.) Because we agree that the Appellate Court's harmless error decision involved an unreasonable determination of the facts of this case and was based on an unreasonable application of federal law, we need not reach these additional arguments.

  BACKGROUND

  This case has a long and complicated procedural history which we will describe in detail given its central importance to Mack's current claims. We have gleaned this history from the state court materials Respondent Deirdre Battaglia provided pursuant to Rule 5 of the Rules Governing Section 2254 Cases for the United States District Courts ("Section 2254 Rules") as well as Mack's statement of facts.*fn1

  I. Mack's Conviction and Direct Appeal

  In 1981, after he waived his right to a jury trial, Mack was given a bench trial on three counts of murder and two counts of armed robbery in connection with his role in a bank robbery and fatal shooting. (R. 11, Answer, Ex. A, People v. Mack, 473 N.E.2d 880, 884 (Ill. 1984).) The evidence at trial showed that Mack entered the West Pullman United Savings Bank in Chicago on November 23, 1979. (Id.) John McGinty — a loan officer for the bank — testified that Mack approached Joseph Kolar — the bank's security guard — and pulled a gun from under his coat which he then placed inches from Mr. Kolar's collar. (Id. at 884-85.) When Mr. Kolar tried to push the gun away, Mack shot him in the right arm. (Id. at 885.) Mack placed the gun against Mr. Kolar's back, walked or pushed him over to a set of windows, and forced him to lie on his back on the floor. (Id.) Mack then stood over Mr. Kolar, straddled him with his legs, and fired a fatal shot into Mr. Kolar's chest. (Id.) Mack took Mr. Kolar's gun from its holster. (Id.) As Mack stood over Mr. Kolar, his two accomplices — Peterson and Turner — entered the bank and gathered money while Mack patrolled the area in front of the teller's cages. (Id.) Shortly after exiting the bank, Mack, Peterson, and Turner were apprehended by three police officers and arrested. (Id.)

  Upon completion of the bench trial, Mack was convicted of three counts of murder and two counts of armed robbery. Under the law in effect in Illinois in 1979, the sentencing range for murder was imprisonment for a term of twenty to forty years. (R. 1, Pet. ¶ 13 (citing Ill. Rev. Stat. Ch. 38 § 1005-8-1).) Under Section 9-1(b) of the statute — which sets forth a number of aggravating factors that support an extended term sentence — a person who commits first degree murder may be sentenced to death if the defendant is at least eighteen years old and:
6. the murdered individual was killed in the course of another felony if: (a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime; and (b) the defendant killed the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm to the murdered individual or another; and (c) the other felony was one of the following: armed robbery. . . .
(R. 11, Answer, Ex. H, People v. Mack, 658 N.E.2d 437, 439 (Ill. 1995) (quoting Ill. Rev. Stat. 1979 Ch. 38 § 9-1(b)(6)) (emphasis omitted).) The statutory sentence for first degree murder could also be extended to natural life if one of the statutory aggravating factors listed in Section 9-1(b) was present, or if "the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty[.]" (R. 1, Pet. ¶ 14 (citing Ill. Rev. Stat. Ch. 38 § 1005-8-1(a)(1)(b)).)

  After finding Mack guilty of murder and armed robbery, the trial court held a bifurcated sentencing hearing before a jury to determine whether Mack should receive the death penalty. (R. 11, Answer, Ex. A, People v. Mack, 473 N.E.2d at 884.) In the first phase of the hearing the jury found that Mack satisfied a statutory aggravating factor. (Id.) In the second phase, the jury heard evidence in mitigation and found no factors sufficient to preclude a death sentence. (Id.) As a result, Mack was sentenced to death. (Id.) Mack appealed directly to the Illinois Supreme Court, which vacated two of Mack's murder convictions and one of the armed robbery convictions. (Id. at 898.) It upheld Mack's conviction and sentence for the armed robbery of McGinty and his conviction and sentence for "intentionally and knowingly shooting and killing Kolar[.]" (Id.)

  After his death sentence was upheld, Mack petitioned the United States Supreme Court for a writ of certiorari. The Supreme Court granted the petition, vacated the judgment, and remanded the case to the Supreme Court of Illinois for consideration in light of Griffith v. Kentucky, 479 U.S. 314 (1987). (R. 11, Answer, Ex. C, Mack v. Illinois, 479 U.S. 1074 (1987).) After a hearing was held in the Cook County Circuit Court on Mack's claim of purposeful discrimination in jury selection, the Illinois Supreme Court affirmed the Circuit Court's finding that the State had provided sufficiently race-neutral reasons for its peremptory challenges. (R. 11, Answer, Ex. E, People v. Mack, 538 N.E.2d 1107, 1113 (Ill. 1989).) It also set a date for Mack's execution. (Id. at 1117.) Mack again petitioned the United States Supreme Court for a writ of certiorari, but this time his petition was denied. (R. 11, Answer, Ex. F. Mack v. Illinois, 493 U.S. 1093 (1990).) Mack then sought and was denied rehearing before the United States Supreme Court. (R. 11, Answer, Ex. G, Mack v. Illinois, 494 U.S. 1092 (1990).)

  II. The Post-Conviction Proceedings

  On July 31, 1990, Mack filed a petition for post-conviction relief in the Cook County Circuit Court claiming that his death sentence was improper because the jury's verdict did not specify that he acted with the requisite mental state to qualify for the death penalty. (See R. 11, Answer, Ex. H, People v. Mack, 658 N.E.2d at 440.) The aggravating factor under which Mack was sentenced specifies that the defendant must have killed "intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm." Ill. Rev. Stat. 1979 ch. 38, par. 9-1(b)(6). The verdict form supplied to and returned by the jury in connection with this aggravating factor omitted any specification that the defendant acted with the requisite mental state of intent or knowledge. (R. 11, Answer, Ex. H, People v. Mack, 658 N.E.2d at 440.) Instead, it simply stated: "[w]e the jury, unanimously find beyond a reasonable doubt that the following aggravating factor exists in relation to this Murder: Larry Mack killed Joseph Kolar in the course of an Armed Robbery." (Id.)

  The Cook County Circuit Court agreed that, in the absence of a proper jury determination that the requisite mental state existed, Mack's sentence was unconstitutional. (Id.) It vacated Mack's sentence and ordered a new sentencing hearing. (Id.) The State appealed directly to the Illinois Supreme Court arguing that Mack had waived this claim by failing to raise it on direct appeal. (Id.) The Illinois Supreme Court rejected this argument, finding that Mack had not waived his claim because his counsel was ineffective for failing to raise it on direct appeal. (Id. at 441.) It also found that the death sentence verdict could not withstand constitutional scrutiny because it did "not state that [Mack] was found eligible for the death penalty," and it "attempted to set forth a statutory aggravating factor, but failed to do so completely and omitted an essential element." (Id. at 444.) Thus, the Illinois Supreme Court affirmed the circuit court's decision vacating Mack's death sentence and ordering a new sentencing hearing. (Id.)

  The State sought and was denied rehearing before the Illinois Supreme Court. (R. 11, Answer, Ex. I, Ill. Sup. Ct. Order.) After Mack unsuccessfully attempted to bar an additional hearing, the case proceeded to a second sentencing hearing. (R. 11, Answer, Ex. J, People v. Mack, 695 N.E.2d 869, 871, 873 (Ill. 1998); Id., Ex. K, Mack v. Illinois, 525 U.S. 1007 (1998).)

  III. The Second ...


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