The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Petitioner Artarius Jett's ("Jett") petition for a writ of habeas corpus. For the reasons stated below, we deny the petition.
On September 25, 2001, Jett was found guilty of first-degree murder by a jury in the Circuit Court of DuPage County and was sentenced to natural life in prison. Jett appealed the verdict and on July 3, 2003, an Illinois Appellate Court affirmed the verdict. Jett then petitioned for leave to appeal to the Supreme Court of Illinois and the petition was denied on October 7, 2003. Jett subsequently filed a petition for post-conviction relief in Illinois state court, which was summarily dismissed on April 24, 2004. Jett appealed that ruling and an Illinois appellate court affirmed the ruling on October 17, 2005. Jett then sought relief with the state trial court from the original judgment pursuant to 735 ILCS 501-1401 and that relief was denied on March 6, 2006. Jet is currently appealing that decision. On April 27, 2006, Jett filed the instant petition for writ of habeas corpus ("Petition").
A district court may entertain a habeas corpuspetition from a "person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas corpus petition shall also not be granted: on behalf of a person in custody pursuant to the judgment of a State court . . . unless the adjudication of the claim . . . (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) 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.
28 U.S.C. § 2254(d)(1-2). A decision by a state court is deemed to be "'contrary to' [the United States Supreme Court's] clearly established precedents if it 'applies a rule that contradicts the governing law set forth in [the Court's] cases' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent.'" Early v. Packer, 537 U.S. 3, 8 (2002)(quoting Williams v. Taylor, 529 U.S. 362, 405- 06 (2000)).
Jett argues in the Petition that the prosecution against him and his conviction violated the principle of the separation of powers, his due process rights, and the Ex Post Facto Clause of the United States Constitution. Jett also contends that his trial counsel was ineffective.
I. Separation of Powers, Ex Post Facto, and Due Process
Jett contends that the prosecution against him and his conviction violates the principle of the separation of powers, his due process rights, and the Ex Post Facto Clause because, according to Jett, a non-statutory element was added to his indictment, jury instructions, and verdict forms. Jett was accused and convicted of stabbing his girlfriend, who is the mother of his child, dousing her with gasoline, and setting her on fire while she was still alive. (G. Ex. D 1). Jett was charged by an indictment ("Original Indictment") on October 27, 1999, and on June 26, 2000, during the criminal proceedings, the United States Supreme Court issued a ruling in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court held in Apprendi 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. At the time Jett committed the murder, the Illinois first-degree murder statute did not include the factor of "exceptionally brutal or heinous behavior indicative of wanton cruelty" as an element of the offense. 720 ILCS 5/9-1(a)(1999). After Apprendi, the factor was included as a basis for a sentencing enhancement. 730 ILCS 5/5-8-1(a)(1)(b), (a)(1)(c)(2000). On September 29, 2000, in an attempt to comply with Apprendi, the State obtained an additional indictment ("Additional Indictment") against Jett alleging that the conduct for each count in the original indictment was "accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." ("Brutal or Heinous Factor")(G. Ex. D 2)(Pet. 9). In addition, at trial the jury was given an instruction ("Jury Instruction") stating that if it found the elements of first-degree murder were proven beyond a reasonable doubt, the jury should "continue [its] deliberations to determine whether or not the State ha[d] proven beyond a reasonable doubt that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." (G. Ex. D 2)(G. Ex. G.). The jury was also given three verdict forms ("Verdict Forms") that gave the jury the option of finding Jett: 1) "not guilty of First Degree Murder," 2) "guilty of First Degree Murder and [finding] that the murder was not accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty," or 3) "guilty of First Degree Murder and [finding] that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." (G. Ex. D 3)(G. Ex. G).
A. Separation of Powers and Due Process
Jett asserts that the Additional Indictment, Jury Instruction, and Verdict Forms, which included the Brutal or Heinous Factor, altered the statutory elements of the first-degree murder offense and created a new offense. Jett contends that since only the Legislature is permitted to create statutory criminal offenses, the alteration of the elements of the first-degree murder offense was an improper alteration "by the executive and judicial branch in violation of constitutional principles of separation of powers, due process and ex post facto application of the laws." (Reply 1-2). However, the Additional Indictment did not create a new element for the first-degree murder offense. Jett presents no legal support that shows that the State was barred from bringing subsequent indictments against him. There is nothing in the Additional Indictment that is contrary to Apprendi, because in Apprendi the issue concerned sentencing issues that needed to be presented before the trier of fact rather than issues concerning the content of an indictment. 530 U.S. at 475. Also, in the instant action, the factual determination concerning the Brutal or Heinous Factor was made by the jury, not on the basis of the Additional Indictment. The Additional Indictment merely put Jett on notice that at the trial the State would attempt to prove the Brutal or Heinous Factor beyond a reasonable doubt. The Original Indictment and the Additional Indictment listed the elements for first-degree murder separately from the Brutal or Heinous Factor and did not give the impression that the factor was an element of the offense.
In regard to the Jury Instruction and Verdict Forms, there was no indication in them that would have led the jury to conclude that the Brutal or Heinous Factor was an element for first-degree murder. The Jury Instruction clearly explained that the jury should address the Brutal or Heinous Factor only if they first found that the elements of first-degree murder had been proven beyond a reasonable doubt. (G. Ex. D 2-3)(G. Ex. G.). Jett has pointed to no opinion of the United States Supreme Court or any other controlling precedent that would indicate that his constitutional rights were violated by the Jury Instruction or Verdict Forms. The Verdict Forms gave the jury three options on which to list their final determination and did not in any way instruct the jury that the Brutal or Heinous Factor was an element of first-degree ...