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") motion for a certificate of appealability. For the reasons stated below, we deny the motion for a certificate of appealability.
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. On April 27, 2006, Jett filed a petition for writ of habeas corpus ("Petition") and on October 26, 2006, we denied the Petition. Jett has now filed a motion for a certificate of appealability.
If a court denies a petition for writ of habeas corpus and the petitioner wishes to appeal that ruling the petitioner must obtain a certificate of appealability. 28 U.S.C. § 2253(c). A court should only issue a certificate of appealability "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must also show that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDonnell, 529 U.S. 473, 484 (2000)(quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)).
Jett includes in his motion for a certificate of appealability the same arguments included in the Petition. Jett argues 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. Jett has not presented any arguments in his motion for a certificate of appealability that explain why he believes this court erred in denying the Petition, or why reasonable jurists could disagree regarding this court's ruling on the Petition.
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 was 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. As we explained in our prior ruling, 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 either of 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 the jury first found that the elements of first-degree murder had been proven beyond a reasonable doubt. (G. Ex. D 2-3); (G. Ex. G.). 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 murder. Jett was sentenced based upon the record that included information concerning the brutal, heinous, and cruel nature of his crime, which was and remains a valid consideration for sentencing. Throughout the entire course of the criminal proceedings, Jett was charged with the offense of first-degree murder and the State never indicated that it would not seek an enhancement to the sentence based on the nature of the crime. Neither the first-degree murder statute nor the enhanced sentencing statute has been invalidated. 720 ILCS 5/9-1(a); 730 ILCS 5/5-8-1(a)(1)(b), (a)(1)(c). Jett was convicted of the same offense that existed when he committed his crime. Thus, we conclude that no reasonable jurist could debate whether Jett has shown any violation of the principle of the separation of powers or any violation of his due process rights.
Jett also argues that the inclusion of the Brutal or Heinous Factor in the Additional Indictment, Jury Instruction, and Verdict Forms changed the offense for which he was charged after he committed his crime and thus violated the Ex Post Facto Clause of the United States Constitution. The purpose of the Ex Post Facto Clause is to ensure that a defendant is provided with "notice, foreseeability, and, in particular, the right to fair warning as those concepts bear on the constitutionality of attaching criminal penalties to what previously ...