The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Petitioner Antonio Rico suspected his friend Carlos Garcia of having an affair with Rico's live-in girlfriend Ana Navarro. On June 5, 1995, Rico took Garcia to Slocum Lake on the pretense of a fishing trip and shot him once in the chest and once in the head. Following a jury trial in the Circuit Court of Lake County, Petitioner was convicted of first degree murder on January 26, 1996 and sentenced to 80 years in prison. The Illinois Appellate Court affirmed Petitioner's conviction and sentence, and the Illinois Supreme Court denied his petition for leave to appeal. Petitioner then sought post-conviction relief pursuant to the Illinois Post-Conviction Hearing Act ("IPCHA"), 725 ILCS 5/122-1 et seq., but was unsuccessful.
Now incarcerated at the Menard Correctional Center, Petitioner brings this petition for habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner argues that he was denied his Sixth Amendment right to a fair trial and/or to effective assistance of counsel because his trial counsel did not speak Spanish, did not procure an effective interpreter, and failed to investigate his defense and call witnesses that would have changed the verdict; and because his appellate counsel failed to raise these ineffective assistance claims against his trial counsel. Petitioner further contends that he was denied his Fourteenth Amendment rights to due process and equal protection under the law because he did not understand English and thus was unable to comprehend the trial and appellate proceedings; and because the trial judge improperly imposed an extended sentence without a jury finding that the murder was brutal and heinous beyond a reasonable doubt.
For the following reasons, the petition for habeas corpus is denied.
On direct appeal of his conviction and sentence, Petitioner, represented by counsel, contended that (1) the prosecutor committed reversible error by telling the jury during closing arguments that the State sought only a first-degree murder conviction, and was uninterested in obtaining a conviction for manslaughter; (2) trial counsel was ineffective in waiving the polling of the jury following the guilty verdict; (3) the State erroneously introduced evidence of other crimes by eliciting testimony from Petitioner that he was married to another woman while living with Ana Navarro; (4) the trial court reviewed more than the statutorily allowed number of victim impact statements, and considered hearsay testimony in sentencing; and (5) the trial court abused its discretion in imposing the 80-year sentence. The Illinois Appellate Court found these claims without merit and affirmed the conviction and sentence on October 9, 1997. (People v. Rico, No. 2-96-0268 (unpublished order), Ex. A to Respondent's Answer ("Answer").) Proceeding pro se, Petitioner filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, raising the same five claims he raised on direct appeal. (PLA, Ex. B to Answer.) The PLA was denied on December 2, 1998. (People v. Rico, No. 86324, Ex. C to Answer.)
On February 1, 1999, Petitioner filed a pro se petition for post-conviction relief pursuant to the IPCHA. In this petition, he argued that his rights to due process and a fair trial were violated when the trial court (1) did not allow him to cross-examine certain witnesses; (2) refused to admit two exhibits consisting of "love letters" from Ana Navarro while Petitioner was in jail; and (3) admitted gruesome, post-autopsy photographs. He also argued that (4) he was denied effective assistance of appellate counsel because these issues were not raised on direct appeal. (Petition for Post-Conviction Relief, Ex. D to Answer, at 15-16.) The trial court appointed counsel, Patrick J. Quilty,*fn1 who on November 21, 2000 filed an "Amended Petition for Post-Conviction Relief" that raised the same four claims, and added a fifth claim that Petitioner's trial counsel was ineffective for failing to call witnesses who would have testified that Petitioner asked them to go with him on the fishing trip because Petitioner believed that Garcia might attack him. (Amended Petition for Post-Conviction Relief, Ex. E to Answer.) At a hearing on the post-conviction petition, Petitioner orally raised another claim that trial counsel was ineffective, for failing to have an expert witness testify concerning the location of wounds on the victim. (Order of March 5, 2001, Ex. F to Answer, at 3.)
The court dismissed the amended petition on March 5, 2001, concluding that Petitioner's claims were without merit and "raised no issues of Constitutional dimension." (Id. at 4.) With respect to Petitioner's claims that trial counsel was ineffective for failing to call witnesses, the court noted that counsel had filed a list of witnesses before trial, six of whom were issued subpoenas, and which included an expert witness; trial counsel had also cross-examined the State's pathologist concerning the location of wounds on the victim's body. (Id. at 3.) The court concluded that trial counsel's alleged failure to call the witnesses identified by Petitioner was a matter of trial strategy that did not rise to the level of ineffectiveness. (Id.)
Petitioner then filed a pro se motion in trial court, contending that Quilty was incompetent for failing to include a claim based on Apprendi v. New Jersey, 530 U.S. 466 (2000) in the amended post-conviction petition. Quilty responded by filing an "Addendum" to Petitioner's post-conviction petition, arguing that Petitioner's 80-year sentence, imposed beyond the 60-year statutory maximum, violated Apprendi because the aggravating factor-the brutal and heinous nature of the crime-was determined by the judge rather than the jury. (Addendum to Previously Filed Amended Post-Conviction Petition for Relief, Ex. G to Answer.) The court denied the claim raised in the "Addendum" on August 23, 2002, concluding that Apprendi did not apply retroactively. (Order of Aug. 23, 2002, Ex. H to Answer.) Petitioner appealed the trial court's dismissal of his post-conviction petition, but on appeal contended only that the court had erred in finding Apprendi inapplicable.*fn2 (People v. Rico, No. 2-02-0820 (unpublished order), Ex. I to Answer.) The Illinois Appellate Court affirmed that decision on December 19, 2003, noting that the Illinois Supreme Court had determined in People v. De La Paz, 204 Ill. 2d 426, 791 N.E.2d 489 (2003) that Apprendi did not apply retroactively to cases in which direct review had concluded before that decision was handed down. (Id.)
Petitioner next filed a pro se PLA with the Illinois Supreme Court. This petition again raised the Apprendi claim, and further reasserted the claim, asserted in the post-conviction petition but not on appeal from the trial court's dismissal of that petition, that appellate counsel had been ineffective for failing to raise, on direct appeal, the other issues addressed by that petition. Petitioner also asserted several other claims for the first time. Specifically, he argued that (1) he had been denied his right to a fair trial and effective assistance of counsel because his attorney did not speak Spanish, and he "was given a 10 year old girl as an interpreter"; (2) he received ineffective assistance of appellate counsel in that counsel failed to raise these language issues on direct appeal; (3) both trial and appellate counsel failed to adequately argue that the physical evidence did not support the prosecution's theory of the case; and (4) the evidence supported a verdict of manslaughter rather than first degree murder. (PLA, Ex. J to Answer.) The Illinois Supreme Court denied this PLA on March 24, 2004. (People v. Rico, No. 97749, Ex. K to Answer.)
Petitioner, proceeding pro se, filed the instant petition for a writ of habeas corpus on August 2, 2004. The petition asserts five claims. The first alleges that Petitioner was denied his Sixth Amendment rights to a fair trial and/or to effective assistance of counsel because his trial attorney did not speak Spanish, and because, according to Petitioner, there was a "ten year old girl as interpretor [sic] at trial." Petitioner maintains that "[d]ue to the nature of the case of sexual infidelity and fight with lover over common law wife [he] was unable to relate these facts in defense to a ten year old girl to explain."*fn3 (Petition for Writ of Habeas Corpus ("Petition"), at 5.) Petitioner does not identify, in his habeas petition, any specific facts regarding sexual infidelity that he had refrained from disclosing; nor does he explain how any such facts would have supported a defense to a murder charge. The court notes that in the PLA from his post-conviction petition, Petitioner elaborated somewhat: he asserted that "[d]ue to his Catholic religious beliefs he was unable to relate and discuss the sexual nature of his common law wife's infidelities that lead [sic] to the crime he was charged with[,]"*fn4 (PLA, Ex. J to Answer, at 4), and argued generally that the killing of Garcia was a "crime of passion" that should have resulted in a "lesser verdict of intentional manslaughter." (Id. at 9.)
Second, Petitioner contends that trial counsel was ineffective because his attorney failed to "investigate defense and call witnesses in defense that would have changed the verdict." (Id.) Petitioner does not identify these witnesses in his habeas petition, nor does he elaborate as to how they would have testified. The third claim alleges ineffective assistance of appellate counsel for failing to raise, on direct appeal, the issues presented by the first two claims. (Id.) Fourth, Petitioner claims that he was denied his Fourteenth Amendment rights to due process and equal protection under the law because both the trial court and the appellate court were aware that he did not speak or write English, yet denied him a Spanish-speaking attorney; thus, Petitioner maintains, he "was alienated from understanding the proceedings and raising the points and issues needed to have an effective appeal." (Id. at 5.) In his fifth claim-his Apprendi claim-he argues that because the jury did not find beyond a reasonable doubt that the murder was brutal and heinous, the judge relied on unsubstantiated facts in imposing a sentence beyond the statutory maximum. (Id.)
Section 2254 of the Anti-Terrorism and Effective Death Penalty Act entitles a prisoner to a writ of habeas corpus if he is being held in prison pursuant to a state court judgment obtained in violation of the Constitution. 28 U.S.C. § 2254; Williams v. Taylor, 529 U.S. 362, 375 (2000). With respect to any claim that was adjudicated on the merits in state court proceedings, a federal court will not grant a writ of habeas corpus unless that state decision (1) 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). Before seeking habeas relief in ...