The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
In 1998, an Illinois jury convicted Doiakah Gray of first degree murder. The sentencing judge (not the same judge who presided over the trial) sentenced Gray to an extended term of eighty years' imprisonment. Gray has petitioned the Court for a writ of habeas corpus under 28 U.S.C. § 2254. He alleges that his extended-term prison sentence violates Apprendi v. New Jersey, 530 U.S. 466 (2000); his counsel at sentencing was ineffective because he failed to preserve certain issues for appeal by filing a post-sentencing motion; and his appellate counsel was ineffective for failing to amend Gray's appellate brief to include an Apprendi claim. For the following reasons, the Court denies the petition.
Factual findings by the state court are presumed correct in a federal habeas corpus proceeding unless they are rebutted by clear and convincing evidence. Mahaffey v. Schomig, 294 F.3d 907, 915 (7th Cir. 2005); 28 U.S.C. § 2254(e)(1). Because Gray does not dispute the Illinois Appellate Court's factual findings, the Court adopts the following account from the decision of that court in People v. Gray, 326 Ill. App. 3d 926, 761 N.E.2d 1237 (2001):
On December 2, 1994, Don Rietveld and Gary Bilbrey were at a bar in Harvey, Illinois. Rietveld had a cellular phone. The defendant and Troy Montgomery were also at the bar. The defendant wanted Rietveld's cell phone so he told Rietveld and Bilbrey that he could find women for them and the four men left the bar together and drove off in Rietveld's truck. After making a stop at a liquor store, they continued driving until the defendant directed Rietveld to stop the truck at 163rd Street and Honore. The defendant then used Rietveld's cell phone purportedly to call some women. Instead, the defendant jumped out of the truck and ran with the phone. Montgomery also jumped out of the truck and ran approximately one block to his house. Rietveld got out of the truck and chased after the defendant. Montgomery watched from his garage and saw Rietveld confront the defendant and another man, Tommy Smith. Montgomery saw Tommy Smith shoot Rietveld once in the head and he saw Rietveld fall to the ground. Montgomery then watched as the defendant walked over to Rietveld and shot him three times in the head as he lay motionless on the ground. Rietveld was taken to South Suburban Hospital, where he died the following day of multiple gunshot wounds to the head.
Id. at 908, 761 N.E. 2d at 1238-39.
The judge who presided over Gray's trial transferred out of the criminal court before sentencing. For this reason, another judge reviewed the trial transcripts and heard argument regarding aggravation and mitigation. The sentencing judge stated that although the actions of [Gray's co-defendant] smacked of spontaneity, the actions of this defendant did not. The actions of this defendant were that he planned to commit a crime, he planned to carry out the theft of the telephone and then he made a conscious decision to eliminate [Donald Rietveld] by pumping four rounds into his head as he lay there shot once in the head, alive, on the pavement, incapacitated. This defendant made a conscious decision to execute him, to give him the coup de gras [sic] and put four right into his head. This was not an act of spontaneity.
R. 1146. The judge then considered whether Gray was eligible for an extended-term sentence based on a finding that the murder was accompanied by "exceptionally brutal and heinous behavior indicative of wanton cruelty." 730 ILCS 5/5-5-3.2(b)(2). The judge stated that when the [state talks] about factors in aggravation and factors in mitigation, factors in aggravation whether they exist with respect to extended term, they do apply. They do apply here. This is a case where this offense was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty. A short phrase that is set forth in the statute, but what does it really say? Was this a cruel act? Absolutely. Was it an evil act? It was evil. Did he do it spontaneously? No, he did not.
He stood there, he said what he was going to do, he took the gun in his hand, he pointed the gun down at the victim and pumped four rounds into the victim's head.
This was a very brutal, heinous act. It couldn't be clearer as a person lay there on the street incapacitated, shot once. Even then, the victim later expires in the hospital. This defendant is eligible for [an] extended term.
R. 1147-48. Accordingly, on December 18, 1998, the judge sentenced Gray to an extended-term eighty-year sentence.
On direct appeal, Gray argued that he had been denied his right to a speedy trial, the prosecutor exercised peremptory challenges in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and the sentencing judge abused his discretion in sentencing Gray to an eighty-year term. On December 24, 2001, the appellate court denied Gray's speedy trial and Batson challenges on the merits and found that he had forfeited any challenge to his sentence by failing to file a post-sentencing motion in the trial court. Gray, 326 Ill. App. 3d at 913, 761 N.E.2d at 1242-43; see 730 ILCS 5/5-8-1(c) (defendant must file a written post-sentencing motion in the trial court to preserve sentencing issues for appellate review).
On June 24, 2002, Gray filed a post-conviction petition in state court. Gray argued that his counsel at sentencing was ineffective for failing to file a post-sentencing motion; his sentence violated Apprendi; and appellate counsel was ineffective for failing to amend Gray's direct appeal to include an Apprendi argument. The circuit court dismissed Gray's post-conviction petition as lacking in merit. On February 17, 2006, the appellate court affirmed the dismissal of Gray's post-conviction petition, holding that though the sentencing court violated the principles of Apprendi, Gray failed to show that the error was prejudicial.
On September 27, 2006, the Illinois Supreme Court denied Gray's petition for leave to appeal. On September 29, 2006, Gray filed a motion for leave to file a supplemental petition for leave to appeal. On July 3, 2007, the ...