The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Floyd Cummings was found guilty by a jury of armed robbery and, based on his earlier convictions for armed robbery and murder, was sentenced to natural life imprisonment pursuant to the Illinois Habitual Criminal Act, 720 ILCS 5/33B-1(a), repealed by P.A. 95-1052, § 93, eff. July 1, 2009. In his petition for habeas corpus, Cummings argues that he received ineffective assistance from his trial and appellate counsel and that the trial court failed to investigate his allegation of ineffective assistance. Cummings also challenges his life sentence under several theories: He contends the sentence violates the "proportionate penalties" clause of the Illinois Constitution; that it violates the U.S. Constitution; that the state court's refusal to consider his proportionate penalties challenge amounts to a due process violation; and that the Habitual Criminal Act is an unconstitutional ex post facto law. For the reasons stated herein, Cummings's petition is denied.
At 10:30 p.m., October 29, 2000, Yashika Jones stepped outside her workplace, a Subway Sandwich Shop at 5300 South Kimbark, Chicago, to smoke a cigarette. While standing outside the Subway, she spoke to Lee Washington, her boyfriend, who was with Cummings. Jones and Washington had earlier planned to rob the Subway and invited Cummings to participate. When she returned to work, Jones deliberately left the employee entrance unlocked, and Washington and Cummings entered through that entrance a short time later. One of the men carried a baseball bat.*fn2 Once inside, Cummings grabbed Johnson by the collar and ordered him to open the petty cash boxes. At the same time, Jones took the money from the cash register. The men attempted to get Johnson to open the floor safe but he was not able to do so.
Cummings found some duct tape in the office and taped Johnson's hands, legs, and eyes. With his eyes taped shut, Johnson heard the sounds of someone destroying television monitors and videocassette recorders in the office, and felt debris fall on him.*fn3 One of the men struck Johnson, and they succeeded in getting him to turn over his keys. Cummings, Jones, and Washington fled the Subway, went to Cummings's home, and split up the money. Cummings and Washington then returned to the Subway intending to open the floor safe, but left when they saw police at the store and returned to Cummings's home. That evening, when Jones and Washington left the home, they were arrested with proceeds from the robbery. Jones and Washington confessed to police and later pleaded guilty to armed robbery. Jones received a six year sentence; Washington, eight years. Washington led the police to Cummings. Johnson identified Cummings in a lineup, and Cummings subsequently gave a written statement admitting his participation.
A jury convicted Cummings of armed robbery in June 2002. The trial court sentenced Cummings to life under the Illinois Habitual Criminal Act, finding that he had been previously been convicted of murder in Cook County on June 19, 1967 and sentenced to 50 to 75 years, and convicted of an armed robbery in Michigan and sentenced in September 1994 to five to ten years imprisonment.
On direct appeal, Cummings argued that his sentence violated the proportionate penalties clause of the Illinois Constitution. Cummings compared his armed robbery charge with a charge of armed violence based on robbery with a category III weapon, an offense he alleged contained identical elements.*fn4 (Pet's Br., Ex. C at 17.)He next argued that the life sentence without the possibility of parole mandated by the Habitual Criminal Act violated the Illinois Constitution because it was manifestly disproportionate to the nature of the offense, his role in the offense, his background and character, and the sentences of his co-defendants. (Id. at 24.) Finally, he argued that the trial court erred by failing to conduct a preliminary examination into his post-trial allegation of ineffective assistance of counsel, as required by Illinois law. (Id. at 39.)
The appellate court rejected his challenge under the proportionate penalties clause. Such challenges are successful, the court asserted, only in cases where a defendant charged with a lesser offense is subject to the same penalty that would be imposed for a more serious offense. People v. Cummings, 351 Ill. App. 3d 343, 347-48, 813 N.E.2d 1004, 1008 (1st Dist. 2004), citing People v. Christy, 139 Ill. 2d 172, 564 N.E.2d 770 (1990) and People v. Lewis, 175 Ill. 2d 412, 677 N.E.2d 830 (1996). Cummings, in contrast, was charged with the more serious offense. Under those circumstances, the appellate court observed, the prosecution "is not required to proceed on a lesser offense when its evidence is sufficient to support conviction on a greater offense, i.e., armed robbery." Cummings, 351 Ill. App. 3d at 347, 813 N.E.2d at 1008. The court then rejected Cummings's challenge to his life sentence, noting that the Habitual Criminal Act had withstood constitutional challenge and that the trial court properly considered Cummings's criminal history: "In determining whether his natural life sentence was proportionate, we must take into account his history as a violent offender. Cummings has no constitutional right to choose the offense with which he will be charged or his penalty. Nor can he erase his violent history." Id. at 349, 813 N.E.2d at 1009. Finally, the court rejected Cummings's claims that the trial court did not adequately investigate his pro se allegations of ineffective assistance of counsel. The trial court conducted a hearing on that motion and had "read and considered Cummings'[s] motions and the facts of the case." Id. at 352, 813 N.E.2d at 1013. Cummings's trial counsel noted that she herself had asserted some of the arguments in Cummings's pro se motion, though she declined to acknowledge any ineffectiveness. Id. at 352, 813 N.E.2d at 1012. Thereafter, the trial court "gave Cummings the opportunity to argue, explain, and support his allegations," but he declined. Id. at 353, 813 N.E.2d at 1013.
On July 12, 2004, Cummings petitioned for a rehearing, arguing that the appellate court did not properly apply Illinois Supreme Court precedents in ruling on his proportionate penalties challenge, and that it was mistaken in considering his status as a habitual criminal offender when deciding that challenge. (Pet. Mot. for Rehearing, Ex. F at 1.) He also argued that the appellate court committed error because it believed the record did not contain the sentencing transcripts of his co-defendants, when it actually did, and that the court misinterpreted his second proportionate penalties claim as a challenge to disparate sentencing when it was actually an argument that the sentence was "cruel, degrading, and disproportionate to the nature of the offense." (Id. at 10-11.) The appellate court denied his petition for rehearing on August 2, 2004.
Cummings next petitioned for leave to appeal ("PLA") to the Illinois Supreme Court. He argued in his PLA that the appellate court erred in holding that the penalty for armed robbery did not violate the Illinois Constitution's proportionate penalties clause when compared with the penalty for armed violence predicated upon robbery with a category III weapon. (Pet. for Leave to Appeal, Ex. G at 2.) He also argued that the appellate court erred in holding "that the trial court adequately examined the allegations of ineffective assistance of counsel in Floyd Cummings' post-trial pro se motions." (Id.) On July 24, 2004, the Illinois Supreme Court denied the PLA.
Having exhausted his direct appeals, Cummings filed a petition for post-conviction relief in the Circuit Court of Cook County on March 15, 2005. In that petition, he argued, first, that his murder conviction should not have been considered in sentencing him under the state's Habitual Criminal Act because it occurred in 1967, during a period when the Act had been repealed. (Post-Conviction Pet. at 2.) Cummings argued that the statute includes language that bars consideration of his 1967 conviction from consideration, and that the statute otherwise failed to give him fair notice of the potential penalties of his conduct. (Id. at 3-6.) Cummings further argued that the Habitual Criminal Act amounts to an unconstitutional ex post facto law. (Id. at 11.) Finally, Cummings argued that the court erred in imposing a life sentence because such a sentence was not mandatory. (Id. at 7-8.)
On April 15, 2005, the Circuit Court of Cook County dismissed Cummings's petition. (Order, Ex. K at 5.) The court rejected Cummings's argument that the statute did not apply to pre-1978 convictions, because "upon a careful reading of the Habitual Criminal Act, it is immediately apparent that petitioner is mistaken" in that the Act requires only that the third offense be committed after 1978. (Id. at 4.) The court next overruled his fair notice objection, remarking that "[t]he court sincerely hopes that petitioner is not suggesting that, due to some negligence on the part of the legislature, he was unaware that armed robbery and murder are prohibited by law." (Id. at 4-5.) Finally, the court rejected Cummings's claim that his life sentence was not mandatory, finding that it was "the only sentence permitted by law." (Id.)
On May 5, 2005, Cummings moved for reconsideration of the denial of his post-conviction petition. In this pro se petition, he raised several new arguments, including a challenge to his life sentence as cruel and unusual punishment, and the ineffectiveness of his trial and appellate counsel. (Mot. for Reconsideration, Ex. L.) The circuit court denied that motion, and Cummings then appealed to the Illinois Appellate Court, but the court affirmed in a June 25, 2007 opinion. Cummings sought rehearing; the appellate court denied that petition, but withdrew its June 25 opinion, and issued a revised opinion on August 25, 2007. People v. Cummings, 375 Ill. App. 3d 513, 514-16, 873 N.E.2d 996, 999-1000 (1st Dist. 2007). The court held that Cummings's challenge to his sentence under the proportionate penalties clause of the Illinois Constitutionwas barred by res judicata because it was considered and decided on direct appeal. Id. at 517-20, 873 N.E.2d at 1001-03. The court observed, further, that Cummings's argument failed on the merits because he does not dispute our holding in his direct appeal that the State was not required to proceed on the lesser offense of armed violence predicated on robbery with a category III weapon when its evidence was sufficient to support conviction on the greater offense of armed robbery.... [D]efendant was not sentenced for his armed robbery conviction. Rather, once defendant was found guilty of his third Class X offense, in this case armed robbery, the trial court was without discretion and was required to adjudge him an habitual criminal and give him a mandatory life sentence pursuant to the Habitual Criminal Act.
Id. at 521-22, 873 N.E.2d at 1004. On August 31, 2007, Cummings filed a petition for leave to appeal to the Illinois Supreme Court, which was denied on November 29, 2007. Cummings sought reconsideration of that ruling, arguing in a December 20, 2007 motion that the Court should take the case because "it has yet to determine how to remedy a disproportionality that results in the application of the Habitual ...