The opinion of the court was delivered by: Blanche M. Manning United States District Court Judge
Petitioner Willie Sample's pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. For the following reasons, the petition is denied.
Petitioner Willie Sample, identified as prisoner number K74723, is incarcerated at the Dixon Correctional Center, in Dixon, Illinois, where he is in the custody of Warden Nedra Chandler.
Following a 1999 jury trial in the Circuit Court of Cook County, Mr. Sample was convicted of murder, home invasion, and armed robbery in connection with the robbery and murder of Jeremy Price in his home on September 22, 1996. Mr. Sample was subsequently sentenced to consecutive terms of thirty-five, six, and six years of incarceration, respectively. See People v. Sample, 326 Ill. App. 3d 914 (1st Dist 2001) (direct appeal) (Dkt. 38, Ex. A).
Mr. Sample appealed his convictions and sentences to the Illinois Appellate Court, where he argued that: (1) "his convictions must be reversed because he was denied his sixth amendment right to confront and cross-examine witnesses when the State elicited hearsay evidence from police officers that non-testifying co-defendants implicated him in the crimes"; (2) "the circuit court improperly imposed consecutive sentences because [he] did not inflict bodily injury during the commission of the home invasion or armed robbery as required under 730 ILCS § 5/5-8-4(a)"; (3) "the consecutive sentences for the home invasion and armed robbery must be vacated because they are lesser-included offenses of felony murder"; (4) his consecutive sentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000); and (5) he was entitled to 999 days credit for time served rather than the 899 days stated in the mittimus.
Id. at 916-17. The Illinois Appellate Court affirmed the convictions and consecutive sentences but amended the mittimus to reflect that Mr. Sample had served 999 days. People v. Sample, 326 Ill. App. 3d at 931.
Mr. Sample filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, arguing that: (1) his consecutive sentences were improper under Illinois law because the severe bodily injury that mandated such sentences was proximately connected to the murder conviction as opposed to home invasion or armed robbery, as required by 730 ILCS § 5/5-8-4(a); (2) the imposition of consecutive sentences based on the existence of a death was improper because death is "an essential ingredient of the offense" of first degree murder so using death to impose consecutive sentences results in an improper double enhancement; (3) his convictions and consecutive sentences for home invasion and armed robbery were predicated on an unconstitutional presumption that the general verdict of guilty is a guilty verdict on all four counts so either the home invasion or armed robbery conviction and sentence should be vacated; and (4) his consecutive sentences were unconstitutional under Apprendi. Dkt. 38, Ex. E (PLA). The Illinois Supreme Court denied the PLA on April 3, 2002. Subsequently, on October 7, 2002, the Supreme Court of the United States denied Mr. Sample's timely petition for a writ of certiorari. Sample v. Illinois, 537 U.S. 910 (2002).
2. Collateral Proceedings
Meanwhile, on June 21, 1999, Mr. Sample filed a pro se petition for state post-conviction relief pursuant to 725 ILCS § 5/122-1, et seq. See People v. Sample, No. 96 CR 26466(03), Dkt. 38, Ex. F (post-conviction petition) and Ex. G (transcript of proceedings from the denial of post-conviction relief). He argued that his trial attorneys were ineffective because: (1) they abandoned him; (2) they did not seek dismissal on speedy trial grounds; (3) they did not seek dismissal under Gerstein v. Pugh, 420 U.S. 103 (1975), based on the alleged failure to bring Mr. Sample before a judge within forty-eight hours after his arrest; (4) they did not file a motion to quash his arrest and suppress his statements; and (5) they did not seek a jury instruction on mistaken identity. In addition, he appeared to be raising a sufficiency of the evidence argument as he contends that no weapon was found and no fingerprints placed him at the scene. Finally, he argued that his sentence was excessive given that he was not the shooter.
The post-conviction trial court entered an untimely judgment of dismissal. The appellate court summarily remanded based on the trial court's failure to rule within the required time frame. The trial court then again denied the petition on November 16, 2006. See Dkt. 38, Ex. G. Mr. Sample appealed and his appointed counsel from the Office of the State Appellate Defender moved to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). See Dkt. 38, Ex. H, (Finley motion). On June 6, 2008, the Illinois Appellate Court granted counsel leave to withdraw and affirmed the judgment of dismissal. People v. Sample, No. 1-06-3656 (1st Dist. Jun. 8, 2008) (unpublished order), Dkt. 38, Ex. I. Although Mr. Sample's amended § 2254 petition is unclear, Dkt. 33 at 5, the respondent states that its counsel confirmed with the Illinois Supreme Court Clerk's Office that there is no record of a PLA from appeal No. 1-06-3656.
On October 15, 2008, Mr. Sample filed a pro se petition for relief from judgment pursuant to 735 ILCS § 5/2-1401. See Dkt. 38, Ex. J (petition from relief from judgment). In his filing, Mr. Sample argued: (1) the trial court improperly convicted him of multiple crimes even though he engaged in "one single course of conduct"; (2) he was wrongfully convicted of first and second degree murder in violation of the Illinois Constitution's "Single Subject Rule"; and (3) the trial court's sentencing order did not reflect his three-year term of mandatory supervised release "which is inclusive of his sentence instead of being conclusive of his sentence." Id. The trial court denied the petition on December 4, 2008. See Dkt. 38, Ex. K (order denying petition for relief from judgment).
On appeal, Mr. Sample's appellate counsel sought to withdraw pursuant to Finley. Dkt. 38, Ex. L (Finley motion in People v. Sample, No. 1-09-0106). On May 14, 2010, the Illinois Appellate Court granted counsel leave to withdraw and affirmed the trial court's judgment. See Dkt. 38, Ex. M (unpublished order in People v. Sample, No. 1-09-0106). Mr. Sample filed a PLA with the same claims, which was denied on September 29, 2010. See People v. Sample, 237 Ill. 2d 583 (Ill. 2010), Dkt. 38, Ex. N. 3. § 2254 Petition
Mr. Sample filed a § 2254 petition with this court in July 2007, while his state post-conviction appeal was still pending. He also sought to stay the federal proceedings while he exhausted his state court remedies. The court stayed this case pending completion of the state post-conviction proceedings. Dkt. 11. Mr. Sample asked the court to lift the stay and allow him to file an amended § 2254 petition after the Illinois Supreme Court denied the PLA in his § 2-1401 proceedings. The court granted this motion. Dkt. 30. Mr. Sample subsequently filed an amended petition, raising the following claims: (1) his consecutive sentences were improper under 730 ILCS § 5/5-8-4(a) because there was no proximate connection between the felony and severe bodily injury and the offenses were all committed as part of a single course of conduct; (2) the consecutive sentences for home invasion and armed robbery were improper as they are lesser included offenses of felony murder; (3) the consecutive sentences are unconstitutional under Apprendi; (4) the trial court's sentencing order did not reflect that the three-year term of mandatory supervised release was "included within his aggregate 47 year sentence." Dkt. 33 at 7-8.
The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Mr. Sample has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts. As described by the Illinois Appellate Court:
Willie Sample was convicted by a jury of four counts of first degree murder (including intentional murder and felony-murder), one count of home invasion, and one count of armed robbery. The charges grew out of the robbery and murder of Jeremy Price in his home on September 22, 1996. The verdict returned on the murder count was a general verdict. The judge imposed a 35 year sentence based on the intentional murder count and six years each on the home invasion and armed robbery counts. Defendant's sentences are to run consecutively.
At defendant's trial, Darnell Lewis testified for the State that on September 22, he was in his family's apartment with his step-uncle Jeremy Price. At about 9:45 p.m., Lewis was in his bedroom when he heard Price calling out his name. When Lewis came to his bedroom door he observed Price attempting to push closed the front door of the apartment in an effort to keep someone out. Lewis testified that the front door was about six or seven feet from his bedroom door. A man in a ski mask eventually pushed his way in through the front door and Lewis witnessed his uncle and the man struggling. Shortly thereafter, the men stopped struggling and Lewis saw that the ski mask had come off his uncle's assailant. Lewis recognized the assailant as a neighborhood resident, Antoine Ashford. According to Lewis, another man then entered the apartment and pulled a gun on his uncle. Lewis testified that this second man looked at Lewis as he entered the apartment. At about this moment, Ashford pulled a gun on Lewis, who remained in the doorway of his bedroom. As the second assailant was approaching Lewis's uncle, Ashford looked away from Lewis briefly. As he did, Lewis ran back into his bedroom, shut the door, and ran out of the apartment through a window. While Lewis was fleeing, he heard a single ...