MEMORANDUM AND ORDER
David R. Herndon Chief Judge United States District Court
This matter is before the Court on the Petition for a Writ of Habeas Corpus filed by Petitioner, David Aguayo, on September 17, 2012 (Doc. 1), the Motion for Order to Stay Execution of Removal Order filed by Petitioner on January 28, 2013 (Doc. 20), and the Motion for Summary Judgment filed by Petitioner on March 8, 2013 (Doc. 25). For the reasons set forth below, the Petition is DENIED, the Motion for Order to Stay Execution of Removal Order is DENIED, the Motion for Summary Judgment is DENIED, and this matter is DISMISSED
I. Introduction and Background
Petitioner was originally charged in an eight count indictment, which included two counts of predatory criminal sexual assault, related to various acts of sexual assault and abuse committed by Petitioner against his stepdaughter from 1996 to 1997. Petitioner pled guilty to the two counts of predatory criminal sexual assault, in exchange for the government agreeing not to prosecute the remaining six counts, and was sentenced to 14 years’ imprisonment on November 13, 1998. On March 10, 2004, Petitioner’s conviction and sentence were vacated in light of Johnson v. Edgar, 680 N.E.2d 1372 (Ill. 1997), which found unconstitutional the statute criminalizing predatory criminal sexual assault, the counts for which Petitioner pled guilty. On September 8, 2005, the state successfully sought to reinstate the nolle prosequi counts and proceeded with two: aggravated criminal sexual assault and aggravated criminal sexual abuse. Petitioner was convicted by a jury on both counts and was sentenced to 13 years’ and 7 years’ confinement, to run consecutively, on August 15, 2008. This conviction/sentence is the subject of the present Petition for a Writ of Habeas Corpus.
Petitioner directly appealed his conviction and sentence arguing, among other things, that the state could not reinstate the nolle prosequi counts and that his sentences should not run consecutively (Respondent’s Ex. B). On February 4, 2011, the Illinois Court of Appeals held that a new indictment need not be obtained in order to re-file charges that had been dropped by the prosecutor prior to when jeopardy attached. People v. Aguayo, 2011 WL 9558005, *6 (Ill.App.Ct. 2011) (Resp. Ex. A). In disposing of the remainder of his claims, the Illinois Court of Appeals further found that Petitioner forfeited his sentencing argument by failing to raise it at the sentencing hearing and in his opening brief before the court of appeals. Id. at *16. Petitioner’s Petition for Leave to Appeal (PLA) was denied by the Illinois Supreme Court on May 25, 2011 (Resp. Ex. M).
Petitioner filed a petition for post-conviction relief with the state trial court on March 11, 2011 (Doc. 29-9, Resp. Ex. Q, pp. 36-44) that was summarily dismissed on June 28, 2011 (Id. pp. 48-54). On October 11, 2012, the Illinois Court of Appeals affirmed the dismissal finding that appellate counsel was not ineffective for failing to raise the claims that that the trial court lacked jurisdiction (because the entire original indictment was void in light of the Illinois Supreme Court’s finding that the predatory criminal sexual assault statute was unconstitutional) and a claim that the charges were barred by the statute of limitations. People v. Aguayo, 2012 WL 6962889 (Ill.App.Ct. 2012) (Resp. Ex. N). A PLA was denied on March 27, 2013 (Resp. Ex. U).
Petitioner raises two grounds for relief before this Court:
1. “The nolle prosequi counts (4) and (6) that constitute the basis of this second conviction and sentence of 20 years, are double void . . . because they were part of a fatally defective charge instrument . . . [and] because [they were] reinstated without any legal proceeding on December 13, 2005” (Doc. 1, p. 9).
2. “All [sic], plus Defendant’s consecutive sentences were not authorized by the state law on which they were based. 730 ILCS 5/5-8-4(a) (West 1996)” (Id. at 11).
In the “argument” portion of the Petition, Petitioner elaborates that he didn’t get the benefit of the bargain when the prosecutor violated the plea agreement by proceeding on the six counts that were nolle prosequi. Petitioner contends that when the Illinois Supreme Court found that the offenses for which he pled guilty were unconstitutional, the state could not then reinstate those counts that were dropped as part of the plea agreement because the “entire charging instrument was fatally defective” (Doc. 1-1, p. 17-18). Thus, the trial court lacked jurisdiction to preside over his trial. To support his claims, Petitioner cites to the Fifth Amendment (in particular, the presentment and double jeopardy clauses) and various state laws. Respondent argues that the claims are either not cognizable or procedurally defaulted. Specifically, Respondent argues that when the first claim was raised by Petitioner on direct appeal, he did not couch it in terms of a violation of federal law. With respect to the second claim, Respondent argues that it was decided on an independent state law ground, namely waiver.
Title 28 U.S.C. §2254 provides that the Court shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of the State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Accordingly, “[f]ederal courts can grant habeas relief only when there is a violation of federal statutory or constitutional law.” United States ex rel. Lee v. Flannigan, 884 F.2d 945, 952 (7th Cir. 1989). Relief “is not easy to come by” because of the deference accorded to state court adjudications. Thompkins v. Pfister, 698 F.3d 976, 983 (7th Cir. 2012) (quoting Woods v. McBride, 430 F.3d 813, 816 (7th Cir. 2005)).
Accordingly, we will not disturb a state court's application of federal law unless it is ‘both incorrect and unreasonable. “Unreasonable” in this context means something like lying well outside the boundaries of permissible differences of opinion. The state court's factual determinations are entitled to a presumption of correctness, and the ...