and heinous behavior indicative of wanton cruelty. Kidd argues that the factor of brutal
and heinous conduct was not proven beyond a reasonable doubt and, therefore, cannot
serve as the basis of additional punishment. See Apprendi, 530 U.S. at 490 (“Other
than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt”).

At the state appellate level, the State successfully argued that, since Kidd was
found eligible for the death penalty beyond a reasonable doubt, the imposition of an
extended term sentence did not run afoul of the rule in Apprendi. In this habeas
proceeding, the State has shelved this substantive argument for a more technical one:
Apprendi does not apply retroactively. Under the clear law of the Seventh Circuit,
Apprendi “does not disturb sentences that became final before June 26, 2002, the date
of its release.” Curtis v. U.S., 294 F.3d 841, 844 (7° Cir. 2002). Kidd's sentence
became final on July 14, 1999 — prior to the effective date of Apprendi.

CONCLUSION

Based on the foregoing analysis, we deny the petition.

cp Oe been

Charles P. Kocoras
Chief Judge
United States District Court

Dated: APR =3 2003

4.



DISCUSSION

Kidd alleges that his conviction/sentence are unconstitutional for the following
reasons:

1. He did not receive effective assistance of counsel;

2. He was subjected to an illegal search and seizure;

3. There was no probable cause for arrest;

4. His confession was coerced;

5. He was not found guilty beyond a reasonable doubt; and

6. His sentence was extended by ten years in violation of his due process

rights as set forth in Apprendi, 530 U.S. 466.

Kidd is procedurally barred from now raising the first five grounds in this habeas
petition. After losing his post-conviction petition at the trial level, Kidd abandoned
these grounds for relief. Since he did not place these arguments before the Ilinois
appellate court, we will not entertain them on habeas. See Coleman v. Thompson, 501
U.S. 722, 731 (1991) (“This Court has long held that a state prisoner's federal habeas
petition should be dismissed if the prisoner has not exhausted available state remedies
as to any of his federal claims”).

Kidd's final ground for relief is that his sentence is unconstitutional because it

was extended by the trial court after finding that Kidd committed murder with brutal

3.



F_—_ Mioate Order Form (0697)

United States District Court, Northern District of Illinois

vere Magis Jage Charles P. Kocoras “Thun Aigved Judge
CASE NUMBER 02 C 8493 DATE 4/3/2003
CASE US ex rel, Nathan Kidd vs. Jonathan R. Walls
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
ql) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motiondue_
(3) Oo Answer brief to motion due. . Reply to answer briefdue___.
(4) Oo Ruling/Hearingon set for__——at
(5) o Status hearing[held/continued to] [set for/re-set for]on__—_—ssetfor__—_aat
(6) Qo Pretrial conference[held/continued to] [set for/re-set for]on__setfor___——at__.
(e) Qo Trial[set for/re-set for]on__at
(8) Oo [Bench/Jury trial] [Hearing] held/continuedto_—at_
(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) ClLocal Rule 41.1 CUFRCP41(aX(1) (1 FRCP41(a)(2).
ao) «of [Other docket entry] ENTER MEMORANDUM OPINION: We deny the Kidd’s petition for a
writ of habeas corpus. All other pending motions are denied as moot.
(11) = [For further detail see order attached to the original minute order.]
No notices required, advised in open court,
No notices required,
Notices mailed by judge's staff.

Notified counsel by telephone,

| Docketing to mail notices.
ov Mail AO 450 form.

14N09 LoMIsia“s'n

Copy to ithige/magistrate judge.
HOT eH
courtroom
ScT Sepony's Opp
m Date/time received in
central Clerk's Office



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
UNITED STATES OF AMERICA ex rel. )
NATHAN KIDD, )
Plaintiff, }
vs. } 02 C 8493
JONATHAN R. WALLS, Warden, Menard }
Correctional Center, ) DOCKETED
Defendant. APR 0 4 2003
MORANDUM OPINIO:

CHARLES P. KOCORAS, Chief District Judge:

This matter comes before the court on Petitioner Nathan Kidd's request for
habeas relief under 28 U.S.C. § 2254(d)(1). For the reasons set forth below, we deny
the petition.

BACKGROUND

Kidd is serving a seventy-year prison sentence for first degree murder in the
custody of the State of Illinois. Kidd pled guilty to the offense and was sentenced on
June 14, 1999. He did not directly appeal his conviction or sentence, and they became
final on July 14, 1999 — the deadline for an appeal. On March 3, 2000, he filed a

petition for post-conviction relief in Illinois state court. The petition claimed the

\8

following violations of his rights:


1. Ineffective assistance of counsel;

2. Illegal search and seizure;

3. No probable cause for arrest;

4. His confession was coerced; and

5. He was not found guilty beyond a reasonable doubt.
The trial court denied the petition, and Kidd appealed. In his appeal, Kidd altered his
strategy forrelief. Instead of arguing the five above-mentioned grounds for relief, Kidd
only argued that his seventy-year sentence was unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000), which issued during the intervening time period. The
Illinois appellate court ultimately denied the appeal. Kidd's petition for leave to appeal
to the Supreme Court of Illinois was also denied. On November 21, 2002, Kidd filed
this federal habeas action on the basis of all six of the above-mentioned grounds for
relief.

LEGAL STANDARD

Kidd must demonstrate that the adverse state court proceeding “resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d\(1); Williams v. Taylor, 529 U.S. 362, 379 (2000).

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