te

error to allow the State to file an amended information on the morning of Gervais’s guilty plea, and

|
(2) the trial court erred in imposing consecutive sentences because the victims of the aggravated
discharge of a firearm offense did not suffer severe bodily injury. The trial court summarily
dismissed the post-conviction petition as frivolous and without merit. On December 11, 2002,
Gervais appealed the denial of his post-conviction petition to the Dlinois Appellate Court, Second
District.

On January 23, 2003, Gervais filed the instant petition for Writ of Habeas Corpus. On
August 3, 2003, this Court granted Gervais’s Motion to Stay his habeas proceeding pending
termination of his post-conviction appeal in the Illinois Court.

On August 13, 2003, Gervais’s counsel in the Illinois court appeal filed a motion to withdraw
the appeal pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). On August 26, 2003, Gervais
advised this Court that he wished to proceed before this Court and would not raise any additional
issues in his habeas petition that had not already been raised, notwithstanding that his post-
conviction appeal was still pending. On October 15, 2003, the Appellate Court granted the Finley
motion and affirmed the dismissal of Gervais’s post-conviction petition.

ANALYSIS

A federal court may grant a state habeas petitioner relief for a claim that was adjudicated on
the merits in state court only if that adjudication “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). The habeas petition bears the burden
of demonstrating a “contrary to” or “unreasonable application” of federal law. See Woodford v.

Visciotti, 123 S. Ct. 357, 360 (2002) (Woodford). The reviewing court applies a highly deferential


Gervais also argues that the imposition of an extended sentence for attempted murder and
consecutive sentences violated the rule of Apprendi. Gervais again contends that he was unaware
of the charges against him and the possibility of an extended term and consecutive sentence.
However, the transcripts of the guilty plea clearly demonstrate that Gervais was fully informed of
and fully understood the charges against him and the possibility of extended and consecutive
sentences.

Gervais received an extended-term sentence for his attempted murder charge because the
victim was a peace officer performing his official duties and the defendant knew or should have
known that the individual was a police officer. Gervais also received a consecutive sentence because
the trial court found that Gervais committed the same offenses as part of a single course of conduct
during which there was no substantial change in the nature of the criminal objective and he inflicted
severe bodily injury.

The Appellate Court, again citing to Chandler, found that the imposition of the extended term
and consecutive sentences were not a violation of Apprendi because Gervais pled guilty to the
charges against him, which included knowledge that the victims were police officers and that he
inflicted great bodily harm. The Appellate Court also found that Apprendi did not apply to the
imposition of consecutive sentences because the imposition of the consecutive sentence did not
result in Gervais’s being sentenced in excess of the statutory maximum as must be decided by a jury.
Furthermore, the Appellate Court found that even if an Apprendi violation had occurred, such would
have been harmless error beyond a reasonable doubt.

Gervais has failed to demonstrate that the Appellate Court’s ruling was contrary to or an

unreasonable application of federal law.


or

improperly relied upon one part of the psychological evaluation; and (2) the mittimus should be

amended to allow for the correct date that Gervais was taken into custody. In a supplemental brief,
Gervais argues that the imposition of an extended term for attempted murder and consecutive
sentences violated Apprendi.

The appellate court affirmed the consecutive sentences imposed by the trial court and
modified the mittimus to grant Gervais an additional day of credit against his sentence. The
appellate court further held that Gervais’s Apprendi arguments were without merit because the
imposition of consecutive sentences under 730 ILCS 5/5-8-4(a) did not violate the rule in Apprendi
and that Apprendi was not applicable because Gervais pled guilty. Furthermore, the court held that
even ifan Apprendi violation occurred, the imposition of an extended term for attempted murder was
harmless beyond a reasonable doubt because before Gervais pled guilty, the trial court advised him
that an extended range applied and Gervais accepted such. Gervais never disputed that he knew or
should have known that the victim was a peace officer performing his official duties.

Gervais filed a petition for leave to appeal to the Illinois Supreme Court raising two claims:
(1) whether the imposition of an extended term for attempted murder and consecutive sentences
violated the rule in Apprendi and (2) whether Apprendi was applicable to a defendant who pled
guilty. On May 30, 2002, the Illinois Supreme Court denied the petition for leave to appeal.

On August 15, 2002, Gervais filed a writ of certiorari in the United States Supreme Court,
claiming that the Ilinois courts improperly refused to apply Apprendi to those defendants who
entered guilty pleas and received sentences in an enhanced range. On October 15, 2002, Gervais’s
writ for certiorari was denied.

On November 6, 2002, Gervais filed a pro se post-conviction petition, claiming (1) it was


standard when evaluating the state court’s rulings, and the state court’s decision is given the benefit
of the doubt. See Woodford, 123 S. Ct. at 360.

A state court’s ruling is “contrary to” clearly established federal law if it applies a rule that
contradicts the governing law set forth in federal law or if it includes a set of facts that are materially
indistinguishable from a decision of the Supreme Court of the United States and nevertheless arrives
at a different result from the Supreme Court precedent. See Mitchell v. Esparza, 124 8. Ct. 7, 10
(2003) (Mitchell).

A state court’s ruling is an “unreasonable application” of federal law if the state court
identifies the correct governing \egal principle from the Supreme Court precedent but unreasonably
applies that principle to the facts before the state court. See Wiggins v. Smith, 123 S. Ct. 2527, 2535
(2003) (Wiggins). A state court’s decision must be more than incorrect or erroneous to find an
unreasonable application of federal law; the state court’s application must be “objectively
unreasonable.” See Wiggins, 123 S. Ct. at 2535.

Gervais argues that the state court incorrectly held that the Apprendi rule did not apply to
a defendant that pled guilty. Gervais contends that the state court was incorrect because the
defendant in Apprendi, himself, had pled guilty.

The Illinois Appellate Court, citing People v. Chandler, 321 Ill. App. 3d 292 (2001), found
that Apprendi did not apply to the imposition of consecutive sentences and an extended term because
Gervais, as in Chandler, was admonished about the possibility of consecutive sentences and waived
a jury trial on all issues. Therefore, Gervais could not claim that he was unfairly deprived of a right

to have a jury determine any issue beyond a reasonable doubt.


CONCLUSION

For the reasons stated above, Gervais's habeas petition is denied.

Dated: pated. Mh, caet

+ JOHN W.
ited States District Judge


Minute Order Form (06/97)

as

United States District Court, Northern District of Illinois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John W. Darrah than Assigned Judge
CASE NUMBER 03 C 523 DATE 3/19/2004
CASE Enrique B. Gervais vs. Eugene McAdory
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:
qd ia} Filed motion of [ use listing in “Motion” box above.]
(2) i) Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due. .
(4) o Ruling/Hearing on set for at
(5) QO Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a} Pretrial conference[held/continued to] [set for/re-set for] on set for at
(7) Oo Trial[set for/re-set for] on at
(8) i] [Bench/Jury trial) [Hearing] held/continued to at
(9) Oo This case is dismissed (with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4{m) O Local Rule 41.1 CFRCP41(a)(1) OFRCP41(a)(2).
do) {Other docket entry] For the reasons stated in the attached memorandum opinion and order,
Gervais’s habeas petition is denied. Enter Memorandum Opinion and Order.
(1) @ [For further detail see order attached to the original minute order.)
No notices required, advised in open court. “Document.” |
. . Number: 4
No notices required. umber of potions ;
Notices mailed by judge's staff.
Notified counsel by telephone, MAR 2 2 2004
eo | Docketing to mail notices.
Mail AO 450 f sia “st
ao | Mail form. iyn0s outs
Copy to judge/magistrate judge. Waa ts
courtroom 9 ATE 612 sve mailed notice
MF deputy's
initials
gery °24; Date/time received in
£1 = centyat Clerk's Office wang dette



The Illinois Supreme Court has also found that a guilty plea by a defendant waives Apprendi-
based sentencing objections on appeal. See People v. Jackson, 199 Ill. 2d 286 (2002) (Jackson). The
Jackson court specifically addressed the defendant’s argument that a guilty plea did not waive
Apprendi-based sentencing objections because Apprendi had also pled guilty. In Apprendi, the
defendant pled guilty but reserved the right to challenge the enhancement statute on grounds that it
violated the United States Constitution. See Apprendi, 530 U.S. at 471; Jackson, 199 Ill. 2d at 297.
Unlike Apprendi, the Jackson defendant (and Gervais) were clearly apprised that the court could
impose an extended-term sentence, and the defendant unequivocally and without reservation waived
the right to a jury trial. See Jackson, 199 Iil. 2d at 298; see also Hill v. Cowan, 202 Ill. 2d 151, 154
(2002) (habeas petitioner’s guilty plea foreclosed him from raising an Apprendi challenge to his
sentence).

A review of the Appellate Court’s ruling demonstrates that the court applied the governing
federal law, and its application of that law was not objectively unreasonable.

Gervais also argues in his first claim that his sentence is contrary to Apprendi because he
entered a guilty plea to attempted first-degree murder, and only after his voluntary plea did the State
file the information adding the charge of aggravated discharge of a firearm.

Gervais’s argument is without merit. The transcripts of the proceedings clearly demonstrate
that the new information charging Gervais with aggravated discharge of a firearm was filed prior to
his guilty plea and that the trial court thoroughly reviewed the charge prior to the guilty plea.
Gervais’s only guilty plea included the aggravated discharge of a firearm charge. Furthermore, the
trial court informed Gervais of the possibility of consecutive sentences because of the aggravated

discharge of a firearm charge.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION D pTeD
a
ENRIQUE B. GERVAIS, ) MAR 2 2 2004
)
Petitioner, )
) No. 03 C 0523
v. y
) Judge John W. Darrah
EUGENE McADORY, Warden, )
)
Respondent. )
MEMORANDUM OPINION AND ORDER

Petitioner, Enrique Gervais, seeks a writ of habeas corpus against the Menard Correctional
Center Warden, Eugene McAdory, pursuant to 28 U.S.C. § 2254. Gervais raises two claims in the
first writ: (1) whether Apprendi y. New Jersey, 530 U.S. 466 (2000), is applicable to defendants who
enter guilty pleas and (2) whether the imposition of an extended term for attempted murder and
consecutive sentences violates the rule in Apprendi.

BACKGROUND

On January 11, 1997, police arrested Gervais after he shot at three police officers. The State
charged Gervais by indictment with three counts of attempted first-degree murder, one count of
aggravated battery with a firearm, and two counts of aggravated discharge of a firearm. The State
did not allege in any of the attempted murder counts that the victims were police officers. In the
remaining counts, the State alleged that the same victims were police officers. During Gervais’s
arraignment, at the state’s request, the trial court advised Gervais that, because the victims were
police officers, Gervais could receive extended-term sentences if convicted of attempted murder.

On April 9, 1997, Gervais pled guilty to the attempted murder of Officer Hampton. That

same day, the State filed an information alleging that Gervais committed aggravated discharge of a

H


firearm by knowingly discharging a firearm in the direction of Officers Ferry and Mercado, “peace
officers engaged in their official duties.” Gervais agreed to plead guilty to this charge. In return for
the guilty pleas, the State nol-prossed the remaining counts.

During the guilty plea hearing, the State advised the court that it would seek consecutive
sentences because both offenses were Class X felonies committed as part of a single course of
conduct and Gervais inflicted severe bodily injury. Defense counsel agreed that the extended term
for attempted murder applied. When the court admonished Gervais, it advised him of the possibility
of consecutive sentences and that the extended sentencing range for attempted murder applied.

On June 9, 1997, a sentencing hearing was conducted. Gervais was sentenced to consecutive
prison terms of 50 years for attempted murder and 20 years for aggravated discharge of a firearm.
Gervais filed a motion to reconsider his sentence, which was denied by the court.

Gervais appealed the denial of his motion for reconsideration to the Illinois Appellate Court,
Second District. In an unpublished Rule 23 order, the appellate court held that the enhanced
sentence ranges for attempted murder and aggravated discharge of a firearm were constitutionally
invalid pursuant to the single subject clause of the Illinois Constitution. Gervais’s sentence was
vacated, and the cause was remanded for a new sentencing hearing.

Upon remand, the trial court imposed consecutive terms of 40 years for attempted murder
and 15 years for aggravated discharge of a firearm. Gervais received consecutive sentences because
the trial court found that Gervais committed the offenses as part of a single course of conduct during
which there was no substantial change in the nature of the criminal objective and Gervais inflicted
severe bodily injury. See 730 ILCS 5/5-8-4(a). Gervais appealed his second sentence to the Ilinois

Appellate Court, Second District. In his appeal, Gervais claimed: (1) the sentencing judge