“tension between Wilkinson, which addresses cases where a state appellate court has ‘reviewed the
record’ and ‘found no issues of arguable merit,’ and the Seventh Circuit’s cases interpreting the ‘full
and fair presentment’ requirement.” /d. 281 F. Supp. 2d 941, 948 n.1.

We no longer need struggle to resolve this tension. In Lewis v. Sternes, 390 F.3d 1019 (7th
Cir, 2004), the Seventh Circuit rejected “the notion that a petitioner fairly presents his federal claim
to the state courts when he raises that claim for the first time in an appellate brief after his lawyer has
filed a motion to withdraw under Finley.” Id. at 1031. That court clarified the holding of Wilkinson,
which

[a]t most, .. . stands for the proposition that when a state appellate court elects to

summarily affirm the judgment below without having invited the appellant to identify

the issues he wishes to pursue on appeal, we will construe the affirmance to have

reached the merits of each issue that the petitioner properly raised in the court below.
Id.

In other words, a summary affirmance following the filing of a Finley motion can be read as
a decision on the merits, but only of those claims raised at the trial court level. /d. (“[NJothing in
the appellate court’s summary order . . . signals the court’s willingness to expand the scope of the
appeal to claims that the trial court had not reached in the particular decision under review.”) In this
case, Mitchell did not raise his Apprendi claim before the trial court. Therefore, he did not fully and
fairly present this claim before the state courts and the claim is procedurally defaulted.

Despite the default, we can still reach the merits of these claims if Mitchell can show
adequate cause for having failed to raise these claims on appeal and actual prejudice resulting from

that failure. See Moore v. Casperson, 345 F.3d 474, 484 (7th Cir. 2003). Absent such a showing,

a defaulted claim is reviewable only if the violation would result in a “fundamental miscarriage of


His indictments for the armed robberies that led to his convictions provided him with ample notice

that he faced an enhanced sentence.

Conclusion
For the reasons set forth above, Mitchell’s 2254 motion is denied and this case is dismissed.
This is a final and appealable order.

ENTER:

&
UNITED STATES DISTRICT JUDGE

patep: _APR 18 2005


Relying on the holding in Wilkinson v. Cowan, Mitchell argues that he fully and fairly
presented his Apprendi claim to the Illinois Appellate Court because that court reached the merits
of the claim when it reviewed his memorandum in opposition to his attorney’s Finley brief. [d.,231
F.3d 347 (7th Cir. 2000) (noting that “any motion to withdraw pursuant to Finley .. . necessarily
implicates the merits of an appeal, because the premise of the motion is that the appeal is frivolous”).
In Wilkinson, the Illinois Appellate Court granted the Fin/ey motion of the appellant’s attorney and
affirmed the trial court’s decision, saying it had reviewed the merits of the post-conviction motion
and found no basis for appeal. /d. at 351. The petitioner in that case was not aware of his right to
respond to his attorney’s motion, either through a memorandum or a pro se appellate brief, meaning
the “affirmance was based on something less than full, adversarial briefing—really, no briefing at
all.” Jd. Nevertheless, the Seventh Circuit determined that the appellate court had sufficiently
reviewed the merits of the petitioner’s post-conviction claims to allow habeas review. Id. at 351-52.

A handful of prisoners soon stepped forward seeking to expand the holding in Wilkinson.
Mitchell points to two cases in which district courts were forced to grapple with the issue of whether
a claim had been procedurally defaulted when it had not been raised until a response to a Finley
motion; each court ultimately ruled on different grounds. See Taylor v. Pierson, No. 93-C1955,
2001 WL 22220135, at *9 (N.D. Ill. Sept. 25, 2003) (“Accepting the affirmance as a merits ruling
would require this court to consider whether a non-existent state court ruling comports with the U.S.
Constitution, as neither the trial court nor the appellate court made any specific findings as to
[petitioner’s] . . . argument.”); Dalton v. Warden, Oshkosh Correctional Inst. 281 F. Supp. 2d 941
(N.D. Ill. 2003) (vacated and remanded on other grounds by Dalton v. Battaglia, — F.3d —, 03-

3982, 2005 WL 661983 (7th Cir. Mar. 23, 2005)). The district court in Dalton noted the apparent


justice.” Id. Mitchell does not argue either cause and prejudice or fundamental miscarriage of
justice and so his procedural default precludes our review of these claims.

Even if we were to find that he had not procedurally defaulted, Mitchell’s cause would fail
because his Apprendi claims are baseless. First, Mitchell suggests that his sentence of natural life
was unconstitutional under Apprendi because the aggravating factor of the armed robbery committed
in the course of Childress’s murder was not submitted to a jury. Apprendi announced the rule that
“any fact {other than prior conviction] that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi
y. New Jersey, 530 U.S. 466, 490 (2000). In this case, however, Mitchell waived his right to a jury
trial in August of 1999, more than two years after his indictments were handed down. His waiver
form includes the charges of murder and armed robbery. He thus waived his right to have a jury
determine the validity of the factual allegations surrounding the armed robberies. A judge
determined that the evidence proved beyond a reasonable doubt that Mitchell committed the
robberies. Therefore, there was no Apprendi violation.

Second, Mitchell claims that although he “was indicted and convicted on a count of armed
robbery, that armed robbery was not related to the murdered individual, which would implicate the
trial court’s finding that aggravating factor existed under [720 ILCS 5/9-1 (b)(6)(c)].” Mitchell bases
this claim on the assumption that he was not actually convicted of the armed robbery of Childress,
though he was convicted of robbing the other two victims who were with Childress the night of his
murder. He challenges the state’s contention that he was convicted of “count three,” which
apparently reads, “They, without lawful justification while committing a forcible felony, to wit:

armed robbery, shot and killed Anthony V. Childress with a gun, in violation of Chapter 720, Act


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

JONATHAN MITCHELL, )
)
Petitioner, )
)

v. ) No. 04 C 3648

y (97 CR 15738)

) Paul E. Plunkett, Senior Judge

ALAN UCHTMAN,' )
)
Respondent. )

MEMORANDUM OPINION AND ORDER
Jonathan Mitchell has filed a petition pursuant to 28 U.S.C. § 2254 (“Section 2254”)
challenging his state sentence. For the reasons set forth below, his petition is denied and this case

is dismissed.

Background

On the night of May 12, 1997, Mitchell and co-defendant Antonio McDonald joined a group
of three men playing dice in a park. When they lost, Mitchell pulled out a gun and he and McDonald
demanded money from the other three men. One of the men, Anthony Childress, refused to give
them any money, so Mitchell shot and killed him. Mitchell and McDonald were convicted of armed

robbery and first degree murder following a bench trial. Mitchell was sentenced to natural life in

‘Since the filing the petition, Alan Uchtman replaced Eugene McAdory as Warden of Menard Correctional
Center. Pursuant to Fed. R. Civ. P. 25(d) and Rule 2(a) of the Rules Governing Section 2254 Cases, Warden
Uchtman should be substituted as the proper party-respondent.


5, Section 9-1-A(3) of the Illinois Compiled Statues 1992, as amended.” To be fair, the court record
is somewhat murky as to precisely which charges correspond to the counts on which Mitchell was
convicted.’ However, even if we were to accept Mitchell’s contention that he was not convicted of
robbing Childress or of a combined charge of murder and a forcible felony, he was clearly convicted
of armed robbery. Childress was murdered during the course of those armed robberies. The statute
under which Childress was sentenced to natural life, 720 ILCS 5/9-1(b)(6), does not require that the
murdered victim also be the target of an inherently violent felony, merely that “the murdered
individual was killed in the course of” sucha felony. Mitchell was convicted of murdering Childress
in the course of robbing two other men at gunpoint. Thus, again, he is not entitled to habeas relief
under Apprendi.

Third, Mitchell contends that he was not properly notified through indictment that he faced
a sentence beyond the statutory maximum because the aggravating factor was not alleged. This is
simply untrue. Not only was he charged with the armed robberies of Childress’s companions,
Mitchell was indicted for the armed robbery of Childress, though this charge was dropped.

Furthermore, he was indicted for murdering Childress in the course of committing another felony.*

3 The trial transcript indicates that Mitchell was convicted of counts two, three, five and six. Mitchell has
also attached an “Order of commitment and sentence to Illinois Department of Corrections” suggesting that Mitchell
was convicted of murder and counts two and five. What these counts correspond to is mysterious even to the state,
who suggests that “{aJlthough the counts are not numbered, the trial court judge apparently followed the order of the
counts as they appear in the common law record. This is supported by the fact that the judge noted that count four
and seven were nolle processed and there are handwritten notes to that effect on the fourth and seventh counts in the
record. (See respondent’s Exhibit 12 at Cl1-17; Exhibit 1] at A38).” While this approach makes a great deal of
sense, we find it best to not base our decision on whether or not Mitchell was convicted of “count three.”

4 Mitchell also attacks the statute itself for not requiring that an aggravating factor be alleged in an
indictment. As he was not injured by this alleged defect in the sentencing statute, we need not investigate the merits
of this argument.


prison for the murder and also received a consecutive thirty-year sentence for the armed robbery.
Mitchell appealed. His conviction was affirmed on April 26, 2001. He did not appeal to the Illinois
Supreme Court because his counsel informed him that there were no appealable issues. Mitchell
filed a petition for post-conviction relief on October 23, 2001, which was denied on November 16,
2001. An state appellate defender was appointed to represent Mitchell on appeal, but that attorney
filed a motion to withdraw from the case under Pennsylvania v. Finley, 481 U.S. 551 (1987), stating
there were no non-frivolous issues for appeal. Mitchell filed a memorandum in opposition to his
attorney’s motion, arguing that he had a viable claim for appeal under Apprendi v. New Jersey, 520
U.S. 466 (2000). Mitchell had not raised the claim before filing this memorandum. The Illinois
Appellate Court granted the attorney’s motion to withdraw and affirmed the trial court’s summary
dismissal of Mitchell’s post-conviction petition on August 20, 2003, saying that it had reviewed the
record, the attorney’s Finley memorandum and Mitchell’s response and found no issues of arguable

merit.

Discussion
Mitchell now argues that his sentence of natural life was unconstitutional because a combined
murder and armed robbery charge was not in the original indictment, and a jury did not determine
factual issues that enhanced his sentence beyond the statutory maximum.’ The state argues that

Mitchell is procedurally defaulted from raising this claim because he did not raise this issue on direct

*His claim reads, in its entirety: “Jonathan Mitchell Sentence of Natural Life Imprisonment Based on the
Finding that the Death Penalty Aggravating Factor Exists is unconstitutional because it violates Separation of Powers
and Ex Post Facto principles because it punishes defendant for conduct that was not an element of the crime, it is
facially unconstitutional, and thus, VOID AB INITIO.”


appeal or in his post-conviction petition. Mitchell concedes that he did not raise the issue on appeal,
but contends that the issue was fully presented to the Illinois Appellate Court when he wrote a
memorandum in opposition to his counsel’s motion to withdraw from his case under Pennsylvania
v. Finley, 481 U.S. 551 (1987). That court granted the withdrawal, stating that it had reviewed the
record and Mitchell’s arguments and found no issues of arguable merit. On this basis, Mitchell
argues that the claim was fairly presented and is properly before this Court.

In general, a habeas petitioner can bring his claims to federal court only if he “raised all of
[them] during the course of the state proceedings, presenting each claim fully and fairly to the state
courts.” Rodriguez v. Scillia, 193 F.3d 913, 916 (7th Cir, 1999). “A petitioner presents his claims
fully by pursuing all available avenues of relief provided by the state before turning to the federal
courts.” /d. (internal quotation marks and citation omitted). A petitioner presents his claims fairly
if he gives the state courts “a meaningful opportunity to pass upon the substance of the claims later
presented in federal court.” /d. Both the operative facts and the “controlling legal principles” must
be submitted to the state court. /d. (internal quotation marks and citation omitted). If a petitioner
does not raise his claims in a petition for a discretionary appeal to the state supreme court, he cannot
satisfy this requirement. See O'Sullivan v. Boerckel, 526 U.S. 838, 845, 144 L. Ed. 24.1, 1198. Ct.
1728 (1999) (“{S]tate prisoners must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate review
process.”). If claims are not fully and fairly presented to the state courts for resolution, a prisoner
is barred from bringing them to federal court for review. See Bocian v. Godinez, 101 F.3d 465, 468

(7th Cir.1996).