a

No. 02 C 8891 Page3

constitutional claim. If he is correct, he points to a state action that violates the Constitution.
See 28 U.S.C. § 2264(a)(1). Likewise, we find no procedural bars to this suit. Petitioner
appears to have exhausted all available state remedies and filed this petition in a timely

manner,

For the foregoing reasons, petitioner’s application to proceed in forma pauperis is

granted.

JAMES B. MORAN
r Judge, U. S. District Court

Qoe.!4 , 2002. .



| ~ Minuse Order Form (06/9)
; United States District Court, Northern District of Illinois ( 0)

cf
vor Maghtrate Jue James B. Moran “than Angoed Judge
: CASE NUMBER 02 C 8891 DATE 12/19/2002
CASE Charles Jackson vs. Jonathan R. Walls
TITLE

[ln the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.)

Q MOTION:
i Memorandum Opinion and Order
| DOCKET ENTRY:
(1) Qa Filed motion of [ use listing in “Motion” box above.]
(2) o Brief in support of motion due___.
@) Oo Answer brief to motion due . Reply to answer briefdue__
(4) Oo Ruling/Hearingon__—_setfor___att
(5) QO Status hearing[held/continued to] [set for/re-set for]on__—ssetfor__—s—sat_—
(6) 0 Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor__—s—ss fat.
(7) oO Trial[set for/re-set for]on__—_at
(8) a [Bench/Jury trial] [Hearing] held/continuedto __—_at
| (9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 COFRCP41(a)(1)  FRCP41(a)(2).
go [Other docket entry] Enter Memorandum Opinion and Order. For the foregoing reasons,

petitioner’s application to proceed in forma pauperis is granted. Respondents answer to the petition for
\ writ of habeas torpus under 28 U.S.C. Section 2241 to be filed by January 21, 2003.

| (il) @ [For further detail see order attached to the original minute order.]

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

EASTERN DIVISION
CHARLES JACKSON, )
Plaintiff, }
vs Noon C8891
JONATHAN R. WALLS } oe
Defendants. ; ey
we

MEMORANDUM OPINION AND ORDER

Charles Jackson brings this petition for writ of habeas corpus under 28 U.S.C. § 2241.
Along with his petition, petitioner filed an application to proceed in forma pauperis. For the
following reasons, his application is granted.

Pursuant to 28 U.S.C. § 1915(a) we may authorize a petitioner to proceed in forma
pauperis if he demonstrates that he is unable to pay the required costs and fees. Petitioner’s
affidavit indicates that he is currently incarcerated, has no source of income and has no other
money or property. Petitioner has established his inability to pay the court costs.

Our inquiry does not end there, however. We must conduct an initial review of
petitioner’s claims and dismiss the action if we determine that the action is frivolous or
malicious, it fails to state a claim upon which relief may be granted, or petitioner seeks
damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii);
Alston y Debruy, 13 F.3d 1036, 1039 (7 Cir. 1994). This action does not appear to be frivolous
or malicious, nor does petitioner seek damages from an immune defendant. We need only to

determine whether petitioner states a claim for relief, using the same standards as we would



Ne

No. 02 C 8891 Page 2

a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Zimmerman v.

Tribble, 266 F.3d 568, 571 (7 Cir. 2000).

Petitioner alleges that the consecutive sentencing provisions of 730 ILCS 5/5-8-4(a) and
(b) violate his rights to trial by jury, as guaranteed by the Sixth Amendment, and due process,
as guaranteed by the Fifth and Fourteenth Amendments, in that they do not require a jury
finding beyond a reasonable doubt of aggravating factors before imposing mandatory
sentences. This statute allows a trial judge to impose consecutive sentences where the
defendant is convicted of a Class X felony and has inflicted severe bodily injury, and the
offenses were committed during a single course of conduct. Furthermore, the statute
authorizes the trial judge to order consecutive sentences where the defendant’s history and
offense level require consecutive sentences to protect the public. Petitioner claims that these
factual determinations were not made by a jury as constitutionally required and, therefore,
his sentences should be ordered to run concurrently.

Petitioner argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires that a jury
make factual determinations that lead to increased sentences. The Illinois Supreme Court,
although concluding that consecutive sentences imposed by a court are constitutional, noted
that the lower state courts were sharply divided on the issue of whether Apprendi affects
consecutive sentencing provisions, See People vy. Wagener, 196 Ill2d 269, 283, 752 N.E.2d 430,
440, 256 D.Dec. 550, 560 (IIL 2001) (citing to Illinois cases on both sides of the issue). In any
case, in our brief search we did not find a federal decision dealing with the potential Sixth
Amendment problems of 730 ILCS 5/5-8-4.

Reading petitioner’s complaint liberally, as we must, he has stated a cognizable