In his petition for leave to appeal to the Hlinois Supreme Court, in which he was
represented by counsel, the only issues raised by petitioner related to Apprendi: (1) whether
petitioner’s consecutive sentences violated Apprendi, and (2) whether Apprendi applies
retroactively on collateral review. Petitioner was denied leave to appeal on December 5, 2002.

On May 19, 2003, petitioner filed the instant pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, raising four issues: (1) his state post-conviction petition should not
have been dismissed as untimely; (2) his consecutive sentences are unconstitutional under
Apprendi; (3) the enactment of Public Act 83-942 violates the single subject rule of the Ilinois
Constitution; and (4) his conviction for armed robbery must be vacated because he was convicted
under the prosecution’s felony murder theory.

On September 26, 2003, the court denied petitioner’s motion for appointment of counsel
as premature, stating that “whether the interests of justice require appointment of counsel in this
case cannot be determined until after the court has had an opportunity to review and consider
respondent’s answer to the petition.” Respondent answered the petition on November 17, 2003,
and petitioner was ordered to reply on or before January 12, 2004. On December 29, 2003,
petitioner filed another motion for appointment of counsel. | As of the date of this order,
petitioner has neither filed a reply nor sought additional tin to reply to respondent’s answer.

DISCUSSION

In his answer, respondent argues that petitioner's claims under Apprendj fail because

Apprendi is not retroactively applicable to cases on federal fasbeas review, and that petitioner’s

claims regarding timeliness and the Illinois constitution, (: ) are state law claims that are not
i

cognizable on habeas review, and (2) are procedurally de: i ted. As for petitioner’s claim that
i
|


CONCLUSION
For the reasons stated above, the court denies the instant petition for a writ of habeas

corpus and denies petitioner’s motion to appoint counsel.

ENTER: August 12, 2004

Robert W. Gettleman
United States District Judge


Amendment to the United States Constitution; (3) the State’s closing argument improperly
referenced other crimes evidence in violation of the Fourteenth Amendment to the United States
Constitution; (4) the trial court erroneously considered petitioner’s statements regarding other
crimes in violation of the Fourteenth Amendment to the United States Constitution; and (5)
appellate counsel rendered ineffective assistance by failing to raise these claims on direct appeal.
In an order dated April 14, 2000, the Circuit Court of Cook County held that petitioner’s claims
were untimely, and that the issues raised by his petition were frivolous and patently without
merit. ;

Petitioner obtained counsel and appealed the denial of his state petition for post-
conviction relief. On appeal, petitioner’s counsel argued that: (1) his petition was not untimely,
because the statute of limitations should not have started running until after his motion for
teconsideration of his sentence was denied; (2) Petitioner’s consecutive sentences violated the
Tule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000); (3) the enactment of Public Act
83-942, which amended the Post-Conviction Hearing Act to require the dismissal of certain post-
conviction petitions prior to the appointment of counsel, violates the single subject rule of the
Illinois Constitution; and (4) one of petitioner’s convictions for armed robbery must be reversed
because a criminal defendant in Ilinois cannot be convicted of both felony murder and the
underlying predicate felony. In People v. Brunt, 332 Ill. App. 3d 974 (Il. App. 1" Dist. 2002),
the Illinois Appellate Court vacated one of petitioner’s armed robbery sentences, and affirmed
the circuit court’s dismissal “on the basis that the petition was frivolous and patently without
merit.” The appellate court further held that, (1) petitioner’s sentences did not violate Apprendi,

and (2) Public Act 83-942 does not violate the single subject rule of the Ilinois Constitution.


his armed robbery sentence should be vacated, respondent notes that the Illinois Appellate Court
granted that relief in its 2002 opinion.
1. Apprendi claim

The United States Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466
(2000), does not apply retroactively to cases on federal habeas review. Dellinger v. Bowen, 301
F.3d 758, 765 (7" Cir. 2002); Curtis v. United States, 294 F.3d 841, 844 (7° Cir. 2002).
Accordingly, the court denies petitioner’s claim under Apprendi.

2. Illinois Constitution’s Single Subject Rule and Timeliness of Petitioner’s State Post-
Conviction Petition

28 U.S.C. § 2254(a) provides that a district court shall entertain an application for a writ
of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court “only
on the ground that he is in custody in violation of the Constitution or laws or treaties of the
United States.” Petitioner’s claims regarding the Illinois constitution and timeliness of his
petition under the Illinois Post-Conviction Hearing Act involve questions of state law, not federal
law, and thus are not cognizable in a § 2254 petition See, e.g., King v. Cahill-Masching, 169 F.
Supp. 2d 849, 854 (N.D.Ill. 2001) (Claim involving Illinois’ “one act-one crime” rule is not
cognizable on habeas review “because it relies on state law and does not raise an issue under the
United States Constitution”).

Even if the court concluded otherwise, these two claims would still fail because petitioner
failed to present them in his petition for leave to appeal to the Illinois Supreme Court. See
Rittenhouse v. Battles, 263 F.3d 689, 697 (7" Cir. 2001); White v. Godinez, 192 F.3d 607, 608

(7* Cir. 1999), Petitioner has not demonstrated (or addressed) cause and prejudice for this


" as ,) United States District Court, Northern District of Iinois
Judgeor Mogiarate | Robert W. Gettleman se Other an
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CASE NUMBER 03 C 3302 DATE August 12, 2004
CASE USA exrel Patrick Brunt v Kevin L. Winters ‘
TITLE

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(8) Qa (Bench/Jury trial] [Hearing] held/continued to______aat

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CUFRCP4(m) O General Rule 21 OFRCP41(a)(1) O FRCP41(a)(2).

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motion to appoint counsel.

@ for further detail see order attached

Memorandum opinion and order entered. Accordingly, the Court denies
the instant petition for a writ of habeas corpus and denies petitioner’s

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default, see Wainwright v, Sykes, 433 U.S. 72,:87:(1977), and the court concludes that failure to
review these claims will not result in a “fundamental miscarriage of justice.” Schlup v. Delo,
513 U.S. 298, 315 (1995).

3. Vacating Petitioner’s Robbery Sentence

As noted above, the Illinois Appellate Court vacated the sentence and conviction on the
armed robbery of Eric Watkins, Count VI of the indictment. In support thereof, the court stated
that “under the laws of this state armed robbery, as an included offense underlying the felony
murder charge, will not support a separate conviction and sentence.” Brunt, 332 I. App. 3d at
979 (citations omitted). Petitioner’s request for identical relief in the instant habeas petition,
based on an identical theory, is thus denied as moot.

Although the court is reluctant to deny the instant petition without the benefit of
petitioner’s reply, the court notes that petitioner had ample time to reply and never requested an
extension. To the extent that his renewed motion for appointment of counsel may be construed
as a request for an extension of time, the court notes that a reply, even one drafted with the
benefit of counsel, would be futile in light of the substantive and procedural obstacles outlined
above.

Further, appointment of counsel is simply not warranted in the instant case. An
evidentiary hearing is not needed, and the interests of justice do not require appointment of

counsel. See Rule 8(c), Rules Governing Section 2254 Cases.


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

EASTERN DIVISION
AUG 1 3 2004
UNITED STATES OF AMERICA, ex rel., )
PATRICK BRUNT, )
)
Petitioner, )
) No. 03 C 3302

v. )

) Judge Robert W. Gettleman
KEVIN L. WINTERS, Warden Western Illinois )
Correctional Center,' )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner was convicted of felony murder, attempted first degree murder, and two counts
of armed robbery following a February 1997 bench trial in the Circuit Court of Cook County.
The state court sentenced petitioner to the Illinois Department of Corrections for a total of 55
years: a thirty-five year term for felony murder, a twenty year consecutive term for attempted
murder, and two concurrent fifteen year terms for armed robbery.

Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons
stated below, the petition is denied.

FACTS

Petitioner’s convictions arose from an incident on March 18, 1995, when he dropped off

his codefendant Ralph Harris, parked the car, and waited while Harris left carrying a handgun.

Petitioner then heard several gunshots. Harris returned shortly thereafter, and told petitioner that

'The instant petition originally named Jonathan R. Walls, warden of Menard Correctional
Center. The proper respondent in this case is Kevin L. Winters, the warden of the Western
Illinois Correctional Facility to which petitioner was transferred. The court has amended the
caption accordingly. See Szabo v. Walls, 313 F.3d 392, a4 (7* Cir. 2002).

ct IS


he had robbed and shot two “dope” dealers, and gave petitioner $100. One of the dealers, Eric
Watkins, was killed, and the other, James Henry, Jr., survived and testified at petitioner’s trial.
After a bench trial, petitioner was convicted of felony murder of Watkins, attempted first degree
murder of Henry, and two counts of armed robbery, all based on accountability (as the getaway
driver for Harris).

On direct appeal, petitioner argued that: (1) the police lacked probable cause to arrest him
and thus the trial court should have sustained his motion to quash the arrest and suppress
evidence; (2) the State failed to prove that petitioner was guilty beyond a reasonable doubt of
felony murder because it failed to prove that petitioner had the specific intent to aid and abet the
shooter, Ralph Harris; and (3) petitioner’s fifty-five year sentence was excessive and should be
reduced. In an unpublished order, the Appellate Court of Illinois affirmed the trial court’s
judgment in its entirety. See People v. Brunt, No. 1-97-0935 (Ill. App. 1" Dist. March 9, 1999).
In his subsequent petition for leave to appeal to the Ilinois Supreme Court, petitioner described
the issue presented as “whether the appellate court erred when it affirmed petitioner’s conviction,
even though the trial court had committed reversible error when it denied the Motion to Quash
Arrest - Suppress Evidence.” On February 2, 2000, the Illinois Supreme Court denied petitioner
leave to appeal.

Petitioner then filed a pro se petition for post-conviction relief pursuant to the Illinois
Post-Conviction Act, 725 ILCS § 5/122-1 et seq, raising five issues: (1) trial counsel rendered
ineffective assistance by failing to move for a mistrial because petitioner did not knowingly and
intelligently waive his right to a jury trial; (2) the trial court erred in overruling petitioner’s

objection to testimony concerning “other crimes” evidence in violation of the Fourteenth