Gray v. Hardy

• Decision Date: 12 March 2010
• Docket Number: No. 07-3704.,07-3704.
• Citation: 598 F.3d 324
• Parties: Doiakah GRAY, Petitioner-Appellant, v. Marcus HARDY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

598 F.3d 324

Doiakah GRAY, Petitioner-Appellant, v. Marcus HARDY, Respondent-Appellee.

No. 07-3704.

United States Court of Appeals Seventh Circuit.

Argued April 9, 2009.

Decided March 12, 2010.

Patrick M. Otlewski, Latham & Watkins LLP, Chicago, IL, for Petitioner-Appellant.

Karl R. Triebel (argued), Office of the Attorney General, Chicago, IL, for Respondent-Appellee.

Before MANION, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge.

Doiakah Gray was convicted of firstdegree murder in the State of Illinois and sentenced to an extended-term sentence of 80 years' imprisonment based on the trial court's finding that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty. After the state courts denied collateral relief Gray petitioned for a writ of habeas corpus under 28 U.S.C. § 2254. He argued that the trial court violated his rights under the Sixth and Fourteenth Amendments by im-posing the extended-term sentence without submitting the underlying factual issue to a jury, see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that he was denied the effective assistance of counsel. The district court denied his petition. We affirm that decision.

I.

On the night of December 2, 1994, Gray who was seventeen at the time, visited a bar in Harvey, Illinois, with his friend Troy Montgomery. Also at the bar that night were Gary Bilbrey and Don Rietveld. Gray noticed Rietveld's cell phone and decided to steal it. Gray convinced Rietveld and Bilbrey that he and Montgomery could take them to meet women, and the four men left in Bilbrey's truck. After they reached a nearby residential neighborhood, Gray directed that they stop and asked to use Rietveld's cell phone. Instead of making a call, however, Gray took the phone, jumped out of the truck, and ran. Rietveld chased after Gray.

Gray ran a short distance before encountering an acquaintance, Tommy Smith. Rietveld, in pursuit of Gray, arrived soon after. Rietveld approached the two men, and Smith shot him once in the forehead. Rietveld fell to the ground. Smith then handed the gun to Gray, and Gray shot Rietveld three or four times in the left side of the head. In a written confession after his arrest, Gray admitted shooting Rietveld and explained that he "figured the white dude knew me from the bar so I had to finish things." Rietveld died the next day. A forensic expert concluded that any one of the gunshot wounds was sufficient to kill Rietveld and that each contributed to his death.

A jury found Gray guilty of first-degree murder. At his sentencing hearing in December 1998, the trial court concluded that Gray's crime warranted more than the generally applicable statutory maximum of 60 years because the murder was "accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty." 730 ILL. COMP. STAT. 5/5-8-l(a)(l)(b) 5-8-2(a)(l) (1996). Thus the court sentenced Gray to an extended-term sentence of 80 years.

Gray appealed his conviction and sentence. He argued that he was denied his right to a speedy trial, that the prosecutors used their peremptory challenges to exclude African Americans from the jury and that the sentencing court abused its discretion by ignoring mitigating evidence and penalizing Gray for exercising his right to trial. In December 2001 the Appellate Court of Illinois affirmed Gray's conviction and sentence. People v. Gray 326 Ill.App.3d 906, 260 Ill.Dec. 681, 761 N.E.2d 1237 (2001). The appellate court rejected on the merits Gray's challenges to his conviction and also concluded that he had waived review of his sentence because he did not file a post-sentencing motion in the trial court. Id. at 1240-43; see 730 Ill. Comp. Stat. 5/5-8-1(c) (1996). Gray did not seek leave to appeal the decision to the Supreme Court of Illinois.

Gray then obtained new counsel and filed a post-conviction petition in state court. This time he challenged only his sentence. Gray argued that under Apprendi which was decided while his direct appeal was pending, the trial court's imposition of an extended-term sentence based on facts not found by a jury beyond a reasonable doubt violated the Constitution. He further contended that his appellate counsel was constitutionally deficient given counsel's failure to notify the state appellate court about Apprendi and its impact on his sentence. Finally, Gray argued that his trial counsel had also provided ineffective assistance by failing tofile a post-sentencing motion to preserve his sentencing arguments for appeal. The trial court rejected all three claims, concluding that Gray clearly qualified for the extended-term sentence and that his counsel's failure to challenge the sentence under Apprendi did not constitute deficient performance or cause him prejudice. The trial court thus denied Gray's post-conviction petition. Gray appealed, primarily arguing that his sentence violated Apprendi and was excessive, but also contending that both trial and appellate counsel had provided ineffective assistance.

Without addressing Gray's ineffectiveassistance claims, the Appellate Court of Illinois affirmed the dismissal of his postconviction petition. People v. Gray, 363 Ill.App.3d 1195, 334 Ill.Dec. 809, 917 N.E.2d 635, slip op. at 1 (111. App. Ct. Feb 17, 2006). The court agreed with Gray that, because the trial court and not a jury had found that his actions were exceptionally brutal or heinous and indicative of wanton cruelty, his extended-term sentence was imposed in violation of the constitutional rule announced in Apprendi. Id. at 5. Nevertheless, the court reasoned, Gray had "failed to timely object at trial, " and thus the Apprendi error would warrant resentencing only if the circumstances met the criteria for establishing "plain error." Id. at 6. The plain-error doctrine, the court explained, " 'allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.'" Id. at 6-7 (quoting People v. Herron, 215 I11.2d 167, 294 Ill.Dec. 55, 830 N.E.2d 467, 479 (2005)). The court went on to conclude that Gray's act of shooting the unarmed Rietveld as he lay wounded on the ground was "both devoid of mercy and grossly ruthless" and so the Apprendi violation could not have prejudiced Gray or " 'seriously affected the fairness, integrity or public reputation of judicial proceedings.'" Id. at 7 (quoting People v. Crespo, 203 I11.2d 335, 273 111. Dec. 241, 788 N.E.2d 1117, 1125 (2001)). Rather, the court explained, any jury presented with these facts "would have found that the crime was committed in a brutal and heinous manner, indicative of wanton cruelty." Id. Finally, the appellate court rejected Gray's argument that 80 years was excessive. Id. at 9-10.

Gray petitioned, still through counsel, for leave to appeal to the state supreme court. He argued that the Apprendi error constituted plain error and that his 80year sentence was excessive, but he omitted from his petition any claim that his trial or appellate lawyer was ineffective. The supreme court denied leave to appeal. People v. Gray, 221 I11.2d 652, 306 Ill.Dec. 278, 857 N.E.2d 677 (2006). After that decision, however, Gray moved, pro se, for leave to file a late supplemental petition that included the omitted claims of ineffective assistance of trial and appellate counsel. Gray explained that he wished to preserve the issues for federal collateral review. The court denied him leave to file the supplemental petition.

Gray then turned to the district court. In his § 2254 petition he claimed that his extended-term sentence was imposed in violation of the rule of Apprendi, and that he received ineffective assistance from both his trial and appellate counsel. In response, the state argued that Gray had procedurally defaulted all three of his claims. A petitioner in federal court must first exhaust his state remedies by fairly presenting his claims through one full round of state-court review. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); Pole v. Randolph, 570 F.3d 922, 934 (7th Cir.2009). Moreover, if a state court's adjudication of a claim rests on anadequate and independent state procedural ground rather than the merits of the claim, the claim is procedurally defaulted and a federal court on collateral review will not disturb the state's judgment. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed.2d 659 (2004); Johnson v. Loftus, 518 F.3d 453, 455 (7th Cir.2008). Procedural default may be excused, however, if the petitioner can show both cause for and prejudice from the default, or show that the district court's failure to consider the claim would result in a fundamental miscarriage of justice. Dretke, 541 U.S. at 393, 124 S.Ct. 1847; Gonzales v. Mize, 565 F.3d 373, 381 (7th Cir.2009); Johnson, 518 F.3d at 455-56.

Here, the district court concluded that Gray had procedurally defaulted the Apprendi claim. Gray did not raise the Apprendi issue in the state trial court, nor did he file a post-sentencing motion to preserve the argument, and, as a result, on post-conviction review the Illinois appellate court reviewed the claim for plain error only. The district court further concluded that Gray's procedural default could not be excused. Gray could not show cause for the default, the court explained, because he had failed to present his claim of ineffective assistance of trial counsel through one complete round of state-court review. And in any case, the district court reasoned, Gray could not show that he was prejudiced by trial counsel's failure to preserve the Apprendi argument given that the undisputed facts show that "Gray shot an unarmed man in the head at least three times while the man was lying unconscious on the ground." Gray's actions were "not spontaneous, " the court...