Doiakah Gray v. Marcus Hardy

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3704
D OIAKAH G RAY,
Petitioner-Appellant,
v.
M ARCUS H ARDY,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 6058—Matthew F. Kennelly, Judge.
A RGUED A PRIL 9, 2009—D ECIDED M ARCH 12, 2010
Before M ANION, R OVNER, and W OOD , Circuit Judges.
R OVNER, Circuit Judge. Doiakah Gray was convicted of
first-degree murder in the State of Illinois and sentenced
to an extended-term sentence of 80 years’ imprison-
ment 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
2 No. 07-3704
the trial court violated his rights under the Sixth and
Fourteenth Amendments by imposing the extended-
term sentence without submitting the underlying
factual issue to a jury, see Apprendi v. New Jersey, 530
U.S. 466 (2000), and that he was denied the effective
assistance of counsel. The district court denied his peti-
tion. 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 con-
vinced 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 resi-
dential 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 ac-
quaintance, 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
No. 07-3704 3
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 cru-
elty.” 730 ILL. C OMP. S TAT. 5/5-8-1(a)(1)(b), 5-8-2(a)(1)
(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, 761
N.E.2d 1237 (Ill. App. Ct. 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. C OMP.
S TAT. 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-convic-
tion petition in state court. This time he challenged only
4 No. 07-3704
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 to file a post-sentencing
motion to preserve his sentencing arguments for ap-
peal. The trial court rejected all three claims, concluding
that Gray clearly qualified for the extended-term sen-
tence and that his counsel’s failure to challenge the sen-
tence under Apprendi did not constitute deficient perfor-
mance 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 ineffective-assistance
claims, the Appellate Court of Illinois affirmed the dis-
missal of his post-conviction petition. People v. Gray,
No. 1-04-1771, slip op. at 1 (Ill. 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 circum-
No. 07-3704 5
stances 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, regard-
less of the closeness of the evidence.’ ” Id. at 6-7 (quoting
People v. Herron, 830 N.E.2d 467, 479 (Ill. 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, 788 N.E.2d 1117, 1125 (Ill. 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 80-year
sentence was excessive, but he omitted from his petition
any claim that his trial or appellate lawyer was inef-
fective. The supreme court denied leave to appeal. People
v. Gray, 857 N.E.2d 677 (Table), (Ill. 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.
6 No. 07-3704
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 (2004); Pole v.
Randolph, 570 F.3d 922, 934 (7th Cir. 2009). Moreover, if
a state court’s adjudication of a claim rests on an
adequate and independent state procedural ground
rather than the merits of the claim, the claim is procedur-
ally defaulted and a federal court on collateral review
will not disturb the state’s judgment. Dretke v. Haley, 541
U.S. 386, 392 (2004); Johnson v. Loftus, 518 F.3d 453, 455
(7th Cir. 2008). Procedural default may be excused, how-
ever, if the petitioner can show both cause for and preju-
dice from the default, or show that the district court’s
failure to consider the claim would result in a funda-
mental miscarriage of justice. Dretke, 541 U.S. at 393;
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 proce-
durally 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 ap-
pellate court reviewed the claim for plain error only. The
district court further concluded that Gray’s procedural
No. 07-3704 7
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 explained, but
“deliberately designed to eliminate the victim as a poten-
tial witness,” making it “extraordinarily unlikely” that a
jury would not have found his behavior to have been
exceptionally brutal, heinous, and indicative of wanton
cruelty.
The district court next expressed doubt that Gray’s
“belated attempt” to raise the claim of ineffective assis-
tance of appellate counsel in the Illinois supreme
court, after leave to appeal already had been denied, was
enough to save that claim from procedural default. Never-
theless, the court went on to address the ineffective-
assistance claim on the merits. Under Strickland v. Wash-
ington, 466 U.S. 668 (1984), a petitioner must show that
his counsel’s deficient performance caused him prejudice.
Here, the district court concluded that Gray’s claim failed
for lack of prejudice. The undisputed facts considered
by the sentencing judge in extending Gray’s sentence,
the district court explained, “are precisely the types
of facts Illinois courts have found to constitute exception-
ally brutal and heinous behavior.” Thus, even if Gray’s
8 No. 07-3704
counsel had raised the Apprendi issue on direct appeal,
the court reasoned, there was not a “reasonable prob-
ability that the appellate court would have reversed
Gray’s extended-term sentence.” Accordingly, the
district court denied Gray’s petition but granted him
a certificate of appealability for all of his claims. See
28 U.S.C. § 2253(c)(1)(A); F ED. R. A PP. P. 22(b)(1).
II.
We review de novo a district court’s ruling as to proce-
dural default. Smith v. Gaetz, 565 F.3d 346, 351 (7th Cir.
2009). On appeal Gray challenges the district court’s
conclusion that he procedurally defaulted his Apprendi
claim and his claims of ineffective assistance of counsel.
He further contends that the Apprendi error at sen-
tencing and his attorney’s failure to preserve the claim
in a post-sentencing motion or to raise it on direct
appeal caused him prejudice. The state maintains that
Gray procedurally defaulted all of his claims. And even
assuming that Gray’s default was caused by counsel’s
deficient performance, the state contends, Gray was not
prejudiced. Under Illinois law, the state argues, the facts of
this murder clearly qualified Gray for an extended-term
sentence and, thus, the trial court’s determination of the
matter as opposed to a jury was harmless. We agree
that Gray procedurally defaulted all of his claims and
conclude that he cannot establish either cause or prej-
udice to excuse his default.
We begin with Gray’s Apprendi claim. The district court
concluded that the claim was procedurally defaulted
No. 07-3704 9
because the Appellate Court of Illinois on post-conviction
review resolved the claim based on an independent and
adequate state-law ground without reaching the merits.
If a state court clearly and expressly states that its judg-
ment rests on a state procedural bar and does not reach
the merits of a federal claim, then we are unable to con-
sider that claim on collateral review. Harris v. Reed, 489
U.S. 255, 263 (1989); Pole, 570 F.3d at 937. And we have
repeatedly explained that where a state court reviews
the claim for plain error as the result of a state procedural
bar such as the Illinois doctrine of waiver, that limited
review does not constitute a decision on the merits. See
Miranda v. Leibach, 394 F.3d 984, 992 (7th Cir. 2005); Rodri-
guez v. McAdory, 318 F.3d 733, 735 (7th Cir. 2003); Neal v.
Gramley, 99 F.3d 841, 843-44 (7th Cir. 1996); see also Lee
v. Davis, 328 F.3d 896, 900 (7th Cir. 2003) (explaining
that the Indiana state courts’ analysis of a claim for
“fundamental error” is, like “plain error” review in
Illinois, not a review on the merits).
Here, the Appellate Court of Illinois clearly and ex-
pressly relied on the state’s doctrine of waiver to decide
Gray’s Apprendi claim. As the appellate court explained,
under Illinois law “a plain error analysis applies where
a defendant has failed to make a timely objection at trial.”
Gray, No. 1-04-1771, slip op. at 6. Gray, the appellate
court continued, had “failed to timely object at trial,” and,
therefore, the court reviewed his Apprendi claim for
plain error only. Accordingly, the state court’s conclu-
sion that Gray had not established plain error was not a
decision on the merits, and thus we agree with the
district court that the claim is procedurally defaulted.
10 No. 07-3704
Gray attempts to circumvent this result by arguing
that Illinois’s waiver rule could not be used to bar his
claim because Apprendi was decided during the pendency
of his direct appeal. We are not persuaded by this argu-
ment. In its decision, the appellate court acknowledged
that Apprendi had not yet been decided at the time of
Gray’s trial, but relying on precedent established by the
Supreme Court as well as the Supreme Court of Illinois, the
appellate court reiterated that it was still limited to a
plain error review of his claim. Id. (citing United States
v. Cotton, 535 U.S. 625 (2002) (applying plain error review
to unpreserved Apprendi argument, despite fact that
Apprendi was decided during pendency of defendant’s
direct appeal), and Crespo, 788 N.E.2d at 1123-24). Gray
is correct that, in the immediate wake of Apprendi,
Illinois courts initially declined to apply the doctrine of
waiver to Apprendi claims unpreserved in the trial court
and, instead, remanded the cases for resentencing. See
People v. Swift, 781 N.E.2d 292, 300 (Ill. 2002); People v.
Lathon, 740 N.E.2d 377, 380 (Ill. App. Ct. 2000); People v.
Kaczmarek, 741 N.E.2d 1131, 1138-39 (Ill. App. Ct. 2000),
aff’d in part and rev’d in part, 798 N.E.2d 713 (Ill. 2003);
People v. Sutherland, 743 N.E.2d 1007, 1015-16 (Ill. App. Ct.
2000). But the Supreme Court of Illinois has since con-
cluded that, regardless whether the defendant was sen-
tenced before the Supreme Court’s ruling in Apprendi, the
state’s doctrines of forfeiture and waiver apply, and, thus,
if a defendant has not timely objected in the trial court,
plain-error analysis applies. See Kaczmarek, 798 N.E.2d at
722; People v. Thurow, 786 N.E.2d 1019, 1028 (2003); Crespo,
788 N.E.2d at 1124. We have also acknowledged that an
No. 07-3704 11
Apprendi-like objection was available to defendants even
before the Supreme Court issued its decision, and, indeed,
defendants began making the argument soon after the
federal sentencing guidelines came into being. Valenzuela
v. United States, 261 F.3d 694, 700 n.2 (7th Cir. 2001);
Garrott v. United States, 238 F.3d 903, 905-06 (7th Cir. 2001).
Moreover, Gray cannot establish the requisite cause
and prejudice to excuse his procedural default of the
Apprendi claim. Gray contends that the ineffective assis-
tance of his trial and appellate counsel—in failing to file
a post-sentencing motion or to raise the issue on direct
appeal—constitutes cause for his default. But to use
the independent constitutional claims of ineffective
assistance of trial and appellate counsel as cause to
excuse a procedural default, Gray was required to raise
the claims through one full round of state court review,
or face procedural default of those claims as well. See
Smith, 565 F.3d at 352; Lee v. Davis, 328 F.3d 896, 901 (7th
Cir. 2003). Gray, however, defaulted his claims of ineffec-
tive assistance by omitting them from his counseled
petition for leave to appeal the decision affirming the
denial of post-conviction relief. See Smith, 565 F.3d at 352.
Gray argues that he included the ineffective-assistance
claims in his pro se “motion for leave to file late supple-
mental petition” filed in June 2007—more than eight
months after the state supreme court denied him leave
to appeal—and that this filing satisfied his obligation to
first fully and fairly present his claims for review in the
state court. See O’Sullivan v. Boerckel, 526 U.S. 838, 848
(1999); Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir.
12 No. 07-3704
2004). But the Illinois supreme court refused even to
allow Gray to file the untimely supplemental petition, and
in another case we concluded that a similarly filed
late petition was insufficient to preserve a claim for
federal review. See Cawley v. De Tella, 71 F.3d 691, 695 & n.8
(7th Cir. 1995) (holding that petitioner’s motion for leave
to file late petition for leave to appeal to Supreme Court
of Illinois, which the court denied, was insufficient to
preserve claims). Regardless, even if Gray managed to
preserve his ineffective assistance claims for federal
review—both as independent grounds for federal
relief and as cause for his procedural default of the under-
lying Apprendi claim—he cannot establish that counsel’s
alleged errors caused him prejudice.
To establish prejudice as a result of counsel’s purported
deficiencies at trial and on appeal, Gray would have to
satisfy the familiar standard of Strickland v. Washington,
466 U.S. 668 (1984). See Wrinkles v. Buss, 537 F.3d 804, 815
(7th Cir. 2008). Under Strickland, Gray must establish a
reasonable probability that, but for counsel’s errors, he
would not have received an extended-term sentence. See
Strickland, 466 U.S. at 694; Johnson, 518 F.3d at 456. Gray
makes two arguments that he was prejudiced by
counsel’s failure to raise the Apprendi argument. We note,
however, that on post-conviction review the state trial
court concluded that Gray could not establish that coun-
sel’s performance was deficient or that he suffered any
prejudice. Again, even if we assume that Gray ade-
quately preserved his claims of ineffective assistance, the
trial court is the only state court to have addressed those
claims on the merits, and that ruling would be entitled to
No. 07-3704 13
our deference under 28 U.S.C. § 2254(d). See Sanders v.
Cotton, 398 F.3d 572, 584 (7th Cir. 2005); Conner v. McBride,
375 F.3d 643, 648-49 & n.3 (7th Cir. 2004). Both parties
have failed to acknowledge the ruling of the state trial
court, and thus neither has framed the issue in terms of
whether the state court’s application of Strickland was
unreasonable. See § 2254(d); Johnson, 518 F.3d at 456. In
any case, even without this added layer of deference,
Gray cannot establish that he was prejudiced.
Gray first contends that counsel’s failure to raise the
Apprendi claim caused him prejudice because at the time of
his direct appeal the Illinois appellate courts were
issuing automatic remands for Apprendi errors. The
focus of the Strickland test for prejudice, however, is not
simply whether the outcome would have been different;
rather, counsel’s shortcomings must render the pro-
ceeding fundamentally unfair or unreliable. Williams v.
Taylor, 529 U.S. 362, 391-93 & n.17 (2000); Lockhart v.
Fretwell, 506 U.S. 364, 370-72 (1993); Strickland, 466 U.S. at
687; Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004). As
noted above, the Illinois courts later recognized that
an Apprendi error is not structural and, as such, does not
require automatic remand. See Thurow, 786 N.E.2d at 1028.
And contrary to Gray’s assertion, the Supreme Court has
consistently held that “the likelihood of a different out-
come attributable to an incorrect interpretation of the
law” does not constitute “the legitimate ‘prejudice’ ”
required under Strickland. Williams, 529 U.S. at 392 (citing
Fretwell, 506 U.S. at 372). Gray therefore cannot prevail
based on the Illinois courts’ mistaken jurisprudence at
14 No. 07-3704
the time of his appeal. See Williams, 529 U.S. at 392;
Fretwell, 506 U.S. at 370; Strickland, 466 U.S. at 695.
Gray’s second attempt to show prejudice is also una-
vailing. Gray contends that had his appellate counsel
raised the Apprendi claim, the appellate court would
have vacated the extended-term sentence because the
evidence presented in the trial court did not establish
that he exhibited exceptionally brutal or heinous
behavior indicative of wanton cruelty. See 730 ILL . C OMP .
S TAT. 5/5-8-1(a)(1)(b). At the time of Gray’s sentencing,
Illinois law permitted the imposition of an extended-
term sentence above the otherwise applicable
statutory maximum for first-degree murder “if the
court finds that the murder was accompanied by excep-
tionally brutal or heinous behavior indicative of wanton
cruelty.” 730 ILL. C OMP. S TAT. 5/5-8-1(a)(1)(b), 5-8-2(a)(1)
(1996). The Illinois legislature has since amended the
statute to comply with Apprendi, and, accordingly, the
statute now requires the “trier of fact” to make the neces-
sary findings “beyond a reasonable doubt.” 730 ILL. C OMP.
S TAT. 5/5-8-1(a)(1)(b) (2002); see Pub. Act No. 91-953, 2000
Ill. Laws 2269 (eff. Feb. 23, 2001). There is no dispute
that Gray’s sentencing violated the dictates of Apprendi,
but in light of the evidence presented at trial, the
question is whether a reasonable probability exists that
the appellate court would have concluded, on harmless
error review, that a properly instructed jury could
have found Gray ineligible for an extended-term sen-
tence. After a review of the applicable Illinois case law,
we have no doubt that the appellate court would have
found the error harmless and that Gray’s actions consti-
No. 07-3704 15
tuted “exceptionally brutal or heinous behavior indica-
tive of wanton cruelty,” as a matter of Illinois law.
Under Illinois law “brutal” behavior is defined as that
which is “ ‘grossly ruthless, devoid of mercy or compas-
sion; cruel and cold-blooded.’ ” Kaczmarek, 798 N.E.2d at723 (citing People v. Nielson, 718 N.E.2d 131, 148 (Ill. 1999));
see People v. Nitz, 848 N.E.2d 982, 994 (Ill. 2006). Heinous
behavior is defined as behavior that is “hatefully or
shockingly evil; grossly bad; enormously and flagrantly
criminal.” Kaczmarek, 798 N.E.2d at 723 (citing Nielson,
718 N.E.2d at 148). Finally, the behavior must also be
indicative of wanton cruelty, which “requires proof that
the defendant consciously sought to inflict pain and
suffering on the victim of the offense.” Id. (citing Nielson,
718 N.E.2d at 148). The defendant’s history of violent
crime, premeditation, and expression of remorse are
also factors for consideration. See People v. Andrews, 548
N.E.2d 1025, 1032 (Ill. 1989); People v. La Pointe, 431 N.E.2d
344, 353 (Ill. 1981).
Gray challenges the “wanton cruelty” element; he
contends that the state did not establish that he “con-
sciously sought to inflict pain and suffering” on his
victim. Nitz, 848 N.E.2d at 994. Gray argues that such a
finding is impossible here because the state presented
no evidence to show how much time elapsed between
the first shot fired by Smith and Gray’s additional shots
or that the wounded Rietveld was conscious or could see
Gray when he fired the gun. As support for his argument,
Gray relies on People v. Alvarez, 799 N.E.2d 694, 698, 707-08
(Ill. App. Ct. 2003), in which the appellate court con-
cluded that an Apprendi error was not harmless where
16 No. 07-3704
the defendant approached the victim from behind and
shot him once in the back of the head. Gray also cites
People v. Rodriguez, 655 N.E.2d 1022, 1033 (Ill. App. Ct.
1995), in which the court rejected an extended-term
sentence because the murder could not be characterized
as a “slow, extended, and extremely painful process.”
In the overwhelming majority of cases, however, Illinois
courts have upheld the application of an extended-
term sentence for similar execution-style murders, par-
ticularly where the victim is helpless and wounded by
some initial act. In People v. Simmons, the appellate
court concluded that the Apprendi error was harmless
where the victim was first shot by another person and fell
to the ground, and the defendant then stood over the
wounded victim and shot him once in the back of the
head. 794 N.E.2d 995, 1002-03 (Ill. App. Ct. 2003). The
court explained that it had “no doubt that the jury
would have found that the murder defendant committed
was accompanied by exceptionally brutal or heinous
behavior indicative of wanton cruelty,” since the “defen-
dant killed the wounded victim in an execution-style
manner.” Id. at 1003. Similarly, in People v. Fauntleroy, the
court upheld an extended-term sentence—despite the
defendant’s lack of premeditation or history of violent
crime—based on the “one key fact” that the killing “was
an execution style murder, with the victim being shot
three times in the back of the head after being knocked
to the ground.” 586 N.E.2d 292, 300 (Ill. App. Ct. 1992).
Additionally, in those cases involving the execution-style
murder of a wounded victim, Illinois courts have not
required any showing that the victim remained conscious
No. 07-3704 17
for the final shots, nor have they focused on the duration
of the entire attack. See, e.g., People v. Tenney, 807
N.E.2d 705, 717 (Ill. App. Ct. 2004) (holding that Apprendi
error was harmless where defendant received extended-
term sentence for shooting victim once and im-
mediately directing accomplice to finish the job with
two close-range gunshots to the head); People v. Hill, 691
N.E.2d 797, 800, 806 (Ill. App. Ct. 1998) (upholding
extended-term sentence where defendant first pushed
victim, causing her to hit her head and fall unconscious,
and then cut her throat while she lay unconscious);
People v. Willis, 702 N.E.2d 616, 628-29 (Ill. App. Ct. 1998)
(upholding extended-term sentence where defendant
stood over fallen victim and shot him multiple times);
People v. Williams, 673 N.E.2d 1169, 1175 (Ill. App. Ct. 1996)
(upholding extended-term sentence where defendant
shot victim twice then, after some time, shot her twice
more for “no apparent reason” while victim was still alive).
Gray also contends that his statement to police—that he
believed he had to eliminate Rietveld as a potential
witness—shows panic instead of premeditation, and that
his panic and his minimal criminal history make it
unlikely that a jury would have concluded that he de-
served an extended-term sentence. But the state
appellate court rejected a nearly identical argument in
People v. Payne where the victim was accidentally shot by
another, and the defendant then killed the wounded
victim by shooting him twice from behind. 689 N.E.2d
631, 636-37 (Ill. App. Ct. 1998). In that case, the court
acknowledged that “unforeseen developments led defen-
dant to conclude that it was necessary to commit mur-
18 No. 07-3704
der” and that the defendant’s conduct arguably “did not
‘go beyond the mere infliction of death.’ ” Id. (quoting
People v. Ratzke, 625 N.E.2d 1004, 1016 (Ill. App. Ct. 1993)).
Nevertheless, the court affirmed the application of an
extended-term sentence, emphasizing that a “ ‘cold-
blooded execution’ after a robbery, just to cover up the
fact that the victim knew the defendant, can constitute
exceptionally brutal or heinous behavior indicative of
wanton cruelty.” Id. at 637.
In sum, we have no doubt that had Gray’s appellate
counsel raised the claim, the appellate court would have
found the Apprendi error harmless because a properly
instructed jury would have found that, as a matter of
Illinois law, Gray’s actions constituted exceptionally
brutal or heinous behavior indicative of wanton cruelty.
As a result Gray does not meet the exacting standards
for relief under § 2254. Gray has procedurally defaulted
each of his claims. And even if we were to conclude
that he has adequately preserved his claims of ineffective
assistance of counsel for federal review, he cannot show
that counsel’s failure to raise the Apprendi error caused
him prejudice.
III.
Accordingly, we A FFIRM the judgment of the district
court.
3-12-10