Kaczmarek v. Rednour

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-2417

H ENRY K ACZMAREK,

Petitioner-Appellant,

v.

D AVE R EDNOUR, Warden 1 ,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 06126—Wayne R. Andersen, Judge.

A RGUED S EPTEMBER 7, 2010—D ECIDED N OVEMBER 17, 2010

Before F LAUM, R OVNER, and SYKES, Circuit Judges.

F LAUM, Circuit Judge. Henry Kaczmarek was convicted

of murder in Illinois state court in 1996. At that time,

the maximum sentence for murder in Illinois was forty

1

The current warden at Menard Correctional Center, where

Kaczmarek currently is confined, is Dave Rednour. Accordingly,

Rednour is substituted for Donald Gaetz as a party pursuant to

Fed. R. App. P. 43(c).

2 No. 09-2417

years, with the possibility of a sentence enhancement up

to natural life if the crime was determined to be “ac-

companied by exceptionally brutal and heinous behavior

indicative of wanton cruelty.” 730 ILCS § 5/5-8-1(a)(1)(b).

Kaczmarek was sentenced to life in prison based on the

trial court’s finding that the murder was exceptionally

brutal and heinous. After exhausting his appeals in the

Illinois state court system, Kaczmarek petitioned the

district court for a writ of habeas corpus, contending that

Apprendi v. New Jersey, 530 U.S. 466 (2000), entitled him

to have a jury decide the factual issue underlying

the sentence enhancement. The district court denied

Kaczmarek’s petition, but granted a Certificate of Appeal-

ability.

For the following reasons, we affirm.

I. Background

On October 16, 2007, Kaczmarek filed a petition for a

writ of habeas corpus, challenging the constitutionality

of his custody in the Menard Correctional Center, where

he is serving a sentence of natural life for his state

court conviction of first-degree murder. Kaczmarek

contends that, under Apprendi, the trial court violated

his Sixth Amendment rights by imposing the extended-

term sentence without submitting the underlying

factual issue to a jury. Our review is controlled by the

restrictive standards set forth in the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). See

28 U.S.C. § 2254. Under the AEDPA, state court factual

No. 09-2417 3

findings that are reasonably based on the record are

presumed correct, and the petitioner bears the burden

of rebutting that presumption by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283

F.3d 842, 845 (7th Cir. 2002). The following summary of

the facts is based on the Illinois Supreme Court’s factual

findings, which Kaczmarek does not challenge.

A. Factual Background

In 1987, Kaczmarek broke into the apartment of 86-

year-old Millie Nielsen. Kaczmarek stabbed, beat, and

strangled Nielsen in the course of an attack that started

in Nielsen’s kitchen and concluded in her bedroom.

Kaczmarek stole items of minimal value from the apart-

ment, and was later apprehended while in possession

of some of Nielsen’s bloodstained personal belongings.

At the time of his arrest, the shirt that Kaczmarek was

wearing had bloodstains on it. Bloodstained jeans were

found in the trunk of his car. At Kaczmarek’s trial, a

witness testified that, on the night of the murder, he

saw Kaczmarek carrying a bag through the backyard of

Nielsen’s apartment building and placing it in the trunk

of his car before driving away.

An expert in serology and DNA analysis, Pamela Fish,

testified that the blood found on Kaczmarek’s jacket

and jeans was consistent with Nielsen’s blood type and

could not have come from Kaczmarek himself. Rod

Englert, an expert in crime scene reconstruction and

blood splatter, reviewed the physical evidence and crime

scene photographs. He testified that blood smears on the

4 No. 09-2417

kitchen floor indicated a struggle in that area, and

that blood splatter on the kitchen wall suggested that

Nielsen had received numerous blows while on the

kitchen floor. Englert also testified that the stains on

Kaczmarek’s clothing were not consistent with the de-

fendant having picked up a bag with blood on it or a

bag having been placed on top of the clothing. Finally,

he stated the stains were not consistent with Kaczmarek

having kneed another person in the nose.

Kaczmarek testified in his own defense, offering an

explanation for the blood on his clothes and his posses-

sion of Nielsen’s belongings. He stated that he had

been involved in three fights on the night of Nielsen’s

murder, and suggested that the blood on his clothing

came from one or more of those altercations. Kaczmarek

testified that, in one of the fights, he struck a man who

was attempting to break into his car three or four times

in the face, and kneed the man in the nose. Kaczmarek

also testified that he found a bag containing items

taken from Nielsen’s apartment next to her apartment

building, and carried it to the trunk of his car. Based

on that evidence, the jury found Kaczmarek guilty of

murder.

B. Procedural History

The statutory maximum for murder at the time of

Kaczmarek’s conviction was forty years, with the possi-

bility of a sentence enhancement up to natural life if

the crime was determined to be “accompanied by excep-

tionally brutal and heinous behavior indicative of wanton

No. 09-2417 5

cruelty.” 730 ILCS § 5/5-8-1(a)(1)(b). The trial judge found

that the crime was brutal and heinous and enhanced

Kaczmarek’s sentence to a term of natural life. The judge

made that determination without the assistance of the jury.

After Kaczmarek’s trial, but before his direct appeal, the

Supreme Court issued its decision in Apprendi, holding that

any fact that increases the maximum punishment for a

crime must be determined by a jury. Kaczmarek argued

that his sentence violated Apprendi in his appellate brief.

On December 27, 2000, the Illinois Appellate Court

upheld Kaczmarek’s conviction but vacated his sentence,

finding that the trial judge violated Apprendi by making his

own factual finding on the question of whether

Kaczmarek’s crime was exceptionally brutal and heinous.

The State appealed the vacated sentence, and on October 2,

2003, the Illinois Supreme Court reinstated Kaczmarek’s

sentence of natural life. People v. Kaczmarek, 798 N.E.2d 713

(Ill. 2003). The Illinois Supreme Court found that

Kaczmarek’s sentence violated Apprendi because the trial

judge, and not a jury, made the finding that provided the

basis for the sentence enhancement. Id. at 722. However,

because Kaczmarek did not object at the time of sentencing

as required by Illinois law, the court applied plain error

review to determine whether resentencing was warranted.

Id. The court concluded that Kaczmarek could not demon-

strate that the Apprendi violation was prejudicial, as he

must under plain error analysis, because his conduct

“qualifie[d] as exceptionally brutal and heinous behavior

indicative of wanton cruelty under any definition.” Id. In

particular, the court found that Kaczmarek’s “senseless,

vicious murder of [an] elderly woman, effected by means

6 No. 09-2417

of beating, stabbing and strangling, in order to perpetrate

a robbery that could have been easily accomplished

without killing her, undoubtedly qualifie[d] as excep-

tionally brutal and heinous behavior,” and that “[t]he

manner of the murder clearly indicate[d] that the defen-

dant consciously inflicted unnecessary mental and

physical suffering on his victim, indicative of wanton

cruelty.” 798 N.E.2d at 723. The court further concluded

that “a jury, presented with these facts, would have

found that the crime was committed in a brutal and

heinous manner, indicative of wanton cruelty.” Id. The

United States Supreme Court denied Kaczmarek’s

petition for a writ of certiorari on February 23, 2004.

Kaczmarek next filed a petition for post-conviction

relief in Illinois state court. That petition, which raised

issues not presented in this appeal, was dismissed on

June 14, 2004. The Illinois Appellate Court affirmed the

dismissal on November 16, 2006, and the Illinois

Supreme Court denied Kaczmarek’s petition for leave

to appeal on May 31, 2007.

On October 16, 2007, Kaczmarek filed a petition for a

writ of habeas corpus, raising seven arguments, including

that his sentence enhancement is unconstitutional

under Apprendi. In an opinion dated February 9, 2009, the

district court granted habeas relief on Kaczmarek’s

claim that his natural life sentence violated Apprendi,

finding that subjective judgments—such as whether the

“heinous and brutal conduct” requirement was met—could

not be subject to plain error review. The district court

denied habeas relief as to Kaczmarek’s other claims.

No. 09-2417 7

Respondent filed a motion to reconsider, which the

district court granted on April 21, 2009, reasoning that the

Illinois Supreme Court’s decision in this case did not

represent an unreasonable application of Apprendi and

its progeny, such that habeas relief was unavailable

under 28 U.S.C. § 2254(d)(1). The district court denied

the habeas petition in full, and sua sponte granted a certifi-

cate of appealability on the Apprendi issue. Kaczmarek

timely appealed.

II. Discussion

We review the district court’s denial of a habeas peti-

tion de novo. Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th

Cir. 2008). Under the AEDPA, an application for a writ

of habeas corpus “shall not be granted with respect to

any claim that was adjudicated on the merits in State

court proceedings” unless the state court decision (1) “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the

Supreme Court of the United States” or (2) “was based

on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d)(1)-(2). Kaczmarek invokes 28 U.S.C.

§ 2254(d)(1) and argues that the decision of the

Illinois Supreme Court was contrary to clearly estab-

lished Supreme Court precedent.

Before we can reach the merits of Kaczmarek’s claim,

we must consider the State’s contention that we are

precluded from doing so because the Illinois Supreme

Court’s decision rests on an adequate and independent

8 No. 09-2417

state procedural ground. In other words, that the

Apprendi claim is procedurally defaulted.

A. Procedural Default

The State contends that the Illinois Supreme Court

resolved Kaczmarek’s Apprendi claim based on Illinois’s

waiver doctrine, under which the failure to contempora-

neously object to a sentencing error constitutes a pro-

cedural bar to state court review absent plain error. See

People v. Hall, 743 N.E.2d 521, 547-48 (Ill. 2000). When a

state court resolves a federal claim by relying on a state

law ground that is both independent of the federal ques-

tion and adequate to support the judgment, federal

habeas review of the claim is foreclosed. Woods v. Schwartz,

589 F.3d 368, 373 (7th Cir. 2009); Coleman v. Thompson,

501 U.S. 722, 729 (1991). The state law ground relied on

by the state court can be procedural, in which case the

claims are “commonly referred to as being procedurally

defaulted.” Woods, 589 F.3d at 373. Thus, when a state

court refuses to reach the merits of a petitioner’s federal

claims because they were not raised in accord with the

state’s procedural rules (i.e., because the petitioner failed

to contemporaneously object), that decision rests on

independent and adequate state procedural grounds.

See Woods, 589 F.3d at 373; Gray v. Hardy, 598 F.3d 324,

329 (7th Cir. 2010). A federal court on collateral review

will not entertain a procedurally defaulted constitutional

claim unless the petitioner can establish cause and preju-

dice for the default or that the failure to consider the

No. 09-2417 9

claim would result in a fundamental miscarriage of

justice. Johnson v. Loftus, 518 F.3d 453, 455 (7th Cir. 2008).

In the habeas context, the application of the inde-

pendent and adequate state ground doctrine, of which

a procedural default is an instance, is not jurisdictional.

Trest v. Cain, 522 U.S. 87, 89 (1997). Rather, grounded in

concerns of comity and federalism, it “ensures that the

States’ interest in correcting their own mistakes is re-

spected in all federal habeas cases.” Coleman, 501 U.S. at

731-32. Procedural default is considered an affirmative

defense that the State must raise and preserve to avoid

waiver. See Trest, 522 U.S. at 89; Perruquet v. Briley, 390

F.3d 505, 515 (7th Cir. 2004). Generally, a party must

plead affirmative defenses, such as procedural default,

in its answer to properly preserve them. See F ED. R. C IV.

P. 8(c); Robinson v. Johnson, 313 F.3d 128, 137 (3d Cir. 2002)

(“affirmative defenses under the AEDPA [must be]

pleaded in the answer . . . [or] raised at the earliest prac-

ticable moment thereafter”); Morrison v. Mahoney, 399

F.3d 1042, 1046 (9th Cir. 2005) (“the defense of pro-

cedural default should be raised in the first responsive

pleading in order to avoid waiver”).

With these principles in mind, we consider the

threshold question of whether the Illinois Supreme

Court rejected Kaczmarek’s Apprendi claim on an inde-

pendent and adequate state ground. A state law ground

is independent when the court actually relied on the

procedural bar as an independent basis for its disposi-

tion of the case. Smith v. McKee, 598 F.3d 374, 382 (7th Cir.

2010). Here, in resolving the Apprendi claim, the court

10 No. 09-2417

noted that Kaczmarek had failed to object to his sentence

in the trial court, and concluded that plain error did

not excuse Kaczmarek’s forfeiture because he could not

demonstrate prejudice. The court relied on its earlier

decision in People v. Crespo, 788 N.E.2d 1117, 1124 (Ill. 2001),

in which it first applied plain error review to an

Apprendi violation to which a defendant did not object

at the time of trial. Thus, the state court resolved the

Apprendi claim by applying the state’s waiver doctrine,

and the test for independence is met. See Gray, 598 F.3d

at 329.

Kaczmarek disagrees, arguing that the state Supreme

Court reached the merits of his Apprendi claim. We con-

sistently have held that where a state court reviews a

federal constitutional claim for plain error because of a

state procedural bar (here, the doctrine of waiver), that

limited review does not constitute a decision on the

merits. See id. (citing cases). As Kaczmarek notes, in

Crespo, on which the state court relied in this case, the

Illinois Supreme Court cited a number of federal cases

in concluding that the Apprendi violation in that case

did not constitute plain error. 788 N.E.2d at 1124-25. But,

as the Illinois Supreme Court explained in People v.

Herron, 830 N.E.2d 467, 479 (Ill. 2005), the Crespo opinion

referred to the plain-error standard set forth in United

States Supreme Court cases only because the Illinois

and federal plain error standards are similar, not

because it was applying federal law.

A state law ground is adequate when it is a firmly

established and regularly followed state practice at the

No. 09-2417 11

time it is applied. Smith, 598 F.3d at 382. Kaczmarek does

not argue that the waiver rule is not an adequate

ground for the Illinois Supreme Court’s decision not to

reach the merits of his Apprendi claim. The contempora-

neous objection requirement appears to have been firmly

established and regularly followed in 1996. See People

v. Mahaffey, 651 N.E.2d 1055 (Ill. 1995); People v. Hampton,

594 N.E.2d 291 (Ill. 1992); People v. Guest, 503 N.E.2d 255

(Ill. 1986); People v. Devin, 444 N.E.2d 102 (Ill. 1982). There-

fore, we conclude that the waiver rule also was an ade-

quate state law ground. See Gray, 598 F.3d at 329 (Illinois

waiver doctrine constitutes independent and adequate

state ground where petitioner failed to object to

Apprendi error at sentencing).

Therefore, Kaczmarek’s Apprendi claim is procedurally

defaulted. Normally, our next inquiry is whether

Kaczmarek can avoid that default by showing cause and

prejudice or the potential for a miscarriage of justice.

However, here, the State belatedly raised procedural

default for the first time in its motion to reconsider,

and Kaczmarek claims that the State’s actions amounted

to an implicit waiver of the defense. While the State

should have raised the defense in a more timely

fashion, under the facts and circumstances of this case,

we cannot conclude that the State waived the defense.

In its answer, the State asserted a procedural default

defense as to some of Kaczmarek’s claims, but not as to

his Apprendi claim. Instead, the State addressed the

merits of that claim, arguing that the state court’s deci-

sion to apply a plain error standard, and its determina-

12 No. 09-2417

tion that there was no plain error, was not contrary to or

an unreasonable application of clearly established Fed-

eral law, and was not based on an unreasonable deter-

mination of the facts.2 Under similar circumstances—where

the State did not raise procedural default and instead

responded to a habeas claim on its merits—we have

held that the State implicitly waived the defense. See

Bonner v. DeRobertis, 798 F.2d 1062, 1066 & n.3 (7th Cir.

1986) (concluding that the State implicitly waived pro-

cedural default defense by addressing the merits of the

claim and not arguing procedural default in the district

2

On appeal, the State contends that it did not address the

merits of the Apprendi claim in its answer because it did not

argue that no Apprendi error occurred. But the State applied the

AEDPA standard of review articulated in 28 U.S.C. § 2254(d),

which is the standard used to evaluate the merits of a habeas

application. See Woodford v. Garceau, 538 U.S. 202, 206 (2003)

(“AEDPA in general and § 2254(d) in particular focus in large

measure on revising the standards used for evaluating the

merits of a habeas application”); Horn v. Banks, 536 U.S. 266,

269 (2002) (stating that the district court “rejected respondent’s

Mills claim on the merits” where it applied “the AEDPA

standard of review articulated in 28 U.S.C. § 2254(d)”). More-

over, in its answer, the State itself characterized its response to

the claim as being merits-based. In particular, the State’s

response to the Apprendi claim appeared under the heading

“merits,” and the State asserted that “[t]he Illinois Supreme

Court resolved petitioner’s claim on the merits, so review of that

claim is governed by 28 U.S.C. § 2254(d).” Plainly, the State

addressed the merits of Kaczmarek’s Apprendi claim in its

answer.

No. 09-2417 13

court or on appeal); Buggs v. United States, 153 F.3d 439,

444 (7th Cir. 1998) (government waived procedural

default defense where it did not argue that petitioner

procedurally defaulted claim and instead argued that

the claim was meritless). And we have suggested that a

State may implicitly waive the contention that a claim is

procedurally defaulted by addressing the merits of that

claim “while asserting that another is procedurally

barred.” Perruquet, 390 F.3d at 516; see also Lewis v. Sternes,

390 F.3d 1019, 1029 (7th Cir. 2004) (“One might infer

that the State has implicitly waived a procedural default

defense when it has asserted that defense as to some

of the petitioner’s claims but not as to the particular

claim in question.”). Finally, we have refused to address

a procedural default argument that is raised for the

first time on appeal where the State affirmatively took

the position that the claim was not defaulted in the

district court. Cossel v. Miller, 229 F.3d 649, 653 (7th Cir.

2000) (“[a] litigant that fails to present an argument to

the district court cannot rely on that argument in the

court of appeals, and this rule certainly encompasses a

litigant that adopts a position on appeal that is contrary

to its position in the district court.”).

However, an important fact distinguishes this case

from cases in which we have found implicit waiver.

Here, the State raised procedural default before the

district court in a motion for reconsideration. The parties

fully briefed the issue in connection with that motion.

Therefore, not only was the procedural default argument

presented to the district court—albeit in an untimely

fashion—but Kaczmarek was on notice that procedural

14 No. 09-2417

default could be an issue on appeal. Moreover, he took

the opportunity to argue against the application of the

bar in his reply brief.

In this context, waiver means the intentional relinquish-

ment of a known right, not merely the failure to timely

assert a right, which is properly referred to as forfeiture.

Perruquet, 390 F.3d at 517; see also United States v. Wesley,

422 F.3d 509, 520 (7th Cir. 2005) (“A forfeiture is

basically an oversight; a waiver is a deliberate decision

not to present a ground for relief that might be available

in the law.”). Here, it appears that the State initially

misread the state court’s decision as addressing the

merits of the Apprendi claim. Only later did the State

recognize that the state court’s review of the claim for

plain error did not constitute a decision on the merits, but

rather rested on state procedural grounds. While the

State should have raised its default argument more

promptly, its conduct does not evince an intent to waive

the procedural default defense. Therefore, under the

facts of this case, we cannot conclude that the State

waived the procedural default defense.

While the district court chose not to address the State’s

procedural default argument, we find that doing so

here is appropriate. Perruquet, in which the State had

forfeited (but not waived) the procedural default defense

by raising it for the first time on appeal, is instructive.

As in that case, a number of factors persuade us to

reach the procedural default defense here. 390 F.3d at

518. First, the procedural default is clear—Kaczmarek

did not object at sentencing, and, because of that failure

No. 09-2417 15

to comply with state procedural rules, the state court

reviewed his claim for plain error. That review did not

constitute adjudication on the merits, and consequently

did not cure Kaczmarek’s default. Miranda v. Leibach, 394

F.3d 984, 992 (7th Cir. 2005). Second, because “no Illinois

court was ever given the opportunity to pass on the

merits of [Kaczmarek’s] constitutional claim, comity and

federalism principles weigh strongly against permitting

[Kaczmarek] to assert the claim in federal court.” Perruquet,

390 F.3d at 518. Third, absent procedural default, we

would address the merits of Kaczmarek’s claim de novo,

resulting in a windfall to Kaczmarek for failing to

properly object. For these reasons, and because the

State’s waiver was unintentional and Kaczmarek had an

opportunity to address the issue, we will entertain the

State’s procedural default defense.3

3

While we conclude that addressing the procedural default

defense is appropriate under the circumstances of this case, we

note that the question of waiver could have been avoided

had the State not misconstrued the basis for the Illinois

Supreme Court’s decision in the first instance. As we pre-

viously have noted, habeas corpus law “is subtle and intricate;

mistakes are easy to make. But it is a body of law of which the

lawyers employed by a state attorney general should be

masters. Failing to achieve such mastery, they should not

blame federal judges for springing dangerous criminals free to

prey on the citizenry whose safety the attorney general is

sworn to protect.” Fagan v. Washington, 942 F.2d 1155, 1157

(7th Cir. 1991).

16 No. 09-2417

B. Cause and Prejudice

Having concluded that Kaczmarek’s Apprendi claim

is procedurally defaulted, we cannot revisit the Apprendi

issue unless Kaczmarek can establish cause and preju-

dice for the default, or the potential for a miscarriage of

justice. Kaczmarek does not argue that he can meet

these standards. Moreover, our precedents clearly estab-

lish that the fact that Kaczmarek was sentenced before

Apprendi was decided does not establish cause, as “an

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.”

Gray, 598 F.3d at 330; see also Valenzuela v. United States,

261 F.3d 694, 700 n.2 (7th Cir. 2001) (“the novelty of

Apprendi does not constitute cause for failing to raise

the issue earlier because ‘the foundation for Apprendi

was laid long before 1992’ ”) (citing Garrott v. United States,

238 F.3d 903, 905 (7th Cir. 2001)). Because Kaczmarek

has not established cause and prejudice, we cannot con-

sider his Apprendi claim. See, e.g., Crockett v. Hulick, 542

F.3d 1183, 1193 (7th Cir. 2008); Todd, 283 F.3d at 849.

C. Defective Indictment Claim

Kaczmarek also contends that his sentence violated

Apprendi because his indictment did not charge that he

was potentially eligible for a sentence enhancement for

brutal or heinous conduct. According to Kaczmarek,

Apprendi requires facts that increase the maximum

No. 09-2417 17

penalty for a crime to be charged in the indictment.

Kaczmarek included this argument in the habeas peti-

tion filed in the district court, summarizing his second

claim as asserting that his sentence violated Apprendi, “in

which the U.S. Supreme Court held that facts that

increase the prescribed range of penalties must be

charged in the indictment, submitted to the jury, and

proved beyond a reasonable doubt.” However, the

district court appears to have overlooked the argument,

as it did not address the indictment issue. Nor did the

Illinois Supreme Court address the issue, although

Kaczmarek briefed the issue in that court. “The matter

of what questions may be taken up and resolved for the

first time on appeal is one left primarily to the discretion

of the courts of appeals, to be exercised on the facts of

individual cases.” Singleton v. Wulff, 428 U.S. 106, 121

(1976); see also Sprosty v. Buchler, 79 F.3d 635, 645-46 (7th

Cir. 1996). We will entertain the claim because

Kaczmarek preserved the issue, the issue has been fully

briefed, and—because we conclude that the claim is

meritless—it is in the interest of judicial economy that

we address it.

Kaczmarek’s claim is based on a misreading of Apprendi.

In Apprendi, the Court held that “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a rea-

sonable doubt.” 530 U.S. at 490. The Apprendi Court

noted that its decision was foreshadowed by Jones v.

United States, 526 U.S. 227, 243 n.6 (1999), in which it

held that, in the context of federal prosecutions, “any

18 No. 09-2417

fact (other than prior conviction) that increases the maxi-

mum penalty for a crime must be charged in an indict-

ment, submitted to a jury, and proved beyond a

reasonable doubt.” However, in Apprendi, the Court

expressly refused to address whether facts that increase

the maximum penalty must be charged in the indict-

ment in state prosecutions, as that question was not

before it. 530 U.S. at 477 n.3. Thus, under current

Supreme Court precedent, such aggravating facts must

be charged in the indictment in federal prosecu-

tions only. See United States v. Cotton, 535 U.S. 625, 627

(2002) (under Apprendi and Jones, “[i]n federal

prosecutions, . . . facts [that increase the penalty for a

crime beyond the prescribed statutory maximum] must

also be charged in the indictment”); see also Williams v.

Haviland, 467 F.3d 527, 532-33 (6th Cir. 2006) (reversing

grant of habeas petition where district court erroneously

concluded that Apprendi recognized a right to have sen-

tence enhancements charged in the indictment).

Kaczmarek relies on our decision in United States v.

Watts, 256 F.3d 630, 631, n.2 (7th Cir. 2001), in which we

noted that we have “read Apprendi to require that certain

facts must be charged in the indictment, as well as sub-

mitted to a jury and proven beyond a reasonable

doubt.” However, Watts, and the cases cited therein,

involved federal prosecutions. Kaczmarek cites no case

in which a court has interpreted Apprendi to require

that sentence enhancements be charged in state prosecu-

tions.

On appeal, Kaczmarek characterizes his indictment

claim as alleging a violation of his Sixth Amendment

No. 09-2417 19

right to notice of the charges against him. The Sixth

Amendment guarantees a criminal defendant the funda-

mental right to be informed of the nature and cause of

the charges made against him so as to permit adequate

preparation of a defense. See U.S. C ONST. amend. VI (“In

all criminal prosecutions, the accused shall enjoy the

right . . . to be informed of the nature and cause of the

accusation. . . .”); Cole v. Arkansas, 333 U.S. 196, 201 (1948)

(“It is as much a violation of due process to send an

accused to prison following conviction of a charge on

which he was never tried as it would be to convict him

upon a charge that was never made.”); Bae v. Peters, 950

F.2d 469, 477 (7th Cir. 1991) (“a criminal defendant

must receive adequate notice of the charges against him

so that he may defend himself against those charges”).

This right to notice is applicable to the states through

the due process clause of the Fourteenth Amendment.

See Cole, 333 U.S. at 201 (“No principle of procedural

due process is more clearly established than that notice

of the specific charge, and a chance to be heard in a trial

of the issues raised by that charge, if desired, are among

the constitutional rights of every accused in a criminal

proceeding in all courts, state or federal.”).

We need not consider whether Kaczmarek could estab-

lish a Sixth Amendment right to notice claim because

such a claim is distinct from an Apprendi claim. See Gautt

v. Lewis, 489 F.3d 993, 1005 & n.12 (9th Cir. 2007).

Kaczmarek did not present an independent right-to-

notice claim to the district court, and consequently he

has forfeited his ability to raise it for the first time on

appeal. Pole v. Randolph, 570 F.3d 922, 940 (7th Cir. 2009)

20 No. 09-2417

III. Conclusion

For the foregoing reasons, we A FFIRM the district

court’s judgment.

11-17-10