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 at

723 (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