Two men share this page because each left almost no published appellate record, and the reasons for that are visible in the opinions themselves. Ricky Lee Green was tried once, on one murder. Robert Ben Rhoades pleaded guilty. What survives in print is two rulings from the federal appeals court in New Orleans on Green’s last habeas corpus case and one from an Illinois appellate court on Rhoades’s plea.
Green was convicted in 1990 of the capital murder of Steven Fefferman, a sales manager at a Fort Worth television station, who was stabbed and sexually mutilated in his home in December 1986. The Fifth Circuit summarizes Green’s own statement to police: he met Fefferman at Casino Beach, went home with him, persuaded him to be tied to the bed, stabbed him several times, ransacked the bedroom for money and left in Fefferman’s car. The case was indicted in Tarrant County and tried in Travis County in Austin after a change of venue. At the punishment phase the jury heard about three other murders Green had confessed to, with the same beatings and mutilation, and about his stalking of a seventeen-year-old girl and assaults on two teenage boys. The 1994 opinion settles a fight over which federal district court could hear his petition; the 1997 opinion, dated June 27, denies him leave to appeal and lifts his stay. One of its passages quotes a letter from his trial lawyer explaining why she dropped the insanity defense: the psychiatrist’s testimony would have told the jury that Green said he had killed a woman in Florida and fifteen other people. Texas executed Green at Huntsville on October 8, 1997.
Rhoades was a long-haul truck driver. On September 11, 1992, in Bond County, Illinois, he pleaded guilty under an agreement with the State, which had given notice that it would seek death, to the murder of Regina K. Walters, fourteen, last seen at her mother’s apartment in Pasadena, Texas, on February 3, 1990. The court took the facts from the grand jury record. In April 1990 an Arizona state trooper stopped to check a tractor-trailer parked by the highway near Casa Grande and saw a naked woman handcuffed and chained in the sleeper; Rhoades got out of the cab, and Walters’s notebook was later found inside. A search of his Houston apartment turned up photographs of Walters, some in his truck and one in front of the barn along Interstate 70 where her body was found on September 29, 1990, strangled with baling wire twisted tight around a piece of board. He was sentenced to natural life. The 2001 opinion, his third appeal, rejects his argument under Apprendi v. New Jersey that the natural-life term needed a jury finding, and affirms.
The 1997 Fifth Circuit opinion says Green was charged with Fefferman’s murder in April 1986. That cannot be right, since Fefferman was killed on December 27, 1986; the court’s own 1994 opinion says the indictment came in 1989, the year Green was arrested. The description that came with the file dates his murders to 1985 through 1989 and says he was executed weeks after the second opinion; the murders the record describes date from 1985 and 1986, and the execution came a little over three months after that ruling.
The woman in Florida whom Green claimed to have killed appears in the lawyer’s letter by name. Nothing in this record establishes who she was or that she is dead, so she is identified here by the initials W.R., twice. The Illinois court identified the woman taken from California to Houston and held in Rhoades’s truck only as F.R.T., and that is how she appears. The woman the trooper found in the sleeper is not named in the opinion. Regina Walters was a child when she was killed; she is named because the court named her, as did every charge against Rhoades.
None of these rulings retries the facts. The Fifth Circuit decided only whether Green had shown a federal constitutional violation, and the Illinois court decided only whether Rhoades’s plea and sentence could stand. Rhoades later pleaded guilty in Texas, in 2012, to the 1990 murders of Patricia Walsh and Douglas Zyskowski; that case produced no opinion and is not here. All three opinions are public court records, printed from the official reporters as digitized by the Caselaw Access Project at Harvard Law School.
In the Matter of Ricky Lee GREEN, Petitioner.
No. 94-50667.
United States Court of Appeals, Fifth Circuit.
Nov. 28, 1994.
Lynn Lamberty, Tex. Resource Center, Houston, TX, for appellant.
Dan Morales, Atty. Gen., John Jacks, Asst. Atty. Gen., Austin, TX, for appellee.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
[OPINION BY JERRY E. SMITH, Circuit Judge: type=majority]
JERRY E. SMITH, Circuit Judge:
In this capital habeas corpus proceeding brought pursuant to 28 U.S.C. § 2254, the petitioner, Ricky Green, has filed a petition for writ of mandamus that calls upon us to decide which federal district court or courts have jurisdiction. On the basis of a recent decision of this court, we conclude that there is jurisdiction in the Western and Southern Districts of Texas but not in the Northern District of Texas.
I.
In 1989, Green was indicted in Criminal District Court No. 4 of Tarrant County, Texas (a county within the Northern District of Texas), with the capital murder of Steven Fefferman. After jury selection began, the state withdrew its objection to Green’s motion for change of venue, which the trial court then granted, and the case was transferred to Travis County, Texas (a county in the Western District of Texas), for trial in the 167th Judicial District Court of that county.
Following a jury trial, Green was found guilty of capital murder in 1990 and was sentenced to death. Venue then was transferred back to the Tarrant County court. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Green v. State, No. 71,170 (Tex.Crim.App. Dec. 9, 1992) (unpublished), cert. denied, — U.S. ——, 113 S.Ct. 3011, 125 L.Ed.2d 702 (1993). In January 1994, Green applied to the Tarrant County trial court for state habeas relief, which was denied. Ex parte Green, No. 26,331-01 (per curiam) (Tex.Crim.App. Apr. 19, 1994).
On August 16, 1994, the Tarrant County trial court scheduled Green’s execution for October 4, 1994. On September 19, Green filed, in the Northern District of Texas, a motion for appointment of counsel and stay of execution. On September 21, the federal court appointed an attorney from the Texas Resource Center as Green’s counsel but denied, without prejudice, the request for stay. The court directed Green to file a federal habeas petition by September 27 or tell the court, by that date, that he did not intend to file a petition.
On September 27, Green filed a notice of intent not to file a federal habeas petition'. He also filed a motion to withdraw his motion for appointment of counsel and stay of execution, asking the court to rescind its orders made pursuant to that pro se filing and to dismiss the habeas proceeding. As justification for the motion, Green stated that his attorney had just discovered that the Northern District court was without jurisdiction. The court then ordered briefing on that issue.
On September 30, Green filed a second state habeas petition in the Tarrant County trial court. On October 3, the Court of Criminal Appeals adopted the trial court’s recommendation and denied relief on the procedural ground that the court would not consider the petition while Green’s case was pending in federal court. Ex parte Green, No. 26,331-02 (Tex.Crim.App. Oct. 3, 1994) (per curiam). On that same date, Green filed a notice of voluntary dismissal of the Northern District habeas proceeding pursuant to Fed.R.Civ.P. 41(a)(1).
Also on October 3, at approximately 3:30 p.m., which was about nine hours before his scheduled execution, Green filed a federal habeas petition and motion for stay of execution in the Western District of Texas. The Western District court, on the state’s motion, transferred the proceeding to the Northern District at approximately 5:00 p.m. that same day.
The state then announced that it had no objection to a stay of execution. In this court, Green filed a motion for stay of execution and mandamus actions seeking to compel the return of the case to the Western District. We then entered a stay of execution but took no action on the pending mandamus actions.
On October 4, the Northern District court entered an order concluding, on the basis of Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985), that the Western, Northern, and Southern Districts of Texas have concurrent jurisdiction to entertain a federal habeas petition from Green. Accordingly, the court reasoned, the transfer from the Western District to the Northern District was proper. The court ordered the state to respond to the federal habeas petition.
II.
Federal habeas corpus jurisdiction is determined by 28 U.S.C. § 2241(d), which reads as follows in regard to a state containing more than one federal judicial district: '
[T]he application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
Although Green is incarcerated in the Southern District of Texas, which indisputably would have jurisdiction under the statute’s plain language, the only dispute here is in regard to jurisdiction in the Western and Northern Districts.
The controversy centers on the meaning of the words “the district within which the State court was held which convicted and sentenced" the criminal defendant. (Emphasis added.) Green argues that his case is controlled by this court’s recent decision in Gosch v. Collins, 20 F.3d 1170 (per curiam) (table), No. 93-8635 (5th Cir. Apr. 6, 1994). We agree.
In Gosch, the petitioner was indicted in Bexar County (in the Western District of Texas) but was tried, convicted, and sentenced, on a change of venue, in Victoria County (in the Southern District of Texas). As here, the matter was returned to the county of indictment for post-trial proceedings. The petitioner filed his federal habeas petition in the Western District of Texas, whereupon the district court dismissed the petition for lack of subject matter jurisdiction.
On appeal, a panel of this court concluded that there was no jurisdiction in the Western District, because “under 28 U.S.C. § 2241(d) ... jurisdiction for habeas corpus petitions for Petitioner Gosch lies only in the ... Southern District of Texas.” This constitutes an interpretation of the words “within which the State court was held which convicted and sentenced him,” to the effect that post-trial proceedings, following sentencing, are not to be considered in determining jurisdiction under § 2241(d).
Accordingly, the present facts — and those in Gosch — are easily distinguished from the circumstance in Dobard, the authority principally relied upon by the state. There, as here, indictment was in a county within one federal district, but trial, on a change of venue, was in a county within a different federal district. Following trial, “some of the incidents of sentencing were, in the physical sense, done in one county, some in the other.” 749 F.2d at 1505.
The petitioner filed his federal habeas petition in the district wherein the indictment occurred. That district court transferred the proceeding to the district where the trial was held. On appeal from the transfer order, the Eleventh Circuit, referring to the “peculiar circumstances” of the case, held “that where substantial incidents of conviction and sentence are divided between two federal judicial districts, either district court is the court of conviction and sentence within the meaning of Sec. 2241(d) and has power to entertain the petition on its merits or transfer it.” Id.
Obviously, the facts of the instant case are like those in Gosch and dissimilar to those in Dobard. We are bound by Gosch as the precedent of this court. Accordingly, we conclude that jurisdiction lies in the Western District of Texas and not in the Northern District of Texas.
We find it unnecessary, however, to issue a writ of mandamus at this time. The two district courts were dealing with a somewhat novel issue and, in good faith, attempted to comply with the law. We are confident that, in light of this opinion, they now will see to it that this matter is transferred to the Western District of Texas, which in turn will consider Green’s habeas petition on the merits.
The petitions for writs of mandamus are DENIED without prejudice.
Although the petition indicated that it was filed pro se, a representative of the Texas Resource Center acknowledged, in a subsequent telephone hearing transcribed in the record, that the Resource Center had helped Green prepare and file the federal petition.
Green’s rationale for requesting dismissal of the habeas proceeding, when no explicit request had been made for habeas relief, was that under McFarland v. Scott, - U.S. -, ---, 114 S.Ct. 2568, 2572-73, 129 L.Ed.2d 666 (1994), the filing of the motion for appointment of counsel constituted the initiation of a federal habeas proceeding. .Green moved in this court for a stay of the Northern District proceedings pending our ruling on the mandamus petitions. We denied the motion on the ground that it had not been presented, in the first instance, to the district court. Green then moved for a stay in the Northern District. After that court denied the motion, Green once again requested that we grant a stay. We have now done so, and the Northern District proceedings are in abeyance pending our consideration of the jurisdictional issue presented in the mandamus petitions.
The complicated course of proceedings between the two counties was as follows: The murder ... occurred in Sumter County _ Dobard was indicted in ... Sumter County, and numerous pretrial motions were filed and heard in that court. [The trial court] transferred the trial ... to Marengo County. ... Various pretrial motions were heard in Sumter County, but ... after the transfer ... all orders were entered by the Circuit Court of Marengo County. ... [T]he sentencing hearing ... was heard in Sumter County and petitioner was there orally sentenced.... The judge signed the sentencing order while in Marengo [County]. Dobard’s motion for a new trial was received by the circuit clerk in Sumter [County] and then sent on to be filed in Marengo [County]. The hearing on the new trial motion was conducted in Sumter [County]- 749 F.2d at 1505.
Ricky Lee GREEN, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
No. 96-50669.
United States Court of Appeals, Fifth Circuit.
June 27, 1997.
Elizabeth A. Cohen, Maurie Amanda Levine, Austin, TX, for Petitioner-Appellant.
John Dury Jacks, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.
Before SMITH, DeMOSS and PARKER, Circuit Judges.
[OPINION BY JERRY E. SMITH, Circuit Judge:- type=majority]
JERRY E. SMITH, Circuit Judge:-
Ricky Green appeals the denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254 (West Supp.1997). Concluding that Green has failed to make a substantial showing of the denial of a federal right, we deny him a certificate of probable cause (“CPC”) and vacate the stay of execution.
I.
In April 1986, Green was charged with the capital murder of Steven Fefferman. Following his arrest, Green provided the police with a statement concerning his relationship with Fefferman. According to Green, he had met Fefferman on the eve of the murder at Casino Beach, an area known to be frequented by homosexuals. After a sexual encounter with Fefferman, Green dropped off his car at his own home and proceeded to Fefferman’s home, where the two drank some beer and again engaged in sexual activity. After Green convinced Fefferman to allow him to tie Fefferman to the bed, Green stabbed Fefferman several times. Before leaving Fefferman’s house, Green sexually mutilated Fefferman, ransacked the bedroom in search of money, and left in Fefferman’s car.
II.
Following a jury trial, Green was convicted of capital murder and sentenced to death in September 1990. During the sentencing phase, the court admitted evidence of three other murders to which Green had confessed, which murders also involved beatings and mutilation of genitalia similar to those surrounding the Fefferman murder, and also Green’s stalking a seventeen-year-old girl and assaulting two teenage boys.
Green was represented during pretrial by court-appointed counsel Jeff Kearney and Suzie Johnson. Following a change of venue, Kearney withdrew and was replaced by David Bays. A third attorney, Kenneth Houp, also was appointed to assist in the pretrial proceedings, although his role ended with the completion of jury selection. Green was represented throughout the trial by Bays and Johnson, on direct appeal by Johnson and Danny Bums, and on his first state habeas application by Robert Ford.
Green’s conviction and sentence were affirmed on direct appeal. See Green v. State, No. 71, 170 (Tex.Crim.App. Dec. 9, 1992) (en banc) (unpublished). The Court of Criminal Appeals later denied Green’s application for habeas relief. See Ex parte Green, No. 26,-331-01 (Tex.Crim.App. Apr. 19, 1994) (en banc) (per curiam).
In September 1994, Green filed, in the United States District Court for the Northern District of Texas, a pro se motion for appointment of counsel to file a federal habeas petition pursuant to 28 U.S.C. § 2254 and for a stay of execution. After the court granted Green permission to proceed in for-ma pauperis and appointed counsel, Green filed a motion to •withdraw his pro se pleading on the ground that jurisdiction lay properly in the Western District of Texas.
Also in September 1994, Green filed a second state habeas petition in the Tarrant County trial court, which petition was also denied by the Court of Criminal Appeals. See Ex parte Green, No. 26,331-02 (Tex. CrimApp. Oct. 3, 1994) (en banc) (per curiam). Concurrently with that denial, Green filed a notice of voluntary dismissal of the Northern District habeas proceeding pursuant to Fed. R. Civ. P. 41(a)(1), and filed a new petition in the Western District.
The Western District petition was transferred to the Northern District, the situs of the indictment, which transfer the Northern District concluded was proper under Dobard v. Johnson, 749 F.2d 1503 (11th Cir.1985). On appeal we reversed, concluding that, pursuant to Gosch v. Collins, 20 F.3d 1170 (5th Cir.) (per curiam), jurisdiction lay in the Western District. See In re Green, 39 F.3d 582 (5th Cir.1994).
In the Western District, Green asserted thirteen grounds for habeas relief, each of which had been exhausted in state court either on direct appeal or through the state post-conviction process. In July 1996, the district court reviewed de novo and adopted the findings of the magistrate judge to grant the state’s summary judgment motion and to deny Green’s habeas petition. Green filed his application for a CPC in August 1996. The district court, construing the CPC application as an application for a certificate of appealability (“COA”), denied the application in September 1996.
in.
A.
As a threshold matter, we must determine whether the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996), governs the instant appeal. Although we have held previously that the standards of review set forth in the AEDPA apply to all habeas petitions that were pending on April 24, 1996, the date on which the President signed the bill into law, see Drinkard v. Johnson, 97 F.3d 751, 764-66 (5th Cir.1996), we now must conclude otherwise in light of Lindh v. Murphy, - U.S.-, 117 S.Ct. 2059, - L.Ed.2d-(1997).
Among other things, the AEDPA amends § 2244 and §§ 2253-2255 of chapter 153 of title 28 of the United States Code, the provisions that govern all habeas proceedings in federal courts. See 110 Stat. 1217-21. The AEDPA also creates, for habeas proceedings against a state in capital cases, a new chapter 154 with special rules favorable to the state, but applicable only if the state opts in by agreeing to provide for the appointment of post-conviction counsel in state habeas proceedings. See 110 Stat. 1221-26.
Whereas the amendments to chapter 153 do not contain an effective date, the AEDPA provides expressly that the new chapter 154 “shall apply to [state capital] cases pending on or after the date of enactment of this Act.” 110 Stat. 1226. In Lindh, the Court construes “this provision of § 107(c) ... as indicating implicitly that the amendments to chapter 153 were assumed and meant to apply to the general run of habeas cases only when those cases had been filed after the date of the Act.” - U.S. at-, 117 S.Ct. at 2063.
As we have already noted, amended § 2254(d) (in chapter 153 but applicable to chapter 154 cases) governs standards affecting entitlement to relief. If, then, Congress was reasonably concerned to ensure that chapter 154 be applied to pending cases, it should have been just as concerned about chapter 153, unless it had the different intent that the latter chapter not be applied to the general run of pending cases.
Nothing, indeed, but a different intent explains the different treatment.
Id., - U.S. at-, 117 S.Ct. at 2064.
As we have stated, chapter 154 is apposite to capital cases only where states have elected to opt in and have qualified to participate by meeting the requirements of § 107. Because the State of Texas has not yet qualified for the expedited procedures governing habeas petitions in capital cases, see Carter v. Johnson, 110 F.3d 1098, 1104 (5th Cir.1997), chapter 154 does not apply to the instant case. Thus, in light of Lindh’s explication that “the negative implication of § 107(c) is that the new provisions of chapter 153 generally apply only to cases filed after the act,” - U.S. at-, 117 S.Ct. at 2068, and given that Green filed the instant petition before the April 24, 1996, effective date of the AEDPA, we apply pre-AEDPA habeas law to his claims.
B.
Before the advent of the AEDPA, a petitioner could not appeal a district court’s ruling on a habeas petition that concerned detention arising from state court proceedings unless a district or circuit judge issued a CPC. 28 U.S.C. § 2253; see also Baldree v. Johnson, 99 F.3d 659, 660 (5th Cir.1996), cert. denied, - U.S.-, 117 S.Ct. 1489, 137 L.Ed.2d 699 (1997). To obtain a CPC, the petitioner must make a “substantial showing of a denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983) (internal quotes and citation omitted). Such a showing requires a demonstration “that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further.” Id. at 893 n. 4, 103 S.Ct. at 3394 n. 4.
Section 102 of the AEDPA amended 28 U.S.C. § 2253 to require that a petitioner obtain a COA See 28 U.S.C. § 2253(c)(1). A COA may be issued only where the applicant has made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Notwithstanding the slightly different wording between the pre-AEDPA and the amended § 2253, we have noted previously that the AEDPA was intended to codify the Barefoot standard and thus that the standard governing the issuance of a COA requires the same showing as that for obtaining a CPC. See Drinkard, 97 F.3d at 756. Nonetheless, because Green’s habeas petition was filed with the district court before April 24, 1996, Lindh compels that we review his petition for a CPC under the pre-AEDPA jurisprudence.
Under the pre-AEDPA standards, state court findings are entitled to a presumption of correctness unless, among other things, the petitioner demonstrates that the state courts failed to resolve the claims on the merits. See Livingston v. Johnson, 107 F.3d 297, 302 (5th Cir.1997). Because Green argues that the state failed so to adjudicate his claims, we must determine initially whether a state court has disposed of Green’s claims on the merits.
Green argues that the state habeas courts’ “perfunctory disposition” is not a resolution on the merits because, he alleges, the petitions were denied without an evidentiary hearing “and without reference to any factual or legal issue presented.” According to Green, the resolution-on-the-merits prerequisite is a proxy for the quality of the legal process of resolving a dispute; the court’s treatment of the petitions must evince a “careful consideration of the constitutional claims” and a thorough and meaningful substantive evaluation of the claims.
We disagree both with Green’s proffered construction of the merits inquiry and with his contention that the state courts did not adjudicate his habeas claims on the merits. “Resolution on the merits” is a term of art in the habeas context that refers not to the quality of a court’s review of claims, but rather to the court’s disposition of the case— whether substantive or procedural. See Preston v. Maggio, 705 F.2d 113, 116 (5th Cir.1983). We must inquire, on a case-by-case basis, whether a resolution was on the merits, considering the following factors: (1) what the state courts have done in similar cases; (2) whether the history of the ease suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state courts’ opinions suggest reliance upon procedural grounds rather than a determination of the merits. See id.
A careful review of the state courts’ opinions denying Green habeas relief reveals that his claims were in fact disposed of on the merits. In denying Green’s first state habeas petition, the Court of Criminal Appeals acknowledged that he presented “fourteen (14) allegations in which he challenges the validity of his conviction or sentence. The trial court recommended the relief sought be denied. This Court has reviewed the record. We agree with the trial court’s recommendations and accordingly deny habeas relief.”
The trial court memorandum to which the Court of Criminal Appeals refers indicates that the trial court considered Green’s allegations, the state’s reply, the case record, and the evidence presented by both parties before determining that habeas relief be denied. Neither the trial court’s nor the Court of Criminal Appeals’s order makes mention of procedural grounds for denying relief, nor has Green brought any to our attention.
With respect to Green’s second habeas petition, the trial court memorandum, again to which the Court of Criminal Appeals refers in denying relief, not only indicates that “[Green’s] assertions in his application for writ of habeas corpus are without merit,” but specifically excludes any reliance upon procedural grounds for denying relief. The trial court concluded expressly (1) “that it is not barred from ruling upon the merits of [Green’s] claim by the pendency of [his] motion to dismiss in Federal District Court” and (2) that “[Green] is not procedurally barred from seeking relief on the merits of his claim.” The Court of Criminal Appeals, after reviewing the record on its own, referenced the trial court’s memorandum and “agree[d] with the trial court’s recommendation and, accordingly, denie[d] all requested habeas corpus relief.”
We are confident, therefore, that Green’s habeas claims were resolved on the merits, as opposed to having been disposed of on non-merits-based, procedural grounds; the presumption of correctness therefore applies. See Livingston, 107 F.3d at 302-03.
IV.
A.
Green alleges that his counsel’s performance at both the trial and sentencing phases was ineffective because, after having conscripted an expert (Dr. Richard Rappaport) and considered carefully his conclusions, they decided not to put on an insanity defense. Green argues that his counsel’s reasons for not presenting the defense are unclear from the record; that the internal conflict within the defense team precludes a finding that the rejection of Rappaport’s defense was trial strategy; and that counsel’s decision was based in part upon an erroneous interpretation of the law concerning whether presentation of the defense would have opened the door to the cross-examination of Rappaport about additional incriminating information — namely, fifteen other murders to which Green confessed to Rappaport.
To establish ineffective assistance of counsel, Green must demonstrate both deficient performance and prejudice resulting from that deficiency. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). We compare counsel’s performance to an objective standard of reasonableness, mindful of the strong presumption of adequacy. We will not find inadequate representation merely because, with the benefit of hindsight, we disagree with counsel’s strategic choices. See id. at 689-90, 104 S.Ct. at 2065-66. “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Garland v. Maggio, 717 F.2d 199, 206 (5th Cir.1983) (on rehearing). Because an ineffective assistance claim is a mixed question of law and fact, we review the district court’s decision de novo. See Salazar v. Johnson, 96 F.3d 789, 791 (5th Cir.1996). As we noted above, findings of fact are entitled to a presumption of correctness. See Washington, 466 U.S. at 698, 104 S.Ct. at 2070.
Applying the prejudice prong in the context of counsel’s performance at sentencing, we ask whether the petitioner has demonstrated “a ‘reasonable probability’ that the jury would not have imposed the death sentence in the absence of errors by counsel.” Carter, 110 F.3d at 1110. Failure to establish either prong defeats the claim. See Lincecum v. Collins, 958 F.2d 1271, 1278 (5th Cir.1992).
Kearney averred that he hired Rappaport to examine Green and that, based upon Rappaport’s conclusions that Green was in fact legally insane at the time of the Fefferman murder, he intended to make full use of Rappaport’s findings during the trial and sentencing phases. After the change of venue, Kearney left the defense team and was replaced by Bays, at which time conflicts began to arise between Johnson and Bays. According to Johnson, Bays wished to use Rappaport’s testimony to establish that Green’s insanity turned him into a “serial killer.” Believing that such a tactic would add to the state’s showing of “future dangerousness” during the punishment phase of the trial, Johnson disagreed with the decision to place Rappaport on the stand, and Johnson and Bays ultimately agreed to abandon the insanity defense.
Green contends that the internal wrangling between Johnson and Bays renders suspect their decision not to present an insanity defense. Although the record does demonstrate that conflict existed, Green has proffered no evidence tending to prove that the decision not to place Rappaport on the stand was infected impermissibly with whatever personal disagreements there were. To the contrary, Johnson and Bays proffered the other valid tactical reasons we have mentioned.
Even assuming arguendo that Johnson and Bays erred in concluding that Rappaport’s testimony would have opened the door to additional incriminating evidence, this error alone does not give rise to a constitutional ineffectiveness claim. See Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir.1983) (noting that the Sixth Amendment does not guarantee an accused “errorless representation”). There is sufficient evidence demonstrating that the decision not to proffer an insanity defense was a “conscious and informed” tactical one. See Garland, 717 F.2d at 206. No reasonable jurist would disagree, and Green has not made a substantial showing of the denial of a constitutional right.
Green’s reliance on Bouchillon v. Collins, 907 F.2d 589 (5th Cir.1990), and Profitt v. Waldron, 831 F.2d 1245 (5th Cir.1987), is misplaced. In Bouchillon, we concluded that counsel was ineffective in failing to offer an insanity defense because (1) it was the only defense available to the defendant; and (2) although counsel was aware that the defendant had been committed previously to mental institutions, he did not ask for a psychiatric evaluation or conduct any other investigation. 907 F.2d at 597. We concluded the same in Profitt after also noting both that the defendant had only the insanity defense available to him and that, although counsel was aware that the defendant had escaped previously from a mental institution, counsel failed to investigate his client’s sanity, which investigation would have revealed that the defendant had been adjudicated insane by an Idaho court only months before the instant trial. See Profitt, 831 F.2d at 1249. Furthermore, we gave minimal deference to the Profitt counsel’s tactical decision not to employ the insanity defense, as we could ascertain no advantage attendant to abandoning the defense. See id.
Not only did Green’s counsel investigate fully the possibility of putting on an insanity defense (including conscripting Rappaport to prepare a report based on extensive interviews with Green and reviewing the contents of that report), but they considered various tactical reasons attendant to their decision to present or abandon the defense. Furthermore, the defense was not the only one available to Green; his counsel presented a defense that he lacked the requisite mens rea to commit the underlying felony.
With respect to Green’s claim that he was denied effective assistance of counsel at the sentencing phase because his counsel failed to present the Rappaport findings, we similarly find no constitutional error. According to Green, the decision to forego this testimony prevented the jury from receiving an explanation of the nexus between his mitigating evidence of child abuse, severe mental illness, and brain damage and his actions in killing Fefferman. Johnson indicated, however, that she believed that the effects of this evidence on the “future dangerousness” prong of the Texas capital murder jury questions would “100% guarantee[ ]” that Green would receive the death penalty. Furthermore, the defense did present, through Dr. Randall Price, evidence of Green’s abusive childhood and mental disorders and their effects upon his ability to conform his behavior to acceptable levels. Thus, we agree with the district court that Green has not made a substantial showing of the denial of a federal right with respect to his counsel’s decisions not to use Rappaport’s testimony.
B.
Green asserts that his counsel were ineffective in failing to cross-examine Robert Ressler effectively during the punishment phase of the trial. Ressler was a state witness who testified that he had been involved in the largest survey of serial murderers ever conducted and that, based upon this experience, he considered Green to be an “organized serial killer.”
Although Johnson avers that she had prepared to cross-examine Ressler, Bays decided, on the spur of the moment, to conduct the cross-examination without having done sufficient investigation or preparation. Bays did question Ressler concerning his credentials, his understanding of Texas law, how potential affiliations affected his impartiality, and his understanding of the connection between abused children and serial killers. Green contends that had Ressler been cross-examined properly, he could have (1) challenged Ressler’s conclusions that he posed a continuing risk of future danger, (2) demonstrated that his research methods were unreliable and inaccurate, and (3) shown that Ressler’s own writings suggest a link between the traumatic childhoods of serial killers and their subsequent murders.
Assuming arguendo that the cross-examination of Ressler was deficient, Green has failed to demonstrate “a ‘reasonable probability’ that the jury would not have imposed the death sentence in the absence of errors by counsel.” Carter, 110 F.3d at 1110. First, Ressler testified during the rebuttal portion of the punishment phase, at which time the jury already had heard in detail about three other similarly-situated murders to which Green had confessed. Thus, to the extent that Ressler testified regarding Green’s future dangerousness, Green has failed to disentangle the effects of evidence of the other murders from Ressler’s more abstract research-based testimony. That is, even assuming that the proffered cross-examination of Ressler would have destroyed his credibility with the jury, Green has not demonstrated a reasonable probability of prejudice.
Second, not only did Bays’s cross-examination of Ressler elicit some support for the defense’s primary theory that Green’s behavior was a product of his abusive childhood, but Green also had presented Price’s testimony to that effect during the punishment phase, as well as other corroborative testimony during the guilt phase. Again, Green has not demonstrated sufficiently that eliciting Ressler’s further agreement with the defense theory would have enhanced, with sufficient probability, the jury’s acceptance of the defense’s underlying theory. Reasonable jurists would not find the issue debatable, and therefore Green has not made a substantial showing of the denial of a federal right.
V.
A.
Green contends that he was denied his constitutional right to be present at all phases of his trial when he was denied access to an ex parte hearing among his counsel and the judge, during which the court entertained Johnson’s oral motion to withdraw from representation. Green concedes that his absence from the hearing does not infringe upon his confrontation right but argues that it offends his due process right to a fair trial.
A defendant has a right to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484, 84 L.Ed.2d 486 (1985) (per curiam) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934)). His absence from such a proceeding amounts to a due process violation only “to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Snyder, 291 U.S. at 108, 54 S.Ct. at 333.
The oral motion to withdraw was made and discussed during an ex parte conference in chambers (in the course of jury voir dire) and centered on disagreements between Johnson and Bays. According to Johnson’s affidavit, her relationship with Bays had deteriorated to the point that they no longer conferred directly regarding the case, but rather communicated through Houp only. Johnson expressed her frustrations regarding this situation to the court and requested that she be permitted to withdraw from representation. The court denied the motion, and, although stating that it would keep the motion under advisement in the event that the working relationship continued to worsen, the matter was not raised again.
Although Green protests that he was prejudiced by his exclusion from the meeting, we fail to see how his absence thwarted the fairness and just treatment of the issues at the ex parte communication or with respect to his overall representation. Green contends that had he been present, “he could have provided the trial court with important information about the conflict that would have effected [sic] the court’s ruling.” But, Green does not give us the contents of such information or the effect it would have had on the ruling.
Furthermore, we reject Green’s suggestion that his absence from this meeting prevented him from becoming aware of any disputes between his counsel and thus from exercising his right either to take over his own defense or to request new counsel. Not only did Johnson admit in her affidavit that “the animosity between Mr. Bays and me was clear to everyone in the courtroom,” thus calling into question Green’s protested ignorance, but we also do not believe Green has made a substantial showing that he was denied effective assistance because of his inability personally to request a change of counsel that the court denied upon request from Johnson. See Bass v. Estelle, 696 F.2d 1154, 1158-59 (5th Cir.1983).
B.
Green argues further that the failure of his counsel on direct appeal to raise the issue of his absence from this hearing denied him the effective assistance of counsel on direct appeal. To this end, Green relies upon Tex.Code CRiM. PROC. Ann. art. 33.03 (Vernon 1986) and Adanandus v. Texas, 866 S.W.2d 210, 216-19 (Tex.Crim.App.1993). Assuming arguendo that Green’s absence from the meeting ran afoul of art. 33.03, Adanandus counsels that harmless error analysis applies to the statutory violation. See id. at 219. Adanandus instructs further that the harmless error analysis is informed by the Snyder “reasonably substantial relationship” test. Thus, because we reject Green’s Snyder claim with respect to his absence from the hearing, we conclude similarly that any error of his counsel on direct appeal was harmless.
VI.
Green avers that his direct appellate counsel’s failure to raise the issue of the exclusion for cause of veniremember Harren deprived him of effective assistance. At trial, Green’s attorney objected to the exclusion of Harren, arguing that it is impermissible to grant a challenge for cause where a juror is unable to answer affirmatively the second special issue on the facts of the capital offense alone. The trial court correctly overruled Green’s motion, relying upon Marras v. Texas, 741 S.W.2d 395 (Tex.Crim.App.1987) (en banc).
At the time of Green’s appeal, Marras was the controlling precedent, and Green’s appellate counsel therefore decided not to raise Harren’s exclusion for cause on direct appeal. The Court of Criminal Appeals affirmed Green’s conviction on December 9, 1992, and his motion for rehearing, filed on December 13, was denied on February 12, 1993. On January 13, 1993, the Court of Criminal Appeals decided Garrett v. Texas, 851 S.W.2d 853 (Tex.Crim.App.1993) (en banc), overruled Marras, and held that a veniremember is not subject to a challenge for cause merely because he indicates that he would require more evidence than the legal minimum in order to answer special issue two affirmatively. 851 S.W.2d at 860-61. Garrett did not become final and binding on lower courts until rehearing was denied on April 21, 1993. See Thorpe v. Texas, 863 S.W.2d 739, 741 n. 5 (Tex.Crim.App.1993) (en banc).
Green does not dispute that Marras governed his appeal but contends that his appellate counsel was deficient for failing to raise the Marras issue both on his original appeal and during the pendency of Green’s rehearing petition, but before Garrett became final. With respect to the former claim that Green’s counsel should have raised the Marras issue on his original appeal, we have noted previously that there is no general duty on the part of defense counsel to anticipate changes in the law, see Nelson v. Estelle, 642 F.2d 903, 908 (5th Cir. Unit A Apr.1981), and that counsel is not ineffective for failing to raise a claim that Texas courts have rejected repeatedly. See Andrews v. Collins, 21 F.3d 612, 623 (5th Cir.1994). Because it is undisputed that Marras was controlling authority at the time of Green’s original appeal, Green has not made a substantial showing that his appellate counsel’s failure to raise the Marras issue in the original appeal denied him effective assistance.
We also reject Green’s ineffectiveness claim stemming from counsel’s failure to assert Garrett during the pendency of his rehearing petition, but two months before Garrett became final. Counsel is not deficient for failing to raise every meritorious claim that may be pressed on appeal. See Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.1989).
The only record evidence submitted by Green on this issue is an affidavit by Burns, one of Green’s direct appellate counsel, stating, “I reviewed the record and identified what is now known as Garrett error. I also noted that the error was properly preserved. Neither my co-counsel, Suzie Johnson, nor I raised the issue on appeal.” Given that Garrett was not yet final and that Bums and Johnson had identified the issue as one they did not wish to press on appeal, their performance was not constitutionally deficient. See Washington, 466 U.S. at 688-94, 104 S.Ct. at 2064-68.
vn.
Green contends that the trial court erred in failing to admit the testimony of Dr. John Marquart during the punishment phase. Marquart testified on voir dire that he had conducted a study of capital prisoners whose sentences had been commuted, in which he compared those prisoners to murderers who had received life imprisonment. His comparisons revealed that many of the prisoners whom juries had found to pose a threat of future dangerousness (special issue two) in fact posed no such threat. As a result, Marquart concluded that it is difficult, if not impossible, to determine whether a particular defendant poses a direct threat of future danger. Marquart opined further that he did not believe that the death penalty deterred crime; that studies indicated that a short-term increase in crime accompanies an execution; and that there is little correlation between the operation of the death penalty and the number of homicides in Texas.
The sentencer in a capital case must be permitted to consider any constitutionally relevant mitigating evidence, see Eddings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982), which is evidence “directly related to the personal culpability of the criminal defendant,” Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989). “Only then can we be sure that the sentencer has treated the defendant as a ‘uniquely individual human bein[g]’ and has made a reliable determination that death is the appropriate sentence.” Id. (quoting Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 2991-92, 49 L.Ed.2d 944 (1976)). It is error to exclude evidence opining that the defendant would not commit acts of violence in the future. See Robinson v. Texas, 548 S.W.2d 63, 66 (Tex.Crim.App.1977) (en banc).
The state court determined on direct appeal that, because Marquart’s proffered testimony related only to a generalized critique of the accuracy of the future dangerousness prediction, and not to Green’s own future dangerousness or to Green’s individualized assessment of punishment, it was properly excluded. We do not believe that the state court’s factual findings were clearly erroneous, nor do we find any legal error.
VIII.
Green has failed to make a substantial showing of the denial of a federal right. Accordingly, we DENY a CPC and VACATE the stay of execution.
Although Green was indicted originally in Tarrant County, Texas, in the Northern District of Texas, the case was transferred, at Green’s request, to Travis County, Texas, in the Western District of Texas. Following the trial, venue was transferred back to Tarrant County.
Carter, Drinkard, and the rest of the post-Drinkard AEDPA progeny presumably remain precedent in this circuit post-Lindh to the extent that they interpret the provisions of the AEDPA and do not conflict with Lindh 's conclusion that the chapter 153 amendments do not apply retroactively.
Green argued originally that, under the AEDPA jurisprudence, his claim has not been "adjudicated on the merits” and thus was not amenable to state court deference. Because Lindh requires that we construe his habeas petition under pre-AEDPA law, we treat his "adjudication on the merits” argument as one challenging the sufficiency of the merits resolution of his petitions in state court, pursuant to the former 28 U.S.C. § 2254(d)(1) & (2). .We consistently have upheld the validity of paper hearings in state habeas proceedings. See Livingston, 107 F.3d at 303. .The following exchange of notes between Johnson and Green during jury selection illustrates Johnson’s tactics: Green: "|T|ell me something Ms. Johnson, did you drop the insanity plea just to save the state money or did ya’ll have something against Mr. Rappaport or is there something else”? Johnson: “We dropped it because Rappaport’s testimony would let the jury know you said you killed W.R., some woman in Florida, and 15 other people. That proves the 'future dangerousness’ question #2. I will not prove my client's future dangerousness. I will not prove up a murder (W.R.) where my client is a suspect. # 2 Rappaport's conclusion that you were insane is too shallow. #3 if Rappaport testified you are 100% guaranteed D.P.”
In a draft report concerning his interviews with Green, Rappaport describes three other murders to which Green confessed, each involving similar stabbing and mutilation as accompanied the Fefferman murder. Green also told Rappaport that he had killed 15 other people and that he believed that he was doing the country a favor by killing "whores” and homosexuals.
Green's contention that Martinez-Macias v. Collins, 810 F.Supp. 782 (W.D.Tex.1991), aff'd, 979 F.2d 1067 (5th Cir.1992), compels otherwise is incorrect. The deficiency in Martinez-Macias was counsel’s complete failure to investigate the legal basis for a decision not to introduce certain evidence. Id. at 798 n. 23. Green does not allege that his counsel failed to investigate Texas law on the admissibility of the other 15 murders but rather that, after researching the law, his counsel misunderstood the application of the law to the instant facts. Absent more, these allegations do not rise to the level of constitutional ineffectiveness.
Green also presented, during the trial phase, substantial mitigating evidence that described a litany of abusive actions he suffered at the hands of his father while growing up.
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT BEN RHOADES, Defendant-Appellant.
Fifth District
No. 5—98—0821
Opinion filed July 13, 2001.
—Rehearing denied August 15, 2001.
Daniel M. Kirwan and Paige Clark Strawn, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
John Knight, State’s Attorney, of Greenville (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
[OPINION BY JUSTICE GOLDENHERSH type=majority]
JUSTICE GOLDENHERSH
delivered the opinion of the court:
Robert Ben Rhoades (defendant), pursuant to negotiations with the State, on September 11, 1992, pied guilty to first-degree murder and was sentenced to imprisonment for natural life. The sentence of death had been a possibility because on May 6, 1992, the State had filed a notice that it intended to seek the death penalty. This is defendant’s third appeal to this court. Due to the procedural history of this case, this is a direct appeal from defendant’s conviction. On this appeal, defendant initially contended that the circuit court erred in refusing to allow him to file a motion to withdraw his guilty plea, after a remand from this court following defendant’s second appeal. On the motion of defendant, this court allowed defendant to file a supplemental brief that raises the issue of whether the statute under which defendant was sentenced is unconstitutional. He relies on the United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Prior to the entry of the guilty plea, a hearing was held pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402(c)). The parties agreed that to establish a factual basis, the court could take judicial notice of the evidence presented to the grand jury which indicted defendant. The grand jury heard evidence that the victim, Regina K. Walters, age 14, was last seen alive at her mother’s apartment on February 3, 1990, in Pasadena, Texas, and that in April 1990, defendant, an over-the-road truck driver, was arrested in Casa Grande, Arizona, where he was charged with kidnapping and sexual assault. Defendant had been a suspect in a kidnapping/rape case in which the victim, F.R.T., had been taken from California to Houston, Texas. F.R.T. had been kept chained up in the back of defendant’s truck for a two-week period during which defendant had raped F.R.T. This victim was able to escape.
The grand jury also heard evidence that defendant was arrested in Arizona when a state trooper stopped to check on defendant’s tractor-trailer, which was parked along the side of a highway, and noticed a nude woman handcuffed and chained to the sleeper of defendant’s tractor-trailer. When the officer shined a light into the truck, the woman started screaming, and defendant got out of the truck. Regina K. Walters’ notebook was found in defendant’s truck.
The grand jury heard evidence that a search warrant was issued for defendant’s residence in Houston, Texas. The search produced numerous items of women’s clothing, numerous obscene magazines and books, and instruments that could be used in bondage-type situations. The search also produced photographs of nude women, one of whom was Regina K. Walters. Some of the clothing that was found resembled the clothing worn by Walters in other photographs found in defendant’s apartment. Other photographs showed Walters in defendant’s truck and in front of the barn where her body was found.
Lastly, the grand jury heard evidence that from the trip logs of defendant’s employment, it was determined that he had been on Interstate 70 in Bond County during February or March 1990. The victim’s badly decomposed body was found on September 29, 1990, in a barn along Interstate 70. It appeared that she had been strangled. The method of strangulation was described as follows: “A small piece of board inserted through a double wire loop of baling wire, twisted clockwise around the neck of the body.”
During the Rule 402 hearing, the court informed defendant that the court could impose a term of natural-life imprisonment without parole if the court decided his actions were exceptionally brutal and heinous indicative of wanton cruelty.
Within 30 days of sentencing, defendant filed a motion to reduce sentence, which was denied after a hearing. On defendant’s first appeal, he contended that because defense counsel did not file a certificate of compliance with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)), the cause should be remanded for further proceedings to consider defendant’s motion at a hearing after compliance was shown. This court reversed that portion of the trial court’s judgment denying defendant’s motion to reduce sentence and remanded the cause for further proceedings. People v. Rhodes, 259 Ill. App. 3d 1054, 674 N.E.2d 1284 (1994) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)) (defendant’s name was misspelled in the casebooks).
On August 24, 1994, the mandate of this court issued. On September 21, 1994, the trial court received a letter from defendant in which he wrote that he withdrew his plea of guilty and that his three trial attorneys did not respond to letters mailed to them. On September 26, 1994, the court appointed Jon Coleman, one of defendant’s previous trial attorneys, to represent him on the remand from this court. The order advised defendant to discuss with his attorney what documents should be filed.
On October 21, 1994, Coleman filed a motion to withdraw as counsel for defendant, on the basis that defendant accused Coleman of committing error in his prior representation of defendant.
On January 23, 1995, the trial court received another letter from defendant. Defendant wrote that he had told Coleman that defendant would present evidence in court that he had been coerced to plead guilty by all of his attorneys and by the Bond County sheriffs office. Defendant also wrote that he had previously fired Coleman as his counsel. Defendant further wrote, “[I]f a new attorney has been appointed, I wish the court to order them to contact me at once,” and “[Pjlease acknowledge this letter by return mail, including any pertinent information on my new attorney.”
On January 31, 1995, the trial court allowed Coleman to withdraw as counsel for defendant. The court found that the sentence was the result of plea negotiations binding the court and all parties, that defendant had clearly stated that he did not wish to withdraw his guilty plea but only wanted his sentence reduced, and that, therefore, pursuant to then-recent opinions of this court, counsel need not be appointed when a plea and sentence were fully negotiated. The trial court denied defendant’s motion to reduce sentence without appointing counsel and without conducting a hearing. On defendant’s second appeal, he asked that the cause be again remanded to the trial court because the trial court denied his Rule 604(d) motion without appointing counsel. People v. Rhoades, No. 5—95—0084 (February 7, 1996) (unpublished order pursuant to Rule 23) (Rhoades IT).
This court reversed and remanded pursuant to People v. Maltimore, 161 Ill. 2d 535, 647 N.E.2d 586 (1995) (supervisory order), in which our supreme court vacated our earlier decision in that matter (see People v. Maltimore, 268 Ill. App. 3d 532, 644 N.E.2d 478 (1994)) and remanded the case to the circuit court of Madison County for the filing of a new motion to reduce sentence. Rhoades II, order at 4. We reasoned, “Under Rule 604(d) a trial court has an obligation to appoint counsel except in situations where a defendant ‘affirmatively, knowingly, and intelligently waives appointment of counsel.’ ” Rhoades II, order at 4-5, quoting People v. Ledbetter, 174 Ill. App. 3d 234, 238, 528 N.E.2d 375, 378 (1988). This court could not find, as the State had argued, that defendant’s actions were tantamount to a waiver of counsel. This court reversed the order of the circuit court of Bond County denying the motion to reduce sentence, and we remanded the cause to the circuit court in order to determine if defendant desired counsel and, if so and if defendant was found to be indigent, for the appointment of counsel and further proceedings in strict compliance with Rule 604(d). Rhoades II, order at 5.
On remand, on December 26, 1996, defense counsel filed a motion to withdraw the guilty plea. Defense counsel also filed a certificate of compliance with Supreme Court Rule 604(d) (145 Ill. 2d R. 604(d)). The State filed a motion to dismiss alleging that the motion to withdraw the guilty plea was not timely filed and that this court’s decision applied only to the previously filed motion to reduce sentence.
On April 24, 1997, defense counsel filed an amended motion to withdraw the guilty plea and/or to reduce sentence. Defense counsel filed another Rule 604(d) certificate on April 24, 1997. The court allowed the State’s motion to dismiss as it related to the motion to withdraw the guilty plea, on the basis that the motion was not filed within 30 days of sentencing as required by Rule 604(d). The court stated, however, that the parties would be allowed to present an offer of proof on the motion to withdraw the guilty plea.
On December 4, 1998, a hearing was held on the motion to reduce sentence, and an offer of proof was presented on the motion to withdraw the guilty plea. The court reiterated its ruling denying the motion to withdraw the guilty plea because the motion was not timely filed. The court found that the sentence was negotiated in all respects within the range allowed by law, and the court denied the motion to reduce sentence.
On this appeal, defendant contends that the circuit court’s interpretation of this court’s mandate was incorrect. Defendant states that the only reasonable reading of this court’s mandate is that the trial court must appoint counsel, who then would be allowed to present and address all claims consistent with Rule 604(d), including a motion to withdraw the guilty plea.
•1 We find that the circuit court’s actions on the remand from defendant’s second appeal were entirely consistent with this court’s mandate. The circuit court appointed counsel. Counsel received the court file and the report of proceedings of the guilty plea, and he conferred with defendant concerning his contentions of error. Counsel performed his duties by raising all the issues counsel found appropriate and by filing an amended motion to withdraw the guilty plea and/or to reduce sentence. The court ruled on the motion by applying the law applicable at the time the amended motion was presented. In People v. Janes, 158 Ill. 2d 27, 630 N.E.2d 790 (1994), our supreme court held that a timely filed motion to withdraw guilty plea is a condition precedent to taking an appeal. Here, defendant timely filed a motion to reduce sentence. Therefore, the circuit court properly refused to consider the motion to withdraw the guilty plea, which was not filed within 30 days of sentencing. See People v. Feltes, 258 Ill. App. 3d 314, 316, 629 N.E.2d 1172, 1174 (1994). As the guilty plea and sentence were fully negotiated, defendant could not attack his sentence without attempting to withdraw his guilty plea in a timely manner. See People v. Evans, 174 Ill. 2d 320, 673 N.E.2d 244 (1996). The circuit court correctly read this court’s mandate.
•2 Alternately, defendant suggests that the circuit court should have considered his September 19, 1994, letter, indicating that he wanted to withdraw his guilty plea, as an inartfully drawn postconviction petition. As this contention could have been raised on the second appeal and was not, the issue is waived. See People v. Taylor, 199 Ill. App. 3d 788, 790, 557 N.E.2d 575, 576-77 (1990). Further, this suggestion has no merit.
•3 The constitutionality of a statute is a question of law that is reviewed de nova. People v. Fisher, 184 Ill. 2d 441, 448, 705 N.E.2d 67, 71-72 (1998). Statutes carry a strong presumption of constitutionality. Arangold Corp. v. Zehnder, 187 Ill. 2d 341, 351, 718 N.E.2d 191, 197 (1999). A party challenging the constitutionality of a statute bears the burden of rebutting the presumption and clearly establishing a constitutional violation. Arangold Corp., 187 Ill. 2d at 351, 718 N.E.2d at 197.
•4 Count VIII of the criminal information to which defendant pied guilty alleges that defendant committed first-degree murder “on or about February 3, 1990[,] to March 17, 1990.” At the time of the offense, section 5—8—1(a)(1) of the Unified Code of Corrections provided:
“Except as otherwise provided in the statute defining the offense, a sentence of imprisonment for a felony shall be a determinate sentence set by the court under this Section, according to the following limitations:
(1) for first[-]degree murder, (a) a term shall be not less than 20 years and not more than 60 years, or (b) if the court finds that the murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty or that any of the aggravating factors listed in subsection (b) of Section 9—1 of the Criminal Code of 1961 [(Ill. Rev. Stat. 1989, ch. 38, par. 9—1)] are present, the court may sentence the defendant to a term of natural [-] life imprisonment ***.” Ill. Rev. Stat. 1989, ch. 38, pars. 1005—8— 1(a)(1)(a), (a)(1)(b).
Defendant states that the trial court imposed a natural-life sentence on the basis that the offense was exceptionally brutal or heinous indicative of wanton cruelty or was committed in the course of a forcible felony. Defendant argues that since the count of the criminal information to which he pied guilty did not allege felony murder, the only possible justification for imposing a natural-life sentence would be the exceptionally brutal or heinous nature of the offense. Defendant concludes that the court did not make the finding that the first-degree murder was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty and that under Apprendi the court did not have the authority to make that finding, because section 5—8—1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—8—1(a)) does not require that this factor be proved beyond a reasonable doubt. In Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the United States Supreme Court held a New Jersey hate-crime statute unconstitutional because it allowed judges to make a factual finding that enhanced their power to punish beyond the maximum penalties prescribed for a given criminal offense.
In 1994, Charles Apprendi, Jr., took his handgun and fired a spray of .22-caliber bullets into the home of his new neighbors. Apparently, the newly arrived family did not fit Apprendi’s color criteria for living in a Vineland, New Jersey, neighborhood. Apprendi was indicted on numerous criminal offenses because of his misconduct, but none of them alleged that his actions were racially motivated. Apprendi, 530 U.S. at 469, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351.
Apprendi pied guilty to possession of a firearm for an unlawful purpose, an offense for which the New Jersey legislature had provided a 10-year maximum prison sentence. Apprendi, 530 U.S. at 469-70, 147 L. Ed. 2d at 442-43, 120 S. Ct. at 2352. However, a separate New Jersey hate-crime statute authorized the imposition of greater punishment for any crimes motivated by racial hatred. The trial judge found that Apprendi’s crime was so motivated and, because of that fact, sentenced Apprendi to a prison sentence greater than the 10-year maximum that could otherwise have been imposed. Apprendi, 530 U.S. at 470, 147 L. Ed. 2d at 443, 120 S. Ct. at 2352.
The Supreme Court, relying upon constitutional protections of due process, notice, and the right to a trial by jury, struck down the New Jersey hate-crime statute. Apprendi, 530 U.S. at 470, 147 L. Ed. 2d at 442, 120 S. Ct. at 2351. The Court took an exhaustive look at what our Founding Fathers promised when they bestowed the right to a trial by jury in all criminal cases. It found that a part of that promise was the right to have a jury determine all facts necessary to a determination of the maximum punishment the law allows. The Supreme Court handed down a constitutional-based rule when it stated, “Other 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 reasonable doubt.” Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2362-63.
In the instant case, by enforcing the guidelines for accepting a guilty plea, the trial court provided the protections that Apprendi now ensures. Before defendant entered his guilty plea, the court informed him of the possibility of a sentence of natural life for the crime to which he pied guilty. Indeed, the State had previously filed a notice that it intended to seek the death penalty, and the guilty plea avoided that possibility. The court also made sure there was an adequate factual basis for the plea and that evidence was presented in open court. See People v. Calva, 256 Ill. App. 3d 865, 873, 628 N.E.2d 856, 862 (1993).
•5 The guilty plea is sufficient proof that defendant was guilty beyond a reasonable doubt. See North Carolina v. Alford, 400 U.S. 25, 33, 27 L. Ed. 2d 162, 169, 91 S. Ct. 160, 165, (1970). Defendant’s guilty plea was a knowing admission of guilt of the criminal acts charged and all the material facts alleged in the charging instrument. See Davis v. City of Evanston, 257 Ill. App. 3d 549, 553, 629 N.E.2d 125, 129 (1993). A guilty plea ends the controversy and removes the prosecution’s burden of proof, as it supplies both the evidence and the verdict. Boykin v. Alabama, 395 U.S. 238, 242 n.4, 23 L. Ed. 2d 274, 279 n.4, 89 S. Ct. 1709, 1712 n.4 (1969), quoting Woodard v. State, 42 Ala. App. 552, 558, 171 So. 2d 462, 469 (1965). The reliability of guilty pleas is strengthened by the fact that by pleading guilty a defendant knowingly waives several constitutional rights, including the privilege against self-incrimination and the right to a trial by jury. People v. Williams, 188 Ill. 2d 365, 370, 721 N.E.2d 539, 543 (1999).
•6 As defendant was sentenced according to the statute for the offense to which he knowingly pied guilty, he cannot now claim that his rights were violated per Apprendi. Although Apprendi itself was an appeal following a guilty plea, the defendant there expressly reserved the right to challenge on appeal the constitutionality of the sentence-enhancement statute. Apprendi pied guilty to one offense and was then given a sentence exceeding the statutory maximum for that offense. In this case, defendant was admonished regarding the possible sentence he eventually received. The possibility of a natural-life sentence for the charge to which defendant pied guilty was clear at the time of the plea, and defendant did not object or raise this issue until his third appeal.
By pleading guilty, the defendant gives up the right to challenge a sentence within the statutory range for the offense to which he pied guilty. People v. Jackson, 319 Ill. App. 3d 110, 113, 744 N.E.2d 1275, 1278 (2001). In addressing how Apprendi affects guilty pleas, the Second District has stated:
“A defendant who pleads guilty does not have the same appeal rights as one convicted following a trial. [Citation.] Generally, after pleading guilty, a defendant may not raise claims of the deprivation of constitutional rights that occurred before the entry of the plea. [Citation.] Before defendant entered his plea, the court informed him of the sentencing ranges for the offenses and specifically admonished him of the possibility of consecutive sentences. Having waived a jury trial on all issues, defendant cannot now claim that he was deprived of the right to have a jury determine the issue of his future dangerousness. Similarly, he cannot claim that he was unfairly deprived of the right to have the State prove that point beyond a reasonable doubt.” People v. Chandler, 321 Ill. App. 3d 292, 297, 748 N.E.2d 685, 690 (2001).
In this case, after receiving a sentence within the range for the offense to which he pied guilty, defendant cannot now claim that his Apprendi rights were violated. See United States v. Johnstone, 251 F.3d 281 (1st Cir. 2001) (a guilty plea gives the court the discretion to impose the statutory maximum sentence because the defendant is informed of that possible sentence).
Finding that an Apprendi violation did not occur in this case is consistent with our prior interpretation oí Apprendi. In People v. Nitz, this court called into question the validity of section 5—8—1(a). People v. Nitz, 319 Ill. App. 3d 949, 968, 747 N.E.2d 38, 55 (2001). This court reduced the defendant’s sentence from natural life to 60 years’ imprisonment. However, we made clear that our difficulty with the application of the statute was that it violated the defendant’s right to a trial by a jury. Nitz, 319 Ill. App. 3d at 968, 747 N.E.2d at 55. In this case, defendant’s right to a trial by a jury was not violated. Defendant waived this right. Defendant should not be able to waive a right, receive a sentence he subjected himself to, and then contend that the right was violated.
For the foregoing reasons, the judgment of the circuit court of Bond County is affirmed.
Affirmed.
CHAPMAN, P.J., and HOPKINS, J., concur.
A grand jury returned a seven-count indictment charging defendant with murder. On July 2, 1992, criminal informations were filed that were virtually identical to the indictments with the exception that first-degree murder was charged.