Washington v. Cowan

ORDER Vaughn Washington was convicted of murder in an Illinois state court and was sentenced as a habitual offender to life imprisonment. After exhausting his state [426] remedies, Washington filed a petition for a writ of habeas corpus. The district court denied relief but granted a certificate of appealability (CA) on three of Washington’s claims relating to the constitutionality of Illinois’s habitual offender sentencing provision. We agree with the district court that Washington failed to demonstrate that the state court’s adjudication of these claims was contrary to, or an unreasonable application of, clearly established Supreme Court precedent, and therefore affirm.1 Relying on Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962), Washington first maintains that his due process rights were violated because the prosecution did not notify him until the day of his sentencing hearing that he could be sentenced as a habitual offender. In Oyler, the Supreme Court held that, although due process does not require advance notice that a trial on the substantive offense will be followed by a recidivist proceeding, a defendant still must receive reasonable notice and an opportunity to respond to a recidivist charge. Id. at 452, 82 S.Ct. 501; Denton v. Duckworth, 873 F.2d 144, 149 (7th Cir.1989). Like Washington, the defendants in Oyler were not notified until their sentencing hearings that they could be sentenced as habitual offenders. The Supreme Court ultimately concluded, however, that no due process violation occurred. According to the Court, the defendants were in no position to argue that they were not given a fair opportunity to respond to the recidivist charges because at the sentencing hearings they did not defend against those charges and did not object or seek a continuance based on the absence of adequate notice. Oyler, 368 U.S. at 453-54, 82 S.Ct. 501. Like the defendants in Oyler, Washington did not dispute at sentencing (nor does he do so on appeal) that he was eligible to be sentenced as a habitual offender based on his prior convictions and did not object or seek a continuance based on the absence of adequate notice. As in Oyler, Washington cannot now complain that he was denied due process. Washington next contends that the habitual offender sentencing provision violates separation of powers principles because it gives the prosecutor unbridled discretion to determine whether a particular defendant will be charged as a habitual offender. This argument is also foreclosed by Oyler, which holds that such discretion is not unconstitutional. Id. at 456, 82 S.Ct. 501 (prosecutors’ “conscious exercise of some selectivity in enforcement is not in [427] itself a federal constitutional violation”); see United States v. LaBonte, 520 U.S. 751, 761-62, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997); United States v. Washington, 109 F.3d 335, 338 (7th Cir.1997) (three-strikes provision of 18 U.S.C. § 3559(c) did not violate separation of powers principles by giving prosecutor “too much power”); United States v. Wicks, 132 F.3d 383, 389-90 (7th Cir.1997) (same). Lastly, Washington maintains that the habitual offender sentencing provision is unconstitutional because it precludes a court from taking mitigating factors into account in sentencing a defendant. But the length of a sentence is “purely a matter of legislative prerogative,” Rummel v. Estelle, 445 U.S. 263, 274, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), and it is not unconstitutional for a legislature to define criminal punishments without giving the courts any sentencing discretion, Chapman v. United States, 500 U.S. 453, 467, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); Washington, 109 F.3d at 338; United States v. Lewis, 896 F.2d 246, 249 (7th Cir.1990). AFFIRMED. Footnotes [1] Washington has briefed several issues beyond the scope of the CA granted by the district court. The state asks that we refuse to consider whether to expand the CA to include these additional issues. But we have repeatedly rejected similar requests by the state. See Rittenhouse v. Battles, 263 F.3d 689, 691 (7th Cir. 2001); Ouska v. Cahill-Masching, 246 F.3d 1036, 1045-46 (7th Cir. 2001); Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir. 1997). We recently made clear in Ouska that "we shall continue to consider requests to amend a certificate of appealability even when they are presented in a petitioner’s briefs to this court.” Ouska, 246 F.3d at 1046. Nevertheless, we reiterate that the state is not obligated to brief issues beyond the scope of the CA. See Schaff v. Snyder, 190 F.3d 513, 528 n. 16 (7th Cir. 1999); Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir.1998). We construe the inclusion of these claims in Washington's brief as a request to expand the CA. But after reviewing the district court's final order and the record on appeal, we conclude that Washington has not made a substantial showing of the denial of a constitutional right with respect to any of his additional claims. See 28 U.S.C. § 2253(c)(2). We therefore deny Washington's implicit request to expand the CA.