                              In the
 United States Court of Appeals
                For the Seventh Circuit
                          ____________

No. 06-3257
L ARRY M ACK,
                                                Petitioner-Appellant,
                                  v.

T ERRY L. M C C ANN, Warden,
                                                Respondent-Appellee.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 05 C 2999—Ruben Castillo, Judge.
                          ____________
     A RGUED F EBRUARY 16, 2007—D ECIDED JUNE 18, 2008
                          ____________


  Before F LAUM, R IPPLE and R OVNER, Circuit Judges.
   R OVNER, Circuit Judge. On the day after Thanksgiving
in 1979, Larry Mack murdered Joseph Kolar, a bank
security guard, in the course of robbing a Chicago bank.
Initially sentenced to death for this senseless killing, Mack
has waged a sometimes successful twenty-nine-year
legal battle to lessen the severity of his punishment. The
Illinois courts vacated the death sentence and eventually
sentenced Mack to natural life in prison. At the time of
his original trial, in an effort to avoid the death penalty,
Mack offered to plead guilty in exchange for a sentence
of natural life, an offer that was rejected by the State’s
2                                                 No. 06-3257

Attorney. Mack now challenges his life sentence on con-
stitutional grounds, appealing the district court’s denial
of his habeas corpus petition. We affirm.


                              I.
   We assume the state court’s factual determinations are
correct unless the defendant rebuts them with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1); Julian v. Bartley,
495 F.3d 487, 492 (7th Cir. 2007). Our rendition of the
facts therefore comes from the Illinois supreme court’s
first decision in this case. People v. Mack, 473 N.E.2d 880
(Ill. 1984), vacated, 479 U.S. 1087 (1987) (hereafter, we
will refer to the Illinois supreme court’s first decision as
“Mack I”). On November 23, 1979, Mack and two accompli-
ces robbed the West Pullman United Savings Bank in
Chicago. When Mack first entered the bank, Mr. Kolar, a
uniformed security guard, was speaking with John
McGinty, a loan officer employed by the bank. Mack
approached Mr. Kolar, pulled a gun from under his coat
and placed it inches from the bank guard’s collar. Mr.
Kolar reacted by raising his arm to push the gun away.
Mack fired the gun, piercing Mr. Kolar’s right arm. Mack
then put his hand on the back of Mr. Kolar’s neck, placed
the gun against his back, and walked him over to an
area near the windows. Mack forced Mr. Kolar to the
floor, straddled him with his legs and fired a second,
fatal shot into his chest. Mack then took Mr. Kolar’s gun
from its holster. As Mack straddled Mr. Kolar, his two
accomplices entered the bank and jumped over a parti-
tion leading to the tellers’ stations. As his accomplices
collected money, Mack patrolled the bank, carrying
Mr. Kolar’s gun as well as his own. Three Chicago police
officers who happened to be passing the bank saw Mack
No. 06-3257                                               3

and his cohorts making a hasty exit. After following the
three robbers a short distance, the police officers stopped
the getaway car and ordered Mack and the others out. The
officers arrested all three, and recovered from the car
the bags of money taken from the bank, Mack’s gun and
Mr. Kolar’s gun. Mack I, 473 N.E.2d at 884-85.
  Mack’s accomplices pled guilty to charges arising from
the bank robbery and were sentenced to prison terms.
Mack’s multiple attempts to enter into a plea agreement
failed when the State’s Attorney refused to accept Mack’s
final offer to plead guilty in exchange for a sentence of
natural life. Mack waived a jury for the guilt phase of the
trial, retaining his right to request a jury for sentencing.
The trial court found Mack guilty of three counts of
murder and two counts of armed robbery. Specifically,
Mack was convicted of murder on three different theories:
(1) that he intentionally and knowingly shot and killed
Mr. Kolar; (2) that he shot and killed Mr. Kolar with a
gun knowing that shooting a person with a gun created a
strong probability of death or great bodily harm to that
person; and (3) that he shot and killed Mr. Kolar while
committing a forcible felony, namely armed robbery. As
for the two counts of robbery, Mack was charged with
robbing Mr. Kolar and with robbing the loan officer by
taking United States currency from the person and pres-
ence of these two men.
  The case proceeded to the two-part penalty phase to
determine whether Mack would be sentenced to death. A
jury was impaneled for this purpose. In the first phase,
the jury determined that Mack was eligible for a sen-
tence of death because he was at least eighteen years of
age at the time of the murder, and he personally mur-
dered an individual during the course of a felony, satisfy-
4                                             No. 06-3257

ing one of the statutory aggravating factors that must be
found before the death penalty may be imposed. During
the second phase of the penalty hearing, the jury heard
evidence relevant to aggravating and mitigating sen-
tencing factors. The jury unanimously found that there
were no mitigating factors sufficient to preclude a sen-
tence of death. The court sentenced Mack to death, and
entered concurrent terms of twenty-five years for each
armed robbery conviction. Mack I, 473 N.E.2d at 884.
  In Illinois, capital cases are automatically appealed
directly to the supreme court. In his direct appeal, Mack
raised issues regarding only the sentencing hearing and
the sentence. He did not challenge any aspects of the
guilt phase of the trial. Mack argued that the prosecutor
had unlawfully relied on the wishes of Mr. Kolar’s family
in refusing to accept his offer to plead guilty in ex-
change for a sentence of natural life and to instead seek
the death penalty. The supreme court ruled that the
prosecutor was not barred from considering the wishes
of the victim’s family in deciding whether to accept an
offered plea bargain in a capital case. Mack also argued
that certain members of the prosecution team had al-
ready accepted his offered plea before a supervising
prosecutor decided to defer to the wishes of the family.
The trial court found that the State’s Attorney’s office
had never accepted Mack’s plea offer, and the supreme
court affirmed that finding. Mack I, 473 N.E.2d at 887-89.
  The Illinois supreme court next rejected Mack’s argu-
ment that he was entitled to a new sentencing hearing
because three jurors were erroneously excused for cause
under Witherspoon v. Illinois, 391 U.S. 510 (1968). The
supreme court found that the trial court conducted an
appropriate voir dire and that the disputed jurors were
No. 06-3257                                               5

correctly excused because they were unwilling to impose
the death penalty under any circumstances. Mack I,
473 N.E.2d at 889-90. The court also rejected Mack’s
argument that the prosecutor had impermissibly used
race as a factor in exercising its peremptory challenges.
The United States Supreme Court had not yet decided
Batson v. Kentucky, 476 U.S. 79 (1986), at the time the Mack
I court ruled that such a challenge could not stand unless
the defendant was able to demonstrate systemic and
purposeful exclusion of African Americans from the
jury. Mack I, 473 N.E.2d at 890. Mack could not make
this showing, and the court rejected this challenge and
also disallowed a claim that the jury was not adequately
screened for racial bias. Mack I, 473 N.E.2d at 890-92. Nor
did the court accept Mack’s claim that the prosecutor
made improper comments about the victim’s family and
the possibility that Mack might be given an early release
if not subjected to the death penalty (a complaint we
find somewhat ironic in light of the instant appeal). 473
N.E.2d at 892. Mack also claimed ineffective assistance
of counsel at the sentencing phase, arguing that his law-
yer did not adequately develop his theory that the
shooting was accidental because the gun misfired twice
during the robbery. The court found that counsel at-
tempted to make this argument and presented some
evidence that the first shot was accidental, but that, in
light of the loan officer’s testimony about the second shot,
it was “impossible to accept” a claim that the second, fatal
shot was fired accidentally. 473 N.E.2d at 893-94.
  The court rejected several other more minor arguments,
and then addressed Mack’s claims that he should have
been convicted of only one count of armed robbery and one
count of murder. The court granted Mack relief on both
6                                                   No. 06-3257

of these claims. Under Illinois law, when money is taken
from one victim in the presence of several persons against
whom the threatened force was directed, there is only one
robbery. Mack I, 473 N.E.2d at 897. The court therefore
affirmed the conviction for the robbery of the bank’s loan
officer and vacated the conviction for the robbery of
Mr. Kolar.1 As for the three murder convictions, the
court found that only one count of murder could stand.
The three convictions were for the intentional and
knowing shooting and killing of Mr. Kolar, the shooting
and killing of Mr. Kolar with knowledge that the
shooting created a strong probability of death or great
bodily harm to Mr. Kolar, and the shooting and killing of
Mr. Kolar while committing the forcible felony of armed
robbery. The court found that, although “[t]here was
evidence to support a conviction of all three charges,” there
could be only one conviction because only one person
was killed. In Illinois, the rule for multiple convictions
arising out of a single act required that the sentence be
imposed on the most serious offense. Mack I, 473 N.E.2d
at 898. All three of the murder convictions carried the
possibility of a death sentence, but the court considered
the knowing and intentional shooting and killing of Mr.
Kolar to be the most serious crime of the three charged
because it involved a more culpable mental state than
the other two. The court therefore affirmed the convic-


1
   Mack was not charged with robbery for taking Mr. Kolar’s gun
from him. Both robbery charges were based on taking money
from the bank. Because the loan officer held an official capacity
with the bank and Mr. Kolar worked for a private security
firm, the court affirmed the conviction that was related to the
loan officer and vacated the robbery conviction related to
Mr. Kolar.
No. 06-3257                                                7

tion for the knowing and intentional shooting and killing
of Mr. Kolar and vacated the other two murder convic-
tions. Mack I, 473 N.E.2d at 898.
   Following the Illinois supreme court’s decision, the
United State Supreme Court ruled in Batson that “a defen-
dant may establish a prima facie case of purposeful dis-
crimination in selection of the petit jury solely on evid-
ence concerning the prosecutor’s exercise of peremptory
challenges at the defendant’s trial.” Batson, 476 U.S. at 96.
Because the rule established in Batson was held to apply
to all cases pending on direct appeal, see Griffith v. Ken-
tucky, 479 U.S. 314 (1987), the Supreme Court vacated
and remanded the judgment in Mack’s case for further
consideration of the issue. The Illinois supreme court
remanded the matter to the trial court for a hearing on
the Batson issue. That court found that the explanations
offered by the prosecution for the peremptory chal-
lenges were credible, race neutral and sufficient to with-
stand scrutiny under Batson. That decision was automati-
cally appealed to the Illinois supreme court, which af-
firmed and reinstated Mack’s death sentence. People v.
Mack, 538 N.E.2d 1107 (Ill. 1989) (hereafter “Mack II”).
   Mack next filed a petition for post-conviction relief in
the circuit court of Cook County, arguing that the jury
returned a legally insufficient verdict in the first phase
of his death penalty hearing. The circuit court agreed,
vacated Mack’s death sentence and remanded the
matter for a new sentencing hearing. This time the State
appealed, and the Illinois supreme court affirmed. See
People v. Mack, 658 N.E.2d 437 (Ill. 1995) (hereafter “Mack
III”). The court noted that at the first stage of the death
penalty hearing, the State sought to establish Mack’s
eligibility for the death penalty on the basis of the stat-
8                                              No. 06-3257

utory factor set forth in section 9-1(b)(6) of the Illinois
Criminal Code of 1961. The relevant statute provided:
    (b) Aggravating Factors. A defendant who at the time
    of the commission of the offense has attained the age
    of 18 or more and who has been found guilty of mur-
    der may be sentenced to death if:
                         ******
       6. the murdered individual was killed in the
       course of another felony if:
           (a) the murdered individual was actually
           killed by the defendant and not by another
           party to the crime or simply as a conse-
           quence of the crime; and
           (b) the defendant killed the murdered individ-
           ual intentionally or with the knowledge that the
           acts which caused the death created a
           strong probability of death or great bodily
           harm to the murdered individual or another;
           and
           (c) the other felony was one of the following:
           armed robbery[.]
Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(6); Mack III, 658
N.E.2d at 439-40 (emphasis added). The verdict form
provided to and returned by the jury stated, “We, the
jury, unanimously find beyond a reasonable doubt that
the following aggravating factor exists in relation to
this Murder: Larry Mack killed Joseph Kolar in the
course of an Armed Robbery.” Mack III, 658 N.E.2d at 440.
The verdict form thus failed to specify that Mack acted
with the level of intent required by the statute. Mack
had not raised this issue in his direct appeal, and the
No. 06-3257                                                 9

supreme court therefore considered it in the context of a
claim for ineffective assistance of appellate counsel. The
court noted that a culpable mental state of intent to kill
or knowledge of a strong probability of death or great
bodily harm is an essential element of the statutory
factor on which Mack’s eligibility for a death sentence
was based. The court also noted that, in Illinois, a defen-
dant is entitled to have a jury determine whether the
death penalty may be imposed. Mack III, 658 N.E.2d at 441-
42. The court rejected the State’s claim that any defect
in the verdict form was corrected by the jury instruc-
tions, which accurately stated the law. The court concluded
that because the verdict form completely omitted an
essential element of the relevant aggravating factor, the
circuit court was correct to vacate the sentence and to
order a new sentencing hearing. Mack III, 658 N.E.2d at 444.
  On remand to the circuit court of Cook County, Mack
moved to bar the imposition of the death penalty at his
new sentencing hearing based on double jeopardy
grounds. The circuit court denied that motion, and
Mack filed an interlocutory appeal to the Illinois supreme
court. See People v. Mack, 695 N.E.2d 869 (Ill. 1998) (hereaf-
ter “Mack IV”). The supreme court affirmed the circuit
court’s denial of the motion and the circuit court pro-
ceeded with a new sentencing hearing for Mack. Nearly
twenty-two years had elapsed since the day of the mur-
der when the circuit court began to conduct voir dire for
Mack’s new sentencing hearing. Certain witnesses had
died in the intervening time, including a bank teller pres-
ent on the day of the murder and the medical examiner
who had performed the autopsy on Mr. Kolar.
  At the re-sentencing hearing, Mack presented new
evidence supporting his claim that both shots were fired
10                                            No. 06-3257

accidentally rather than intentionally. A paralegal
working for Mack’s defense attorney had returned to the
scene of the crime some twenty years after the fact, and
had recovered bullet fragments from the floor near where
the second shot was fired. Mack presented expert testi-
mony that suggested that the first bullet was the fatal
shot, and that it had passed through Mr. Kolar’s arm
and chest before exiting his body. The second bullet,
according to Mack’s theory, never struck Mr. Kolar at all
but instead impacted the floor next to Mr. Kolar. Mack
argued to the jury that the first shot discharged acciden-
tally when Mr. Kolar reached up to push away the gun.
The second shot also discharged accidentally as Mack
was leaning over Mr. Kolar to remove his gun from its
holster, striking the floor rather than Mr. Kolar. Mack’s
theory was based on his own testimony as well as expert
testimony regarding the bullet fragments and expert
testimony reinterpreting a report from an autopsy con-
ducted on Mr. Kolar in 1979.
  At the end of the death penalty eligibility phase of the
proceedings, the jury was instructed that, in order to
find Mack eligible for a death sentence under Illinois
law, the State must prove beyond a reasonable doubt
(1) that Mack was eighteen years old or older at the time
of the commission of the murder; and (2) that a statutory
aggravating factor exists. The court defined the disputed
statutory aggravating factor as follows:
     The murdered person was killed in the course of
     another felony if the murdered person was actually
     killed by the defendant, and in performing the acts
     which caused the death of the murdered person, the
     defendant acted with the intent to kill the murdered
     person, or with the knowledge that his acts created
No. 06-3257                                              11

    a strong probability of death or great bodily harm to
    the murdered person, and the other felony was armed
    robbery.
Tr. at F-56. After deliberations, the jury returned a ver-
dict that stated in its entirety:
    We, the jury, cannot unanimously find beyond a
    reasonable doubt that the defendant Larry Mack
    is eligible for a death sentence under the law. We
    cannot unanimously find beyond a reasonable doubt
    that the defendant was 18 years old or older at the
    time of the murder for which he was convicted in
    this case or we cannot find unanimously beyond a
    reasonable doubt that the statutory aggravating factor
    exists.
The verdict form was signed by all twelve of the jurors. The
effect of this verdict under Illinois law was that Mack
was no longer eligible for a death sentence. All that re-
mained was for the trial court to determine Mack’s sen-
tence.
  The trial court ordered a pre-sentence investigation and
scheduled a hearing so that the State could present evi-
dence in aggravation and Mack could present evidence
in mitigation. At the time, Illinois law provided that, for
the purposes of a non-capital sentence, the trial judge
could consider evidence in aggravation and mitigation
and determine by a preponderance of the evidence the
facts which would influence the final sentence. Prior to
that hearing, Mack’s attorney moved to limit the sen-
tence to forty years, the maximum sentence for a mur-
der without aggravating factors. Under Illinois law,
according to Mack, the only possible aggravating factors
warranting a sentence in excess of forty years were that
12                                             No. 06-3257

the murder was committed intentionally and knowingly
or the murder was committed with exceptionally brutal or
heinous behavior indicative of wanton cruelty. Mack
argued that the State sought only to prove intentional
and knowing murder, and that the jury had rejected
those claims in the death eligibility hearing. Under the
Supreme Court’s then-recent decision in Apprendi v. New
Jersey, 530 U.S. 466 (2000), Mack argued that a jury must
find a statutory aggravating factor beyond a reasonable
doubt. Because the jury had failed to do so, Mack con-
tended that the maximum sentence for his crime was
forty years. Mack conceded that there was a contradic-
tion between the trial court’s finding of guilt in the
1981 bench trial and the jury’s determination in 2001. That
is, the 1981 trial court found beyond a reasonable doubt
that Mack committed the murder knowingly and inten-
tionally, a finding that was affirmed by the Illinois su-
preme court. The 2001 jury, on the other hand, could not
unanimously agree that the murder was committed
knowingly and intentionally. The prosecution contended
that, even if Apprendi applied to Mack’s sentencing, the
State was not seeking to use a fact to enhance his sen-
tence that had not already been proved beyond a reason-
able doubt. Because the 1981 trial court found intent and
knowledge beyond a reasonable doubt, Mack was eligible
for a sentence in excess of forty years, including a sen-
tence of natural life, the State argued. The trial court
agreed with the State that Mack was eligible for a maxi-
mum sentence of natural life.
  After hearing evidence in aggravation and mitigation,
the trial court sentenced Mack to a term of natural life
in prison, commenting, in relevant part:
     The Court will consider the evidence in the case, the
     evidence at the death penalty phase, the evidence at
No. 06-3257                                            13

   the sentencing hearing, the mandatory factors of
   aggravation, mitigation, set forth in the Statute, Pre-
   Sentence Investigation Report, which also speaks to
   the Defendant’s past two (2) violent criminal convic-
   tions, and will consider the arguments made by coun-
   sel at this sentencing hearing.
   All things considered pertaining to the crime and the
   criminal, the Court finds by a preponderance of the
   evidence under Chapter 38, Section 1005-8-1(a)1(b),
   that the murder was accompanied by exceptionally
   brutal or heinous behavior indicative of wanton
   cruelty, and the Court also finds with respect to the
   law applicable at the time, which the Defendant has
   chosen to be sentenced under, that the murdered
   individual was actually killed by the Defendant and
   that the Defendant killed the victim with knowl-
   edge that the acts which caused the death created a
   strong probability of death. All these things being
   considered and the Court having so found, the Court
   makes its finding under the aggravating factors I
   just referred to in 9-1 of the Criminal Code, that is,
   once again, that the Defendant performed the acts
   and that the Defendant killed the murdered individual
   with knowledge that the acts which caused death
   created a strong probability of death. All these things
   considered, the law permits me, and I do find that
   the proper and appropriate sentence in this case is
   natural life in prison.
Transcript of Sentencing, at I-133-34 (February 26, 2002)
(hereafter “Sent. Tr.”). Following a discussion off the
record about Apprendi, the court added:
   As I announced my sentence, I am cognizant that the
   U.S. Supreme Court has not yet decided whether
14                                                 No. 06-3257

     Apprendi is retroactive, and I am cognizant also that
     the Illinois Supreme Court has not decided whether
     under the U.S. Constitution and the Illinois Constitu-
     tion whether Apprendi should be retroactive and
     whether or not the State’s argument that this was a
     final judgment many years ago will be accepted by
     at least the Illinois Supreme Court, but I am assuming
     that Apprendi will not be retroactive and/or that this
     was a final judgment many years ago, and that is
     why I applied the brutal, heinous conduct indicative
     of wanton cruel behavior in sentencing the Defendant
     as one of the two (2) factors under the Statute.
Sent. Tr. at 1-134-35.
   Mack appealed this sentence, arguing that it violated the
Supreme Court’s mandate in Apprendi. Because a capital
sentence was no longer at issue, the appeal was heard
by the Illinois appellate court. At first, the court found
that Apprendi did not apply retroactively to Mack’s case,
and the court therefore affirmed Mack’s life sentence.
People v. Mack, No. 1-02-0961, slip op. (Ill. App. 5 Dist.
October 17, 2003) (hereafter “Mack V”). The court relied on
People v. De La Paz, 204 Ill.2d 426 (Ill. 2003), in finding that
Apprendi should not be applied retroactively to criminal
appeals where the direct appeals were exhausted before
Apprendi was decided. The appellate court agreed that
Mack’s conviction had become final years before Apprendi
was decided and that Apprendi would therefore not
apply to his appeal. This was a curious ruling because
Mack’s case was still on direct appeal and his new sen-
tence was being challenged for the first time. See White
v. Battaglia, 454 F.3d 705, 706 (7th Cir. 2006), cert. denied,
127 S. Ct. 1272 (2007) (although Apprendi is not retroactive,
it applies in cases where a defendant’s sentence was still
No. 06-3257                                                 15

pending on direct appeal at the time Apprendi was de-
cided). On rehearing, the appellate court reversed course
on the applicability of Apprendi but affirmed Mack’s life
sentence on other grounds. People v. Mack, No. 1-02-0961,
slip op. (Ill. App. 5 Dist. May 7, 2004) (hereafter “Mack VI”).
The court recognized that, because of the new sen-
tencing proceedings, Mack’s case was still on direct appeal,
and the judgment had not become final until after Apprendi
was decided. Accordingly, the court found Apprendi
applicable to Mack’s sentencing. The court next found
that the sentencing court violated Apprendi when it sen-
tenced Mack to natural life in prison based on a factual
finding by a preponderance of the evidence that the
crime was accompanied by exceptionally brutal or heinous
behavior indicative of wanton cruelty. The court found
nonetheless that the error was harmless because any
jury would have “undoubtedly” found that Mack’s be-
havior was exceptionally brutal and heinous, and indica-
tive of wanton cruelty. Both of the appellate court orders
were authored by Justice Neil Hartigan, who had served
as the Illinois Attorney General during the time period
when the State of Illinois was defending Mack’s original
death sentence before the Illinois courts and the United
States Supreme Court. Following these appellate court
rulings, the Illinois supreme court declined to hear
Mack’s appeal again.
  Mack then filed a petition for a writ of habeas corpus in
the federal district court. In his petition, Mack contended
that an extended term sentence violated his rights under
the Fifth, Sixth, and Fourteenth Amendments to the
United States Constitution as interpreted by Apprendi.
Mack argued that such a violation cannot ever be deemed
harmless error. Finally, Mack asserted that Justice
16                                              No. 06-3257

Hartigan’s participation in deciding his appeal violated
his Fourteenth Amendment right to due process because
Justice Hartigan had previously represented the State
in this action in his capacity as Attorney General. The
district court initially found that “[t]here is no question
that the trial court’s imposition of this sentence violated
Apprendi.” Mack v. Battaglia, 385 F. Supp. 2d 751, 760 (N.D.
Ill. 2005) (hereafter “Mack VII”). The district court held
that the appellate court’s finding that the error was harm-
less was contrary to and involved an unreasonable ap-
plication of the federal law regarding harmless error, and
was based on an unreasonable determination of the facts
in light of the evidence presented at the second sen-
tencing hearing and the jury’s verdict in that hearing.
Because of that holding, the court found it unnecessary
to address Mack’s claims regarding Justice Hartigan. The
court ordered the State to hold a new sentencing hearing
to determine Mack’s eligibility for an extended term
sentence of natural life or to re-sentence him to a non-
extended term of no more than forty years.
  Both Mack and the State moved for reconsideration.
Mack argued that a new sentencing hearing would violate
the principles of double jeopardy. The State contended
that any errors committed by the Illinois appellate court
in finding that Mack’s behavior met the brutal and hei-
nous standard were irrelevant because the original trier
of fact, the judge in the 1981 bench trial, found beyond
a reasonable doubt the facts necessary to support a sen-
tence of natural life. The district court issued a new mem-
orandum opinion and order. Mack v. Battaglia, 441 F. Supp.
2d 928 (N.D. Ill. 2006) (hereafter “Mack VIII”). On recon-
sideration, the district court agreed with the State that
Mack’s life sentence satisfied the rule in Apprendi be-
No. 06-3257                                             17

cause the original trial court found the facts necessary to
support a life sentence when it found beyond a reason-
able doubt that Mack knowingly and intentionally killed
Mr. Kolar in the course of an armed robbery, a finding
that was affirmed by the Illinois supreme court. The dis-
trict court rejected as irrelevant Mack’s claim that he
never waived his right to have a jury determine his sen-
tence. Mack waived a jury for the purposes of the guilt
phase of his trial, thereby agreeing “that the trial judge
should find the facts necessary to support his conviction.
Those are the same facts that support his natural life
sentence.” Mack VIII, 441 F. Supp. 2d at 933 (footnote
omitted). Because it determined that Mack’s sentence did
not violate Apprendi, the district court turned to Mack’s
claim that his Fourteenth Amendment right to due pro-
cess was violated by Justice Hartigan’s participation in
his appeal after representing the State as Attorney Gen-
eral in his earlier appeals. The court found that there
was no evidence that Justice Hartigan was actually
biased, and the court accepted the State’s evidence that
Justice Hartigan played only a general, supervisory role
in the case when he was the Attorney General, and did
not take part in preparing, briefing or arguing the case
before the Illinois supreme court. Accordingly, the
court found no due process violation. Given the complexi-
ties of the Apprendi determination, the district court sua
sponte issued a certificate of appealability on that issue
pursuant to 28 U.S.C. § 2253(c)(2). Mack appeals.


                            II.
  Both sides now agree that Apprendi applies to Mack
because his sentence was on direct appeal when Apprendi
was decided. See White, 454 F.3d at 706. After this lengthy
18                                              No. 06-3257

appellate history, Mack’s case comes down to a single,
discrete issue. Mack contends that his natural life sen-
tence violates the principle of Apprendi because there
was no jury determination establishing the facts neces-
sary to impose an enhanced sentence, and Mack never
waived his right to have a jury trial as to his sentence. He
maintains that this error was not harmless and that the
state court errors prejudiced him. He argues that double
jeopardy principles bar another sentencing trial, and that
he should therefore be re-sentenced to a maximum term
of up to forty years’ imprisonment. Mack moved to
amend the certificate of appealability in this court to
include the issue relating to Justice Hartigan, and we
denied that motion. Mack nonetheless argues again that
Justice Hartigan’s role in deciding his appeal violated
his right to due process. Our analysis of the Apprendi
claim will make it unnecessary to consider the due pro-
cess claim, and we therefore continue to decline to
amend the certificate of appealability to consider that
issue. See Ouska v. Cahill-Masching, 246 F.3d 1036, 1045
(7th Cir. 2001) (when the court determines that the ex-
pansion of the certificate of appealability is not war-
ranted, the court is not required to and will not address
arguments outside of those issues certified for appeal).
  Our review of the district court’s decision to deny
Mack’s habeas petition is de novo, and is governed by the
terms of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). Julian v. Bartley, 495 F.3d 487, 491-92 (7th
Cir. 2007). See also Jackson v. Frank, 348 F.3d 658, 661 (7th
Cir. 2003); 28 U.S.C. § 2254. “Habeas relief must not be
granted unless the state court’s adjudication of the claim
(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly established
No. 06-3257                                               19

Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based
on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
Julian, 495 F.3d at 492. See also Jackson, 348 F.3d at 662;
28 U.S.C. § 2254(d). “In assessing the reasonableness of
the state court’s decision, the federal court assumes that
the state court’s factual determinations are correct unless
the defendant rebuts them with clear and convincing
evidence.” Julian, 495 F.3d at 492. See also 28 U.S.C.
§ 2254(e)(1).
  At his original trial in 1981, Mack waived his right to
have a jury determine whether he was guilty of the
crimes charged but he retained his right to a jury trial at
sentencing. His written waiver stated:
    I, the undersigned, do hereby waive jury trial and
    submit the above entitled cause to the Court for hear-
    ing. This waiver is for the initial hearing and not a
    waiver of his right to a jury at a sentencing hearing[.]
The second sentence was handwritten onto a pre-printed
standard jury waiver form after a colloquy with the
court to determine if Mack understood his rights and the
effect of his waiver. Mack’s trial counsel told the court
that Mack wished to be tried by the court “with respect
to the initial phase of these proceedings.” Tr. at 129. After
determining that Mack understood his rights, the trial
court stated:
    I think the document should reflect that this jury
    waiver is with respect to the initial phase, the guilt or
    innocence phase of the proceedings, and is not ap-
    plicable to any subsequent sentencing hearing should
    there be a determination of guilt. Is that understood
    by everybody?
20                                                No. 06-3257

Tr. at 132. Both the prosecutor and defense counsel as-
sented. The 1981 trial court, as we noted above, found
Mack guilty of murder under all three theories charged
in the indictment. That is, the court found Mack guilty of
(1) intentionally and knowingly shooting and killing
Mr. Kolar; (2) shooting and killing Mr. Kolar with a gun
knowing that such shooting with a gun created a
strong probability of death or great bodily harm; and
(3) shooting and killing Mr. Kolar while committing the
forcible felony of armed robbery. Mack I, 473 N.E.2d at
898. Mack did not challenge these findings and the
Illinois supreme court found that there was evidence to
support a conviction under all three theories. Because
one person was killed, the court held that there could be
only one conviction; Illinois law required that the sen-
tence be imposed on the most serious offense. The court
selected the intentional and knowing killing of Mr. Kolar
as the most serious offense because it involved the most
culpable mental state of the three theories. Mack I, 473
N.E.2d at 898. That conviction was affirmed and the
other two were vacated. Thus, at the guilt phase of the
trial, the court found beyond a reasonable doubt that
Mack intentionally and knowingly killed Mr. Kolar, the
Illinois supreme court affirmed that finding, and Mack
never challenged the finding of guilt in any court.
   In Illinois, under the law in effect at the time of the
original trial, Mack could be sentenced to death if he
was at least eighteen years of age at the time of the mur-
der and certain aggravating factors were found to exist
beyond a reasonable doubt. Ill. Stat. ch. 38, § 9-1 (1979). The
Illinois statute provided for a separate sentencing
hearing for a death penalty case, which allowed a defen-
dant to request that a jury determine whether any ag-
No. 06-3257                                                 21

gravating or mitigating factors existed. Ill. Rev. Stat. ch 38,
§ 9-1(d) (1979). For any non-death sentence, however,
Illinois law allowed the trial judge to set the term of
imprisonment as follows:
    (1) for murder, a term shall be not less than 20 years
    and not more than 40 years, or, 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 subsec-
    tion (b) of Section 9-1 of the Criminal Code of 1961
    are present, the court may sentence the defendant to
    a term of natural life imprisonment.
Ill. Rev. Stat. ch 38, § 1005-8-1 (1978). The referenced
aggravating factors were those listed in the death
penalty provision. Thus, under Illinois law in effect at the
time of Mack’s trial, if a jury found that no aggravating
factors existed beyond a reasonable doubt, a defendant
would be spared the death penalty. But the trial court
could then find by a preponderance of the evidence that
an aggravating factor did exist and use that finding to
sentence the defendant to natural life imprisonment.
  The aggravating factor in dispute at Mack’s original
trial was the felony murder provision, and the only part
of that factor under dispute was whether “the defendant
killed the murdered individual intentionally or with the
knowledge that the acts which caused the death created a
strong probability of death or great bodily harm to the
murdered individual or another.”
  During the guilt phase of Mack’s 1981 trial, the court
found beyond a reasonable doubt that Mack killed Mr.
Kolar intentionally and with the knowledge that shooting
a gun at Mr. Kolar created a strong probability of death
22                                                  No. 06-3257

or great bodily harm, as alleged in the indictment. The
Illinois supreme court affirmed that finding. Illinois law
gave Mack the right to have a second trier of fact at the
death penalty eligibility stage consider again whether
the murder was intentional or committed with knowl-
edge that the acts created a strong probability of death,
even when those facts had been found beyond a reason-
able doubt in the guilt phase of the trial. The law thus
created the possibility of inconsistent verdicts at the
guilt and sentencing phases of a trial, a prospect that
ultimately was realized in Mack’s case.
  The question here is whether the 2001 sentencing court
violated the principles of Apprendi when it sentenced
Mack to an enhanced prison term in excess of forty
years even though no jury had found beyond a reason-
able doubt that any of the appropriate aggravating
factors were present. Indeed, as Mack points out, a jury
had just concluded that it could not find beyond a rea-
sonable doubt that an aggravating factor existed, a con-
clusion that directly contradicted the 1981 trial court’s
finding that the murder was intentional and knowing.
Mack argues that, because he refused to waive his right
to a jury for sentencing purposes, he is entitled to have
the facts relevant to his sentence determined by a jury
under Apprendi.2 If the 1981 trial court’s findings on guilt



2
  Mack’s Apprendi challenge is based entirely on the contention
that no jury found that he committed the murder with the
requisite state of mind. He has not raised an Apprendi chal-
lenge to any of the other factual elements that must be proved to
apply an enhanced sentence. For example, in order for the
aggravating factor defined by section 9-1(b)(6) to be proved, the
                                                    (continued...)
No. 06-3257                                                     23

were adequate to support the enhanced sentence of
natural life, Mack contends, then his jury waiver was not
knowing and voluntary. We turn to Apprendi.
  In Apprendi, the Supreme Court considered whether the
Due Process Clause of the Fourteenth Amendment re-
quires that a factual determination authorizing an in-
crease in the maximum prison sentence for an offense be
made by a jury on the basis of proof beyond a reasonable
doubt. Apprendi, 530 U.S. at 468. The defendant in that
case, Charles Apprendi, fired bullets into the home of an
African-American family that had recently moved into
an all-white neighborhood. He was charged with
shootings on four different dates as well as unlawful
possession of various weapons, but none of the charges
alleged that Apprendi acted with racial bias. Apprendi
pled guilty to some of the charges, but the prosecution
reserved the right to request an enhanced sentence
(amounting to ten years more than the maximum would


2
   (...continued)
government must show that the defendant was at least eighteen
years old, that the murdered individual was killed in the
course of another felony, and that the victim was actually killed
by the defendant and not by another party to the crime. The
indictment does not specify Mack’s age and does not allege
whether Mack or one of his co-defendants actually pulled the
trigger but Mack has waived any challenge to the manner in
which the court determined those facts. In any case, Mack
testified at the 2001 death eligibility hearing that he was the
shooter and that he shot Mr. Kolar in the course of robbing the
bank. Mack did not challenge the presentence investigation
report that listed his date of birth as Sept. 4, 1955, and thus the
uncontested record indicates that he was twenty-four years old
at the time of the murder.
24                                                 No. 06-3257

otherwise be) under the state’s hate crimes law on the
ground that one of the shooting counts was committed
with a biased purpose. The trial court held a hearing to
determine whether Apprendi committed the shooting
with a racially biased purpose and concluded by a pre-
ponderance of the evidence that the crime was in fact
motivated by racial bias. The court therefore enhanced
Apprendi’s sentence. Apprendi challenged the enhance-
ment, arguing that the Due Process Clause requires that
the finding of bias upon which the enhanced sentence
was based must be proved to a jury beyond a reasonable
doubt. Apprendi, 530 U.S. at 468-70. The Apprendi Court
agreed and held:
     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.
530 U.S. at 490.
  The statutory maximum for murder in Illinois is forty
years’ imprisonment unless “the murder was accompanied
by exceptionally brutal or heinous behavior indicative
of wanton cruelty” or any of the aggravating factors are
found to exist. Ill. Rev. Stat. Ch. 38, § 1005-8-1(a)(1) (1979).
For Apprendi purposes, the relevant statutory maximum
is “the maximum sentence a judge may impose solely on
the basis of the facts reflected in the jury verdict or admitted
by the defendant.” Blakely v. Washington, 542 U.S. 296, 303
(2004) (emphasis in original). See also Cunningham v.
California, 549 U.S. 270, ___, 127 S. Ct. 856, 868 (2007). Mack
concedes that the 1981 trial court found beyond a rea-
sonable doubt in the guilt phase of his trial that Mack
possessed the state of mind necessary to apply the aggra-
vating factor for felony murder. But because he reserved
No. 06-3257                                                 25

the right to have a jury determine the facts necessary to
set his sentence, he contends that Apprendi required the
state court to submit the question of his mens rea to a
jury. The State did so and the jury’s verdict conflicted
with the 1981 trial court’s finding on Mack’s state of mind.
   Although Mack was entitled to this extra step under
Illinois procedural law (at least in the death penalty
context), Apprendi does not require it. All that Apprendi
requires is that Mack be found guilty beyond a reason-
able doubt of every element of the crime with which he
was charged. Apprendi, 530 U.S. at 477. Those findings
must be made by a jury unless the defendant has waived
his right to a jury. See Jones v. Hulick, 449 F.3d 784, 790-91
(7th Cir. 2006), cert. denied, 127 S. Ct. 940 (2007) (where the
defendant waived his right to a jury at all stages of the
proceedings, and the trial judge’s finding of guilt beyond
a reasonable doubt during the guilt phase of the trial
encompassed fact-findings supporting an aggravating
factor, an enhanced sentence based on that aggravating
factor does not violate Apprendi). See also White, 454 F.3d
at 706 (a guilty plea does not waive challenges to a sen-
tence imposed after the plea is accepted unless the de-
fendant consents to judicial fact-finding). Cf. United States
v. Brough, 243 F.3d 1078, 1079-80 (7th Cir. 2001) (“It
makes no constitutional difference whether a single
subsection covers both elements and penalties, whether
these are divided across multiple subsections . . . , or even
whether they are scattered across multiple statutes[.]”
Under Apprendi, the jury is the right decisionmaker
unless the defendant elects a bench trial, and the reason-
able doubt standard is the proper burden when a fact
raises the maximum lawful punishment). Mack’s state of
mind at the time of the murder was both an element of
26                                              No. 06-3257

the crime and part of the aggravating factor sentencing
scheme, and Illinois law thus put the same question at
issue twice. The Constitution, however, does not require
the State to prove Mack’s state of mind twice. Once
was enough for federal purposes. Mack waived his right
to a jury for the guilt phase of the trial, where his state
of mind was at issue and was determined beyond a
reasonable doubt by the trial court. That finding was
affirmed by the Illinois supreme court, and Mack never
challenged any findings made during the guilt phase of
his trial. For federal constitutional purposes, he thus
waived his right to have a jury determine his state of
mind, and there was no Apprendi violation. This is so
because no additional fact-findings beyond those made
in the guilt phase (or conceded by the defendant) were
necessary to impose a sentence of natural life.
  Mack contends that he did not understand his waiver
to be so broad. Because Illinois law allowed the second
bite at the mens rea apple for sentencing purposes, he
claims he did not knowingly and voluntarily waive his
right to have a jury determine the facts necessary to
prove the aggravating factor. But this argument is soph-
istry. At the time Mack waived his right to have a jury
determine his guilt, the trial judge was responsible for
any fact-findings necessary to impose a sentence other
than death. Unless Mack anticipated the holding of
Apprendi by more than twenty years, and unless Apprendi
gives Mack the right to have two triers of fact determine
his state of mind (and we have just concluded it does not),
he received the deal for which he bargained. That is,
under Illinois law at the time, because he waived his
right to a jury trial at the guilt phase, he waived his right
to have a jury determine his state of mind for any sen-
No. 06-3257                                             27

tence other than death. As it turned out, that limited
waiver saved Mack’s life when the 2001 jury could not
agree that an aggravating factor exists. The waiver as we
apply it today is no broader than the waiver Mack signed
nearly thirty years ago.
   In sentencing Mack to natural life in prison, the 2001
trial court assumed it needed to find that the murder
was accompanied by exceptionally brutal or heinous
behavior or that one of the aggravating factors existed
(specifically, the court found that Mr. Kolar was
actually killed by Mack and that Mack killed Mr. Kolar
with knowledge that the acts which caused the death
created a strong probability of death). The court made
its findings by a preponderance of the evidence. If the
natural life sentence was founded solely on the findings
of the 2001 trial court, the sentence likely would violate
the principle of Apprendi. See Cunningham, 127 S. Ct. at
868 (because California’s determinate sentencing law
requires the judge to find additional facts, facts that are
expressly not elements of the charged offense, by a pre-
ponderance of the evidence before applying an aggra-
vating circumstance sentence enhancement, the scheme
violates Apprendi). But the 1981 trial court had already
concluded beyond a reasonable doubt that Mack acted
intentionally and with knowledge that the acts which
caused Mr. Kolar’s death created a strong probability of
death. Because Mack waived his right to have a jury
make the mens rea findings in the guilt phase of his trial
in 1981, and because Mack has conceded the other facts
relevant to a natural life sentence (including his age, the
fact that he was the shooter, and the fact that the mur-
der occurred in the course of an armed robbery), the 2001
trial court did not violate the principle of Apprendi in
28                                             No. 06-3257

sentencing Mack to a term of natural life based on those
same findings. We may not grant habeas relief unless
the state court’s adjudication of the claim resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established federal law, as deter-
mined by the Supreme Court, or resulted in a decision
that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court
proceeding. The state court’s adjudication of Mack’s
sentencing claim does not violate the principles of
Apprendi; nor was it based on an unreasonable deter-
mination of the facts. Therefore we decline to grant Mack
the requested relief. Because we have not deferred to
Justice Hartigan’s opinions in reaching this conclusion,
we find it unnecessary to address Mack’s claim that
Justice Hartigan’s participation in deciding his appeal
violated his Fourteenth Amendment right to due pro-
cess. Nor is it necessary to address Mack’s arguments
regarding double jeopardy because, under our holding,
there will be no need to hold another sentencing hearing.
                                                A FFIRMED.




                   USCA-02-C-0072—6-18-08
