In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2417
H ENRY K ACZMAREK,
Petitioner-Appellant,
v.
D AVE R EDNOUR, Warden 1 ,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 C 06126—Wayne R. Andersen, Judge.
A RGUED S EPTEMBER 7, 2010—D ECIDED N OVEMBER 17, 2010
Before F LAUM, R OVNER, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. Henry Kaczmarek was convicted
of murder in Illinois state court in 1996. At that time,
the maximum sentence for murder in Illinois was forty
1
The current warden at Menard Correctional Center, where
Kaczmarek currently is confined, is Dave Rednour. Accordingly,
Rednour is substituted for Donald Gaetz as a party pursuant to
Fed. R. App. P. 43(c).
2 No. 09-2417
years, with the possibility of a sentence enhancement up
to natural life if the crime was determined to be “ac-
companied by exceptionally brutal and heinous behavior
indicative of wanton cruelty.” 730 ILCS § 5/5-8-1(a)(1)(b).
Kaczmarek was sentenced to life in prison based on the
trial court’s finding that the murder was exceptionally
brutal and heinous. After exhausting his appeals in the
Illinois state court system, Kaczmarek petitioned the
district court for a writ of habeas corpus, contending that
Apprendi v. New Jersey, 530 U.S. 466 (2000), entitled him
to have a jury decide the factual issue underlying
the sentence enhancement. The district court denied
Kaczmarek’s petition, but granted a Certificate of Appeal-
ability.
For the following reasons, we affirm.
I. Background
On October 16, 2007, Kaczmarek filed a petition for a
writ of habeas corpus, challenging the constitutionality
of his custody in the Menard Correctional Center, where
he is serving a sentence of natural life for his state
court conviction of first-degree murder. Kaczmarek
contends that, under Apprendi, the trial court violated
his Sixth Amendment rights by imposing the extended-
term sentence without submitting the underlying
factual issue to a jury. Our review is controlled by the
restrictive standards set forth in the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). See
28 U.S.C. § 2254. Under the AEDPA, state court factual
No. 09-2417 3
findings that are reasonably based on the record are
presumed correct, and the petitioner bears the burden
of rebutting that presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283
F.3d 842, 845 (7th Cir. 2002). The following summary of
the facts is based on the Illinois Supreme Court’s factual
findings, which Kaczmarek does not challenge.
A. Factual Background
In 1987, Kaczmarek broke into the apartment of 86-
year-old Millie Nielsen. Kaczmarek stabbed, beat, and
strangled Nielsen in the course of an attack that started
in Nielsen’s kitchen and concluded in her bedroom.
Kaczmarek stole items of minimal value from the apart-
ment, and was later apprehended while in possession
of some of Nielsen’s bloodstained personal belongings.
At the time of his arrest, the shirt that Kaczmarek was
wearing had bloodstains on it. Bloodstained jeans were
found in the trunk of his car. At Kaczmarek’s trial, a
witness testified that, on the night of the murder, he
saw Kaczmarek carrying a bag through the backyard of
Nielsen’s apartment building and placing it in the trunk
of his car before driving away.
An expert in serology and DNA analysis, Pamela Fish,
testified that the blood found on Kaczmarek’s jacket
and jeans was consistent with Nielsen’s blood type and
could not have come from Kaczmarek himself. Rod
Englert, an expert in crime scene reconstruction and
blood splatter, reviewed the physical evidence and crime
scene photographs. He testified that blood smears on the
4 No. 09-2417
kitchen floor indicated a struggle in that area, and
that blood splatter on the kitchen wall suggested that
Nielsen had received numerous blows while on the
kitchen floor. Englert also testified that the stains on
Kaczmarek’s clothing were not consistent with the de-
fendant having picked up a bag with blood on it or a
bag having been placed on top of the clothing. Finally,
he stated the stains were not consistent with Kaczmarek
having kneed another person in the nose.
Kaczmarek testified in his own defense, offering an
explanation for the blood on his clothes and his posses-
sion of Nielsen’s belongings. He stated that he had
been involved in three fights on the night of Nielsen’s
murder, and suggested that the blood on his clothing
came from one or more of those altercations. Kaczmarek
testified that, in one of the fights, he struck a man who
was attempting to break into his car three or four times
in the face, and kneed the man in the nose. Kaczmarek
also testified that he found a bag containing items
taken from Nielsen’s apartment next to her apartment
building, and carried it to the trunk of his car. Based
on that evidence, the jury found Kaczmarek guilty of
murder.
B. Procedural History
The statutory maximum for murder at the time of
Kaczmarek’s conviction was forty years, with the possi-
bility of a sentence enhancement up to natural life if
the crime was determined to be “accompanied by excep-
tionally brutal and heinous behavior indicative of wanton
No. 09-2417 5
cruelty.” 730 ILCS § 5/5-8-1(a)(1)(b). The trial judge found
that the crime was brutal and heinous and enhanced
Kaczmarek’s sentence to a term of natural life. The judge
made that determination without the assistance of the jury.
After Kaczmarek’s trial, but before his direct appeal, the
Supreme Court issued its decision in Apprendi, holding that
any fact that increases the maximum punishment for a
crime must be determined by a jury. Kaczmarek argued
that his sentence violated Apprendi in his appellate brief.
On December 27, 2000, the Illinois Appellate Court
upheld Kaczmarek’s conviction but vacated his sentence,
finding that the trial judge violated Apprendi by making his
own factual finding on the question of whether
Kaczmarek’s crime was exceptionally brutal and heinous.
The State appealed the vacated sentence, and on October 2,
2003, the Illinois Supreme Court reinstated Kaczmarek’s
sentence of natural life. People v. Kaczmarek, 798 N.E.2d 713
(Ill. 2003). The Illinois Supreme Court found that
Kaczmarek’s sentence violated Apprendi because the trial
judge, and not a jury, made the finding that provided the
basis for the sentence enhancement. Id. at 722. However,
because Kaczmarek did not object at the time of sentencing
as required by Illinois law, the court applied plain error
review to determine whether resentencing was warranted.
Id. The court concluded that Kaczmarek could not demon-
strate that the Apprendi violation was prejudicial, as he
must under plain error analysis, because his conduct
“qualifie[d] as exceptionally brutal and heinous behavior
indicative of wanton cruelty under any definition.” Id. In
particular, the court found that Kaczmarek’s “senseless,
vicious murder of [an] elderly woman, effected by means
6 No. 09-2417
of beating, stabbing and strangling, in order to perpetrate
a robbery that could have been easily accomplished
without killing her, undoubtedly qualifie[d] as excep-
tionally brutal and heinous behavior,” and that “[t]he
manner of the murder clearly indicate[d] that the defen-
dant consciously inflicted unnecessary mental and
physical suffering on his victim, indicative of wanton
cruelty.” 798 N.E.2d at 723. The court further concluded
that “a jury, presented with these facts, would have
found that the crime was committed in a brutal and
heinous manner, indicative of wanton cruelty.” Id. The
United States Supreme Court denied Kaczmarek’s
petition for a writ of certiorari on February 23, 2004.
Kaczmarek next filed a petition for post-conviction
relief in Illinois state court. That petition, which raised
issues not presented in this appeal, was dismissed on
June 14, 2004. The Illinois Appellate Court affirmed the
dismissal on November 16, 2006, and the Illinois
Supreme Court denied Kaczmarek’s petition for leave
to appeal on May 31, 2007.
On October 16, 2007, Kaczmarek filed a petition for a
writ of habeas corpus, raising seven arguments, including
that his sentence enhancement is unconstitutional
under Apprendi. In an opinion dated February 9, 2009, the
district court granted habeas relief on Kaczmarek’s
claim that his natural life sentence violated Apprendi,
finding that subjective judgments—such as whether the
“heinous and brutal conduct” requirement was met—could
not be subject to plain error review. The district court
denied habeas relief as to Kaczmarek’s other claims.
No. 09-2417 7
Respondent filed a motion to reconsider, which the
district court granted on April 21, 2009, reasoning that the
Illinois Supreme Court’s decision in this case did not
represent an unreasonable application of Apprendi and
its progeny, such that habeas relief was unavailable
under 28 U.S.C. § 2254(d)(1). The district court denied
the habeas petition in full, and sua sponte granted a certifi-
cate of appealability on the Apprendi issue. Kaczmarek
timely appealed.
II. Discussion
We review the district court’s denial of a habeas peti-
tion de novo. Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th
Cir. 2008). Under the AEDPA, an application for a writ
of habeas corpus “shall not be granted with respect to
any claim that was adjudicated on the merits in State
court proceedings” unless the state court decision (1) “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “was based
on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2). Kaczmarek invokes 28 U.S.C.
§ 2254(d)(1) and argues that the decision of the
Illinois Supreme Court was contrary to clearly estab-
lished Supreme Court precedent.
Before we can reach the merits of Kaczmarek’s claim,
we must consider the State’s contention that we are
precluded from doing so because the Illinois Supreme
Court’s decision rests on an adequate and independent
8 No. 09-2417
state procedural ground. In other words, that the
Apprendi claim is procedurally defaulted.
A. Procedural Default
The State contends that the Illinois Supreme Court
resolved Kaczmarek’s Apprendi claim based on Illinois’s
waiver doctrine, under which the failure to contempora-
neously object to a sentencing error constitutes a pro-
cedural bar to state court review absent plain error. See
People v. Hall, 743 N.E.2d 521, 547-48 (Ill. 2000). When a
state court resolves a federal claim by relying on a state
law ground that is both independent of the federal ques-
tion and adequate to support the judgment, federal
habeas review of the claim is foreclosed. Woods v. Schwartz,
589 F.3d 368, 373 (7th Cir. 2009); Coleman v. Thompson,
501 U.S. 722, 729 (1991). The state law ground relied on
by the state court can be procedural, in which case the
claims are “commonly referred to as being procedurally
defaulted.” Woods, 589 F.3d at 373. Thus, when a state
court refuses to reach the merits of a petitioner’s federal
claims because they were not raised in accord with the
state’s procedural rules (i.e., because the petitioner failed
to contemporaneously object), that decision rests on
independent and adequate state procedural grounds.
See Woods, 589 F.3d at 373; Gray v. Hardy, 598 F.3d 324,
329 (7th Cir. 2010). A federal court on collateral review
will not entertain a procedurally defaulted constitutional
claim unless the petitioner can establish cause and preju-
dice for the default or that the failure to consider the
No. 09-2417 9
claim would result in a fundamental miscarriage of
justice. Johnson v. Loftus, 518 F.3d 453, 455 (7th Cir. 2008).
In the habeas context, the application of the inde-
pendent and adequate state ground doctrine, of which
a procedural default is an instance, is not jurisdictional.
Trest v. Cain, 522 U.S. 87, 89 (1997). Rather, grounded in
concerns of comity and federalism, it “ensures that the
States’ interest in correcting their own mistakes is re-
spected in all federal habeas cases.” Coleman, 501 U.S. at
731-32. Procedural default is considered an affirmative
defense that the State must raise and preserve to avoid
waiver. See Trest, 522 U.S. at 89; Perruquet v. Briley, 390
F.3d 505, 515 (7th Cir. 2004). Generally, a party must
plead affirmative defenses, such as procedural default,
in its answer to properly preserve them. See F ED. R. C IV.
P. 8(c); Robinson v. Johnson, 313 F.3d 128, 137 (3d Cir. 2002)
(“affirmative defenses under the AEDPA [must be]
pleaded in the answer . . . [or] raised at the earliest prac-
ticable moment thereafter”); Morrison v. Mahoney, 399
F.3d 1042, 1046 (9th Cir. 2005) (“the defense of pro-
cedural default should be raised in the first responsive
pleading in order to avoid waiver”).
With these principles in mind, we consider the
threshold question of whether the Illinois Supreme
Court rejected Kaczmarek’s Apprendi claim on an inde-
pendent and adequate state ground. A state law ground
is independent when the court actually relied on the
procedural bar as an independent basis for its disposi-
tion of the case. Smith v. McKee, 598 F.3d 374, 382 (7th Cir.
2010). Here, in resolving the Apprendi claim, the court
10 No. 09-2417
noted that Kaczmarek had failed to object to his sentence
in the trial court, and concluded that plain error did
not excuse Kaczmarek’s forfeiture because he could not
demonstrate prejudice. The court relied on its earlier
decision in People v. Crespo, 788 N.E.2d 1117, 1124 (Ill. 2001),
in which it first applied plain error review to an
Apprendi violation to which a defendant did not object
at the time of trial. Thus, the state court resolved the
Apprendi claim by applying the state’s waiver doctrine,
and the test for independence is met. See Gray, 598 F.3d
at 329.
Kaczmarek disagrees, arguing that the state Supreme
Court reached the merits of his Apprendi claim. We con-
sistently have held that where a state court reviews a
federal constitutional claim for plain error because of a
state procedural bar (here, the doctrine of waiver), that
limited review does not constitute a decision on the
merits. See id. (citing cases). As Kaczmarek notes, in
Crespo, on which the state court relied in this case, the
Illinois Supreme Court cited a number of federal cases
in concluding that the Apprendi violation in that case
did not constitute plain error. 788 N.E.2d at 1124-25. But,
as the Illinois Supreme Court explained in People v.
Herron, 830 N.E.2d 467, 479 (Ill. 2005), the Crespo opinion
referred to the plain-error standard set forth in United
States Supreme Court cases only because the Illinois
and federal plain error standards are similar, not
because it was applying federal law.
A state law ground is adequate when it is a firmly
established and regularly followed state practice at the
No. 09-2417 11
time it is applied. Smith, 598 F.3d at 382. Kaczmarek does
not argue that the waiver rule is not an adequate
ground for the Illinois Supreme Court’s decision not to
reach the merits of his Apprendi claim. The contempora-
neous objection requirement appears to have been firmly
established and regularly followed in 1996. See People
v. Mahaffey, 651 N.E.2d 1055 (Ill. 1995); People v. Hampton,
594 N.E.2d 291 (Ill. 1992); People v. Guest, 503 N.E.2d 255
(Ill. 1986); People v. Devin, 444 N.E.2d 102 (Ill. 1982). There-
fore, we conclude that the waiver rule also was an ade-
quate state law ground. See Gray, 598 F.3d at 329 (Illinois
waiver doctrine constitutes independent and adequate
state ground where petitioner failed to object to
Apprendi error at sentencing).
Therefore, Kaczmarek’s Apprendi claim is procedurally
defaulted. Normally, our next inquiry is whether
Kaczmarek can avoid that default by showing cause and
prejudice or the potential for a miscarriage of justice.
However, here, the State belatedly raised procedural
default for the first time in its motion to reconsider,
and Kaczmarek claims that the State’s actions amounted
to an implicit waiver of the defense. While the State
should have raised the defense in a more timely
fashion, under the facts and circumstances of this case,
we cannot conclude that the State waived the defense.
In its answer, the State asserted a procedural default
defense as to some of Kaczmarek’s claims, but not as to
his Apprendi claim. Instead, the State addressed the
merits of that claim, arguing that the state court’s deci-
sion to apply a plain error standard, and its determina-
12 No. 09-2417
tion that there was no plain error, was not contrary to or
an unreasonable application of clearly established Fed-
eral law, and was not based on an unreasonable deter-
mination of the facts.2 Under similar circumstances—where
the State did not raise procedural default and instead
responded to a habeas claim on its merits—we have
held that the State implicitly waived the defense. See
Bonner v. DeRobertis, 798 F.2d 1062, 1066 & n.3 (7th Cir.
1986) (concluding that the State implicitly waived pro-
cedural default defense by addressing the merits of the
claim and not arguing procedural default in the district
2
On appeal, the State contends that it did not address the
merits of the Apprendi claim in its answer because it did not
argue that no Apprendi error occurred. But the State applied the
AEDPA standard of review articulated in 28 U.S.C. § 2254(d),
which is the standard used to evaluate the merits of a habeas
application. See Woodford v. Garceau, 538 U.S. 202, 206 (2003)
(“AEDPA in general and § 2254(d) in particular focus in large
measure on revising the standards used for evaluating the
merits of a habeas application”); Horn v. Banks, 536 U.S. 266,
269 (2002) (stating that the district court “rejected respondent’s
Mills claim on the merits” where it applied “the AEDPA
standard of review articulated in 28 U.S.C. § 2254(d)”). More-
over, in its answer, the State itself characterized its response to
the claim as being merits-based. In particular, the State’s
response to the Apprendi claim appeared under the heading
“merits,” and the State asserted that “[t]he Illinois Supreme
Court resolved petitioner’s claim on the merits, so review of that
claim is governed by 28 U.S.C. § 2254(d).” Plainly, the State
addressed the merits of Kaczmarek’s Apprendi claim in its
answer.
No. 09-2417 13
court or on appeal); Buggs v. United States, 153 F.3d 439,
444 (7th Cir. 1998) (government waived procedural
default defense where it did not argue that petitioner
procedurally defaulted claim and instead argued that
the claim was meritless). And we have suggested that a
State may implicitly waive the contention that a claim is
procedurally defaulted by addressing the merits of that
claim “while asserting that another is procedurally
barred.” Perruquet, 390 F.3d at 516; see also Lewis v. Sternes,
390 F.3d 1019, 1029 (7th Cir. 2004) (“One might infer
that the State has implicitly waived a procedural default
defense when it has asserted that defense as to some
of the petitioner’s claims but not as to the particular
claim in question.”). Finally, we have refused to address
a procedural default argument that is raised for the
first time on appeal where the State affirmatively took
the position that the claim was not defaulted in the
district court. Cossel v. Miller, 229 F.3d 649, 653 (7th Cir.
2000) (“[a] litigant that fails to present an argument to
the district court cannot rely on that argument in the
court of appeals, and this rule certainly encompasses a
litigant that adopts a position on appeal that is contrary
to its position in the district court.”).
However, an important fact distinguishes this case
from cases in which we have found implicit waiver.
Here, the State raised procedural default before the
district court in a motion for reconsideration. The parties
fully briefed the issue in connection with that motion.
Therefore, not only was the procedural default argument
presented to the district court—albeit in an untimely
fashion—but Kaczmarek was on notice that procedural
14 No. 09-2417
default could be an issue on appeal. Moreover, he took
the opportunity to argue against the application of the
bar in his reply brief.
In this context, waiver means the intentional relinquish-
ment of a known right, not merely the failure to timely
assert a right, which is properly referred to as forfeiture.
Perruquet, 390 F.3d at 517; see also United States v. Wesley,
422 F.3d 509, 520 (7th Cir. 2005) (“A forfeiture is
basically an oversight; a waiver is a deliberate decision
not to present a ground for relief that might be available
in the law.”). Here, it appears that the State initially
misread the state court’s decision as addressing the
merits of the Apprendi claim. Only later did the State
recognize that the state court’s review of the claim for
plain error did not constitute a decision on the merits, but
rather rested on state procedural grounds. While the
State should have raised its default argument more
promptly, its conduct does not evince an intent to waive
the procedural default defense. Therefore, under the
facts of this case, we cannot conclude that the State
waived the procedural default defense.
While the district court chose not to address the State’s
procedural default argument, we find that doing so
here is appropriate. Perruquet, in which the State had
forfeited (but not waived) the procedural default defense
by raising it for the first time on appeal, is instructive.
As in that case, a number of factors persuade us to
reach the procedural default defense here. 390 F.3d at
518. First, the procedural default is clear—Kaczmarek
did not object at sentencing, and, because of that failure
No. 09-2417 15
to comply with state procedural rules, the state court
reviewed his claim for plain error. That review did not
constitute adjudication on the merits, and consequently
did not cure Kaczmarek’s default. Miranda v. Leibach, 394
F.3d 984, 992 (7th Cir. 2005). Second, because “no Illinois
court was ever given the opportunity to pass on the
merits of [Kaczmarek’s] constitutional claim, comity and
federalism principles weigh strongly against permitting
[Kaczmarek] to assert the claim in federal court.” Perruquet,
390 F.3d at 518. Third, absent procedural default, we
would address the merits of Kaczmarek’s claim de novo,
resulting in a windfall to Kaczmarek for failing to
properly object. For these reasons, and because the
State’s waiver was unintentional and Kaczmarek had an
opportunity to address the issue, we will entertain the
State’s procedural default defense.3
3
While we conclude that addressing the procedural default
defense is appropriate under the circumstances of this case, we
note that the question of waiver could have been avoided
had the State not misconstrued the basis for the Illinois
Supreme Court’s decision in the first instance. As we pre-
viously have noted, habeas corpus law “is subtle and intricate;
mistakes are easy to make. But it is a body of law of which the
lawyers employed by a state attorney general should be
masters. Failing to achieve such mastery, they should not
blame federal judges for springing dangerous criminals free to
prey on the citizenry whose safety the attorney general is
sworn to protect.” Fagan v. Washington, 942 F.2d 1155, 1157
(7th Cir. 1991).
16 No. 09-2417
B. Cause and Prejudice
Having concluded that Kaczmarek’s Apprendi claim
is procedurally defaulted, we cannot revisit the Apprendi
issue unless Kaczmarek can establish cause and preju-
dice for the default, or the potential for a miscarriage of
justice. Kaczmarek does not argue that he can meet
these standards. Moreover, our precedents clearly estab-
lish that the fact that Kaczmarek was sentenced before
Apprendi was decided does not establish cause, as “an
Apprendi-like objection was available to defendants even
before the Supreme Court issued its decision, and,
indeed, defendants began making the argument soon
after the federal sentencing guidelines came into being.”
Gray, 598 F.3d at 330; see also Valenzuela v. United States,
261 F.3d 694, 700 n.2 (7th Cir. 2001) (“the novelty of
Apprendi does not constitute cause for failing to raise
the issue earlier because ‘the foundation for Apprendi
was laid long before 1992’ ”) (citing Garrott v. United States,
238 F.3d 903, 905 (7th Cir. 2001)). Because Kaczmarek
has not established cause and prejudice, we cannot con-
sider his Apprendi claim. See, e.g., Crockett v. Hulick, 542
F.3d 1183, 1193 (7th Cir. 2008); Todd, 283 F.3d at 849.
C. Defective Indictment Claim
Kaczmarek also contends that his sentence violated
Apprendi because his indictment did not charge that he
was potentially eligible for a sentence enhancement for
brutal or heinous conduct. According to Kaczmarek,
Apprendi requires facts that increase the maximum
No. 09-2417 17
penalty for a crime to be charged in the indictment.
Kaczmarek included this argument in the habeas peti-
tion filed in the district court, summarizing his second
claim as asserting that his sentence violated Apprendi, “in
which the U.S. Supreme Court held that facts that
increase the prescribed range of penalties must be
charged in the indictment, submitted to the jury, and
proved beyond a reasonable doubt.” However, the
district court appears to have overlooked the argument,
as it did not address the indictment issue. Nor did the
Illinois Supreme Court address the issue, although
Kaczmarek briefed the issue in that court. “The matter
of what questions may be taken up and resolved for the
first time on appeal is one left primarily to the discretion
of the courts of appeals, to be exercised on the facts of
individual cases.” Singleton v. Wulff, 428 U.S. 106, 121
(1976); see also Sprosty v. Buchler, 79 F.3d 635, 645-46 (7th
Cir. 1996). We will entertain the claim because
Kaczmarek preserved the issue, the issue has been fully
briefed, and—because we conclude that the claim is
meritless—it is in the interest of judicial economy that
we address it.
Kaczmarek’s claim is based on a misreading of Apprendi.
In Apprendi, the Court held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for
a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a rea-
sonable doubt.” 530 U.S. at 490. The Apprendi Court
noted that its decision was foreshadowed by Jones v.
United States, 526 U.S. 227, 243 n.6 (1999), in which it
held that, in the context of federal prosecutions, “any
18 No. 09-2417
fact (other than prior conviction) that increases the maxi-
mum penalty for a crime must be charged in an indict-
ment, submitted to a jury, and proved beyond a
reasonable doubt.” However, in Apprendi, the Court
expressly refused to address whether facts that increase
the maximum penalty must be charged in the indict-
ment in state prosecutions, as that question was not
before it. 530 U.S. at 477 n.3. Thus, under current
Supreme Court precedent, such aggravating facts must
be charged in the indictment in federal prosecu-
tions only. See United States v. Cotton, 535 U.S. 625, 627
(2002) (under Apprendi and Jones, “[i]n federal
prosecutions, . . . facts [that increase the penalty for a
crime beyond the prescribed statutory maximum] must
also be charged in the indictment”); see also Williams v.
Haviland, 467 F.3d 527, 532-33 (6th Cir. 2006) (reversing
grant of habeas petition where district court erroneously
concluded that Apprendi recognized a right to have sen-
tence enhancements charged in the indictment).
Kaczmarek relies on our decision in United States v.
Watts, 256 F.3d 630, 631, n.2 (7th Cir. 2001), in which we
noted that we have “read Apprendi to require that certain
facts must be charged in the indictment, as well as sub-
mitted to a jury and proven beyond a reasonable
doubt.” However, Watts, and the cases cited therein,
involved federal prosecutions. Kaczmarek cites no case
in which a court has interpreted Apprendi to require
that sentence enhancements be charged in state prosecu-
tions.
On appeal, Kaczmarek characterizes his indictment
claim as alleging a violation of his Sixth Amendment
No. 09-2417 19
right to notice of the charges against him. The Sixth
Amendment guarantees a criminal defendant the funda-
mental right to be informed of the nature and cause of
the charges made against him so as to permit adequate
preparation of a defense. See U.S. C ONST. amend. VI (“In
all criminal prosecutions, the accused shall enjoy the
right . . . to be informed of the nature and cause of the
accusation. . . .”); Cole v. Arkansas, 333 U.S. 196, 201 (1948)
(“It is as much a violation of due process to send an
accused to prison following conviction of a charge on
which he was never tried as it would be to convict him
upon a charge that was never made.”); Bae v. Peters, 950
F.2d 469, 477 (7th Cir. 1991) (“a criminal defendant
must receive adequate notice of the charges against him
so that he may defend himself against those charges”).
This right to notice is applicable to the states through
the due process clause of the Fourteenth Amendment.
See Cole, 333 U.S. at 201 (“No principle of procedural
due process is more clearly established than that notice
of the specific charge, and a chance to be heard in a trial
of the issues raised by that charge, if desired, are among
the constitutional rights of every accused in a criminal
proceeding in all courts, state or federal.”).
We need not consider whether Kaczmarek could estab-
lish a Sixth Amendment right to notice claim because
such a claim is distinct from an Apprendi claim. See Gautt
v. Lewis, 489 F.3d 993, 1005 & n.12 (9th Cir. 2007).
Kaczmarek did not present an independent right-to-
notice claim to the district court, and consequently he
has forfeited his ability to raise it for the first time on
appeal. Pole v. Randolph, 570 F.3d 922, 940 (7th Cir. 2009)
20 No. 09-2417
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s judgment.
11-17-10