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                                                                                                                                     SIXTH DIVISION
                                                                                                                                   October 28, 2005

Petitioner Randall Weidner sought an order of habeas corpus, naming Roger Cowan,warden of the Menard Correctional Center, as defendant. Weidner alleged his extended-termsentences were unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435,120 S. Ct. 2348 (2000), and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct.2531 (2004), and he was therefore entitled to immediate release because he had served themaximum nonextended term to which he could have been sentenced. The circuit court dismissedWeidner's petition, and we affirm.

BACKGROUND

In 1981, Weidner was convicted by a jury of conspiracy to commit rape, rape, conspiracyto commit murder, and murder. The trial judge found that the offenses were accompanied byexceptionally brutal or heinous behavior indicative of wanton cruelty and sentenced Weidner toconcurrent, extended-term sentences of 80 years for murder and 60 years for rape. This courtaffirmed his conviction on appeal. People v. Visnack, 135 Ill. App. 3d 113 (1985).

Weidner filed the instant pro se petition for habeas corpus relief, arguing that hisextended-term sentences, based upon brutal or heinous behavior, were imposed in contraventionof Apprendi, which provided that other than the fact of a prior conviction, any fact that increasesthe penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury andproved beyond a reasonable doubt. Counsel was appointed for Weidner, a supplemental petitionwas filed, and argument was heard on the issues in January 2004. The circuit court dismissed thepetition, finding Apprendi did not apply retroactively to Weidner's case. Weidner timely appeals.

ANALYSIS

In People v. De La Paz, 204 Ill. 2d 426, 434 (2003), our supreme court applied the testfrom Teague v. Lane, 489 U.S. 288, 307, 103 L. Ed. 2d 334, 353, 109 S. Ct. 1060, 1073 (1989),to conclude that the rule announced in Apprendi did not apply retroactively to cases on collateralreview. Under Teague, a new rule--in derogation of the default rule--should apply retroactivelywhen it (1) places certain kinds of primary, private individual conduct beyond the power of thecriminal law-making authority to proscribe, or (2) requires the observance of those proceduresthat are implicit in the concept of ordered liberty. In De La Paz, our supreme court concludedthat Apprendi, which dealt solely with procedural, not substantive, law, did not decriminalize anyconduct. De La Paz, 204 Ill. 2d at 434. The court also concluded that because Apprendi wasabout sentencing only and came into play after a criminal defendant was already found guilty ofthe underlying crime, nonapplication of the new procedural rule neither undermined thefundamental fairness that must underlie a conviction nor seriously diminished the likelihood ofobtaining an accurate conviction. De La Paz, 204 Ill. 2d at 436-38.

Weidner maintains, however, that the holding in De La Paz "is no longer applicable"because the application of Apprendi in Blakely stated a new substantive rule, placed certainconduct beyond the State's power to punish unless the State meets its burden of proof, andannounced a watershed rule of criminal procedure.

In Blakely, where the defendant pled guilty to second degree kidnapping involvingdomestic violence and the use of a firearm, the United States Supreme Court applied the principleset forth in Apprendi to the State of Washington's sentencing guidelines. Although the Stateclassified second degree kidnapping as a Class B felony, which carried a maximum penalty of 10years' incarceration, the State's sentencing guidelines for the conduct admitted as part of the guiltyplea carried a maximum of only 53 months. The question presented was whether the statutorymaximum for Apprendi purposes was 10 years or 53 months. The Supreme Court held that 53months was the relevant maximum, because that was the maximum sentence the judge could haveimposed without finding any facts beyond those admitted in the guilty plea. Blakely, 542 U.S. at__, 159 L. Ed. 2d at 413-14, 124 S. Ct. at 2537-38.

Weidner, however, fails to explain adequately why Blakely, which is simply an applicationof Apprendi, is not bound by the De La Paz holding that Apprendi is not given retroactive effect. Although on appeal Weidner frames his argument under Blakely, his sentencing challenge isindistinguishable from an Apprendi challenge complaining about the imposition of an extended-term sentence without the facts necessary to permit such sentence having been proven to a jurybeyond a reasonable doubt. De La Paz, 204 Ill. 2d at 437; People v. Schrader, 353 Ill. App. 3d684, 690 (2004).

De La Paz controls this case, and the Illinois Supreme Court in Lucien v. Briley, 213 Ill.2d 340, 348 (2004), rejected the argument that De La Paz was wrongly decided. The Luciencourt also rejected that argument that Blakely overruled the Illinois Supreme Court's decisionsinterpreting Apprendi. Lucien, 213 Ill. 2d at 345.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

McNULTY, P.J., and TULLY, J., concur.