United States District Court, N.D. Illinois, Eastern Division
September 23, 2004.
JONATHAN PENNY, Petitioner,
The opinion of the court was delivered by: WAYNE ANDERSEN, District Judge
MEMORANDUM, OPINION AND ORDER
The case is before the Court on the petition for writ of habeas
corpus filed by Jonathan Penny pursuant to 28 U.S.C. § 2255,
challenging his conviction based on ineffective assistance of
counsel. Penny also has filed a motion for judgment on the
pleadings. The government objects to Penny's petition as untimely
and asserts that the motion for judgment on the pleadings is
improper. For the reasons set forth below, Jonathan Penny's
petition for writ of habeas corpus is dismissed, and the motion
for judgment on the pleadings is denied.
On September 10, 1993, Jonathan Penny was convicted of
conspiracy to distribute narcotics and distribution of narcotics.
Thereafter, on August 2, 1994, Penny was sentenced to a term of
imprisonment for 25 years to be followed by supervised release
for the remainder of his life. Penny filed an appeal and the
Seventh Circuit affirmed his conviction on July 26, 1995. See
United States v. Penny, 60 F.3d 1257 (7th Cir. 1995). On March
22, 1999, Penny filed a Section 2255 petition, in addition to
supplemental amendments to the petition, captioned Motion to
Vacate, Set Aside or Correct a Sentence and Supporting
I. Section 2255 Petition
In his petition, Penny claims that his attorney, Freddrenna
Lyle, provided ineffective assistance of counsel because her
primary loyalties were to Chester Slaughter, Penny's original
lawyer, rather than to Penny himself. Slaughter, Penny's
long-time lawyer, represented Penny and his wife in a civil
forfeiture proceeding related to the underlying criminal case.
Slaughter was disqualified in the forfeiture case because Andre
Jackson, a key government witness against Penny, had accused
Slaughter of offering to broker a drug deal between him and
Penny. After his disqualification, Slaughter suggested that Penny
retain Lyle, his office mate. Penny took the advice and hired
Lyle as his attorney.
Penny claims that he was unaware of the real reason for
Slaughter's disqualification from the civil forfeiture case.
According to Penny, if he had known that Slaughter was a target
in the investigation, he would not have hired Lyle. Penny claims
that Lyle, as Slaughter's office mate and law partner, allegedly
failed to present defenses and evidence at trial that would have
aided Penny's defense, because they would have implicated and led
to further investigation of Slaughter. Penny also claims that he
was unaware that the identity of "Attorney X," who was referenced
at Penny's trial by the Court, defense counsel and the
government, was in fact Slaughter. In his petition, Penny asks
the Court to find that he received ineffective assistance of
counsel because of Lyle's alleged conflict of interest.
However, the Court need not indeed it may not address the
merits of these arguments if Penny could have discovered the
underlying facts now alleged by him to support his claim for ineffective assistance of counsel by the exercise of due
diligence prior to March 22, 1998, which is one year before the
date on which Penny filed this petition.
The 1996 Antiterrorism and Effective Death Penalty Act
("AEDPA") creates a one-year statute of limitations for the
filing of federal habeas petitions. See 28 U.S.C. § 2255
(1996). The statute states, in pertinent part:
A one-year period of limitation shall apply to a
motion under this section. The limitation period
shall run from the latest of
(1) the date on which the judgment of conviction
(2) the date on which the impediment to making a
motion created by governmental action in violation of
the Constitution or laws of the United States is
removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was
initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim
or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255. For cases that were decided before the
enactment of the AEDPA, the statute has been interpreted to bar
habeas petitions that were not brought within one year of the
effective date of the AEDPA. United States v. Marsello,
212 F.3d 1005
, 1009 (7th Cir. 2000). The AEDPA was enacted on April
24, 1996. Thus, Penny should have filed his petition for writ of
habeas corpus on or before April 24, 1997 unless, of course, the
petition falls within the scope of one of the exceptions to the
application of the one-year statute of limitations. The Court held a hearing on May 3, 2004 to determine what Penny
knew about the relationship between Lyle and Slaughter and the
identity of Attorney X at the time of his trial in 1993. At the
hearing, Penny, Lyle and Penny's appellate counsel, Barry
Spevack, testified. After listening to all of the testimony of
the witnesses and the summary statements given by Penny's
attorney and the Assistant United States Attorney at the
conclusion of the hearing, this Court concludes that Penny knew
about the relationship between Slaughter and Lyle and the
identity of Attorney X at the time of the trial.
Moreover, Penny provides little explanation for how Lyle's
alleged loyalty to Slaughter would have worked to Penny's
detriment. Common sense dictates that, had Lyle been loyal to
Slaughter, she would have wanted to discredit Jackson, a result
that would have benefited both Slaughter and Penny. Penny hired
Lyle because Slaughter specifically recommended her. According to
Penny himself, he retained Lyle after Slaughter's
disqualification because Slaughter had recommended Lyle.
Obviously, Penny himself believed and was aware that there was a
close relationship between Lyle and Slaughter. Indeed, Penny
testified that at the end of each trial day, he would return to
Lyle's office, which was adjacent to Slaughter's to meet with him
to review the events at trial that day and to prepare for the
next day of trial.
When asked at the May 3, 2004 hearing why he believed that
Slaughter had been disqualified, Penny testified that Slaughter
explained that he had been disqualified because he and Penny were
"too close of friends." This explanation is not credible because,
when questioned further, Penny admits that he and Slaughter
simply had an attorney-client relationship and did not have any
greater personal relationship. Surely Penny would not have
accepted this explanation. Given the gravity of his legal position, Penny
should have, and surely did, find out the actual reason for the
disqualification at that time.
We also do not find credible Penny's testimony that he was not
aware of the identity of Attorney X at his trial or that he did
not inquire about the reference to Attorney X during his trial.
At the trial itself, if not earlier, Penny certainly became aware
of Jackson's allegations regarding Slaughter. We find credible
Lyle's testimony at the hearing that she told Penny about the
reference to Attorney X and that Attorney X was, in fact,
Slaughter. Indeed, the government had provided Lyle with all of
Jackson's statements about Slaughter in its discovery disclosures
and pretrial submissions, and Lyle testified that she discussed
all of that material with Penny. In addition, in her opening
statement which was given in front of Penny himself at the
criminal trial in 1993, Lyle specifically stated that Jackson was
going to lie about Penny's previous attorney. While Lyle did not
mention Slaughter by name, Penny surely had to know about whom
she spoke. Also, when Jackson later testified, he accused
Attorney X of trying to broker a drug deal between himself and
Penny. Based on this, it is the conclusion of this Court that
Penny had to know that Attorney X was Slaughter.
However, even if Penny did not know at the time of the trial
about Attorney X's identity, the exercise of due diligence would
have quickly uncovered the whole truth. Interestingly, Penny's
attorney on appeal did not even raise these issues. Had Penny
been concerned about a conflict between his interests and those
of Slaughter and Lyle, his appellate attorney, an excellent
lawyer, would have surely inquired into the details of any
In addition, although Penny now claims that he is illiterate (a
claim this Court doubts based on the pro se pleadings he has
filed), Penny is an intelligent person. The Court reaches this conclusion based on its observations of Penny in court at
his trial and sentencing and during the recent hearing and also
based on the sophistication of his drug dealing and attendant
building construction activities. It is inconceivable to this
Court that Penny was not aware of the underlying facts at the
time of his trial. Accordingly, Penny has not presented any
evidence that his petition is supported by any newly discovered
facts. Therefore, Penny should have filed his petition within one
year of the enactment of the AEDPA, no later than April 24, 1997.
See Marsello, 212 F.3d at 1010. Because Penny has not
articulated any reason why his petition falls within the statute
of limitations imposed by the AEDPA, this Court does not have
jurisdiction to review his petition.
II. Motion for Judgment on the Pleadings
Penny also asserts that his petition should be granted because
the government failed to file its response by the date set by
this Court. The government represents that it did not receive the
Court's minute order setting a briefing schedule. However, when
it received Penny's motion for judgment on the pleadings, the
government filed its response the next day. We accept the
government's explanation for its failure to respond, and the
motion for judgment on the pleadings is denied.
For the foregoing reasons, the Court is without jurisdiction to
consider Penny's petition. The matter is dismissed as untimely,
and the motion for judgment on the pleadings is denied.
It is so ordered.
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