United States District Court, N.D. Illinois, Eastern Division
September 29, 2004.
KEVIN BLUMENBERG, Petitioner,
SHELTON FREY, Warden, Respondent.
The opinion of the court was delivered by: JOHN W. DARRAH, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner, Kevin Blumenberg, seeks a writ of habeas corpus
against the Tamms Supermax Correctional Center Warden, Shelton
Frey, pursuant to 28 U.S.C. § 2254. Blumenberg raises three
grounds for relief: (1) the prosecutor's knowing use of false
testimony against him; (2) ineffective trial counsel for allowing
perjured testimony to stand; and (3) ineffective appellate
counsel for failing to appeal the issue of perjured testimony.
Presently before the Court is Respondent's Motion to Dismiss for
On April 23, 1993, a jury in the Circuit Court of Cook County,
Illinois, found Blumenberg guilty of first-degree murder and
armed robbery. Subsequently, the court sentenced Blumenberg to
terms of imprisonment of 55 years and 30 years, respectively.
Blumenberg appealed his conviction and sentence to the First
District Illinois Appellate Court, raising three issues: (1) the
state wrongfully exercised its peremptory challenges to exclude
African-Americans from Blumenberg's jury; (2) a statement used
against him was the fruit of an illegal detention; and (3) the
sentence he received was excessive. The Illinois Appellate Court
affirmed his conviction on April 24, 1996. On that same day, Blumenberg wrote the Cook County Public Defender's
Office requesting all legal documents used for his case, which he
intended to use for his post-conviction petition.
Pursuant to Illinois Supreme Court Rule 315(b), Blumenberg had
21 days, or until May 15, 1996, to file a petition for leave to
appeal ("PLA") to the Illinois Supreme Court. However, Blumenberg
did not seek leave to appeal the appellate court's decision to
the Illinois Supreme Court, nor did Blumenberg petition for a
writ of certiorari to the United States Supreme Court. Thus,
his direct appeal concluded on May 15, 1996.
On or about June 12, 1996, Blumenberg received an affidavit
prepared by his grandmother, Nellie Moore, in which she states
that she was never contacted by the police on January 18, 1991,
contrary to the testimony at trial by a prosecution witness,
Barry Costello; nor had she made a statement about her grandson
(Blumenberg) having burglarized her home. Shortly thereafter, on
approximately June 26, 1996, Blumenberg received a response to
the letter he sent to the Cook County Public Defender's Office in
April, which included a package of papers from his original trial
attorney. This package included copies of legal documents
relating to his case that he had never possessed prior to this
date, such as the General Progress Report stating that it was
co-defendant's grandmother, not Nellie Moore, who had been
contacted by police officials on January 17, 1991, and had made
the statements about her grandson's burglarizing her home.
On July 17, 1996, Blumenberg timely filed a pro se petition
for post-conviction relief in the Circuit Court of Cook County,
raising three issues: (1) he was denied due process of law by the
use of knowingly false testimony against him, (2) he had
ineffective assistance of trial counsel, and (3) he had
ineffective assistance of appellate counsel. On August 29, 2000,
the Circuit Court of Cook County dismissed Blumenberg's petition
for post-conviction relief. Blumenberg appealed this decision; and on November 26, 2002, the Illinois Appellate Court
affirmed the dismissal. Blumenberg then timely petitioned for
leave to appeal the appellate court's decision to the Illinois
Supreme Court. The Illinois Supreme Court denied Blumenberg's PLA
on June 4, 2003. On April 26, 2004, Blumenberg signed and
submitted to prison officials a petition for writ of habeas
corpus in the United States District Court for the Northern
District of Illinois. This petition was officially filed on May
Respondent seeks dismissal of Blumenberg's petition, arguing
that it is untimely because the statute of limitations began to
run on May 15, 1996, the date on which the judgment became final
by the conclusion of direct review or the expiration of time for
seeking such review, pursuant to 28 U.S.C. § 2244(d)(1)(A).
Blumenberg argues that this petition for writ of habeas corpus
was timely filed because the statute of limitations did not start
until June 26, 1996, the date he discovered factual predicate
necessary to bring the present claims, pursuant to
28 U.S.C. § 2244(d)(1)(D).
In reviewing a motion to dismiss, the court considers all facts
alleged in the complaint and any reasonable inferences drawn
therefrom in the light most favorable to the plaintiff. See
Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326
(7th Cir. 2000). Dismissal is warranted only if "it appears
beyond a doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957). The "suit should not be
dismissed if it is possible to hypothesize facts, consistent with
the complaint, that would make out a claim." Graehling v. Vill.
of Lombard, Ill., 58 F.3d 295, 297 (7th Cir. 1995). "Allegations
of pro se complaint [sic] are held to a less stringent standard
than formal pleadings drafted by lawyers. Haines v. Kerner,
404 U.S. 519, 520 (1972). Accordingly, it must appear "beyond doubt
that the plaintiff can prove no set of facts in support of his claim which
would entitle him to relief." Haines v. Kerner, 404 U.S. at 521
(citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
The Antiterrorism and Effective Death Penalty Act of 1996
provides for four differing dates as the start of the limitations
period for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1).
The statute provides instruction that "[t]he limitation period
shall run from the latest of" these dates.
28 U.S.C. § 2244(d)(1).
28 U.S.C. § 2244(d)(1) provides inter alia that:
A 1-year period of limitations shall apply to an
application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
. . ., or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A); 29 U.S.C. § 2244(d)(1)(D). However,
"[t]he time during which a properly filed application for state
post-conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection."
28 U.S.C. § 2244(d)(2).
Blumenberg contends that the statute of limitations for filing
a petition for a writ of habeas corpus began running on June 26,
1996, pursuant to 28 U.S.C. § 2244(d)(1)(D). More specifically,
that the affidavit he received from his grandmother on or about
June 12, 1996, along with the documents he received from his
trial counsel on or about June 26, 1996, is the factual predicate
for the claims he now brings to this Court in his petition for a
writ of habeas corpus. Blumenberg therefore argues that the date of June 26, 1996 is the "latest"
of the statutory options under 28 U.S.C. § 2244(d)(1) to commence
the limitations period.
Next, Blumenberg contends that the limitations period was
tolled on July 17, 1996, when he timely filed his petition for
post-conviction relief, and that it remained tolled until the
conclusion of this collateral review on June 4, 2003. The
limitations clock resumed on June 5, 2003, the day after his PLA
was denied by the Illinois Supreme Court. Thus, according to
Blumenberg's calculations, the one-year limitations period would
have expired on May 11, 2004. Accordingly, Blumenberg claims that
his petition for habeas corpus, filed on May 7, 2004, but signed
and allegedly given to prison officials for submission to the
Court on April 26, 2004, was timely filed and not barred by the
statute of limitations.
The Respondent conversely argues that Blumenberg's petition for
habeas corpus is untimely. Specifically, the Respondent contends
that the limitations period ended on April 1, 2004, because it
began running immediately upon the conclusion of Blumenberg's
direct appeal on May 15, 1996. The Respondent agrees that the
limitations period was tolled due to Blumenberg's petition for
post-conviction relief but contends that it began to run again on
June 4, 2003, until it expired on April 1, 2004.
However, the Respondent failed to address Blumenberg's argument
that June 26, 1996, the date that he received the factual
predicate for his claims, should be the date which the period of
limitations began pursuant to 28 U.S.C. § 2244(d)(1)(D).
Based on Blumenberg's allegation, that the factual predicate of
his claims could not have been discovered until June 26, 1996,
the limitations period would start on that date and not May 15, 1996. See 28 U.S.C. § 2244(d)(1)(D). Accordingly, only
349 days had run on the one-year limitations period when
Blumenberg's petition for writ of habeas corpus was filed; the
petition was timely filed.
For the reasons stated above, the Respondent's Motion to
Dismiss is denied.
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