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United States ex rel. Mueller v. Lemke

United States District Court, N.D. Illinois, Eastern Division

February 20, 2014

UNITED STATES OF AMERICA ex rel. ROBERT MUELLER, Petitioner,
v.
MICHAEL LEMKE, Warden, Respondent

Page 660

For Robert J Mueller, R59927, Petitioner: Amanda Nicole Graham, Kathryn Jane Kizer, LEAD ATTORNEYS, Law Office of Kizer & Graham, LLP, Chicago, IL.

For Michael Lemke, Warden, Respondent: Jean Godfrey, LEAD ATTORNEY, Office Of The Illinois Attorney General, Chicago, IL.

For Service List, Respondent: Chief of Criminal Appeals, Attorney General's Office, Chicago, IL.

Page 661

MEMORANDUM OPINION AND ORDER

Ruben Castillo, Chief United States District Judge.

Illinois prisoner Robert Mueller (" Petitioner" ) is serving a 32-year sentence for eight counts of criminal sexual assault. On April 17, 2013, he filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (" Petition" ). Presently before the Court is Respondent's motion to dismiss the Petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1). For the reasons set forth below, the Court grants Respondent's motion to dismiss and denies Petitioner's request for a certificate of appealability.

BACKGROUND

Following a jury trial in the Circuit Court of DuPage County, Illinois, in December 2006, Petitioner was found guilty of eight counts of criminal sexual assault. (R. 34, Ex. 2-Q, Verdict at 163.) On March 1, 2007, the trial judge sentenced Petitioner to 32 years in prison--employing

Page 662

the mandatory minimum of four years per count and the mandatory consecutive sentencing scheme set forth in 730 Ill. Comp. Stat. 5/5-8-4(a) (2007). (R. 34, Ex. 2-B, Sentencing Order at 6-13.) Petitioner is currently in the custody of Respondent Lemke, the warden of Stateville Correctional Center, in Joliet, Illinois.

Following his conviction, Petitioner appealed to the Illinois Appellate Court for the Second District, raising the following issues: (1) whether he was proven guilty beyond a reasonable doubt; (2) whether the trial court's denial of his request for a bill of particulars denied him a fair trial; (3) whether the trial court's denial of his request to review all of SV's (one of the victims) psychiatric records was an abuse of discretion; (4) whether the trial court's refusal to instruct the jury on the offense of fornication was an error; and (5) whether his 32-year sentence was unconstitutional. (R. 34, Ex. 2-C, Ill.App.Ct. Rule 23 Order at 14.) Petitioner was represented by his trial lawyer for this direct appeal. (R. 4, Pet'r's Mem. at 8.) The appellate court affirmed Petitioner's conviction and sentence in an unpublished Rule 23 order on March 17, 2009. (R. 34, Ex. 2-C, Ill.App.Ct. Rule 23 Order at 14.) Petitioner filed a pro se petition for leave to appeal to the Illinois Supreme Court, which was denied on May 28, 2009. (R. 34, Ex. 2-D, Ill. S.Ct. Order at 68.) On August 25, 2009, Petitioner sent a pro se petition for a writ of certiorari to the United States Supreme Court, which was received on September 1, 2009. (R. 34, Ex. F, U.S. S.Ct. Clerk Letter at 76.) The Clerk of the Supreme Court sent Petitioner a letter on September 1, 2009, explaining why his petition was incomplete and granting him an additional 60 days to file a corrected petition. ( Id. ) Petitioner did not file a corrected petition for certiorari. (R. 1, Pet. Writ Habeas at 2.)

Petitioner acquired new counsel to represent him and filed a petition for post-conviction relief on April 30, 2010, raising the following issues: (1) whether the state's failure to timely indict specific allegations of sexual penetration deprived him of his constitutional rights to due process, speedy trial, equal protection, the effective assistance of counsel, and to be promptly and fully advised of the charges against him; (2) whether the state's failure to disclose, prior to trial, the substance of detailed allegations made by the two victims, SV and KW, deprived him of his rights to a fair trial, due process, and equal protection, and whether it resulted in a " trial by ambush" ; (3) whether the consecutive sentencing scheme set forth in 730 Ill. Comp. Stat. 5/5-8-4(a) violated the state separation of powers clause and the Eighth Amendment's prohibition against cruel and unusual punishment; and (4) whether trial and appellate counsel were ineffective for failing to raise these issues prior to trial or on direct appeal. (R. 14-2, Ex. 16, Trial Ct. Order Denying Post-Conviction Pet. at 1-6.) The trial court found that his petition was " frivolous" and " patently without merit," and thus dismissed it on June 29, 2010. ( Id. at 7.) The Illinois Appellate Court affirmed the dismissal of the petition on March 30, 2012. (R. 10-1, Ex. 17, Ill.App.Ct. Rule 23 Order at 2.) Petitioner filed a petition for leave to appeal to the Illinois Supreme Court on May 4, 2012. (R. 4, Pet'r's Mem. at 10.) The Illinois Supreme Court mailed a letter on September 26, 2012, denying Petitioner's petition for leave to appeal, the mandate of which issued to the Appellate Court on October 31, 2012. (R. 10-3, Ex. 19, Letter Denying PLA.)

After acquiring new counsel, Petitioner filed with this Court a petition for writ of habeas corpus on April 17, 2013. (R. 1, Pet. Writ Habeas.) Petitioner argues that his post-conviction counsel was ineffective

Page 663

because: (1) post-conviction counsel failed to claim that Petitioner received ineffective assistance of counsel at trial due to trial counsel's failure to move for a change in venue; and (2) post-conviction counsel failed to present information from outside the record to support the claim that Petitioner's 32-year sentence is unconstitutional under the Eighth Amendment. (R. 4, Pet'r's Mem. at 12-19.) Petitioner contends that his post-conviction counsel's ineffectiveness was prejudicial and thus gives him cause for the procedural default of his constitutional claims. ( Id. at 12.) In addition to reiterating the arguments he contends his post-conviction counsel failed to make, Petitioner also argues that his due process and confrontation clause rights were violated when the trial court permitted the state to reopen its case and recall one of the victims, KW, to testify for a second time. ( Id. at 19-35.) On July 19, 2013, Respondent filed a motion to dismiss the Petition, arguing that Petitioner's claims are untimely under 28 U.S.C. ยง 2244(d)(1). (R. 25, Resp't's Mot. Dismiss.) Petitioner responded to Respondent's motion to dismiss on September 3, 2013, arguing that his ...


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