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Hubbard v. Polley

United States District Court, C.D. Illinois, Springfield Division

February 1, 2017

ANTHONY HUBBARD, Petitioner,
v.
CECIL POLLEY, Warden, Respondent.

          OPINION

          SUE E. MYERSCOUGH, U.S. District Judge.

         This cause is before the Court on Respondent Cecil Polley's Motion to Dismiss Habeas Corpus Petition as Untimely (d/e 16). The Motion is GRANTED. Petitioner Anthony Hubbard's claims are untimely, and he has failed to satisfy the actual innocence exception to the limitation period.

         I. BACKGROUND

         The following background information is taken from the state court records provided by Respondent (d/e 25, 26) and the appellate court decision, People v. Hubbard, 2013 IL App (5th) 120033-U.[1] See 28 U.S.C. § 2244(e)(1) (the state court's determination of a factual issue is presumed correct, and the petitioner bears the burden of rebutting the presumption by clear and convincing evidence).

         On July 29, 2008, Petitioner entered a negotiated plea to predatory criminal sexual assault and was sentenced to 20 years of imprisonment. In exchange, the prosecution agreed not to charge two other instances of sexual assault that the victim alleged occurred during the same time frame alleged in the Indictment. T. 42.

         At the hearing, and before the prosecutor presented the factual basis, defense counsel stated:

I have advised my client with regard to the DNA evidence in this matter. He is aware that it has been identified as semen, but it has not been identified as far as the type of DNA. Pending additional charges, he is willing to accept the plea as stated by the State.

T. 43. The factual basis for the plea provided that:

(1) the victim, who was the defendant's 12-year-old stepdaughter, would testify that the defendant sexually assaulted her at the family's home; (2) the defendant confessed to the police that he had sex with the victim in exchange for purchasing for her some roller blades she wanted; (3) a friend of the victim gave a written statement to police wherein the friend claimed the victim had told the friend about the assault; (4) the victim's mother gave a statement to police wherein the mother claimed the victim had told the mother about the assault; (5) the victim claimed that sheets taken from her bed contained ejaculate from the defendant; (6) the victim hid the sheets in her closet, then turned them over to police, who sent them to a crime lab; and (7) the crime lab confirmed the presence of semen on the sheets, but that no testing to confirm the identity of the donor of the semen had been done, and, pursuant to the plea agreement, none would be done.

Hubbard, 2013 IL App (5th) 120033-U, at *1; see also T. 44-47. Petitioner did not file a direct appeal.

         The crime lab nonetheless completed the DNA testing on August 28, 2008. See T. 140 (investigator testimony at the state court post-conviction evidentiary hearing that he did not call the lab and cancel the testing); Laboratory Report dated August 28, 2008, C. 96. At some point, Petitioner filed a Freedom of Information Act (FOIA) request and obtained the DNA testing results. T. 97 (Petitioner's testimony at the state-court post-conviction evidentiary hearing indicating that he received the report three years after the date of the report); T. 150-51 (trial court confirming with Petitioner's counsel, during state-court post-conviction evidentiary hearing, that Petitioner received the DNA report in August or September 2011). The DNA testing showed the semen came from the victim's stepbrother, who sometimes stayed at the residence. Hubbard, 2013 IL. App (5th) 120033-U, at ¶ 7.

         On October 28, 2010, Petitioner filed a pro se state court petition for post-conviction relief. On May 19, 2011, he filed an amended post-conviction petition. The state trial court appointed counsel to represent Petitioner.

         Petitioner raised several arguments in his state court post-conviction petition, including prosecutorial misconduct and that his trial counsel was ineffective for advising Petitioner to plead guilty without investigating the DNA evidence or seeking to suppress Petitioner's incriminating statements. See Am. Petition at C. 56-73; and T. 54-179. Petitioner also claimed he was actually innocent.[2]See C. 91 (raising actual innocence claim).

         Following an evidentiary hearing on January 12, 2012, the trial court denied the petition, finding that none of the public defender's actions were inappropriate and that no constitutional violations occurred. The court noted that Petitioner testified at the evidentiary hearing that he knew it was not his DNA on the sheets and, as such, there was no reliance by Petitioner on the “DNA being anything to do with his case.” T. 171. Petitioner nonetheless chose to plead guilty in exchange for 20 years, knowing that the DNA testing was not completed. T. 173.

         The court further found that a sufficient factual basis existed for the plea without the DNA evidence. T. 173. Petitioner wanted the plea to avoid additional charges which would have resulted in mandatory consecutive sentences. T. 173.

         The court also concluded that the fact that the DNA testing showed the semen on the sheets did not belong to Petitioner was not dispositive. T. 175. Specifically, the court noted that no DNA linked the victim to the sheets. T. 175-176. Therefore, the semen could have been put there in any situation, either innocently or by other people being involved. T. 175.

         On November 17, 2013, the appellate court affirmed. Hubbard, 2013 IL App (5th) 120033-U. The appellate court rejected Petitioner's argument that the absence of Petitioner's semen on the sheets meant that the facts asserted by the State to support Petitioner's guilt could not be true. Id. ¶ 8. Specifically, the appellate court noted that the State never claimed in its factual basis to the trial court that the sheets contained Petitioner's ejaculate. Id. Instead, the State represented to the court that the victim claimed the sheets contained Petitioner's ejaculate, that the sheets were turned over to the police, that the sheets were sent to the crime lab, and that while the crime lab confirmed the presence of semen, no testing to confirm the identity of the donor of the semen was performed and, pursuant to the plea agreement, no testing would be done. Id. That is, the court found that “the State's factual basis clearly and unequivocally stated that the claim of the victim had not been verified by scientific testing and, was only that: an unsubstantiated claim, not a fact upon which the plea agreement was based.” Id.

         The appellate court also concluded that the absence of Petitioner's ejaculate on the sheets did not mean, as a factual matter, that Petitioner did not sexually assault the victim. Id. ¶ 9. The victim had alleged that the first sexual assault, which involved the sheets, occurred between January 21, 2008 and February 5, 2008, but the sheets were not turned over until May 2008 when the victim reported the assault to which Petitioner pleaded guilty and the other alleged assaults. Id. The appellate court found that:

any number of scenarios could explain the absence of the defendant's semen on the sheets, and the presence of the semen of someone else who sometimes resided in the often messy, chaotic residence, especially when it is considered that the defendant did all the laundry in the residence, and several months passed between the time of the assault and the time the sheets were given to police.

Id. Therefore, the appellate court concluded that the absence of Petitioner's ejaculate on the sheets did not exonerate Petitioner of the crime to which he pleaded guilty. Id. Finally, the appellate court rejected Petitioner's argument that his confession was false. The court found that issue waived and, waiver notwithstanding, refuted by the DVD recordings of Petitioner's interviews. Id. ΒΆΒΆ 10-11. The Illinois Supreme ...


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