United States District Court, C.D. Illinois, Springfield Division
MYERSCOUGH, U.S. District Judge.
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.
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. 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
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.
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.
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.
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.
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.See C. 91 (raising actual
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.
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.
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.
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.
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
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. ¶¶ 10-11. The Illinois Supreme ...