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Reedd v. Duncan

United States District Court, S.D. Illinois

January 11, 2018

LENN D. REED, SR., Petitioner,
v.
STEVE DUNCAN, Respondent. GLENN W. REED, JR., Petitioner,
v.
STEVE DUNCAN, Respondent.

          MEMORANDUM AND ORDER

          HERNDON UNITED STATES DISTRICT JUDGE.

         Lenn Reed and Glenn Reed (hereinafter Petitioners) are twin brothers who were tried and convicted together in 1998 for first-degree murder and aggravated vehicular hijacking in Madison County, Illinois. (Doc. 1). They filed virtually identical petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254 and the Court consolidated the brothers' petitions for briefing and decision. (Doc. 9). For the following reasons, Petitioners' petitions for habeas relief are dismissed as untimely.

         Relevant Facts and Procedural History

         In September 1994, Michael Ufert's body was found in a remote area in Madison County, Illinois, along with his wrecked 1993 Ford Mustang. People v. Reed, 324 Ill.App.3d 671, 673-74 (2001). Petitioners were initially suspects, but no evidence linked them to the crime. Id. at 674. In 1996, an anonymous tip prompted the police to investigate Petitioners' cousin, Heather Weeden. Id. Weeden confessed and implicated Petitioners, along with their friend Andre Cunningham. Id.

         The State of Illinois (the State) charged Petitioners and tried them together. Id. Cunningham agreed to cooperate with the State and his testimony served as “the centerpiece of the State's case.” Id. According to Cunningham, Petitioners, Weeden, and Cunningham carried out a plot to hijack Ufert's Ford Mustang. Id. Weeden acted as bait and solicited Ufert with “romantic promise.” Id. at 673. Petitioners and Cunningham watched from afar as Weeden entered Ufert's vehicle. Id. at 674. The men followed Ufert and Weeden to an isolated country road next to a field, where the car came to a stop. Id. at 675. Ufert, finally cognizant of the scheme, exited the car. Id. Lenn struck him in the face with a pistol and Ufert ran into the nearby field. Id. Cuningham and Glenn chased Ufert and held him captive. Id. Lenn, armed, approached Ufert, who was on his knees pleading for his life. Id. Lenn shot Ufert in the face and gave the gun to Glenn with instructions to shoot Ufert again. Id. Glenn fired a second shot in Ufert's chest. Id. Glenn gave the gun to Cunningham, telling him to shoot Ufert or share a similar fate. Id. Cunningham complied. Id.

         The jury convicted Petitioners; Lenn was sentenced to seventy-five years imprisonment and Glenn was sentenced to seventy-years imprisonment. Id. at

         On direct appeal, the Appellate Court of Illinois affirmed Petitioners' convictions. Id. at 686. However, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the court modified Lenn's sentence, and vacated and remanded Glenn's sentence for new sentencing. Id. at 685-86. Petitioners filed a joint petition for leave to appeal (PLA) to the Supreme Court of Illinois, which the court denied on February 5, 2003. (Doc. 13, Ex. 1, pp. 19-20).

         In September 2001, in the midst of the direct appeal proceedings, Petitioners filed a post-conviction petition under Illinois' Post-Conviction Hearing Act, 725 ILCS 5/122-1 (West 2008). (Doc. 13, Ex. 7, p. 69). Several amendments and motions pursued, and the court ultimately denied the petition in October 2009. Id. at 83. Petitioners appealed and the Appellate Court of Illinois affirmed the denial on May 31, 2012. (Doc. 13, Ex. 1, pp. 21-23).

         On July 18, 2012, Lenn wrote to the Clerk of the Supreme Court of Illinois requesting permission for Petitioners to file a joint PLA. (Doc. 13, Ex. 1, p. 29).

         The clerk wrote back,

Please be advised that a joint petition for leave to appeal cannot be filed without the signature of both petitioners. Therefore, your brother, Glenn W. Reed, Jr., must also sign the petition to attest to the fact that this petition is being filed with his consent and knowledge.
We are forwarding one of your petitions for leave to appeal to your brother today with a copy of this letter. If he agrees to the filing of this petition, it will be Glenn's responsibility to sign his name to the cover page and proof of service of the petition, and to return the document to our office for filing without delay. Please be advised you two only have until September 4, 2012, for the signed petition for leave to appeal to be timely submitted . . . .

Id. at p. 30.

         On March 18, 2014, Lenn wrote another letter to the clerk, stating Petitioners timely filed a PLA but had not received a status update in a year. Id. at p. 31. On March 25, 2014, the clerk responded that a PLA was not on file for their case. Id. at 32.

         Petitioners then filed a motion for leave to file a late PLA in April 2014. Id. at pp. 24-27. The Supreme Court of Illinois denied the motion on September 23, 2014. (Doc. 13, Ex. 2, p. 1).

         Petitioners filed the instant § 2254 petition on July 23, 2015. (Doc. 1).

         Analysis

         Pursuant to 28 U.S.C. § 2254, persons in custody pursuant to a state court judgment may bring a petition for a writ of habeas corpus “on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Petitions under § 2254 are subject to a limitations period of one year and must clear several procedural barriers as well. Respondent, here, alleges Petitioners' claims are both procedurally defaulted and untimely.

         1. Statute of Limitations

         A petitioner must file a § 2254 within one year from the latest of several events, including, as applicable here, “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d). The time during which a properly filed State post-conviction proceeding is pending shall not be counted toward any period of limitation. Id.

         Petitioners filed a post-conviction petition in State court before a final judgment was rendered in their direct appeal. The State petition therefore tolled the statute of limitations for filing a § 2254 petition during its pendency.

         The Appellate Court of Illinois affirmed the denial of Petitioners' post-conviction petition on May 31, 2012. According to correspondence from the Clerk of the Supreme Court of Illinois, Petitioners had until September 4, 2012 to timely file a PLA. (Doc. 13, Ex. 1, p. 30). Petitioners failed to do so.

         The Seventh Circuit has not decided whether a post-conviction petition is “pending” during the time for filing a PLA when a petitioner does not file one. Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008) (“It is unnecessary to decide, and we therefore reserve, the question whether time provided for filing a petition or appeal to a higher court is treated as time during which an application is pending, if the time expires without a filing.”). The answer to this question, however, ultimately makes no difference to the outcome of this case. Petitioners had one year after either May or September of 2012 to file their habeas petition in this Court and did not do so until 2015. The petition is therefore time-barred.

         2. Procedural Default

         Respondent also asserts Petitioners' claims are procedurally defaulted. The petition is clearly untimely under 28 U.S.C. § 2244's statute of limitations, but for the sake of completeness the ...


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