United States District Court, S.D. Illinois
LENN D. REED, SR., Petitioner,
STEVE DUNCAN, Respondent. GLENN W. REED, JR., Petitioner,
STEVE DUNCAN, Respondent.
MEMORANDUM AND ORDER
HERNDON UNITED STATES DISTRICT JUDGE.
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.
Facts and Procedural History
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.
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
jury convicted Petitioners; Lenn was sentenced to
seventy-five years imprisonment and Glenn was sentenced to
seventy-years imprisonment. Id. at
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,
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.
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).
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.
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.
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).
filed the instant § 2254 petition on July 23, 2015.
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.
Statute of Limitations
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.
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.
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.
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.
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 ...