United States District Court, C.D. Illinois, Springfield Division
RICHARD MILLS, UNITED STATES DISTRICT JUDGE.
Alan Winger filed a petition under 28 U.S.C. § 2254
which is pending before the Court. Pending also are the
Petitioner’s motion for a stay and motion for leave to
file a second habeas petition.
motion to stay judgment, the Petitioner asks the Court to
stay this case pending the resolution of state court
proceedings which he claims relate back to his § 2254
petition. The Petitioner contends the result of the state
court proceedings could render moot two of the claims in this
Petitioner also seeks leave of Court to file a second
supplemental habeas petition based on newly discovered
information that was fraudulently concealed from the
Petitioner’s Defense Counsel. He also claims he has
discovered other information previously unknown. The
Petitioner intends to raise the following grounds: structural
defects occurred at trial which violated his Fifth and
Fourteenth Amendment rights; a Brady violation based
on the failure to disclose certain information; prosecutorial
misconduct based on the failure to disclose; and ineffective
assistance of trial and appellate counsel.
Sangamon Country Docket shows that Petitioner’s motion
for leave to file a successive postconviction petition was
denied. The Petitioner filed a notice of appeal on August 19,
2019. See State v. Mark A. Winger, 2001-CF-000798.
reviewing the Petitioner’s proposed new claims, the
Court concludes that the claims are untimely under 28 U.S.C.
§ 2254(d)(1), which establishes a one-year limitations
period from the latest of four possible dates. The Petitioner
alleges his new claims are based on (1) facts contained in a
trial transcript that was filed with Respondent’s
December 21, 2017 answer; (2) Illinois State Police (ISP)
documents relating to his case and an investigation into
improper conduct by Springfield Police Detectives; and (3)
the Springfield Police Department (SPD) file on his case.
the Petitioner has had access to the trial transcript since
it was prepared in 2002--or at least could have obtained it
with the exercise of due diligence--the Court concludes any
claims based on the trial transcript are untimely under
the Petitioner’s new proposed ground ten (the
prosecutor’s alleged concealment of an alleged
accomplice’s role) is based on the same factual
predicate as ground nine which was first raised in the state
court in 2009. Because it is based on the same factual
predicate, the Court concludes that the claim is untimely
under § 2244(d)(1)(D).
other claims the Petitioner seeks to raise are based on two
ISP documents from the Petitioner’s case file, one ISP
document from an internal affairs file and two SPD documents
from the Petitioner’s case file. The Petitioner claims
these documents show perjury and/or misconduct by the
prosecutor and investigating detectives.
State disclosed at least 4, 700 pages of discovery, which
included copies of subpoenas, police reports and ISP forensic
reports. The Court concludes that the Petitioner’s
speculative assertion is insufficient to establish that he
could not have discovered the factual predicate for the
claims which rest on these documents sooner by using due
the Court notes that the Petitioner received the ISP and SPD
documents by December 8, 2017. Even if that were the date of
discovery, the Petitioner’s supplemental petition would
still be more than four months late.
on the foregoing, the Court concludes that the claims the
Petitioner seeks to add are untimely under §
Court further finds that the habeas petition does not allege
any unexhausted claim. Because the Petitioner has also failed
to show that any “new” evidence was not
previously disclosed or could have been obtained with the
exercise of due diligence, the Court concludes there is no
basis to delay proceedings on unexhausted claims in this
proceeding while those claims are relitigated in state court.
Accordingly, the motion to stay will also be denied.
the Petitioner’s motion to stay the judgment ...