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Simer v. Varga

United States District Court, S.D. Illinois

January 7, 2020

RAYMOND H. SIMER, # S-06550, Petitioner,
v.
JOHN VARGA, Warden, Respondent.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE

         In 2007, Petitioner Raymond H. Simer was convicted of three counts of predatory criminal sexual abuse of a child following a bench trial in Marion County, Illinois (No. 06-CF-239). He was sentenced to three consecutive 12-year terms and is now in custody at Dixon Correctional Center.

         On December 3, 2018, Simer filed this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2254, grounded on several allegations of ineffective assistance of counsel. (Doc. 1). The Court ordered a response, but noted that Simer's claims could prove to be untimely or unexhausted given the contradictory dates and information in the Petition. (Doc. 3, p. 2).

         This matter is now before the Court on Respondent's Motion to Dismiss (Doc. 9), arguing the Petition is time-barred. Simer responded to the motion (Doc. 11) and supplemented his response (Doc. 12).[1] He subsequently filed a number of additional motions and supplementary documents. These include a Motion for Summary Judgment and supplement (Docs. 16, 18); a “Certificate of Innocence” (Doc. 19);[2] a “Memorandum and Order” (Doc. 20); copies of correspondence directed to the Illinois Prisoner Review Board (Docs. 21 & 22); a second Motion for Summary Judgment (Doc. 23); and a Motion to Appoint Counsel (Doc. 24, and duplicate filing at Doc. 25).

         Relevant Facts and Procedural History

         In view of the timeliness issue raised in Respondent's motion, it is not necessary to recite in detail the facts underlying Simer's conviction. He was found guilty of sexually molesting his then-10-year-old step-granddaughter on three occasions. (Doc. 9-1, pp. 23-28); People v. Simer, No. 5-07-0579 ( Ill. App. May 13, 2009) (affirming conviction on direct appeal). He has unsuccessfully challenged his combined sentences of 36 years.

         After Simer's conviction was affirmed, the Illinois Supreme Court denied his Petition for Leave to Appeal (“PLA”) on September 30, 2009. (Doc. 9-1, p. 1); People v. Simer, 919 N.E.2d 363 (Ill. 2009) (table). He did not seek further review in the United States Supreme Court. (Doc. 9, pp. 1-2).

         On May 3, 2010, Simer filed a pro se post-conviction petition in state court, alleging ineffective assistance of counsel. (Doc. 9-1, pp. 32-36); People v. Simer, Nos. 5-11-0474 & 5-12-0002 ( Ill. App. Jan. 2, 2014). The trial court appointed counsel, who amended and supplemented the petition. (Doc. 9-1, pp. 61-64). That petition was dismissed on the State's motion; Simer appealed and also sought leave from the trial court to file a second post-conviction petition, which was denied. Id. Simer's appeals from both post-conviction matters were consolidated, and on January 4, 2014, the appellate court affirmed the denial of relief. (Doc. 9-1, pp. 58-72). Simer's PLA was denied by the Illinois Supreme Court on March 26, 2014. (Doc. 9-1, p. 37); People v. Simer, 5 N.E.3d 1128 (Ill. 2014) (table).

         In July 2012, while the above state post-conviction challenge was pending, Simer sought state habeas corpus relief; the trial court denied relief and his appeal was dismissed in 2013. (Doc. 9, p. 2, n.1; Doc. 9-1, pp. 3-4).

         Subsequently, in 2015, Simer filed a petition for relief from judgment and sought leave to file another successive state post-conviction petition; the trial court denied relief and the appellate court affirmed. (Doc. 9, p. 3; Doc. 9-2, pp. 2-3, 36-45); People v. Simer, No. 5-15-0383 (Ill.App.Ct. Mar. 5, 2018). On June 17, 2018, he filed another state habeas corpus petition, challenging the imposition of consecutive sentences; this effort was likewise unsuccessful. (Doc. 9, p. 3; Doc. 9-2, pp. 12-15); Simer v. Varga, No. 5-18-0392 (Ill.App.Ct. Feb. 4, 2019).

         Applicable Legal Standards

         28 U.S.C. § 2244 creates a one-year limitation period for filing a petition for writ of habeas corpus. Under 28 U.S.C. § 2244(d)(1), a person convicted in state court must file his federal habeas petition within one year of the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was ...

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