United States District Court, S.D. Illinois
RAYMOND H. SIMER, # S-06550, Petitioner,
JOHN VARGA, Warden, Respondent.
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
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.
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).
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). 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.
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).
Facts and Procedural History
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.
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).
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).
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).
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).
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
(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