United States ex rel. Mueller v. Lemke

20 F. Supp. 3d 659, 2014 U.S. Dist. LEXIS 23779, 2014 WL 717032
CourtDistrict Court, N.D. Illinois
DecidedFebruary 20, 2014
DocketNo. 13 C 2903
StatusPublished
Cited by4 cases

This text of 20 F. Supp. 3d 659 (United States ex rel. Mueller v. Lemke) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States ex rel. Mueller v. Lemke, 20 F. Supp. 3d 659, 2014 U.S. Dist. LEXIS 23779, 2014 WL 717032 (N.D. Ill. 2014).

Opinion

MEMORANDUM OPINION AND ORDER

Chief Judge Ruben Castillo, United States District Court

Illinois prisoner Robert Mueller (“Petitioner”) is serving a. 32-year sentence for eight counts of criminal sexual assault. On April 17, 2013, he filed this petition for a "writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“Petition”). Presently before the Court is Respondent’s motion to dismiss the Petition as time-barred pursuant to 28 U.S.C. § 2244(d)(1). For the reasons set forth below, the Court grants Respondent’s motion to dismiss and denies Petitioner’s request for a certificate of ap-pealability.

BACKGROUND

Following a jury trial in the Circuit Court of DuPage County, Illinois, in December 2006, Petitioner was found guilty of eight counts of criminal sexual assault. (R. 34, Ex. 2-Q, Verdict at 163.) On March 1, 2007, the trial judge sentenced Petitioner to 32 years in prison — employ[662]*662ing the mandatory minimum of four years per count and the mandatory consecutive sentencing scheme set forth in 730 Ill. Comp. Stat. 5/5-8^f(a) (2007). (R. 34, Ex. 2-B, Sentencing Order at 6-13.) Petitioner is currently in the custody of Respondent Lemke, the warden of Stateville Correctional Center, in Joliet, Illinois.

Following his conviction, Petitioner appealed to the Illinois Appellate Court for the Second District, raising the following issues: (1) whether he was proven guilty beyond a reasonable doubt; (2) whether the trial court’s denial of his request for a bill of particulars denied him a fair trial; (3) whether the trial court’s denial of his request to review all of SV’s (one of the victims) psychiatric records was an abuse of discretion; (4) whether the trial court’s refusal to instruct the jury on the offense of fornication was an error; and (5) whether his 32-year sentence was unconstitutional. (R. 34, Ex. 2-C, Ill.App.Ct. Rule 23 Order at 14.) Petitioner was represented by his trial lawyer for this direct appeal. (R. 4, Pet’r’s Mem. at 8.) The appellate court affirmed Petitioner’s conviction and sentence in an unpublished Rule 23 order on March 17, 2009. (R. 34, Ex. 2-C, Ill. App.Ct. Rule 23 Order at 14.) Petitioner filed a pro se petition for leave to appeal to the Illinois Supreme Court, which was denied on May 28, 2009. (R. 34, Ex. 2-D, Ill. Sup.Ct. Order at 68.) On August 25, 2009, Petitioner sent a pro se petition for a writ of certiorari to the United States Supreme Court, which was received on September 1, 2009. (R. 34, Ex. F, U.S. Sup.Ct. Clerk Letter at 76.) The Clerk of the Supreme Court sent Petitioner a letter on September 1, 2009, explaining why his petition was incomplete and granting him an additional 60 days to file a corrected petition. (Id.) Petitioner did not file a corrected petition for certiorari. (R. 1, Pet. Writ Habeas at 2.)

Petitioner acquired new counsel to represent him and filed a petition for post-conviction relief on April 30, 2010, raising the following issues: (1) whether the state’s failure to timely indict specific allegations of sexual penetration deprived him of his constitutional rights to due process, speedy trial, equal protection, the effective assistance of counsel, and to be promptly and fully advised of the charges against him; (2) whether the state’s failure to disclose, prior to trial, the substance of detailed allegations made by the two victims, SV and KW, deprived him of his rights to a fair trial, due process, and equal protection, and whether it resulted in a “trial by ambush”; (3) whether the consecutive sentencing scheme set forth in 730 Ill. Comp. Stat. 5/5-8-4(a) violated the state separation of powers clause and the Eighth Amendment’s prohibition against cruel and unusual punishment; and (4) whether trial and appellate counsel were ineffective for failing to raise these issues prior to trial or on direct appeal. (R. 14-2, Ex. 16, Trial Ct. Order Denying Post-Conviction Pet. at 1-6.) The trial court found that his petition was “frivolous” and “patently without merit,” and thus dismissed it on June 29, 2010. (Id. at 7.) The Illinois Appellate Court affirmed the dismissal of the petition on March 30, 2012. (R. 10-1, Ex. 17, Ill.App.Ct. Rule 23 Order at 2.) Petitioner filed a petition for leave to appeal to the Illinois Supreme Court on May 4, 2012. (R. 4, Pet’r’s Mem. at 10.) The Illinois Supreme Court mailed a letter on September 26, 2012, denying Petitioner’s petition for leave to appeal, the mandate of which issued to the Appellate Court on October 31, 2012. (R. 10-3, Ex. 19, Letter Denying PLA.)

After acquiring new counsel, Petitioner filed with this Court a petition for writ of habeas corpus on April 17, 2013. (R. 1, Pet. Writ Habeas.) Petitioner argues that his post-conviction counsel was ineffective [663]*663because: (1) post-conviction counsel failed to claim that Petitioner received ineffective assistance of counsel at trial due to trial counsel’s failure to move for a change in venue; and (2) post-conviction counsel failed to present information from outside the record to support the claim that Petitioner’s 32-year sentence is unconstitutional under the Eighth Amendment. (R. 4, Pet’r’s Mem. at 12-19.) Petitioner contends that his post-conviction counsel’s ineffectiveness was prejudicial and thus gives him cause for the procedural default of his constitutional claims. (Id. at 12.) In addition to reiterating the arguments he contends his post-conviction counsel failed to make, Petitioner also argues that his due process and confrontation clause rights were violated when the trial court permitted the state to reopen its case and recall one of the victims, KW, to testify for a second time. (Id. at 19-35.) On July 19, 2013, Respondent filed a motion to dismiss the Petition, arguing that Petitioner’s claims are untimely under 28 U.S.C. § 2244(d)(1). (R. 25, Resp’t’s Mot. Dismiss.) Petitioner responded to Respondent’s motion to dismiss on September 3, 2013, arguing that his claims should be considered, despite their untimeliness, under the principles of statutory and equitable tolling. (R. 31, Pet’r’s Resp.) Respondent replied to Petitioner’s response on September 17, 2013. (R. 32,' Resp’t’s Reply.) Respondent’s motion to dismiss the Petition is currently before the Court.

LEGAL STANDARD

Section 2244(d)(1) of the Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This limitation period runs from 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 prevented from filing by such State action;

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Bluebook (online)
20 F. Supp. 3d 659, 2014 U.S. Dist. LEXIS 23779, 2014 WL 717032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-ex-rel-mueller-v-lemke-ilnd-2014.