Hubbard v. Cecil Polley
Filing
27
OPINION entered by Judge Sue E. Myerscough on 2/1/2017. Respondent Cecil Polley's Motion to Dismiss Habeas Corpus Petition as Untimely (d/e 16 ) is GRANTED and Petitioner's § 2254 Petition (d/e 1) is DISMISSED WITH PREJUDICE. A certificate of appealability is DENIED. This case is closed.(MAS, ilcd)
E-FILED
Thursday, 02 February, 2017 10:25:17 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ANTHONY HUBBARD,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
CECIL POLLEY, Warden,
Respondent.
No. 15-3103
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Respondent Cecil Polley’s
Motion to Dismiss Habeas Corpus Petition as Untimely (d/e 16).
The Motion is GRANTED. Petitioner Anthony Hubbard’s claims are
untimely, and he has failed to satisfy the actual innocence
exception to the limitation period.
I. BACKGROUND
The following background information is taken from the state
court records provided by Respondent (d/e 25, 26) and the
appellate court decision, People v. Hubbard, 2013 IL App (5th)
Page 1 of 26
120033-U.1 See 28 U.S.C. § 2244(e)(1) (the state court’s
determination of a factual issue is presumed correct, and the
petitioner bears the burden of rebutting the presumption by clear
and convincing evidence).
On July 29, 2008, Petitioner entered a negotiated plea to
predatory criminal sexual assault and was sentenced to 20 years of
imprisonment. In exchange, the prosecution agreed not to charge
two other instances of sexual assault that the victim alleged
occurred during the same time frame alleged in the Indictment. T.
42.
At the hearing, and before the prosecutor presented the
factual basis, defense counsel stated:
I have advised my client with regard to the DNA evidence
in this matter. He is aware that it has been identified as
semen, but it has not been identified as far as the type of
DNA. Pending additional charges, he is willing to accept
the plea as stated by the State.
T. 43. The factual basis for the plea provided that:
(1) the victim, who was the defendant’s 12-year-old
stepdaughter, would testify that the defendant sexually
1
The Court will cite the underlying state court record (d/e 25) as “C.” and the
page number and will cite the transcripts (d/e 26) as “T.” and the page
number.
Page 2 of 26
assaulted her at the family’s home; (2) the defendant
confessed to the police that he had sex with the victim in
exchange for purchasing for her some roller blades she
wanted; (3) a friend of the victim gave a written statement
to police wherein the friend claimed the victim had told
the friend about the assault; (4) the victim’s mother gave
a statement to police wherein the mother claimed the
victim had told the mother about the assault; (5) the
victim claimed that sheets taken from her bed contained
ejaculate from the defendant; (6) the victim hid the sheets
in her closet, then turned them over to police, who sent
them to a crime lab; and (7) the crime lab confirmed the
presence of semen on the sheets, but that no testing to
confirm the identity of the donor of the semen had been
done, and, pursuant to the plea agreement, none would
be done.
Hubbard, 2013 IL App (5th) 120033-U, at *1; see also T. 44-47.
Petitioner did not file a direct appeal.
The crime lab nonetheless completed the DNA testing on
August 28, 2008. See T. 140 (investigator testimony at the state
court post-conviction evidentiary hearing that he did not call the lab
and cancel the testing); Laboratory Report dated August 28, 2008,
C. 96. At some point, Petitioner filed a Freedom of Information Act
(FOIA) request and obtained the DNA testing results. T. 97
(Petitioner’s testimony at the state-court post-conviction evidentiary
hearing indicating that he received the report three years after the
date of the report); T. 150-51 (trial court confirming with Petitioner’s
Page 3 of 26
counsel, during state-court post-conviction evidentiary hearing,
that Petitioner received the DNA report in August or September
2011). The DNA testing showed the semen came from the victim’s
stepbrother, who sometimes stayed at the residence. Hubbard,
2013 IL. App (5th) 120033-U, at ¶ 7.
On October 28, 2010, Petitioner filed a pro se state court
petition for post-conviction relief. On May 19, 2011, he filed an
amended post-conviction petition. The state trial court appointed
counsel to represent Petitioner.
Petitioner raised several arguments in his state court postconviction petition, including prosecutorial misconduct and that his
trial counsel was ineffective for advising Petitioner to plead guilty
without investigating the DNA evidence or seeking to suppress
Petitioner’s incriminating statements. See Am. Petition at C. 56-73;
and T. 54-179. Petitioner also claimed he was actually innocent.2
See C. 91 (raising actual innocence claim).
The due process clause of the Illinois Constitution affords post-conviction
petitioners the right to bring a freestanding claim of actual innocence in state
court based on newly discovered evidence. People v. Ortiz, 919 N.E. 2d 941,
949-50 (Ill. 2009).
2
Page 4 of 26
Following an evidentiary hearing on January 12, 2012, the
trial court denied the petition, finding that none of the public
defender’s actions were inappropriate and that no constitutional
violations occurred. The court noted that Petitioner testified at the
evidentiary hearing that he knew it was not his DNA on the sheets
and, as such, there was no reliance by Petitioner on the “DNA being
anything to do with his case.” T. 171. Petitioner nonetheless chose
to plead guilty in exchange for 20 years, knowing that the DNA
testing was not completed. T. 173.
The court further found that a sufficient factual basis existed
for the plea without the DNA evidence. T. 173. Petitioner wanted
the plea to avoid additional charges which would have resulted in
mandatory consecutive sentences. T. 173.
The court also concluded that the fact that the DNA testing
showed the semen on the sheets did not belong to Petitioner was
not dispositive. T. 175. Specifically, the court noted that no DNA
linked the victim to the sheets. T. 175-176. Therefore, the semen
could have been put there in any situation, either innocently or by
other people being involved. T. 175.
Page 5 of 26
On November 17, 2013, the appellate court affirmed.
Hubbard, 2013 IL App (5th) 120033-U. The appellate court
rejected Petitioner’s argument that the absence of Petitioner’s
semen on the sheets meant that the facts asserted by the State to
support Petitioner’s guilt could not be true. Id. ¶ 8. Specifically,
the appellate court noted that the State never claimed in its factual
basis to the trial court that the sheets contained Petitioner’s
ejaculate. Id. Instead, the State represented to the court that the
victim claimed the sheets contained Petitioner’s ejaculate, that the
sheets were turned over to the police, that the sheets were sent to
the crime lab, and that while the crime lab confirmed the presence
of semen, no testing to confirm the identity of the donor of the
semen was performed and, pursuant to the plea agreement, no
testing would be done. Id. That is, the court found that “the State’s
factual basis clearly and unequivocally stated that the claim of the
victim had not been verified by scientific testing and, was only that:
an unsubstantiated claim, not a fact upon which the plea
agreement was based.” Id.
The appellate court also concluded that the absence of
Petitioner’s ejaculate on the sheets did not mean, as a factual
Page 6 of 26
matter, that Petitioner did not sexually assault the victim. Id. ¶ 9.
The victim had alleged that the first sexual assault, which involved
the sheets, occurred between January 21, 2008 and February 5,
2008, but the sheets were not turned over until May 2008 when the
victim reported the assault to which Petitioner pleaded guilty and
the other alleged assaults. Id. The appellate court found that:
any number of scenarios could explain the absence of the
defendant’s semen on the sheets, and the presence of the
semen of someone else who sometimes resided in the
often messy, chaotic residence, especially when it is
considered that the defendant did all the laundry in the
residence, and several months passed between the time
of the assault and the time the sheets were given to
police.
Id. Therefore, the appellate court concluded that the absence of
Petitioner’s ejaculate on the sheets did not exonerate Petitioner of
the crime to which he pleaded guilty. Id. Finally, the appellate
court rejected Petitioner’s argument that his confession was false.
The court found that issue waived and, waiver notwithstanding,
refuted by the DVD recordings of Petitioner’s interviews. Id. ¶¶ 1011. The Illinois Supreme Court denied leave to appeal on March 26,
2014. See People v. Hubbard, 5 N.E.3d 1126 (Ill. 2014).
Page 7 of 26
On March 19, 2015,3 Petitioner filed his § 2254 petition in this
Court. Petitioner raises three claims. First, Petitioner asserts that
he was denied due process “when scientific evidence demonstrates
his actual innocence and that his guilty plea was not voluntarily,
knowingly, and intelligently entered.” Pet. at p. 3. Petitioner claims
that the State’s factual basis was that the victim said Petitioner
assaulted her and his ejaculate was on her sheets, which she kept
and later turned over to the police. On retrial, Petitioner would
then be able to use the DNA evidence to prove he was not the
person who assaulted the victim and ejaculated on the sheets.
Petitioner’s second claim is that he was denied due process
when the prosecutor deceived Petitioner into waiving his Miranda
rights (Miranda v. Arizona, 384 U.S. 436 (1966)) and confess to the
crime. Pet. at p. 8. Petitioner argues that the Christian County
State’s Attorney, Thomas O. Finks, placed Petitioner under the
impression that Petitioner did not need an attorney for questioning,
This is the date Petitioner placed his petition in the institution’s internal
mailing system. See Rule 3(d) of the Rules Governing § 2254 Cases in the
United States District Courts (“A paper filed by an inmate confined in an
institution is timely if deposited in the institution’s internal mailing system on
or before the last day for filing.”)
3
Page 8 of 26
and that, if Petitioner waived his Miranda rights, he would be
charged with the lesser offense of child endangerment and would be
sent home. Pet. at p. 9. According to Petitioner, Mr. Finks has
been found guilty of deception before. Id. at p. 10. Petitioner also
argues that the questions posed to Petitioner by the investigator,
Richard Bryan, were loaded questions. Id.
As his final ground for relief, Petitioner argues that he was
denied his right to effective assistance of counsel because his
attorney did not investigate the exculpatory DNA evidence.
Petitioner argues that his counsel should not have advised him to
plead guilty based upon an incomplete investigation of the facts.
Pet. at p. 13. Petitioner claims he repeatedly asked his attorney
about the DNA results but counsel misled Petitioner into believing
he had no plausible defense and that Petitioner would have to pay
for the DNA testing. Id. Petitioner also claims he repeatedly
interrupted the plea proceedings to ask about the DNA sample. Pet.
at p. 14.4 In addition, counsel had only represented Petitioner for
The transcript reflects only one interruption and the reason for the
interruption by Petitioner is not identified. T. 48.
4
Page 9 of 26
approximately eight days before Petitioner pleaded guilty, which
Petitioner contends was not enough time for counsel to advise
Petitioner whether he had a plausible defense. Id.5
On June 12, 2015, Respondent filed a Motion to Dismiss on
the ground that the § 2254 Petition was untimely. On January 26,
2016, this Court denied the motion to dismiss with leave to refile
because Respondent did not fully address Petitioner’s actual
innocence claim.
On March 16, 2016, Respondent filed the Renewed Motion to
Dismiss Habeas Corpus Petition as Untimely (d/e 16) at issue
herein. The long delays in this case are due to Petitioner receiving
lengthy extensions of time to respond to both motions to dismiss.
The record shows that when asked at the July 9, 2008 first appearance on the
Information whether he wanted counsel appointed, Petitioner indicated he
wanted to talk to the State’s Attorney. See T. 8. On July 10, 2008, Petitioner
specifically declined the appointment of counsel and indicated that he wanted
to talk to the State’s Attorney, who had been unavailable the day before. T. 1112. On July 14, 2018, Petitioner again declined the appointment of counsel.
T. 17. On July 15, 2008, the State’s Attorney indicated an agreement had been
reached, but Petitioner then stated that there was a problem so the matter was
continued until that issue could be resolved. T. 23-24. Petitioner again waived
his right to counsel. T. 26. On July 21, 2008, Petitioner indicated he needed a
“Motion of Discovery” (T. 29), so the Court proceeded with arraignment and
appointed counsel. See T. 29 (missing page 3 of the transcript); see also Jan.
12, 2012 Tr., T. 60 (noting that counsel was appointed on July 21, 2008 when
Petitioner did not respond to the judge about counsel). As noted, Petitioner
pleaded guilty to the Indictment (returned July 24) on July 29, 2008.
5
Page 10 of 26
In addition, on November 29, 2016, counsel entered an appearance
for Petitioner, although counsel has not filed anything on
Petitioner’s behalf.
II. ANALYSIS
Respondent argues that Petitioner’s § 2254 Petition is
untimely under the one-year statute of limitations set forth in 28
U.S.C. § 2244(d)(1) and should be dismissed. Section 2244(d)(1)
provides as follows:
(1)
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. The limitation period shall run
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;
(C) the date on which the
constitutional right asserted was
initially recognized by the Supreme
Page 11 of 26
Court, if the right has been newly
recognized by the Supreme Court
and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual
predicate of the claim or claims
presented could have been
discovered through the exercise of
due diligence.
Section 2244(d)(2) further provides that “[t]he time during which a
properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this
subsection.” 28 U.S.C. §2244(d)(2).
Petitioner argues his claims are timely under § 2244(d)(1)(A)
because he timely filed his state post-conviction proceedings, under
§ 2244(d)(1)(B) because the State’s Attorney failed to send him the
DNA results after having them for nearly three years, and under
§ 2244(d)(1)(D) because he filed within one year of the date on
which the factual predicate of the claim could have been discovered
through the exercise of due diligence.
The timeliness of each claim asserted in a § 2254 petition
must be considered independently. Davis v. United States, 817 F.
Page 12 of 26
3d 319, 328 (7th Cir. 2016). The Court will consider the timeliness
of Petitioner’s claims that his guilty plea was not voluntarily,
knowingly, and intelligently entered (Ground One), that he was
deceived into waiving his Miranda rights (Ground Two), and that
counsel was ineffective for failing to investigate the exculpatory DNA
evidence (Ground Three). The Court will not consider separately
Petitioner’s actual innocence claim because the United States
Supreme Court has not yet decided whether a freestanding actual
innocence claim may be brought in a habeas petition. See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not
resolved whether a prisoner may be entitled to habeas relief based
on a freestanding claim of actual innocence”); but see Gomez v.
Jaimet, 350 F.3d 673, 679 n.1 (7th Cir. 2003) (noting that,
although the majority opinion in Herrera v. Collins, 506 U.S. 390
(1993) “appears to bar a habeas claim based solely on actual
innocence, the concurring opinion of Justices O’Connor and
Kennedy makes clear that a majority of justices agree that habeas
relief would be warranted upon a truly persuasive showing of actual
innocence, at least in a capital case”). Instead, the Court will
examine actual innocence as a means of reaching otherwise
Page 13 of 26
untimely claims. See McQuiggin, 133 S. Ct. at 1928 (holding that a
convincing showing of actual innocence can overcome a procedural
bar or the expiration of the statute of limitations),
A.
The Petition is Untimely Under § 2244(d)(1)(A)
Under 28 U.S.C § 2244(d)(1)(A), the relevant date for starting
the limitations period for filing the federal habeas petition is the
date on which Petitioner’s conviction became final by the conclusion
of direct review or the expiration of the time for seeking such review.
Because Petitioner did not file a direct appeal, his conviction
became final when the time for seeking direct review expired.
Petitioner was sentenced on July 29, 2008. Pursuant to
Illinois Supreme Court Rule 604(d), a defendant who pleads guilty
may not appeal unless the defendant files a motion to withdraw the
guilty plea within 30 days after the sentence is imposed. Ill. S. Ct.
R. 604(d). Petitioner neither filed a motion to withdraw his guilty
plea nor a notice of appeal. Therefore, the time for seeking direct
review expired on August 28, 2008—30 days after the trial court
sentenced Petitioner. See Page v. Anglin, No. 13 C 4298, 2013 WL
6050621, at *2 (N.D. Ill. Nov. 15, 2013) (holding that the petitioner
had 30 days from the date of sentencing to take the steps necessary
Page 14 of 26
under Illinois Supreme Court Rule 604(d) to file an appeal; his
conviction became final for purposes of § 2244(d)(1)(A) when those
30 days expired).
Because the time for seeking direct review expired on August
28, 2008, Petitioner had until August 28, 2009 to file his federal
habeas petition, unless the time was tolled by a properly filed
application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim. 28 U.S.C. § 2244(d)(2).
Petitioner did not file a state post-conviction petition until October
28, 2010, well after the expiration of the one-year period calculated
under § 2244(d)(1)(A). State post-conviction proceedings that are
filed after expiration of the one-year statute of limitations do not
restart the one-year period. De Jesus v. Acevedo, 567 F.3d 941,
943 (7th Cir. 2009) (“It follows that a state proceeding that does not
begin until the federal year has expired is irrelevant.”); Graham v.
Borgen, 483 F.3d 475, 483 (7th Cir. 2007) (holding that a petition
for collateral review filed after the federal habeas statute of
limitations has expired does not toll the one-year statute of
limitation). Therefore, under § 2244(d)(1)(A), all of the claims are
untimely.
Page 15 of 26
B.
The Petition is Untimely Under § 2244(d)(1)(B)
Under § 2244(d)(1)(B), the one-year limitations period begins to
run from “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[.]” 28 U.S.C. § 2244(d)(1)(B). Although the
statute does not define “impediment,” the Seventh Circuit has held
that “the plain language of the statute makes clear that whatever
constitutes an impediment must prevent a prisoner from filing his
petition.” Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002)
(emphasis in original) (finding that because the petitioner was able
to file his petition without a complete copy of his transcript, the
state’s failure to provide a complete transcript did not prevent the
petitioner from pursuing any of his claims); see also Estremera v
United States, 724 F.3d 773, 776 (7th Cir. 2013) (“Lack of library
access can, in principle, be an ‘impediment’ to the filing of a
collateral attack.”).
Petitioner argues that the State’s Attorney had the DNA results
as of August 28, 2008 but failed to send them to Petitioner until
Petitioner filed a FOIA request. Resp. at p. 5 (d/e 23). However,
Page 16 of 26
Petitioner knew when he pleaded guilty that DNA testing had not
been performed, and, therefore, that the DNA on the sheets did not
identify Petitioner as the donor of the semen. Moreover, Petitioner
knew that, by pleading guilty, DNA testing would not be done.
Therefore, he had no expectation that the State would provide those
results to him after he pleaded guilty.
In addition, Petitioner does not allege when he requested the
results or that the State delayed providing those results to him for
any extensive period of time after Petitioner’s request. Instead, the
record suggests that Petitioner sought the results in 2011 and
received them in August 2011. T. 97 (Petitioner testifying at the
state post-conviction evidentiary hearing that he received the
results in August 2011 but, when asked if that was when he
requested the DNA results, testifying that “I didn’t know it even
existed”); T. 140 (prosecutor questioning the investigator at state
post-conviction evidentiary hearing and referring to the “recent”
FOIA request for the DNA results).
In addition, the failure to receive the DNA results did not
prevent Petitioner from filing his § 2254 Petition, as evidenced by
the fact that Petitioner filed his state post-conviction petition and
Page 17 of 26
amended petition in October 2010 and May 2011, before Petitioner
even received the DNA results. Consequently, the State’s alleged
failure to turn over the DNA results did not constitute a statecreated impediment that prevented Petitioner from filing his § 2254
petition alleging that his guilty plea was not voluntarily, knowingly,
and intelligently entered (Ground One) or alleging that counsel was
ineffective for failing to investigate the DNA evidence (Ground
Three). Petitioner has not identified any alleged impediment that
prevented him from filing his claim that the prosecutor deceived
Petitioner into waiving his Miranda rights (Ground Two). Therefore,
all of Petitioner’s claims are untimely under § 2254(d)(1)(B).
C.
The Petition is Untimely Under § 2244(d)(1)(D)
Under § 2244(d)(1)(D), the one-year period begins to run on
the date on which the factual predicate of the claim presented could
have been discovered through the exercise of due diligence.
Petitioner essentially argues that his § 2254 Petition is timely
because he discovered the DNA results in August 2011. At that
time, his state post-conviction petition was pending and, according
to Petitioner, tolled the limitation period until March 26, 2014,
when the Illinois Supreme Court denied Petitioner’s petition for
Page 18 of 26
leave to appeal. Therefore, Petitioner asserts that he timely filed his
§ 2254 Petition on March 19, 2015.
Under § 2244(d)(1)(D), the one-year time period begins to run
when the evidence could have been discovered through diligent
inquiry, not when it was actually discovered or its significance
realized. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2001); see
also Villanueva v. Anglin, 719 F.3d 769, 774 (7th Cir. 2013) (noting
that the petitioner’s “subjective knowledge of the important facts
starts the limitation clock, but the clock also starts at the time a
reasonable person would have discovered those facts”). The factual
predicate for all three grounds that Petitioner raises in his § 2254
Petition—that the plea was not voluntarily, knowingly, or
intelligently entered, that the prosecutor deceived Petitioner into
waiving his Miranda rights, and that counsel failed to investigate
exculpatory DNA evidence—was known to Petitioner when he
pleaded guilty. Petitioner knew when he pleaded guilty that the
DNA had not and would not be tested and knew that his counsel
had not investigated the DNA evidence. Petitioner also knew all of
the facts pertaining to his interviews and the waiver of his Miranda
rights.
Page 19 of 26
In addition, even assuming that the DNA results formed the
factual basis of Petitioner’s § 2254 claims, Petitioner has not shown
that he was diligent in seeking those results. The DNA results were
available at least by August 28, 2008, the date of the report.
Therefore, the results could have been discovered through the
exercise of due diligence far earlier than August 2011 when
Petitioner received them. In fact, the record suggests that Petitioner
did not even seek the DNA results until sometime in 2011.
Therefore, he was not diligent, and all of the claims are untimely.
D.
Petitioner Has Not Demonstrated that the Actual
Innocence Exception to the Limitations Period Applies
The Court may also reach Petitioner’s constitutional claims if
Petitioner can make a credible showing of actual innocence.
McQuiggin, 133 S. Ct. at 1928 (recognizing that an actual
innocence claim may overcome the expiration of the statute of
limitations). To make the requisite showing, a petitioner must
demonstrate that, more likely than not, in light of the new evidence,
any reasonable juror would have reasonable doubt. House v. Bell,
547 U.S. 518, 538 (2006) (also noting that “absolute certainty about
the petitioner’s guilt or innocence” is not required). In assessing a
Page 20 of 26
petitioner’s showing, the district court looks at “all of the evidence,
both old and new, incriminating and exculpatory, without regard to
whether the evidence would necessarily be admitted under rules of
admissibility that would govern at trial.” Id. (internal citations and
quotation marks omitted).
A petitioner must support an actual innocence claim “with
new reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence –that
was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995) (noting that because such evidence is rarely available,
actual-innocence claims are rarely successful). The evidence must
be “documentary, biological (DNA), or other powerful evidence:
perhaps some non-relative who placed him out of the city, with
credit card slips, photographs, and phone logs to back up the
claim.” Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005).
Pleading guilty is not an absolute bar to an actual innocence
claim. Bousley v. United States, 523 U.S. 614, 623-24 (1998).
However, the fact of the plea is evidence that the defendant
committed the crimes to which he pleaded. Ryburn v. Ramos, No.
09-cv-1176, 2014 WL 51880, at *4 (C.D. Ill. Jan. 7, 2014) (noting
Page 21 of 26
that while pleading guilty does not bar an actual innocence claim,
“pleading guilty to a crime certainly makes it difficult for a court to
conclude it is likely no reasonable juror would find the petitioner
guilty beyond a reasonable doubt of the very crime to which he
plead[ed]”).
Finally, if the prosecution “has foregone more serious charges
in the course of plea bargaining, petitioner’s showing of actual
innocence must also extend to those charges.” Bousley, 523 U.S. at
624; United States v. Taghon, No. 2:07-cr-149, 2:08-cr-184, 2016
WL 5247923, at *7 (N.D. Ind. Sept. 21, 2016) (requiring the
petitioner to demonstrate he was actually innocent of the charges
dismissed by government during plea negotiations to overcome the
expiration of the statute of limitations). The actual innocence
standard is demanding and “permits review only in the
‘extraordinary’ case.” House, 547 U.S. at 538.
Petitioner has not made a credible showing of actual
innocence. Petitioner knew when he pleaded guilty that the DNA
had not been tested and believed at that time that his DNA was not
on the sheets. See Hubbard, 2013 IL App (5th) 120033-U, ¶ 4 (at
the plea hearing, “counsel for the defendant acknowledged that the
Page 22 of 26
DNA evidence from the sheets did not identify the defendant as the
donor of the semen”); T. 89 (Petitioner testifying at the state court
post-conviction evidentiary hearing that he told the investigator that
he would not find Petitioner’s DNA on the sheets). Therefore, in
that regard, the evidence is not truly “new.” See, e.g., Jones v.
Calloway, 842 F.3d 454, 461 (7th Cir. 2016) (noting that “new” does
not mean newly discovered but means evidence that was not
presented at trial). That is, at the time Petitioner pleaded guilty, the
evidence before the court was that the DNA evidence from the
sheets did not identify Petitioner as the donor of the semen.
Even if the DNA results do constitute new, reliable evidence,
Petitioner has not demonstrated that, more likely than not, in light
of the new evidence, any reasonable juror would have reasonable
doubt. Although the victim indicated that the sheets contained
ejaculate from Petitioner when she turned them over to the police,
the absence of his DNA on the sheets does not exonerate him. A
jury would also hear evidence that the victim did not turn over the
sheets until several months after the assault and that Petitioner
told police that he did all of the laundry in the residence. See
Hubbard, 2013 IL App (5th) 120033-U, ¶ 9 (noting the defendant’s
Page 23 of 26
statement to the police that he did all of the laundry and that the
house was so messy he often could not tell which laundry was clean
and which was dirty; also noting that the incident was alleged to
have occurred between January 21, 2008, and February 5, 2008,
but the sheets were not turned over until May 2008). Further,
Defendant confessed to the police that he had had sex with the
victim. Id. ¶ 4 (describing the factual basis for the plea). The
victim’s mother and friend gave statements to the police that the
victim told them about the assault. Id.; see also Hickman v.
Director, TDCJ-CID, No. 6:14CV52, 2015 WL 294334, at *12 (E.D.
Tex. Jan. 22, 2015) (overruling the petitioner’s objections to and
adopting the Report and Recommendation, which held that, even if
the evidence had been tested and the petitioner’s DNA was not
found, that did not prove that the petitioner did not sexually assault
the victim because of the other evidence, including eyewitness
testimony).
Finally, Petitioner has not shown he is actually innocent of the
two additional sexual assaults that the State declined to charge as
part of the plea agreement. See Lewis v. Peterson, 329 F.3d 934,
937 (7th Cir. 2003) (holding that the petitioner must also
Page 24 of 26
demonstrate he was actually innocent of charges dismissed by the
government that were as serious as the charge to which the
petitioner pleaded guilty, not just those dismissed charges that were
more serious); United States v. Caso, No. 07-332(RCL), 2012 WL
12905865, at *4 (D.D.C. Jan. 12, 2012) (“It thus cannot be the case
that the absence of a charge in an indictment or information is
dispositive; if sufficient record evidence that the government
considered a charge exists, the defendant must establish his
innocence of that charge to cure a procedural default.”). Therefore,
he cannot succeed on his actual innocence claim on that ground, as
well.
In sum, Petitioner has failed to meet the high burden of
showing that actual innocence should excuse the untimely claims
in Petitioner’s § 2254 Petition.
III. CERTIFICATE OF APPEALABILITY IS DENIED
Rule 11(a) of the Rules Governing Section 2254 Cases requires
the Court to issue or deny a certificate of appealability when it
enters a final order adverse to the petitioner. “When the district
court denies a habeas petition on procedural grounds without
reaching the prisoner's underlying constitutional claim,” a
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certificate of appealability should issue only when the prisoner
shows both “that jurists of reason would find it debatable whether
the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000); see also Jimenez v.
Quarterman, 555 U.S. 113, 118 n.3 (2009). Because the
untimeliness of Petitioner’s § 2254 Petition is not debatable, the
Court declines to issue a certificate of appealability.
IV. CONCLUSION
For the reasons stated, Respondent Cecil Polley’s Motion to
Dismiss Habeas Corpus Petition as Untimely (d/e 16) is GRANTED
and Petitioner’s § 2254 Petition (d/e 1) is DISMISSED WITH
PREJUDICE. A certificate of appealability is DENIED. This case is
closed.
ENTER: February 1, 2017
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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