Dunn v. Williams

Filing 21

OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 3/23/2016. Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KEVIN R. DUNN,
Petitioner,
v.
RANDY PFISTER, Warden,
Respondent.

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No. 15 C 4508
Judge Sara L. Ellis

OPINION AND ORDER
Petitioner Kevin R. Dunn, who is currently incarcerated at Stateville Correctional Center,
is serving a life sentence for predatory criminal sexual assault of a child and a term of fifty-five
years for home invasion. 1 Dunn has petitioned this Court for a writ of habeas corpus [Doc. 1]
under 28 U.S.C. § 2254. Respondent Randy Pfister 2 moves to dismiss Dunn’s petition as timebarred, arguing that Dunn failed to file within the one-year statutory period and that equitable
tolling does not apply. Because the Court agrees and finds that Dunn’s petition is untimely, the
Court grants Respondent’s motion to dismiss [Doc. 10].
BACKGROUND
A jury convicted Dunn of one count of predatory criminal sexual assault of a child and
one count of home invasion following his trial in 2004 in the Circuit Court of Lake County,
Illinois. The judge sentenced him to a term of natural life on the predatory criminal sexual
assault of a child conviction and fifty-five years on the home invasion. 3 Dunn appealed his
conviction on both counts to the Illinois Appellate Court, which affirmed his conviction on
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It is unclear from the record whether the terms are to be served concurrently or consecutively.
Randy Pfister is the present custodian at Stateville Correctional Center and is substituted as the proper
Respondent in this matter. See Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts.
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See footnote 1 supra.
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September 25, 2006. Dunn filed a petition for leave to appeal (“PLA”) to the Illinois Supreme
Court that was denied on January 24, 2007. Dunn did not file a petition for a writ of certiorari
with the United States Supreme Court.
On April 27, 2015, Dunn moved for leave to file a state habeas corpus action pursuant to
735 Ill. Comp. Stat. § 5/10-101, et seq. The Illinois Supreme Court denied Dunn’s motion on
May 27, 2015. Dunn did not appeal that ruling. Meanwhile, Dunn filed the instant petition for a
writ of habeas corpus on May 21, 2015 in the Central District of Illinois. That District
transferred Dunn’s petition to this Court the same day.
ANALYSIS
The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) establishes a one-year
statute of limitations period for the filing of a writ of habeas corpus by a person in state custody.
28 U.S.C. § 2244(d)(1). Under 28 U.S.C. § 2244(d)(1)(A), the limitations period begins to “run
from the latest of [. . .] the date on which [a petitioner’s] judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review[.]” 28 U.S.C. §
2244(d)(1)(A). Dunn’s judgment thus became final on April 24, 2007; ninety days after the
Illinois Supreme Court denied his direct appeal and the time for filing a writ of certiorari with the
U.S. Supreme Court expired. See Gonzalez v. Thaler, --- U.S. ---, 132 S. Ct. 641, 653-54, 181 L.
Ed. 2d 619 (2012) (judgment becomes final when time for pursuing direct review to the Supreme
Court expires); Anderson v. Litscher, 281 F.3d 672, 674-75 (7th Cir. 2002) (finding that ninetyday period for filing petition for certiorari “falls within the meaning of section 2244(d)(1)(A) for
purposes of determining when the statute of limitations begins to run.”). To be timely, Dunn
should have filed his federal habeas petition by April 24, 2008. See Fed. R. Civ. P. 6(a); Newell

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v. Hanks, 283 F.3d 827, 833 (7th Cir. 2002) (Rule 6(a) applies to calculating AEDPA’s grace
period).
The one-year statute of limitations is tolled, however, while “a properly filed application
for State post-conviction or other collateral review with respect to the pertinent judgment or
claim is pending.” 28 U.S.C. § 2244(d)(2). Dunn filed a post-conviction petition (his state
habeas petition) in the Illinois Supreme Court on April 27, 2015. That filing is irrelevant for
tolling purposes, however, because he filed the state habeas petition after the one-year statute of
limitations for filing his § 2254 petition had already expired. See Teas v. Endicott, 494 F.3d 580,
582-83 (7th. Cir. 2007) (where limitations period under § 2244(d)(1)(A) expired before filing of
state post-conviction petition, no collateral review was pending in state court for tolling
purposes). Because Dunn had no application for collateral review pending in the state court
between April 24, 2007 and April 24, 2008, the one-year statute of limitations period ran
unabated and expired well before Dunn filed his state habeas petition in 2015, making his federal
habeas petition untimely.
Dunn does not address the statute of limitations issue in his response to the motion to
dismiss, but rather reargues the merits of his habeas petition. Although the Court reads Dunn’s
petition and response liberally, as it must do in pro se pleadings, it will not construct arguments
wholesale for him. See Small v. Endicott, 998 F.2d 411, 417-18 (7th. Cir. 1993) (“While the
courts liberally construe pro se pleadings as a matter of course, judges are not also required to
construct a party’s legal argument for him.” (internal citation omitted)). However, even if the
Court reads Dunn’s petition as arguing for statutory or equitable tolling, or for a miscarriage of
justice exception to the statute of limitations, those arguments fail.

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Section 2244(d)(1)(B) provides that the limitations period for filing a § 2254 petition is
statutorily tolled if the applicant was prevented from filing due to state action in violation of the
Constitution or laws of the United States, up until such impediment is removed. 28 U.S.C. §
2244(d)(1)(B). Even reading Dunn’s petition and response to the motion to dismiss liberally,
Dunn does not claim that he was unable to prepare his federal habeas petition due to a statecreated impediment. See Lloyd v. Van Natta, 296 F.3d 630, 633 (7th Cir. 2002) (“[T]he plain
language of the statute makes clear that whatever constitutes an impediment must prevent a
prisoner from filing his petition.”). The alleged failure of Dunn’s trial and appellate counsel to
pursue meritorious arguments is not “state action” for the purposes of § 2244(d)(1)(B). See Polk
County v. Dodson, 454 U.S. 312, 324-25, 102 S. Ct. 445, 70 L. Ed. 2d 59 (1981) (finding that a
“public defender does not act under color of state law when performing a lawyer’s traditional
function as counsel to a defendant in a criminal proceeding.”). Section 2244(d)(1)(B) tolling
thus does not apply here.
To be entitled to equitable tolling, Dunn must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 177 L. Ed. 2d 130 (2010)
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005)
(internal quotation marks omitted)). Dunn has not put forward any evidence of extraordinary
circumstances. Cf. id. at 684-87 (finding extraordinary circumstances where petitioner lacked
access to his legal file, spent large quantities of time in segregated status, had limited access to
the law library, and appealed to the district court for an extension within the one-year window).
And Dunn cannot demonstrate diligence in pursuing his rights given that he waited over eight
years to file his state and federal habeas petitions. See, e.g., Pace, 544 U.S. at 419 (finding lack

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of diligence in pursuing rights where petitioner waited five months after conclusion of state postconviction proceedings to file federal habeas petition). Dunn is therefore not entitled to
equitable tolling.
Dunn’s responsive brief contends that he is factually innocent which, read liberally, could
be seen as an argument for a miscarriage of justice exception to the statute of limitations. See
McQuiggin v. Perkins, ---U.S. ---, 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019 (2013) (holding
that actual innocence, if proved, serves as an exception to procedural bars, such as the expiration
of the statute of limitations). This exception is only applicable where the petitioner presents new
reliable evidence and persuades the court that, in light of such evidence, it is more likely than not
that “no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 327-29, 115 S. Ct. 851, 130 L. Ed. 2d 808
(1995)). Dunn has not proffered any new reliable evidence to support his contention of actual
innocence. Instead, he reargues the evidence already presented during his jury trial and on direct
appeal. This is insufficient to warrant application of the miscarriage of justice exception. See
Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003) (“To support a colorable claim of actual
innocence the petitioner must come forward with new reliable evidence…that was not presented
at trial.” (citation omitted) (internal quotation marks omitted)).
Finally, Dunn’s petition could be read as arguing that the Court should look beyond the
timeliness issue to consider his arguments on the merits. The Court is required, however, to
resolve statute of limitations issues before it may look at the substance of a habeas petition. See
Bowers v. Buss, 422 F. Supp. 2d 985, 987 (N.D. Ind. 2006) (“Modern habeas corpus law
establishes several technical doctrines, including…statute of limitations, which a court must

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consider before reaching the merits of an applicant’s claims.”). Because the statute of limitations
issue is dispositive, the Court denies this argument to the extent Dunn has raised it.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2254 Cases, the Court must issue or
deny a certificate of appealability when it enters a final order adverse to a petitioner. In order to
be entitled to a certificate of appealability, a habeas petitioner must make a substantial showing
of a denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029, 154 L. Ed. 2d 542 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct.
3383, 77 L. Ed. 2d 1090 (1983)). A petitioner does this by showing that “reasonable jurists
could debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542
(2000) (quoting Barefoot, 463 U.S. at 893 n.4).
Here, a reasonable jurist could not find this Court’s ruling debatable because the petition
is clearly time-barred. See Slack, 529 U.S. at 484 (“Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the case, a reasonable jurist could not
conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.”). Accordingly, the Court declines to issue a certificate of
appealability.
CONCLUSION
For the foregoing reasons, Respondent’s motion to dismiss [Doc. 10] is granted. The
Court dismisses Dunn’s petition for a writ of habeas corpus pursuant to 22 U.S.C. § 2254 and
declines to certify any issues for appeal under 28 U.S.C. § 2253(c). The case is terminated.

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Petitioner is advised that this is a final decision terminating his case in this Court. If
Petitioner wishes to appeal, he must file a notice of appeal with this Court within thirty days of
the entry of judgment. See Fed. R. App. 4(a)(1). Petitioner need not bring a motion to
reconsider this Court’s ruling to preserve his appellate rights. However, if Petitioner wishes the
Court to reconsider its judgment, he may file a motion under Federal Rule of Civil Procedure
59(e) or 60(b). Any Rule 59(e) motion must be filed within 28 days of the entry of this
judgment. See Fed. R. Civ. P. 59(e). The time to file a motion pursuant to Rule 59(e) cannot be
extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e) motion suspends the deadline for
filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R. App. P. 4(a)(4)(A)(iv).
Any Rule 60(b) motion must be filed within a reasonable time and, if seeking relief under Rule
60(b)(1), (2), or (3), must be filed no more than one year after entry of the judgment or order.
See Fed. R. Civ. P. 60(c)(1). The time to file a motion pursuant to Rule 60(b) cannot be
extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing an
appeal until the Rule 60(b) motion is ruled upon only if the motion is filed within 28 days of the
entry of judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).

Dated: March 23, 2016

______________________
SARA L. ELLIS
United States District Judge

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