Dole v. Pfister et al
Filing
104
MEMORANDUM Opinion and Order: The Court dismisses Dole's habeas petition 1 with prejudice. The Court denies a certificate of appealability. Civil case terminated. Signed by the Honorable Jorge L. Alonso on 10/21/2021. Notice mailed by Judge's staff (lf, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOSEPH RODNEY DOLE,
Petitioner,
v.
RANDY PFISTER, Warden,
Stateville Correctional Center,
Respondent.
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No. 15 C 11874
Judge Jorge L. Alonso
MEMORANDUM OPINION AND ORDER
More than a decade after a jury found petitioner Joseph Rodney Dole (“Dole”) guilty of
the aggravated kidnapping and first-degree murders of two men, he filed this petition for writ of
habeas corpus. Defendant argues that the petition is untimely. For the reasons set forth below,
the Court dismisses the petition with prejudice.
I.
BACKGROUND
In early April 1998, Jose Romero (“Romero”) and Jose Segura (“Segura”) were beaten to
death and their bodies were burned in a stolen van. By the end of April 1998, petitioner Dole
was arrested in Florida, where he had gone to hide. Dole was charged with the aggravated
kidnapping and first-degree murders of both victims on an accountability theory. The State’s
theory was that Dole, as leader of the Pimptown Latin Kings, hoped Romero and Segura would
tell him the location of Steven Venegas (“Venegas”), a rival gang member whom Dole wanted to
silence before Venegas could be called as a witness against a Pimptown Latin King accused of
murder. A jury convicted Dole of all four counts, and a judge sentenced him to two concurrent
terms of natural life imprisonment for the murders and two consecutive terms of 30 years for the
kidnappings. [Docket 11-1 at 11].
A number of witnesses testified at Dole’s trial. A witness from the Chicago Police
Department’s forensic services team testified that early on the morning of April 4, 1998, he was
called to a vacant lot where he saw a partially burned white minivan containing two charred
bodies. [Docket 11-1 at 3]. A bomb and arson expert testified that the cause of the fire was an
accelerant poured into the van and then ignited. [Docket 11-1 at 3]. He also testified that he had
found partially burned gloves (one turned partially inside out) at the scene. [Docket 11-1 at 3].
A police detective testified that the minivan had been stolen from a woman in Island Lake and
that the cause of Romero’s and Segura’s deaths had been strangulation. [Docket 11-1 at 3]. That
police detective also testified that he had figured out that the victims were Romero and Segura
when he spoke to a Sergeant about two missing persons, whose girlfriends were able to identify
the bodies. [Docket 11-1 at 3-4].
Another detective testified as to how the investigative trail led to Dole. Specifically, the
detective testified that, during the course of his investigation, he interviewed George Hernandez
(“Hernandez”), who identified the home (in Cicero) of Roberto Hurtado (“Hurtado”) as the
location “where the crimes first took place.” [Docket 11-1 at 4]. He testified that, on April 11,
1998, he and other police officers went to Hurtado’s home, where Hurtado and Hurtado’s
girlfriend, Lorena Bueno (“Bueno”), were present. [Docket 11-1 at 4]. The officers arrested
Hurtado and later Raul Dorado (“Dorado”) and Noel Deleon (“Deleon”). [Docket 11-1 at 4].
Bueno testified that Hurtado, Dorado, Deleon and Dole were all members of the Pimptown Latin
Kings. [Docket 11-1 at 4-5]. The detective testified that, on April 17, 1998, police located and
seized Dole’s red Dodge Durango from a Jewel parking lot in Hoffman Estates. [Docket 11-1 at
4].
2
Hernandez testified that Dole had been the leader of the Pimptown Latin Kings from
April 1997 (when the prior leader had been arrested) until April 1998. [Docket 11-1 at 6].
Hernandez testified that, in March 1998, at a meeting of the Pimptown Latin Kings, Dole told the
gang members they needed to find Steven Venegas because he was going to testify against other
Pimptown Latin Kings. [Docket 11-1 at 6].
Lorena Bueno testified that on April 2, 1998, she was at home with Hurtado and her four
children. [Docket 11-1 at 5]. At about 10:30 p.m., Dole telephoned Hurtado on his cell phone,
and Bueno heard Dole say “stay up.” [Docket 11-1 at 5]. Then Durado called, and Bueno heard
Hurtado give Durado their address. [Docket 11-1 at 5]. Hurtado told Bueno to go into the
bedroom with the children and not come out. [Docket 11-1 at 5]. From the bedroom, Bueno
heard the voices of Hurtado, Dorado, Deleon and another man whose voice she did not
recognize. [Docket 11-1 at 5]. Bueno heard the sound of someone being hit. [Docket 11-1 at 5].
About half an hour later, Bueno heard Dole’s voice, the sound of duct tape being removed from a
roll and the sound of someone being hit or punched. [Docket 11-1 at 5]. Although Bueno turned
up the radio and put a pillow over her head, she continued to hear the sound of someone being
beaten and heard Dole say “shut up.” [Docket 11-1 at 5].
Bueno testified that, eventually, she heard the sound of the men carrying something
heavy to the bathroom. [Docket 11-1 at 5]. Hurtado entered the bedroom and handed her $500.
Next, Dole entered the bedroom and told Bueno that he was taking Bueno and the children to a
hotel. [Docket 11-1 at 5]. Dole drove Bueno and the children to a hotel in his red Dodge
Durango and told her that, if anyone asked, to answer that neither Bueno nor Hurtado had left
their home that night. [Docket 11-1 at 6]. Bueno used the money Hurtado had given her to pay
3
for a room. [Docket 11-1 at 6]. About 24 hours later, Hurtado collected Bueno and the children
from the hotel. [Docket 11-1 at 6].
Hernandez testified that at about 11:30 p.m. on April 3, 2021, Dole called him and said
he needed Hernandez’s expertise, which Hernandez took to mean help stealing a vehicle.
[Docket 11-1 at 6]. Dole picked up Hernandez in Dole’s red Dodge Durango. [Docket 11-1 at
6]. (Hernandez’s girlfriend also testified to seeing Hernandez leave that night in Dole’s red
Dodge Durango and to seeing Hernandez take a coat hanger with him. [Docket 11-1 at 8].)
Hernandez testified that Dorado, Hurtado and Deleon were also in Dole’s Dodge Durango.
[Docket 11-1 at 6].
Hernandez testified that Dorado told him they had two dead bodies and needed a
minivan. [Docket 11-1 at 7]. Dole drove to an apartment complex where the men found a
minivan with an unlocked door. [Docket 11-1 at 7]. Hernandez started the minivan and
followed the red Dodge Durango to Hurtado’s apartment, where he saw, in a closet, two
bodies—wrapped in plastic and duct tape—that looked “like mummies.” [Docket 11-1 at 7].
Hurtado told Hernandez that Segura and Romero had not wanted to die so they had been pistol
whipped and beaten. [Docket 11-1 at 7]. Hernandez testified that Dole gave the men cloth
gloves, which they wore while carrying the bodies to the minivan. [Docket 11-1 at 7].
Hernandez testified that he drove the van to a vacant lot, where Dorado used a screwdriver to rip
the plastic off the bodies, over which Deleon poured gasoline. [Docket 11-1 at 8]. The men lit a
matchbook on fire and threw it in the minivan, which ignited a fire into which the men threw
their gloves. [Docket 11-1 at 8].
4
Hernandez testified that Dole drove him home and said that, if anyone asked, Hernandez
should say he was never with them. [Docket 11-1 at 8]. Hernandez’s girlfriend testified that
Hernandez returned home between 3:00 and 4:00 a.m. [Docket 11-1 at 8].
Bueno testified that, on April 10, 1998, the day before Hurtado’s arrest, Dole came to
their home and told Hurtado that the police were looking for him. [Docket 11-1 at 6]. Two days
earlier, according to the testimony of Nathan Steffen (“Steffen”) (another Pimptown Latin King
who had moved to Florida), Dole telephoned Steffen, told Steffen the neighborhood was “hot”
with police due to the murders of Romero and Segura and told Steffen he was coming to Florida.
[Docket 11-1 at 9]. Steffen testified that Dole arrived at Steffen’s home in Florida the week of
April 20, 1998. [Docket 11-1 at 9].
Steffen testified that after Dole arrived in Florida, Dole told him that they (he, Hurtado,
Deleon and Dorado) should not have been caught, because they had done it “so slick.” [Docket
11-1 at 9]. Dole told Steffen they had lured Segura and Romero under the guise of a drug deal
and that, once the men were at Hurtado’s home, they had tied the men up and beaten and
strangled them. [Docket 11-1 at 10]. Dole told Steffen he had left marks on the victims’ faces
from punching them. [Docket 11-1 at 9]. Steffen testified that Dole told him they had put the
bodies in the bathroom to drain the blood and then put the bodies in a stolen van that they
burned. [Docket 11-1 at 10]. Dole told Steffen that he planned either to go to Mexico for plastic
surgery or to return to Chicago and kill the remaining witnesses. [Docket 11-1 at 10]. Steffen
helped Dole hide at Steffen’s friend’s home in Bonita Springs, Florida. [Docket 11-1 at 9].
An FBI Agent testified that he had been working in Fort Myers, Florida when, on April
30, 1998, he received a federal warrant to search Steffen’s house. [Docket 11-1 at 8]. The FBI
Agent learned from a Chicago Police Officer that the Chicago Police Department suspected that
5
Dole was staying with Steffen. [Docket 11-1 at 8]. A lieutenant from the Lee County Sheriff’s
Office in Florida testified that Steffen was stopped in a taxi in Ft. Myers. [Docket 11-1 at 9].
The taxi driver told the lieutenant that he had picked up Steffen at a residence in Bonita Springs.
[Docket 11-1 at 9]. When the police searched that house in Bonita Springs, they found Dole on
the floor of a bedroom closet and arrested him. [Docket 11-1 at 9].
On direct appeal, the First District affirmed. Among other things, the Illinois Appellate
Court stated:
The State argues that they have proven the defendant guilty under a theory
of accountability. Under the statute, a person is accountable for the actions of
another when ‘[e]ither before or during the commission of an offense, and with
the intent to promote or facilitate such commission, he solicits, aids, abets, agrees
or attempts to aid, such other person in the planning or commission of the
offense.’ 720 ILCS 5/5-2(c) (West 2000).
Active participation is not a requirement for imposing liability under a
theory of accountability. Also, the intent to promote or facilitate the commission
of a crime can be shown by evidence that the defendant shared the criminal intent
of the principal or by evidence that there was a common design or community of
unlawful purpose. ‘Circumstances especially pertinent to the establishment of a
common design include: presence at the scene of the crime without disapproval
or opposition; a continued close association with perpetrators after the criminal
act; a failure to report the incident to the authorities; and/or the subsequent
concealing or destroying of evidence of the crime.’
* * *
In the instant case, the testimony revealed that the defendant was present while
the victims were beaten to death. The defendant was instrumental in removing
the witness, Lorena Bueno, from the scene and in disposing of the victim’s
bodies. We agree with the State that the defendant never reported the crime to the
police, he continued to associate with the co-defendants, he did not oppose the
crime, and he participated in destroying the evidence. After carefully reviewing
the record below and viewing the evidence in the light most favorable to the
prosecution, we find that the State proved the defendant’s guilt beyond a
reasonable doubt.
Illinois v. Dole, 1-01-0296, Slip Op. at 21-22, 24 (Nov. 26, 2002) (internal citations omitted)/
Docket 11-1 at 21-22, 24.
6
On November 19, 2004, the Illinois Supreme Court denied Dole’s motion for leave to file
a late petition for leave to appeal. [Docket 11-2 at 1]. On February 14, 2005, the Supreme Court
of the United States notified Dole that his petition for writ of certiorari was being returned to
him, because the “order dated November 19, 2004 from the Illinois Supreme Court does not
appear to be a denial of a timely filed petition for discretionary review.” [Docket 11-3 at 1].
On or about May 4, 2005, Dole filed in the Circuit Court of Cook County his first petition
for post-conviction relief. [Docket 11-4]. Dole’s petition quoted liberally from the trial
transcript and was sent from his prison in Tamms, Illinois. [Docket 11-4 at 2, 3, 11-18]. Dole
included an affidavit with his post-conviction petition. In it, he averred, among other things:
12.
That both Sam Shim and Richard Beuke represented me during my trial.
* * *
14.
That I have been unable to obtain all of my records from both Sam Shim
and Richard Beuke. Sam Shim informed my family that he didn’t have any of my
transcripts, discovery, etc., and that he returned everything to Richard Beuke’s
office. My mother, Sandra Lawrence, went down to Richard Beuke’s office to get
my records after he refuse [sic] to mail them to either myself or my mother after
months of requesting this. They allowed her to copy what they claimed was my
entire filed, which she did, but there were several things missing, namely the trial
transcripts, a lot of the discovery and several important motions, such as the
motion for new trial.
[Aff. ¶¶ 12, 14/Docket 11-4 at 23]. In June 2005, the Circuit Court dismissed petitioner’s
petition as “frivolous and patently without merit.” [Docket 11-5 at 2].
On May 21, 2007, the Illinois Appellate Court affirmed the dismissal of Dole’s postconviction petition. [Docket 11-5]. The Appellate Court, however, modified Dole’s sentence,
stating that, because Dole would already be spending his life in prison due to the two concurrent
life sentences for murder, he could not serve consecutively his 30-year sentences for kidnapping.
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[Docket 11-5 at 22]. Accordingly, the Appellate Court ordered Dole’s sentences to run
concurrently. [Docket 11-5 at 22].
On September 30, 2009, the Illinois Supreme Court denied Dole’s petition for leave to
appeal. [Docket 11-6]. Dole filed a motion for reconsideration. [Docket 11-7]. The Illinois
Supreme Court denied that motion, but it ordered the Appellate Court to reconsider its decision
in light of People v. Hodges, 234 Ill.2d 1204 (Ill. 2009). [Docket 11-7]. On March 26, 2010, the
Illinois Appellate Court issued its next decision, in which it again affirmed dismissal of Dole’s
post-conviction petition and ordered the sentences to run concurrently. [Docket 11-8]. The
Illinois Supreme Court again denied Dole’s motion for leave to appeal and again ordered the
Illinois Appellate Court to reconsider its decision in light of a new case, this time People v.
Petrenko, 237 Ill.2d 490 (Ill. 2010). [Docket 11-9]. On December 23, 2010, the Illinois
Appellate Court issued its next decision, in which it again affirmed the dismissal of Dole’s postconviction petition. [Docket 11-10 at 22]. It also noted that the Illinois Supreme Court, in
Petrenko, had recognized the value of consecutive sentences. [Docket 11-10 at 21-22].
Accordingly, the Illinois Appellate Court affirmed the Circuit Court’s original consecutive
sentence of Dole. [Docket 11-10 at 21-22]. The Illinois Supreme Court, on May 25, 2011,
denied Dole’s petition for leave to appeal. [Docket 11-11].
In or about May 2012, Dole filed in the Circuit Court of Cook County a motion for leave
to file a successive post-conviction petition. [Docket 11-12]. Dole argued, among other things:
Hernandez’s credibility was repeatedly impeached—he was a drug addict
and alcoholic who was both drunk and high on cocaine for days prior to and
during the timeline of the crimes, he had a [sic] extensive criminal history, made
numerous conflicting statements, received a deal of only five years in exchange
for his testimony, and failed a lie detector test. The State falsely rehabilitated his
credibility though by having him testify that he had only failed the polygraph
examination a little and had mostly passed. The defense had repeatedly requested
8
the polygraph examiner’s worksheet to dispute this, but the State suppressed
them.
Petitioner has recently learned why they were suppressed. Because the
worksheet proves unequivocally that Hernandez’s testimony about mostly passing
the test and only failing where he lied about trying to light the matches, was false.
By filing an Illinois FOIA request with the Chicago Police Department under the
amended FOIA, Petitioner received the worksheet that the State refused to
disclose, and which Petitioner had tried unsuccessfully to get before the FOIA
was amended. His prior letters and requests to the CPD and other police
departments were routinely ignored. . . .
The polygraph examiner only asked Hernandez whether he had been
involved in the murders and kidnappings. Hernandez answered “no” and the
result was “deception indicated.”
[Docket 11-12 at 2].
The Circuit Court of Cook County dismissed Dole’s motion for leave to file a successive
petition for post-conviction relief. On April 9, 2015, the Illinois Appellate Court affirmed.
[Docket 11-13]. The Illinois Appellate Court stated, among other things:
To succeed on a claimed Brady violation, a defendant must demonstrate:
(1) the undisclosed evidence is favorable because it is either exculpatory or
impeaching; (2) the evidence was either willfully or inadvertently suppressed by
the State; and (3) the accused was prejudiced because the evidence is material to
guilt or innocence. . . .
First, defendant fails to show that the State willfully or inadvertently
suppressed Hernandez’s worksheet in violation of Brady. Our review of the
record reveals that prior to trial, defense counsel requested the worksheet and
discussed admitting the worksheet into evidence. The State responded that it had
yet to receive the worksheet. The parties then agreed to discuss the issue prior to
Hernandez’s testimony; however, there is no indication in the record that the issue
was again addressed at trial. The record clearly shows that both parties were
aware of the polygraph worksheet. Defendant’s claim of a Brady violation is not
supported by the fact that the State never pursued the material. Because the
worksheet was never again referenced by either party, it is reasonable to assume
that defense counsel abandoned pursuit of the document. Even so, there was
nothing to prevent defendant from raising the issue either on direct appeal or in
his initial postconviction petition. Therefore, defendant’s contention fails the
second prong of the Brady test. Accordingly, because we find no Brady violation,
defendant has failed to show cause.
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Even assuming the defendant could show cause, defendant cannot
demonstrate that he was prejudiced as a result of the unavailability of the
worksheet. A review of the worksheet indicates that Hernandez was deceptive
during the polygraph exam, and had the worksheet been made available, defense
counsel may have attempted to use it to impeach Hernandez by contradicting his
testimony that he was ‘mostly telling the truth’ during the exam. However, we do
not find that the omission of evidence that merely impeaches a witness rises to the
level of an error that so infected defendant’s trial that the resulting conviction
violated due process. While defendant is correct that Hernandez’s testimony was
essential to the State’s case; both Steffen and Bueno also provided credible
testimony that established that defendant participated in the murders.
Steffen testified that defendant admitted to him that he, Hurtado, DeLeon,
and Dorado lured Romero and Segura to Hurtado’s apartment under the guise of a
drug deal. Once at Hurtado’s apartment, they tied the men up and then beat and
strangled them in an effort to locate Venegas. Defendant admitted to putting the
bodies of Romero and Segura in a bathtub and eventually burning the bodies of
Romero and Segura in a stolen van. Defendant also told Steffen that Bueno was
in the apartment during the beatings. Additionally, Bueno testified that she was in
her bedroom when she heard defendant’s voice in her living room and the sounds
of someone being hit. She also heard the sound of duct tape being pulled off of its
roll, and the sound of something heavy being carried toward the bathroom. . . .
Following the beatings, defendant took Bueno and her children to a motel and told
her that if anyone asked she was to tell them that neither she nor Hurtado left the
apartment that night. The presence of the worksheet at trial would not have
contradicted either the testimony of Steffen or Bueno. Additionally, none of the
questions asked during the polygraph exam were material to defendant’s guilt or
punishment. In fact, Hernandez never mentioned defendant’s role in the murders
during the exam. Because there is no reasonable probability that the availability
of the worksheet at trail would have resulted in a different outcome, defendant
fails to show prejudice.
[Docket 11-13 at 5-6 (emphasis added)/People v. Dole, Case No. 12-2305, 2015 IL App (1st)
122305-U at ¶¶ 26-29 (emphasis added) (internal citations omitted)]. The Illinois Supreme
Court denied Dole’s petition for leave to appeal. [Docket 11-14].
In late December 2015, Dole filed this federal habeas petition. Dole originally filed his
petition pro se, but he has been represented by counsel since December 2016, when a professor
with whom Dole had been corresponding hired him counsel. [Docket 92 at 2].
10
II.
DISCUSSION
A.
Limitations period
Respondent argues that Dole’s habeas petition should be dismissed as untimely. By
statute:
(1) A 1-year limitation period 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 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.
(2) The 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) (emphasis added). The 1-year limitation period is subject to equitable
tolling. Holland v. Florida, 560 U.S. 631 (2010).
11
1.
§ 2244(d)(1)(A)
Under § 2244(d)(1)(A), the time for filing runs from “the date on which the 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). In Dole’s case, that date was December 31, 2002. See
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012) (“the judgment becomes final ‘at the expiration of
the time for seeking such review’—when the time for pursuing direct review in this Court, or in
the state court, expires”). That is so, because the Illinois Appellate Court issued its decision on
direct review on November 26, 2002. The time for Dole to file a petition for leave to appeal with
the Illinois Supreme Court expired December 31, 2002. Ill. S.Ct. Rule 315(b)(1). Dole did not
file by that time. Thus, the 1-year limitation period, if § 2244(d)(1)(A) provides the latest date,
began to run on December 31, 2002 and expired on December 31, 2003. 1
Under § 2244(d)(2), the time during which a “properly filed” petition for State collateral
review is “pending” tolls that limitation period. Neither of petitioner’s post-conviction petitions
were pending before the expiration (the earliest petition having been filed in May 2005), so
neither tolled the expiration. See, e.g., Teas v. Endicott, 494 F.3d 580, 582-83 (7th Cir. 2007).
Petitioner’s successive petition, even had it been pending before the expiration, would not have
tolled the limitation period, because it was not properly filed. Pace v. DiGuglielmo, 544 U.S.
1
Dole does not argue (and nothing in the statute would support an argument) that Dole’s
subsequently-filed petition (which was denied) for leave to file a late petition for leave to appeal
somehow extended the deadline. See Alexander v. Yurkovich, Case No. 10 C 3475, 2013 WL
139872 at *2-3 (N.D. Ill. Jan. 10, 2013) (“[Petitioner] then had thirty-five days, or until March 3,
2008, to file a timely petition for leave to appeal to the Illinois Supreme Court. . . . He did not do
so; thus, his conviction became final under § 2244(d)(1)(A) on March 3, 2008, and he had one
year, or until March 3, 2009, to file his federal habeas petition. . . . The fact that [petitioner]
filed a motion for leave to file a late petition for leave to appeal with the Illinois Supreme Court .
. ., which was ultimately denied, does not alter this conclusion.”).
12
408, 417 (2005) (if a state court “reject[s] petitioner’s PCRA petition as untimely, it was not
‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2)).
2.
§ 2244(d)(1)(B)-(D)
Neither party suggests that either § 2244(d)(1)(B) (when a State prevents a petitioner
from filing) or § 2244(d)(1)(C) (when the Supreme Court recognizes a new right) applies to this
case. Thus, neither section offers petitioner a “lat[er]” date than § 2244(d)(1)(A).
Dole, however, argues that § 2244(d)(1)(D) applies and offers a later date from which the
1-year limitation period would run. Under that section, the 1-year period runs from “the date on
which the factual predicate of the claim or claims presented could have been discovered through
the exercise of due diligence.” 28 U.S.C § 2244(d)(1)(D).
Dole first argues that, under § 2244(d)(1)(D), the 1-year limitation period runs from
December 17, 2014, the date he received “complete polygraph worksheets for Hernandez.”
[Docket 31 at 11]. The Court disagrees. What Dole received on December 17, 2014 was merely
corroborating evidence; December 17, 2014 was not the date he discovered the factual predicate.
“Section 2244(d)(1)(D) does not restart the time when corroborating evidence becomes
available; if it did, then the statute of limitations would fail in its purpose to bring finality to
criminal judgments.” Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005), abrogated on
other grounds McQuiggen v. Perkins, 569 U.S. 383 (2013); Rivera v. Pollard, 504 Fed. Appx.
502, 505 (7th Cir. 2013) (“the date that [petitioner] discovered the factual predicate for his claim
was not . . . in 2009 when the state trial court compiled a record of evidence[.] . . . Instead,
[petitioner] discovered the factual predicate for his claim . . . in 2001 when he read the police
report[.]”).
13
The record is clear that Dole was aware of the factual predicate no later than May 2012,
because that is when he included this issue in his petition for leave to file a successive postconviction petition. On or about May 2012, Dole filed in the Circuit Court of Cook County a
motion for leave to file a successive post-conviction petition. [Docket 11-12]. In that May 2012
petition, Dole argued, among other things:
Hernandez’s credibility was repeatedly impeached. . . . The State falsely
rehabilitated his credibility though by having him testify that he had only failed
the polygraph examination a little and had mostly passed. The defense had
repeatedly requested the polygraph examiner’s worksheet to dispute this, but the
State suppressed them.
Petitioner has recently learned why they were suppressed. Because the
worksheet proves unequivocally that Hernandez’s testimony about mostly passing
the test and only failing where he lied about trying to light the matches, was false.
By filing an Illinois FOIA request with the Chicago Police Department under the
amended FOIA, Petitioner received the worksheet that the State refused to
disclose[.] . . .
The polygraph examiner only asked Hernandez whether he had been
involved in the murders and kidnappings. Hernandez answered “no” and the
result was “deception indicated.”
[Docket 11-12 at 2]. Thus, the record is clear that Dole knew the factual predicate no later than
May 2012. The statute of limitations under § 2244(d)(1)(D), thus, expired one year later, i.e., no
later than May 2013. Dole did not file his federal habeas petition until more than two years later,
in December 2015. That was too late. 2
Dole argues in the alternative that his receipt of several documents in January 2012
restarted the clock under § 2244(d)(1)(D). (Plf. Am. Resp. at 9/Docket 31 at 13). The Court
need not consider whether the receipt of these documents restarted the clock, because, even if it
2
Dole concedes that the petition for leave to file a successive post-conviction action did not toll
the statute of limitations, because it cannot be deemed “properly filed.” [Pet. Am. Resp. at
12/Docket 31 at 16; see also Pet.Reply Brief at 5/Docket 94 at 5].
14
did, the deadline would have been January 2013, more than two years before Dole filed his
federal habeas petition.
Under § 2244(d)(1), Dole’s habeas petition was untimely. Still, Dole’s petition could be
saved by equitable tolling.
B.
Equitable tolling
Dole next argues that equitable tolling should apply to his claim. Defendant disagrees. A
petitioner is:
‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his
rights diligently; and (2) that some extraordinary circumstance stood in his way’
and prevented timely filing.
Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Petitioner
has the burden of establishing these two elements. Tucker v. Kingston, 538 F.3d 732, 735 (7th
Cir. 2008). “[T]olling is rare; it is ‘reserved for extraordinary circumstances far beyond the
litigant’s control that prevented timely filing.’” Socha v. Boughton, 763 F.3d 674, 684 (7th Cir.
2014) (“We have properly enforced the high bar that the Court has erected in this area, but by the
same token we have not set that bar so high as to make equitable tolling impossible.”).
The plain meaning of extraordinary is unusual and rare. That is why “‘garden variety’
claims of excusable neglect” are “too common to be called ‘extraordinary’” and why a court
“cannot give the label ‘extraordinary’ to a trait that applies to 92% of prisoners filing petitions.’”
Socha, 763 F.3d at 685. Courts considering equitable tolling are “to evaluate the entire hand” a
“petitioner was dealt” rather than look for a “single trump card.” Socha, 763 F.3d at 686.
Nonetheless, certain facts can take a petitioner’s situation from ordinary to extraordinary. In
Socha, for example, the Seventh Circuit was persuaded by the fact that petitioner had alerted the
district court before the deadline of his difficulty obtaining files from his prior counsel. Socha,
15
763 F.3d at 687 (“Socha approached the court before his deadline expired, not after; this fact
alone sets his case apart from the great majority of those involving untimely filings.”) (emphasis
added). In addition, Socha had requested his file multiple times from his attorney and twice from
his attorney’s supervisor, because his attorney had ignored the supervisor’s direction to provide
the file. Ultimately, the supervisor “took matters into his own hands” and provided the file.
Socha, 763 F.3d at 679-80.
Dole argues that he suffered extraordinary circumstances, because he was housed at
Tamms Supermax Penitentiary “in extreme segregation” for “more than a decade.” [Docket 31
at 19]. Dole says he was there from March 2002 for a period of about ten years. [Docket 31 at
9]. Dole’s time there does not appear to have impacted his ability to file documents with courts.
The record reflects that Dole regularly sent courts documents during this period. Specifically, he
sent: a motion to the Illinois Supreme Court for leave to file a late petition for leave to appeal; a
petition for certiorari to the Supreme Court of the United States; a petition for post-conviction
relief to the Circuit Court of Cook County; an appeal of the Circuit Court’s denial of that
petition; at least three petitions for leave to appeal to the Illinois Supreme Court and a motion for
reconsideration to the Illinois Supreme Court. In any case, Dole’s incarceration at Tamms did
not affect his ability to file a federal habeas petition after he received the documents he says he
received in 2012. By the time Dole filed his May 2012 motion for leave to file a successive postconviction petition, he was no longer housed at Tamms. [Docket 11-12 at 6].
Dole also argues that his ability to file his federal habeas petition was impacted by his
inability to obtain his case file from the attorney who defended him at trial. [Docket 31 at 18].
The record does not back him up. Dole stated in a 2005 affidavit that his counsel had allowed
his mother to copy his case file, although a few items had been missing from it. [Docket 11-4 at
16
23]. Dole does not say how any of the missing items impacted his ability to file a federal habeas
petition. It is clear, though, that Dole would not have needed his case file to know that he needed
to obtain the Hernandez polygraph documents. Those documents were discussed at his trial.
[Docket 11-13 at 5-6]. Dole admits he knew about the polygraph documents during the trial.
Specifically, Dole submitted an affidavit in which he averred:
That prior to the start of court on April 18th, 2000 I asked my lawyer Richard
Beuke, whether or not he had received the polygraph examiner’s worksheets
From the State, to which he replied: “No.”
[Docket 1-2 at 105].
Dole has not described to this Court any extraordinary circumstance that stood in the way
of his filing a federal habeas petition between May 2012 (the latest date on which the 1-year
statute of limitations could have begun to run) and the date he filed his petition in 2015. During
that time, he managed to file with the Circuit Court of Cook County his request for leave to file a
successive post-conviction petition. “Mistakes of law or ignorance of proper legal procedures
are not extraordinary circumstances warranting invocation of the doctrine of equitable tolling.”
Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006). Equitable tolling does not save his
petition from being untimely.
Accordingly, the Court agrees with defendant that Dole’s habeas petition was untimely. 3
It is dismissed with prejudice.
3
Dole also states that the Court should consider his petition due to his actual innocence.
[Docket 31 at 24]. The argument is so poorly developed that it is waived, but it also fails on the
merits. Dole argues that his evidence “raises serious doubts about the veracity” of Hernandez
and Steffen and, together with Dole’s “persistent claims of innocence,” should convince the
Court to ignore the procedural default, a la McQuiggen, 569 U.S. 383. By Dole’s “claims of
innocence, his counsel means Dole’s affidavit saying, “I was not involved in the murders of Jose
Segura or Jose Romero.” [Docket 31-1 at 2].
17
C.
Certificate of Appealability
Finally, Rule 11(a) of the Rules Governing Section 2254 cases requires the Court to
consider whether to issue a certificate of appealability. Where, as here, a court denies a motion
for procedural reasons, a “litigant seeking a COA must demonstrate that a procedural ruling
barring relief is itself debatable among jurists of reason.” Buck v. Davis, __ U.S. __, __, 137
S.Ct. 759, 777 (2017); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Court does not think a reasonable jurist could debate whether Dole’s petition was
timely filed under § 2244(d)(1) or whether equitable tolling should apply. Accordingly, the
Court denies a certificate of appealability.
“To pass through the actual-innocence gateway to merits review of a procedurally barred
claim,” Dole would need to convince this Court it is “more likely than not that no reasonable
juror would have convicted him in light of the new evidence.” Jones v. Calloway, 842 F.3d 454,
461 (7th Cir. 2016). Dole has not done so. Dole was convicted on an accountability theory, not
for striking the fatal blows. Even without the testimony of Steffen and Hernandez, the jury still
heard the testimony of Bueno, whose testimony Dole in no way challenges. Bueno’s testimony
not only placed Dole at the scene of the crimes while the victims were being beaten but also
established Dole’s role in covering up the crimes. Bueno testified that Dole drove her and the
children to a hotel and told her to say that she and Hurtado had not left the apartment that night,
if anyone asked. Bueno’s testimony also established that Dole continued to associate with
Hurtado after the crime: Bueno testified that Dole came to their home on April 10, 1998 to warn
Hurtado that the police were looking for him. Dole did not report the crime; he fled to Florida.
18
III.
CONCLUSION
For the reasons set forth above, the Court dismisses Dole’s habeas petition with
prejudice. The Court denies a certificate of appealability. Civil case terminated.
SO ORDERED.
ENTERED: October 21, 2021
______________________
HON. JORGE ALONSO
United States District Judge
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