Reed v. Duncan
ORDER DISMISSING CASE with prejudice, denying habeas corpus petition and declining to issue a certificate of appealability. Further, the Court DIRECTS the Clerk of the Court to enter judgment. Signed by Judge David R. Herndon on 1/11/2018. (klh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LENN D. REED, SR.,
Case No. 15-cv-835-DRH-CJP
GLENN W. REED, JR.,
Case No. 15-cv-872-DRH-CJP
MEMORANDUM and ORDER
Lenn Reed and Glenn Reed (hereinafter Petitioners) are twin brothers who
were tried and convicted together in 1998 for first-degree murder and aggravated
vehicular hijacking in Madison County, Illinois.
They filed virtually
identical petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254 and
the Court consolidated the brothers’ petitions for briefing and decision. (Doc. 9).
For the following reasons, Petitioners’ petitions for habeas relief are dismissed as
Relevant Facts and Procedural History
In September 1994, Michael Ufert’s body was found in a remote area in
Madison County, Illinois, along with his wrecked 1993 Ford Mustang. People v.
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Reed, 324 Ill. App. 3d 671, 673-74 (2001). Petitioners were initially suspects, but
no evidence linked them to the crime. Id. at 674. In 1996, an anonymous tip
prompted the police to investigate Petitioners’ cousin, Heather Weeden.
Weeden confessed and implicated Petitioners, along with their friend Andre
The State of Illinois (the State) charged Petitioners and tried them together.
Id. Cunningham agreed to cooperate with the State and his testimony served as
“the centerpiece of the State’s case.” Id. According to Cunningham, Petitioners,
Weeden, and Cunningham carried out a plot to hijack Ufert’s Ford Mustang. Id.
Weeden acted as bait and solicited Ufert with “romantic promise.” Id. at 673.
Petitioners and Cunningham watched from afar as Weeden entered Ufert’s vehicle.
Id. at 674. The men followed Ufert and Weeden to an isolated country road next
to a field, where the car came to a stop. Id. at 675. Ufert, finally cognizant of the
scheme, exited the car. Id. Lenn struck him in the face with a pistol and Ufert
ran into the nearby field. Id. Cuningham and Glenn chased Ufert and held him
captive. Id. Lenn, armed, approached Ufert, who was on his knees pleading for
Lenn shot Ufert in the face and gave the gun to Glenn with
instructions to shoot Ufert again. Id. Glenn fired a second shot in Ufert’s chest.
Glenn gave the gun to Cunningham, telling him to shoot Ufert or share a
similar fate. Id. Cunningham complied. Id.
The jury convicted Petitioners; Lenn was sentenced to seventy-five years
imprisonment and Glenn was sentenced to seventy-years imprisonment. Id. at
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On direct appeal, the Appellate Court of Illinois affirmed Petitioners’
convictions. Id. at 686. However, in light of Apprendi v. New Jersey, 530 U.S.
466 (2000), the court modified Lenn’s sentence, and vacated and remanded
Glenn’s sentence for new sentencing.
Id. at 685-86.
Petitioners filed a joint
petition for leave to appeal (PLA) to the Supreme Court of Illinois, which the court
denied on February 5, 2003. (Doc. 13, Ex. 1, pp. 19-20).
In September 2001, in the midst of the direct appeal proceedings,
Petitioners filed a post-conviction petition under Illinois’ Post-Conviction Hearing
Act, 725 ILCS 5/122-1 (West 2008). (Doc. 13, Ex. 7, p. 69). Several amendments
and motions pursued, and the court ultimately denied the petition in October
2009. Id. at 83. Petitioners appealed and the Appellate Court of Illinois affirmed
the denial on May 31, 2012. (Doc. 13, Ex. 1, pp. 21-23).
On July 18, 2012, Lenn wrote to the Clerk of the Supreme Court of Illinois
requesting permission for Petitioners to file a joint PLA. (Doc. 13, Ex. 1, p. 29).
The clerk wrote back,
Please be advised that a joint petition for leave to appeal cannot be filed
without the signature of both petitioners. Therefore, your brother, Glenn
W. Reed, Jr., must also sign the petition to attest to the fact that this
petition is being filed with his consent and knowledge.
We are forwarding one of your petitions for leave to appeal to your brother
today with a copy of this letter. If he agrees to the filing of this petition, it
will be Glenn’s responsibility to sign his name to the cover page and proof
of service of the petition, and to return the document to our office for filing
without delay. Please be advised you two only have until September 4,
2012, for the signed petition for leave to appeal to be timely submitted . . . .
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Id. at p. 30.
On March 18, 2014, Lenn wrote another letter to the clerk, stating
Petitioners timely filed a PLA but had not received a status update in a year. Id. at
p. 31. On March 25, 2014, the clerk responded that a PLA was not on file for
their case. Id. at 32.
Petitioners then filed a motion for leave to file a late PLA in April 2014. Id.
at pp. 24-27. The Supreme Court of Illinois denied the motion on September 23,
2014. (Doc. 13, Ex. 2, p. 1).
Petitioners filed the instant § 2254 petition on July 23, 2015. (Doc. 1).
Pursuant to 28 U.S.C. § 2254, persons in custody pursuant to a state court
judgment may bring a petition for a writ of habeas corpus “on the ground that he
is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). Petitions under § 2254 are subject to a limitations
period of one year and must clear several procedural barriers as well.
Respondent, here, alleges Petitioners’ claims are both procedurally defaulted and
1. Statute of Limitations
A petitioner must file a § 2254 within one year from the latest of several
events, including, as applicable here, “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). The time during which a properly filed State
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post-conviction proceeding is pending shall not be counted toward any period of
Petitioners filed a post-conviction petition in State court before a final
judgment was rendered in their direct appeal. The State petition therefore tolled
the statute of limitations for filing a § 2254 petition during its pendency.
The Appellate Court of Illinois affirmed the denial of Petitioners’ postconviction petition on May 31, 2012.
According to correspondence from the
Clerk of the Supreme Court of Illinois, Petitioners had until September 4, 2012 to
timely file a PLA. (Doc. 13, Ex. 1, p. 30). Petitioners failed to do so.
The Seventh Circuit has not decided whether a post-conviction petition is
“pending” during the time for filing a PLA when a petitioner does not file one.
Williams v. Buss, 538 F.3d 683, 685 (7th Cir. 2008) (“It is unnecessary to decide,
and we therefore reserve, the question whether time provided for filing a petition
or appeal to a higher court is treated as time during which an application is
pending, if the time expires without a filing.”).
The answer to this question,
however, ultimately makes no difference to the outcome of this case. Petitioners
had one year after either May or September of 2012 to file their habeas petition in
this Court and did not do so until 2015. The petition is therefore time-barred.
2. Procedural Default
Respondent also asserts Petitioners’ claims are procedurally defaulted. The
petition is clearly untimely under 28 U.S.C. § 2244’s statute of limitations, but for
the sake of completeness the Court will also address Respondent’s remaining
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Before a federal court can entertain a petition brought under § 2254,
principles of comity mandate a petitioner first give the state a “fair opportunity” to
address his constitutional claims by “invoking one complete round of the State’s
established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
Otherwise, the claims are procedurally defaulted and he cannot later
raise them in a § 2254 petition. Weddington v. Zatecky, 721 F.3d 456, 465 (7th
Cir. 2013). In Illinois’ two-tiered appellate system, a petitioner must present his
claims to an intermediate appellate court and to the Supreme Court of Illinois in
the form of a PLA, or throughout post-conviction proceedings.
Boerckel, 526 U.S. 838, 845 (1999).
Here, Petitioners raise the following arguments in their § 2254:
(1) The evidence was insufficient to convict because the State’s case rested
entirely on Cunningham’s testimony.
(2) The jury was improperly permitted to view an audio recording “that did
not have any relevance, but was prejudicial,” in violation of the due
(3) Cunningham’s testimony was perjured.
(4) The State led the jury to believe Cunningham would receive a twentyyear sentence for his role in the crime.
(5) Trial counsel was ineffective for failing to raise a fair cross-section
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(6) Trial counsel was ineffective for not introducing evidence that someone
else was responsible for the crime.
(7) Trial counsel was ineffective for not objecting to the late disclosure of the
hair evidence and not having the hair tested.
(8) The State’s disclosure of the hair evidence violated Brady v. Maryland,
373 U.S. 83 (1963).
(9) Trial counsel was ineffective for not presenting exculpatory fingerprint
Trial counsel’s offer of proof to admit the confidential source’s
statement was ineffective.
(Doc. 1, pp. 12-30).
As explained above, Petitioners failed to file a PLA during their State postconviction proceedings. They therefore did not properly present those arguments
throughout one full round of Illinois’ post-conviction process. In addition, the
only issue presented to the Supreme Court of Illinois via a PLA during direct
appellate proceedings was whether the trial court abused its discretion by
allowing the jury to view a largely inaudible videotape. (Doc. 13, Ex. 1, p. 15).
Petitioners did not allege a due process violation related to the viewing of the tape,
as they do now, or cite any federal case law in support of their argument. See
Doc. 13, Ex. 1, pp. 12-20.
Thus, Petitioners did not fairly present the
constitutional claim to the State and it is procedurally defaulted as well.
Wilson v. Briley, 243 F.3d 325, 328 (7th Cir. 2001) (petitioner procedurally
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defaulted his claim under § 2254 where, on direct appeal, he did not cite any
federal cases and argued the State court abused its discretion).
3. Equitable Tolling
Petitioners assert they are entitled to equitable tolling of the statute of
limitations. “Equitable tolling is an extraordinary remedy” that courts “rarely”
grant. Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013). “[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 v. Florida, 560 U.S. 631, 649 (2010)
(internal quotations omitted).
Petitioners contend that either the clerk failed to docket their PLA or prison
officials did not mail it to the court. Petitioners were allegedly unaware their PLA
was never filed until March 2014.
Petitioners assert this constitutes an
extraordinary circumstance that entitles them to equitable tolling.
Glenn submitted a sworn affidavit stating he “signed and had notarized” the
PLA and its Proof of Service on September 4, 2012, and mailed the documents to
the clerk via the institutional mailing system on that same day. (Doc. 21, p. 58).
Even assuming a docketing or mailing mistake prevented a timely filing,
Petitioners cannot demonstrate they diligently pursued their legal rights.
September 2012, Glenn wrote to the Illinois Attorney General requesting a “filed
copy” of Petitioners’ PLA. See Doc. 21, p. 63. The Attorney General’s office wrote
back on September 11, 2012, and informed Glenn that the office received the
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joint PLA, “[b]ut the Office of the Attorney General does not officially file PLAs. . .
.” Id. Glenn was instructed to contact the Clerk of the Supreme Court of Illinois.
Id. Petitioners did not correspond with the clerk until nearly two years later on
March 18, 2014. (Doc. 21, p. 61). The clerk responded on March 25, 2014,
informing Petitioners a PLA was not on file for their case. Id. at 62. Petitioners
filed a motion for leave to file a late PLA the next month, (Doc. 13, Ex. 1, pp. 2427), but failed to file a § 2254 petition in this Court until over a year later, in July
Petitioners allowed substantial time to elapse between the instances in
which they pursued the filing of both their PLA and § 2254 petition.
pursuit, therefore, does not demonstrate diligence that justifies equitable tolling.
See Johnson v. McCaughtry, 265 F.3d 559, 565 (7th Cir. 2001) (where the
petitioner did not exercise diligence because “he wasted 154 days through no fault
of any court” and 210 days elapsed between the time the state denied review and
he filed for federal habeas relief). Petitioners bear the burden of establishing they
are entitled to equitable tolling and, here, they have not cleared the “high bar that
the Court has erected in this area . . . .” Socha v. Boughton, 763 F.3d 674, 68485 (7th Cir. 2014).
4. Miscarriage of Justice
Petitioners also assert a fundamental miscarriage of justice would result if
the Court dismissed their petition. In McQuiggin v. Perkins, the United States
Supreme Court held that “a credible showing of actual innocence” may overcome
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procedural bars because the Court’s refusal to consider the petition would result
in a “fundamental miscarriage of justice.”
569 U.S. 383, 392-94 (2013).
showing of actual innocence is “demanding” and “seldom met.” Id. at 386.
A credible claim of actual innocence “requires petitioner to support his
allegations of constitutional error 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). The Schlup standard permits habeas review of untimely claims only
in the “extraordinary case” where the petitioner has demonstrated that “more
likely than not, in light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt—or, to remove the double negative, that more
likely than not any reasonable juror would have reasonable doubt.”
Bell, 547 U.S. 518, 538 (2006).
a. Fingerprint Evidence
Petitioners claim several fingerprints were lifted from Ufert’s vehicle that do
not match their own. Petitioners contend this evidence was not presented at trial
and proves their innocence.
Officer Nonn, one of the investigative officers, testified the investigation
returned five fingerprints that were compared to Petitioners’. (Doc. 23, Ex. 1, pp.
174-83). However, Officer Nonn did not reveal the results of the comparison and
neither the prosecution nor the defense offered any further evidence on the
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Petitioners’ trial attorneys1 testified at a State post-conviction hearing that
the fingerprint testing returned inconclusive results. After discussing the issue
with their clients, the attorneys did not introduce this evidence out of concern the
jury would draw a negative inference from the inconclusiveness. (Doc. 23, Ex. 3,
pp. 175-77, 183-84).
During closing arguments, however, one of the defense
attorneys stated, “We didn’t hear what the results were, so I guess that didn’t say
that my client was in that car.” Id. at p. 23. The prosecution, on the other hand,
posited the fingerprints did not match because Petitioners “cleaned up the
evidence.” Id. at 47.
The fingerprint evidence was clearly presented and argued at trial and is
therefore not “new” under Schlup. Gladney v. Pollard, 799 F.3d 889, 898 (7th
Cir. 2015). “[M]erely putting a different spin on evidence that was presented to
the jury does not satisfy the Schlup requirements. . . .” Gomez v. Jaimet, 350
F.3d 673, 680 (7th Cir. 2003).
b. Witness Statements
Petitioners next assert there are three witnesses whose “information” taken
together can “suggest that two White males on the scene, at a time of the crimes,
in fact committed the crimes.” (Doc. 21, p. 28). These witnesses consist of (1) a
confidential source who told a detective two white men committed the crime; (2)
Ray Bucher, who told police he saw two Caucasian males in their thirties near the
Lenn and Glenn were tried together but represented by different attorneys to avoid any conflict of
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scene; and (3) Terry Wooten, who lived in close proximity to the crime scene, who
reported he heard a car crash the night of the crime, got out of bed, and saw
Ufert’s “disabled” vehicle but could not identify any people in the area. Id. at 4142.
None of this evidence constitutes new and reliable evidence. Terry Wooten
testified at length at trial and his statements are therefore not new. (Doc. 23, Ex.
1, pp. 193-205). In addition, the confidential source’s statement is hearsay and
the declarant is unknown, which renders the evidence unverifiable and unreliable.
See Thomas v. Williams, 822 F.3d 378, 397 (7th Cir. 2016) (finding an affidavit
not credible because the information was hearsay within hearsay and the identity
of the declarant was unknown).
The Illinois trial court reached this same
conclusion when it excluded the source’s statement from trial. People v. Reed,
2012 IL App (5th) 090629-U, ¶ 7.
Lastly, although Bucher’s statement was not introduced at trial, the
evidence does not establish Petitioners are actually innocent under Schlup and
McQuiggin’s exacting standards. Bucher stated he drove to his friend’s house on
Culp Lane around 4:45 a.m. the day the crime occurred. He noticed two white
males walking east who immediately began walking west once Bucher passed
them. Bucher then witnessed the subjects crawl underneath a fence on a golf
course and walk north. (Doc. 2, pp. 67-68). No other evidence linked these men
to the crime.
Petitioners argue the two Caucasian men actually committed the crime.
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Petitioners attempt to bolster their argument by pointing to Caucasian hairs
recovered from Ufert’s vehicle.
The hairs were apparently never tested or
introduced into evidence; the defense attorneys testified the hair was essentially a
nonissue because it did not link Petitioners to the crime. (Doc. 23, Ex. 3, pp.
184, 178). Petitioners, however, argue the hairs prove the two Caucasian men
identified in Bucher’s statement committed the crime.
Petitioners’ theory is far too tenuous and based entirely on speculation.
Even though the State’s case hinged largely on Cunningham’s testimony, “it is well
established that a conviction may rest alone on the testimony of a codefendant or
an accomplice.” United States v. Karavias, 170 F.2d 968, 971 (7th Cir. 1948).
The aforementioned statements do not prove Petitioners are actually innocent.
c. Hair Recovered from the Deployed Airbag
Finally, Petitioners contend Officer Nonn found hair on the deployed airbag
of Ufert’s vehicle that did not belong to Petitioners, Cunningham, or Ufert. They
assert the State suppressed the exculpatory evidence and “there can be no
question that that hair strand came from who ever was operating the vehicle when
it wrecked. . . .” (Doc. 21, p. 28). A review of the record, however, shows this
evidence does not exist. The misconception seems to arise from Officer Nonn’s
Lenn’s defense attorney established the following line of
Q: And it would be your experience that if an airbag opened up and
you had a contact with the driver of the motor vehicle, it would have
been a fairly forceful contact?
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A: I would think so.
Q: In fact, were you able to locate any hair samples of Mr. Lenn Reed
on or near or around that airbag?
A: Well, you can’t say the hair sample belongs to anybody, in
Q: Did you find a hair?
Q: So, you didn’t find a hair of Mr. Lenn Reed?
On redirect examination, the prosecution asked:
Q: There weren’t any hairs found, right?
Q: From anybody?
(Doc. 23, Ex. 1, p. 180).
There is no indication hairs were recovered from the deployed airbag. The
evidence is not only unreliable, but also nonexistent. Petitioners do not meet the
fundamental miscarriage of justice exception and the untimeliness of their habeas
petition bars the Court from reaching the merits of their claim.
5. Certificate of Appealability
Pursuant to Rule 11 of the Rules Governing § 2254 Cases in the United
States District Courts, this Court must “issue or deny a certificate of appealability
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when it enters a final order adverse to the applicant.” The Court should issue a
certificate only where the petitioner “has made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where the Court dismisses a petition on procedural grounds without
reaching the underlying constitutional issue, the petitioner must show that
reasonable jurists 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, 120 S. Ct. 1595, 1604 (2000). The petitioner must establish both
components for a COA to issue.
Here, it is clear that Petitioners’ petition is untimely and procedurally
defaulted, and they have not advanced a credible claim of actual innocence within
the meaning of McQuiggin and Schlup. No reasonable jurist would find the issue
debatable. Accordingly, the Court denies a certificate of appealability.
Lenn Reed and Glenn Reed’s petitions for habeas relief under 28 U.S.C. §
2254 (Doc. 1) are DISMISSED WITH PREJUDICE. The Clerk of Court shall
enter judgment in favor of Respondent.
IT IS SO ORDERED
United States District Judge
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