Reed v. Duncan

Filing 4

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 8/21/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LENN D. REED,
Petitioner,

vs.

Case No. 3:15-cv-00835-DRH

STEVE DUNCAN,
Respondent.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Petitioner Lenn Reed is currently incarcerated at the Lawrence Correctional
Center in Sumner, Illinois. (Doc. 1 at 1.) Proceeding pro se, Lenn has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his
1998 state convictions for first-degree murder and aggravated vehicular hijacking
in the Madison County Circuit Court in Edwardsville, Illinois. (Id.) Lenn alleges
that his convictions were improper because his due process rights were violated
and his counsel was constitutionally ineffective. (Id. at 12-30.)
This matter is now before the Court for a preliminary review of Lenn’s
habeas petition. Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts provides that, upon preliminary review by the district court
judge, “[i]f it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss the
petition and direct the clerk to notify the petitioner.”

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Background
On June 11, 1998, Lenn Reed and his twin brother Glenn Reed were found
guilty of first-degree murder and aggravated vehicular hijacking for their roles in
the death of Michael Ufert, a resident of Alton, Illinois.

(Doc. 1 at 1.)

Lenn

appealed his convictions to the Appellate Court of Illinois arguing that the
evidence was insufficient to prove his guilt; that it was error to introduce an
accomplice’s prior statement; that the trial court abused its discretion in allowing
the jury to listen to a largely-inaudible videotape; that the prosecutor committed
misconduct; that the trial court erred in allowing a count to be added on the eve
of trial; that trial counsel was incompetent; that the sentence imposed was unfair;
and that the sentence was unconstitutional. (Id. at 1-3.) On September 7, 2001,
the appellate court affirmed Lenn’s conviction but modified his sentence for firstdegree murder to a 60-year prison term. (Id. at 2.) Lenn filed a petition for leave
to appeal to the Supreme Court of Illinois, which was denied on December 5,
2001. People v. Reed, 763 N.E.2d 776 (Ill. 2001). Lenn did not file a petition for
certiorari in the United States Supreme Court. (Doc. 1 at 4.)
On September 21, 2001, Lenn filed his first state petition for postconviction relief, claiming that his trial counsel was ineffective for failing to have
evidence tested and for failing to prepare for trial, among other problems. (Id. at
6.) Lenn supplemented that petition several times, adding many more bases for
error. (Id. at 7-8.) The original petition was denied on October 19, 2009. (Id. at
6.) Some portions of the original petition were appealed to the Appellate Court of

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Illinois, and that court affirmed the denial of the petition on June 1, 2012. (Id. at
11.) Lenn sought rehearing, which was denied on June 26, 2012. (Id.) He then
sought leave to appeal from the Illinois Supreme Court, which was denied on
September 23, 2014. (Id.) Lenn filed a second state post-conviction petition on
April 13, 2013, asking for DNA testing in support of a claim for actual innocence.
(Doc. 1 at 6.) The second post-conviction petition was denied on June 13, 2014,
and the appeal linked to that petition remains pending. (Id. at 6, 9.)
On July 31, 2015, Lenn filed a § 2254 petition in this Court. (Id. at 1.)
Discussion
Lenn raises a number of grounds of error in his federal habeas petition: he
says that both of his state convictions were the product of insufficient evidence;
that it was improper to allow the jury to view an irrelevant videotape; that his
convictions were the product of perjured testimony; that the prosecutor misled
the jury and withheld evidence; and that his trial counsel was ineffective for failing
to object during jury selection, failing to secure exculpatory evidence, failing to
present fingerprint evidence, and failing to present evidence concerning the true
perpetrators of Ufert’s murder and carjacking. (See id. at 12-30.)
There are some potential pitfalls with Lenn’s federal petition.

For one,

Lenn suggests that some of his grounds for relief in this action were not raised in
the state court below due to the errors of appellate or post-conviction counsel. If
Lenn could still bring these grounds to the attention of the state court below, he
would have exhaustion problems; if he could not, he may face forfeiture issues.

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Riggins v. McGinnis, 50 F.3d 492, 493 (7th Cir. 1995).

Once more, Lenn

references a pending post-conviction petition appeal in the Illinois state courts. It
does not appear as if he is bringing any of the claims pending in that petition in
this case, but to the extent he is, his petition would be mixed, again presenting
possible exhaustion issues and the potential need for a stay. Dolis v. Chambers,
454 F.3d 721, 725 (7th Cir. 2006). Given the muddled procedural posture of this
case, there is insufficient information before the Court upon which to conclude
that dismissal at the preliminary stage is appropriate. See Walker v. Thompson,
288 F.3d 1005, 1005 (7th Cir. 2002) (court should not dismiss a suit sua sponte
based on a defense like exhaustion unless it is “plain from the face of the
complaint that the suit can be regarded as frivolous”). Accordingly, Respondent
will be required to answer the petition or otherwise file a responsive pleading.
One closing note is in order concerning a motion Lenn filed with his
petition:

Lenn seeks to join his habeas petition with his twin brother Glenn

Reed’s petition, or in the alternative to consolidate their petitions before this
Court. (Doc. 2.) Lenn says this is proper because Lenn and Glenn’s efforts in the
state courts have always been joint or consolidated, that there is no conflict of
interest, that they are raising “essentially the same issues in their pleadings in the
State courts,” and that Lenn has assumed responsibility for “preparing all
pleadings” submitted by Lenn or Glenn, other than those filed by counsel. The
Court’s preliminary review of this motion indicates that it requires further
attention. As such, this motion will be referred to Judge Proud for consideration.

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Disposition
IT IS HEREBY ORDERED that the petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 shall proceed past preliminary screening.
IT IS FURTHER ORDERED that respondent shall answer the petition
within thirty days of the date this Order is entered. 1 This Order to respond does
not preclude the State from making whatever waiver, exhaustion, or timeliness
arguments it may wish to present. Service upon the Illinois Attorney General,
Criminal Appeals Bureau, 100 West Randolph, 12th Floor, Chicago, Illinois shall
constitute sufficient service.
IT IS FURTHER ORDERED that, pursuant to Local Rule 72.1(a)(2), this
cause is REFERRED to Magistrate Judge Clifford J. Proud for further pre-trial
proceedings.
IT IS FURTHER ORDERED that the motion for permissive joinder or, in
the alternative, motion to consolidate (Doc. 2) is REFERRED to Magistrate Judge
Clifford J. Proud for consideration.
IT IS FURTHER ORDERED that this entire matter be REFERRED to
Magistrate Judge Clifford J. Proud for disposition, as contemplated by Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), should all parties consent to such a referral.
Petitioner is ADVISED of his continuing obligations to keep the Clerk (and
Respondent) informed of any change in his whereabouts during this action. This

The response date ordered herein is controlling. Any date that CM/ECF should
generate in the course of this litigation is a guideline only.
1

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notification shall be done in writing and not later than seven days after a transfer
or other change in address occurs.

Digitally signed by
David R. Herndon
Date: 2015.08.21
14:42:44 -05'00'

IT IS SO ORDERED.
DATED: August 21, 2015

United States District Judge

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