Reed v. Hammers

Filing 3

ORDER REFERRING CASE to Magistrate Judge Clifford J. Proud. Signed by Judge David R. Herndon on 9/2/2015. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GLENN W. REED, Jr.,
K-02280,
Petitioner,
vs.
JUSTIN HAMMERS,
Respondent.

Case No. 15-cv-00872-DRH
MEMORANDUM AND ORDER

HERNDON, District Judge:
Petitioner Glenn Reed, Jr., who is currently incarcerated in Illinois River
Correctional Center, brings this habeas corpus action pursuant to 28 U.S.C.
§ 2254, in order to challenge his 1998 state convictions for first degree murder
and aggravated vehicular hijacking. (Doc. 1). He challenges the convictions on
due process and ineffective assistance of counsel grounds. (Id. at 12-31).
This matter is now before the Court for a preliminary review of the petition
pursuant to Rule 4 of the Rules Governing § 2254 Cases in United States District
Courts. Rule 4 provides that upon preliminary consideration 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.” After carefully reviewing the
claims, the Court concludes that the § 2254 petition warrants further review.

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I.

Background

On June 11, 1998, Glenn Reed and his twin brother, Lenn Reed, 1 were
found guilty of first degree murder and aggravated vehicular hijacking in the
Madison County Circuit Court in Edwardsville, Illinois. (Doc. 1 at 1). Glenn was
sentenced to concurrent terms of seventy years of imprisonment on the murder
conviction and thirty years on the vehicular hijacking conviction. (Id. at 1, 42).
He appealed both convictions to the Appellate Court of Illinois (Id. at 2). In his
appeal, Glenn argued that the evidence was insufficient to prove his guilt; it was
reversible error to introduce an accomplice’s prior statement; the trial court
abused its discretion when it allowed the jury to view an inaudible videotape;
the prosecutor committed misconduct; the trial court erred by allowing the State
to add another count of murder/felony murder to the indictment on the eve of
trial; trial counsel was incompetent; the sentence imposed was unfair; and the
sentence was unconstitutional. (Id. at 3). On September 7, 2001, the appellate
court affirmed the conviction, but modified Glenn’s murder sentence to a sixtyyear term. (Id. at 2, 53). Glenn filed a petition seeking leave to appeal to the
Supreme Court of Illinois, and it was denied on December 5, 2001. People v.

Reed, 763 N.E.2d 776 (Ill. 2001). He did not file a petition for writ of certiorari in
the United States Supreme Court. (Id. at 4).
1

Lenn filed a § 2254 petition in this District a week before Glenn did the same. See Reed v.
Because the twin brothers were
convicted and sentenced together for the same crimes, their direct appeals and post-conviction
proceedings were consolidated. In their § 2254 petitions, they set forth virtually the same
arguments. Although Glenn did not do so, Lenn filed a motion for permissive joinder or, in the
alternative, motion to consolidate the habeas matters (Doc. 2), and that motion was referred to
United States Magistrate Judge Clifford J. Proud for further consideration on August 24, 2015.
The motion is pending.

Duncan, Case No. 15-cv-00835-DRH-CJP (S.D. Ill. 2015).

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On September 21, 2001, Glenn filed his first state petition for postconviction relief.

(Id. at 4, 11).

In it, he claimed that his trial counsel was

ineffective for failing to have certain evidence tested and for failing to adequately
prepare for trial. (Id. at 6). He supplemented the petition numerous times to
raise additional arguments.

(Id. at 7-8).

The original petition was denied on

October 19, 2009. (Id. at 6, 11, 57-59). Glenn appealed certain portions of the
petition to the Appellate Court of Illinois, and the appellate court affirmed the
lower court’s decision to deny post-conviction relief on June 1, 2012. (Id. at 9,
11, 61-67).

A timely petition for rehearing was filed, but denied on

June 26, 2012. (Id. at 9, 11). Glenn was subsequently denied leave to appeal by
the Illinois Supreme Court.

(Id. at 6).

He filed a second petition for post-

conviction relief on April 13, 2013, in which he requested DNA testing in support
of his claim of actual innocence.

(Id.).

The second petition was denied on

June 13, 2014. (Id.). Glenn’s appeal of the second petition for post-conviction
relief remains pending.

(Id. at 9).

The instant petition followed on

August 7, 2015. (Doc. 1).
II.

The Petition

In his § 2254 petition, Glenn challenges his convictions on the following
grounds: (1) the state convictions were products of insufficient evidence;
(2) the trial court committed error by allowing the jury to view a largely inaudible
and irrelevant videotape; (3) his convictions were the product of perjured
testimony; (4) the prosecutor misled the jury; and (5) his trial counsel was

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ineffective (i.e., for failing to object to the jury selection process, failing to produce
exculpatory evidence, failing to challenge violations of Brady, failing to present
fingerprint evidence, and failing to present evidence regarding the true
perpetrators’ identity) (Id. at 12-32).
III.

Discussion

In light of the many, complicated claims in the petition, the Court cannot
conclude that dismissal of the petition at the preliminary stage is appropriate.
Further review of the petition is necessary. For this reason, Respondent will be
ordered to answer the petition or otherwise file a responsive pleading.
This Order should not be construed as a decision regarding the merits of
any particular claim asserted in the § 2254 petition. In addition, the Order does
not preclude the State from making whatever argument it wishes to present, be it
waiver, exhaustion, forfeiture, timeliness, etc. It is not clear, for example, whether
Glenn fully exhausted all means of available relief under state law before filing the
instant petition. See 28 U.S.C. § 2254(b); O’Sullivan v. Bourke, 526 U.S. 838,
839 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971); Urawa v. Jordan,
146 F.3d 435, 440 (7th Cir. 1998). A petitioner “shall not be deemed to have
exhausted the remedies available . . . if he has the right under the law of the state
to rise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c).
This means that Glenn must exhaust all means of available relief under state law
before pursuing habeas relief, which includes review of his claims through the
entire Illinois appellate process, including the state’s highest court. It is also not

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clear that Glenn exhausted his remedies with respect to all, or merely some, of his
claims. A petitioner is required to present every claim included in the federal
habeas petition in a petition for discretionary review to a state court of last resort.

O'Sullivan, 526 U.S. at 846-47. With that said, a response shall be ordered.
IV.

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. 2 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, and Chicago, Illinois,
shall constitute sufficient service.
IT IS ALSO 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 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.
2

The response date ordered herein is controlling. Any date that CM/ECF should generate in the
course of this litigation is a guideline only.
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This 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: 2015.09.02
14:57:28 -05'00'

IT IS SO ORDERED.
DATED: September 2, 2015

United States District Judge

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