Bruny v. Lashbrook

Filing 3

ORDER DISMISSING CASE with prejudice as untimely. Signed by Judge David R. Herndon on 4/24/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ERNST BRUNY, JR.,
Petitioner,
vs.

Case No. 17 cv–0300 DRH

JACQUELINE LASHBROOK
Respondent.
MEMORANDUM AND ORDER
HERDON, District Judge:
Petitioner Ernst Bruny, Jr. is in the custody of the Illinois Department of
Corrections, housed at Menard Correctional Center. Petitioner brings this action
pursuant to 28 U.S.C. § 2254. (Doc. 1).

Petitioner pleaded guilty to first degree

murder and was sentenced to natural life in prison without the possibility of
parole. (Doc. 1, p. 1).
The Petition
Petitioner was sentenced on July 11, 2000. (Doc. 1, p. 1). He did not
pursue a direct appeal, but he filed for post-conviction relief on 2 separate
occasions. Id. Petitioner filed a motion for post-conviction relief in state court on
December 4, 2000. (Doc. 1, p. 3). The motion was denied on January 26, 2004.
(Doc. 1, p. 4). The Illinois Supreme Court denied the request for review on May
25, 2005. (Doc. 1, p. 5). Most recently, on September 19, 2014 petitioner filed a
2-1404 petition alleging that his sentence violated the Fifth and Fourteenth
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Amendments in state court. (Doc. 1, p. 4). That petition was denied on March 2,
2015. Id. On March 30, 2016, the Illinois Supreme Court chose not take up
petitioner’s 2-1404 petition. (Doc. 1, p. 5).
Petitioner seeks to raise the issues of his 2-1404 petition in this proceeding.
Specifically, he alleges that 1) the trial court improperly intruded on the function
of the grand jury by fact finding elements of the crime in order to impose an
extended term sentence; and 2) the extended term of his sentence is void. (Doc.
1, pp. 9-10).
The form utilized by the district court specifically asks petitioners to
explain why the 1-year statute of limitations does not bar a petition. Petitioner left
this section blank. (Doc. 1, p. 7). In his memorandum of law, petitioner argues
that he relies on the Supreme Court decision in Alleyne v. United States, 133 S.Ct.
2151 (U.S. 2013), which was decided on June 17, 2013.
Discussion
Rule 4 of the Rules Governing Section 2254 cases in United States District
Courts 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.”
As a preliminary matter, the Court must first determine whether the
petition is timely. According to § 2244(d)(1), a person convicted in state court
must file his federal habeas petition within one year of the latest of:

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(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.
The one-year statute of limitations is tolled during the pendency of a “properlyfiled” state post-conviction petition. 28 U.S.C. § 2244(d)(2). Equitable tolling may
be available in appropriate cases, but a petitioner 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,
645-649 (2010) citing Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

The

Supreme Court has emphasized that “the circumstances of a case must be
‘extraordinary’ before equitable tolling can be applied.” Holland, 560 U.S. at 652.
This case is untimely under the standard in § 2244(d)(1)(A). Pursuant to
ILCS S. Ct. Rule 606, a notice of appeal of a final judgment must be filed within
30 days after the entry of final judgment. Here, petitioner has affirmatively stated
that he did not directly appeal his sentence. He was sentenced on July 11, 2000,
meaning that the statute of limitations under § 2244 began to run on August 10,
2000, or 30 days after sentencing. Petitioner then alleges that he filed his first

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motion for post-conviction relief on December 4, 2000, meaning that the statute of
limitations ran for 116 days.

The motion for post-conviction relief tolled the

statute until it was resolved. The statute of limitations started running again on
May 26, 2005 after the Illinois Supreme Court denied the petition for leave to
appeal on May 25, 2005. Petitioner therefore had to bring his suit or take another
action that would toll the statute of limitations no later than 249 days after his
PLA was denied, or on or before January 30, 2006. Instead, petitioner did not
take further action on his case until September 19, 2014, more than 8 years later.
Even assuming that there was some impediment between the denial of his postconviction motion and the initiation of the 2-1404 motion, Petitioner waited 357
days between the Illinois Supreme Court’s denial of a PLA in that case and filing
this case. But the statute of limitations had already run for 116 days, making
petitioner 108 days tardy, even if the 8 years of delay are not counted against him.
The case also fails to meet the standard in § 2244 (d)(1)(C).

Petitioner

argues that he relies on Alleyne v. United States, a Supreme Court case, which
was decided on June 17, 2013. 133 S.Ct. 2151. Petitioner argues that he could
not have brought his case prior to that decision. 1 However, the Supreme Court
has never found Alleyne to apply retroactively. See Simpson v. United States, 721
F.3d 875, 876 (7th Cir. 2013). Even if Alleyne did meet the requirements of §
2244(d)(1)(C), petitioner still waited too long to file suit; his 2-1404 petition was

This argument is questionable, because Alleyne is an extension of Aprendi, the case
Petitioner relied on in his 2000 post-conviction motion.
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not filed until September 19, 2014, more than 90 days after the statute of
limitations would have run if Alleyne restarted the clock, which it did not.
Petitioner has not identified any other reason which would justify tolling,
despite the Court’s explicit invitation to do so.

The Court therefore finds the

petition untimely, and DISMISSES it with prejudice.
Disposition
This Petition is DISMISSED with prejudice as untimely.
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the
United States District Courts, this Court must “issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” A certificate of
appealability should be issued only where the petitioner “has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Where a habeas petition is dismissed 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, 529 U.S. 473, 484–85 (2000). Both components must be established
for a certificate to issue.

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Here it is clear that the petition is untimely. No reasonable jurist would
find the issue debatable.

Accordingly, the Court DENIES a certificate of

appealability.

Digitally signed by
Judge David R.
Herndon
Date: 2017.04.24
14:58:29 -05'00'

IT IS SO ORDERED.
DATED: April 24, 2017

United States District Judge

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