Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 1 of 16 PageID #:4479

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1 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 1 of 16 PageID #:4479 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION United States of America ex rel., ) JENNIFER DEL PRETE, ) ) Petitioner, ) ) v. ) No. 10 C 5070 ) Judge Matthew F. Kennelly SHERYL THOMPSON, Warden, ) Logan Correctional Center, ) ) Respondent. ) PETITIONER S MOTION TO PROCEED TO THE MERITS OF HER AMENDED HABEAS PETITION OR FOR RELEASE ON BOND Petitioner, JENNIFER DEL PRETE, by and through her attorneys, BLEGEN & GARVEY, pursuant to McQuiggin v. Perkins, 133 S. Ct (2013), the Due Process Clause of the Fifth Amendment to the United States Constitution, and this Court s inherent supervisory authority, respectfully submits the following motion to proceed to the merits of Petitioner s amended habeas petition or, in the alternative, for bond pursuant to Cherek v. United States, 767 F.2d 335 (7 th Cir. 1985). I. The Court Should Proceed to the Merits of Petitioner s Amended Habeas Petition Along with this motion, Counsel have filed an amendment to Petitioner s currently pending habeas petition, raising a claim under Brady v. Maryland, 373 U.S. 83 (1963). In challenging a state court conviction, a petitioner must generally exhaust all remedies available in state court before a claim may be brought in 1

2 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 2 of 16 PageID #:4480 federal court. See, 28 U.S.C. 2254(b)(1)(A). Exhaustion requires that a claim be raised at every level in state court, and includes seeking discretionary review before the Illinois Supreme Court. O Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In Illinois, however, a prisoner may not file a second or successive post-conviction petition without first obtaining leave to do so from the trial court. 725 ILCS 5/122-1(f). To that end, on May 24, 2013, Petitioner filed a motion before her trial court seeking leave to file a successive post-conviction petition raising her claim under Brady. 1 After extensive briefing and oral argument, the trial court denied Petitioner s request on January 3, The transcript of the trial court s ruling is attached to Petitioner s amendment to her habeas petition as Exhibit E. (Docket No. 156). Petitioner has appealed the trial court s denial to the Illinois Appellate Court, Third District. Briefing on the appeal is scheduled to be complete on May 30, Despite Petitioner s efforts, because she was denied leave to file the Brady claim in a successive post-conviction petition, that claim has not been properly filed for purposes of tolling the one-year statute of limitations within which to raise a newly-discovered claim in federal court. See, 28 U.S.C. 2244(d); Tinker v. Hanks, 355 F.3d 444, (7 th Cir. 2001). Because Petitioner discovered the Kroll letter on March 22, 2013, the one-year federal statute of limitations will run on March 22, Therefore, in order to ensure that the Brady claim is properly preserved for 1 Petitioner s initial motion is included as Exhibit A to Respondent s Motion to Stay, Docket No

3 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 3 of 16 PageID #:4481 federal review, Counsel were compelled to file the non-exhausted Brady claim before this Court. A habeas petition which contains both exhausted and non-exhausted claims is considered a mixed petition, and generally cannot be ruled upon by a district court until all claims are exhausted. See, Rose v. Lundy, 455 U.S. 509, (1982); see also, Dolis v. Chambers, 454 F.3d 721, 724 (7 th Cir. 2006). Where a petitioner has claims that are properly exhausted, claims which are unexhausted, and faces a looming statute of limitations deadline, the standard procedure is to file a protective habeas petition and seek a stay and abeyance of the proceedings until state remedies are exhausted. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); see also, U.S. ex rel. Trotter v. McCann, 08 C 2917, 2009 WL (N.D. Ill. Dec. 11, 2009). Counsel have not sought a stay and abeyance, but believe that Respondent will likely do so, as Respondent has already moved this Court for a stay when Petitioner first filed her motion for leave to file a successive post-conviction petition in state court. (Docket No. 119). Counsel do not believe that a stay and abeyance is warranted or mandated in this case, and that the Court may indeed proceed to the merits of all of Petitioner s pending habeas claims, despite the petition s mixed nature. As this Court is obviously aware, on January 27, 2014, it found that Petitioner established by a preponderance of the evidence that based on all of the relevant evidence, no reasonably jury would find her guilty beyond a reasonable doubt. (Docket No. 153, p. 1-2). This satisfaction of the actual innocence or miscarriage-of-justice 3

4 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 4 of 16 PageID #:4482 gateway, has allowed Petitioner to have one of her claims ineffective assistance of counsel for failing to challenge the scientific underpinnings of SBS under Frye v. United States, 293 F (D.C.Cir. 1923) heard on the merits despite a procedural default. (Docket No. 153, p. 96). As the Court noted in its ruling, the miscarriage-of-justice standard is demanding and applies only to the extraordinary case. Id. at 85, quoting House v. Bell, 547 U.S. 518, 538 (2006). Recently, in McQuiggin v. Perkins, 133 S. Ct (2013), the Supreme Court discussed the significance and scope of the miscarriage-of-justice exception. The Court explained that a proper showing of actual innocence serves as a gateway around abusive and successive use of the writ of habeas corpus. Id. at 1931 citing Herrera v. Collins, 506 U.S. 390, (1993). The Court noted that the exception has been applied to overcome procedural defaults such as successive petitioners asserting previously rejected claims, abusive petitions asserting in a second petition claims that could have been raised in a first petition, failure to develop facts in state court, and failure to observe state procedural rules, including filing deadlines. Id. citing Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (plurality opinion), McCleskey v. Zant, 499 U.S. 467, (1991), Keeney v. Tamayo-Reyes, 504 U.S. 1, (1992), Coleman v. Thompson, 501 U.S. 722, 750 (1991), Murray v. Carrier v. 477 U.S. 478, (1986). The miscarriage-of-justice exception also allows a federal court to recall its mandate in order to revisit the merits of a decision and may overcome a prisoner s failure to raise a constitutional objection on direct review. Id. citing Calderon v. Thompson, 523 U.S. 538, 558 4

5 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 5 of 16 PageID #:4483 (1998); Bousley v. United States, 523 U.S. 614, 622 (1998). And, as has already been applied in this case, a claim of actual innocence can provide a gateway for federal habeas review of a procedurally defaulted claim of constitutional error. Id. citing House, 547 U.S. at As to the procedural problem at issue in McQuiggin, after noting the myriad procedural deficiencies that it can overcome, the Supreme Court extended the miscarriage-of-justice exception to overcome the expiration of the one year federal statute of limitations. Id. at It appears, therefore, that an actual innocence finding excuses any sort of procedural default, untimeliness, or abusive use of the writ heretofore discovered. Given the significance of the miscarriage-of-justice exception, and its wide range in excusing procedural deficiencies, Counsel urge this Court to refuse to stay this case and hold it in abeyance, but rather, to proceed to the merits of Petitioner s claims, despite the mixed nature of the petition. The Seventh Circuit has explained that [f]ailure to exhaust available state court remedies constitutes a procedural default. Chambers v. McCaughtry, 264 F.3d 732, 737 (7th Cir. 2001). Thus, it appears that the fact that Petitioner has not yet exhausted her available state court remedies can be viewed as a procedural default, even though Petitioner is still in the process of exhausting those remedies. Counsel submit that this Court s finding regarding the miscarriage-of-justice gateway should operate to excuse Petitioner s failure to exhaust her Brady claim. 2 2 Counsel indicated to the Court at a previous status appearance that they had considered whether Petitioner could intentionally default in the state court so that this Court could address the Brady claim immediately, with the actual innocence 5

6 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 6 of 16 PageID #:4484 The circumstances of this case also raise significant issues of fundamental fairness. Should this Court refuse to hear Petitioner s mixed petition and instead stay the case and hold proceedings in abeyance while Petitioner exhausts the Brady claim in state court, Petitioner will be subjected to a lengthy delay in adjudication of her current claims through no fault of her own. As explained in Petitioner s accompanying amendment, the fact that the Kroll letter was not turned over or its contents communicated to counsel at any stage of the proceedings is due to no fault of Petitioner or her counsel. Petitioner should therefore not be subjected to an unconscionable delay, or be forced to abandon the Brady claim, because of a situation that is and has been entirely out of Petitioner s control. The stay and abeyance procedure is typically beneficial to habeas petitioners, as it allows for the exhaustion of claims without the risk of losing the claim in federal court. Here, however, Petitioner has every interest in an expeditious adjudication of her pending habeas claims. While this Court s actual innocence finding may not amount to a finding of absolute certainty of innocence, the Supreme Court has made clear that it is reasonable doubt which marks the legal boundary between guilt and innocence. (Docket No. 153, p. 85); Schlup v. Delo, 513 U.S. 298, 328 (1995). And, the Court has found not only reasonable doubt, but abundant doubt regarding Del Prete s guilt. (Docket No. 153, p. 94). Nevertheless, Petitioner remains incarcerated, and faces a delay potentially years in length while she awaits the state court to adjudicate her claim. finding serving as a gateway around the procedural default. Having consulted with Petitioner, Counsel do not intend on pursuing this strategy. 6

7 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 7 of 16 PageID #:4485 Respondent has previously argued that Younger v. Harris, 401 U.S. 37 (1971), and the principle of comity, mandate that the Court should dismiss the petition without prejudice or order a stay and abeyance. (Docket No. 119) But Younger and comity both give way to extraordinary circumstances. See, Younger at 53; Simpson v. Rowand, 73 F.3d 134, 137 (7 th Cir. 1995) ( In Younger, the Supreme Court held that absent extraordinary circumstances federal courts should abstain from enjoining ongoing state criminal proceedings. ). Here, we have extraordinary circumstances the actual innocence finding. And, the Supreme Court has explained that one of the purposes of the actual innocence gateway is to balance the interest in comity against a defendant s interest; that is, to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case. Schlup, 513 U.S. at 324. In this case, undoubtedly extraordinary based on the Court s actual innocence finding and Petitioner s lack of control over the delay, the individual interests in justice should be viewed as outweighing society s interest in comity, finality, and conservation of judicial resources. Comity should give way because of the actual innocence finding and because the trial court has already denied Petitioner leave to file her Brady claim a strong indication that the state court has little interest in the issue. Finality, a legitimate concern in most cases, should likewise give way where there has been an actual innocence finding. With regard to judicial resources, rejecting the stay and abeyance procedure would actually conserve 7

8 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 8 of 16 PageID #:4486 judicial resources in these circumstances. This Court has already undertaken lengthy evidentiary hearings involving multiple expert witnesses, police officers and the coroner. The Court has also appointed experts under the Criminal Justice Act, thus using government funds to pay for their work and expenses. 3 Repeating or supplementing that work in a state court, if the claim makes it that far, would unnecessarily add significant costs and waste judicial resources. In light of the above, and the extraordinary circumstances of this case, Counsel request that this Court proceed to the adjudication of all of Petitioner s claims on their merits, rather than order a stay and abeyance. II. Should this Court Decline to Address Petitioner s Mixed Habeas Petition at this Time, the Court Should Grant Petitioner Bond In the event the Court believes a stay and abeyance is necessary, Petitioner respectfully requests that she be granted bond while her Brady claim is exhausted in state court and during the subsequent period that this Court adjudicates her claims. A. The Law Regarding Bond on Habeas Corpus The law is perfectly clear that this Court has the inherent authority to grant Petitioner bond while her 2254 petition is pending. The Seventh Circuit has explained that there is abundant authority that federal district judges in habeas corpus and section 2255 proceedings have inherent power to admit applicants to bail pending the decision of their cases, but a power to be exercised very sparingly. Cherek v. United States, 767 F.2d 335, 337 (7 th Cir. 1985); see also, Bolante v. 3 Multiple experts also performed work for Petitioner for free. 8

9 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 9 of 16 PageID #:4487 Keisler, 506 F.3d 618, (7 th Cir. 2007) (discussing the inherent authority to allow petitioners for federal habeas corpus to be released on bail as a natural incident of habeas corpus). The law is not very clear, however, regarding what standard must be met to obtain bond. The Seventh Circuit has stated, as indicated above, that bond on habeas is to be used very sparingly. That language appears to be a warning rather than a standard, however. Counsel believe that a habeas petitioner must, at a minimum, meet the standard of 18 U.S.C. 3143(b) (Release or detention of a defendant pending sentence or appeal). Section 3143(b) appears to be used not because it is designed for habeas cases, as it is an appellate rule not a habeas rule, but because the court in Cherek upheld the denial of bond where the petitioner could not meet even the requirements of 3143(b). Cherek, 767 F.2d at 338. A habeas petitioner may also be required to present some other extraordinary circumstance, and/or to meet the standards of 3143(b) at a higher than normal level. See, Aronson v. May, 85 S.Ct. 3, 5 (1964) ( In this kind of case [appeal from the denial of a 2255] it is therefore necessary to inquire whether, in addition to there being substantial questions presented by the appeal, there is some circumstance making this application exceptional and deserving of special treatment in the interests of justice. ) District courts in this circuit have employed a variety of language to describe the habeas corpus bond standard. For example, in Swanson v. United States, 2011 WL (S.D. Indiana, 2011), the court held that in order to obtain bond a 9

10 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 10 of 16 PageID #:4488 petitioner must be able to show not only a substantial claim of law based on the facts surrounding the petition, but also the existence of some circumstances making the motion for bail exceptional and deserving of special treatment in the interests of justice. In Bergmann v. McCaughtry, 857 F.Supp. 640, 641 (E.D. Wisconsin, 1994), the court held that to obtain release a petitioner must show a substantial federal claim that presents not merely a clear case on the law, but a clear, and readily evident, case on the facts and must establish the existence of some circumstance which makes the request for bail exceptional and deserving of special treatment in the interest of justice. In United States v. Ryan, 10 CV 5512, former governor George Ryan sought bail pending his 2255 petition, and the parties engaged in briefing regarding the appropriate standard for release. The parties agreed that the court could grant bond, that 3143(b) governed, and that the 3143(b) standard was higher than on appeal. The parties disputed how much higher the standard should be, however. See, United States v. Ryan, 10 CV 5512, Docket Nos. 9, 17, 26. At issue was 3143(b) s requirement that the appeal, raise[s] a substantial question of law or fact likely to result in reversal. 4 Ryan s counsel believed that requirement should be heightened to a more likely than not standard while the government proposed a clear win standard. Id, Docket No. 26, p. 2. Judge Pallmeyer ultimately denied Ryan s petition and bond, but did not rule on the appropriate standard. Ryan v. 4 On appeal, this standard requires a finding that the issue is a close question or one that could very well be decided the other way. United States v. Eaken, 995 F.2d 740, 741 (7 th Cir. 1993). 10

11 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 11 of 16 PageID #:4489 United States, 759 F.Supp.2d 975 (N.D.Ill. 2010), aff d by Ryan v. United States, 645 F.3d 913 (7 th Cir. 2011), cert. granted, judgment vacated by Ryan v. United States, 132 S.Ct (2012). Counsel s research has uncovered no Seventh Circuit case describing the standard which must be met for bond on habeas. The Ninth Circuit, citing Cherek, has explained that bail is reserved for habeas petitioners in extraordinary cases involving special circumstances or a high probability of success. 5 United States v. Mett, 41 F.3d 1281, 1282 (9 th Cir. 1994). B. Petitioner Should be Granted Bond Counsel submit that, given the unique circumstances of this case, Petitioner can meet the requirements of 3143(b), can meet those requirements at a higher than normal level, and can present sufficient extraordinary circumstances justifying bond. Section 3143(b) states, in relevant part, as follows: (b) Release or detention pending appeal by the defendant. (1) Except as provided in paragraph (2), the judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds-- (A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released under section 3142(b) or (c) of this title; and (B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in-- (i) reversal, 5 The special circumstances envisioned by the Ninth Circuit include unusual delay in the appeal process. Id. at 1282, n

12 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 12 of 16 PageID #:4490 (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. Modifying the 3143(b) standard to fit this case, Counsel submit that Petitioner meets the requirements of subsections (A) and (B) by clear and convincing evidence, or under any other standard. With regard to risk of flight, Counsel submit that there is no risk. During the pendency of her state court case, Petitioner was free on bond and had no issues at all with following the conditions of her bond. Petitioner has two children, one adult and one minor, both of whom live in the Chicagoland area. Petitioner s parents likewise live in the Chicagoland area as do Petitioner s two siblings, both with spouses and children of their own. Petitioner has some extended family outside of Illinois, but none in foreign countries. As best as can be recalled, Petitioner has traveled outside of the United States once as a child on a day visit to Canada. Likewise, with regard to dangerousness, Counsel submit that Petitioner poses no danger to anyone. Aside from the conviction at issue here, Petitioner has no criminal history whatsoever. While the instant conviction is for a crime of violence, this Court has already found that no reasonable juror could have convicted Petitioner had the evidence presented at her actual innocence hearing been presented at trial. That finding puts this case in an entirely different light than the 12

13 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 13 of 16 PageID #:4491 case of a typical petitioner with a conviction for violence. Not only does Petitioner s lack of other background demonstrate that she is not a violent or dangerous person, the Court s finding indicates that she did not display such traits in this very case. With regard to subsection (B), the purpose of the habeas corpus petition is obviously not for delay. Petitioner, as set forth in this pleading, is seeking to have her issues adjudicated as quickly as possible, quicker even than under normal procedures. Moreover, the issues presented in her petition raise substantial questions of law and fact likely to result in a reversal or new trial. 6 As to the proper standard, Counsel believe that Petitioner s claims meet any of the possible standards set forth above; i.e., the ordinary 3143(b) close question or one that could very well be decided the other way standard, the more likely than not standard proposed by the petitioner in Ryan, or the clear win standard proposed by the government in Ryan. Petitioner s claims are extremely strong and Counsel believe that the ultimate adjudication of their merits will be in her favor. Counsel will not rehash the contents of the claims, as they have been laid out in great detail already. Counsel would note, however, that the addition of the new Brady claim provides even greater weight to her Petition. It cannot go unmentioned as well that this Court has already ruled in Petitioner s favor regarding actual innocence. While this fact does not resolve Petitioner s claims, it does suggest that if Petitioner s claims are not ultimately successful it will be because she was not able to meet one or more 6 The sentencing aspects of 3143(b) does not appear to be an issue. 13

14 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 14 of 16 PageID #:4492 of the constitutional requirements necessary at this stage. She would, nevertheless, remain unfairly convicted, even if without judicial recourse. Lastly, this case presents extraordinary circumstances far above and beyond the typical habeas case. Unlike all but the most extraordinary habeas cases, the Court has already determined that Petitioner has established her actual innocence. Despite this finding, Petitioner faces a delay potentially years in length because of a quirk of procedure and timing related to the newly discovered Brady claim. In short, she must file the claim in this Court now, or risk losing federal review. And, she must exhaust her remedies in state court, lest she risk being held to have waived the claim altogether. In Cherek, the Seventh Circuit provided the following admonition regarding the granting of bond pending the determination of a habeas case: The reasons for parsimonious exercise of the power should be obvious. A defendant whose conviction has been affirmed on appeal is unlikely to have been convicted unjustly; hence the case for bail pending resolution of his postconviction proceeding is even weaker than the case for bail pending appeal. And the interest in the finality of criminal proceedings is poorly served by deferring execution of sentence till long after the defendant has been convicted. Cherek, 767 F.2d at 337 (emphasis added). Here, the admonition of Cherek works in Petitioner s favor. Parsimonious exercise does not mean never, and if this case and circumstances do not support release on bond it is difficult to imagine a situation that would. Moreover, because of the actual innocence finding, the likelihood is that Petitioner was convicted unjustly, or 14

15 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 15 of 16 PageID #:4493 at least unfairly. Petitioner s case for bail is even stronger, therefore, than that of an appellate defendant who has substantial issues on appeal. Counsel s research has uncovered no situation analogous to Petitioner s. The lack of similar cases is not surprising, and it supports the extraordinary nature of Petitioner s request for bond. Petitioner has been found actually innocent, and she has claims that are extremely strong. Nevertheless, she faces a lengthy delay in having her claims adjudicated through no fault of her own. Continued incarceration during such a delay is unconscionable. 7 III. Conclusion WHEREFORE, Petitioner respectfully requests that the Court proceed to the merits of all of her claims. Should the Court decline to do so, Petitioner requests that the Court grant her bond pending the exhaustion of her state court Brady claim and this Court s subsequent adjudication of all claims. Respectfully, submitted, s/patrick W. Blegen PATRICK W. BLEGEN, One of the Attorneys for Petitioner. BLEGEN & GARVEY 53 West Jackson Boulevard, Suite 1437 Chicago, Illinois (312) Should this Court be inclined to grant Petitioner bond, counsel are able to submit proposed conditions under which Petitioner may be released. Similarly, if released, counsel would proceed with the exhaustion of Petitioner s Brady claim in state court as expeditiously as possible. 15

16 Case: 1:10-cv Document #: 157 Filed: 02/18/14 Page 16 of 16 PageID #:4494 CERTIFICATE OF SERVICE I hereby certify that the foregoing was served on February 18, 2014, in accordance with Fed.R.Crim.P.49, Fed.R.Civ.P.5, LR 5.5, and the General Order on Electronic Case Filing (ECF) pursuant to the district court s system as to ECF filers. s/patrick W. Blegen PATRICK W. BLEGEN 53 West Jackson Boulevard, Ste Chicago, Illinois (312)