NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2013*
Decided March 29, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12‐1087
ROBERT D. FLETCHER, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Illinois.
v. No. 08‐266‐GPM
RICK HARRINGTON, Acting Warden, G. Patrick Murphy,
Respondent‐Appellee. Judge.
ORDER
Robert Fletcher, an Illinois prisoner serving a sixty‐year sentence for the murder of
Brian Warr, appeals the denial of his petition under
28 U.S.C. § 2254 for a writ of habeas
corpus based on the finding that many of his claims were procedurally defaulted. We issued
a certificate of appealability on six questions, only one of which Fletcher addressees
here—whether his trial counsel was ineffective for failing to raise violations of his right to a
speedy trial. We also directed the parties to address whether Fletcher procedurally
*
After examining the briefs and the record, we have concluded that oral argument is unnecessary.
The appeal is thus submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2)(C).
No. 12‐1087 Page 2
defaulted review of these issues, and whether the district court wrongly denied him the
opportunity to respond to the state’s arguments. We now affirm.
After a jury convicted Fletcher of first‐degree murder, the Illinois Appellate Court
affirmed, and the Illinois Supreme Court denied leave to appeal. The trial court denied
Fletcher’s subsequent petition for postconviction relief; the Appellate Court affirmed, and
the Supreme Court denied leave to appeal.
Fletcher then filed a § 2254 petition raising the claims that we certified for appeal,
among others. Fletcher acknowledged that he did not present these claims to the state
courts, but asserted that he was not aware of the underlying facts until after he had filed his
state postconviction petition. The state responded that Fletcher procedurally defaulted his
claims by not raising them in the postconviction filing.
While the federal petition was pending, Fletcher returned to state court and sought
leave to file a successive postconviction petition. Noting that he wanted to raise the six
unexhausted issues in his federal petition, he asserted that his lack of access to the trial
record upon filing his first postconviction petition prevented him from learning that his trial
counsel had moved for continuances rather than mounting a speedy‐trial challenge. The
state trial court ruled that Fletcher had not made the requisite showing of cause and
prejudice and denied leave to file a successive petition; the Illinois Appellate Court and
Supreme Court declined to disturb the ruling.
Back in federal court, Fletcher amended his petition and the state answered, again
raising a procedural‐default defense. On the date that the reply brief was due, Fletcher’s
counsel sought permission to file a brief longer than the ten‐page limit set by the court; the
court denied the request, and counsel filed nothing at all. Four days later Fletcher tried to
submit a pro se reply, but the court struck the filing on grounds that he already was
represented by counsel. The court eventually ruled that Fletcher had defaulted the claims
raised for the first time in his second state postconviction petition, and denied the remaining
claims on their merits.
On appeal Fletcher denies that the six claims are procedurally defaulted and asserts
that the district court denied him the opportunity to excuse the defaults. He says he was not
allowed to reply to the state’s procedural‐default defense because both his attempt and that
of his lawyer to file a reply brief were thwarted by the district court.
Granting deference to the district court’s role in supervising litigation, Pierce v.
Underwood,
487 U.S. 552, 558 n.1 (1988); Wilson v. Wilson,
46 F.3d 660, 664 (7th Cir. 1995), we
cannot say that the court abused its discretion by enforcing announced briefing page limits,
No. 12‐1087 Page 3
especially given the timing of Fletcher’s lawyer’s eleventh‐hour request to file a longer
brief, see Yancick v. Hanna Steel Corp.,
653 F.3d 532, 536, 539 (7th Cir. 2011); S.S. v. E. Ky.
Univ.,
532 F.3d 445, 451–52 (6th Cir. 2008); Timmerman v. U.S. Bank, N.A.,
483 F.3d 1106, 1112
(10th Cir. 2007). As for Fletcher’s self‐authored brief, he was not entitled to file his own
submission as long as he was represented by counsel; indeed, such hybrid representation is
prohibited. United States v. Oreye,
263 F.3d 669, 672–73 (7th Cir. 2001); Cain v. Peters,
972 F.2d
748, 750 (7th Cir. 1992).
Even if we were to consider the substance of the proposed reply briefs (Fletcher’s
lawyer’s was attached to a motion to reconsider), Fletcher cannot show cause to excuse the
procedural default of his ineffective assistance claim for failing to assert a speedy‐trial
violation (the only claim he presses in his appellate brief). If he indeed did learn only later
that his trial counsel had moved for a continuance rather than raise a speedy‐trial challenge,
he either knew or should have known that he was not tried within 120 days of being taken
into custody—the limit set by Illinois statute, 725 ILCS 5/103‐5(a); see also People v. Hall,
743
N.E.2d 521, 534–35 (Ill. 2000). Because he knew (or should have known of) the facts forming
the basis of this claim, Fletcher cannot show cause for not timely raising an ineffective
assistance claim. See Holleman v. Cotton,
301 F.3d 737, 746–48 (7th Cir. 2002).
AFFIRMED.
