Dunn v. Wehking

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID J. DUNN,
Petitioner,
v.
JEFFREY WEHKING,
Warden, Centralia
Correctional Center,
Respondent.
Case No. 25-CV-02201-SPM
MEMORANDUM AND ORDER
McGLYNN, District Judge:
Petitioner 	David 	J. 	Dunn 	is 	an 	inmate 	presently 	housed 	at 	Centralia
Correctional Center in Illinois. He filed the instant Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. §§ 2254 and 2241(d). (See Doc. 1). This case is now before the
Court for a preliminary review of the Petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases in the United States District Courts.
FACTUAL AND P ROCEDURAL B ACKGROUND
Dunn was convicted of two counts of Aggravated Criminal Sexual Assault and
one count of Aggravated Criminal Sexual Abuse after a jury trial in the Circuit Court
for Champaign County, Illinois. People v. Dunn, No. 17-CF-433 (Ill. Cir. Ct. 2018). He
was sentenced to thirty-six years’ imprisonment by the trial court. Id. Dunn appealed
his conviction to the Illinois Appellate Court for the Fourth District. People v. Dunn,
No. 4-18-0552 (Ill. App. Ct. 2021). On January 22, 2021, the appellate court affirmed
his conviction; the Illinois Supreme Court denied Mr. Dunn’s Petition for Leave to
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Appeal on May 26, 2021. Id.; People v. Dunn, 169 N.E.3d 355 (Ill. 2021).
On February 24, 2022, Dunn filed a Post-Conviction Petition in the Circuit
Court of Champaign County under the Illinois Post-Conviction Hearing Act. People
v. Dunn, No. 17-CF-433 (Ill. Cir. Ct. 2018). The Circuit Court dismissed the petition
at the second stage on March 10, 2023 without granting an evidentiary hearing. Id.
Dunn then appealed the dismissal to the Illinois Appellate Court for the Fifth
District. People v. Dunn, No. 5-23-0213 (Ill. App. Ct. 2025). On April 18, 2025, the
appellate court affirmed. Id. Dunn then filed a Petition for Leave to Appeal to the
Illinois Supreme Court, which was denied on September 24, 2025. People v. Dunn,
270 N.E.3d 812 (Ill. 2025). Dunn filed the instant Petition on December 18, 2025.
(Doc. 1).
A NALYSIS
The Supreme Court has established that habeas petitions are only appropriate
where “success in [the] action would necessarily demonstrate the invalidity of
confinement or duration.” Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Additionally,
“the Supreme Court has long held that a civil rights action brought pursuant to 42
U.S.C. § 1983 is the proper vehicle for challenging a condition of confinement, such
as the BOP’s security rating of an inmate or the inmate’s facility designation.”
Pinkney v. U.S. Dep’t of Just., No. 07-CV-106, 2009 WL 277551 (N.D.W. Va. Feb. 5,
2009).
Furthermore, “a prisoner seeking a writ of habeas corpus must exhaust his
state remedies before seeking federal relief.” 28 U.S.C. § 2254(b)(1); see also Parker
v. Duncan, No. 3:15-cv-00326-DRH, 2015 WL 1757092 (S.D. Ill. April 15, 2016) (citing
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Moleterno v. Nelson, 114 F.3d 629, 633 (7th Cir. 1997)). Moreover, a state petitioner
can challenge his confinement under § 2254 only after having exhausted both
administrative remedies and state judicial remedies, including one complete round of
state appellate review. VanSkike v. Sullivan, No. 18-cv-2138-NJR, 2019 WL 6327195,
at * 2 (S.D. Ill. Nov. 26, 2019). The exhaustion doctrine is “designed to give the state
courts a full and fair opportunity to resolve federal constitutional claims before those
claims are presented to the federal courts.” O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999).
The failure to exhaust is a procedural bar that may be excused only if a habeas
petitioner can “show cause and prejudice for failing to fairly present his or her claim
to the state courts or that a fundamental miscarriage of justice will occur.” McAtee v.
Cowan, 250 F.3d 506, 509 (7th Cir. 2001). Under this test, “cause” must be something
“external to the petitioner, something that cannot fairly be attributed to him.”
Coleman v. Thompson, 501 U.S. 722, 753 (1991); see also id. (“For example, ‘a showing
that the factual or legal basis for a claim was not reasonably available to counsel, . . .
or that “some interference by officials” . . . made compliance impracticable, would
constitute cause under this standard.’” (quoting Murray v. Carrier, 477 U.S. 478, 488
(1986))). 	The 	Seventh 	Circuit 	has 	held that 	“a 	state-law 	remedy 	can 	become
ineffective or unavailable by virtue of delay if the delay is both inordinate and
attributable to the state.” Evans v. Wills, 66 F.4th 681, 682 (7th Cir. 2023) (citing
Carter v. Buesgen, 10 F.4th 715, 723–24 (7th Cir. 2021); Lane v. Richards, 957 F.2d
363, 364–66 (7th Cir. 1992)).
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In his Petition, Dunn raises six grounds, all of which argue that various aspects
of his trial in Champaign County were constitutionally defective: (1) that his sentence
is grossly disproportionate to the severity of his offense; (2) that the evidence
presented at trial was insufficient for a reasonable trier of fact to find that he met the
essential elements of the crime; (3) that he received ineffective assistance of counsel
because the jurors were not provided with the means to hear key audio exculpatory
evidence; (4) that he is actually innocent based on newly discovered evidence; (5) that
he received ineffective assistance of counsel due to counsel’s failure to adequately
cross-examine the State’s witness, obtain an expert witness who would have provided
favorable evidence, and avoid other prejudicial errors; and (6) that his rights under
Brady v. Maryland, 373 U.S. 83, 87 (1963), were violated because the results of a
forensic examination of his cell phone were not disclosed and law enforcement merely
assured him that no exculpatory evidence existed. (See Doc. 1).
As stated above, Dunn’s Petition states that it was filed pursuant to both 28
U.S.C. §§ 2254 and 2241(d). (See Doc. 1, p. 1). It is unclear whether the inclusion of §
2241 was intentional or merely a scrivener’s error. Aside from that opening sentence,
neither the Petition nor the Memorandum in Support makes any further mention of
§ 2241. (See Docs. 1, 12). Because Dunn is a state prisoner confined pursuant to a
state-court judgment, § 2241 is not an available vehicle for relief. See Walker v.
O’Brien, 216 F.3d 626, 633 (7th Cir. 2000). Additionally, the arguments asserted by
Dunn relate to the validity of his sentence and conviction, rather than in the
execution of his confinement, indicating that § 2254 is the appropriate basis for his
Petition. See Valona v. United States, 138 F.3d 693, 694 (7th Cir. 1998) (recognizing
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that a motion seeking relief concerning the execution of a sentence, but not the
validity of a conviction, falls under § 2241). In any event, “it is the substance of the
petition, rather than its form,” that determines whether it proceeds under § 2241 or
§ 2254. See Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 277–78 (2d Cir. 2003)
(quoting James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002)). Because Petitioner is
confined due to a state court judgement, and because his filings heavily rely on § 2254
and only reference § 2241 once, the Court therefore construes the Petition as brought
solely under § 2254.
As discussed supra, Dunn has shown that he appealed his conviction to the
Illinois Supreme Court, indicating that he has exhausted the state remedies available
to him. People v. Dunn, 270 N.E.3d 812 (Ill. 2025). Additionally, he has not filed a §
2254 Petition previously in this District. Therefore, without commenting on the
merits of his claims, the Court concludes that Dunn’s Petition survives preliminary
review under Rule 4. Given the limited record, it is not plainly apparent that Dunn
is not entitled to habeas relief.
DISPOSITION
IT IS HEREBY ORDERED that Respondent Jeffrey Wehking shall answer
or otherwise plead on or before March 13, 2026. This preliminary order to respond
does not preclude the Government from raising any objection or defense it may wish
to present. Service upon the Illinois Attorney General, Criminal Appeals Bureau, 100
West Randolph, 12th Floor, Chicago, Illinois 60601, shall constitute sufficient service.
Dunn is ADVISED of his continuing obligation to keep the Clerk of Court (and
opposing parties) informed of any change in his whereabouts during the pendency of
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this action. This notification shall be done in writing and not later than fourteen (14)
days after a transfer or other change in address occurs in accordance with Local Rule
3.1(b)(2). Failure to provide such notice may result in dismissal of this case or other
sanctions. See id.; F ED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: February 11, 2026
s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
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