In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 21-1375 

DARNELL DIXON, 

Petitioner-Appellant, 

v.

TARRY WILLIAMS, 

Respondent-Appellee. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1-17-cv-01142 — Robert W. Gettleman, Judge. 

____________________ 

ARGUED OCTOBER 26, 2022 — DECIDED FEBRUARY 20, 2024 

____________________ 

Before ROVNER, HAMILTON, and BRENNAN, Circuit Judges. 

ROVNER, Circuit Judge. An Illinois state court jury convicted Darnell Dixon of home invasion and murder, for which 

he received a life sentence. Dixon sought post-conviction relief several times in the Illinois state courts before turning to 

the current federal habeas petition which focuses primarily on 

a claim of actual innocence and prosecutorial misconduct. 
2 No. 21-1375 

I.

Because Dixon did not contest the state court’s factual 

findings, the district court adopted them, as will we. At 

Dixon’s trial in a Cook County, Illinois court, Myron Gaston 

(Myron),1 testified that he went to buy cocaine from James Allen (James) while his friends, Chris Jones and Jerome DeBerry, 

waited outside. After completing the transaction, the three 

men returned and robbed James and Marshan Allen (Marshan) of drugs and money. Dixon was present in the apartment during the robbery but testified that he was not robbed. 

James later called Myron’s brother, Elroy Gaston (Elroy), to 

discuss the robbery, and over the next few days Myron met 

with James to return some of the stolen money, but none of 

the cocaine. 

A few days later, on March 15, 1992, DeBerry, Elroy, and 

John Harris were at Myron’s apartment when they received a 

phone call, but the caller said nothing. Myron left to run an 

errand and returned to find Harris hiding, and DeBerry and 

Elroy lying on the floor with fatal gunshot wounds. 

Eventually the police identified the sixteen-year-old Marshan as a suspect in the murders of DeBerry and Elroy, and 

after hours of interrogation without his parents or a lawyer, 

Marshan confessed that he, Eugene Langston, and Dixon had 

robbed and killed DeBerry and Elroy.2 Police arrested Dixon 

1 Several of the people involved in this case have the same last names 

and thus in those instances we use their first names for clarity and simplicity. 

2 Because there are so many people involved in this case, it may be 

helpful to categorize Dixon, Marshan, James, and Langston as the group 

of original robbery victims/later murder suspects, and Elroy, Myron, 

(continued)
No. 21-1375 3

the next day. At the police station, Detective Michael McDermott and Assistant State’s Attorney Henry Simmons interrogated Dixon. After six hours of interrogation, Simmons wrote 

a summary of the interview and brought it to Dixon to sign. 

Dixon initialed some changes that Simmons made to the written summary, such as correcting his name from Durrell to 

Darnell, but ultimately refused to sign it, claiming that it was 

false. 

The state court denied Dixon’s motion to exclude testimony about his confession, so at trial both McDermott and 

Simmons testified about the contents of that confession. Detective John Leahy, one of the arresting officers, also testified 

at trial that he advised Dixon of his Miranda rights upon arrest 

and was also present when Dixon’s co-defendant, Marshan, 

confessed and implicated Dixon.3 According to McDermott’s 

testimony, after an officer read Dixon his Miranda rights, 

Dixon described how Myron failed to return the money and 

cocaine that he stole from James. Consequently, Dixon and 

Marshan stole a van, and the next morning Dixon and Langston used the van to drive to Myron’s apartment. There, Langston fired into the door, kicked it in, and continued firing. 

Dixon also fired four to five rounds from a nine-millimeter 

handgun, and then the two returned to the van, which they 

subsequently abandoned a few blocks away from the crime 

scene before walking home. According to State’s Attorney 

Simmons’ testimony regarding the confession, Simmons read 

Jones, DeBerry and Harris as the group of original robbery suspects/later 

robbery-murder victims.

3 Another officer, James Boylan, testified that he repeated the Miranda

warnings to Dixon at the police station.
4 No. 21-1375 

Dixon his Miranda rights, offered food and use of the bathroom, and also offered Dixon the option of either having his 

statement reduced to writing by a court reporter or having 

Simmons write it up. According to Simmons, Dixon chose the 

latter. Simmons testified that when presented with the written statement, Dixon admitted that it was true, but nevertheless refused to sign it. Simmons’ testimony about the substantive contents of the confession mirrored that of McDermott 

and the written statement itself. The state read the alleged 

confession into the record, and the court allowed the jurors to 

take the unsigned, written confession into the jury room and 

use it during deliberations.

Most of the state’s case centered on that confession, but the 

state did present some corroborating evidence, albeit thin. 

That evidence included a report of a van closely matching the 

description of the one in the confession that had been stolen 

from the location where Dixon allegedly confessed to having 

stolen it. One witness reported seeing men fleeing in a brown 

van with a grey stripe. The stolen van was, in fact, grey with 

a maroon stripe. Police found the stolen grey van with the column stripped (indicating that it had been stolen), a few blocks 

from Dixon’s apartment, near where Dixon described abandoning it in his alleged confession. The state never collected 

fingerprints from the van. Nor did investigators find any fingerprint matches for Dixon, Marshan, or Langston in the 

apartment where the murders took place. The state also called 

a witness from the telephone company who confirmed that 

the mystery phone call to Myron’s apartment just shortly before the murders came from James’ apartment—in other 

words, from the place where the original robbery that spurred 

the alleged vigilantism occurred.
No. 21-1375 5

During the trial, Dixon’s lawyers sought to present evidence that Horace Chandler, who worked in the apartment 

building and was the only known neutral witness to the 

events of the day, had not identified Dixon in a lineup. Shortly 

after the crime, Chandler told the police that he saw a person 

leave the scene and enter a van. He was later called to identify 

the suspect in a lineup that included both Langston and 

Dixon, but, according to the police, he identified only Langston and not Dixon. Dixon’s attorney would have liked to put 

Chandler on the stand to testify that he had not identified 

Dixon, but he was unable to locate Chandler by the time of 

the trial. Moreover, Chandler later swore in an affidavit 

signed before his lawyer that he had never identified anyone 

in the lineup.4

At trial, the court made clear that it would not accept hearsay evidence about Chandler’s lineup identifications—or lack 

thereof—at trial. Despite that admonishment, Dixon’s counsel 

nevertheless asked the detective present at the lineup, Detective David Friel, whether anyone witnessing the lineup had 

identified Dixon. After sustaining the state’s objection, the 

trial judge gave Dixon’s counsel two options to cure the error: 

Dixon’s counsel could choose to strike all of Detective Friel’s 

testimony or allow the state to question Detective Friel 

4 The parties refer to this as a recantation, although it is not a recantation in the literal sense. In general, we think of a recantation as a confession 

of error—that is, that someone later claims that she was incorrect about 

what she saw or heard. In this case, Chandler claims that he never identified anyone at the lineup—the implication of which is not that he erred or 

changed his mind, but rather that the government witnesses who said that 

he made an identification were either mistaken or not telling the truth. 

Despite this distinction, we use the term “recantation” at times for simplicity. 
6 No. 21-1375 

regarding whether Chandler identified anyone as the offender. The judge made clear that should counsel choose the 

latter option, he would not allow in evidence that Chandler 

later swore that he had never identified Langston. Dixon’s 

counsel chose the latter option without objection to the options, thus allowing the jury to hear that Chandler had identified Langston as the person he saw at the crime, without any 

evidence of the recantation. Because the state’s theory was 

that Langston and Dixon had committed the crime together, 

and that each accomplice was liable for the acts of the other, 

this evidence undoubtedly harmed Dixon’s case. 

Dixon testified in his own defense, stating that he had sold 

drugs for James in the past and was at his residence during 

the initial robbery, but that on the day James was robbed, he 

did not know about the drug sale and was not personally 

robbed. He testified that he knew nothing about the murders, 

did not receive a warning about his Miranda rights, and only 

initialed the alleged confession because Simmons ordered 

him to do so. He also testified that he refused to sign the confession because he knew nothing about the murders and did 

not commit them—a position he continues to hold to this day. 

Dixon’s lawyer argued to the jury that McDermott had a motive to lie because the murders had gone unsolved for three 

weeks, and that Simmons was motivated by his desire to become a judge. 

The jury found Dixon guilty of two counts of first-degree 

murder and one count of home invasion. The trial judge sentenced him to life in prison on June 24, 1994. Dixon appealed 

to the state appellate court, raising claims that are not relevant 

to this habeas petition. The appellate court affirmed the 
No. 21-1375 7

decision on November 11, 1996, and Dixon did not appeal to 

the Illinois Supreme Court. 

Over three years later, on July 25, 2000, Dixon filed a pro 

se post-conviction petition in the state court claiming, among 

other things, that he was actually innocent and that both trial 

and appellate counsel provided ineffective assistance of counsel. The state trial court denied the petition reasoning that it 

was both untimely and meritless. Dixon appealed the denial 

of his petition for post-conviction relief, arguing that his trial 

counsel had been ineffective first by opening the door for the 

state to introduce evidence of Chandler’s identification of 

Langston, and later by failing to call Chandler to testify that 

he never made an identification. The state responded that the 

argument was untimely, forfeited, and meritless. The merits 

portion of the state’s argument included the following paragraph:

Moreover, Eugene Langston was not a codefendant at the time of trial. Eugene 

Langston was never found guilty [in] connection to the crimes underlying defendant’s conviction. Therefore, defendant’s 

claim that he was prejudiced by a recanted 

identification of a man who had nothing to 

do with the murders is legally baseless and 

fully without any merit. While defendant’s 

culpability may have rested on the theory 

of accountability to some extent, none of 

that accountability lies with Eugene Langston.

R. 25-14 at 41. 
8 No. 21-1375 

This was an odd argument for the state to make because, 

as we noted, the state had molded its case on a theory of accomplice liability—that is, that Dixon could be held accountable for Langston’s conduct. The state’s brief also incorrectly 

stated that Dixon could not have been prejudiced by Friel’s 

testimony because “[t]here was no testimony regarding any 

identification made by Horace Chandler.” R. 25-14 at 41. This 

too was incorrect. The state put on testimony that Chandler 

viewed a lineup and identified Langston in that lineup. R. 25-

26 at 518–519. 

In his reply brief, Dixon pointed out the misstatements, 

but the state appellate court nevertheless affirmed, ruling that 

the petition for post-conviction relief lacked merit. In making 

that decision, the state appellate court explained that Chandler’s identification of Langston probably had little effect on 

the outcome of the trial “as the prosecution never used that 

identification in argument, and Langston and other associates 

of the Allens could have committed the murders without 

Dixon’s involvement. Placing Langston at the scene bore little 

relevance to the case against Dixon.” R. 25-2 at 13–14. The Illinois Supreme Court denied Dixon’s petition for review of 

that decision. 

On June 27, 2011, Dixon filed a second petition for postconviction relief in state court based, in part, on the fact that 

the state’s latest filing acknowledged that Langston had nothing to do with the murders, thus eviscerating the state’s argument about accomplice liability. The trial court denied the petition, the appellate court affirmed, and the Illinois Supreme 

Court denied the petition for leave to appeal. 

Although it was not known at the time of the events of this 

case or the trial, it came to light later that Officer McDermott’s 
No. 21-1375 9

supervising officer, Commander Jon Burge of the Chicago Police Department, tortured countless suspects to elicit confessions in the decades between 1972 and 1991. Burge was eventually convicted in a federal court of obstruction of justice and 

perjury for his acts related to torturing suspects. See United 

States v. Burge, No. 08 CR 846, 2011 WL 13471, at *1 (N.D. Ill. 

Jan. 3, 2011), aff’d, 711 F.3d 803 (7th Cir. 2013). As for McDermott, the Illinois Torture Inquiry and Relief Commission documented fourteen abuse allegations against McDermott between 1984 and 1999, ranging from threatening and slapping 

suspects, squeezing their testicles, severely beating them, and, 

in one case, holding a gun to a suspect’s head and threatening 

to kill him.5 Several federal and state court judges have discussed McDermott’s perjury. See United States v. Burge, No. 08 

CR 846, 2014 WL 201833, at *2–3 (N.D. Ill. Jan. 17, 2014)

(“McDermott has previously perjured himself and even gave 

testimony at the Burge trial that was inconsistent with his 

grand jury testimony.”); People v. Smith, 596 N.E.2d 789, 792 

(Ill. App. 1st 1992) (rejecting McDermott’s testimony and 

finding that the arrestee was detained on pretext); People v. 

Mitchell, 972 N.E.2d 1153, 1159–60 (Ill. App. 1st 2012) (“A report of special prosecutors concerning an investigation into 

the crimes police committed at Area 2 specifically found sufficient evidence to prove beyond a reasonable doubt that 

McDermott, amongst others, participated in aggravated 

5 The Commission is authorized to gather evidence about claims of 

torture occurring in Cook County, and then determine whether there is 

sufficient credible evidence of torture to merit judicial review. 775 ILCS 

§ 40/5.
10 No. 21-1375 

battery of suspects and perjured himself about alleged confessions.”).6

In February 2017, Dixon filed a pro se petition pursuant to 

28 U.S.C. § 2254 for federal habeas corpus relief in the United 

States District Court for the Northern District of Illinois, the 

denial of which we now review. Dixon raised the two new 

pieces of evidence we described above—the state’s brief stating that Langston had no involvement in the murders, and the 

evidence of McDermott’s abuse of suspects and perjury. He 

raised the following three legal claims: (1) he was denied due 

process when the trial court excluded evidence that the state 

had dismissed charges against his alleged accomplice, Langston; (2) he received ineffective assistance of counsel when his 

trial lawyer failed to object to the exclusion of the evidence of 

Langston’s dismissal; and (3) new evidence demonstrated 

that he was actually innocent. The district court agreed with 

the state’s argument that Dixon’s claims had been procedurally defaulted but held that Dixon had shown enough evidence of actual innocence to merit a further look. Thus, the 

6 According to Dixon’s brief, on November 4, 2016, Dixon filed yet 

another petition for post-conviction relief in state court based on new evidence regarding Officer McDermott’s recently discovered history of perjuring himself and coercing confessions. According to Dixon’s brief, he 

supplemented his petition in 2018 and again in 2021, and the motion is 

currently pending before the Circuit Court of Cook County. Dixon did not 

offer any citations for these filings, and we have not pored through the 

Illinois court’s records to verify them. See Williams v. Bd. of Educ. of City of 

Chicago, 982 F.3d 495, 510 (7th Cir. 2020) (“[I]t is not the role of the court to 

search the record to find support for a party’s assertion.”).
No. 21-1375 11

court ordered the state to respond to Dixon’s petition on the 

merits.

After reviewing the parties’ written submissions, in an 

August 2017 order, the district court held that Dixon presented new evidence sufficient to pass through the actual innocence gateway—which we explain below—to a merits review of his procedurally defaulted claims. Dixon v. Watson, 

No. 17 CV 1142, 2017 WL 3838027, at *5 (N.D. Ill. Aug. 31, 

2017). Thereafter, to the three claims listed in the paragraph 

above, Dixon’s newly appointed counsel added a fourth — 

that new evidence demonstrated that the state committed 

prosecutorial misconduct. 

During the course of the proceedings in the district court, 

on November 20, 2018, Dixon moved the court to supplement 

the record on habeas review to include new evidence allegedly calling into question Simmons’ credibility. In that motion, Dixon submitted a 2011 report published by the Chicago 

Council of Lawyers bar association that alleged that when 

Simmons ran for a position as a circuit judge in Cook County, 

he likely arranged for false candidates from his uncle’s law 

firm to run against him to draw votes away from opponents, 

and thus swing the election.7 Simmons denied the allegations. 

That evaluation also pointed to an opinion in which the Illinois Appellate Court found that a habeas petitioner had made 

“a substantial showing of a violation of a constitutional right,” 

in part because Simmons had allowed a jailhouse informant 

7 The Chicago Council of Lawyers describes itself as “Chicago’s public 

interest bar association.” According to its website, since 1970, the Council 

has been evaluating judges and judicial candidates to provide information 

to the voting public.
12 No. 21-1375 

to give false testimony against the petitioner. See People v. 

Ramey, No. 1-97-3817, slip op. at 9 (Ill. App. 1st, Feb. 22, 2000), 

attached as addendum to Appellant’s Reply Brief at 9. According to the Illinois Appellate Court, “Although both 

Campbell [the testifying convicted felon] and Assistant State’s 

Attorney Simmons testified that the state did not give Campbell a deal in exchange for his testimony against Ramey, Simmons’ comment that he would inform [Campbell’s sentencing] judge of Campbell’s cooperation in the Ramey trial indicates otherwise.” Id. 

In a January 2019 order, the district court concluded that 

in the state court proceedings Dixon had a meaningful opportunity to present a complete defense, he was not denied due 

process, and his counsel was not deficient. Yet the district 

court’s interest was still piqued by the actual innocence claim 

that had pushed Dixon through the gateway to this review. 

Regarding the claim of substantive actual innocence (which 

we will elaborate upon further below), the district court noted 

that the Supreme Court has never held that such a claim is 

cognizable absent a freestanding constitutional claim, but has 

surmised that if, in fact, the Court were to recognize such a 

claim, the new evidence would have to “’unquestionably establish’ innocence.” D. Ct. Op. at 15, R. 46 at 15 (citing Schlup 

v. Delo, 513 U.S. 298, 317 (1995)). The district court mused that 

had the jury known about McDermott and Simmons’ histories, their credibility would have been “indelibly damned” 

and ”[i]n light of their lack of credibility, the State’s later disavowal of Langston’s involvement, and the dearth of any 

physical evidence tying the petitioner to the crime, no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” D. Ct. Op. at 16, R. 46 at 16. Nevertheless, the 

district court concluded that the new evidence provided by 
No. 21-1375 13

Dixon “does not, however, seem to meet the ‘extraordinarily 

high’ threshold of showing that petitioner is ‘unquestionably’ 

innocent.” Id. at 17 (citing House v. Bell, 547 U.S. 518, 554–55 

(2006)).8 The district court’s language that the new evidence 

did not “seem” to meet the threshold, reflected the court’s discomfort with that new evidence—discomfort that was significant enough that the court wanted to determine whether an 

evidentiary hearing might alter its conclusion regarding actual innocence. Consequently, the court directed “the parties 

to submit supplemental briefs on what evidence, if any, 

would be produced at an evidentiary hearing that would entitle petitioner to relief on his substantive actual innocence 

claim.” D. Ct. Op. at 17, R. 46 at 17. It is important to note that 

the judge did not order a hearing on substantive actual innocence, but rather ordered the parties to demonstrate in briefing what, if any, evidence they might submit at such a hearing. 

On the prosecutorial misconduct claim, the court was disturbed by the contradictory positions the state took at trial 

and in post-conviction proceedings. At trial, the state secured 

Dixon’s conviction by convincing the jury that he was accountable for Langston’s acts. On post-conviction review, 

however, the state asserted that Langston had nothing to do 

with the murders and therefore exculpatory evidence about 

8 The word “unquestionably” as modifying “innocent” comes not 

from Bell, but from a key Supreme Court case on actual innocence, Schlup, 

513 U.S. at 317 (“If there were no question about the fairness of the criminal trial, a Herrera–type claim would have to fail unless the federal habeas 

court is itself convinced that those new facts unquestionably establish 

Schlup’s innocence.”).
14 No. 21-1375 

him would not have benefitted Dixon. Accordingly, the court 

also directed Dixon to present supplemental briefs describing 

what, if any, evidence he would produce in a hearing to 

demonstrate that he was entitled to relief on his prosecutorial 

misconduct claim. 

After reviewing the written submissions on actual innocence and prosecutorial misconduct, the district court held 

from the bench that “on the actual innocence claim, the proposed witnesses that the petitioner would like to present, 

even if they were to be believed, would not meet the extremely high standard that would be required to conclusively 

exonerate him.” R. 53 at 2. The court went on to explain that 

“[t]here is other evidence that would support a verdict in this 

case. It would basically be retrying the case. That’s not the 

purpose of habeas. ... So we’re not going to have an evidentiary hearing on the actual innocence claim.” Id. 

As for the prosecutorial misconduct claim, the district 

court found the issue to be “disturbing,” and concluded that 

Dixon should have a chance to take some discovery. Id. at 3–

4. The court then held an evidentiary hearing, during which 

the appellate attorneys confessed that the statement in the 

state’s brief that Langston’s conduct was irrelevant was 

poorly written and inconsistent with the accountability theory of the case, which the state did not intend to abandon. At 

the end of the hearing, the district court concluded that “the 

prosecutors genuinely believed that Chandler had made a 

positive identification of Langston at the lineup despite his 

later recantation,” and that Dixon failed to demonstrate that 

the testimony was false or that prosecutors knew Detective 

Friel’s testimony was false. R. 127 at 4. As for the statement in 

the appellate brief that “Langston had nothing to do with the 
No. 21-1375 15

crime,” the court concluded that the statement had been made 

in error in a manner that amounted to “prosecutorial incompetence or even malpractice,” but not the kind of prosecutorial misconduct that would call for the grant of a writ of habeas. Id. at 5–6. The district court concluded by granting a certificate of appealability. 

II.

A. Actual innocence and prosecutorial misconduct

The only task for a federal court in reviewing a habeas petition from a state court conviction is to “ensure that individuals are not imprisoned in violation of the Constitution—not 

to correct errors of fact.” Herrera v. Collins, 506 U.S. 390, 400 

(1993). Dixon centers his habeas petition on a claim of actual 

innocence. When courts speak of “actual innocence” claims 

on habeas review, they are referring to one of two kinds of 

actual innocence claims—“actual innocence” as a substantive 

matter, and “actual innocence” as a gateway claim through 

which a habeas petitioner might pass so that a court can consider constitutional claims that were otherwise procedurally 

barred. Schlup, 513 U.S. at 314–15. Dixon makes both claims 

here, but because the gateway claim of actual innocence is the 

one that unlocked the federal courthouse doors to Dixon’s 

claim, we begin there. 

A habeas petitioner may use a claim of actual innocence to 

overcome a procedurally defaulted and time-barred habeas 

claim, as a way to prevent a miscarriage of justice. See 28 

U.S.C. § 2244(d)(1) (setting the period of limitation for application of a writ of habeas corpus); McQuiggin v. Perkins, 569 

U.S. 383, 386 (2013) (describing actual innocence as a gateway 

through which a petitioner may pass to overcome a 
16 No. 21-1375 

procedural bar such as a statute of limitations). Allowing this 

gateway to a constitutional challenge balances concerns of finality and comity with the important “concern about the injustice that results from the conviction of an innocent person 

[which] has long been at the core of our criminal justice system.” Schlup, 513 U.S. at 325. 

The bar to proving such a claim, however, is onerous. The 

“standard is demanding and permits review only in the ‘extraordinary’ case.” House, 547 U.S. at 538 (quoting Schlup, 513 

U.S. at 327). See also McQuiggin, 569 U.S. at 386 (“tenable actual-innocence gateway pleas are rare”); Arnold v. Dittmann, 

901 F.3d 830, 838 (7th Cir. 2018) (“No doubt the Schlup standard is an onerous one for the petitioner to meet”). The petitioner must show that “’a constitutional violation has probably resulted in the conviction of one who is actually innocent.’” Schlup, 513 U.S. at 327 (citing Murray v. Carrier, 477 U.S. 

478, 496 (1986)). “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the 

new evidence.” Id. New evidence in this context is not “newly 

discovered evidence,” but rather any evidence that was not 

presented at trial. Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 

2016). “In evaluating the claim, the court is to conduct a comprehensive assessment that takes into account any reliable evidence probative of petitioner’s innocence or guilt, even evidence that was previously excluded; the court is not bound 

by the rules of evidence that would govern at trial.” Arnold, 

901 F.3d at 837 (citing Schlup, 513 U.S. at 327–28).

To pass through the gateway, the petitioner must support 

the claim of actual innocence with “reliable evidence—

whether it be exculpatory scientific evidence, trustworthy 
No. 21-1375 17

eyewitness accounts, or critical physical evidence—that was 

not presented at trial.” Schlup, 513 U.S. at 324. As this court 

described it, “[t]o demonstrate innocence so convincingly that 

no reasonable jury could convict, a prisoner must have documentary, biological (DNA), or other powerful evidence: perhaps some non-relative who placed him out of the city, with 

credit card slips, photographs, and phone logs to back up the 

claim.” Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005). 

Even if a petitioner meets these high burdens, the heavy 

lifting has only begun. A procedural actual innocence claim is 

merely “a gateway through which a habeas petitioner must 

pass to have his otherwise barred constitutional claim considered on the merits.” Herrera, 506 U.S. at 439. Once a petitioner 

satisfies the procedural actual innocence exception, he “must 

show that his conviction violates the Constitution, laws, or 

treaties of the United States” to obtain habeas relief. Arnold, 

901 F.3d at 837. 

The district court allowed Dixon to pass through the actual innocence gateway based on the new evidence Dixon 

presented on habeas review—the state’s post-conviction contention that Langston’s involvement was irrelevant to Dixon’s 

case and evidence of McDermott’s abusive and perjurious 

past. Despite significant doubts that Dixon could meet the 

high standard of proving that he was unquestionably innocent as a substantive matter, the district court allowed Dixon 

to submit supplemental briefs on “what evidence, if any, 

would be produced at an evidentiary hearing that would entitle petitioner to relief on his substantive actual innocence 

claim.” R. 46 at 17. 

Passage through that procedural gateway did not get 

Dixon far—not even to a hearing on substantive actual 
18 No. 21-1375 

innocence. The district court denied Dixon an evidentiary 

hearing on that claim, holding that “the proposed witnesses 

that the petitioner would like to present, even if they were to 

be believed, would not meet the extremely high standard that 

would be required to conclusively exonerate him.” R. 53 at 2. 

That decision—not to hold an evidentiary hearing—is one we 

review for abuse of discretion only. Schriro v. Landrigan, 550 

U.S. 465, 475 (2007). We see no abuse of discretion here. 

Dixon’s evidence of actual innocence fell far from meeting the 

substantial burden of establishing that no reasonable juror 

could have convicted him in light of the new evidence. Schlup, 

513 U.S. at 327. Dixon simply had nothing close to the kind of 

reliable, conclusive, evidence that the case law demands. See

Schlup, 513 U.S. at 324; Hayes, 403 F.3d at 938.

Of course, Dixon did have robust evidence that would 

give a jury good reason to doubt the credibility of McDermott’s testimony. It goes without saying that McDermott’s behavior warrants our most severe condemnation. Police officers who violate the rights of defendants by physically abusing 

them or by illegally coercing confessions in any manner not 

only harm the defendant but also, as this case demonstrates, 

risk degrading the strength of the government’s case or having it dismissed outright. More importantly, those types of actions erode the public’s trust and confidence in law enforcement and in our entire system of justice. For this reason, we 

would not want to conclude that the district court erred in allowing Dixon through the procedural actual innocence gateway. To the contrary, the district court properly paused to 

consider more thoroughly the implications of this kind of 

criminal behavior by police officers. We do not find it necessary to assess whether, after the pause, the district court 

should have allowed Dixon through the procedural actual 
No. 21-1375 19

innocence gateway or not. That gateway itself, after all, does 

not allow for habeas relief. It merely allows a petitioner the 

opportunity to demonstrate some constitutional error in his 

trial. Herrera, 506 U.S. at 400. And because, after passing 

through that gateway, the court quickly dismissed his substantive actual innocence claim, even if we assumed the district court might have been too generous in allowing him 

through the actual innocence gateway (and we are not saying 

it was), that indulgence would have had no effect on the outcome of the habeas petition. The district court quickly concluded, even before allowing an evidentiary hearing on substantive actual innocence, that Dixon could not “meet the extremely high standard that would be required to conclusively 

exonerate him.” R. 53 at 2. 

The evidence that McDermott coerced confessions and 

perjured himself in other cases is simply not enough to surpass the high hurdle to show actual innocence given the facts 

of this case. To begin, Dixon has never alleged that McDermott coerced his confession, instead asserting that one of the 

arresting officers berated and screamed at him. But perhaps 

more importantly, a reasonable juror could have found Dixon 

guilty of the murder and robbery even knowing that McDermott coerced his confession and lied about it in court. See, e.g.

Gladney v. Pollard, 799 F.3d 889, 900 (7th Cir. 2015) (noting that 

actual innocence cannot be found if a reasonable juror could 

accept any theory establishing guilt). It can, of course, simultaneously be true that McDermott was abusive and a liar and

that Dixon committed the crime. Dixon has not presented the 

sort of evidence that could confidently demonstrate his innocence—no exonerating DNA evidence, record of incarceration at the time of the crime, video evidence of him in a 
20 No. 21-1375 

faraway location, or other evidence that could establish innocence conclusively. See Schlup, 513 U.S. at 324; Hayes, 403 F.3d 

at 938. 

The state’s evidence, thin as it was, was not dependent entirely on McDermott’s testimony. The state set forth evidence 

of the stolen van that corroborated Dixon’s confession, as well 

as the mystery call that came from James’ apartment just before the murders. Of course, the former also falls apart if the 

confession from which the information about the van came 

was fabricated by Simmons and McDermott, who may have 

been aware of the report of a stolen van in the area. But both 

Simmons’ and McDermott’s testimony about the confession 

lined up. Simmons’ credibility, we now know, could have 

been challenged at trial with evidence that he was criticized 

by a bar association for his campaign tactics and also by—an 

Illinois Court of Appeals opinion for allowing an inmate to 

testify falsely. But the accusations against Simmons were far 

milder than those surrounding McDermott.9 A jury could certainly choose to believe Simmons’ retelling of the confession. 

9 The state implies that Dixon’s attack on Simmons lacks persuasive 

value because he “served with distinction as a state court judge and is now 

the managing partner of a prominent law firm. See Brief of Appellee at 17. 

Unfortunately, history has revealed that neither of those roles insulates a 

person from the temptation to engage in conduct unbecoming of the position. We acknowledge both the appellant’s argument that Simmons was 

critiqued by a state appellate court and a reviewing bar association who 

rated him “not qualified” on three separate occasions before finding him 

qualified on a fourth (although we do not understand the significance of 

labeling the bar association as “alternative”), and also the appellee’s argument that Simmons’ more recent professional activity has faced no criticism. Neither party’s assessment of Simmons’ credibility alters the outcome of this case. 
No. 21-1375 21

And in any event, just as was the case with McDermott, the 

impeaching allegations against Simmons, even if believed, are 

not definitive evidence of Dixon’s actual innocence. 

Finally, in assessing actual innocence, a federal court also 

could have considered statements Marshan has made about 

the crime outside of Dixon’s trial. Schlup, 513 U.S. at 327–28; 

Arnold, 901 F.3d at 837. In his own confession, Marshan told 

the police that he committed the crimes in a manner consistent with Dixon’s confession. See People v. Allen, 2013 IL 

App (1st) 102884-U, ¶ 6, as modified on denial of reh’g (Nov. 13, 

2013). Additionally, in a 2018 Chicago Tribune article, Marshan admitted that he, along with his “two co-defendants 

killed Elroy Gaston and Jerome DeBerry in a drug dispute.” 

Marshan T. Allen, Why Illinois Needs to Restore Parole for Juvenile Lifers, Chi. Trib., Feb. 22, 2018.10 Marshan has admitted his 

guilt in other interviews as well. See Rob Stafford and Lisa 

Capitanini, Race in Chicago: One Man’s Fight for Redemption, 

NBC5 Chicago, Sept. 3, 2020. All of this would be fair game 

for a federal court to consider when evaluating a claim of actual innocence.

As for the existence of a substantive innocence claim, the

Supreme Court has never held that such a claim, standing 

alone—separate and apart from any constitutional error—

could support habeas relief; but neither has it held that such 

a claim cannot be considered. See Herrera, 506 U.S. at 404–05; 

see also McQuiggin, 569 U.S. at 392 (“We have not resolved 

whether a prisoner may be entitled to habeas relief based on 

10 https://www.chicagotribune.com/opinion/commentary/ct-perspecparole-juvenile-lifers-prison-illinois-children-criminals-0222-story.html. 

https://perma.cc/PAL9-56SM
22 No. 21-1375 

a freestanding claim of actual innocence.”); Dist. Att’y’s Office 

for the Third Jud. Dist. v. Osborne, 557 U.S. 52, 71 (2009) (noting 

that it is an open question as to whether there exists a federal 

right to be released upon proof of actual innocence.); House, 

547 U.S. at 554–55 (declining to “answer the question left open 

in Herrera” about the existence of freestanding actual innocence claims). Nor has this court so held. Cal, 991 F.3d at 850–

51; Arnold, 901 F.3d at 837 (explaining that we have never “indicated that an actual innocence claim could, standing alone, 

support the issuance of a writ in a non-capital case”); Tabb v. 

Christianson, 855 F.3d 757, 764 (7th Cir. 2017) (“Whether the 

constitutional guarantee of due process supports independent claims of actual innocence without any other constitutional violation remains open to debate.”). As we recently 

pointed out in Cal, 991 F.3d at 851, many of our sister circuits 

have similarly grappled with the issue. See id. (compiling 

cases).

The Supreme Court in Herrera left open the possibility “in 

a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if 

there were no state avenue open to process such a claim.” Herrera, 506 U.S. at 417. This is not a capital case, but the Supreme 

Court has also noted that “it would be a rather strange jurisprudence, in these circumstances, which held that under our 

Constitution [a prisoner] could not be executed, but that he 

could spend the rest of his life in prison.” Id. at 405. 

Even Dixon concedes that if this circuit were to recognize 

a substantive actual innocence claim, the evidence of innocence would have to be highly reliable and “affirmatively 
No. 21-1375 23

prove that [Dixon] is probably innocent.” Appellant’s Brief at 

32 (citing Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014)). 

Unlike the threshold for a claim for procedural or gateway 

actual innocence, which we described above, the threshold for 

a substantive actual innocence claim is far less defined—perhaps because the right to such a claim is still very much up in 

the air. See Arnold, 901 F.3d at 837 n.4 (“It is also unsettled 

what particular standard of proof a petitioner would have to 

meet in order to be entitled to relief on a freestanding claim of 

innocence.”) All indications, however, point to a standard of 

proof for substantive actual innocence claims that is even 

more demanding than that for gateway actual innocence 

claims. See Schlup, 513 U.S. at 316 (noting that a petitioner trying to make a gateway claim of actual innocence need carry 

less of a burden than if claiming substantive actual innocence); House, 547 U.S. at 555 (“The sequence of the Court’s 

decisions in Herrera and Schlup—first leaving unresolved the 

status of freestanding claims and then establishing the gateway standard—implies at the least that Herrera requires more 

convincing proof of innocence than Schlup.”); Arnold, 901 F.3d 

at 838 (“The State presumes (not unreasonably) that the standard for granting habeas relief on such a [substantive actual innocence] claim would be even more demanding than the 

standard Schlup has established for innocence as a gateway to 

habeas review.”) 

Whatever the standard would be if the Supreme Court or 

this circuit decided to entertain claims of substantive actual 

innocence on habeas review, Dixon could not meet it. As we 

concluded in discussing even the lower standard of actual innocence as a gateway claim, Dixon lacks anything close to the 

kind of definitive or convincing evidence that the Supreme 
24 No. 21-1375 

Court and this court require. Hayes, 403 F.3d at 938 (describing “documentary, biological (DNA), or other powerful evidence” such as “credit card slips, photographs, and phone 

logs.”). 

We also reject Dixon’s alternative request to remand for an 

evidentiary hearing on the issue of actual substantive innocence. We review the district court’s denial of further evidentiary hearings for an abuse of discretion and we see none here. 

Coleman v. Hardy, 628 F.3d 314, 318 (7th Cir. 2010). The district 

court gave Dixon more than the benefit of the doubt by allowing him to pass through a very demanding procedural gateway to a merits review. The court then carefully considered 

the arguments Dixon made about the state’s appellate brief, 

the new evidence about McDermott and Simmons, and even 

allowed an evidentiary hearing on prosecutorial misconduct. 

The district court concluded that even if Dixon were to present the evidence he described in his filings, and the witnesses 

were believed, the evidence would not meet the extremely 

high standard required for a showing of actual innocence. We 

see no abuse of discretion. 

B. Constitutional claims 

Dixon’s final claims are ones he had hoped to make after 

passing through the procedural actual innocence gateway. 

We have declined to conclude one way or another about the 

propriety of opening that gateway, but we will swiftly resolve 

these claims in any event.

Dixon argues that the state trial court violated his rights 

under the Confrontation Clause by admitting hearsay and 

then prohibiting Dixon from responding. As we described 

earlier, the court had issued an order excluding testimony 
No. 21-1375 25

regarding the lineup and specifically about the witness, Chandler’s, out-of-court statements regarding the lineup identifications. Nevertheless, Dixon’s counsel asked Detective Friel 

whether he had shown Chandler a lineup that included 

Dixon. And he asked Simmons whether any detectives had 

told him that “Dixon had been in a lineup that day and was 

not identified?” R. 25-26 at 393. In response to the violation of 

the court’s order, the court gave Dixon the choice of striking 

Friel’s testimony or allowing the state to question Friel about 

whether Chandler identified anyone in the lineup. The court 

stated that it would not, however, allow hearsay testimony of 

Chandler’s recantation.

Dixon concedes that he did not raise this claim in the district court. An argument not raised in the district court is forfeited on appeal. Frazier v. Varga, 843 F.3d 258, 262 (7th Cir. 

2016). We are not convinced that there are any extraordinary 

considerations that would warrant overlooking the forfeiture. 

For the same reason, Dixon has forfeited the claim that his 

trial counsel was ineffective by opening the door to Detective 

Friel’s testimony in the first place. 

Finally, Dixon alleges that the court erred when making 

credibility findings about the prosecutors’ beliefs regarding 

the lineup identification. Dixon argued below that the prosecutors committed misconduct because they knew that Chandler did not identify Langston during the lineup, and yet they 

elicited testimony from Detective Friel to the contrary. This 

argument assumes that Chandler was telling the truth when 

he declared, over a year after the lineup, that he had never 

identified anyone in the lineup. After an evidentiary hearing 

on prosecutorial misconduct, including testimony from the 

prosecutors about why they were skeptical of the late 
26 No. 21-1375 

recantation, the court found that the prosecutors “genuinely 

believed that Chandler made a positive identification of Langston at the lineup despite his later recantation.” R. 127 at 4. 

The court continued, “I find that the petitioner had failed to 

demonstrate that that testimony was false or that the prosecution knew that it was false.” Id. This was a factual finding 

made by the district court after a full hearing and review of 

post-hearing briefs, transcripts, notes, prior opinions, and 

Dixon’s entire file. We review such factual determinations for 

clear error only, giving special deference to factual findings 

regarding credibility. United States v. Sanford, 35 F.4th 595, 599 

(7th Cir. 2022). The court’s hearing fully aired the evidence as 

to whether the prosecutors believed that Chandler positively 

identified Langston. The court also thoroughly vetted the 

state’s claim that it simply erred when it stated in its brief that 

Langston’s actions were irrelevant to the crime. The court described the event as “prosecutorial incompetence, or even 

malpractice,” but not the type of error that would allow for a 

grant of habeas. R. 127 at 247.We see no clear error in the district court’s factual findings on the prosecutorial misconduct 

and the related credibility determinations.

The decision of the district court is AFFIRMED.