In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3666

NICHOLAS ESCAMILLA,

Petitioner-Appellant,

v.

EUGENE JUNGWIRTH, Warden,

East Moline Correctional Center,

Respondent-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 00 C 3270—Marvin E. Aspen, Judge.

____________

ARGUED SEPTEMBER 20, 2005—DECIDED OCTOBER 14, 2005

____________

Before EASTERBROOK, MANION, and SYKES, Circuit

Judges.

EASTERBROOK, Circuit Judge. Nicholas Escamilla was

convicted of murder for his role in the death of Hector

Olague, who belonged to a rival gang. The prosecution’s

theory is that Escamilla drove a car that two of his fellow

gang members used to hunt down the victim and escape

after the shooting. Several eyewitnesses described

Escamilla’s role. Testifying at his trial consistently with a

statement he had made to the police, Escamilla admitted

driving the car from which other gang members debarked

to commit the murder, but he contended that he thought

the expedition’s purpose was to pick up one passenger’s
2 No. 04-3666

girlfriend rather than to kill anyone. The jury concluded

that Escamilla had known of the trip’s goal. He is serving

a term of 29 years’ imprisonment.

In this collateral attack under 28 U.S.C. §2254, Escamilla

contends that his attorney furnished ineffective assistance

by withdrawing a motion to suppress the statement and by

not finding potential alibi witnesses. Yet if Escamilla told

the truth at trial, then alibi testimony would have been

perjured, and there would have been little point in excluding a statement that was all but identical to the defendant’s

trial testimony. Escamilla’s current position, however, is

that he was the perjurer at trial—that he was nowhere near

the scene of the murder, and that his pretrial statement is

the product of coercive interrogation.

It is difficult to see how a collateral attack based on the

proposition that the petitioner’s own trial testimony

was a pack of lies has any prospect of success. Litigants

must live with the stories that they tell under oath. See,

e.g., United States v. Stewart, 198 F.3d 984 (7th Cir. 1999);

Dye v. Wargo, 253 F.3d 296 (7th Cir. 2001); cf. Cleveland v.

Policy Management Systems, Inc., 526 U.S. 795, 806 (1999);

Opsteen v. Keller Structures, Inc., 408 F.3d 390 (7th Cir.

2005).

Escamilla maintains that, once his lawyer withdrew

the motion to exclude the statement, he had “no choice” but

to testify consistently with it. Not at all. He could have

asked the court for a new lawyer, remained silent at

trial, or testified to what he now insists is the truth and

asked the jury to disregard what he had said before. The

legal system offers many ways to deal with problems;

perjury is not among them. See, e.g., Brogan v. United

States, 522 U.S. 398 (1998). How could any court credit

statements made by a litigant such as Escamilla who

trumpets a willingness (indeed, asserts an entitlement) to

lie under oath whenever deceit serves his interests?
No. 04-3666 3

The district court did not deny the petition on this

ground, however. Instead it held the petition untimely.

Escamilla v. Walls, 2004 U.S. Dist. LEXIS 14626 (N.D. Ill.

July 29, 2004). Escamilla’s conviction became final in 1997,

and he did not file a federal petition until 2000. None of the

intervening time is excludable under 28 U.S.C. §2244(d)(2),

because Escamilla did not file a state collateral attack until

after getting the federal proceeding under way. The district

court stayed the federal case to allow exhaustion. See

Rhines v. Weber, 125 S. Ct. 1528 (2005). The state court’s

willingness to entertain a belated collateral attack on the

merits does not affect the timeliness of the federal proceeding, because no state collateral review was “pending” during

1998 and 1999. See Fernandez v. Sternes, 227 F.3d 977 (7th

Cir. 2000); see also Daniels v. Uchtman, No. 04-2574 (7th

Cir. Aug. 29, 2005) (decision by state court on the merits of

a belated collateral attack does not renew the time for a

federal collateral proceeding).

Escamilla contends that his time restarted under

§2244(d)(1)(D), which grants a fresh year from “the date on

which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due

diligence.” According to Escamilla, he did not discover until

some time during 1999 (if not later) that other persons who

had been interrogated by Detectives Halloran, O’Brien,

Ryan, and Boudreau had accused these detectives of

coercing them to confess. This additional information

bolsters the contention that his confession should have been

suppressed, Escamilla insists, and justifies a new year

under §2244(d)(1)(D). This argument founders on both

factual and legal grounds.

The factual problem is that people interrogated by these

detectives had been accusing them of misconduct for many

years. The Chicago Tribune ran a story on the subject

during 1993, and the Chicago Police Department’s Office of

Professional Standards published a report in May 1997;
4 No. 04-3666

both of these occurred before Escamilla’s conviction became

final. The district judge sensibly concluded that “Escamilla

could have obtained this evidence through the exercise of

due diligence much earlier than 1999 or 2000.” 2004 U.S.

Dist. LEXIS 14626 at *10. See also Owens v. Boyd, 235 F.3d

356, 359 (7th Cir. 2001) (time runs from when evidence

could have been discovered through diligent inquiry, not

when it was actually discovered or its significance realized).

The legal problem is that Escamilla knew “the factual

predicate of [his] claim” before his trial. The “claim” is that

the statement had been coerced; the “factual predicate” for

that claim is what happened to Escamilla himself (as

opposed to other suspects). Escamilla knew before his

trial how the detectives had treated him. He filed a motion to suppress. A claim made by pretrial motion, supported by the recollections of witnesses, is not one in which

the “factual predicate” did not come to light until long

after trial. Section 2244(d)(1)(D) does not restart the time

when corroborating evidence becomes available; if it did,

then the statute of limitations would fail in its purpose

to bring finality to criminal judgments, for any prisoner

could reopen the judgment by locating any additional fact.

As a matter of law, new evidence supporting a claim

actually made at or before trial cannot form the basis of

a new period under §2244(d)(1)(D).

Escamilla cannot get traction by recharacterizing this as

a challenge to counsel’s conduct, for he knew before trial

that counsel had withdrawn the motion. A complaint about

that decision could have been presented to the state

judiciary on appeal or by a prompt collateral attack. No new

“factual predicate” supporting a “claim” that counsel

rendered ineffective assistance is possible even in theory,

because the adequacy of counsel’s performance must

be assessed in light of what was actually known (or reasonably knowable) at the time counsel acted, rather than

what comes to light years later. See Strickland v. Washing-
No. 04-3666 5

ton, 466 U.S. 668, 690 (1984); Jarrett v. United States, 822

F.2d 1438, 1442 (7th Cir. 1987).

This drives Escamilla to contend that the statutory

criteria may be overridden by equitable considerations. He

observes that “actual innocence” can excuse a procedural

default in state court and may permit a federal court to

adjudicate a second or successive contention on the merits,

see §2244(b)(2)(B); Herrera v. Collins, 506 U.S. 390 (1993);

he wants us to extend this so that innocence also permits belated filing, despite the lack of any support in

§2244(d) for such an extension. Again this contention has

both factual and legal shortcomings.

The factual shortcoming is that Escamilla cannot demonstrate, by clear and convincing evidence, that no reasonable

jury would have convicted him. Escamilla’s own words on

the stand at trial show that he drove his fellow gang

members to and from the killing. Courts do not allow

prisoners to start with clean slates after their convictions

and argue “actual innocence” as if the trial had not occurred.

The legal shortcoming is that “actual innocence” is

unrelated to the statutory timeliness rules. See Gildon

v. Bowen, 384 F.3d 883 (7th Cir. 2004). “Actual innocence”

permits a second petition under §2244(b)(2)(B)—it clears

away a claim that the prisoner defaulted in state court or by

omission from the first federal petition—but does

not extend the time to seek collateral relief. Section 2244(d)

sets the timing rules for all petitions. The Supreme Court

said in Dodd v. United States, 125 S. Ct. 2478, 2482-83

(2005), that a second or successive petition must meet these

requirements—and this is so, the Court added, even if the

time runs out before a given avenue of attack on the

conviction becomes legally and factually tenable.

A second petition thus is possible if the factual predicate

could not have been discovered earlier, and the prisoner

shows actual innocence by clear and convincing evidence.
6 No. 04-3666

The first showing resets the clock under §2244(d)(1)(D), and

the second clears the remaining procedural hurdle under

§2244(b)(2)(B). Actual innocence without a newly discovered

claim does nothing at all. Although the statute leaves some

(limited) room for equitable tolling, see Pace v. DiGuglielmo,

125 S. Ct. 1807, 1814-15 (2005), courts cannot alter the

rules laid down in the text. Section 2244(d) has a rule for

when new factual discoveries provide a fresh period for

litigation; unless that standard is met, a contention that the

new discoveries add up to actual innocence is unavailing.

Prisoners claiming to be innocent, like those contending

that other events spoil the conviction, must meet the

statutory requirement of timely action.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-14-05