UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA

BRUCE D. JOHNSON-EL, ) 

 ) 

 Petitioner, ) 

 ) 

 v. ) CAUSE NO.: 3:15-CV-210-TLS 

 ) 

SUPERINTENDENT, ) 

 ) 

 Respondent. ) 

OPINION AND ORDER

 Bruce D. Johnson-El, a pro se prisoner, filed a Petition for Writ of Habeas Corpus [ECF 

No. 1] attempting to challenge his conviction and 20-year sentence for rape in Cass Superior 

Court on March 23, 2006. The Respondent argues that the Habeas Corpus Petition must be 

dismissed because it is untimely, the claims are procedurally defaulted, and they are without 

merit. Johnson-El has not filed any reply. 

BACKGROUND

 In deciding the Petition, the Court must presume that the facts set forth by the state courts 

are correct. 28 U.S.C. § 2254(e)(1). It is Johnson-El’s burden to rebut this presumption with clear 

and convincing evidence. Id. On direct appeal, the Indiana Court of Appeals set forth the facts 

underlying this case as follows: 

On the night of April 16, 2003, Johnson-El visited the home of Pamela Putnam in 

Logansport. Johnson-El had known Putnam since childhood and regularly visited 

Putnam at her home. Putnam’s children, eighteen-year-old A.P. and twenty-oneyear-old Shaun, also lived at the residence. When Johnson-El arrived at Putnam’s 

home, Putnam was in her bedroom and A.P. was watching television in the living 

room. Johnson-El sat next to A.P. on the couch and A.P. noticed that Johnson-El 

smelled of alcohol and that his speech was slurred. Shaun arrived home a short 

time later, and Johnson-El and Shaun decided to walk to Johnson-El’s home to 

obtain alcohol, approximately three blocks away. After they left, A.P. went to her 
2 

bedroom to sleep. Johnson-El and Shaun returned to Putnam’s home with a few 

beers and a bottle of whiskey, consumed some of the alcohol, and fell asleep 

watching television. 

During the night, A.P. awoke to discover Johnson-El sitting on the edge of her 

bed. A.P. asked Johnson-El why he was in her room and then told him to leave. 

Johnson-El left A.P.’s bedroom, closing the door behind him. A.P. fell asleep but 

was subsequently awakened by a man she recognized as Johnson-El lying behind 

her and applying pressure to her neck and hips. A.P. realized that the shorts she 

was wearing had been pulled down and that Johnson-El was touching her neck, 

lower back, and vagina while holding her wrists together in front of her. A.P. felt 

Johnson-El put his penis into her vagina and move slowly. A.P. began to struggle, 

freed her left arm, pushed Johnson-El, and told him “no” and “to stop.” Tr. p. 25. 

Johnson-El began to move faster as A.P. struggled. Johnson-El eventually 

stopped, stood up, told A.P. not to tell anyone, and left her bedroom. 

The next morning, Putnam found Johnson-El on the couch and he told her that he 

had done “something that he was ashamed of . . . .” Id. at 60. A.P. remained in her 

bedroom until Putnam and Johnson-El left the house. A.P. answered the phone 

when it rang and Johnson-El asked her “if [she] was okay” and reiterated that this 

was “between me and you.” Id. at 28. A.P. hung up the phone, called Putnam at 

work, and asked that she come home. 

When Putnam returned home, A.P. told her mother that Johnson-El had raped her. 

While Putnam was talking with A.P., Johnson-El called the house again. Putnam 

answered the phone and told Johnson-El that she knew what he had done and that 

she was going to call the police and take A.P. to the hospital. After she hung up 

the phone, Putnam called the police and brought A.P. to the emergency room in a 

Logansport hospital. At the hospital, a nurse performed a sexual assault 

examination on A.P. A.P. complained of a sore vaginal area and lower back pain. 

The nurse noticed an abrasion on A.P.’s neck. 

On April 23, 2003, the State charged Johnson-El with class B felony rape. On 

June 4, 2004, the State filed an additional count of class B felony rape. A bench 

trial was held on March 23, 2006, and Johnson-El moved for a directed verdict 

after the State presented its evidence. The trial court granted Johnson-El’s motion 

as to Count II but denied the motion as to Count I. After the remainder of the 

bench trial, the trial court found Johnson-El guilty of rape. Following sentencing 

hearings on April 17, 2006, and May 1, 2006, the trial court sentenced Johnson-El 

to twenty years imprisonment. 

Johnson-El v. State, No. 09A02-0605-CR-424, slip op. at *2–4 (Ind. Ct. App. Jan. 10, 2007). 
3 

 On direct appeal, Johnson-El challenged the sentence. [ECF No. 11-4.] The Indiana Court 

of Appeals affirmed his sentence on January 10, 2007, and Johnson-El did not seek transfer to 

the Indiana Supreme Court. [ECF Nos. 11-3, 11-7.] 

 Johnson-El filed a Petition for post-conviction relief and a Motion for a change of judge 

on January 28, 2009: 

In his petition, Johnson-El argued that the assistance of his trial and appellate 

counsel had been ineffective and that the trial court had improperly enhanced his 

sentence. In his motion for a change of judge, he requested a new judge based on 

his belief that the judge who had presided over his trial was biased against him. 

Specifically, he claimed that the trial judge’s actions at trial “consisted of voice 

inflections, facial expressions, and glances, and making reference to this case as a 

file # 13 case.” Based on this “demeanor throughout trial,” Johnson-El argued 

that his trial judge was partial to the State and could not make an objective 

assessment of the arguments he raised in his petition for post-conviction relief. In 

response to Johnson-El’s petition and motion, on February 3, 2009, the State filed 

an answer in which it requested disposition without a hearing because JohnsonEl’s arguments did not contain genuine issues of material fact. That same day, the 

post-conviction court denied Johnson-El’s change of judge motion without a 

hearing. 

Subsequently, on February 17, 2011, Johnson-El, pro se, filed an amended 

petition for post-conviction relief and a second motion for change of judge. In his 

amended petition, Johnson-El alleged that he was entitled to a new trial based on 

newly discovered evidence that the victim of his rape had allegedly admitted to 

her cousin that Johnson-El had not raped her. In his second motion for a change of 

judge, Johnson-El again argued that his trial judge was prejudiced against him. He 

stated that: 

I believe the [trial judge] has a personal bias or prejudice against me 

because my conviction rests upon the sole credibility and testimony of the 

alleged victim in this case; [a]nd over my own credibility and testimony, 

he favored a conviction, via, marrying the alleged victim’s testimony; and 

thus, has evinced in this case a bias against me so strong as to affect his 

objectivity in assessing the charges and claims now made pending before 

the court in my instant [a]mended [p]etition for [p]ost-[c]onviction [r]elief 

that would warrant his disqualification from considering this matter. 

Further, it is my firm belief that the maxium [sic] sentence of [twenty 

(20)] years he has given me convinces me that he holds such a bias against 

me. 
4 

Also on February 17, 2011, the post-conviction court denied Johnson-El’s second 

motion for a change of judge, finding that it did not comply with Indiana PostConviction Rule 1(4)(b). 

On March 19, 2013, the post-conviction court held a hearing and dismissed 

Johnson-El’s amended petition for post-conviction relief pursuant to Indiana Trial 

Rule 41(E). On April 8, 2013, Johnson-El filed a motion to correct error disputing 

both the post-conviction court’s denial of his motion for a change of judge and his 

petition for post-conviction relief. The post-conviction court held a hearing on the 

motion to correct error on July 1, 2013, and denied the motion that same day. 

Johnson-El v. State, No. 09A02-1302-PC-270, slip op. at *2–4 (Ind. Ct. App. Aug. 24, 2014) 

(internal citations and footnotes omitted). 

 On appeal from the denial of post-conviction relief, Johnson-El argued that the postconviction court improperly denied his Motion for a change of judge and that the dismissal of his 

post-conviction Petition on procedural grounds under Trial Rule 41(E) was improper. The 

Indiana Court of Appeals affirmed the post-conviction court’s rulings. [ECF No. 11-10.] 

Johnson-El reiterated his claims on transfer, but the Indiana Supreme Court denied transfer on 

October 23, 2014. On March 16, 2015, Johnson-El filed his Petition for Writ of Habeas Corpus 

here, which was signed on March 10, 2015. 

ANALYSIS

 This Petition must be dismissed for a number of reasons. The Respondent argues that 

Johnson-El’s Petition should be dismissed because it is untimely, the claims are procedurally 

defaulted, and the claims are without merit. Each of these issues will be addressed in turn. 

First, however, the Court must address one additional issue sua sponte. It has come to the 

Court’s attention that after this case was filed and while it was pending, Johnson-El filed another 

Writ of Habeas Corpus in Johnson-El v. Superintendent, 1:16-CV-3417 (S.D. Ind. filed Dec. 19, 

2016), raising the same issues he raises here. Shortly after that Petition was filed in the Southern 
5 

District of Indiana, Judge Larry L. McKinney dismissed it on the merits. (Id., ECF Nos. 3, 4.) 

Notably, district courts lack jurisdiction to hear unauthorized “second or successive” habeas 

corpus petitions. Burton v. Stewart, 549 U.S. 147, 157 (2007). However, Congress did not define 

the phrase “second or successive.” Magwood v. Patterson, 561 U.S. 320, 332 (2010). And, the 

phrase does not simply “refer to all § 2254 applications filed second or successively in time.” 

Panetti v. Quarterman, 551 U.S. 930, 940 (2007). As such, the Court is presented with a unique 

situation where it is not quite clear which Petition is considered the “second or successive.” It 

may very well be that the Southern District of Indiana did not have jurisdiction to rule on the 

merits of Johnson-El’s Petition because it was filed after the Petition in this case. See 28 U.S.C. § 

2244(b)(1) (noting that a “claim presented in a second or successive habeas corpus application 

under section 2254 that was presented in a prior application shall be dismissed”). However, since 

Judge McKinney has already decided the merits of Johnson-El’s Petition, it may very well be 

that this Court should defer addressing the Petition filed here. See id. § 2244(a) (noting that a 

court need not entertain a habeas petition “if it appears that the legality of such detention has 

been determined by a judge . . ..”). Regardless, even if this Court can adjudicate the Petition filed 

in this case, it arrives at the same conclusion as Judge McKinney: Johnson-El is not entitled to 

habeas relief. 

A. The Habeas Petition Is Untimely. 

 Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas petitions 

are subject to a strict one-year statute of limitations, set forth as follows: 

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus 

by a person in custody pursuant to the judgment of a State court. The limitation period 

shall run from the latest of— 
6 

(A) the date on which the judgment became final by the conclusion of direct 

review or the expiration of the time for seeking such review; 

(B) the date on which the impediment to filing an application created by State 

action in violation of the Constitution or laws of the United States is removed, if 

the applicant was prevented from filing by such State action; 

(C) the date on which the constitutional right asserted was initially recognized by 

the Supreme Court, if the right has been newly recognized by the Supreme Court 

and made retroactively applicable to cases on collateral review; or 

(D) the date on which the factual predicate of the claim or claims presented could 

have been discovered through the exercise of due diligence. 

28 U.S.C. § 2244(d). 

 Here, Johnson-El’s conviction became final on February 9, 2007, when the time to seek 

transfer to the Indiana Supreme Court expired. Griffith v. Kentucky, 479 U.S. 314, 321 (1987); 

Powell v. Davis, 415 F.3d 722, 726 (7th Cir. 2005). Therefore, he had until February 11, 2008,1

 

to file a writ of habeas corpus or properly file a collateral attack in state court to toll the 

limitations period. The Respondent argues that because the next pleading Johnson-El filed was a 

Petition for post-conviction relief on January 28, 2009, the one-year statute of limitations has 

lapsed under § 2244(d)(1)(A). 

 In his Petition, however, Johnson-El claims his Petition is timely because of “newly 

discovered evidence” that was not introduced during his 2006 trial. (Pet. 8, ECF No. 1.) He 

asserts that an affidavit provided by the victim’s cousin stating that the victim told him she was 

not raped by Johnson-El constitutes newly discovered evidence. Though the affidavit constitutes 

“new evidence” to the extent it was not introduced at trial, it does not constitute newly 

discovered evidence sufficient to enlarge the one-year period. To qualify as a claim based on 

newly discovered evidence, the claim must be presented within one year from “the date on which 

                                                            

1

February 9, 2008, fell on a Saturday. 
7 

the factual predicate of the claim or claims presented could have been discovered through the 

exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). The Seventh Circuit has made clear that 

the time runs from the date when the evidence could have been discovered through diligent 

inquiry, not when it was actually discovered or when its significance was realized. Owens v. 

Boyd, 235 F.3d 356, 359 (7th Cir. 2001). Johnson-El has not provided a copy of the affidavit and 

it is not clear when the affidavit was signed. Thus, it is unclear when he discovered this 

information. Moreover, Johnson-El does not indicate when he “could have discovered” this 

information “through diligent inquiry.” Indeed, Johnson-El has wholly failed to explain or 

establish that he exercised due diligence in procuring this affidavit and that he filed his Petition 

for state post-conviction within one year from the time he could have discovered the information 

in the affidavit. Because of that, § 2244(d)(1)(D) is inapplicable to this case. 

 Johnson-El does not specifically argue that he is entitled to equitable tolling, but that is 

the doctrine of equity that is applicable to excusing an untimely habeas corpus petition. Because 

Johnson-El’s cause and prejudice arguments are sufficiently related, the Court will examine 

whether he is entitled to equitable tolling. “[A] petitioner is entitled to equitable tolling if he 

shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 

circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 

632 (2010) (quotation marks and citation omitted). “Equitable tolling is an extraordinary remedy 

and so is rarely granted.” Obriecht v. Foster, 727 F.3d 744, 747–48 (7th Cir. 2013) (quotation 

marks and citation omitted). “Petitioners bear the burden of proving that they qualify for 

equitable tolling.” Taylor v. Michael, 724 F.3d 806, 810 (7th Cir. 2013). Johnson-El filed his 

amended post-conviction Petition based on the new evidence allegedly discovered nearly five 

years after his conviction. (Pet. 4.) Again, because Johnson-El has failed to show that he has 
8 

been pursuing his rights diligently and that some extraordinary circumstance stood in his way, 

equitable tolling is not available. See id. at 811. 

 Johnson-El also seems to argue that failure to consider the merits of his claims would 

result in a fundamental miscarriage of justice. This, too, is an equitable doctrine which can 

excuse procedural default. Weddington v. Zatecky, 721 F.3d 456, 465 (7th Cir. 2013). In that 

context, the petitioner must prove that “a constitutional violation has resulted in the conviction of 

one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Therefore 

these arguments will be analyzed as actual innocence claims which could excuse the filing of an 

untimely petition. McQuiggin v. Perkins, 133 S. Ct. 1924, 1931–33 (2013). This, however, is a 

very difficult standard to meet. Schlup, 513 U.S. at 324. 

To invoke the miscarriage of justice exception to AEDPA’s statute of limitations, 

we repeat, a 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. Unexplained 

delay in presenting new evidence bears on the determination whether the 

petitioner has made the requisite showing. 

McQuiggin, 133 S. Ct. at 1935 (quotation marks and citation omitted). A petitioner who asserts 

actual innocence “must demonstrate innocence; the burden is his, not the state’s . . . .” Buie v. 

McAdory, 341 F.3d 623, 626–27 (7th Cir. 2003) (emphasis in original). Furthermore, actual 

innocence means “factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 

U.S. 614, 615 (1998). To support a claim of actual innocence, the petitioner must come forward 

with “new reliable evidence—whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence—that was not presented at trial,” and must 

show that “in light of new evidence, it is more likely than not that no reasonable juror would 

have found petitioner guilty beyond a reasonable doubt.” House v. Bell, 547 U.S. 518, 537 
9 

(2006). Because of the difficulty of meeting this standard, such claims are “rarely successful.” 

Schlup, 513 U.S. at 324. 

 Here, the only new evidence that Johnson-El argues was not presented at trial is the 

affidavit from the victim’s cousin stating that the victim told him she was not raped by JohnsonEl. Notably, the affiant was not present on the night of the rape, and the affidavit offers only 

inadmissible hearsay evidence, in the form of a third-party statement (purportedly made by the 

victim) presented for the truth of the matter asserted. This evidence does not come close to 

meeting the standard. Therefore, Johnson-El has not demonstrated actual innocence. 

 Accordingly, the one-year period of limitation began on February 9, 2007, and expired a 

year later on February 11, 2008. Johnson-El filed a post-conviction relief Petition in 2009, but by 

then the habeas corpus deadline had already expired. Though he filed an amended Petition in 

2011, that Petition did not “restart” the federal clock, nor did it “open a new window for federal 

collateral review.” De Jesus v. Acevedo, 567 F.3d 941, 942 (7th Cir. 2009). Because the Petition 

is untimely, it must be denied. 

 Nevertheless, timeliness aside, the claims raised in Johnson-El’s Petition still fail. 

B. Johnson-El’s First Claim Is Non-Cognizable.

 Johnson-El’s first claim is that the post-conviction court improperly dismissed his 

Petition under Indiana Trial Rule 41(E). However, this claim is not cognizable on federal habeas 

review. Claims challenging state collateral post-conviction proceedings “cannot be brought 

under the federal habeas corpus provision, 28 U.S.C. § 2254,” because “the essence of habeas 

corpus is an attack by a person in custody upon the legality of that custody, and . . . the 

traditional function of the writ is to secure release from illegal custody.” Cress v. Palmer, 484 
10 

F.3d 844, 853 (6th Cir. 2007) (quoting Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). To the 

extent he is claiming an error in the application of Indiana Trial Rule 41(E), a state law, this does 

not provide a cognizable basis for granting federal habeas relief. Estelle v. McGuire, 502 U.S. 

62, 67–68 (1991) (federal habeas relief is only available for a violation of the U.S. Constitution 

or other federal laws). 

C. Johnson-El’s Second Claim Is Procedurally Defaulted.

 Johnson-El’s second claim is that there is newly discovered evidence that entitles him to 

a new trial. The Respondent argues that Johnson-El’s claim is procedurally defaulted. 

Before considering the merits of a claim, the Court must ensure that a petitioner 

exhausted all available remedies in the state courts. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 

390 F.3d 1019, 1025 (7th Cir. 2004). Interests of comity require that the state courts be given the 

first opportunity to address and correct violations of their prisoner’s federal rights. O’Sullivan v. 

Boerckel, 526 U.S. 838, 844–45 (1999). For that opportunity to be meaningful, the petitioner 

must fairly present his constitutional claim in one complete round of state review, including with 

the state court of last resort. Baldwin v. Reese, 541 U.S. 27, 30–31 (2004); Boerckel, 526 U.S. at 

845. The companion procedural default doctrine, also rooted in comity concerns, precludes a 

federal court from reaching the merits of a claim when: (1) the claim was presented to the state 

courts and was denied on the basis of an adequate and independent state law procedural ground; 

or (2) the claim was not presented to the state courts and it is clear those courts would now find 

the claim procedurally barred under state law. Coleman v. Thompson, 501 U.S. 722, 735 (1991). 

 Because Johnson-El’s state post-conviction Petition was dismissed due to failure to 

adhere to the Indiana Trial Rules, his newly discovered evidence claim is barred by procedural 
11 

default upon an independent and adequate state law ground. On appeal from the denial of postconviction relief, the Indiana Court of Appeals stated: 

Next, Johnson-El challenges the post-conviction court’s dismissal of his petition 

for post-conviction relief based on Trial Rule 41(E). He argues that the postconviction court did not issue an order to show cause prior to dismissing his 

petition as required by Trial Rule 41(E). He also contends that the post-conviction 

court abused its discretion in dismissing his petition because it raised material 

issues of fact. 

Trial Rule 41(E) provides that: 

Whenever there has been a failure to comply with these rules or 

when no action has been taken in a civil case for a period of sixty 

(60) days, the court, on motion of a party or on its own motion 

shall order a hearing for the purpose of dismissing such case. The 

court shall enter an order of dismissal at plaintiff’s costs if the 

plaintiff shall not show cause at or before such hearing. 

In Holliness v. State, 496 N.E.2d 1281, 1282 (Ind. 1986), our Supreme Court held 

that “dismissal after the Public Defender has made an appearance on behalf of the 

pro se petitioner and before an amended petition has been filed, can be made only 

after an order to show cause why the petition should be dismissed pursuant to 

T.R. 41(E).” This Court has explained that this requirement derives from the State 

Public Defender’s Office’s responsibilities to “interview the indigent client, to 

read his appellate record, to interview his trial and appellate attorneys, and to 

investigate the legal and factual matters necessary to a decision whether to amend 

the indigent’s pro se petition for post-conviction relief.” Stoner v. State, 506 

N.E.2d 837, 838 (Ind. Ct. App. 1987). Indiana courts want public defenders to 

have “ample time to investigate post-conviction relief claims so that they may 

amend petitions, if necessary, to include all possible theories in a single petition, 

thereby rendering future petitions unnecessary.” Joseph v. State, 603 N.E.2d 873, 

876 (Ind. Ct. App. 1992). 

Here, however, we do not have such concerns because Johnson-El was not 

represented by a public defender that needed time to review his case and amend 

his pro se petition at the time when the post-conviction court dismissed his 

petition. The public defender representing Johnson-El filed a Notice of Present 

Inability to Investigate and Amend Petitioner’s Pro Se Petition for Post–

Conviction Relief. Then, after investigating Johnson-El’s case, the public 

defender withdrew his appearance on October 27, 2011. A year and a half passed 

without Johnson-El prosecuting his petition before the post-conviction court 

scheduled a hearing for dismissal on January 16, 2013. The Chronological Case 

Summary (“CCS”) does not clarify whether Johnson-El received notice that the 

court had scheduled a hearing on January 16. However, on February 25, 2013, the 
12 

post-conviction court continued the hearing, and the CCS indicates that he 

received notice at this point. Subsequently, Johnson-El did not make any attempts 

to show cause before the post-conviction court held the hearing on March 19, 

2013, even though he had received notice of the hearing. 

Significantly, we note that the plain language of Trial Rule 41(E) does not place 

the burden on the post-conviction court to enter an order to show cause. Instead, 

the language provides that the court must order a hearing, and the plaintiff must 

show cause. Our precedent has established that a post-conviction court must issue 

an order to show cause where a public defender has made an appearance on behalf 

of a pro se petitioner and has not had an opportunity to file an amended petition. 

However, those circumstances are not on point here, and we will not extend that 

precedent to the circumstances before us absent explicit support for that 

conclusion in the language of Trial Rule 41(E). See Holliness, 496 N.E.2d at 

1282. 

Moreover, we note that a year and a half lapsed between the public defender’s 

withdrawal from Johnson-El’s case and the post-conviction court’s notice that it 

had scheduled the hearing to dismiss. During this time, Johnson-El did not act on 

his petition or indicate in any respect that he intended to amend his petition. 

Based on these factors, we conclude that the post-conviction court did not abuse 

its discretion in dismissing Johnson-El’s petition. In addition, because we 

conclude that the post-conviction court properly dismissed the petition, we need 

not address Johnson-El’s second argument regarding the merits of his petition. 

Johnson-El v. State, No. 09A02-1302-PC-720, slip op. at *6-8 (Ind. Ct. App. Aug. 29, 2014). 

 The dismissal of Johnson-El’s claim on state procedural grounds serves as an 

independent and adequate state law ground barring this Court’s review here. Coleman, 501 U.S. 

at 729–32. 

 In addition, it must be noted that on appellate review Johnson-El merely challenged the 

Rule 41(E) dismissal of his post-conviction Petition. He never independently raised his newly 

discovered evidence claim on appeal as he does now on federal review. Because he never raised 

the newly discovered evidence claim independently before the state courts, he failed to fully and 
13 

fairly present the claim to Indiana’s highest court. This is a second reason that his claim is 

procedurally defaulted.2 Chambers, 264 F.3d at 737–38. 

D. The Newly Discovered Evidence Claim Is Without Merit

 As a final matter, it must be pointed out that Johnson-El’s freestanding claim of newly 

discovered evidence—even if timely presented and not procedurally defaulted—would not 

entitle him to a new trial. Johnson-El’s Petition is governed by the provisions of the AEDPA. See 

Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA allows a district court to issue a writ of 

habeas corpus on behalf of a person in custody pursuant to a state court judgment “only on the 

ground that he is in custody in violation of the Constitution or laws or treaties of the United 

States.” 28 U.S.C. § 2254(a). The Court may grant an application for habeas relief only if it 

meets the stringent requirements of 28 U.S.C. § 2254(d), set forth as follows: 

An application for a writ of habeas corpus on behalf of a person in custody pursuant to 

the judgment of a State court shall not be granted with respect to any claim that was 

adjudicated on the merits in State court proceedings unless the adjudication of the 

claim— 

 (1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the Supreme 

Court of the United States; or 

 (2) resulted in a decision that was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding. 

                                                            

2 A habeas petitioner can overcome a procedural default by showing both cause for failing to abide 

by state procedural rules and a resulting prejudice from that failure. Wainwright v. Sykes, 433 U.S. 72, 90 

(1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008). Johnson-El did not file a traverse or assert 

any basis for this Court to excuse his procedural default. 

A habeas petitioner may also overcome a procedural default by establishing that the court’s 

refusal to consider a defaulted claim on the merits would result in a fundamental miscarriage of justice. 

Bell, 547 U.S. at 536 (2006); Coleman, 501 U.S. at 750. Under this narrow exception, the petitioner must 

establish that “a constitutional violation has resulted in the conviction of one who is actually innocent of 

the crime.” Schlup, 513 U.S. at 324. A petitioner who asserts actual innocence “must demonstrate

innocence; the burden is his, not the state’s . . . .” Buie, 341 F.3d at 626–27. Johnson-El does not 

demonstrate that any such fundamental miscarriage of justice would occur. 
14 

The Supreme Court has stated that “the existence merely of newly discovered evidence 

relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” 

Herrera v. Collins, 506 U.S. 390, 400 (1993) (quotation and citation omitted). Thus, it is not 

enough for Johnson-El to show that the trial court committed error in denying his motion for new 

trial. To state a ground for federal habeas relief, claims based on newly discovered evidence 

“must relate to a constitutional violation independent of any claim of innocence.” Johnson v. 

Bett, 349 F.3d 1030, 1038 (7th Cir. 2003) (citing Herrera, 506 U.S. at 400). To illustrate, the 

Seventh Circuit has said that “where the newly discovered evidence consists of witness 

recantations of trial testimony or confessions by others of the crime, most courts decline to 

consider it in the absence of any showing that the prosecution knowingly proffered false 

testimony or failed to disclose exculpatory evidence, or that petitioner’s counsel was 

ineffective.” Id. (citation and quotations omitted). Here, Johnson-El does not assert any 

underlying constitutional violation. He simply contends that if the new evidence was presented, 

the case may have been decided differently. That is not sufficient to warrant relief here. 

CERTIFICATE OF APPEALABILITY

 Finally, pursuant to Rule 11 of the Rules Governing Section 2254 Cases, the Court must 

consider whether to grant a certificate of appealability. When the Court dismisses a petition on 

procedural grounds, the determination of whether a certificate of appealability should issue has 

two components. Slack v. McDaniel, 529 U.S. 473, 484–85 (2000). First, the petitioner must 

show that reasonable jurists would find it debatable whether the Court was correct in its 

procedural ruling. Id. at 484. If the petitioner meets that requirement, then he must show that 

reasonable jurists would find it debatable whether the petition states a valid claim for the denial 
15 

of a constitutional right. Id. As previously explained, this Petition is untimely and the claims are 

without merit. Johnson-El has not presented a colorable argument for how it could be either 

considered timely or how the untimeliness could be equitably excused. Moreover, it is not 

debatable that either claim in his Petition states a valid claim for the denial of a constitutional 

right. Because there is no basis for finding that reasonable jurists would debate the correctness of 

these rulings or find a reason to encourage him to proceed further, a certificate of appealability 

must be denied. 

IV. CONCLUSION

 For these reasons, the Court DENIES habeas corpus relief and DENIES a certificate of 

appealability. 

SO ORDERED on March 15, 2017. 

 s/ Theresa Springmann 

 CHIEF JUDGE THERESA L. SPRINGMANN 

 UNITED STATES DISTRICT COURT