could be tolled for purposes of AEDPA, McLaughlin’s petition would still be barred because he
allowed even more time to pass before he filed his habeas petition. The post-conviction
proceedings were pending until December 5, 2001, when the Illinois Supreme Court denied his
petition for leave to appeal. McLaughlin then allowed almost another year to pass before he filed
the instant writ of habeas corpus on December 2, 2002. This nearly twelve month span, added to
the time between the final judgment and the initial properly filed request for post-conviction
relief, place McLaughlin well over the one year statute. Therefore, because the petition for
habeas corpus was filed more than twelve months after McLaughlin’s conviction became final,
counts 2 through 13 of the petition are dismissed pursuant to 28 U.S.C. § 2244(d)(1).

McLaughlin’s claim of actual innocence in Court 1, however, requires a different
analysis. While Claim 1 also runs afoul of AEDPA’s one year statute of limitations,
McLaughlin’s untimeliness is excused because of the fundamental miscarriage of justice
exception. The fundamental miscarriage of justice exception provides federal habeas courts an
opportunity to review procedurally defaulted claims, see Herrera v. Collins, 506 U.S. 390, 400,
113 S.Ct. 853 (1993), and can be demonstrated by a showing that “a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Murray v. Carrier, 477
USS. 478, 496, 106 S.Ct. 2639 (1986). The Supreme Court has clarified this standard by
stressing that a petitioner has the duty to prove that, absent a constitutional violation, “it is more
likely than not that no reasonable juror would have convicted him.” Schlup v. Delo, 513 U.S.
298, 327, 115 S.Ct. 851 (1995) (quoting Carrier, 477 U.S. at 496).

While the Seventh Circuit has not directly addressed the issue, other courts have held that

the fundamental miscarriage of justice doctrine also acts as an exception to AEDPA’s statute of



CONCLUSION
For the foregoing reasons, the respondent’s motion to dismiss McLaughlin’s petition for a
writ of habeas corpus is granted in part and denied in part. Counts 2 through 13 are hereby
dismissed, However, Count 1 survives as a result of the fundamental miscarriage of justice
exception. An attorney will be appointed to assist the petitioner with all further aspects of this
case.
It is so ordered.

b), (oa

< Wayne R. Andersen
United States District Judge

Dated: 4 43


been discovered through the exercise due diligence.

28 U.S.C, § 2244(d)(1). The AEDPA also contains a tolling provision that states that “the time
during which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period of
limitation under the subsection.” 28. U.S.C. § 2244(d)(2).

DISCUSSION

Respondent argues, and we partially agree, that McLaughlin’s petition for a writ of
habeas corpus should be dismissed because McLaughlin failed to file before the statute of
limitations expired. AEDPA requires a state prisoner, seeking habeas corpus relief, to file a
petition within one year after the conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). In
Illinois, the judgment of a court of review is final on the day in which the decision is entered.

See Wilson vy. Battles, 302 F.3d 745, 747 (7th Cir. 2002) (citing PSL Realty Co. v. Granite Inv.
Co., 86 Ill.2d 291, 304-05, 427 N.E.2d 563 (1981)). Since McLaughlin did not appeal his case to
the Illinois Supreme Court, the judgment became final and the statute of limitations began to run
on April 25, 1997, when the Illinois Appellate Court affirmed his conviction and sentence. He,
however, did not file his petition for a writ of habeas corpus in this Court until December 2,
2002, well after the one year statute of limitations period had expired on April 25, 1998.

As stated earlier, AEDPA allows the statute of limitations to be tolled for the time during
which the petitioner was litigating properly filed post-conviction petitions. 28 U.S.C. §
2244(d)(2). However, McLaughlin did not file his first post-conviction petition in the state court
until October 8, 1998, almost eighteen months after his conviction became final and the one year

statute of limitations began to run. Moreover, even assuming that some of this eighteen months


limitations. For example, the Eleventh Circuit was confronted with this issue in Wyzkowski v.
Department of Corrections, 226 F.3d 1213 (2000). There, the court concluded that, even though
the statute of limitations had expired, a fundamental miscarriage of justice claim raised possible
constitutional ramifications due to the inherent injustice that results from the conviction of an
innocent person. /d at 1217-18. Thus, the court remanded the matter to the district court to
determine whether the petitioner made an adequate showing of innocence. /d.; see also Lucidore
vy. New York State Div. Of Parole, 209 F.3d 107, 112 (2d Cir. 2000); Miller v. Marr, 141 F.3d
976, 978 (10th Cir. 1998); In re Dorsainvil, 119 F.3d 245, 248 (3d Cir. 1997). The fundamental
miscarriage of justice exception has been addressed in this Court as well. See Castro v. Schomig,
2001 WL 864266, at *3 (N.D. Ill. July 31, 2001); Thomas v. Wellborn, 2001 WL 1831548, at *3
(N.D. Ill. Dec. 13, 2000). In Thomas, the court assumed that such an exception existed, but
concluded that the petitioner did not sufficiently demonstrate actual innocence.

Often courts decline to trigger the fundamental miscarriage of justice exception because a
petitioner does not provide factual support for the allegation that he is actually innocent. See,
eg., Caffey v. Briley, 2003 WL 21149020 (N.D. Ill. May 16, 2003); Castro, 2001 WL 864266 at
*3. However, this case is different because McLaughlin has credibly alleged that he is actually
innocent of the crime for which he was convicted. To demonstrate his innocence, McLaughlin
primarily relies upon the affidavit of Kahlil Rowe (“Rowe”). At trial, Rowe, the key witness for
the prosecution, testified that he was an eyewitness to the crime and he identified McLaughlin as
the shooter. In an affidavit dated February 8, 1999, however, Rowe recanted his testimony and
stated that he did not see McLaughlin commit the murder. McLaughlin also cites the affidavits

of Chimere Jackson and Leonard Phillips. Both state that, on the night of the shooting, they saw


Minute Order Form (0637)

United States District Court, Northern District of Iinois

vee Magurate Judge Wayne R. Andersen “Than assigned Judge

CASE NUMBER 2C 8715 DATE 9/4/2003

CASE U.S.A. ex rel McLaughlin vs. Edwin Bowen

TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.
DOCKET ENTRY:
qd) Oo Filed motion of [ use listing in “Motion” box above.]
(2) Q Brief in support of motion due
(3) Oo Answer brief to motion due__. Reply to answer briefdue____.
(4) oO Ruling/Hearing on setfor___—_—at
(5) im} Status hearing[held/continued to] [set for/re-set for] on. setfor at.
(6) a Pretrial conference[held/continued to] [set for/re-set for]on__—setfor_— sat.
(7) oO Trial{set for/re-set for]on at
(8) o [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1 COFRCP41(a)(1) O FRCP41(a)(2).

ao) ff {Other docket entry] Enter MEMORANDUM, OPINION AND ORDER: For the foregoing

reasons, the respondent’s motion to dismiss McLaughlin’s petition for a writ of habeas corpus
[9-1] is granted in part and denied in part. Counts 2 through 13 are hereby dismissed. However, Count
1 survives as a result of the fundamental miscarriage of justice exception. An attorney will be appointed
to assist the petitioner with all further aspects of this case.

al)

[For further detail see order attached to the original minute order.]

No notices required, advised in open court.

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number of notices

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Notified counsel by telephone. dep. 1

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McLaughlin standing across the street from the origin of the sound of the gunshot.

Accordingly, McLaughlin argues that a fundamental miscarriage of justice will occur if
his writ of habeas corpus is denied because he is actually innocent of the crime. The only
eyewitness that testified against him at trial has admitted to perjury, and two others have swom,
under oath, to seeing him near the shooting, but on the other side of the street from the sound of
the gunshot. We agree with McLaughlin’s reasoning and believe that he adequately alleges that
it is more likely than not that no reasonable juror would have convicted him. He satisfies the
prima facie requirements of the fundamental miscarriage of justice exception and, thus, Count 1
will not be dismissed.

To further support his claim of actual innocence, the petitioner is granted leave to file a
supplemental brief of no more than fifteen pages by November 7, 2003. The brief should include
references to trial transcripts, affidavits and other concrete evidence that will assist this Court to
evaluate the merits of the actual innocence claim. The respondent may respond to the filing by
December 19, 2003 and the petitioner may file a reply brief by January 30, 2004. To facilitate
petitioner’s investigation and reply to respondent’s brief, the Court shall appoint an attorney to

represent the petitioner.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA ex. )
rel. PATRICK MCLAUGHLIN, y
)
Petitioner, )

) No. 02 C 8715
v. )

) Wayne R. Andersen

EDWIN BOWEN, Warden, ) District Judge
)
Respondent. )

MEMORANDUM, OPINION AND ORDER

This case is before the Court on the motion of respondent Edwin Bowen to dismiss the “
petition for a writ of habeas corpus filed by petitioner Patrick McLaughlin. For the following
reasons, the motion is granted in part and denied in part.

BACKGROUND

Petitioner Patrick McLaughlin (“McLaughlin”) is currently incarcerated at the Centralia
Correctional Center in East Moline, Illinois. In 1996, following a jury trial in the Circuit Court
of Cook County, McLaughlin was convicted of first-degree murder and subsequently sentenced
to a 40-year term of imprisonment. McLaughlin appealed his conviction and sentence to the
Illinois Appellate Court, which affirmed the ruling on April 25, 1997. People v. McLaughlin,
No. 1-96-2250, Ill. App. Ct. (1st Dist. Apr. 25, 1997). An appeal was not taken to the Illinois
Supreme Court.

On October 8, 1998, McLaughlin filed a pro se petition for post-conviction relief in the
Circuit Court of Cook County, claiming, among other things, actual innocence and ineffective

assistance of counsel. The petition was denied in the state court due to untimeliness. He then



filed a pro se petition for post-judgment relief pursuant to 735 ILCS § 5/2-1401. It was also
denied based on untimeliness. McLaughlin appealed both decisions and, on August 3, 2001, the
Illinois Appellate Court affirmed the judgments of the Circuit Court. People v. McLaughlin,
Nos. 1-99-3612, 1-00-0117, consolidated, Il. App. Ct. (1st Dist. Aug. 3, 2001). Responding to
the outcome, McLaughlin filed a petition for leave to appeal in the Illinois Supreme Court. On
December 5, 2001, the petition was denied.

Almost a year later, on December 2, 2002, McLaughlin filed a writ of habeas corpus in
this Court raising thirteen claims. Count 1 asserts a claim of actual innocence; counts 2 through
4 allege ineffective assistance of trial counsel; counts 5 and 6 assert ineffective assistance of
appellate counsel; and counts 7 through 13 allege various constitutional violations. On January
31, 2003, respondent countered by filing this motion to dismiss.

STANDARD OF REVIEW

In his motion to dismiss, respondent argues that McLaughlin’s petition for a writ of
habeas corpus is time-barred by the one year statute of limitations found in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1). The AEDPA states
that the statute of limitations period begins at the occurrence of one of four events:

A) the date on which the judgment becomes final by conclusion of direct review or the
expiration of the time for seeking 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 and made retroactively applicable to cases on collateral review; or

D) the date in which the factual predicate of the claim or claims presented could have