2244(d)(1)(D). McLaughlin’s actual innocence claim is based on the affidavit of Kahlil
Rowe dated February 6, 1998. If we use this as the date the final predicate of the claim
was discovered to begin the one year period for the statute of limitations, McLaughlin
would have had until February 7, 1999 before the period expired. McLaughlin, however,
did not file his initial habeas petition until December 2, 2002.

McLaughlin makes no argument to support the position that the factual predicate
could not have been discovered through due diligence in order to meet the statute of
limitations. Additionally, he offers this Court no material or evidence that would show
some action or inaction on the part of respondent to prevent him from discovering
relevant facts. Without allegations to suggest the claim could not have been discovered
through due diligence, and with affidavits suggesting McLaughlin had the relevant facts
within the limitations period, this Court must assume that the petition could have been
filed in a timely basis. Therefore, because the petition was filed more than twelve
months after McLaughlin’s conviction became final and Rowe’s affidavit was sworn out,
the petition is dismissed pursuant to 28 U.S.C, § 2241(d)(1).

B. 28 U.S.C, § 2244(d)(2)

AEDPA also contains a tolling provision that states “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). McLaughlin, however, 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
had began to run. Even if we assume that some of this eighteen month period could be

5


This Court need not evaluate the merits of McLaughlin’s actual innocence claim
because he failed to make the requisite showing in his Amended Complaint. McLaughlin
failed to show that a constitutional violation has resulted in the conviction of someone
who is actually innocent to qualify as a fundamental miscarriage of justice exception.
Additionally, McLaughlin presents no claim that equitable tolling applies and alleges no
constitutional violation to qualify for habeas relief. As such, McLaughlin has failed to
meet the requirements we set forth for his amended petition.

McLaughlin may wish to petition the Governor for a pardon, a petition subject to
no time limitations.

CONCLUSION
For the foregoing reasons, petitioner’s writ of habeas corpus is denied.
It is so ordered.

be. CA

7 ~ Wayne R. Andersen
United States District Court

put Hhay Af, Adbb

10


reasonable juror would have convicted him in the light of the new evidence.” Schlup v.
Delo, 513 U.S. 298, 327 (1995).

The question of whether applying the limitations period contained in § 2244(d) to
a petitioner who is actually innocent would result in a fundamental miscarriage of justice
has garnered a significant amount of judicial attention, with the answer varying between
the Circuits. Flanders v. Graves, 299 F.3d 974 (8" Cir. 2002) (deciding that actual
innocence is relevant to a claim that statute of limitations should be tolled, but the
petitioner must still make a showing of reasonable diligence in discovering the facts
underlying his claim); Souter v. Jones, 395 F.3d 577 (6" Cir. 2005) (finding that a
defendant who can demonstrate actual innocence should be permitted to argue the merits
of the underlying claims). This argument is mostly foreclosed for McLaughlin as the
Seventh Circuit recently decided that “(p]risoner’s claiming to be innocent, like those
contending that other events spoil the conviction, must meet the statutory requirement of
timely action.” Escamilla v. Jungwirth, 426 F.3d 868 (7" Cir. 2005).

We invited petitioner to respond to this recent case law. However, while
petitioner has no effective rejoinder to this binding precedent, that alone does not doom
his claim. We can still look to the doctrine of equitable tolling, which combined with an
actual innocence claim can justify federal review. A claim of actual innocence can
excuse procedural default under AEDPA, but that claim “must be presented in
conjunction with a claim that the habeas statute of limitations should be equitably tolled.”
Balsewicz y. Kingston, 425 F.3d 1029, 1032 (7 Cir, 2005). Such tolling is appropriate
when extraordinary circumstances outside of the petitioner's control prevent timely filing

of the petition. Gildon, 384 F.3d at 887.


tolled for purposes of AEDPA, McLaughlin’s petition is still barred because he allowed
even more time to pass before he filed his federal 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 his writ of habeas corpus on December 2, 2002. This nearly twelve
month period of time, added to the time between the final judgment of April 12, 1997 and
the initial properly filed request for post-conviction relief on October 8, 1998 place
McLaughlin well over the one year statute limitation of AEDPA. Likewise, if we add
the nearly eight months between the date of the February 6, 1998 affidavit giving rise to
McLaughlin’s innocence claims and the filing of his state court post-conviction petition
on October 8,1998, with the nearly twelve months he waited to file the instant habeas
petition after the state court proceedings were finalized, he is well beyond the one-year
limitations period set forth in 28 U.S.C. § 2244(d)(2).

IL. Actual Innocence

In our earlier opinion we recognized that 28 U.S.C. § 2244(d) of AEDPA does not
reference an exception to the limitations period predicated on a petitioner’s actual
innocence for an initial habeas petition, as it provides in § 2244(b) for successive habeas
petitions. We determined, however, that an untimely petition could qualify for federal
review under the fundamental miscarriage of justice exception. See Herrera, 500 U.S. at
400. We stated the exception could apply if actual innocence was demonstrated by a
showing that "a constitutional violation has probably resulted in the conviction of one
who is actually innocent." Murray, 477 U.S. at 496. The standard used to determine
actual innocence is that the “petitioner must show that it is more likely than not that no

6


fact.” 506 U.S. at 400. The fundamental miscarriage of justice exception is available
only when the prisoner supplements his constitutional claim with a colorable showing of
actual innocence. See id. at 404. The Seventh Circuit explicitly stated that in this circuit
actual innocence is not a freestanding claim for habeas relief. Arujo v. Chandler, 2005
WL 3454099 (7" Cir.). Moreover, actual innocence is unrelated to the statutory
timeliness rules. Escamilla v. Jungwirth 426 F.3d 868, 871 (7 Cir, 2005). Even
petitioners claiming to be innocent must meet the timeliness rules established by the
statute. /d. at 872. In Balsewicz v. Kingston, the Seventh Circuit noted that “[nJeither
the Supreme Court nor this Court has recognized a freestanding actual innocence
exception to § 2244(d) that would allow a petitioner to overcome a failure to file a
petition in a timely manner.” 425 F.3d 1029, 1032 (7 Cir. 2005). Therefore, for
McLaughlin to meet the requirements of AEDPA’s statute of limitations, or equitably
toll them, he would have to put forth a reason for his failure to file the instant action for
years despite the existence of the affidavits upon which he now relies. He has failed to
do so despite this Court’s invitation in its earlier order and its willingness to entertain
additional briefs in light of recent binding decisions from the Seventh Circuit.
McLaughlin presents the affidavit of Kahlil Rowe, dated February 6, 1998. As
previously discussed, he did not file his habeas petition until December 2, 2002 much
longer than a year after the date of the affidavit. In his amended petition, McLaughlin
makes no argument that circumstances prevented him from being able to timely file the
petition. In fact, the dates on the affidavits McLaughlin submitted show that he could
have timely filed his petition. We therefore cannot consider his actual innocence claims

under the tolling exception set forth in Gildon.

9


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

EASTERN DIVISION
)
)
UNITED STATES OF AMERICA, _)
ex rel. PATRICK MCLAUGHLIN )
Petitioner, ) No. 2 CV 8715
)
v. ) Wayne R. Andersen
) District Judge
)
EDWIN BOWEN, Warden, )
Respondent

MEMORANDUM, OPINION AND ORDER

This matter is before the Court on the amended petition for a writ of habeas
corpus filed by Patrick McLaughlin. McLaughlin’s amended petition relies primarily
upon the affidavit of Kahil Rowe, a witness for the state who swore to a statement that is
at odds with his testimony at trial. For the following reasons, the amended petition is
denied.

BACKGROUND

On February 15, 1996 following a jury trial in the Circuit Court of Cook County,
Patrick McLaughlin was convicted of the first-degree murder of Jimmie Holmes and
subsequently sentenced to a 40-year term of imprisonment. During the trial Kahlil Rowe
provided testimony that he saw the gun in McLaughlin's hand and identified him as the
shooter during the June 6, 1995 altercation. (Amended Petition, Exhibit A p.D56).
During Rowe’s cross-examination, however, he admitted to telling both his friends and
the police that he did not know who had the gun. (Amended Petition, Exhibit A p.D56 &

D90). There was also stipulated testimony during the trial from Damica Hardin that

CT


In his amended petition, McLaughlin now argues he qualifies for federal review
under the fundamental miscarriage of justice exception. He claims there is insufficient
evidence for a reasonable jury to sustain a conviction against him. In support of his
claim, McLaughlin has presented three affidavits from Kahlil Rowe, Chimere Jackson
and Leonard Phillips. (Exhibits H and I, Amended Petition). After initially being
arrested for obstruction of justice for not appearing to testify, Rowe, the key witness for
the prosecution, testified that he was an eyewitness to the crime and he identified
McLaughlin as the shooter. (Amended Petition, Exhibit A p.D56). In his affidavit dated
February 6, 1998, however, Rowe alters his testimony. (Amended Petition, Exhibit H
p.4). The two other affidavits come from those who claim they saw McLaughlin standing
across the street from the sound of the gunshot. McLaughlin argues that since no witness
remains who presented evidence that petitioner actually shot the victim, no reasonable
jury would have convicted him in light of this new evidence.

McLaughlin, however, has not established that the fundamental miscarriage of
justice exception is applicable to avoid procedural default. In our earlier opinion, this
Court clearly stated that McLaughlin needed to demonstrate a “constitutional violation”
resulted in his conviction and that he was actually innocent. McLaughlin makes no
allegation that a constitutional violation was responsible for his conviction. He only
asserts that he is actually innocent, primarily through Rowe’s affidavit of February 6,
1998. Moreover, he fails to set forth any basis to toll the limitations period required by
AEDPA and Seventh Circuit case law.

In Herrera, the Supreme Court stressed that “federal habeas courts sit to ensure
that individuals are not imprisoned in violation of the Constitution-not to correct errors of

8


was based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding.
DISCUSSION

McLaughlin raises two issues; he argues his claims are not defaulted under
AEDPA’s statute of limitations and that, if they are, his actual innocence claims should
nonetheless go forward. We will address those two claims in turn below.
I. Statute of Limitations

A. 28 U.S.C. § 2244(d)(1)

AEDPA requires a state prisoner, seeking habeas corpus relief, to file a petition
within one year after the conviction becomes final, or one year after the time the factual
predicate of the claims raised could have been discovered through due diligence. 28
U.S.C. § 2244(d)(1)(A) (one year after conviction becomes final); 28 U.S.C. §
2244(d)(1)(D) (one year after factual predicate could have been discovered). In Illinois,
the judgment of a court of review is final on the day the decision is entered. See Wilson
y, Battles, 302 F.3d 745, 747 (7" 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. McLaughlin filed his first petition for a writ of habeas corpus on
December 2, 2002, well after the one year statute of limitations set forth in 28 U.S.C. §
2244(d)(1)(A) had expired on April 25, 1998.

We look next to the date upon which “the final predicate of the claim or claims
presented could have been discovered through due diligence.” 28 U.S.C. §

4


Rowe. Respondent countered by filing an answer to the amended petition claiming that
McLaughlin is not entitled to relief.
PROCEDURAL HISTORY

McLaughlin initially 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. (1 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 on
September 9, 1999 in the state court because it was untimely. He then filed a pro se
petition for post-judgment relief pursuant to 735 ILCS § 5/2-1401 on October 20, 1999.
It was also denied on December 2, 1999 as untimely. McLaughlin appealed both
decisions and, on August 3, 2000, the Illinois Appellate Court affirmed the judgments of
the Circuit Court. People v. McLaughlin, Nos. 1-99-3612, 1-00-0117, consolidated, Ill.
App. Ct. (1* 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. He then filed his initial habeas petition in federal court, almost a
year later on December 2, 2002.

STANDARD OF REVIEW

AEDPA, 28 U.S.C. § 2254(d) provides that habeas relief may be granted only if
the adjudication of the claim by the state court: (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

3


McLaughlin was across the street when the fight began and that she did not see him with
a gun at any time during the incident. (Amended Petition, Exhibit A p.D221- D222). In
an affidavit dated February 6, 1998 Kahlil Rowe asserted that he is not sure if the man he
saw with the gun was McLaughlin. (Amended Petition, Exhibit H p.4).

On December 2, 2002, McLaughlin filed a writ of habeas corpus in this Court
raising thirteen claims. On September 4, 2003 we dismissed twelve of the thirteen claims
as untimely pursuant to The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d). We, however, did not dismiss the actual innocence
claim. This Court noted that a fundamental miscarriage of justice exception provides
federal courts an opportunity to review procedurally defaulted claims, see Herrera v.
Collins, 506 U.S. 390, 400 (1993). The exception can be demonstrated by showing that
“a constitutional violation has probably resulted in the conviction of one who is actually
innocent.” Murray v. Carrier, 477 U.S. 478, 496 (1986). Courts have consistently held,
however, that actual innocence “instead of comprising a freestanding exception to the
AEDPA, must be presented in conjunction with a claim that the habeas statute of
limitations should be equitably tolled.” Balsewicz v. Kingston, 425 F.3d 1029, 1033 7"
Cir. 2005), citing Gildon v. Bowen, 384 F.3d 883, 887 (7" Cir. 2004). We granted leave
for petitioner to file a supplemental brief with concrete evidence to assist the Court in
determining if the fundamental justice exception applied. We also appointed a lawyer to
assist McLaughlin in preparing the additional information.

In response to our request, McLaughlin filed an amended petition for writ of
habeas corpus claiming actual innocence. In support of this claim, McLaughlin filed
final trial transcripts and affidavits from Chimere Jackson, Leonard Phillips and Kahlil

2