1 Araujo’s current custodian is Nedra Chandler, the warden of the

Dixon Correctional Center. We therefore substitute Chandler as

the respondent-appellee in this case. 28 U.S.C. § 2254, Rule 2(a);

Fed. R. App. P. 43; see also Briggs v. Chambers, 425 F.3d 1048

(7th Cir. 2005).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-1174

ROLANDO ARAUJO, JR.,

Petitioner-Appellant,

v.

NEDRA CHANDLER, Warden,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 374—Blanche M. Manning, Judge.

____________

ARGUED NOVEMBER 8, 2005—DECIDED DECEMBER 16, 2005

____________

Before BAUER, MANION, and EVANS, Circuit Judges.

EVANS, Circuit Judge. In 1991, a jury sitting in the

Circuit Court of Cook County convicted Rolando Araujo

of the 1988 murder of Mario Rodriguez. On January 20,

2004, Araujo petitioned for the first time for the issuance of

a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.1

Given the dates we just set out, it is not surprising that the
2 No. 05-1174

primary issue before us in this appeal from the district court’s denial of his petition is whether the one-year

statute of limitations in the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d),

bars relief.

The facts established at trial, as recited by the Illinois

Appellate Court on direct appeal, show that the shooting

happened as members of a street gang, the Bishops, and the

victim, Mario Rodriguez, were walking near Harris Park in

Chicago. Araujo, a member of the rival Ambrose street

gang, drove past them, stopped his car, jumped out, and

shot Rodriguez. At the same time, Robert Mendoza, another

Ambrose street gang member, was shooting a gun in the

direction of other Bishops. Both Mendoza and Araujo were

charged. Mendoza entered a plea of guilty to the first degree

murder of Rodriguez based on his role as a lookout. Araujo

went to trial and was convicted. In addition to his direct

appeal, Araujo has, over the years, filed two petitions for

postconviction relief in the Illinois courts. His claims have

been rejected each time.

AEDPA contains a one-year statute of limitations, set out

in 28 U.S.C. § 2244(d). But because Araujo’s conviction was

final prior to the effective date of the statute, that is, before

April 24, 1996, he is subject to the one-year grace period for

timely petitions for review in federal court. See Lindh v.

Murphy, 96 F.3d 856 (7th Cir. 1996), rev’d on other grounds,

521 U.S. 320 (1997). Had his petition been filed by April 24,

1997, it would have been timely. In addition, under

§ 2244(d)(2), the time during which his state postconviction

litigation was pending would have tolled the running of the

statute. However, these time periods are not sufficient to

bring him within the statute of limitations, and Araujo does

not seriously argue that they are.

What he does argue is that he is actually innocent and

that therefore the application of the statute of limitations in

§ 2244(d) to bar his petition would result in a fundamental
No. 05-1174 3

miscarriage of justice. He urges us to determine that a

freestanding “actual innocence” exception must be read into

the statute. The exception would not require a showing that

a petitioner exercised due diligence in discovering his claim.

It would be “a gateway through which a habeas petitioner

must pass to have his otherwise barred constitutional claim

considered on the merits.” Herrera v. Collins, 506 U.S. 390,

404 (1993).

Unfortunately for him, the argument comes too late. We

have recently decided that “[p]risoners 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 (7th Cir.

2005).

In an ordinary case, the one-year statute of limitations in

§ 2244(d)(1) runs from the latest of four possible dates:

(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.

In addition, we have recognized that in some situations

the statute might be subject to equitable tolling. In
4 No. 05-1174

Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004), we said

that “[e]quitable tolling is proper when extraordinary circumstances outside of the petitioner’s control

prevent timely filing of the habeas petition.” In that case,

the circumstance—which ultimately failed to carry the

day—was that the corrections officers did not deliver

petitioner’s mail on time. We also have recognized that

equitable estoppel may apply to § 2244 but, as with equitable tolling, “only where the doctrine’s operation would not

conflict with the tolling provisions specifically listed in §

2244(d).” Balsewicz v. Kingston, 425 F.3d 1029 (7th Cir.

2005). We rejected the argument that the language of the

Wisconsin postconviction statute misled Balsewicz into

believing that he could file his state postconviction challenge at any time and still obtain federal habeas review.

The assumption underlying Araujo’s appeal is that his

petition does not comfortably fall within any of the statutory or equitable principles. Were the petition to be

forced into one of the existing exceptions, the parties do not

agree on which one would be appropriate. The State

contends that Araujo’s “actual innocence” claim must “by

default . . . fall within the equitable tolling camp.” Araujo

disagrees and argues, somewhat halfheartedly, that if

actual innocence is not a freestanding exception, his case

would most closely fall within the statutory provision in

§ 2254(d)(1)(D)—he must file within one year of the date on

which the facts on which his claim is based could have been

discovered “through the exercise of due diligence.”

We agree with the latter contention that § 2254(d)(1)(D)

would be the provision to which we should look, but we

cannot find that Araujo meets the requirements of that

provision. The Illinois state trial court was considering

Araujo’s claims of innocence at a hearing in 1994. He has

not exercised due diligence in bringing to the federal courts

the facts which he claims show he is innocent. That failing
No. 05-1174 5

means that we are left with his contention that actual

innocence is a freestanding exception to the statute.

It is an argument which has caused courts a good deal

of consternation. The Court of Appeals for the Eighth

Circuit has determined that actual innocence is relevant

to a claim that the statute of limitations should be tolled,

but the petitioner must still make a showing of reasonable diligence in discovering the facts underlying his

claim. Flanders v. Graves, 299 F.3d 974 (2002). In contrast,

recently in Souter v. Jones, 395 F.3d 577 (2005), the Court

of Appeals for the Sixth Circuit has found that, if a petitioner can demonstrate that it is more likely than not that

no reasonable juror would have found him guilty, he should

be allowed to pass through the “gateway” (provided by

actual innocence) and argue the merits of his underlying

constitutional claims. Other courts of appeals have avoided

deciding the timeliness issue by first requiring that the

district court determine whether there is, in fact, a showing

of actual innocence. See Whitley v. Senkowski, 317 F.3d 223

(2nd Cir. 2003); Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002).

However, in this circuit, it seems clear that Araujo’s

argument cannot survive Escamilla. Escamilla also was

a case subject to § 2244(d)(1)(D), and it also was a case, like

this one as we shall see in a moment, where the support for

the claim of actual innocence involved facts which were

subject to interpretation—that is, the claim of innocence

was not clear-cut. It was not DNA evidence conclusively

ruling him out as the perpetrator, for instance. We said

Escamilla failed on two fronts: he made an insufficient

showing of actual innocence, and he did not establish that

his petition was timely under § 2244(d).

Like Escamilla, Araujo has made an insufficient showing to raise the inference that he is actually innocent.

He relies on postconviction testimony of Mendoza and Zaida

Cintron; on his claim that Bishops gang members testified
6 No. 05-1174

falsely; on what he calls the exculpatory eyewitness account

of Officer John Delgado; and on false gun evidence. We will

review this evidence briefly.

As we noted, both Mendoza and Araujo were charged in

the murder of Rodriguez. It was the State’s theory that

Araujo did the shooting. Mendoza’s guilty plea was based on

his admission that he was the “cover man” for Araujo. Now,

Mendoza claims he was the shooter. At the time he testified

at Araujo’s postconviction hearing, he had only 3 or 4 years

left to serve on his sentence for his participation in the

murder, a fact which causes one to view his testimony with

some skepticism. Zaida Cintron, who was an Ambrose gang

member and Mendoza’s girlfriend, testified at Araujo’s trial

that she was walking up the street and saw Araujo driving

a maroon-colored car. She asked him for a ride, but he told

her that he couldn’t give her one because he needed to hide

his gun because he “had done something.” She said Araujo

was alone in the car. At the postconviction hearing, Cintron

testified that her trial testimony was false. She said she

testified falsely to protect her boyfriend, Mendoza.

The state trial judge, who listened to these witnesses,

found them incredible. He rejected Mendoza’s testimony

“not so much as for what he said, but for how he said it.” He

was also skeptical of Cintron’s recantation, in part because

she had been convicted of forgery, a conviction the judge

found highly relevant on the issue of her credibility. The

appeals court upheld these findings and the Illinois Supreme Court denied review. People v. Araujo, 184 Ill. 2d 560

(1999). As a general matter, of course, findings made in the

course of a state court proceeding are presumed correct. 28

U.S.C. § 2254(d)(2); § 2254(e)(1).

The claim that somehow Officer Delgado’s eyewitness

account must now show that Araujo is innocent needs

little comment. Delgado testified for Araujo at his trial.

He said on the day of the shooting he was off duty when
No. 05-1174 7

he saw yet another person, Willie Perez, firing a gun

between two parked cars. It is hard to see how that testimony can meaningfully be improved on. Furthermore, the

claim that the Bishops gang members’ testimony was false

lacks support.

Finally, the ballistics evidence, tendered during the

postconviction proceedings, showed that the .38 caliber

pistol found in Araujo’s home after the shooting was not the

murder weapon. The bullet recovered from the victim

was not fired from that weapon, a fact the prosecution

conceded at the postconviction hearing. However, at trial

the prosecution witness did not positively match the

gun with the bullet and testified that the majority of

weapons in the United States exhibited similar characteristics. The evidence Araujo offers falls short of showing that,

in the face of the new ballistics evidence, the jury would

have been unlikely to convict him. Even were actual

innocence a freestanding exception to the time limits

imposed by § 2244, Araujo would fail to show he should be

allowed to proceed with his petition and to pursue his

underlying constitutional claims. However, and most

importantly, as we have said, it is clear that in this circuit,

actual innocence is not a freestanding exception to the

statute. For that reason, Araujo’s petition is barred by the

one-year statute of limitations. Accordingly, the judgment

of the district court is AFFIRMED.
8 No. 05-1174

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-16-05