Cox v. Polley
Filing
14
OPINION: The United States of America's Motion to Dismiss Petitioner's Petition for Writ of Habeas Corpus (d/e 7 ) is GRANTED. Plaintiff Christopher Cox's Petition for Writ of Habeas Corpus (d/e 1 ) is DENIED. The Court finds that C ox has not made a substantial showing of the denial of a constitutional right, and the Court declines to issue Cox a certificate of appealability. This case is closed. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 12/17/2015. (ME, ilcd)
E-FILED
Thursday, 17 December, 2015 05:32:42 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
CHRISTOPHER J. COX,
Petitioner,
v.
CECIL POLLEY,
Respondent.
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3:15-cv-3097
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
Petitioner Christopher Cox has filed a Petition under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody (d/e
1). Cox is currently in state prison, serving consecutively running
prison terms of 3 years and 22 years. Cox was found guilty in 2005
of disorderly conduct, unlawful restraint, aggravated fleeing and
eluding, domestic battery, aggravated unlawful restraint, and armed
violence. Cox alleges that he is being held unlawfully by the State
of Illinois. He seeks relief from this Court.
Respondent Cecil Polley—the Warden of the Graham
Correctional Center in Montgomery County, Illinois, where Cox is
serving his prison term—has filed a motion to dismiss (d/e 7). The
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motion to dismiss (d/e 7) is GRANTED, and Cox’s Petition under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (d/e 1) is DENIED.
I.
Background
Although Cox had a number of encounters with law
enforcement during the summer of 2004, the events precipitating
his ultimate arrest occurred on September 7, 2004. Cox disputes
the State’s account of what happened that night, but the State says
that police were called to Cox’s home and found him holding a knife
against his wife’s throat. Cox’s wife escaped, although not before
Cox cut her neck with the knife. The police eventually subdued Cox
with pepper spray and a “bean bag” gun.
In Cox’s version of events, Cox was lying on his couch when
Taylorville City Police Officer Vincent Childers arrived at Cox’s door
“seeking his revenge” because Cox had reported Officer Childers for
stealing $3,400 of jewelry from Cox during a traffic stop earlier that
summer. Cox’s wife let Officer Childers in and falsely told Officer
Childers that Cox had been abusing her. After Cox verbally
protested, Officer Childers drew his revolver. Cox raised his hands
in the air, but Officer Childers shot Cox twice: once on the right
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cheek and once on the collar bone. Cox fled to his bedroom and
surveyed his injuries: an abrasion on his right cheek, and “a large
broken bone protruding out of the base of my neck, the skin was
torn away and blood was seeping down my chest.” (Cox Affidavit,
Ex. A at d/e 1-1.)
According to Cox, he then lit a cigarette and swallowed 7-8
pills of Trazodone, an antidepressant. From the hallway outside
Cox’s bedroom, Officer Childers asked Cox to come out, which Cox
did after taking a few drags from his cigarette and receiving
assurance that Officer Childers would not shoot him. When Cox
emerged from the bedroom, Officer Childers sprayed pepper spray
in Cox’s eyes, gouged Cox’s left eye, and squeezed Cox’s broken
bone until Cox lost consciousness.
So began, says Cox, a conspiracy between his wife, Officer
Childers, the State’s Attorney’s office, and the Circuit Court of
Christian County.
In November 2005, a jury in Christian County, Illinois,
convicted Cox of disorderly conduct, unlawful restraint, aggravated
fleeing and eluding, domestic battery, aggravated unlawful
restraint, and armed violence. The court vacated the conviction for
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aggravated unlawful restraint, on the ground that it was a lesserincluded offense of the conviction for armed violence. On the armed
violence count, the court sentenced Cox to a prison term of 22
years, with orders that Cox serve 85% of the sentence. Cox received
shorter prison terms of varying lengths—the longest being 3 years—
on the other counts, all running concurrently to each other but
consecutively to the 22-year sentence.
Cox appealed his conviction to the Illinois Appellate Court.
Cox argued, among other things, that the court should not have
required him to serve 85% of his 22-year sentence for armed
violence without an explicit finding that the victim, Cox’s wife,
suffered great bodily harm. The appellate court rejected Cox’s
arguments and affirmed the conviction. (See d/e 8-1 at 10-11 (“the
record supports the conclusion that the trial court’s assessment
that the victim’s injuries constituted great bodily harm was
accurate”).) On September 26, 2007, the Illinois Supreme Court
denied Cox’s petition for leave to appeal. (See d/e 8-2 at 1.)
On December 5, 2007, Cox filed, in Christian County Circuit
Court, a post-conviction petition under 725 ILCS 5/122. (See d/e
8-3 at 2.) The circuit court appointed an attorney to represent Cox,
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and the resulting amended post-conviction petition alleged, among
other things: (1) that the State failed to disclose all the evidence in
its possession; and (2) that Cox’s counsel on appeal was ineffective
for failing to argue, among other things, that Officer Childers and
Cox’s wife had conspired to falsely accuse Cox. (See d/e 8-3 at 3.)
On August 29, 2008, the circuit court dismissed the amended
petition. (See d/e 8-3 at 4.)
Cox appealed the denial of his post-conviction petition to the
Illinois Appellate Court. On July 16, 2010, the Illinois Appellate
Court affirmed the circuit court’s judgment. Cox then petitioned for
leave to appeal to the Illinois Supreme Court. On January 26,
2011, the Illinois Supreme Court denied Cox’s petition for leave to
appeal. (See d/e 8-4 at 1.)
On March 6, 2012, Cox filed, in Christian County Circuit
Court, a petition for relief from judgment under 725 ILCS 5/2-1401.
(See d/e 8-5 at 2.) Cox argued, among other things, conspiracy,
subornation of perjury, and actual innocence. (Id.) The court
dismissed Cox’s Section 2-1401 petition as untimely, and the
appellate court affirmed. (See d/e 8-5 at 1.) On May 28, 2014, the
Illinois Supreme Court denied Cox’s petition for leave to appeal.
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(See d/e 8-6 at 1.)
On March 24, 2015, Cox filed this petition for a writ of habeas
corpus under 28 U.S.C. § 2254 (d/e 1).
II.
Issues
A.
Timeliness
Warden Polley urges the Court to dismiss Cox’s Section 2254
petition. The Warden argues that Cox’s petition is untimely under
28 U.S.C. § 2244(d)(1).
A Section 2254 petition must be filed within 1 year of: (A) the
date on which the judgment against the petitioner became final; (B)
the date of the removal of an impediment preventing the petitioner
from filing, if the impediment was caused by the State’s actions in
violation of the Constitution or laws of the United States; (C) the
date on which the Supreme Court recognized a new constitutional
right and made it retroactively applicable to cases on collateral
review; or (D) the date on which the factual predicate of the
petition’s claim(s) could have been discovered through due
diligence. See 28 U.S.C. § 2244(d)(1)(A)-(D).
The Warden argues that 28 U.S.C. § 2244(d)(1)(A)—which
requires Cox’s petition to have been filed within 1 year of the date
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on which the judgment against Cox became final—applies. The
warden argues that Cox has not alleged a State-created impediment
to filing (Subsection (d)(1)(B)), a newly recognized and retroactive
constitutional right (Subsection (d)(1)(C)), or a subsequent discovery
of the factual predicate of his claim (Subsection (d)(1)(D)). (Motion
to Dismiss, d/e 7 at 4.)
The Court agrees that Cox has not alleged anything falling
under the umbrella of Subsections (d)(1)(B) or (d)(1)(C). Subsection
(d)(1)(D), however, presents a slightly closer question, as Cox does
cite several examples of “newly discovered evidence” in his petition.
See McQuiggin v. Perkins, 133 S.Ct. 1924, 1929 (2013) (“If the
petition alleges newly discovered evidence … the filing deadline is
one year from ‘the date on which the factual predicate of the claim
… could have been discovered through the exercise of due
diligence.’”) (quoting 28 U.S.C. § 2244(d)(1)(D)).
Cox first presents what he describes as the newly discovered
affidavit of Bonnie Adermann, in which Ms. Adermann writes that
Cox’s wife admitted that she had lied when she told the police that
Cox had attacked her. For the purpose of assessing Cox’s petition’s
timeliness, the most significant feature of the affidavit is its date:
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September 3, 2013. Cox filed this petition on March 24, 2015. So
even assuming that the affidavit represents a newly discovered
factual predicate for Cox’s petition, Cox did not file his petition until
1 year, 6 months, and 21 days after Ms. Adermann signed the
affidavit—6 months and 21 days too late to meet the 1-year filing
deadline. Cox could, perhaps, argue that he did not discover the
affidavit until sometime less than a year before he filed this petition.
(Cox has not done so; indeed, Cox has not argued that Subsection
(d)(1)(D) applies at all.) But because the affidavit is clearly
addressed to Cox himself, such an argument would strain
credibility. (See Affidavit of B. Adermann, d/e 1-1 at 5 (“[Your wife]
did feel terrible when you received such a stiff sentence. She
claimed to be absolutely shocked by the sentence you were given.”).)
Cox also cites numerous other “newly discovered” documents
and photographs. The petition does not state precisely when Cox
supposedly discovered the documents and photographs, and none
appear to have been discovered during the year preceding the
March 24, 2015 filing of Cox’s Section 2254 petition. Indeed, the
petition at least implies that some or all of the documents and
photographs were withheld from Cox only during the first year of
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his prosecution, perhaps for as long as 258 days. (See d/e 1 at 5
(“Why were all of these photographs being withheld by police from
the State’s Attorney’s Office? For 258 days these were withheld
from your petitioner.”).) And even assuming that the documents
and photographs were withheld from the time of Cox’s arrest in
September 2004 until sometime around May 2005, a nearly 10-year
delay (from May 2005 to March 2015) is nearly 9 years too long to
meet Subsection (d)(1)(D)’s requirement that a Section 2254 petition
be filed within 1 year of the evidence’s discovery.
Finally, among the “newly discovered” material Cox cites are
several missing pages from the transcript of the May 24, 2005
pretrial discovery hearing in his criminal case. Cox claims these
pages were previously missing while he pursued, from 2007 to
2011, his post-conviction petition under 725 ILCS 5/122. Cox’s
petition does not explain how or when Cox came to discover the
missing pages. But even if Cox acquired them during the year prior
to his March 24, 2015 filing of this Section 2254 petition, Cox
himself was present at the May 2004 hearing, and so the content of
the transcript of the hearing cannot be considered “newly
discovered.”
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Because Subsections (d)(1)(B)-(D) do not apply to Cox’s
Section 2254 petition, under Subsection (d)(1)(A) the 1-year period
during which Cox could file began when Cox’s judgment became
final. 28 U.S.C. § 2244(d)(1)(A). After Cox was convicted, he
appealed to the Illinois Appellate Court (Fifth District). When the
Illinois Appellate Court rejected Cox’s arguments, he petitioned for
leave to appeal to the Illinois Supreme Court. The Illinois Supreme
Court denied Cox’s petition on September 26, 2007. Cox then had
90 days within which to file a petition for a writ of certiorari to the
United States Supreme Court. See Sup. Ct. R. 13. The deadline for
Cox to do that passed—and Cox’s judgment thus became final—on
December 26, 2007. See Gonzalez v. Thaler, 132 S.Ct. 641, 653-54
(2012) (if petitioner does not pursue review by U.S. Supreme Court,
“the judgment becomes final at the expiration of the time for
seeking such review—when the time for pursuing direct review in
[the U.S. Supreme Court] expires”) (internal quotation omitted).
Normally, then, the 1-year period during which Cox could file
his Section 2254 petition in this Court would have been triggered
on December 26, 2007, when the judgment against Cox became
final. However, the 1-year clock did not begin running then,
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because 3 weeks earlier, on December 5, 2007, Cox had filed a
post-conviction petition, under 725 ILCS 5/122, which remained
pending. See 28 U.S.C. § 2244(d)(2). That post-conviction petition
tolled the 1-year clock for more than 3 years, until the Illinois
Supreme Court ultimately denied Cox’s petition for leave to appeal
the petition’s dismissal. The Illinois Supreme Court issued that
denial on January 26, 2011. Only then did the 1-year clock begin
to run. (Although Cox had 90 days after January 26, 2011 to file a
petition for a writ of certiorari with the U.S. Supreme Court, the 1year clock nonetheless ran during this time. Tucker v. Kingston,
538 F.3d 732, 735 (7th Cir. 2008) (Section 2254 clock not tolled
during petitioner’s 90-day period to seek certiorari after state
supreme court denies leave to appeal in post-conviction
proceeding).)
As a result, Cox had through January 26, 2012, at the latest,
to file a Section 2254 petition. See Newell v. Hanks, 283 F.3d 827,
833 (7th Cir. 2002) (describing proper method of calculating such
deadlines). Because he did not do so, his March 2015 filing is
untimely.
Although Cox did file, in Christian County Circuit Court in
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March 2012, a petition for relief from judgment under 725 ILCS
5/2-1401, that filing did not affect the 1-year Section 2254 clock
that had begun running on January 27, 2011, for two reasons.
First, the 1-year Section 2254 clock had already expired—the last
day Cox could file was January 26, 2012—by the time Cox filed the
Section 2-1401 petition on March 6, 2012. Thus, the filing of the
Section 2-1401 petition did nothing to revive or reset the Section
2254 clock. See De Jesus v. Acevedo, 567 F.3d 941, 943 (7th Cir.
2009) (“a state proceeding that does not begin until the federal year
has expired is irrelevant”). And second, the Illinois courts found
that the Section 2-1401 petition itself was untimely filed (see d/e 85 at 3). Thus, the Section 2-1401 petition was not “properly filed”
under the law governing Section 2254 petitions, and the petition
could not have tolled the 1-year Section 2254 clock even if the clock
had still been running. See 28 U.S.C. § 2244(d)(2) (tolling 1-year
Section 2254 clock during pendency of “properly filed” state court
post-conviction motion); Brooks v. Walls, 301 F.3d 839, 840 (7th
Cir. 2002) (“an untimely application for state collateral relief is not
‘properly filed’ and therefore does not extend the time in which to
file a federal [Section 2254] petition”).
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In response to the Warden’s motion to dismiss, Cox
“concede[]s at this time that it is improbable that he can overcome
the procedural time bar” and “apologize[s] for having sought relief in
this court without having realized that he was time barred.” (See
d/e 13 at 1, 3.)
To summarize: Cox had until January 26, 2012, at the latest,
to file his Section 2254 petition. Because Cox did not file until
March 24, 2015, his filing is untimely.
B.
Equitable tolling
For equitable reasons, a court may toll the 1-year period
during which a Section 2254 petitioner normally must file. Holland
v. Florida, 560 U.S. 631, 645 (2010). Such “equitable tolling” is
available only if (1) the petitioner pursued his rights diligently; and
(2) an “extraordinary circumstance” prevented a timely filing. Id. at
649; see also Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008)
(“Before the principles of equitable tolling apply, a petitioner must
demonstrate, first, that extraordinary circumstances outside of his
control and through no fault of his own prevented him from timely
filing his petition.”). Cox bears the burden of showing that he is
entitled to equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418
Page 13 of 25
(2005). Cox has not made such a showing.
First, Cox has not shown that he pursued his rights diligently.
To the contrary, the 4 years that elapsed between January 26,
2011, when the Illinois Supreme Court denied Cox’s petition for
leave to appeal the denial of his post-conviction petition, and March
24, 2015, when Cox filed this Section 2254 petition, indicate a lack
of diligence. See Pace, 544 U.S. at 419 (“petitioner waited years …
to assert these claims …. [This] lack of diligence precludes equity’s
operation”).
In fairness to Cox, he may have believed that the 1-year
Section 2254 clock was not running while he pursued his Section
2-1401 petition with the Illinois state courts. But, as mentioned
above, the 1-year Section 2254 clock had expired even before Cox
filed his Section 2-1401 petition. Further, the Illinois Supreme
Court held that the Section 2-1401 petition itself was untimely filed.
(See d/e 8-5 at 3 (“[S]ix years, four months, and nearly a week
separated the entry of the judgment and Cox’s filing of the section
2-1401 petition. As the circuit court recognized, the petition was
untimely.”).) 867 (7th Cir. 2006). Such circumstances do not
indicate that Cox pursued his rights diligently.
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Second, Cox has not shown that any “extraordinary
circumstance” prevented his timely filing. Cox argues that “his
untimeliness is a direct result of the many times the state courts
were dilatory in their handlings of the filings in state courts,” and
that he has consistently been disadvantaged by being represented
by counsel “who did not want to investigate the case, the facts, or
the evidence” (d/e 13 at 1). Cox also asserts that “his shortcomings are a direct result of the various judges that have been so
predisposed with denying relief at each level,” and that the Illinois
Attorney General’s office has ignored his efforts to bring his plight
to its attention. (Id. at 2-3.) Cox asks the Court to “excuse his
untimeliness and lack of legal knowledge with which to properly
obtain relief.” (Id. at 5.)
Even if there were merit to Cox’s complaints about dilatory
state courts, indifferent counsel, biased judges, and an
unresponsive Attorney General’s office, such merit would still not
excuse Cox’s late filing of his Section 2254 petition. No delay by the
Illinois state courts could have prejudiced Cox, as the 1-year filing
clock for his Section 2254 petition was tolled while he awaited those
courts’ rulings. And although having been wrongfully convicted
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because of ineffective counsel1 or a prejudiced judge2 could form the
basis of a successful Section 2254 petition, the law still requires
Cox’s Section 2254 petition to have been filed within 1 year of the
date on which the judgment against him became final. 28 U.S.C. §
2244(d)(1)(A). As for the Attorney General’s office, that office is not
the proper forum for Cox’s grievances. Cox has already pursued his
claims in the proper forums: his direct appeal of his conviction, his
post-conviction petition under 725 ILCS 5/122, and, had they been
timely filed, his petition for relief from judgment under 725 ILCS
5/2-1401 and this Section 2254 petition. Finally, regarding Cox’s
professed “lack of legal knowledge” (d/e 13 at 5), even if Cox had
believed in good faith that the 1-year Section 2254 clock had not
expired in 2012, and that it continued to be tolled into 2015,
“[m]istakes of law or ignorance of the proper legal procedures are
not extraordinary circumstances warranting invocation of the
doctrine of equitable tolling.” Arrieta v. Battaglia, 461 F.3d 861,
867 (7th Cir. 2006); see also Tucker v. Kingston, 538 F.3d 732, 735
(7th Cir. 2008) (“lack of legal expertise is not a basis for invoking
1
Cossel v. Miller, 229 F.3d 649 (7th Cir. 2000) (remanding with direction to grant writ of
habeas corpus on ground that Section 2254 petitioner received ineffective assistance of
counsel).
2 Bracy v. Gramley, 520 U.S. 899 (1997) (remanding to allow Section 2254 petitioner to take
discovery relating to claim that he was denied fair trial because of judge’s bias).
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equitable tolling”).
One potential extraordinary circumstance here is the fact that
Cox’s wife died of a drug overdose shortly after Cox was convicted.
(See d/e 1-1 at 4.) Cox has not specifically argued that his wife’s
death constituted an “extraordinary circumstance” that prevented
him from timely filing his Section 2254 petition. Cox might,
however, contend that his wife’s death eliminated the only witness
who could expose the State’s purported conspiracy to imprison Cox.
Cox might argue that, without his wife’s availability to testify, he
lacked a basis on which to file his Section 2254 petition—until he
learned of Ms. Adermann’s claim that Cox’s wife admitted to lying
about Cox’s actions.
But for equitable tolling to be available, an extraordinary
circumstance must prevent a timely filing and the petitioner must
have pursued his rights diligently. Ms. Adermann’s affidavit was
signed 1 year, 6 months, and 21 days before Cox filed his Section
2254 petition, and the affidavit is plainly addressed to Cox himself.
Thus, even if Cox’s wife’s death constituted an extraordinary
circumstance preventing Cox from timely filing, Cox did not pursue
his rights diligently after procuring the affidavit from Ms.
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Adermann.
In sum, the circumstances here do not justify tolling, on
equitable grounds, the deadline for Cox to file his Section 2254
petition.
C.
Actual innocence
A “credible showing of actual innocence” may allow a
petitioner to evade Section 2254’s timeliness requirements.
McQuiggin v. Perkins, 133 S.Ct. 1924, 1931, 1935 (2013). But this
“actual innocence gateway” is “narrow.” Gladney v. Pollard, 799
F.3d 889, 896 (7th Cir. 2015). The petitioner must show that, “in
light of new evidence, it is more likely than not that no reasonable
juror would have found [him] guilty beyond a reasonable doubt.”
Id. (quotation omitted). The petitioner’s claim must rely on “new
reliable evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence,” that
was not presented at trial. Id. (quotation omitted).
Cox argues that he is actually innocent (d/e 1 at 7). As
mentioned above, Cox supports his claim with an affidavit from
himself, an affidavit from Bonnie Adermann, and numerous pages
of transcribed testimony, photographs, and other documents.
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1.
Cox’s affidavit
Cox’s affidavit—summarized near the beginning of this
opinion—alleges facts that are not new: Cox testified to similar facts
at his trial in 2005. (See d/e 8-3 at 19 (“At trial, [Cox] accused
Officer Childers and [the victim, Cox’s wife] of having an affair and
setting [Cox] up to be charged and convicted …. [Cox] asserted in
his … testimony that … Officer Childers ... had come to [Cox’s]
house [and] shot him with a handgun …. While [Cox] was
unconscious, Officer Childers used a taser on [Cox’s] temples to
erase his memory and cut the victim’s throat to make it appear that
[Cox] had attacked her. … [Cox] responded to the State’s questions
on cross-examination by claiming that the Taylorville police
department, the Christian County sheriff’s department, the State’s
Attorney, and the circuit court judges had participated in a
conspiracy to wrongfully prosecute and convict him.”).) Because
Cox’s affidavit does not present new evidence, the affidavit does not
provide a basis for his claim of actual innocence to proceed.
2.
Ms. Adermann’s affidavit
Ms. Adermann’s affidavit asserts that, one night while Cox’s
wife was drinking, Cox’s wife confessed that she had lied to the
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police about “everything that happened” between her and Cox on
the night Cox was arrested (d/e 1-1 at 5). The affidavit, signed in
September 2013, constitutes “new evidence” to the extent that the
affidavit was not introduced during Cox’s 2005 trial. But the
affidavit does not constitute a “trustworthy eyewitness account.”
Ms. Adermann was not present on the night Cox was arrested, and
her affidavit offers only inadmissible hearsay evidence, in the form
of a third-party statement (purportedly made by Cox’s wife)
presented for the truth of the matter asserted. See United States ex
rel. Thomas v. Pfister, No. 07-6443, 2014 U.S. Dist. LEXIS 82703,
*25 (N.D. Ill. June 17, 2014) (rejecting, as hearsay, Section 2254
petitioner’s purported newly discovered evidence, including witness
affidavit describing overheard conversation in which officer said
another officer had been told petitioner did not commit offense at
issue).
Cox’s wife died from a drug overdose—Cox describes it as
“accidental suicide”—shortly after Cox was convicted (d/e 1-1 at 4).
Cox’s wife’s resultant unavailability to testify raises the prospect of
admitting her alleged statement to Ms. Adermann under Federal
Rule of Evidence 804. That rule provides an exception in certain
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circumstances to the rule against hearsay if the declarant who
made the statement sought to be admitted has died. See Fed. R.
Evid. 804(a)(4). The exception is available only in certain
circumstances, one of which is when the statement is offered
against the party that wrongfully caused the declarant’s
unavailability. Fed. R. Evid. 804(b)(6). Here, Cox suggests that his
wife’s death is further evidence of the State’s conspiracy to imprison
him. See d/e 1-1 at 4 (“Could this also be a conspiracy to commit
murder?”)). If so, and the State’s conspiracy to put Cox in prison
also involved a plot to murder Cox’s wife to ensure she would not
tell anyone about the conspiracy against Cox, then Cox’s wife’s
alleged statement could be admissible under Rule 804(b)(6).
However, Cox has not shown by a preponderance of the
evidence that the State wrongfully caused his wife’s death. See Fed.
R. Evid. 804, Advisory Committee note to subdivision (b)(6)
(applying rule to all parties, including government, and adopting
preponderance of evidence standard). The mere suggestion, in one
line of an affidavit, that a conspiracy to murder may possibly exist
does not constitute a preponderance of the evidence.
Rule 801(d)(2)(E)—the hearsay exception for statements made
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by the opposing party’s co-conspirator during and in furtherance of
the conspiracy—does not apply, either. Because Cox has suggested
that part of the State’s conspiracy involved a plot to murder Cox’s
wife, Cox’s wife cannot be treated as the State’s co-conspirator for
the purpose of applying Rule 801(d)(2)(E) here. If the State engaged
in a conspiracy to murder Cox’s wife to prevent her from revealing
that Cox had been framed, then by definition Cox’s wife’s purported
statement to Ms. Adermann—in which she purportedly revealed
that she helped frame Cox—could not have been a statement made
in furtherance of the State’s conspiracy.
3.
The documents and photographs
Cox’s petition does not explain in what way the numerous
documents and photographs attached to the petition are new.
Rather, the petition itself reveals that much, if not all, of this
evidence is not new. In the petition, Cox describes the grounds on
which he filed his Section 2-1401 petition in state court in 2012.
Cox’s description of his Section 2-1401 petition refers to the same
arguments and evidence that Cox has presented in this Section
2254 petition:
Newl[]y Discovered Evidence show[ing] State conspired with
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my wife, police, to manufacture evidence against me, perjured
testimony, corrupting the judicial process and fraud on the
court, Doctors were not allowed to testify by court and stand
by counsel, Court ordered defendant to serve 85% of the
Armed Violence without a finding by the jury that Defendant
caused great bodily harm to the State’s alleged victim, Actual
Innocence: “denied the right to access potentially exculpatory
biological evidence” and the State’s withholding and surprise
entry of photographic evidence.
(d/e 1 at 3). Further, the record reflects that at least some, if not
all, of the documents and photographs attached to Cox’s Section
2254 petition were introduced into evidence at Cox’s trial. (See
Illinois Appellate Court Rule 23 Order, d/e 8-3 at 19 (“The evidence
also established beyond a reasonable doubt that [Cox] had cut the
victim’s throat with a kitchen knife, causing the wounds that were
depicted in photographs that were introduced into evidence at
trial.”) (emphasis added).) Overall, the petition does not show that
the documents and photographs are “newly discovered.”
In short, Cox may not evade the Section 2254’s timeliness
requirements because he has not presented new evidence showing
that it is more likely than not that no reasonable juror would have
found him guilty beyond a reasonable doubt. Gladney, 799 F.3d at
896.
Page 23 of 25
D.
Request for counsel
At the close of Cox’s response to the Warden’s motion to
dismiss, Cox asks the Court to appoint counsel if the Court deems
it necessary. (See d/e 13 at 5.) The Court has previously denied
Cox’s request for counsel, finding Cox to appear capable of
presenting his case. (See July 27, 2015 Text Order.) No new
circumstances call that decision into question. Consequently, the
Court again denies Cox’s request for counsel.
III.
Conclusion
For the reasons above, the Court finds that Cox is time-barred
from filing his Section 2254 petition in this Court. The United
States of America’s Motion to Dismiss Petitioner’s Petition for Writ
of Habeas Corpus (d/e 7) is GRANTED. Plaintiff Christopher Cox’s
Petition for Writ of Habeas Corpus (d/e 1) is DENIED.
Rule 11(a) of the Rules Governing Section 2254 Cases requires
the Court to issue or deny a certificate of appealability when it
enters a final order adverse to the petitioner. To obtain a certificate
of appealability, Cox must make a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c). For such a
showing to exist, reasonable jurists must be able to “debate whether
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(or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). Here, the
Court has found a procedural bar to Cox’s Section 2254 petition:
the 1-year statute of limitations imposed by 28 U.S.C. § 2244(d)(1).
“Where a plain procedural bar is present … a reasonable jurist
could not conclude either that the district court erred in dismissing
the petition or that the petition should be allowed to proceed
further.” Id. Thus, the Court finds that Cox has not made a
substantial showing of the denial of a constitutional right, and the
Court declines to issue Cox a certificate of appealability.
This case is closed.
IT IS SO ORDERED.
ENTER: December 17, 2015
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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