Evans v. Lashbrook

Filing 12

MEMORANDUM Opinion and Order: Petitioner's habeas corpus petition (Dkt. 1 ) is denied. Any pending motion is also denied as moot. The Court declines to issue a certificate of appealability. The Clerk is instructed to change the name of Respond ent to Alex Jones, Acting Warden of Menard Correctional Center and enter judgment in favor of Respondent and against Petitioner. Civil Case Terminated. Signed by the Honorable Jorge L. Alonso on 3/26/2020. Notice mailed by judge's staff (lf, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Shannon Evans (M-05017),
Petitioner,
v.
Jacqueline Lashbrook Warden,
Menard Correctional Center,
Respondent.

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No. 17 C 8571
Hon. Jorge L. Alonso

MEMORANDUM OPINION AND ORDER
Petitioner Shannon Evans, a prisoner at Menard Correctional Center proceeding pro se,
filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He challenges his 2004 Cook
County conviction for murder. Respondent has answered the petition, arguing that Petitioner’s
claims are procedurally defaulted. As more fully explained below, Respondent is correct. The
Court denies the § 2254 petition and declines to issue a certificate of appealability.
BACKGROUND 1
Petitioner was convicted of shooting and killing Robert Duffy on October 13, 2005. People
v. Evans, 81 N.E.3d 534, 537 (Ill. App. Ct. 2017). At trial, Tina Mosley, Duffy’s longtime
girlfriend, testified that: Duffy and Petitioner were friends; they were members of the Gangster
Disciples; and they sold drugs together at a house located at 2210 South Parnell Ave. in Chicago

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Under 28 U.S.C. § 2254(d)-(e)’s deferential standards of review, federal courts defer to the “the last reasoned
opinion” by a state court addressing a claim asserted in a § 2254 petition. Wilson v. Sellers, 138 S. Ct. 1188, 1194
(2018); Hartsfield v. Dorethy, 949 F.3d 307, 309 n.1 (7th Cir. 2020) (“We take the facts from the Illinois Appellate
Court’s opinions because they are presumptively correct on habeas review.”) (citing § 2254(e)(1)). In this case, the
last reasoned opinion is the state appellate court decision addressing Petitioner’s post-conviction appeal. People v.
Evans, 81 N.E.3d 534 (Ill. App. Ct. 2017). The Court notes Petitioner’s assertion with each of his § 2254 claims that
he “objects to the state[] court’s factual findings as being incorrect.” (Dkt. 1, pg. 5-6.) But he neither explains nor
provides anything further to support this statement. To the extent the state court’s description of the background facts
are findings of fact based on its review of the record, they are presumed correct, and Petitioner has not rebutted the
presumption. See § 2254(e)(1); Hartsfield, 949 F.3d at 309 n.1.

(the “Parnell house”). Id. One of their regular customers was Rashad Bethany, and Mosely often
saw Petitioner, Duffy, and Bethany together. Id.
On the day after Duffy was shot and killed, Mosley saw both Petitioner and Bethany. Id.
Petitioner’s eyes were bloodshot, he was shaking, and he appeared nervous. Id. He told Mosley
that he and Duffy were conducting a drug deal at the Parnell house with members of another gang.
Id. Petitioner told Mosley that one of the other gang members pulled out a gun, a fight ensued, and
Duffy was shot. Id. Petitioner further stated that he shot one of the other gang members and fled
to hide his gun. Id. When he returned, he saw two bodies being placed in an ambulance. Id.
Eischa Tooney testified that she lived about a block from the Parnell house. Id. She stated
that, on October 13, 2005, Petitioner, Bethany, and two other men known as Little Ricky and
Peanut were on her porch drinking, as they often did. Id. She saw all four men leave her porch and
walk toward the Parnell house. Id. Five to ten minutes later, Tooney heard gunshots and then saw
all four men running away from the Parnell house, along with other people on that block. Id.
The next time Tooney saw Petitioner was at Duffy’s funeral. Id. He told her that he was
worried he was being framed for the murder. Id. Tooney replied she had heard nothing about the
shooting. Id. One or two months later, when Petitioner, Bethany, Little Ricky, and Peanut were
again at Tooney’s house, she heard Bethany brag about shooting Duffy and stealing his drugs. Id.
Although Tooney testified at trial that she could not remember if Petitioner said anything about
the shooting, she was reminded of her grand jury testimony where she stated that Petitioner
admitted to being a “part of it” and helped steal Duffy’s money and drugs. Id. at 537-38. When
asked about her grand jury testimony, Tooney responded: “I was asked those questions, and you
say I answered that. Evidently, I answered that.” Id. at 538. After her grand jury testimony, the
State helped Tooney relocate for her safety and paid her travel expenses. Id.

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Patrick Fallie testified that he had known Petitioner since childhood. Id. Although Fallie
stated at trial that he did not know his whereabouts on October 13, 2005, he was impeached with
his grand jury testimony, wherein he stated that he witnessed the shooting. Id. According to his
grand jury testimony, on the night of the shooting, Fallie was in his car across the street from the
Parnell house waiting for two friends to purchase cigarettes from the house next to it (the “cigarette
house”). Id. Fallie stated he saw Duffy limp out of the Parnell house, followed by Petitioner and
another man, both holding guns. Id. Duffy was facing Petitioner, had his hands in front of his face
as if to block bullets, and said: “Don’t shoot, don’t shoot, it aint worth it, don’t kill me.” Id. at 538.
Fallie stated that Petitioner shot Duffy four or five times, then picked up a bag Duffy was carrying,
and ran. Id. Fallie further told the grand jury that he did not tell the police this information sooner
because he feared for his life. Id.
Chicago police officer Roberta Honeycutt testified that she was the first officer at the scene
after the shooting. See People v. Evans, No. 1-09-1389, 2011 WL 9692669, at *4 (Ill. App. Ct.
July 15, 2011). Duffy was still alive when she arrived. Id. An ambulance came shortly thereafter,
and Duffy was transported to a hospital. Id. Honeycutt stated there was no one other than Duffy
injured at the scene. Id.
Petitioner called one witness, Markina Polk, to testify. Id. Polk stated that, on the night of
the shooting, she and a friend (referred to as “Mike Mike”) went to the cigarette house to buy
cigarettes. Evans, 81 N.E.3d at 538. Polk saw Fallie, who she knew, sitting in a car across the
street. Id. As Polk approached the cigarette house, she saw Duffy on the lawn of the Parnell house
arguing with two men she did not know. Id. One of the men was armed. Id. One of the men pushed
Duffy, and the man with a gun then began shooting him. Id. According to Polk, neither of the two
men was Petitioner. Id. Once the shooting began, Polk ran into the cigarette house. Id. She stated

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she heard around five shots. Id. Polk testified that she attempted to contact police officers after she
heard that Petitioner had been arrested for the shooting. Id. She did not pursue the matter, however,
because she was afraid of the actual shooters. Id.
A jury found Petitioner guilty of murdering Duffy. Id. Petitioner was sentenced to 45 years’
imprisonment, and received an additional 20-year consecutive sentence for personally discharging
a firearm. Id.
On direct appeal, Petitioner argued: his Illinois right to a speedy trial was violated; the trial
court improperly admitted hearsay evidence; and the trial evidence was insufficient to support his
conviction. Evans, 2011 WL 9692669, at *6-9. The state appellate court denied all three claims.
Id. Petitioner filed a petition for leave to appeal (PLA) in the Illinois Supreme Court, asserting
only his speedy-trial claim. (Dkt. 7-1.) The state supreme court denied the PLA. People v. Evans,
962 N.E.2d 484 (Ill. 2011).
Petitioner filed a state post-conviction petition and then, after counsel was appointed, an
amended petition. Evans, 81 N.E.3d at 538. His amended post-conviction petition argued: (1) new
evidence—affidavits from Mike Miles and Tiara Murph and DNA evidence found in the Parnell
house—demonstrated Petitioner’s actual innocence; and (2) ineffective assistance of counsel for
failing to adequately investigate and present evidence of Petitioner’s innocence. Id. at 538-39.
Miles’s affidavit, similar to Polk’s testimony, stated: he drove Polk to the cigarette house; he was
in his car when he saw two men chase Duffy out of the Parnell house; one of the men, who Miles
recognized as “Gotta,” shot Duffy; neither of the two men was Petitioner; Miles did not contact
the police because he feared for his safety; and Miles would have testified for Petitioner at his trial
if he was asked to do so. Id. at 539.

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Murph stated in her affidavit that, as she was walking home, she saw two men chase Duffy
out of the Parnell house. Evans, 81 N.E.3d at 539. Upon hearing gunshots, she ran home. Id.
Murph’s grandmother moved Murph to Indiana for her safety. Id. She returned to Chicago
sometime later to learn that Petitioner had been convicted for Duffy’s murder. Id. Murph knew
Petitioner from the neighborhood and knew he was not one of the men who chased Duffy out of
the Parnell house. Id.
The DNA evidence consisted of swabs taken from two juice bottles found in the Parnell
house which did not match Petitioner’s DNA. (Dkt. 7-5, pg. 54-55.) The state trial court denied
Petitioner’s post-conviction claims on the merits. Id. at 539-40.2
In his post-conviction appeal, Petitioner argued: (1) he presented new, noncumulative
evidence (Miles’s and Murph’s affidavits) establishing his actual innocence and (2) his trial
attorney was ineffective for failing to reasonably investigate and call Miles as a witness. (Dkt. 75.) The state appellate court rejected both claims. Evans, 81 N.E.3d at 541-45. In his PLA to the
Illinois Supreme Court, Petitioner argued only his state-law actual innocence claim. (Dkt. 7-2.)
DISCUSSION
Petitioner’s § 2254 petition asserts four claims: (1) his constitutional speedy-trial right was
violated; (2) the evidence was insufficient to support his conviction; (3) new evidence—Murph’s
and Miles’s affidavits and DNA evidence—“made a substantial showing that Petitioner was
actually innocent,” and (4) ineffective assistance by both trial and appellate counsel—(a) trial
counsel allegedly “failed to investigate/present evidence discrediting the state’s theory of the
case,” “failed to explain sentencing consequences” with respect to a plea offer, and “failed to object

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Petitioner’s post-conviction petition was filed two days late. Though time-bar was one of the reasons the trial court
initially denied the petition, on reconsideration, the trial court determined that Petitioner was not culpably negligent
and vacated the part of its order dismissing the petition as untimely. Evans, 81 N.E.3d at 540. The State repeated its
time-bar argument in the appellate court, which rejected the argument. Id. at 540-41.

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to inadmissible evidence/improper argument,” and (b) appellate counsel failed to argue trial
counsel’s ineffective assistance and failed to challenge the “trial court ruling on Eischa Tooney”
(presumably with admission of her grand jury testimony into evidence). (Dkt. 1, pg. 5-6.)
Respondent argues that Petitioner’s claims are procedurally defaulted because he did not
exhaust state court remedies. Respondent, for the most part, is correct.
The Exhaustion Requirement and Procedural Default:
State prisoners seeking habeas corpus relief in federal court must “exhaust[ ] the remedies
available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). They must “give the state courts
a full and fair opportunity to resolve federal constitutional claims before those claims are presented
to the federal courts,” which is accomplished “by invoking one complete round of the State’s
established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). As the
Supreme Court explains, “[s]tate courts, like federal courts, are obliged to enforce federal law.
Comity thus dictates that when a prisoner alleges that his continued confinement for a state court
conviction violates federal law, the state courts should have the first opportunity to review this
claim and provide any necessary relief.” Id.
“To preserve a claim for federal collateral review, the petitioner must ‘fairly present’ it to
all levels of the state judiciary.” Lockheart v. Hulick, 443 F.3d 927, 929 (7th Cir. 2006). This
means that Illinois prisoners must give both the state appellate court and “the Illinois Supreme
Court the opportunity to resolve constitutional errors in the first instance.” Boerckel, 526 U.S. at
846; Lewis v. Sternes, 390 F.3d 1019, 1025-26 (7th Cir. 2004) (a prisoner must raise his
constitutional claim “at each and every level in the state court system, including levels at which
review is discretionary”).

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In this case, Petitioner asserted several claims in his direct appeal and post-conviction
pleadings. But the only claims he raised in his PLAs to the state supreme court were: (1) violation
of his Illinois right to a speedy trial; and (2) an Illinois claim of actual innocence based on new
evidence. (Dkts. 7-1, 7-2.) His § 2254 claims that the trial evidence was insufficient to support his
conviction and that his trial and appellate attorneys’ representation was constitutionally deficient
(Claims Two and Four) were not presented to the Illinois Supreme Court and thus are unexhausted.
See Boerckel, 526 U.S. at 846; Lewis, 390 F.3d at 1025-26; § 2254(b).
Petitioner’s Claim One (violation of his speedy trial right) is also unexhausted. As noted
above, Petitioner presented a state-law claim of a speedy-trial violation to the Illinois Supreme
Court. (Dkts. 7-1.) His PLA, however, did not present the federal nature of this claim to the state
supreme court. Id. A petitioner must “properly alert the [state courts] to the federal nature of [the]
claim.” Baldwin v. Reese, 541 U.S. 27, 30 (2004). Petitioner’s PLA on direct appeal stated that he
was “not argu[ing] that his constitutional right to a speedy trial was violated. . . . [T]he specific
issue on appeal is only whether [his Illinois] statutory right to a speedy trial was violated . . . [under
725 ILCS 5/]103-5(a).” (Dkt. 7-1, pg. 12.) While this Court can consider various factors when
addressing whether a federal claim was fairly presented to a state court, ultimately the Court’s
“‘task is to determine in practical terms whether the state courts were sufficiently alerted to the
nature of [the petitioner’s] federal constitutional claim’” Hicks v. Hepp, 871 F.3d 513, 531 (7th
Cir. 2017) (quoting White v. Gaetz, 588 F.3d 1135, 1139 (7th Cir. 2009). Where Petitioner
expressly explained to the Illinois Supreme Court that he was presenting only a state speedy-trial
claim, this Court concludes that a federal speedy-trial claim was not fairly presented.
As to Claim Three of Petitioner’s § 2254 petition (actual innocence), the claim exists only
under state law. Illinois’ Constitution allows a free-standing claim of actual innocence. People v.

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Washington, 665 N.E.2d 1330, 1337 (Ill. 1996) (“as a matter of Illinois constitutional
jurisprudence that a claim of newly discovered evidence showing a defendant to be actually
innocent of the crime for which he was convicted is cognizable”). Under the federal Constitution,
however, “‘actual innocence’ is not itself a . . . claim.” Herrera v. Collins, 506 U.S. 390, 404
(1993). “To date, an assertion of actual innocence based on evidence post-dating a conviction has
not been held to present a viable claim of constitutional error.” Arnold v. Dittmann, 901 F.3d 830,
837 (7th Cir. 2018); see also McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). Petitioner may have
asserted his actual innocence claim at each level of state court review, but the claim is not
cognizable in a federal habeas case. If this Court addressed this claim on the merits, it would be
reviewing a state law claim. “‘[F]ederal habeas corpus relief does not lie for errors of state law.’”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (quoted case omitted); see also § 2254(a) (federal
habeas relief is for “violation[s] of the Constitution or laws . . . of the United States”); Stanley v.
McCulloch, No. 15-CV-20-WMC, 2015 WL 412836, at *2 (W.D. Wis. Jan. 30, 2015) (federal
habeas courts do not serve as a “super state supreme court” to correct a state court’s erroneous
application of state law).
For the above, stated reasons, Petitioner’s § 2254 Claims One, Two, and Four are
unexhausted and procedurally defaulted. Claim Three does not present a valid ground for federal
habeas relief.
Petitioner Satisfies Neither Exception to Procedural Default:
A procedural default “may be excused when the petitioner shows both cause for the default
and actual prejudice, or shows that federal review is needed to prevent a fundamental miscarriage
of justice.” Tabb v. Christianson, 855 F.3d 757, 765 (7th Cir. 2017). To demonstrate cause, the
prisoner must “show that some objective factor external to the defense impeded [hi]s efforts to

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comply with the State’s procedural rule.” Davila v. Davis, 137 S. Ct. 2058, 2065 (2017). Petitioner
provides no reason, and the Court sees none, why he could not have raised his federal claims at
each level of state court review. He has not demonstrated cause for his default.
Nor has Petitioner demonstrated that a fundamental miscarriage of justice would result if
the Court does not review the merits of his claims. Although actual innocence is not a freestanding
§ 2254 claim, it can excuse a procedural bar to allow a federal court to review the merits of a
defaulted claim. Petitioner’s § 2254 pleadings do not assert actual innocence as a ground to excuse
procedural default. He never responded, nor was he directed to respond, to Respondent’s
procedural bar argument. The Court nonetheless notes that Murph’s and Miles’s affidavits and the
DNA evidence—the basis of his state actual innocence claim—do not satisfy the standard for the
fundamental miscarriage of justice exception even if Petitioner would have made the argument.
“The fundamental miscarriage of justice standard erects an extremely high bar for the
habeas petitioner to clear. It applies only in the rare case where the petitioner can prove that he is
actually innocent of the crime of which he has been convicted.” McDowell v. Lemke, 737 F.3d
476, 483 (7th Cir. 2013) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). It is reserved for the
“exceptional case” where “a constitutional violation has probably resulted in the conviction of one
who is actually innocent.” Schlup, 513 U.S. at 327. “To pass through the actual-innocence gateway
to a merits review . . ., [a] petitioner must have ‘new reliable evidence—whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence— that was not
presented at trial. . . and must persuade the district court that it is ‘more likely than not that no
reasonable juror would have convicted him in light of the new evidence.’” Jones v. Calloway, 842
F.3d 454, 461 (7th Cir. 2016) (quoting Schlup, 513 U.S. at 324, 327). “‘New evidence’ in this

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context does not mean ‘newly discovered evidence’; it just means evidence that was not presented
at trial.” Jones, 842 F.3d at 461 (citation omitted).
If a petitioner presents new, reliable evidence, the habeas court must then consider “‘all the
evidence,’ old and new, incriminating and exculpatory,” and make “a probabilistic determination
about what reasonable, properly instructed jurors would do.” House, 547 U.S. at 538. The
petitioner must establish that, more likely than not, no reasonable juror considering the newly
supplemented record would have found him guilty beyond a reasonable doubt. Id.
The Court notes that neither Petitioner nor Respondent submitted trial transcripts or
Murph’s and Miles’s affidavits with their § 2254 pleadings. Under Rule 5(c) of the Rules
Governing § 2254 Cases, Respondent is tasked with supplying the relevant parts of the transcripts
with its answer. As to the affidavits and new DNA evidence, that task appears to be Petitioner’s.
“A defendant who asserts actual innocence as a reason to excuse a procedural default must
demonstrate innocence; the burden is his, not the state's, for the state has the benefit of the jury’s
verdict.” Buie v. McAdory, 341 F.3d 623, 626-27 (7th Cir. 2003) (emphasis in original).
Nevertheless, the parties and the state court decisions sufficiently describe the trial evidence and
Petitioner’s new evidence such that this Court can determine that the new evidence does not
establish actual innocence to excuse his procedural default. See Thompson v. Battaglia, 458 F.3d
614, 617 (7th Cir. 2006) (although a § 2254 record with transcripts may be preferred, often claims
can be resolved without portions of the transcript); see also Hitchcock v. Jackson, No. 4:06-CV13551, 2008 WL 2544793, at **3, 8 (E.D. Mich. June 20, 2008) (district court was able to address
whether the fundamental miscarriage of justice exception applied without transcripts).
Miles’s affidavit states he drove Polk to the cigarette house next to the Parnell house and
was in his car at the time of the shooting. Evans, 81 N.E.3d at 539. Like Polk’s testimony, Miles

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states he saw Duffy limp from the Parnell house, followed by two men. Id. Miles recognized one
of the men as “Gutta.” He did not recognize the other man, who appeared to be six feet tall
(Petitioner is only five feet, five inches according to the Illinois Department of Corrections
website). Id.; see also (Dkt. 7-5, pg. 53-54.)
Murph stated in her affidavit that she was walking home when she saw two men chasing
after Duffy, who had limped out of the Parnell house. Id. The two men began shooting Duffy, at
which time Murph ran. Id. Murph’s grandmother moved her to Indiana for her safety. Id. She
stayed away for several years. When she returned, she learned that Petitioner, who she knew from
the neighborhood, had been convicted for Duffy’s murder. Id. She knew that she had not seen him
the night of the shooting, and decided to come forward at that time. Id.
The DNA evidence—test results from swabs taken from two juice containers in the Parnell
house—did not exclude Petitioner from the house, but rather, simply showed that others had been
there. (Dkt. 7-5, pg. 54-55.)
Had the evidence against Petitioner consisted only of eyewitness testimony from Patrick
Fallie, whether new evidence from two additional eyewitnesses satisfies the fundamental
miscarriage of justice exception may be a closer issue. But testimony from Eischa Tooney and
Tina Mosley indicated not only that Petitioner was at the Parnell house at the time of the shooting
but also that he admitted to being a part of the shooting. Tooney testified that she saw Petitioner,
along with three others, walk toward the Parnell house and, just after hearing gunshots soon after,
saw Petitioner and the three men running from the direction of the Parnell house. Evans, 81 N.E.3d
at 537. Tooney’s grand jury testimony, which was read into evidence, further stated that, about a
month after the shooting, she heard Petitioner admit to being “part of it.” Id.

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Tina Mosley, Duffy’s girlfriend, testified that Petitioner told her the day after the shooting
that he and Duffy were selling drugs to members of another gang when one of them pulled out a
gun, a fight ensured, and Duffy was shot. Evans, 81 N.E.3d at 537. According to Mosley’s
testimony, Petitioner told her that he shot one of the other gang members after Duffy was shot,
that he then ran from the scene, and that he later saw two men being placed in an ambulance. 3 Id.
Petitioner’s jury thus heard testimony that Petitioner admitted to two different people that
he was present when Duffy was shot. In addition to this evidence, Fallie testified that he saw
Petitioner shoot Duffy. Adding testimony from two eyewitnesses who would have stated, similar
to Markina Polk’s testimony, that they witnessed two men shoot Duffy and that neither man was
Petitioner is not evidence so compelling to demonstrate that no reasonable juror would have
convicted. See Coleman v. Lemke, 739 F.3d 342, 352-54 (7th Cir. 2014) (simply adding testimony
from two eyewitnesses that the petitioner was not at the scene of the shooting did not demonstrate
actual innocence when other evidence connected the petitioner to the crime).
As explained in Coleman, a court addressing a claim of actual innocence as an exception
to procedural default cannot assess new witness “statements in a vacuum. Rather, to evaluate their
impact on a hypothetical jury, we must consider them in tandem with the testimony of other
witnesses to [the] murder and any other evidence linking [the petitioner] to the crime.” Id. at 35253; see also Smith v. McKee, 598 F.3d 374, 388 (7th Cir. 2010) (“statements from two witnesses
not called at trial [an alibi witness and an eyewitness who stated the petitioner was not at the scene
of the shooting] . . . [did] not sufficiently counter the state’s two eye witness identifications and
the evidence of [the petitioner’s] self-inculpating statement” to officers). “To demonstrate

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Mosley’s testimony about Petitioner’s version of the shooting described above does not comport with testimony
from Officer Honeycutt, who stated that she was the first officer to arrive at the scene, where there was only one body.
Compare Evans, 2011 WL 9692669, at *4, with Evans, 81 N.E.3d at 537.

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innocence so convincingly that no reasonable jury could convict, a prisoner must have
documentary, biological (DNA), or other powerful evidence: perhaps some non-relative who
placed him out of the city, with credit card slips, photographs, and phone logs to back up the
claim.” Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (citing Schlup, 513 U.S. at 324).
Murph’s and Miles’s purported testimony, when considered with other witnesses’ testimony about
Petitioner not only being at the scene of the shooting but also being a part of it, does not establish
actual innocence. 4
Petitioner’s new evidence does not “make a convincing showing of actual innocence.”
Jones v. Calloway, 842 F.3d 454, 460-61 (7th Cir. 2016) (new evidence in the form of an affidavit
from the gunman stating the “he—and he alone—shot” the victim sufficed to establish the
petitioner’s actual innocence to excuse procedural default). Only where a petitioner “presents
evidence of innocence so strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional error,” should
the petitioner “be allowed to pass through the gateway and argue the merits of his underlying
claims.” Schlup, 513 U.S. at 316. Petitioner’s new evidence is not so strong that it “persuades th[is
] court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him
guilty beyond a reasonable doubt.” Id. at 329; Coleman, 739 F.3d at 354.
The Court thus concludes that Petitioner’s § 2254 claims are either procedurally defaulted
or non-cognizable for federal habeas review, and that Petitioner does not demonstrate, nor can he,
that an exception to procedural default applies to warrant review of his claims on the merits.
Accordingly, the Court dismisses Petitioner’s § 2254 petition.

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As to the DNA evidence, it demonstrated only that two other people had been in the Parnell house. This Court agrees
with the stat trial court, which found that “[s]uch evidence hardly supports Petitioner’s claim that he is actually
innocent.” (Dkt. 7-5, pg. 55.)

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Certificate of Appealability and Notice of Appeal Rights
Petitioner is advised that this is a final decision ending his case in this Court. If he wishes
to appeal, he must file a notice of appeal with this Court within thirty days of the entry of judgment.
See Fed. R. App. P. 4(a)(1). Petitioner need not bring a motion to reconsider this Court’s ruling to
preserve his appellate rights. However, if he wants the Court to reconsider its judgment, he may
file a motion under Federal Rule of Civil Procedure 59(e) or 60(b). A Rule 59(e) motion must be
filed within 28 days of the entry of this judgment. See Fed. R. Civ. P. 59(e). The time to file a
motion pursuant to Rule 59(e) cannot be extended. See Fed. R. Civ. P. 6(b)(2). A timely Rule 59(e)
motion suspends the deadline for filing an appeal until the Rule 59(e) motion is ruled upon. See
Fed. R. App. P. 4(a)(4)(A)(iv). A Rule 60(b) motion must be filed within a reasonable time and, if
seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than one year after entry of
the judgment or order. See Fed. R. Civ. P. 60(c)(1). The time to file a Rule 60(b) motion cannot be
extended. See Fed. R. Civ. P. 6(b)(2). A Rule 60(b) motion suspends the deadline for filing an
appeal until the motion is ruled upon only if the motion is filed within 28 days of the entry of
judgment. See Fed. R. App. P. 4(a)(4)(A)(vi).
The Court declines to issue a certificate of appealability. Petitioner cannot make a
substantial showing of the denial of a constitutional right, or that reasonable jurists would debate,
much less disagree, with this Court’s resolution of Petitioner’s claims. Arredondo v. Huibregtse,
542 F.3d 1155, 1165 (7th Cir. 2008) (citing 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 484 (2000); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)).
CONCLUSION
Petitioner’s habeas corpus petition (Dkt. 1) is denied. Any pending motion is also denied
as moot. The Court declines to issue a certificate of appealability. The Clerk is instructed to change

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the name of Respondent to Alex Jones, Acting Warden of Menard Correctional Center and enter
judgment in favor of Respondent and against Petitioner. Civil Case Terminated.

SO ORDERED.

ENTERED: March 26, 2020

______________________
HON. JORGE ALONSO
United States District Judge
.

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