Thompson v. Calloway

Filing 76

MEMORANDUM Opinion and Order Signed by the Honorable Steven C. Seeger on 1/8/2021. For the foregoing reasons, Petitioner Thompson's Motion for Leave to File an Amended Petition for Writ of Habeas Corpus and for Discovery (Dckt. No. 66 is hereby denied. Mailed notice. (jjr, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TARRANCE THOMPSON,

)
)
Petitioner,
)
)
v.
)
)
KIM LARSON, Warden,
)
Danville Correctional Center,
)
)
Respondent.
)
____________________________________)

Case No. 18-cv-4387
Hon. Steven C. Seeger

MEMORANDUM OPINION AND ORDER
Petitioner Tarrance Thompson received a 25-year sentence for armed robbery after
stealing $260. His appeal on direct review was unsuccessful, and so was his state collateral
challenge. In 2018, Thompson filed a petition for a writ of habeas corpus. Two and a half years
later, he requested leave to file an amended petition that advances new claims and new theories
based on new evidence. He seeks discovery, too.
Petitioner Thompson’s Motion for Leave to File an Amended Petition for Writ of Habeas
Corpus and for Discovery is hereby denied.
Background
This case involves an armed robbery in Chicago. In a nutshell, the state charged
Petitioner with robbing a drug dealer on May 1, 2012. See 2/26/13 Trial Tr., at SA0004, L17:18-23 (Dckt. No. 66-1, at 83 of 398) (“What the State says is true. Willie Hughes, their
alleged victim, is a drug dealer. He sells drugs on West Grenshaw where the officers had their
surveillance set up.”) (opening statement of defense counsel). The state alleged that Petitioner
took drug proceeds from the victim (Willie Hughes) by the use of force, or by threatening the

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imminent use of force, while he carried or was armed with a firearm. See 6/26/15 Order, People
of the State of Illinois v. Thompson, at ¶¶ 4, 14 (Dckt. No. 10-1).
At trial, two Chicago police officers took the stand. One officer testified that he saw
Petitioner exit a vehicle, walk down the block, and enter a vacant building. Id. at ¶ 5. About 30
seconds later, there was a flurry of activity. Individuals scattered from the area. Id. The officer
saw Petitioner exit the building with a chrome handgun in his right hand. Id.; see also 2/26/13
Trial Tr., at SA0008, L-30:14–15 (Dckt. No. 66-1, at 87 of 398) (“I could see in his right hand a
large chrome shinny [sic] handgun.”) (testimony of Officer Diblich). The officer watched
Petitioner get in a car and drive off. See 6/26/15 Order, People of the State of Illinois v.
Thompson, at ¶ 5 (Dckt. No. 10-1). The officer radioed for help. Id.
A second officer testified that he received the call about the gun, so he stopped
Petitioner’s vehicle and approached the car. Id. at ¶ 6. He then spotted a chrome-handled
handgun on Petitioner’s lap. Id. The two officers placed Petitioner under arrest and recovered a
loaded revolver. Id.
According to the officers, Willie Hughes (again, the victim) then arrived on the scene.
Id. at ¶ 7. He accused Petitioner of robbing him at gunpoint, taking $260. Id. An officer
searched Petitioner and, sure enough, found $260 in his right front pants pocket. Id.
But Hughes (an admitted heroin dealer) told a different story at trial. He testified that
Petitioner had no gun, and that he voluntarily gave Petitioner a brown paper bag. Id. at ¶¶ 9–10.
And Petitioner, according to Hughes, didn’t rob him at all. Instead, the two of them cooked up a
plan to fake a theft of $27,000 in drug money owned by the gang, and then split the proceeds. Id.
at ¶ 9. So it was all an inside job. He denied ever telling the police that he had been robbed. Id.
at ¶ 10.

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After Hughes changed his story, an Assistant State’s Attorney took the stand and testified
about what Hughes had said at the time of the arrest. Id. at ¶ 8. The prosecutor testified that
Hughes gave a voluntary, signed statement after the incident and accused Petitioner of robbing
him at gunpoint. Id. at ¶ 8; see also 5/2/12 Statement of Willie C. Hughes, at 2 (Dckt. No. 66-1,
at 372 of 398) (“Willie Hughes states that ‘Capone’ said to him ‘give it here.’ Willie Hughes
states that while Capone was still holding the gun, he took $260.00 that he was holding from his
left hand.”). So the prosecution established a prior inconsistent statement – the trial testimony by
Hughes was inconsistent with what he had told authorities right after the incident.
Petitioner took the stand in his own defense. See 6/26/15 Order, People of the State of
Illinois v. Thompson, at ¶ 12 (Dckt. No. 10-1). He testified that he received a phone call from
Hughes about fake-stealing drug proceeds. Id. The two of them cooked up a plan. They agreed
that Petitioner would arrive at the drug-dealing location, take drug money, meet Hughes a short
distance away, and then return the money (after keeping his share). Id.
The jury didn’t buy it. The jury found Petitioner guilty of armed robbery and of being an
armed habitual criminal. Id. at ¶ 14. The court ultimately sentenced him to 25 years for armed
robbery, and 20 years for the armed habitual criminal offense, to be served concurrently. Id.
He appealed. The Appellate Court of Illinois affirmed his conviction and sentences. See
6/26/15 Order, People of the State of Illinois v. Thompson, 2015 IL App (1st) 131366-U, as
modified on denial of reh’g (August 21, 2015) (Dckt. No. 10-1). The Supreme Court of Illinois
denied a petition for leave to appeal. See 11/25/15 Order, People of the State of Illinois v.
Thompson, 42 N.E.3d 374 (table) (Ill. 2015) (Dckt. No. 10-7).
Petitioner then pursued state collateral review by filing a pro se petition under the PostConviction Hearing Act on April 12, 2016. See 6/10/16 Order, People of the State of Illinois v.

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Thompson (Dckt. No. 10-9, at 33 of 41). One of the claims involved ineffective assistance of
counsel. Thompson faulted his attorney for failing to interview witnesses at the scene, including
three people – “Tall,” “Lord,” and “Boise” – who provided security for the drug sales. Id. at 8
(Dckt. No. 10-9, at 35 of 41) (“Petitioner asserts that counsel did not attempt to identify any of
the individuals present at the scene, who he identifies as Tall, Lord, and Boise.”). Thompson
offered an affidavit from Thomas Woods, who he claimed was “Lord.” See Woods Affidavit,
Am. Pet., Ex. F, at SA0224 (Dckt. No. 66-1, at 303 of 398) (“I go by the nickname of Lord.”) (he
was apparently in the Vice Lords). According to the affidavit, Woods saw Thompson carrying a
brown paper bag, but he saw no gun or aggressive behavior. Id. at ¶¶ 5–6, 8–9.
The trial court dismissed his post-conviction petition. See 6/10/16 Order, People of the
State of Illinois v. Thompson, at 1 (Dckt. No. 10-9, at 33 of 41). The trial court expressly found
the issue about the Woods affidavit to be “meritless.” Id. at 8 (Dckt. No. 10-9, at 35 of 41). At
the time of trial, Thompson knew the nicknames of the potential witnesses, but not their real
names. So counsel couldn’t be faulted for failing to interview witnesses because he didn’t know
who they were. Id. at 9 (“Petitioner’s claim is predicated on a causality dilemma – he could not
identify the witnesses without photographs, while counsel could not obtain their photographs
without first knowing their identities.”).
The trial court also concluded that the Woods testimony would not have changed the
outcome of the trial in light of the “credible and consistent” testimony of two officers. Id. “The
officers observed petitioner with a gun at the scene and in the vehicle he departed the scene in,
respectively. Furthermore, Officer Rojas recovered the gun from in between the seat and door
that was adjacent to petitioner, after petitioner’s vehicle was stopped.” Id.

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The Appellate Court of Illinois affirmed. See 12/15/17 Order, People of the State of
Illinois v. Thompson, 2017 WL IL App. (1st) 161998-U (Dec. 15, 2017) (Dckt. No. 10-8). The
Appellate Court concluded that the Woods testimony would not have made a difference because
it was cumulative of the testimony of Thompson and Hughes. Id. at ¶ 19 (“Woods’s testimony,
if presented at trial, would have been cumulative to that of Hughes and defendant, who each
testified that defendant did not possess a gun and did not rob Hughes.”). That “version of events
was rejected by the jury, who heard the testimony of the two Chicago police officers, each of
whom saw defendant with a gun.” Id. at ¶ 20.
For the second time, the Supreme Court of Illinois denied a petition for leave to appeal.
See 3/21/18 Order, People of the State of Illinois v. Thompson, 95 N.E.3d 509 (table) (Ill. 2018)
(Dckt. No. 10-12).
Thompson filed a habeas petition in federal court on June 25, 2018. See Pet. (Dckt. No.
1). The petition raised three grounds for relief: (1) the trial court gave an unwarranted
accomplice instruction; (2) his attorney was ineffective because he failed to investigate witnesses
at the scene; and (3) the trial court weighed the evidence and made factual findings in violation
of the Illinois Post-Conviction Hearing Act. Id. at 17, 32, 36.
Judge Aspen, this Court’s predecessor before reassignment, ruled that the first claim was
procedurally defaulted because Thompson did not raise it in state court. See 5/31/19 Order, at 7–
9 (Dckt. No. 16). Judge Aspen also ruled that the third claim was not cognizable on federal
habeas review because it involved an alleged violation of state law. Id. at 18–20.
But Judge Aspen parted ways with the state appellate court about the potential impact of
the Woods affidavit. “We do not share the appellate court’s confidence that Woods’ testimony,
if properly investigated and elicited at trial, would have made so little difference.” Id. at 11.

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“What transpired between Hughes and Petitioner, and whether Petitioner possessed a gun in their
interaction, are the essential questions behind Petitioner’s conviction.” Id. at 12. So Judge
Aspen ruled that corroborating evidence from Woods “‘cannot reasonably be described as
cumulative.’” Id. at 13 (quoting Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012)).
Judge Aspen ordered an evidentiary hearing on the ineffective assistance of counsel
claim, referred the hearing to Magistrate Judge Weisman, and appointed counsel to represent
Petitioner at the hearing. Id. at 20–21. After reassignment of the case from Judge Aspen, this
Court clarified the scope of that evidentiary hearing. See 6/3/20 Order (Dckt. No. 58).
On October 22, 2020 – almost 17 months after Judge Aspen ordered an evidentiary
hearing and appointed counsel – Thompson filed a motion for leave to amend the petition. The
amended petition includes six claims, addressing: (1) actual innocence; (2) ineffective assistance
of counsel; (3) providing the jury with a witness statement that was not in evidence; (4) the
accomplice jury instruction; (5) prosecutorial misconduct during closing argument; and
(6) cumulative failures. See generally Am. Pet. (Dckt. No. 66-1).
Five of the six claims are new, including the actual innocence claim. See Mtn., at 2
(Dckt. No. 66) (“The Amended Petition . . . brings five new claims . . . .”). The sixth claim,
ineffective assistance of counsel, did appear in the original petition. But the amended petition
seeks to expand the basis for the claim in three ways. He seeks to add allegations that his
counsel failed to (1) perform a forensic analysis of the gun (Am. Pet. ¶¶ 64–65); (2) gather phone
records (id. at ¶¶ 66–68); and (3) cross examine the police officers at trial with an arrest report
for Anthony Williams, the passenger in the car (id. at ¶¶ 87–90, 96–100). Those theories are in
addition to the theory in the original petition (which remains part of the amended petition) that
his counsel failed to investigate exculpatory eyewitnesses (id. at ¶¶ 79–86).

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The only issues before the Court at this juncture are whether to grant Petitioner leave to
amend his habeas petition, and whether to allow discovery.
Analysis
A federal court may grant habeas relief only if the petitioner demonstrates that he is in
custody “in violation of the Constitution or laws . . . of the United States.” 28 U.S.C. § 2254(a).
To “curb delays, to prevent ‘retrials’ on federal habeas, and to give effect to state convictions to
the extent possible under law,” Congress revised several statutes governing federal habeas relief
as part of the Anti-Terrorism and Effective Death Penalty Act. See Williams v. Taylor, 529 U.S.
362, 404 (2000).
“Congress enacted AEDPA to advance the finality of criminal convictions.” See Mayle
v. Felix, 545 U.S. 644, 662 (2005). “To that end, it adopted a tight time line, a one-year
limitation period ordinarily running from ‘the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.’” Id. at 662
(quoting 28 U.S.C. § 2244(d)(1)(A)); Duncan v. Walker, 533 U.S. 167, 179 (2001) (noting that
the one-year limitation period of the AEDPA “quite plainly serves the well-recognized interest in
the finality of state court judgments” and “reduces the potential for delay on the road to finality
by restricting the time that a prospective federal habeas petitioner has in which to seek federal
habeas review”).
Here, Petitioner seeks to raise new claims long after the expiration of the one-year
limitation period. He seeks to bypass the statute of limitations by passing through the actual
innocence gateway. On the record at hand, the actual innocence gateway is closed, and there is
no way around it.

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I.

Amending the Petition
Rule 15(a)(2) provides that district courts should “freely give leave” to amend a

complaint “when justice so requires.” See Fed. R. Civ. P. 15(a)(2). That rule equally applies to
habeas petitions. See Mayle, 545 U.S. at 655; Fed. R. Civ. P. 81(a)(4); Rule 12 of the Rules
Governing Section 2254 Cases in the United States District Courts (“The Federal Rules of Civil
Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules,
may be applied to a proceeding under these rules.”).
The decision to grant or deny a motion to amend a habeas petition “is a matter purely
within the sound discretion of the district court.” Aldridge v. Forest River, Inc. 635 F.3d 870,
875 (7th Cir. 2011). The text of the rule reflects a “liberal policy of amendment.” See Runnion
ex rel. Runnion v. Girl Scouts of Greater Chicago & Nw. Indiana, 786 F.3d 510, 521 (7th Cir.
2015).
But the Federal Rules do not require an anything-goes approach, either. “[D]istrict courts
have broad discretion to deny leave to amend where there is undue delay, bad faith, dilatory
motive, repeated failure to cure deficiencies, undue prejudice to defendants, or where the
amendment would be futile.” Arreola v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008). “Delay on
its own is usually not reason enough for a court to deny a motion to amend.” See Soltys v.
Costello, 520 F.3d 737, 743 (7th Cir. 2008). But “the longer the delay, the greater the
presumption against granting leave to amend.” See King v. Cooke, 26 F.3d 720, 723 (7th Cir.
1994) (citation omitted).
In the case at hand, justice does not require granting Petitioner leave to amend. An
amended petition would be futile. See Heng v. Heavner, Beyers & Mihlar, LLC, 849 F.3d 348,
354 (7th Cir. 2017) (“District courts have broad discretion to deny leave to amend where . . . the

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amendment would be futile.”). Petitioner waited years to bring his new claims, and they are now
time barred. Justice does not require an amendment because the claims aren’t viable anyway.
Petitioner tries to bring his untimely claims to the courthouse by walking through the
actual innocence gateway. See generally Schlup v. Delo, 513 U.S. 298, 324 (1995). But even if
the jury had heard the new evidence, it is unlikely that a reasonable jury would have acquitted
him. As a result, Petitioner cannot pass through the actual innocence gateway, so his new claims
remain time barred.
A.

The Untimely Claims

Petitioner waited too long to advance his new claims. The proposed amendment comes
late in the day, over two years after Petitioner filed the original petition, and over one year after
Judge Aspen’s Memorandum Opinion and Order. Amending the complaint would be futile
because the new claims would be time barred. Amending a complaint to add time-barred claims
would not advance the ball.
The Antiterrorism and Effective Death Penalty Act of 1996 provides that a “1-year period
of limitation shall apply to an application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court,” which usually runs from the “date on which the
judgment became final by the conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Time spent on state post-conviction
proceedings or other collateral review doesn’t count. See 28 U.S.C. § 2244(d)(2) (requiring
tolling for state collateral review).
Petitioner is attempting to raise new claims long after the expiration of the one-year
period. His judgment became final on February 23, 2016 (i.e., 90 days after the Illinois Supreme
Court denied leave to appeal on direct review, when the period for bringing a petition for a writ

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of certiorari before the U.S. Supreme Court expired). See 11/25/15 Order, People of the State of
Illinois v. Thompson (Dckt. No. 10-7); see also 28 U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler,
565 U.S. 134, 150 (2012). Then, 49 days passed before he sought state collateral review on
April 12, 2016, which temporarily stopped the clock. See 6/10/16 Order, People of the State of
Illinois v. Thompson (Dckt. No. 10-9, at 33 of 41). But the clock started ticking again when state
collateral review ended on March 21, 2018. See 3/21/18 Order, People of the State of Illinois v.
Thompson (Dckt. No. 10-12); see also Lawrence v. Florida, 549 U.S. 327, 337 (2007).
He filed a timely habeas petition in federal court on June 25, 2018. See Pet. (Dckt. No.
1). There is no dispute that the original petition was timely. But the clock continued to run
on any new claims, and the clock ran out when the one-year period ended on January 31, 2019
(that is, 49 days plus 316 days later equals one year, which fell on January 31, 2019).
Petitioner filed the amended petition on October 22, 2020, meaning 630 days after the
deadline of January 31, 2019. So the new claims from October 2020 are untimely (again, except
actual innocence) unless they relate back to the original (timely) petition filed in June 2018.
The filing of a federal habeas petition does not stop the clock for future claims unless the
new claims relate back to a timely petition. See Mayle, 545 U.S. at 655. To relate back, a
“common core of operative facts” must “unit[e] the original and newly asserted claims.” Id. at
659, 664. The new claim and the old claim must be similar in “time and type.” Id. at 650, 657;
see also Fed. R. Civ. P. 15(c)(1)(B) (“An amendment to a pleading relates back to the date of the
original pleading when . . . (B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out – or attempted to be set out – in the original
pleading.”). It is not enough if the new claim “stems from the habeas petitioner’s trial,

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conviction, or sentence,” because that approach would “obliterate[] the statute of limitations.”
Mayle, 545 U.S. at 656, 659.
The new claims in the amended petition do not relate back to the old claims in the
original petition. Most of the claims in the amended petition are entirely new, with no foothold
in the original petition. The untimely claims do not share a common core of facts with the timely
claims.
The amended petition includes claims about providing the jury with a witness statement
that was not in evidence (claim 3), prosecutorial misconduct (claim 5), and the cumulative
failures (claim 6). They did not appear in the original petition, and they did not arise out of the
same conduct, transaction, or occurrence. They advance new arguments based on new facts, so
they appeared too late in the day. Adding them now would simply tee them up for dismissal
later on statute-of-limitations grounds.
The claim about the jury instruction (claim 4) did have a foothold in the original habeas
petition. See Pet. at A-2 (Dckt. No. 1, at 17 of 91). But once again, that claim is about a failure
to comply with state law. For that reason, as Judge Aspen previously ruled, it is not grounds for
a federal habeas petition. See 5/31/19 Order, at 7–9 (Dckt. No. 16). So even if relation back
applies, it would be futile to add a claim that is defective on the merits.
At first blush, the best candidate for relation back is the ineffective assistance of counsel
claim (claim 2). Petitioner raised ineffective assistance of counsel in his original, timely petition.
See Pet., at A-17 (Dckt. No. 1, at 32 of 91).
But the theory was completely different. Petitioner alleged in his original petition that his
lawyer did not interview witnesses at the scene. Id. at A-17 to A-21 (Dckt. No. 1, at 32–36 of
91). In the amended petition, Petitioner alleges that his lawyer should have performed forensic

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tests on the gun, presented phone records, and used an arrest record to impeach police officers on
the stand. See Am. Pet., at ¶¶ 76–102. None of those theories has anything to do with
interviewing witnesses at the scene of the crime.
The theories of ineffectiveness are entirely new, so the new untimely claims cannot fit
inside the old timely petition. See Jackson v. United States, 2020 WL 4261742, at *2 (S.D. Ind.
2020) (“Mr. Jackson’s new claim does not relate back to any of the claims asserted in Mr.
Jackson’s original § 2255 motion. Although he presented several arguments of ineffective
assistance of counsel, raising ineffective assistance of counsel in both the original § 2255 and
amended § 2255 motion, standing alone, is not sufficient to show relation back.”); United States
v. Griffin, 2010 WL 1780337, at *4 (N.D. Ill. 2010) (holding that a new, untimely claim of
ineffective assistance of counsel did not relate back to the original claim); United States v.
Gonzalez, 592 F.3d 675, 680 (5th Cir. 2009) (“New claims of ineffective assistance of counsel
do not automatically relate back to prior ineffective assistance claims simply because they
violate the same constitutional provision.”); United States v. Ciampi, 419 F.3d 20, 24 (1st Cir.
2005) (same).
In sum, the claims are barred by the one-year limitations period. Unless there is a way
around it (through the gateway of actual innocence), the claims are untimely, so an amendment
would be futile. There is no point in amending a complaint to add time-barred claims.
B.

The Actual Innocence Gateway

Petitioner is attempting to raise time-barred claims, but that is not the end of the matter.
A showing of actual innocence can provide a path around the bar. See McQuiggin v. Perkins,
569 U.S. 383, 386 (2013) (“[A]ctual innocence, if proved, serves as a gateway through which a

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petitioner may pass whether the impediment is a procedural bar . . . or . . . expiration of the
statute of limitations.”).
An inmate can overcome the statute of limitations by “showing that the federal court’s
failure to address his claim on the merits would work a fundamental miscarriage of justice.”
Jones v. Calloway, 842 F.3d 454, 461 (7th Cir. 2016); see also House v. Bell, 547 U.S. 518, 536
(2006); McQuiggin, 569 U.S. at 386 (extending the actual innocence framework for procedural
defaults to a failure to comply with the statute of limitations) (“We hold that actual innocence, if
proved, serves as a gateway through which a petitioner may pass whether the impediment is a
procedural bar, as it was in Schlup and House, or, as in this case, expiration of the statute of
limitations.”).
The miscarriage-of-justice exception “requires the petitioner to make a convincing
showing of actual innocence.” Jones, 842 F.3d at 461; see also McQuiggin, 569 U.S. at 394–99
(explaining the “miscarriage of justice exception to AEDPA’s statute of limitations”). “To pass
through the actual-innocence gateway,” the 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.’” Jones, 842 F.3d at 461 (quoting Schlup,
513 U.S. at 324).
To prevail on an actual innocence claim, a petitioner has the burden to “show that it is
more likely than not that no reasonable juror would have convicted him in the light of the new
evidence.” See Schlup, 513 U.S. at 327. That is, a petitioner “does not meet the threshold
requirement unless he persuades the district 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.

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“The actual innocence gateway of Schlup demands more than a possible inference that
might lead a juror to acquit.” Gladney v. Pollard, 799 F.3d 889, 899 (7th Cir. 2015). To meet
this “heavy burden,” a petitioner “must show it is likely that no reasonable juror would have
convicted.” Id. (emphasis in original).
A gateway actual innocence claim requires new evidence, meaning evidence that was not
presented at trial. Id. at 896. But it does not have to be newly discovered evidence. Any new
evidence will do. See id. at 898; see also Gomez v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)
(“All Schlup requires is that the new evidence is reliable and that it was not presented at trial.”).
This Court must “consider all the evidence, old and new, and based on this total record,
make a ‘probabilistic determination about what reasonable, properly instructed jurors would
do.’” Coleman v. Hardy, 628 F.3d 314, 319 (7th Cir. 2010) (quoting House, 547 U.S. at 538).
“It is not the court’s role to determine independently what the petitioner likely did or did not do;
rather, its task is to assess the likely impact of the new evidence on reasonable jurors.” Arnold v.
Dittmann, 901 F.3d 830, 837 (7th Cir. 2018); see also Hayes v. Battaglia, 403 F.3d 935, 940 (7th
Cir. 2005) (Flaum, J., concurring) (“Unlike a review of the sufficiency of the evidence which
focuses on whether a rational juror could have convicted, a habeas court considering actual
innocence . . . determin[es] whether rational jurors would have convicted.”) (emphasis in
original). The question is “how reasonable jurors would react to the overall, newly
supplemented record.” House, 547 U.S. at 538.
The standard is high, and the climb is steep. A “substantial claim that constitutional error
has caused the conviction of an innocent person is extremely rare,” and “claims of actual
innocence are rarely successful.” Schlup, 513 U.S. at 324; see also id. at 321–22 (confirming
that the fundamental miscarriage of justice exception applies only in an “extraordinary case”);

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House, 547 U.S. at 538 (emphasizing that the Schlup standard is “demanding” and permits
review only in an “extraordinary” case); McQuiggin, 569 U.S. at 386 (reiterating that “tenable
actual-innocence gateway pleas are rare,” and that the standard is “demanding” and “seldom
met”); Gladney, 799 F.3d at 896 (“The actual innocence gateway is narrow.”). The selection of
adjectives and adverbs – “extremely rare,” “rarely successful,” “demanding,” “extraordinary,”
“narrow,” and so on – underscores the difficulty of crossing the actual innocence threshold.
But the burden for a gateway actual innocence claim is not as heavy as the standard for a
substantive claim of actual innocence. “In a substantive actual-innocence claim, the petitioner’s
new evidence must be strong enough to convince the court that his sentence is constitutionally
intolerable ‘even if his conviction was the product of a fair trial.’” Jones v. Calloway, 842 F.3d
454, 462 (7th Cir. 2016) (quoting Schlup, 513 U.S. at 316) (emphasis in original). But in a
procedural (or “gateway”) actual innocence claim, the new evidence “need only establish
sufficient doubt about his guilt to justify a conclusion that his sentence is a miscarriage of justice
‘unless his conviction was the product of a fair trial.’” Id. (quoting Schlup, 513 U.S. at 316)
(emphasis in original).
Petitioner advances a gateway actual innocence claim (not a stand-alone actual innocence
claim) in claim 1 of the amended petition. See Am. Pet., at ¶ 57 (Dckt. No. 66-1, at 33 of 398)
(alleging that “procedural bars” do not stand in the way because it would be a “fundamental
miscarriage of justice for Mr. Thompson to remain incarcerated” because he “is actually innocent
of the offenses”). He brings an actual innocence claim to “open the gate” for the procedurally
barred claims. Id.

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The gate is closed. Even assuming the truth of the well-pleaded allegations, Petitioner
has not stated an actual innocence claim within the meaning of Schlup. The new evidence would
not lead a reasonable jury to an acquittal.
Petitioner rests his actual innocence claim on four pieces of evidence that were not
presented at trial. Specifically, Petitioner rests on: (1) forensic evidence from the gun; (2) phone
records; (3) an arrest report for Anthony Williams, the person who drove Petitioner to the scene;
and (4) the testimony of Thomas Woods, an eyewitness. Two of the four pieces of evidence –
the forensic tests of the gun, and the phone records – do not yet exist.
Stacking these four pieces of evidence on top of the evidence presented at trial would not
make reasonable jurors more likely than not to switch their verdict from guilty to not guilty.
See generally Gomez, 350 F.3d at 680–81 (evaluating the record and explaining why the “new
evidence does not prove Gomez’s theory of innocence”). A reasonable jury likely would have
found Petitioner guilty anyway. The scales do not budge.
The first piece of evidence is a forensic analysis of the gun. See Am. Pet. ¶ 58 (Dckt. No.
66-1). No forensic analysis ever took place. Instead, Petitioner believes that an analysis would
show that his fingerprints aren’t on the gun. Id.
The absence of a fingerprint in 2021 does not necessarily mean that Petitioner did not
possess the gun in 2012. Perhaps he possessed the gun without leaving a detectable fingerprint.
A person can walk without making footprints, and can hold something without leaving
fingerprints. It depends on the object – not all surfaces are amenable to detectable fingerprints.
A person does not necessarily leave fingerprints on everything that they hold. Or perhaps there
was a fingerprint at the time of trial, but is no longer there today. The lack of a fingerprint does
not mean that he never held the gun. A fingerprint is not a sine qua non of possession.

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Suppose a forensic analysis of the gun takes place. And imagine that the analysis finds
no fingerprint on the weapon. The lack of a print would not advance the ball across the acquittal
goal line. The absence of a fingerprint might support a possible inference that Petitioner did not
possess the gun. But it would not compel the necessary inference that Petitioner did not possess
the gun. See Gladney, 799 F.3d at 899 (“That is a possible inference but by no means a required
one. The actual innocence gateway of Schlup demands more than a possible inference that might
lead a juror to acquit.”).
Thompson also overlooks the fact that two police officers testified that they saw
Petitioner with a gun. See 6/26/15 Order, People of the State of Illinois v. Thompson, at ¶¶ 5–6
(Dckt. No. 10-1). A reasonable jury could believe that testimony, even if a forensic analysis
revealed no fingerprints. See United States v. Thomas, 597 F. App’x. 882, 885 (7th Cir. 2015)
(affirming a conviction for drug trafficking despite the lack of forensic evidence) (“[T]he
government never relied on forensic evidence to tie Thomas to the scenes of the crimes or to the
drugs. The fingerprint expert acknowledged that identifiable prints had not been found on the
plastic bags.

. . . [T]he absence of Thomas’s DNA on the bags would not definitively show

that he never touched them . . . .”).
Even if the forensic analysis took place and revealed no fingerprints, it is unlikely that a
reasonable jury would have changed its verdict. The testimony from two police officers was
more than enough to support the verdict. See Hayes, 403 F.3d at 938 (“[I]t is black letter law
that testimony of a single eyewitness suffices for conviction even if 20 bishops testify that the
eyewitness is a liar.”). There is no reason to think that a reasonable jury would have changed its
mind and acquitted Petitioner based on the absence of fingerprints.

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The second piece of new evidence is phone records. See Am. Pet. ¶ 58 (Dckt. No. 66-1).
Petitioner did not present those records at trial. But he believes that they would show that he
spoke with the alleged victim (Willie Hughes) on the day of the alleged crime.
The phone records are borderline-new evidence, at best. Both Petitioner and Hughes
testified that they spoke on the phone that day. See Trial Tr., Am. Pet., at SA0063–64 (Dckt. No.
66-1, at 142–43 of 398); id. at SA0143–144 (Dckt. No. 66-1, at 222–23 of 398). The state did
not contest it. So the evidence is new only in the sense that the phone records would back up
part of their testimony. It would corroborate a story that the jury already heard.
It is unlikely that the phone records would have changed the minds of any of the jurors.
Suppose the phone records showed a phone call. That is neither here nor there. Robberies don’t
always involve strangers. People sometimes rob people they know. Petitioner could have
spoken with Hughes on the telephone, and then robbed him later that day. A conversation is not
inconsistent with a robbery.
Plus, the call could have facilitated the robbery somehow. Perhaps the victim told
Petitioner where he was, or revealed that he was loaded with cash. A phone call between a
criminal defendant and a victim is not particularly exculpatory. If anything, it is the type of
evidence that prosecutors often present.
The existence of a phone call is especially un-illuminating in this particular case. All
parties – the state, and the Petitioner – acknowledge that Petitioner and Hughes (the victim)
knew each other. The state presented evidence that Petitioner met with Hughes, and then robbed
him. The Petitioner presented evidence that he met with Hughes and planned a fake robbery. A
phone call does not tilt the scales in favor of either side very far. And it certainly does not add so
much heft to the scales that the verdict would have been one-sided.

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The third piece of evidence is an arrest report for Anthony Williams, who drove
Petitioner to the location of the victim (again, Willie Hughes). Petitioner claims that the arrest
report “indicates that Mr. Williams, and not Mr. Thompson, possessed the gun.” See Mtn., at
¶ 11 (Dckt. No. 66). But the two facts – possession by Petitioner, and possession by Williams –
are not mutually exclusive. Petitioner could have possessed a gun that was later recovered from
Williams. At best, the arrest report would create grounds for impeachment of one of the
testifying officers. Even so, it was unlikely to change any minds.
More importantly, Petitioner overstates the content of the Williams arrest report. The
Amended Petition repeatedly claims that the Williams arrest report states that Williams – and not
Petitioner – possessed the gun. See, e.g., Am. Pet., at ¶ 9 (referring to “police reports indicating
that the gun the arresting officers allegedly recovered from Mr. Thompson was recovered from
Mr. Williams that night”); id. at ¶ 35 (“Mr. Williams’ arrest report states that he was armed with
a handgun.”); id. at ¶ 41 (“Mr. Williams’ arrest report indicated that the gun had been recovered
from Mr. Williams.”); id. at ¶ 42 (“Trial counsel did not confront Officer Diblich with Mr.
Williams’ police report, which Officer Diblich had authored and attested to, and which identified
Mr. Williams as the man who possessed the gun.”); id. at ¶ 58 (“That report indicates that the
gun was recovered from Mr. Williams.”).
The Williams arrest report says no such thing. It does not say that Williams possessed
the gun, and Petitioner did not. It simply says that the police recovered a weapon in connection
with the arrest of Williams. The recovery of a weapon during an arrest of Williams is not
inconsistent with possession by Petitioner, especially when they were arrested in the same car at
the same time.

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The Williams arrest report does not foreclose the finding that Petitioner possessed the
weapon. It is true that the arrest report for Williams stated: “Weapon recovered.” See Williams
Arrest Report, Am. Pet., Ex. H, at SA0235 (Dckt. No. 66-1, at 314 of 398). But so does the
arrest report for Thompson, the Petitioner: “Weapon recovered . . . . Weapon recovered was a
Smith and Wesson, .357 Magnum[.]” See Thompson Arrest Report, Am. Pet., Ex. G, at SA0229
(Dckt. No. 66-1, at 308 of 398).
Those descriptions are consistent with the first page of each arrest report. The report for
Williams says “ARMED WITH Handgun,” but so does the report for Petitioner. Compare
Williams Arrest Report, Am. Pet., Ex. H, at SA0233 (Dckt. No. 66-1, at 312 of 398) (“ARMED
WITH Handgun”) (emphasis and all caps in original) with Thompson Arrest Report, Am. Pet.,
Ex. G, at SA0227 (Dckt. No. 66-1, at 306 of 398) (“ARMED WITH Handgun”) (same).
If anything, the description in the Petitioner’s arrest report is more detailed than the
description in Williams’s arrest report. Both arrest reports included the same inventory number.
Compare Williams Arrest Report, Am. Pet., Ex. H, at SA0235 (Dckt. No. 66-1, at 314 of 398)
(“Weapon recovered and inventoried under inventory #12601708.”) with Thompson Arrest
Report, Am. Pet., Ex. G, at SA0229 (Dckt. No. 66-1, at 308 of 398) (same). But Petitioner’s
arrest report described the weapon, and included the serial number: “Weapon recovered was a
Smith and Wesson, .357 Magnum, Serial number N595636, .357 Caliber, 4” barrel, Chorme [sic]
finish.” See Thompson Arrest Report, Am. Pet., Ex. G, at SA0229 (Dckt. No. 66-1, at 308 of
398).
Maybe reading the two arrest reports together would create ambiguity about who
possessed the gun (if not both of them). See Am. Pet., at ¶ 70 (arguing that “the arrest report
indicates that there was at the very least some uncertainty among the arresting officers about who

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possessed the gun”). But a reasonable juror could have and would have credited the notion that
Petitioner possessed the Smith and Wesson firearm, even if the Williams arrest report refers to a
weapon, too.
Again, two police officers testified that they witnessed Petitioner possessing a gun. One
officer saw Petitioner hold the gun while walking, and the other officer saw Petitioner with a gun
in his lap in the car. See 6/26/15 Order, People of the State of Illinois v. Thompson, at ¶¶ 5–6
(Dckt. No. 10-1); see also Trial Tr., Am. Pet., at SA0007, L-29:20-22 (Dckt. No. 66-1, at 86 of
398) (“I could see in his right hand he had a large chrome handgun . . . .”); id. at SA0008, L30:14-15 (Dckt. No. 66-1, at 87 of 398) (“I could see in his right hand a large chrome shinny
[sic] handgun.”); id. at SA0012, L-34:5-14 (Dckt. No. 66-1, at 91 of 398) (“And then Officer
Rojas showed me a large chrome-colored or chrome revolver, a handgun . . . . That was the
same handgun that I saw the defendant holding in his right hand . . . .”); id. at SA0038, L-73:1014 (Dckt. No. 66-1, at 117 of 398) (“I actually observed a chrome handgun in his lap. Then [he]
saw me, put the handgun, moved it right to the side of [the] passenger’s door, between the door
and the seat, and then put his hands out.”); id. at SA0039, at L-74:11-13 (Dckt. No. 66-1, at 118
of 398) (“Mr. Thompson actually grabbed the handgun and placed it on the side towards the door
and the passenger side seat.”).
The incident report also reflect the fact that Petitioner possessed a gun. “OBSERVED
OFFENDER THOMPSON, TARRENCE SIDE STEPPING EAST BOUND, FACING NORTH
WHILE HOLDING A LARGE CHROME REVOLVER[.]” See Incident Report, Am. Pet., Ex.
K, at SA0254 (Dckt. No. 66-1, at 333 of 398) (all caps in original).
At best, the Williams arrest report establishes that the police recovered a handgun in
connection with his arrest. Petitioner’s arrest report says the same thing. The ambiguous-at-best

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arrest reports would not compel a reasonable juror to conclude that Williams possessed a gun but
Petitioner did not. The reference to a firearm in both police reports would not lead a reasonable
jury to conclude that Petitioner was unarmed.
The final piece of evidence is the testimony of Thomas Woods, an alleged eyewitness.
See Woods Affidavit, Am. Pet., Ex. F, at SA0224 (Dckt. No. 66-1, at 303 of 398). Woods, also
known as “Lord,” was “working security for a drug operation on the west side of Chicago” on
the day of the alleged robbery. Id. at ¶ 3. The victim, Willie Hughes (“C-Dog”), did the “handto-hand drug transactions,” and Woods made sure that “C-Dog was not robbed of any drugs or
proceeds by anyone during his shift.” Id. at ¶¶ 3–4.
Woods saw the Petitioner (“Capone”) enter the apartment building and approach Hughes.
Id. at ¶ 5. Hughes “freely” handed Petitioner a large paper bag, and Petitioner then left. Id. at
¶¶ 5, 7. Woods did not see a gun or any aggressive behavior. Id. at ¶ 6. Hughes “appeared
nervous,” but “didn’t mention anything being wrong,” and then went outside. Id. at ¶ 7. Woods
is “positive” that Petitioner was only carrying the paper bag. Id. at ¶ 8.
Unlike the other three arguments about ineffective assistance of counsel, the argument
about the Woods affidavit did appear in the timely habeas petition. See Pet., at A-17 to A-21
(Dckt. No. 1, at 32–36 of 91). Petitioner faulted his counsel for failing to attempt to identify
witnesses on the scene (“Tall,” “Lord,” and “Boise”). Id. at A-17. He also attached a copy of
the Woods affidavit, which stated that Woods “did not observe Thompson carrying a gun.” Id. at
A-18.
So the argument about the Woods affidavit – unlike the other three arguments about
ineffective assistance of counsel – is not time barred. Petitioner raised it in a timely manner in
his original petition. The amended petition seeks to raise an argument that he already raised.

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See Am. Pet., at ¶ 77 (Dckt. No. 66-1, at 44 of 398) (“Mr. Thompson’s amended claim for
ineffective assistance of counsel includes the existing ground from his original pro se petition
(trial counsel’s failure to investigate occurrence witnesses, including Thomas Woods, which was
itself sufficient to entitle Mr. Thompson to an evidentiary hearing) . . . .”); id. at ¶ 83 (“[T]rial
counsel’s failure to investigate exculpatory witnesses, including Thomas Woods, was
unreasonable and unwarranted.”). There is no apparent need to amend the petition to add the
argument about the Woods affidavit because it is already part of the ineffective assistance of
counsel claim.
But the argument about Woods is new in one respect. The amended petition includes the
Woods affidavit in the ineffective assistance of counsel claim (claim 2) and in the gateway actual
innocence claim (claim 1). Id. at ¶¶ 59, 72–73. So Petitioner presses the Woods affidavit into
double-duty. It is a basis for the ineffectiveness of counsel claim, and the actual innocence
claim.
As Judge Aspen previously ordered, Magistrate Judge Weisman will preside over an
evidentiary hearing on the ineffectiveness of counsel claim. That hearing will explore whether
Petitioner suffered any prejudice from his counsel’s failure to investigate possible witnesses and
present testimony from Woods (and others). To some degree, that inquiry overlaps with the
actual innocence inquiry – that is, whether it is more likely than not that no reasonable juror
would have convicted Petitioner after hearing the new evidence. The standard is different, but
both inquiries evaluate how much punch the Woods testimony would have packed (if any).
To avoid stepping on toes, this Court will defer a decision on whether the Woods
affidavit would satisfy the standards for a gateway actual innocence claim. The Court can take

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up that issue after Magistrate Judge Weisman hears the evidence, gathers the facts, and evaluates
the credibility of Woods.
But the other three pieces of evidence do not get Petitioner through the actual innocence
gateway. Overall, the new evidence does not add very much heft to Petitioner’s defense. Even
assuming the truth of the well-pleaded allegations, Petitioner has not stated an actual innocence
claim. Even if (1) there were no fingerprints on the gun; (2) phone records showed that
Petitioner spoke on the phone with Hughes; and (3) the police were impeached with the Williams
police report, Petitioner would not be entitled to habeas relief.
Maybe the new evidence would have added bricks to a wall. But it does not seem like a
very large or formidable wall.
The Court also views the new evidence in light of the record as a whole from trial. As
the state appellate court found, “the evidence in this case was not closely balanced.” See 6/26/15
Order, People of the State of Illinois v. Thompson, at ¶ 23 (Dckt. No. 10-1). Two police officers
testified that they witnessed Petitioner with a firearm. Id. Hughes then arrived at the scene and
accused Petitioner of stealing $260. Id. The police then found $260 in his pocket. Id. “In
contrast to the officers’ credible testimony, Hughes’ trial testimony was incredible and
contradicted portions of defendant’s testimony, which also lacked credibility.” Id. at ¶ 24.
The state court found “overwhelming evidence of defendant’s guilt.” Id.
In light of the evidence as a whole, old and new, Petitioner has not shown that it is “more
likely than not that no reasonable juror would find him guilty beyond a reasonable doubt.”
House, 547 U.S. at 538. A reasonable jury would have convicted Petitioner after hearing the
new evidence. See Gladney, 799 F.3d at 900. And “[w]ithout a strong showing of actual
innocence required by Schlup,” Petitioner’s claims remain barred by the statute of limitations.

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Id. He “cannot use the actual innocence gateway to overcome the statute of limitations in this
case.” Lund v. United States, 913 F.3d 665, 670 (7th Cir. 2019).
II.

Discovery
Petitioner’s request for discovery is hereby denied. “As a general rule, federal habeas

petitions must be decided on state court records.” Tabb v. Christianson, 855 F.3d 757, 763 (7th
Cir. 2017). “A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904 (1997).
Rule 6(a) of the Rules Governing § 2254 Cases provides that a district court may allow
discovery for “good cause.” “Good cause” exists when “specific allegations before the court
show reason to believe that the petitioner may, if the facts are fully developed, be able to
demonstrate that he is . . . entitled to relief . . . .” Bracy, 520 U.S. at 908–09 (quoting Harris v.
Nelson, 394 U.S. 286, 300 (1969)); see also Tabb v. Christianson, 855 F.3d 757, 763 (7th Cir.
2017) (“To obtain discovery, the federal petitioner must ‘(1) make a colorable claim showing
that the underlying facts, if proven, constitute a constitutional violation; and (2) show ‘good
cause’ for the discovery.”) (citation omitted).
“Where specific allegations convince the court that a habeas petitioner will be entitled to
relief if the facts are fully developed, the court has a duty to provide ‘the necessary facilities and
procedures for an adequate inquiry.’” Dyer v. United States, 2020 WL 1276555, at *7 (E.D.
Wis. 2020) (quoting Bracy, 520 U.S. at 908–09). But the factual allegations “must not be
speculative or conclusory because discovery is not intended to be a fishing expedition.”
Higgason v. Lemmon, 6 F. App’x. 433, 436 (7th Cir. 2001).
Petitioner has not shown good cause for discovery. The claims are time barred, so
discovery in support of untimely claims would not move the ball forward.

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The actual innocence claim is not time barred. But it is a gateway actual innocence
claim. And for the reasons stated above, it does not provide a path for the untimely claims.
Petitioner does not seek discovery to support a stand-alone actual innocence claim,
meaning a claim in which innocence itself is the grounds for habeas relief. The Seventh Circuit
has recognized no such claim. A claim of innocence, without more, is not enough. “Claims of
actual innocence based on newly discovered evidence have never been held to state a ground for
federal habeas relief absent an independent constitutional violation occurring in the underlying
state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993); see also Arnold, 901
F.3d at 837 (“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.”) (citation omitted);
Tabb, 855 F.3d at 763; Moore v. Dempsey, 261 U.S. 86, 87–88 (1923) (Holmes, J.) (“[W]hat we
have to deal with [on habeas review] is not the petitioners’ innocence or guilt but solely the
question whether their constitutional rights have been preserved.”).
Conclusion
For the reasons stated above, Petitioner’s motion is hereby denied.

Date: January 8, 2021
Steven C. Seeger
United States District Judge

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