United States District Court, N.D. Illinois
April 26, 2004.
UNITED STATES OF AMERICA, ex rel BRIAN DANIELS, a/k/a BRIAN TRIPLETT, Plaintiff,
EUGENE McADORY, Defendant
The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Brian Daniels; a/k/a Brian Triplett, ("Daniels") was convicted for the
Christmas Eve 1981 murder of Edward Knight, Daniels' conviction was based
on eyewitness testimony of a then ten year old boy, Caston Rollins,
Rollins testified he saw Daniels directing a group of six boys breaking
into Knight's house. Almost 20 years later, Daniels filed a state
petition for post-conviction relief because Rollins recanted his trial
testimony, Rollins attested that he never saw Daniels in front of
Knight's house, Daniel's state post-conviction appeals having been
denied, he petitions for a writ of habeas corpus pursuant to
28 U.S.C. § 2254,
After a state bench trial in 1984, Daniels was convicted of three
counts of murder, burglary and home invasion. He was sentenced to 30
years in prison for the murders and 25 years for the home invasion, to be
served consecutively. Pet at 2; Pet, Ex. 7 at 2. The Illinois Appellate
Court affirmed his conviction for the murder of Edward Knight, reversed
and vacated two other murder convictions and remanded the case to the
trial court for clarification of the mittimus as to the consecutive
nature of the murder sentence. Id. The record does not indicate what
occurred in subsequent proceedings. In any case, Daniels did not seek leave to
appeal to the Illinois Supreme Court.
Daniels filed for state post-conviction relief on October 27, 1999.*fn1
After an evidentiary hearing, the trial court denied Daniels'
post-conviction petition. The Illinois Appellate Court affirmed-Pet, Ex.
7, The Illinois Supreme Court denied leave to appeal. Pet. Ex. 8. Daniels
filed this petition for writ of habeas corpus approximately one year
later, on February 4, 2004, He alleges he is entitled to relief because;
(1) his conviction was based on the perjured testimony of a 12 year old
boy; (2) the state improperly failed to turn over impeachment evidence
against the key witness; (3) trial counsel's failed to call alibi
witnesses in violation of his Sixth Amendment right to effective
assistance of counsel; and, (4) the cumulative effect of the se trial
errors violated Daniel's right to due process, In lieu of answering
Daniels' petition on the merits, the state moves to dismiss the petition
Daniels' petition depends on credibility assessments. The crucial issue
is whether the recantation testimony of the state's key witness is more
reliable than the testimony the witness gave at trial as a 12 year-old
boy in 1984, Because the details of the 1984 trial are undisputed, the
court adopts the Illinois Appellate Court's summary of those facts.
28 U.S.C. § 2254(c)(1).
Daniels was convicted for the 1981 murder of Edward Knight at a bench
trial. His conviction was based on the eyewitness and identification
testimony of a then 12 year old boy, Caston Rollins. Rollins testified
that at 7:00 a.m. on Christmas Eve, he left his home to deliver
newspapers with his friend, Frank Reml. Pet. Ex. 7 at 3. It was the first time he went on
Reml's route. Id As Rolling and Reml approached the corner of 54th place
and Hoyne Avenue, Rollins noticed six boys standing outside Knight's
house. Id. Rollins recognized the faces of several of the boys from the
neighborhood, including Daniels. Id Rollins testified that Daniels was
giving orders to the other boys. One of the boys Rollins recognized as
Jo-Jo was sent to the rear of the house with wire-cutters. Id The boys
then entered the home using a crowbar, Id. Rollins testified that Daniels
stayed outside, functioning as a lookout in the back of the house. Id
About ten minutes later, the boys exited Knight's house and dispersed.
Jo-Jo ran by Rollins carrying a television set. He told Rollins not lo
tell the police where he obtained the set. Id.
Daniels' attorney cross-examined Rolling about the circumstances
surrounding his identification of Daniels at the scene and in subsequent
conversations with Chicago Police Detectives. Pet, Ex. 4 at c145-157,
c174-181 (trial transcript). Rollins was questioned about his incomplete
and possibly contradictory description of the boys surrounding the
house, Id at c 145-157. Daniels' attorney explored his theory that
Rolling' identification was tainted by police detectives. Rollins
admitted police detectives took him away from home to a candy store for
questioning and to show him photographs of potential suspects. Id at
174-181. The state never disclosed that Rollins had been arrested for
burglary 17 days before testifying at Daniels' trial, Pet. Ex. 1, R.
Fifteen years later, on June 25, 1999, Rollins recanted his trial
testimony. Pet, Ex. 2, He stated that he was contacted by Daniels'
representatives that year, and that this prompted him to come forward,
Id. Rollins attested that he did not see Daniels outside the Knight home
on the morning of December 24, 1981, and that his false trial testimony
was the product of police and Prosecutorial coercion. Id DISCUSSION
1. Timeliness of Daniels' Petition
Under § 2244(d)(1)(DX Daniels' petition was due one year after "the
date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence." The
parties disagree on the application of § 2244(d)(1)(D) to Daniels'
petition. The state contends Daniels waited too long to file his petition
after he became aware of Rollins' recantation. The state takes the
position that the one-year period commenced the day Daniels discovered the
factual predicate of his recantation claim; Rollins' affidavit. Rollins
executed his affidavit June 25, 1999, Daniels filed his state
post-conviction petition on October 27, 1999, Under the state's
interpretation, the statute ran for 169 days. Once Daniels filed his
state post-conviction petition, the statute was tolled pursuant to §
2244(d)(2), The statute began to run again after the Illinois Supreme
Court denied Daniels' petition for leave to appeal on February 5, 2003.
Accordingly, when Daniels filed his § 2254 petition 364 days later on
February 4, 2004. it was untimely, Daniels argues this interpretation of
§ 2244(d)(1)(D) is Hawed. He asserts that the one-year period began when
the state courts rejected his post-conviction petition on February 5,
2003-the day his claims were primed for federal habeas review,
Essentially, Daniels contends the factual predicate for his habeas
claim was not uncovered until his post-conviction petition was rejected
by the state court because his federal habeus claim requires a showing
that the state court's decision was an unreasonable determination of the
facts. In support of his position, Daniels cites a decision of this court
considering a similar issue, Surrat v. Boyd, No, 99 C 7750, 2000 WL
748138, at *3 (N.D. Ill, 2000). In Surrat, the court addressed the
conviction of a prisoner who exhausted the direct appeal process prior to
enactment of the AEDPA on April 24, 1996, Id. at *2, The state argued
that Surrat's petition, subject to § 2244(d)(2)'s tolling provisions, was due in federal court one year later, Id. The court found
otherwise, ruling that:
Since April 1996, part of the basis of a valid federal
habeas corpus claim has been a showing that the state
court's decision on the petitioner's claim was based
on an unreasonable determination of the facts in light
of the evidence presented or was contrary to clearly
established federal law as determined by the Supreme
Id at *3 (italics added). According to the court, Surrat was incapable of
discovering the factual basis for his claims until the state court
rejected his post-conviction petition. Id.
Surrat was decided without the benefit o f subsequent Seventh Circuit
authority. A state court decision is not a factual predicate for Daniels'
claims; it is a procedural requirement determining the claims'
eligibility for consideration by a federal court. See Bracken v. United
Stales, 270 F.3d 60, 68 (1st Cir. 2001) (distinguishing "basic, primary,
or historical facts" from "court decisions" in the context of § 2255(4),
a parallel provision to § 2244(d)(1)(D)); accord Johnson v. United
States, 340 F.3d 1219 (11th Cir. 2003); but see United Stales v. Gadsen,
332 F.3d 224 (4th Cir. 2003). Although it has not considered this
particular application of § 2244(d)(1)(D), the Seventh Circuit has clearly
expressed that the natural operation of the provision turns on
evidentiary facts or events, not court rulings or legal consequences of
the facts. Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000). Owens held
that § 2244(d)(1)(D) is an equitable tolling provision subject to an
objective trigger: time begins when the prisoner could have discovered
the important facts underlying his claim. Id Under Daniels'
interpretation, the one-year limitation period would depend on a much
different objective trigger: the conclusion of state post-conviction
review. His attempt to paste an expansive judicial gloss on the meaning
of "factual predicate" would render the factual discovery limitation
meaningless, substantially increasing the number of potentially stale
claims the state must defend. Compare Owens, 235 F.3d at 359, with
Surrat, 2000 WL 748138 at *3. The plain language of § 2244(d)(1)(D)
compels this court to find that Daniels' one-year period to file his
federal habeas petition began the day Rollins executed his affidavit.*fn2 Accordingly,
Daniels' claims based on Rollins' recantation testimony are untimely,
Daniels argues that a determination that he was dilatory in presenting
some of his claims is not dispositive because in considering the
timeliness of a habeas petition, courts are directed to contemplate the
application as a whole, not individual claims. Walker v. Crosby,
341 F.3d 1240, 1244-45 (11th Cir. 2003); see also Artuz v. Bennett,
531 U.S. 4, 9-10, 121 S.Ct. 361 (2000) (distinguishing particular claims
from application). The court considers Daniels' petition in light of his
last discovered claims. Id.
Daniels contends his Brady claim is timely because he was unaware of
Rollins' burglary arrest until Rollins informed his post-conviction
attorneys on September 26, 2000. Pet, Ex, B, Ashley Decl. However, the §
2244(d)(1)(D) limitation period begins when the petitioner could have
learned of the factual basis for his claim; due diligence is required.
Owens, 235 F.3d at 359. Although Daniels did not allege Brady claims
until 2000, he first alleged Rollins' testimony was the product of
coercion at his original trial in 1984, Pet. Ex. 4 at c174. Daniels
argues that his incarceration and the limited availability of information
regarding Rollins' arrest excuses his late discovery. However, the record
does not suggest, nor does Daniels allege, that Rollins stone-walled
Daniels, Indeed, Rollins' affidavit states that his testimony was the
product of both police and Prosecutorial coercion. Pet. Ex. 2. Daniels'
claim accrued when he had putative knowledge of the pertinent facts, not
after he collected evidence and affidavits supporting the facts. Flanagan
v. Johnson, 154 F.3d 196, 198-99 (5th Cir. 1998). Given Rollins'
willingness in 1999 to cooperate with Daniels' defense, due diligence could have uncovered Rollins' arrest
history. Tate v, Pierson, 177 F. Supp., 2d 792, 800 (N.D. Ill. 2001),
aff'd, 52 Fed, Appx. 302, 2002 WL 31688938 (7th Cir. Nov, 25, 2002)
(unpublished decision), cert. denied, 538 U.S, 965 (2003). Daniels could
have learned of Rollins' arrest as early as June 25, 1999.
Daniels contends the late discovery of the facts underlying his claim
the state knowingly used perjury renders his petition timely. To begin
with, Daniels does not clearly identify this claim in his petition. He
merely asserts his conviction relied on perjured testimony. Even if the
court assumes the petition asserts this claim, the allegation would rest
on the same factual predicate as his due process and Brady claims:
Rollins' recantation. Because Daniels' perjury claim is based on Rollins'
recantation, Daniels fails to demonstrate that he was incapable of
discovering the factual predicate of his claim until he amended his state
petition in 2000. Tate, 177 F. Supp.2d at 800.
2. Equitable Tolling
Daniels argues that even if his petition is untimely, the limitation
period should be equitably tolled because he is actually innocent, he was
prevented from filing his state petition in a timely manner for fear of
losing good time credit, and because the state waived its procedural
defenses by filing its response to the habeas petition 25 days late.
First, failure to comply with the one-year period of limitations fixed by
§ 2244(d)(1) is not excused by claims of actual innocence, Flanders v.
Grave, 299 F.3d 974, 977 (8th Cir. 2002); Barnes v. Briley,
295 F. Supp.2d 931, 937 (N.D. Ill. 2003). Nor is Daniels' fear of losing
good time credit an external impediment that precluded timely filing of
the petition. Modrowski v. Mote, 322 F.3d 965, 967 (7th Cir. 2003)
("Equitable tolling excuses an untimely filing when extraordinary
circumstances far beyond the litigant's control . . . prevented timely
filing"). Daniels overlooks the fact that even if his fear explains the
delay in filing his state petition, it does not explain why he waited a
year after the Illinois Supreme Court denied leave to appeal before filing his federal petition. Finally, the court
finds that precluding the state from asserting that Daniels' claims are
time-barred is an inappropriate sanction for the state's tardiness in
responding to the petition. Barring presentation of procedural defenses
and forcing the state to defend stale claims is a disproportionate
sanction for tailing to file a timely response. See Bleitner v. Welborn,
15 F.3d 652, 653-54 (7th Cir. 1994).
Daniels became aware of the factual predicates for his claims the day
Rollins executed an affidavit recanting his identification testimony at
Daniels' trial: June 25, 1999. Under § 2244(d)(1), the time for filing a
habeas petition in federal court expired one year later. He filed his
state petition 169 days later on October 27, 1999. Although the statute
was tolled while Daniels' application was pending in state court, the
statute ran again beginning on February 6, 2003, the day after litigation
on the post-conviction petition ended in state court. Daniels' failure to
file this § 2254 application until February 4, 2004 after the total
elapse of 533 days means his claims are time-barred. Accordingly, the
petition for writ of habeas corpus must be denied.