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November 2, 2004.

JERRY STERNES,[fn1] Respondent.

The opinion of the court was delivered by: BLANCHE MANNING, District Judge

*fn1 Araujo's petition named Jerry Sternes, the warden of the Dixon Correctional Center, as the respondent. The respondent's reply substitutes the warden of the Lawrence Correctional Center as the respondent without any explanation. The inmate search function on the Illinois Department of Corrections website indicates that Araujo is still incarcerated at the Dixon Correctional Center. See Accordingly, Sternes is the appropriate respondent. See Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts. If Araujo has moved, the parties should so advise the court.


Petitioner Rolando Araujo's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is before the court. The respondent seeks to dismiss the petition as time-barred. For the following reasons, the respondent's motion to dismiss is granted.

  I. Background

  The court will presume that the state court's factual determinations are correct for the purposes of habeas review as Araujo has not provided clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The court thus adopts the state court's recitation of the facts, and will briefly summarize the key facts which are relevant to Araujo's § 2254 petition.

  In 1988, Mario Rodriguez was shot in connection with a gang-related fight. Araujo was subsequently charged with first degree murder. At trial, the only physical evidence presented by the State was a.38 caliber revolver the police seized from Araujo's home within a few hours of the murder. The State argued that Araujo had used the revolver to shoot Rodriguez and fled the scene and hid the gun in his house, and that police officers found the gun before Araujo could get rid of it. In support, the State presented, among other things, a weapons expert who testified that the revolver could have been the murder weapon because it had the same class characteristics as the bullets recovered from the victim's body and two eyewitnesses who testified that the revolver was the same gun used to shoot the victim. On cross-examination, the weapons expert testified that there were "millions" of guns with the same class characteristics.

  A jury convicted Araujo of first degree murder and the court sentenced him to a term of fifty years. Araujo appealed and the Illinois Appellate Court affirmed his conviction and sentence on March 31, 1994. Araujo did not file a petition for leave to appeal ("PLA") with the Illinois Supreme Court.

  On October 21, 1996, Araujo filed a state post-conviction petition and the trial court subsequently held an evidentiary hearing. Robert Mendoza (Araujo's co-defendant) testified that he shot the victim. In addition, Zaida Cintron, Mendoza's girlfriend, testified that she saw Araujo on the day of the shooting and that she falsely had told the police that Araujo told her he had "just done something" and had to hide his gun in order to protect Mendoza. The parties also stipulated that: (1) Araujo's expert in ballistics would testify to a reasonable degree of scientific certainty that the bullets recovered from the victim's body were not fired from the gun recovered from Araujo's home; and (2) a forensic science expert employed by the Illinois State Police would testify that one of the bullets could not have been fired from Araujo's gun and that the other bullet was too badly damaged to make a comparison. The trial court stated that Mendoza and Cintron's testimony was incredible. It then found that the trial testimony that Araujo's gun "may or may not have been the weapon" was "mistaken" because the gun "could not have been the weapon." It thus noted that its task was to decide whether the result at trial would have been different if the jury had not heard the testimony potentially tying Araujo's gun to the murder and the State's arguments about that testimony. It then reviewed the remaining testimony against Araujo, including his statement (made when he was arrested for another charge before his murder trial) that, "This ain't [expletive deleted]. I'm out on bond for murder from when I killed Buffy [the victim] with the .38."

  In light of the entire record, the trial court concluded that the new evidence about the weapon was not so conclusive that if it been heard, the result of the trial would have been different. Accordingly, it denied Araujo's petition. The Illinois Appellate Court affirmed the trial court. It also observed that Araujo could have discovered the new weapons evidence earlier with the exercise of due diligence because the gun was available for inspection prior to trial yet he only elected to retain an expert to examine it in the post-conviction proceedings. Araujo filed a PLA raising the new evidence issue which was denied on June 2, 1999.

  On June 6, 2000, Araujo filed a second state post-conviction petition alleging that: (1) his trial counsel's assistance was ineffective because counsel should have obtained an independent forensic analysis of the gun prior to trial; (2) new evidence shows that the State's weapons expert destroyed exculpatory evidence by filing down the markings on the bullets; (3) the State's forensic expert committed deliberate perjury; and (4) the State violated his right to due process by failing to disclose that the gun recovered from his home was not the murder weapon. In support, Araujo submitted an affidavit stating that he told his lawyer prior to trial that he was innocent and that the gun seized from his home had no connection to the murder. On June 15, 2000, the trial court denied the petition as improperly successive and barred by res judicata, explaining that Araujo had failed to demonstrate that his prior post-conviction proceedings were deficient or that he lacked a complete opportunity to litigate his "it could not have been my gun" argument during his first post-conviction petition proceedings.

  The Illinois Appellate Court affirmed this decision on September 27, 2002. It agreed that the claims were barred by res judicata, but also alternatively held that they failed on the merits. Araujo filed a PLA, which was denied on February 5, 2003. Araujo then filed a petition seeking relief under § 2254 with this court on January 20, 2004. In his petition, he asserts that: (1) the State knowingly presented false evidence at trial; and (2) trial counsel was constitutionally ineffective because he failed to challenge the State's false evidence.

  II. Discussion

  The respondent contends that Araujo's petition is time-barred under 28 U.S.C. § 2244(d). Araujo, on the other hand, contends that his petition is timely or, alternatively, that there is an actual innocence exception to the statute of limitations. For ...

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