How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Hammer O'Justice Your Own Question
Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4492
Experience:  Almost 12 years of legal experience, primarily in criminal law
Type Your Criminal Law Question Here...
Hammer O'Justice is online now
A new question is answered every 9 seconds

My questions are; (1) does the Petitioner in this case (brief

This answer was rated:

My questions are; (1) does the Petitioner in this case (brief Summary below) fit the category of the Perkins case that just came down? (2) Can this Petitioner use the Perkins case to go back to the 7th Circuit Court of Appeals to seek permission to file a Successive Habeas petition?
Regarding the case that came down from the United States Supreme Court on 5/28/2013,McQuiggin v Perkins in the US S. Ct. decision, the court said that Actual innocence, if proved, will justify federal habeas review even if procedural bar exist or if AEDPA statute of limitations has expired (Justice Ginsburg).
Brief Summary;
Petitioner is Pro Se
Actual Innocence
Petitioner filed his first Writ of Habeas Corpus Pro se, under 28 U.S.C. § 2254 in the Federal District Court, Northern District of Ill. 2003,wherein the court DENIED his petition in 2004.
Petitioner filed a successive PC petition in 2006 in addition with his petition for leave to file after new evidence supporting Petitioner’s Actual Innocence was discovered. The trial court improperly procedurally and/or erred in denying leave to file Petitioner’s petition after he clearly presented the gist of an actual innocence claim.
Petitioner’s appealed to Ill. Ct. of App. and then in the Ill. S. Ct. Petitioner’s State court remedies were exhausted. In 2008 Ill
S. Ct. DENIED petitioner’s Petition for Leave to Appeal without comment.
Motion for Request to file a Successive § 2254 to the 7th Cir. Ct. of App’s on 11/2009, Denied on 12/ 2009 asserting a stand-alone innocence claim in the district court. The lower court held that petitioner’s proposed petition, pursuant to 28 U.S.C. §2244 (b) (3) would be untimely, pursuant to 28 U.S.C § (d) (1) (D). Specifically, it held that the Petitioner had 1 year from discovery of the evidence to file his application pursuant to the opinion Johnson v Robert, 431 F. 3d 992 (7th Cir. 2005); Escamilla v Jungwirth, 426 F. 3d 868, 871-72 (7th Cir. 2005). Second it held that Petitioner waited more than three years from when the signed affidavit in support of his Actual Innocence which was signed on April 21, 2006 to file his §2244 (b) application on 11/ 10/ 2009 and the state court proceedings would not toll the statutory deadline’, pursuant to Martinez v Jones, 556 F. 3d 637 (7th Cir. 2009)
The Petitioner filed a Pro se Extraordinary Writ of Habeas Corpus to the US S. Ct, 5/ 2010. Habeas Corpus Denied 10/ 2010
The Questions that was presented in the 2010 Ex. Writ of Habeas Corpus was:
1.Whether transfer to the district court for a hearing pursuant to this Court’s original habeas jurisdiction is warranted in the exceptional non-capital case where the petitioner has raised A substantial case of Innocence, the lower Federal Courts refused to address his innocence in his first Federal Habeas petition and no State or federal court has held an evidentiary hearing to examine his new evidence?

2.When Federal Courts fail to consider a petitioner’s innocence in his first Federal Habeas petition, does the Antiterrorism and Effective Death Penalty Act of (1996) (AEDPA) preclude a stand alone Innocence claim, that was untimely but unknown to the pro se petitioner and not due to his culpable negligence, and raised for the first time in a Successive Habeas petition based on Newly Discovered Evidence?
Considering his Actual Innocence claim was clear the only reason he was denied was that he was untimely. He was denied the opportunity to file the Successive Habeas Corpus bases upon Newly Discovered Actual innocence Evidence due to untimeliness.


It is possible that he may be able to get back into court based on the decision in McQuiggin, particularly since the courts have never addressed the merits of his innocence claims, but it is not guaranteed. The Court created a very narrow gateway to allow only credible claims of actual innocence to get late review with that decision. In order to secure habeas review in the district courts, he will have to make a showing that not only is there strong evidence of innocence, but that that evidence makes it more likely than not that a reasonable juror would not have convicted him if they were presented with the evidence. The Supreme Court's opinion does not really explain how that is to happen, but it seems to be expected that in order to grant habeas review based on a compelling actual innocence claim, the district court will have to hold a hearing to determine if such evidence exists before proceeding with review of the merits of the petition. So basically, if he is able to meet this threshold requirement, then he may secure review, but it is an uphill battle because the Court very specifically noted that this exception will only apply in rare and/or extraordinary cases. The Supreme Court's opinion does also note that even though the statute of limitations doesn't necessary serve as a bar to consideration of actual innocence claims, the district courts can hold the lapse in time against the defendant, particularly if the delay prevents there from being an appropriate investigation of this "new" evidence (i.e. a witness dies or cannot remember their story, etc.). But he can try to make that initial showing to get the merits of his actual innocence claim before the court.
Hammer O'Justice and 5 other Criminal Law Specialists are ready to help you

Related Criminal Law Questions