Habeas Corpus — miscarriage of justice

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United States Court of Appeals For the Seventh Circuit

Criminal

Habeas Corpus — miscarriage of justice

Evidence that a police officer committed misconduct in other cases is insufficient to excuse a state prisoner’s failure to raise an issue in state court.

“McDowell did present new evidence with his habeas petition: an affidavit in which he stated that Detective Guevara framed him and a plethora of affidavits and transcripts that contain allegations of misconduct against Detective Guevara in other cases. This evidence, however, is insufficient to meet the actual innocence bar; adequate evidence is ‘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). Only such ‘powerful’ evidence can establish that it is more likely than not that no jury would have convicted a habeas petitioner. McDowell’s affidavit is obviously self-serving and contains no indicia of reliability. Such ‘eleventh hour’ affidavits, containing facts not alleged at trial and accompanied by no reasonable explanation for the delay are inherently suspect. Morales v. Johnson, 659 F.3d 588, 606 (7th Cir. 2011) (citing Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor, J., concurring)). Further, none of the witnesses mentioned any irregularities in the identification procedures. McDowell’s argument essentially counters the evidence the State presented at trial with his own version of the events; this relatively weak evidence cannot excuse his procedural default. See Smith v. McKee, 598 F.3d 374, 388 (7th Cir. 2010).”

Affirmed.

12-2967 McDowell v. Lemke

Appeal from the United States District Court for the Northern District of Illinois, Gottschall, J., Kanne, J.