Phillips v. Wills

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

EDWARD S. PHILLIPS, )

)

Petitioner, )

)

vs. ) Case No. 3:24-cv-467-DWD

)

ANTHONY WILLS, Warden, Menard )

Correctional Center, )

)

Respondent. )

MEMORANDUM & ORDER

DUGAN, District Judge:

Petitioner, an inmate at Menard Correctional Center, filed a Petition for a Writ of

Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). Respondent filed a Motion to Dismiss

that Petition under 28 U.S.C. § 2244(d), to which Petitioner has filed a Response in

Opposition. (Docs. 10 & 13). As explained below, the Motion to Dismiss is GRANTED.

I. BACKGROUND

On April 13, 2007, Petitioner was convicted by a jury in the Circuit Court of St.

Clair County, Illinois, of first-degree murder under 720 ILCS 5/9-1(a)(1). (Doc. 1, pg. 2).

He was sentenced to a term of 55 years of imprisonment on May 29, 2007. (Doc. 1, pg. 2).

Petitioner directly appealed the judgment of conviction to the Illinois Appellate

Court, Fifth District, alleging speedy trial violations, delays in his initial appearance, a

failure to provide funds for expert witnesses and for investigative services, a failure to

grant a motion for a bill of particulars and motion for additional discovery, an erroneous

denial of a motion to suppress a videotaped statement, a violation of an order in limine,

erroneous videotaped testimony, an erroneous grant of a motion in limine, inappropriate

contact between jurors and court personnel during deliberations, a failure to redact a

videotaped statement to the police, a failure to present transcripts to the jury, a prejudicial

statement during voir dire that the case was “high profile,” a violation of the statutory

right to a DNA database search, and a failure to prove guilt beyond a reasonable doubt.

(Doc. 1, pg. 3). On December 2, 2011, the judgment of conviction was affirmed by that

court. See People v. Phillips, 2011 IL App (5th) 070416-U; (Doc. 1, pg. 3). Petitioner filed a

petition for leave to appeal to the Supreme Court of Illinois, which was denied on May

30, 2012. See People v. Phillips, 968 N.E.2d 1070 (2012); (Doc. 1, pgs. 3-4).

On October 10, 2012, Petitioner filed a pro se petition for relief from judgment

under 735 ILCS 5/2-1401(f), alleging speedy trial violations, a failure to provide funds for

expert witnesses and for investigative services, a failure to redact a videotaped statement

to the police, an erroneous denial of a motion for mistrial, a denial of the right to cross-

examination, and inappropriate contact between jurors and court personnel during

deliberations. (Doc. 1, pg. 4). This petition was dismissed on May 28, 2014. (Doc. 1, pg. 4).

Petitioner filed a postconviction petition under 725 ILCS 5/122-1 et seq. on

February 27, 2013. (Doc. 1, pgs. 4-5). He alleged the ineffective assistance of trial and

appellate counsel due to, inter alia, a failure to assert a marital privilege, violations of an

order in limine, a failure to test evidence, a failure to investigate and present impeachment

evidence, and a denial of due process from a failure to disclose Brady evidence. (Doc. 1,

pg. 5). That postconviction petition was dismissed on June 7, 2018. (Doc. 1, pg. 6).

On August 26, 2013, Petitioner filed a successive pro se petition for relief from

judgment under § 2-1401(f), alleging the unlawful use of eavesdropping equipment to

obtain evidence. (Doc. 1, pg. 6). Following a grant of leave to supplement, the petition

was dismissed on May 28, 2014. (Doc. 1, pg. 6).

Petitioner’s initial pro se petition for relief from judgment under § 2-1401(f) and

postconviction petition under § 122-1 et seq. were appealed to the Illinois Appellate Court,

Fifth District, and the Supreme Court of Illinois. (Doc. 1, pgs. 6-7). The dismissal of the

pro se petition for relief from judgment under § 2-1401(f) was affirmed by the Appellate

Court on February 19, 2015, and a petition for leave to appeal in the Supreme Court of

Illinois was denied on May 27, 2015. See People v. Phillips, 2015 IL App (5th) 140281-U;

People v. Phillips, 32 N.E. 3d 677 (2015); (Doc. 1, pgs. 6-7). The dismissal of the

postconviction petition under § 122-1 et seq. was affirmed by the Appellate Court, as

modified upon the denial of rehearing, on October 7, 2022, and a petition for leave to

appeal to the Supreme Court of Illinois was denied on January 25, 2023. See People v.

Phillips, 2022 IL App (5th) 180348-U; People v. Phillips, 201 N.E. 3d 595 (2023); (Doc. 1, pg.

7). Petitioner did not appeal the Circuit Court of St. Clair County’s dismissal of his

successive pro se petition for relief from judgment under § 2-1401(f). (Doc. 1, pg. 7).

In the Petition filed with this Court, Petitioner alleges three grounds for relief.

First, Petitioner alleges the ineffective assistance of trial counsel related to the failure to

assert a marital privilege at trial. (Doc. 1, pgs. 8-20). Second, Petitioner alleges a Brady

violation due to the prosecution’s failure to disclose certain evidence and the ineffective

assistance of counsel related to a failure to request that evidence. (Doc. 1, pgs. 22-24).

Third, Petitioner alleges the ineffective assistance of trial counsel in relation to the failure

to request that Petitioner’s videotaped interview be redacted. (Doc. 1, pgs. 25-27).

Petitioner states the first two grounds for relief were presented to the Illinois Appellate

Court, Fifth District, and the Supreme Court of Illinois in postconviction petitions. (Doc.

1, pgs. 21, 25). As to the third ground for relief, however, Petitioner suggests the issue

was not presented on direct appeal or in a postconviction petition to both the Illinois

Appellate Court, Fifth District, and the Supreme Court of Illinois. (Doc. 1, pgs. 27-28).

Respondent filed a Motion to Dismiss the Petition under § 2244(d). Petitioner, who

is represented by counsel in this action, filed a Response in Opposition to that Motion to

Dismiss. (Docs. 10 & 13). As such, the matter is now ripe for a resolution by the Court.

II. ANALYSIS

In the Motion to Dismiss, Respondent notes Petitioner certified that the Petition

was placed in the prison mailing system on January 12, 2024. (Docs. 1, pg. 30; 10, pg. 4).

Petitioner’s counsel signed the Petition below that certification. (Doc. 1, pg. 30). However,

Respondent further notes the Petition was not actually filed by Petitioner’s counsel, with

a signed Civil Cover Sheet, until February 20, 2024. (Docs. 1; 1-1; 10, pg. 4).

According to Respondent, the Petition is untimely by virtue of its filing on

February 20, 2024. (Doc. 10, pg. 4). He argues, unless the Petition turns on newly

discovered facts, a newly recognized constitutional right, or a State-created impediment

to filing, it was subject to a one-year limitations period that began to run when Petitioner’s

judgment of conviction became final on direct review and that was tolled only during the

pendency of the State’s collateral review. (Doc. 10, pg. 4). In this case, Respondent

suggests the one-year limitations period began to run on August 28, 2012, which was

“ninety days after the Illinois Supreme Court denied his PLA on direct review[] when the

time to petition for certiorari lapsed.” (Doc. 10, pg. 5). The one-year limitations period

allegedly ran for 182 days, at which point Petitioner filed an initial postconviction petition

on February 27, 2013. (Doc. 10, pg. 5). The one-year limitations period was allegedly tolled

through January 25, 2023, when the Supreme Court of Illinois denied Petitioner’s petition

for leave to appeal on the postconviction petition. (Doc. 10, pg. 5). Respondent argues the

one-year limitations period then ran, uninterrupted, for 183 days until its lapse on July

28, 2023. (Doc. 10, pgs. 5-6). Respondent argues Petitioner, rather than file the Petition on

that date, waited until February 20, 2024, which was 207 days later. (Doc. 10, pg. 6).

Respondent stresses that the Petition does not turn on newly discovered facts, a

newly recognized constitutional right, or a State-created impediment to filing. (Doc. 10,

pg. 5). While Petitioner suggests he did not learn of the Brady material until January 2015,

Respondent argues that is belied by the record. (Doc. 10, pg. 5). Respondent explains,

“[t]he materials at issue are recordings petitioner himself made of voicemails…received

on his personal phone, [citation], so he was necessarily aware of them from the time of

their creation.” (Doc. 10, pg. 5). Since police officers seized those recordings pursuant to

a search of Petitioner’s car before trial, and Petitioner informed his trial counsel that the

police officers possessed the recordings, Respondent argues Petitioner knew of the facts

underlying the alleged Brady violation before the judgment of conviction became final.

(Doc. 10, pg. 5). As such, Respondent argues “no later start date applies.” (Doc. 10, pg. 5).

Similarly, Respondent argues “Petitioner’s initial 2-1401 petition did not toll the

limitations period because the state appellate court held that the petition was untimely,

[citations], and thus, it was not ‘properly filed.’ ” (Doc. 10, pg. 6). Respondent

emphasizes, though, “even if the untimely state filing did toll—and thus the limitations

period was tolled for the entire period from when petitioner’s conviction became final

until his postconviction proceedings concluded on January 25, 2023—petitioner’s federal

habeas petition would have been due January 25, 2024, almost a month before his

attorney filed it in February 2024.” (Doc. 10, pg. 6 n. 4). Finally, the remaining state

petitions, in Respondents view, are “irrelevant to the timeliness calculation because the

entirety of their pendency are encompassed by the period in which the limitations period

was already tolled by petitioner’s initial postconviction petition.” (Doc. 10, pg. 6).

In Response, Petitioner concedes that the Petition is untimely by arguing the one-

year limitations period should be equitably tolled “to and including the actual filing date

of February 20, 2024.” (Docs. 13, pgs. 1, 4; 13-1, generally). As to the diligence in pursuing

his rights, Petitioner argues the record and procedural history of the case show he “has

been more than reasonable.” (Doc. 13, pg. 2). Specifically, Petitioner notes he timely filed

a direct appeal from the judgment of conviction followed by a petition for relief from

judgment under section 2-1401 and the initial post-conviction petition. (Doc. 13, pg. 2).

Moreover, Petitioner argues he “began corresponding with counsel about

preparing and filing a federal habeas petition almost immediately after the Illinois

Supreme Court denied his petition for leave to appeal the denial of his initial post-

conviction petition on January 25, 2023, raising concerns about the applicable statute of

limitations.” (Doc. 13, pg. 2) (Emphasis in original omitted.). While arguing an attorney’s

failure to satisfy professional standards of care may constitute extraordinary

circumstances for purposes of an equitable tolling, Petitioner further explains:

The “extraordinary circumstance” that stood in [Petitioner’s] way was an

egregious error, committed by the undersigned counsel, in both calculating

the limitations deadline imposed by § 2244(d), and in affirmatively

misinforming him about the deadline. Counsel erroneously informed Mr.

Phillips that the deadline for filing his petition was April 24, 2024.

…

Here, there was more than just a “garden variety claim of excusable

neglect.” As explained in the declaration, counsel’s error in miscalculating

the filing deadline was compounded by his affirmative act of misinforming

Mr. Phillips and persuading him that his prior understanding of the

deadline was incorrect—when, in fact, it was Mr. Phillips who correctly

understood how to calculate the limitations period correctly, and counsel

who was in error. [Citation.] But for counsel’s error, [Petitioner] would

have timely filed his petition, or at least a version of his petition (which, if

incomplete, could have been amended). Counsel’s error effectively

deprived [Petitioner] of his opportunity to file his petition in a timely

manner and gave respondent grounds to seek dismissal of the petition as

untimely.

(Doc. 13, pgs. 3-4) (Emphasis in original omitted.).

Habeas counsel’s Declaration supports these assertions. (Docs. 13, pgs. 2-4; 13-1).1

Alternatively, Petitioner argues he can overcome procedural barriers to a review

based on new evidence of actual innocence, as it is more likely than not that no reasonable

1Petitioner’s counsel also notes, “[s]ince [Petitioner] is raising an issue of ineffective assistance of

his habeas counsel, this raises a related concern that his claim and argument for equitable tolling may be

compromised by a conflict of interest and raises the issue of whether counsel can continue to represent

him.” (Doc. 13, pgs. 4-5) (Emphasis in original omitted.). However, since “expectations can be exceeded”

and “there does not appear to be any absolute bar to an attorney arguing his own incompetence or

ineffectiveness as to a particular issue,” Petitioner’s habeas counsel “has elected to do so here.” (Doc. 13,

pg. 5). Accordingly, Petitioner waives any conflict of interest. (Docs. 13, pg. 5; 13-2).

juror would have convicted him in light of the new evidence. (Doc. 13, pgs. 5-6). He notes

“the evidence at trial was very closely balanced,” so the new evidence, i.e., his February

21, 2013, affidavit from the Illinois postconviction proceedings and an “additional

recording of a voice mail message by [Petitioner’s ex-wife] to [Petitioner] that was made

and recorded after the one played at trial,” makes the difference in this case. (Doc. 13,

pgs. 7-9; 13-3) (Emphasis in original omitted.). The additional recording, which forms the

basis for Petitioner’s Brady claim, allegedly “would have completely undermined [his ex-

wife]’s testimony—including her denial that it was her voice on the first voice-mail

recording, her claim that she had only threatened to tell the divorce court, and not the

police, about [Petitioner] being at the scene of the murder, and her evasion of the question

as to whether she had sought to blackmail [Petitioner].” (Doc. 13, pg. 10). In short, the

additional recording allegedly “would have exposed [Petitioner’s ex-wife] as someone

willing to lie in order to convict” him. (Doc. 13, pg. 10) (Emphasis in original omitted.).

Now, § 2241(d) provides:

(d)(1) 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. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created

by State action in violation of the Constitution or laws of the United

States is removed, if the applicant was prevented from filing by such

State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively applicable

to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

(2) The time during which a properly filed application for State post-

conviction or other collateral review with respect to the pertinent judgment

or claim is pending shall not be counted toward any period of limitation

under this subsection.

28 U.S.C. § 2244(d).

This one-year limitations period may be equitably tolled. See Conner v. Reagle, 82

F.4th 542, 550 (7th Cir. 2023) (citing Holland v. Florida, 560 U.S. 631, 648-49 (2010)).

However, Petitioner faces a “very high” threshold for obtaining an equitable tolling of

that period. Lombardo v. U.S., 860 F.3d 547, 551 (7th Cir. 2017) (quoting U.S. v. Marcello,

212 F.3d 1005, 1010 (7th Cir. 2000)). Such relief is “reserved for the exceptional case”;

therefore, it is only rarely or sparingly granted. Conner, 82 F.4th at 550 (citing Carpenter v.

Douma, 840 F.3d 867, 870 (7th Cir. 2016)); Lombardo, 860 F.3d at 553 (quoting Robinson v.

U.S., 416 F.3d 645, 650 n. 1 (7th Cir. 2005)). Petitioner must show (1) he pursued his rights

diligently, and (2) extraordinary circumstances barred the filing of a timely petition.

Conner, 82 F.4th at 550 (citing Holland, 560 U.S. at 648-49); Boulb v. U.S., 818 F.3d 334, 339-

40 (7th Cir. 2016)). Extraordinary circumstances exist only if “an ‘external obstacle’

beyond the party’s control ‘stood in [its] way’ and caused the delay.” Lombardo, 860 F.3d

at 552 (quoting Menominee India Tribe of Wisconsin v. U.S., 577 U.S. 250, 256 (2016));

see also Moreland v. Eplett, 18 F.4th 261, 271 (7th Cir. 2021) (“ ‘[G]arden variety’ claims are

insufficient.”). The inquiry, which requires an application of “flexible standards on a case-

by-base basis,” is “highly fact dependent.” Socha v. Boughton, 763 F.3d 674, 683-84, 688

(7th Cir. 2014); accord Isom v. Neal, 574 F. Supp. 3d 598, 607 (N.D. Ind. 2021).

However, neither a lack of familiarity with the law nor ignorance of legal

procedures, even by habeas counsel, is an extraordinary circumstance that justifies an

equitable tolling. Pigram v. Williams, 182 F. Supp. 3d 861, 864 (N.D. Ill. 2016) (quoting

Taylor v. Michael, 724 F.3d 806, 811 (7th Cir. 2013)); Arrieta v. Battaglia, 461 F.3d 861, 867

(7th Cir. 2006) (citing Williams v. Sims, 390 F.3d 958, 963 (7th Cir. 2004)). Recently, in the

context of §§ 2244(d) and 2254, the Seventh Circuit explained as follows:

To qualify as extraordinary, the circumstance that prevented the petitioner

complying with a deadline must have been an external obstacle that

impeded the presentation of his claim to the court, [citations], in other

words, something that was beyond his control, [citations]. Negligence on

the part of the petitioner’s counsel, including counsel’s ignorance or

miscalculation of a deadline or the failure to do sufficient legal research to

ascertain the deadline, is ordinarily an insufficient basis in and of itself

for equitable tolling, as it is not an external obstacle.

Conner, 82 F.4th at 551 (citing Menominee India Tribe of Wisc., 577 U.S. at 256-57; Lombardo,

860 F.3d at 552; Carpenter, 840 F.3d at 872; Holland, 560 U.S. at 651-52; Moreland, 18 F.4th

at 271; Ademiju v. U.S., 999 F.3d 474, 477 (7th Cir. 2021)) (Emphasis in original omitted).

Here, based on these legal authorities, Petitioner is clearly not entitled to an

equitable tolling of the one-year limitations period stated in § 2244(d). This is true even if

habeas counsel can be blamed for misunderstanding or negligently miscalculating, and

erroneously advising Petitioner on, that limitations period. See Conner, 82 F.4th at 551;

Pigram, 182 F. Supp. 3d at 864; Arrieta, 461 F.3d at 867. Put another way, even if Petitioner

diligently pursued his rights, the Court cannot conclude an extraordinary circumstance,

i.e., an external obstacle beyond his control, barred him from timely filing the Petition.

See Conner, 82 F.4th at 550; Lombardo, 860 F.3d at 552; Moreland, 18 F.4th at 271. Under the

circumstances of this case, Petitioner is bound by the acts of habeas counsel. See Conner,

82 F.4th at 551-52; Lombardo, 860 F.3d at 552 (citing Maples v. Thomas, 565 U.S. 266, 280-82

(2012); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92 (1990); Johnson v. McBride, 381 F.3d

587, 589-90 (7th Cir. 2004); Coleman v. Thompson, 501 U.S. 722, 753 (1991)).

Critically, the Supreme Court, the Seventh Circuit, and other courts within the

Seventh Circuit have reached this conclusion in various similar cases. See, e.g., Lawrence

v. Florida, 549 U.S. 327, 336-37 (2007) (“Attorney miscalculation is simply not sufficient to

warrant equitable tolling, particularly in the postconviction context where prisoners have

no constitutional right to counsel.”); Conner, 82 F.4th at 551-52 (Seventh Circuit noting, as

a factual matter, it could “appreciate that [the petitioner] was the victim of bad advice

from his postconviction counsel,” but, as a legal matter, the petitioner “[wa]s charged

with the acts and omissions of his counsel, including his counsel’s mistakes”); Lombardo,

860 F.3d at 552 (noting the Supreme Court, the Seventh Circuit, and other courts “have

consistently held[] mistakes or miscalculations of that sort by a party’s attorney,” i.e., a

mistaken belief as to the running of the statute of limitations, “do not satisfy the

extraordinary circumstances element for equitable tolling.”); Socha, 763 F.3d at 685 (“Poor

representation by an attorney calls for a more nuanced appraisal. Defects in performance,

whether through the attorney’s own fault or attributable to extenuating circumstances,

do not inevitably support equitable tolling, but they are relevant. The Supreme Court has

identified some types of errors (such as miscalculation of a deadline) that do not warrant

relief; it calls them ‘garden variety’ claims of excusable neglect, meaning that these errors

are too common to be called ‘extraordinary.’ ”); Obriecht v. Foster, 727 F.3d 744, 749 (7th

Cir. 2013) (“As our precedents make clear, an attorney’s misunderstanding or

miscalculation of the AEDPA deadline alone does not constitute an extraordinary

circumstance.”); Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010) (“[A] lawyer’s

‘egregious behavior’ [citation] satisfies th[e] [extraordinary circumstances] standard,

though neither ‘a garden variety claim of excusable neglect’ nor a ‘miscalculation’ about

the time available for filing is an ‘extraordinary’ circumstance…. The most one could say

is that [the petitioner’s] lawyer misunderstood how to determine when a state petition is

‘pending’ for the purpose of § 2244(d)(2). That sort of error is not ‘extraordinary’; it is all

too common. Holland tells us that a simple legal mistake does not excuse an untimely

filing. It may be negligent to wait until what is by a lawyer’s own calculation the last

possible day, because such a calculation could be wrong. But this kind of negligence is

not ‘extraordinary’ by any means. Such a blunder does not extend the time for filing a

collateral attack.”); Robinson, 416 F.3d at 650 n. 1 (“Equitable tolling is granted sparingly,

where extraordinary circumstances beyond the litigant’s control prevented timely filing;

a mistaken understanding about the deadline for filing is not grounds for equitable

tolling.”); Powell v. Davis, 415 F.3d 727 (7th Cir. 2005) (“ ‘[A]ttorney misconduct, whether

labeled negligent, grossly negligent, or willful, is attributable to the client’ and thus is not

a circumstance beyond a petitioner’s control that might excuse an untimely petition.”);

Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003) (“We will not revisit our long-standing

determination that petitioners bear ultimate responsibility for their filings, even if that

means preparing duplicative petitions: petitioners, ‘whether in prison or not, must

vigilantly oversee the actions of their attorneys and, if necessary, take matters into their

own hands.’ ”); Pigram, 182 F. Supp. 3d at 864 (“Missing a filing deadline…does not

constitute an impediment that is beyond the litigant’s control, even if the mistake is

attributable to attorney incompetence.”); Consumers Health Info. Corp. v. Amylin Pharms.,

Inc., 54 F. Supp. 3d 1001, 1011 (S.D. Ind. 2014) (“The Seventh Circuit has expressly rejected

attempts by a party to invoke its own attorney’s misconduct and/or negligence as a basis

for equitable tolling, finding that attorney conduct is attributable to the client.”).

In reaching its conclusion, the Court stresses that, contrary to Petitioner’s

assertions, the circumstances suggested by Holland are not present in this case. Habeas

counsel’s misunderstanding or negligent miscalculation of the one-year limitations

period contained in § 2244(d) may have resulted in a mistake and erroneous advice, when

acting on Petitioner’s behalf, but he in no way engaged in egregious behavior that, e.g.,

reflects an abandonment of his legal representation of Petitioner. See Holland, 560 U.S. at

652-54; Maples, 565 U.S. at 282; Conner, 82 F.4th at 552; Schmid v. McCauley, 825 F.3d 348,

350 (2016); Obriecht, 727 F.3d at 749-50; Griffith, 614 F.3d at 331; (Doc. 13-1).

Apart from this conclusion under § 2244(d), Petitioner is not necessarily barred

from proceeding on the Petition. There is a narrow actual innocence gateway through

which a petitioner may pass to obtain a review of a time-barred petition. See Patterson v.

Adkins, 124 F.4th 1035, 1046 (7th Cir. 2025); Gladney v. Pollard, 799 F.3d 889, 896 (7th Cir.

2015).2 To pass through that gateway, Petitioner must provide reliable new evidence—

i.e., exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical

evidence that was not presented at the trial—that shows it is more likely than not that no

reasonable juror would have found him guilty beyond a reasonable doubt. Id. (quoting

House v. Bell, 547 U.S. 518, 536–37 (2006); Schlup v. Delo, 513 U.S. 298, 324 (1995)); Dixon,

93 F.4th at 403; see also Jones v. Calloway, 642 F.3d 454, 461 (7th Cir. 2016) (“ ‘New evidence’

in this context does not mean ‘newly discovered evidence’; it just means evidence that

was not presented at trial.”) (Emphasis in original omitted). On the type of evidence

necessary for such a showing, the Seventh Circuit has elaborated:

As this court described it, “[t]o demonstrate innocence so convincingly that

no reasonable jury could convict, a prisoner must have 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.”

Dixon, 93 F.4th at 403 (quoting Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005)).

Notably, an “[u]nexplained delay in presenting such evidence is not an absolute

bar, though it may play a role in determining whether a petitioner has proven his actual

innocence: a delayed petition ‘should seriously undermine the credibility of the actual-

innocence claim.’ ” Gladney, 799 F.3d at 898 (quoting McQuiggin v. Perkins, 569 U.S. 383,

2Notably, though, an actual innocence gateway claim should not be confused with a substantive

claim of actual innocence. See Dixon v. Williams, 93 F.4th 394, 402-03 (7th Cir. 2024); see also Cal v. Garnett,

991 F.3d 843, 850 (7th Cir. 2021) (“[T]he Supreme Court has never held that actual innocence claims,

standing alone—separate and apart from any constitutional error—could support habeas relief.”); Lund v.

U.S., 913 F.3d 665, 668 (7th Cir. 2019) (“Framing the exception as a gateway presupposes that a petitioner

will have underlying claims separate from the claim that he is actually innocent.”); Gladney, 799 F.3d at 895

(“[W]hen a petitioner accompanies his persuasive showing of actual innocence with a different claim for

relief…actual innocence may be used as a ‘gateway’ to excuse procedural defaults that would otherwise

bar a federal court from reaching the merits of the underlying claims.”). In this case, Petitioner raises the

former type of actual innocence claim. See id.; (Doc. 13, pgs. 5-7, 10).

399-400 (2013)). Further, during its review, the Court “consider[s] ‘all the evidence, old

and new, incriminating and exculpatory, without regard to whether it would necessarily

be admitted under rules of admissibility that would govern at trial.’ ” Patterson, 124 F.4th

at 1046 (quoting House, 547 U.S. at 538); see also Wilson v. Cromwell, 69 F.4th 410, 422 (7th

Cir. 2023) (“[T]he presentation of new and credible evidence does not automatically

satisfy the…standard for actual innocence. Instead, the new evidence must be considered

along with the existing evidentiary record.”). The Court then “ ‘make[s] “a probabilistic

determination about what reasonable, properly instructed jurors would do.” ’ ” Patterson,

124 F.4th at 1046 (quoting House, 547 U.S. at 538). It is not the Court’s function to make

independent factual determinations as to what likely occurred in the case; instead, the

Court is only tasked with assessing the likely impact of the evidence on reasonable jurors.

Blackmon v. Williams, 823 F.3d 1088, 1102 (7th Cir. 2016) (quoting House, 547 U.S. at 538).

In light of these governing legal principles, it is clear that the actual innocence gateway

standard is onerous and demanding, such that a review is allowed only in extraordinary

cases. Patterson, 124 F.4th at 1046 (quoting House, 547 U.S. at 538); accord Dixon, 93 F.4th

at 403. If Petitioner can prevail under that standard, though, the Court can consider the

Petition despite its tardiness. See Arnold v. Dittmann, 901 F.3d 830, 842 (7th Cir. 2018).

Here, the Court has reviewed all the available evidence. See Phillips, 2011 IL App

(5th) 070416-U, ¶¶ 7-96; accord Phillips, 2022 IL App (5th) 180348-U, ¶¶ 6-125; (Docs. 1,

pgs. 8-20; 13, pgs. 7-11). The following summary of the evidence, which is consistent with

that of Petitioner, is taken from the Illinois Appellate Court, Fifth District:3

Kenneth and Susan Blumberg. Kenneth and Susan were the parents of the

victim, Amy Jennifer Blumberg. Amy was working in the dance store

owned by her aunt and uncle on December 31, 1999, while she was home

on break from her college courses at Eastern Illinois University. She was 20

years old.

At about 6 p.m. on December 31, 1999, Kenneth and Susan Blumberg began

receiving phone calls from her friends wondering where Amy was. Amy

had plans to spend the evening with some of these friends to celebrate the

new year. Susan made multiple calls trying to locate Amy without success.

They assumed that Amy must have stopped off somewhere on her way

home. But, after some time had passed, they became concerned and decided

to drive to the store. On the way to the store, they received a call from the

manager of a pizza restaurant nearby in O’Fallon. That manager, Bob

Uhrig, was a dear friend to Amy. Bob sent an employee down to the store

to check on Amy. That person reported that the door was not locked, that

the lights were on inside the store, that Amy’s car was in the parking lot,

but that Amy was not inside the store. The Blumbergs arrived at the store

at about 9 p.m. After entering the store, Amy’s parents saw blood on the

doorjamb of the entryway to the hall in the back of the store. Kenneth

Blumberg encountered a “tremendous amount of blood” in the hallway.

Susan Blumberg called 9–1–1 to report the finding of blood and to request

an ambulance. Kenneth came back to the front part of the store and told

Susan that they were “too late.” They waited outside the store at the

direction of the 9–1–1 operator until police arrived at the scene.

Stipulation of Maureen Blumberg. The parties agreed to a stipulation

regarding a couple of things that Maureen Blumberg, Amy’s aunt, would

testify to if she had testified at trial. Maureen Blumberg was a co-owner of

the store. Maureen told Amy that she could close up the store at 2 p.m. The

last recorded sale at the store was at 2:25 p.m. This was a cash purchase for

a child’s black leotard.

Andrew Whitehair. Andrew Whitehair testified that on December 31, 1999,

he was a driver for Pizza World, an O’Fallon restaurant. Andrew’s manager

at Pizza World, Bob Uhrig, asked him to go to the store to check on Amy.

3When reviewing this evidence, the Court notes that, “[i]n a proceeding instituted by an application

for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination

of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).

The time of this request was approximately 8 p.m. Andrew drove past and

saw a car on the parking lot. Upon return to the Pizza World location, he

called Bob and told him about the car that he saw on the parking lot. Bob

confirmed that this was Amy’s car and asked Andrew to return to the store

to see if she was there. He returned. He exited his car and knocked on the

doors to all of the businesses in the building. The store still had the lights

on. Andrew tried the door, which was unlocked. He walked in. He saw

nothing amiss. He called out Amy’s name a couple of times with no

response. He did not go further than the front part of the store. He left the

store and returned to Pizza World. He called Bob again to tell him that Amy

did not seem to be there, although her car was there, the lights were on, and

the front door was unlocked.

Officer John Stover. O’Fallon officer John Stover testified at trial that he

arrived at the scene shortly after 9 p.m. on December 31, 1999. Sergeant

Schaefer arrived at the same time. He and Sergeant Schaefer entered the

store together. The store itself looked normal. However, the officers saw a

trail of blood as well as blood splattering on the floor of the hallway that

was on the left side of the store behind a door. Down the hall, the first

unlocked door was the door to the men’s bathroom. The officers noticed a

pool of blood as well as blood splattering on the floor of the bathroom. The

hallway continued with a right turn where they saw the blood trail continue

with additional splattering. That hallway ended at another door which led

into the women’s bathroom. Inside the bathroom, the officers found the

body of a white female on the ground with her head lying in a large pool of

blood. Officer Schaefer confirmed that the woman was dead. The officers

checked an adjacent store and then left the building.

Alva Busch. Alva Busch, a crime scene technician, testified that he arrived at

the scene of the murder at 9:35 p.m. on December 31, 1999. He testified that

he saw a purse and keys on top of the counter in the store and that the cash

register in the store appeared to be undisturbed. He noticed what appeared

to be blood on the door frame—about one foot off of the floor—leading to

the hallway. He testified about the blood in the hallway, which he believed

to have been caused by someone being dragged across the carpet towards

the men’s bathroom. In the men’s bathroom, he located a pair of nylon

pants, underwear, socks, and tennis shoes. To the left of the urinal on the

floor, he found a tampon. The blood trail led from the men’s restroom to

the women’s restroom. He indicated that the victim’s body was lying on the

ground with her legs widely separated. The victim was nude from the waist

down, with part of her bra exposed on the left side. He was not then able to

determine a cause of her death. In testimony upon his recall to the stand

later in the State’s case, Alva Busch testified about the various pieces of

forensic evidence he collected in the forms of hair and fibers.

Officer Kevin McGinnis. Kevin McGinnis, a police officer from Mascoutah

who is a member of the major case squad, was called upon to assist in the

investigation of this case. He and Alva Busch went to the store to conduct

their investigation on January 1, 2000. Kevin discovered what appeared to

be a bullet fragment in the store next door. Looking then at the opposite

wall in the store, they found a bullet hole in the wall in the front part of the

store.

Lieutenant Kurt Eversman. Lieutenant Kurt Eversman was a St. Clair County

sheriff’s deputy at the time of this crime. On January 6, 2000, he was asked

to examine a shell casing at the store where the crime occurred. While there,

he searched for gunpowder residue on items in the store. He used an ion

track vapor tracer. He found three indications of some gunpowder residue.

The gunpowder residue was found on the cash register (which was the

strongest alert of the three), in the hallway, and on a light switch in one of

the bathrooms.

Officer Kerry Andrews. Officer Kerry Andrews was an O’Fallon police

detective on call the evening of December 31, 1999. He videotaped the entire

crime scene that night and returned to the scene the following day to do

additional taping. He presented the video to the jury at trial, explaining

what was on the tape.

On December 17, 2003, Detective Andrews was still a member of the

O’Fallon police force. He participated in a search of the defendant’s home

in Mt. Sterling, Illinois, pursuant to the verbal and written consent of the

defendant’s ex-wife Dawn. Detective Andrews, Detective Cavins, and the

defendant’s ex-wife, Dawn Ritchey, were present during the search. Found

at the residence was an empty gun box located in the attic above the garage.

No guns were located in this search. Dawn Ritchey acknowledged that the

gun box was for a .38–caliber gun that they owned.

Raj Nanduri, M.D. An autopsy was performed on the victim by Dr. Raj

Nanduri on January 1, 2000. Dr. Nanduri testified that before conducting

the examination, she was unable to tell what caused Amy’s death just by

visual examination. Dr. Nanduri described bruises and scrapes on various

parts of her body—an impact bruise on her left knee, a pattern bruise on

her left hip, a large bruise on the front of her left upper arm, and a small

bruise on her right breast—all of which the doctor believed occurred before

death. Amy was shot at close or intermediate range one time with the

entry wound to the back of her left ear and an exit wound in front of her

right ear. In Dr. Nanduri’s opinion, the bullet wound would have caused a

rapid death.

Forensic Evidence Stipulations. The parties stipulated to various items of

forensic evidence. The stipulations were read to the jury. The red substance

on the carpet in front of the cash register was human blood matching Amy’s

DNA. Blood and debris was found on a dress on a rack in the front of the

store. The substance on the hallway door frame was human blood. The

defendant’s finger and/or palm prints were not discovered anywhere in

the store. No semen was found on the underwear found in the men’s

bathroom. Hairs on the nylon pants were consistent with the victim. One

hair on the pants was not consistent with the defendant or with the victim.

One hair on the victim’s wrist was not that of the defendant or of the victim.

Hair found on the victim’s stomach did not belong to the victim or to the

defendant. Semen was not found on any sample that was a part of the

sexual assault kit collected from the victim’s body. A hair collected from the

victim’s right ankle was consistent with the defendant’s DNA profile.

James Hall. Forensic testimony was provided by James Hall who testified

that the bullet recovered from the scene was a .38–caliber bullet with six

lands and grooves with a right twist. The caliber term was explained as the

diameter or size of the bullet. A .38–caliber bullet can be loaded into a

different size of cartridge case—like a .38–caliber cartridge case. This

particular bullet was from the .38–caliber class of bullets, and upon closer

examination, James Hall testified that given the bullet’s weight, design, and

bearing surface, this bullet was consistent with a .38–auto–caliber bullet. He

further testified that the bullet could have been fired by a Bryco Arms .38–

caliber handgun, as well as by approximately 140 different weapons.

Without the actual gun used in the murder, which could be compared with

the bullet fragment recovered from the crime scene, there is no forensic way

to confirm that the defendant’s .38–caliber Bryco Arms gun was the gun

used in the crime.

Thomas Gamboe. Thomas Gamboe was a forensic scientist at the Illinois State

Police Metro–East Forensic Science Laboratory in Fairview Heights. He

provided testimony about the potential candidates for firing the projectile

recovered in this case. He testified that there were 16 possible .38–caliber

guns. In the .38 Special categories there were 23 possibilities. Between the

.38–caliber revolvers and the .38 Special derringers, there were 49 different

possibilities. When asked how many actual weapons would have been in

circulation of these 49 different possibilities on December 31, 1999, Thomas

stated that it was impossible for him to say, but he guessed that the number

would be in the millions of guns.

Dennis Aubuchon. Dennis Aubuchon was a forensic biologist at the Illinois

State Police Metro–East Forensic Science Laboratory in Fairview Heights.

He tested the tampon that was recovered from the crime scene. No seminal

fluid was found. He did not test to determine if the blood on the tampon

was menstrual blood.

Donna Rees. Donna Rees was a forensic scientist at the Illinois State Police

Metro–East Forensic Science Laboratory in Fairview Heights. She primarily

does DNA testing. She tested the string of the tampon but only found the

DNA of Amy. She was not asked to see if there was any DNA evidence on

the shoes or on any clothing.

Leroy Yaeger. Leroy Yaeger of Lebanon testified at the trial on behalf of the

State. He and his daughter arrived at the On Stage store at about 12:30 p.m.

on December 31, 1999. The purpose of the visit was to exchange a leotard

purchased for his daughter that was too small. At 12:30 p.m., the store was

closed with a sign indicating that the clerk would return after lunch. Leroy

and his daughter went to lunch. Upon return to the store, the store was

open. When they walked in, Leroy noticed a man, who he estimated to be

in his forties, looking through the clothing racks. Leroy’s daughter

proceeded to try various leotards on, until she found the proper size. While

doing so, Leroy spoke with Amy and learned a bit about her educational

background and career plans. Leroy’s daughter overheard the man ask

Amy if they sold dance shoes in the store. Before they completed their

purchases, the man who had been looking through the racks left the store.

Leroy and his daughter left. Later that evening when he learned that Amy

had been found dead in the store, he contacted the O’Fallon police,

ultimately working with a sketch artist to create a likeness of the man he

saw in the store. Leroy testified that the man was wearing a pair of washed-

out jeans with a dark-colored jacket. He recalled that the jacket reminded

him of a ski coat. He also testified that there were two vehicles in the

parking lot while they were there—a black car and a maroon car. There

were no pickup trucks in the parking lot.

John Toumbs. A man by the name of John Toumbs who lives in Mt. Sterling,

Illinois, testified at trial. He owns a repair store. Prior to January 8, 1992,

John purchased a .38–caliber semiautomatic pistol that was manufactured

by Jennings Bryco from a gun store called Merkels in Quincy, Illinois.

Sometime before January 8, 1992, John Toumbs told a few people that he

wanted to sell the gun. One of the people he told was Scott Bemis. He

believes that Scott Bemis told the defendant that the gun was available. On

January 8, 1992, the defendant came to his store. John testified that the

defendant was an occasional customer of his store. He also knew the

defendant from drag racing events, which was an interest that he and the

defendant shared. The defendant said that he wanted to buy the gun. John

Toumbs prepared a paper including the serial number, he confirmed that

the defendant had a Firearm Owner’s Identification card and included that

number on the receipt, and he and the defendant both signed the sales

receipt. John identified this original document, which was admitted into

evidence. The gun he sold the defendant was in a blue box. On December

19, 2003, he turned the receipt over to the O’Fallon police department

following a visit from an officer earlier that day. John testified that

somehow he came to the police department’s attention because they

learned that he had owned a .38–caliber pistol at one time.

Lieutenant Eric VanHook. On December 17, 2003, an O’Fallon police

department officer, Lieutenant Eric VanHook, along with Officer John

Spanley, approached the defendant on the parking lot of his place of work,

the Western Illinois Correctional Center, to ask if they could speak with him

about a case. The defendant said that he would need to first speak with his

attorney. The officers had a warrant to search the defendant’s vehicle,

although that fact was not immediately disclosed to the defendant. The

officers did not read the defendant his constitutional rights pursuant

to Miranda v. Arizona while on the parking lot. After speaking with his

attorney, the defendant and the officers got into a vehicle and began

traveling to the Mt. Sterling police department for the interview. Along the

way, the defendant’s attorney called and asked if the location of the

interview could be changed from the police department to his law office.

The officers agreed. During this ride, the defendant was not handcuffed and

sat in the front seat. An officer drove the vehicle, and two other officers rode

in the backseat. The defendant was not questioned during this commute.

He was allowed two stops to use a restroom, and an officer purchased the

defendant a soda to drink. Upon arrival at the defendant’s attorney’s office,

the defendant and his attorney had a private conversation. Thereafter, the

defendant requested immunity in exchange for agreeing to give the

statement. Although the immunity request was denied, the defendant

ultimately agreed to give a statement to the police, so long as the statement

was recorded and done in the presence of his attorney. Miranda rights were

read to the defendant before he gave his statement. The defendant

acknowledged his understanding of those rights. The defendant’s recorded

statement lasted approximately 50 minutes. The officers offered the

defendant a ride back home, but he declined that offer. During the

defendant’s interview, the police executed the search warrant for the

defendant’s vehicle.

Stipulation Regarding the Defendant’s Truck Search. At trial, the parties

stipulated that nothing of evidentiary value was found during the search of

the defendant’s truck on December 17, 2003.

The Defendant’s Taped December 17, 2003, Interview. The defendant prefaced

his interview with a statement to the effect that he had wanted to contact

the police before this interview in order to tell them what he knew, but he

had not done so due to advice he received from his wife and his father-in-

law. During the videotaped statement, the defendant acknowledged that he

was in the O’Fallon store on the date that the victim was murdered. On that

date, the defendant traveled to the area to go to an auto parts swap show in

Collinsville. However, he never found the show and ended up in the

Fairview Heights/O’Fallon area. He traveled back onto eastbound

Interstate 64 intending to go home but realized that he was going in the

wrong direction. He exited the interstate in O’Fallon. He saw the dance

store and thought that he could stop in there and purchase a black leotard

for his daughter. He went into the store, made a purchase, and returned to

the interstate. After several minutes, he began having second thoughts

about his purchase—concern that the leotard would not fit. Because he did

not live in that area, he would not likely be back to return or exchange the

leotard. He then turned around and returned to O’Fallon with the intent of

returning the item.

Upon parking his truck on the parking lot, he saw a young man in what he

described as a track suit walk from the dance store towards his truck. He

assumed that the man was going to talk to him, but instead, the man quickly

passed by his truck. The defendant entered the store. He did not see the

employee. He found some blood near a clothing rack, and out of concern

for the employee, he began calling out to her and looking throughout the

store. Upon entering a room in the store, he discovered her body. The

defendant stated that when he found her body that there was nothing

distinctive about the way in which the employee was dressed. He

acknowledged touching her thigh and checking her body for a pulse. He

determined that she was deceased. Fearing for his own safety, he fled the

store and the O’Fallon area. He claimed that he did not know what to do.

He did not have a mobile phone.

When he got home, he told his wife what happened, and the two of them

tried to determine what he should do with this information. The

defendant’s father-in-law also was told about his experiences, and his

father-in-law advised him to stay out the situation—essentially to say

nothing.

The defendant testified about various threats that were made by Dawn

relative to their pending divorce. The divorce had become combative, as the

defendant stated that he had proof that Dawn committed child abuse.

Dawn left him telephone messages advising him that if he did not act in a

nicer manner towards her that she would have to go to the law enforcement

authorities to tell them what the defendant knew about the murder and had

not disclosed. Dawn allegedly told him that she would be contacting the

O’Fallon police. The defendant stated that he had not spoken to any other

members of law enforcement about the events of December 31, 1999, until

this interview.

Emily Hea Buss’s Videotaped Deposition Testimony. During her deposition,

Emily explained her medical condition. Emily was due soon to give birth,

and she did not feel safe traveling to St. Clair County to testify at the

trial. She was previously married to Joe Hea, with whom she had two

children. They were neighbors of the defendant and Dawn for some time.

The Heas moved away to a different home in Mt. Sterling in 2002. In 2003,

she was aware that Dawn and the defendant were going through a divorce.

The defendant stored some of his personal belongs in their home at this

time.

Sometime in August 2003, the defendant spoke to Emily in her garage about

the events of December 31, 1999. He prefaced his story to Emily as one that

would “freak [her] out.” He told her that he had been in O’Fallon and had

stopped to buy his daughter a leotard at a dance store. He returned to the

dance store after deciding that the leotard may not fit his daughter, but

upon his return, he could not find the store clerk. He waited a considerable

length of time and ultimately decided to look for the clerk. He saw blood

on the floor in an area by the cash register. The defendant searched through

the store, ultimately finding the girl’s body. He got scared and fled the

scene. He had blood on his clothing and hands. He went to a convenience

store where he washed his hands and threw away the leotard. He drove

home and lied to Dawn about the source of blood on his clothing, telling

her that he struck an animal with his car. He also told Emily that he believed

Dawn planned to blackmail him about his failure to go to the police.

Emily testified that she asked him what he planned to do about what he

had witnessed and told him that he should talk to someone and clear his

name.

The next day, Emily searched the Internet without success for information

about the murder.

Later in October 2003, just before Emily and her husband were to testify on

his behalf at hearings about his divorce, the defendant told her that he had

an appointment to meet with O’Fallon police and his attorney. On October

10, 2003, right after Emily and her husband Joe testified for the defendant,

he told them that the night before he and his attorney met with O’Fallon

police officers in his attorney’s office and that he had been cleared. Having

no reason to doubt this statement, Emily did not contact the police.

After this conversation, but before December 15, 2003, something happened

that changed the nature of their friendship with the defendant. Emily

testified that after the divorce hearing, some things the defendant told them

did not match up with certain events. As a result, she and Joe determined

that his items needed to be removed from their home. Emily stated that they

quietly severed ties with the defendant. When pressed, Emily testified that

she “disagreed with how he handled some things.”

On December 15, 2003, the police contacted her. Ultimately, Emily gave four

interviews to the O’Fallon police about these conversations. Upon cross-

examination, Emily admitted that she had conversed with her then-

husband Joe about the situation, but never about any substantive fact of the

defendant’s story. Instead, she characterized her conversations with her

husband as being in the realm of shock that someone they knew had been

involved in this type of situation.

Joseph Hea. Joseph Hea, the defendant’s former neighbor and friend, and the

ex-husband of Emily Buss, testified at trial. Sometime in 2000, he and the

defendant had a conversation in which the defendant told Joseph that he

had met a girl named Amy who looked a lot like Joseph’s then wife, Emily.

In August 2003, the defendant called Joseph and asked to meet him at a

bar. The defendant told his story of purchasing the leotard on December 31,

1999, and then deciding to return the leotard and finding the store clerk

dead. Joseph testified that the defendant traveled to O’Fallon for a swap

meet but earlier had told police in an interview that he thought that the

swap meet was a gun swap meet. The defendant explained to Joseph that

upon determining that the dance store employee was dead, he panicked

and fled the scene. The defendant told him that he went to a convenience

store to wash his hands in order to get the blood off of his hands and arms.

The defendant threw the bag containing the dance leotard in the

convenience store trash can. The defendant told Joseph that at some point

after fleeing the dance store crime scene, he threw a gun that he was

carrying that day out the window of the truck. He got rid of the gun because

he was in this state of panic.

At some point during this conversation in the bar, the topic of the weapon

and the caliber of the weapon came up. The defendant stated that the

weapon was a “throw-away” one. Joseph asked the defendant if it was a

.45–caliber gun, and the defendant said that it was. The defendant told

Joseph that the caliber of the gun he threw away on his way home matched

the caliber of the gun used by Amy’s murderer.

The defendant told Joseph that he drove home and told his wife that he had

hit an animal resulting in the blood on his clothing.

The defendant told Joseph that Dawn was “blackmailing” him in the course

of their divorce proceedings with the knowledge that the defendant had not

gone to the authorities with the information he had.

Joseph testified that at this bar, after the defendant told his story, Joseph

advised him to go to the authorities to tell them what he saw. Joseph

testified that approximately one week later, the defendant told him that he

and his attorney had gone down to St. Clair County to file a report. The

defendant told Joseph that the authorities were not terribly interested in the

information he had about the crime.

Thereafter, the defendant and Joseph had a falling out in which Joseph and

his wife Emily distanced themselves from the defendant relative to

allegations apparently made by the defendant to third parties that Emily

was having an extramarital affair.

Sometime in December 2003, Joseph had a conversation with Dawn about

what he knew of the defendant’s involvement at the O’Fallon crime scene.

Dawn told Joseph that she was going to let the authorities know that the

defendant also told Joseph about what happened. Approximately three

days later, Joseph was contacted by the police on December 15, 2003, to

inquire about the conversations he had with the defendant about the

O’Fallon crime. By the time of the interviews, Joseph was no longer friendly

with the defendant.

Joseph testified that the defendant and Dawn were both into guns—that

buying and shooting guns was their hobby.

John Hackman. John Hackman, Emily Buss’s father, also testified at the trial.

He resides in Jacksonville. He met the defendant in 1999 when Emily and

her husband Joe became neighbors with him. As time passed, he became

friendly with the defendant due to shared interests. When the defendant

was diagnosed with cancer, John drove him numerous times down to the

St. Peters, Missouri, location of Barnes Hospital for chemotherapy. He also

accompanied the defendant on a trip to Wisconsin to obtain a drag racing

engine.

In the fall of 2003, when the defendant and Dawn began the divorce process,

the defendant began spending more time with John—frequently spending

nights with John in his home. During one of these visits, the defendant told

him about the O’Fallon crime scene he encountered. During this

conversation, the defendant told John that he was fearful that Dawn was

going to tell the authorities what she knew.

The defendant told John that he went down to the area on December 31,

1999, to go a swap meet gun show. Unable to find the swap meet, he ended

up in a store at which he purchased an article of clothing for one of his

daughters. He told John that he decided to return the item and upon arrival

back at the store saw a man running out of the store wearing a coat and a

stocking cap. He discovered the store clerk’s body in the store. The

defendant told John that he rolled the girl’s body over in order to check for

a pulse. He told John that the girl had been shot in the head. The defendant

fled the scene. He told John that the reason he ran was because he had an

unregistered handgun with him, and he was afraid to be caught with it.

Somewhere on the way home from O’Fallon, he got rid of the gun. When

he got home, he told Dawn that he hit a deer. When she began to try to get

the stain out of the pants and noticed that there was more blood there than

what she would have expected, Dawn was able to get the defendant to tell

her the full story.

John testified that for two to four weeks, he tried to get the defendant to

contact police. Finally in October 2003, when John and the defendant were

at a race track, the defendant told John that he and his attorney had an

appointment with O’Fallon detectives. The day after the alleged meeting,

John contacted the defendant to find out how it went. The defendant told

him that the meeting was fine and that the detectives advised him that he

was uninvolved in the case.

Eventually that fall of 2003, the friendship between John and the defendant

began to wane. After the divorce, John went to Dawn’s home to apologize

to Dawn for taking the defendant’s side during the divorce proceedings.

The topic turned to the events of December 31, 1999. While at Dawn’s home,

Dawn told John what the defendant had told her about his involvement in

the case. Dawn told John that the defendant bought the gun that he threw

away at a swap meet. The defendant allegedly told Dawn that he took the

gun with him to the swap meet because he was carrying $300 in cash.

Ultimately, the police interviewed John in December 2003 and again in

January 2004 due to technical difficulties with the recording in December

2003.

In John’s testimony, he stated that while he spoke with Dawn about the

defendant’s story prior to the police interview, nothing that he would have

told the police officers changed because the stories that the defendant told

him and told Dawn matched. John acknowledged reading newspaper

articles about the crime. John also acknowledged that he and his daughter

Emily and son-in-law Joseph talked about the defendant from time to time,

but not exclusively about this case because there were many things going

on with the defendant at the time.

James Ritchey. James Ritchey is Dawn Ritchey’s father. He testified that his

daughter had been married to the defendant for approximately 10 years.

He socialized with the defendant during his daughter’s marriage. He

confirmed that the defendant and his daughter both enjoyed owning and

using guns. He testified that the defendant bought his daughter an

inexpensive .38–caliber pistol and that the defendant possibly had another

.38–caliber gun as well.

In early January 2000, the defendant and Dawn came to speak with him in

his home in Macomb. The defendant proceeded to tell the story of what he

witnessed on December 31, 1999. The defendant told James that the victim

had been shot in the head. James Ritchey denied ever telling the defendant

to stay out of the case or to not get involved. To the contrary, James told the

defendant that he needed to get in contact with the O’Fallon police

detectives to tell them what he saw. He also confirmed that his daughter

Dawn did not ever, in his presence, tell the defendant to stay out of the

matter and/or to tell no one of what he witnessed.

At some point in the fall of 2003, after the divorce process had begun,

O’Fallon detectives were in contact with him. At their request, he did

participate in a taped phone call to the defendant in an effort to get his

acknowledgment that he did at one time buy Dawn a .38–caliber handgun.

The defendant denied doing so and told James that he bought her a .22–

caliber gun.

James denied ever reading newspaper articles about the crime.

Dawn Ritchey. Dawn Ritchey testified that she married the defendant in

1993, and two daughters were born during the marriage. The children were

five and three in December 1999. Dawn has been employed with the Illinois

Department of Corrections throughout her career. Currently, Dawn is a

parole agent. Prior to that, she was a correctional counselor within the

Western Illinois Correctional Center. The defendant was a maintenance

equipment operator for the Department of Corrections and drove a truck

delivering meat to all of the State’s prisons. Dawn testified that both she

and the defendant were firearms enthusiasts.

On the morning of December 31, 1999, the defendant left the home wearing

a dark brown leather bomber jacket she gave to him that Christmas as a

present. He was also carrying a small black triangular-shaped case in which

they kept a small gun—a .38–caliber. Dawn explained that she knew that

the defendant was carrying the .38 that date because it was the only gun

that they owned that would fit into that case. Dawn testified that the

defendant bought the gun for her. Her understanding was that the gun was

purchased at a gun show in 1996 or 1997.

Later that night, the defendant came home at somewhere between 5 and

6:30 p.m. Dawn testified that the defendant came in and walked straight

upstairs. He was not wearing his leather bomber jacket. She noticed that

there was something on his jeans from the knees on down. She described

the substance as being more than a mere splatter but less than being soaked.

Dawn testified that she asked the defendant what that was on his pants.

The defendant told her that it was blood from an animal that he had to drag

off of the road. Later, Dawn saw the pants again—in the trash can in their

bathroom.

That night, the defendant had to work because it was the New Year’s Eve

of the year 2000, and officials were concerned that there could be Y2K

outages, necessitating the delivery of things to the prisons within the

system. He got home at around 2 a.m.

The next day, the defendant slept in. Dawn described this as unusual as the

defendant always got up early in the morning. At around 1 p.m., she carried

lunch into the bedroom for the defendant. Dawn stated that she could tell

that there was something wrong, and she asked the defendant. The

defendant proceeded to tell his story. He told Dawn that he had witnessed

something that really bothered him and that he could not get the images

out of his mind when he tried to sleep. He told Dawn that he had intended

to go to the gun show on December 31, 1999, but that he was unable to locate

the show. He returned to a convenience store where he had seen the flyer

with the plans of rereading the flyer, only to discover that the flyer was now

gone. As he returned to his car, he saw a dance clothing store and decided

to go over to purchase an outfit for their daughter. Dawn testified that this

would have been unusual because Dawn bought not only all dance apparel

for their daughter, but she purchased all clothing for both daughters. She

could not recall any instance where the defendant bought clothing for their

daughters. Shortly after the purchase, the defendant returned to the store

with the intention of returning the outfit. He then encountered a man

running from the store. This man had a duffel bag and was wearing a track

suit. The defendant told Dawn that he thought that the man was coming

straight towards him, and so the defendant reached for the gun that he had

with him. However, when the defendant looked up, the man was gone. The

defendant then entered the store with the outfit. He saw no one. He called

out but got no response. The defendant told Dawn that he saw blood behind

the counter and followed a trail that led to a back room in the store where

he found the girl’s body. The defendant knelt down to check the girl’s pulse

in her neck. He explained to Dawn that this is how he got blood on his

pants. He told Dawn that the girl’s pants were pulled down. Dawn was

unable to remember if the defendant told her that the pants were pulled

down to her knees or to her ankles. The defendant told Dawn that upon

determining that the girl was dead, he got scared and left the store, stating

that he feared that he had left prints on the door.

A couple of days later, she and the defendant went to Quincy to look in

newspapers to see if there was a description of the man the defendant said

he saw leaving the store. Dawn recalled that in a St. Louis Post–Dispatch

article (that she believed was dated sometime between January 1 through

January 4, 2000), the police investigators were looking for a sixfoot-tall

blond man.

Shortly after looking in the newspapers, Dawn and the defendant went to

her dad’s home. The defendant told her dad the same story, also explaining

that the reason he did not call anyone was because he was afraid that they

would think that he committed the crime. Dawn testified that her dad told

the defendant that he should call the police anyway. Dawn also encouraged

the defendant to do so, telling the defendant that at a minimum he should

call the CrimeStoppers hotline with his tip. Her dad never told the

defendant to stay out of the case. Dawn testified that she never told the

defendant to stay out of the case. Dawn testified that she continued to

encourage his reporting, but due to life circumstances in their own home,

Dawn testified that, sadly, she somewhat forgot about the murder.

In 2002, the defendant was diagnosed with colon cancer. He had surgery

and six to eight months of chemotherapy. Dawn testified that they all

focused on the defendant’s recovery.

Dawn testified that she never thought that the defendant was lying to her

or that he was in any way involved in the murder of Amy.

At the end of July in 2003, the defendant accused Dawn of having an affair

with a man in the area where they lived. She moved out of the home, taking

the two girls with her, and filed for divorce. Dawn described the divorce

process as not amicable. Dawn acknowledged that after the defendant

began an attempt to obtain sole custody of their daughters, she called him

and left a voicemail to the effect that if he continued to do these things, she

would have no choice but to tell the court about the crime he failed to

report. The morning after she left this voicemail, Dawn was visited at work

by the defendant and his mother to discuss the divorce.

A prison employee who worked with Dawn and whom Dawn had told

about her husband’s story located the St. Clair County sheriff’s department

website and read the information about the unsolved crime. Dawn’s friend

felt that what she read was important and asked Dawn to look at the

information. On the website, there were two composite drawings. Dawn

agreed with her coworker that one of the drawings, coupled with the

description of the man that the O’Fallon police were looking for, matched

the defendant. Her friend advised that if Dawn would not call the police,

then she would. Dawn then went to see her divorce attorney and told him

the full story. Prior to that time, she had only told her attorney that she had

information that the defendant failed to report a crime. Dawn had not

previously told her attorney the specifics of the incident. Her attorney

called the O’Fallon police department on September 19, 2003.

On September 20, 2003, Officer Spanley drove to the home of Dawn’s

divorce attorney to interview her. Dawn testified that she, the attorney, and

the officer did not discuss the facts of the case before she gave her recorded

statement.

The court entered a dissolution of the Phillips’ marriage on December 15,

2003, reserving all decisions relative to child custody, visitation, and

property distribution.

On December 17, 2003, the police returned to Mt. Sterling and stopped at

her home to ask if they could search the premises. Dawn signed a consent

for the search and then showed the officers around. One of the places that

the officers searched was in the attic. Dawn testified that while the parties

were by then divorced, not all of the defendant’s things had been removed

from the home. She testified that the attic space had essentially been

divided with her things on one side and the defendant’s things on the other

side. The officers searched through the defendant’s items and located a

cardboard box for a .38–caliber handgun. Dawn testified that she did not

remember ever seeing this box before. On cross-examination, she explained

that the .38–caliber handgun was a gift from the defendant to her, and when

he gave it to her, it was not in a cardboard box.

Dawn testified that the .38–caliber gun was never registered.

She claimed that when she left that phone message for the defendant that

she was not attempting to get the upper hand in the divorce proceedings.

At trial, the defendant’s attorneys played Dawn a tape-recorded message

that they contended was her threat to the defendant. Dawn testified that

she really did not believe that this was her voice on the tape. The voice did

not sound like her voice, and the speaker on the tape used words in the

message that Dawn would never use.

Dawn testified that the defendant had visitation with his children until he

was arrested on December 16, 2003. Ultimately, she was awarded custody

of their two girls and was awarded the house in the property settlement.

Dawn testified that she and the defendant had been down in the metro-east

area of St. Louis several times before December 31, 1999.

When asked why she never called the police herself after she learned what

the defendant witnessed, she testified that she believed her husband.

However, Dawn testified that after looking online at the composite drawing

and accompanying description, coupled with the defendant’s behavior

after she filed for divorce, she felt compelled to provide the information that

she had.

Dawn acknowledged that someone told her that there was a $20,000 reward

for information about Amy’s murder, but this person also reminded Dawn

that as employees of the Department of Corrections, they were ineligible for

an award.

Doris Lehne. The defendant’s mother, Doris Lehne, testified at trial. She was

a tax accountant and had lived in Mt. Sterling, Illinois, since 1964. She

testified that the defendant had worn facial hair—a moustache and

goatee—from approximately 1997 through 2003. After the divorce

proceedings began, she suggested to the defendant that he shave his facial

hair because he was going to be making court appearances. Doris testified

that the defendant and Dawn had many mutual hobbies, including guns.

She testified that the defendant was unaware that Dawn was going to leave

him and got home on that particular day to find that most of her personal

possessions had been removed. She described the marriage as a good one

up until that point, and she testified that the defendant adored his two

daughters.

Vehicle Sightings Testimony at Trial. All of the witnesses provided

information about vehicles that they saw in the vicinity of the store and/or

on the parking lot of the store on December 31, 1999.

David Delano testified that he saw a 1980s Dodge Chrysler vehicle driving

at a high rate of speed at 4:25 p.m.

Paul Levins testified that at 4 p.m., and later at 4:50 p.m., he saw three

vehicles on the parking lot—a dark maroon sedan, a 1970s muscle car, and

a third vehicle that he could not remember.

Janet Channel testified that between 5:10 and 5:20 p.m., a 1950s or 1960s

dark-colored vehicle with rust on it cut her off as she was driving on

Highway 50 near the store.

Lisa Krius testified that between 3 and 5 p.m., she saw a black Chevrolet

Cavalier, a white car, and a pickup truck on the parking lot.

Victoria Dickerson testified that between 3:30 and 4 p.m., she saw an older,

boxy gray car drive away from the area. At about the same time she saw a

man standing on the parking lot.

Marilyn Cox testified that at about 4:15 p.m. and at 5:15 p.m., she saw an

old, rusted car on the parking lot. She believed that the car was an old 1960s

powder blue Thunderbird.

A stipulation was read that James Miller would testify that between 6:30

and 6:45 p.m., he saw a black Chevy S–10 pickup truck parked on the

parking lot.

Other Possible Suspects Presented in the Defendant’s Case at Trial.

A man by the name of Thomas Boger testified that on December 31, 1999,

at around 1:30 p.m., a car drove up behind him flashing its lights and

driving erratically. Thomas stopped. The driver—a young white male with

blond hair—wanted directions to the Sports Authority store in Fairview

Heights. Later at about 3 p.m., he saw the same man in his car on the

parking lot of the Sports Authority, and he had a revolver in his hands.

Officer Spanley was with the O’Fallon police department at the time of this

crime and during its investigation. He testified to the various leads and

suspects received by law enforcement agencies about this crime.

They obtained fingerprints from many different people, including Amy’s

boyfriend, Jody Woods. When the detectives from the major case squad

arrived at the apartment where Jody lived, he was found hiding in a closet.

Jody drives a Chevy S–10 pickup truck.

A man by the name of John Sprous was seriously considered as a suspect.

The information leading to John Sprous was overheard by a fellow inmate

of Sprous who wanted a transfer to another jail. This inmate is John Little.

John Little and his cellmate were in fact transferred to the prison of choice.

Officer Spanley’s investigation revealed that John Sprous was out on parole

on December 31, 1999. At the time that he became a suspect, he was in

prison in Missouri for robbing and killing a store clerk. They cross-checked

his fingerprints against what was recovered at the scene and there were no

matches. Officer Spanley confirmed that all St. Louis media, which heavily

covered this murder and the investigation, was carried into the Potosi,

Missouri, correctional facility where John Little was then housed. Although

there were five other inmates involved in the conversation overheard by

John Little through an air vent, none of these five inmates were interviewed.

John Little testified at trial that he was serving a life sentence in Missouri.

Little heard the conversation on January 19, 2002. Little testified that the

men were looking at a magazine and that Sprous allegedly stated that the

photo of a woman in the magazine looked like a girl he had killed in Illinois.

Sprous allegedly claimed that he got off the interstate and went to a service

station. He saw the victim through the window of a store. His alleged plan

was to rape the woman, but then because he saw a taxi cab or a police car

out the front door of the store, he determined that it was necessary to kill

the woman. He allegedly claimed to have moved her body to another area

of the store before returning to St. Louis.

Defense Expert, Brent Turvey. Brent Turvey is a forensic scientist and

criminal profiler. He is an adjunct professor of criminality at Oklahoma City

University. He was asked to review materials related to this case. He

reviewed an FBI profile prepared in this case, the crime scene and autopsy

photographs, the crime scene video, crime scene sketches, several crime

scene reports, the coroner’s report, the O’Fallon police department

investigative reports and evidence logs, the St. Louis Major Case Squad

investigative reports, and the Illinois State Police forensic reports and

evidence logs that involved biology, firearms, and latent prints. He

prepared a written report for the defense dated December 6, 2006, based

upon his review of these documents along with his expertise.

In his review, he found several deficiencies in the processing of the crime

scene. He testified to what he characterized as a very limited effort on the

part of the investigators to document, collect, or search for evidence outside

of the building. No attempt to determine the point of entry or exit from the

building was done. He took issue with the fact that a police vehicle was

parked by the front door of the store. By parking the official vehicle there,

Brent Turvey testified that critical evidence could have been contaminated

or destroyed. He testified that the police vehicle could have been parked on

top of evidence that could have pointed to the criminal offender’s point(s)

of entry and exit. On the subject of entry to and exit from the store, Brent

Turvey testified that the investigation did not seem to include a search for

bloodstains or blood trails outside of the store. He felt that the police should

have processed Amy’s vehicle for any sort of evidence relative to the crime.

Brent Turvey also testified that the police investigation was deficient

because there was no attempt to locate the high-velocity bloodstain pattern

typically associated with a gunshot wound, which could provide detail as

to exactly where Amy was when she was shot.

Brent Turvey rendered additional opinions at trial about the evidence in

addition to those detailed opinions as to deficiencies in the processing of

the crime scene. Although Amy’s body sustained bruising consistent with

a struggle, he felt that she was not in a lengthy struggle because her

fingernails were not broken. He also testified to his opinion that the crime

scene was staged to look like a sexual assault. He defined staging as

something a criminal offender might do to mislead the investigation by

altering the crime scene in order to make it appear to be something other

than what occurred. He further explained this by testifying that Amy’s

body was dragged into the bathroom, and her legs were spread apart, but

the evidence failed to support any effort on the part of the offender to attain

sexual gratification. He testified that had any sexual activity transpired,

blood would have been transferred to the genital area. As there was no

blood in that area of her body, Brent Turvey testified that in his opinion, the

crime scene was staged to look like a sexual assault. On cross-examination,

he admitted that he could not rule out a sexual motivation for the crime in

this case.

See Phillips, 2011 IL App (5th) 070416-U, ¶¶ 7-96 (cleaned up) (Emphasis in original.);

accord Phillips, 2022 IL App (5th) 180348-U, ¶¶ 6-125; (Docs. 1, pgs. 8-20; 13, pgs. 7-11).

By way of a reminder, Petitioner briefly suggests his February 21, 2013, affidavit

from the Illinois postconviction proceedings qualifies as new evidence, stating as follows:

Additional new evidence is presented in the fact section in Ground One, in

the form of [Petitioner]’s own affidavit in support of his post-conviction

petition…. In that affidavit, [Petitioner] directly asserts his actual

innocence. In a new trial, [Petitioner] could elect to testify and directly

refute the testimony of Dawn and other witnesses.

(Docs. 13, pg. 10; 13-3).

However, “obviously self-serving,” “ ‘eleventh hour’ affidavits, containing facts

not alleged at trial and accompanied by no reasonable explanation for the delay[,] are

inherently suspect” and do not meet the evidentiary bar for an actual innocence gateway

claim. See McDowell v. Lemke, 737 F.3d 476, 483-84 (7th Cir. 2013); see also Jeffries v. Adkins,

No. 21-cv-3637, 2024 WL 1363633, *15 (N.D. Ill. March 29, 2024) (finding the petitioner’s

“self-executed affidavit” fell short of that evidentiary bar where he “sw[ore] that he did

not commit the crime and that he was merely driving his car near the scene, smoking

marijuana, and then fled from police because he did not have the money to bail himself

out of jail”). Therefore, to the extent Petitioner now seeks to rely on his affidavit, the Court

finds that evidence is insufficient to support an actual innocence gateway claim under

the above-discussed authorities. See Patterson, 124 F.4th at 1046; Dixon, 93 F.4th at 403.

Further, Petitioner identifies an “additional recording of a voice mail message by

[Petitioner’s ex-wife] to [Petitioner] that was made and recorded after the one played at

trial.” (Doc. 13, pgs. 7-9) (Emphasis in original omitted.). Notably, the recordings were

made by Petitioner, in mid-to-late-2003, with a cassette tape. See Phillips, 2022 IL App

(5th) 180348-U, ¶¶ 186-88; (Docs. 1, pgs. 10, 23-24; 10, pg. 5; 13, pgs. 7-10). Petitioner

stored the cassette tape in his truck until it was seized, pursuant to a search warrant, in

December 2003. See Phillips, 2022 IL App (5th) 180348-U, ¶ 188; (Doc. 1, pgs. 23-24).

Therefore, the additional recording is new in the sense that it was not presented at trial,

but it was evidence about which Petitioner knew before the trial and the time that the

judgment of conviction became final, as Respondent suggests. (Docs. 1, pgs. 5-6, 10, 22-

23; 10, pg. 5; 13, pgs. 7-10). As stated above, an unexplained delay in presenting this

evidence to a court, though not a bar to his actual innocence gateway claim, would tend

to undermine the credibility of Petitioner’s claim. See Gladney, 799 F.3d at 898.

To provide the necessary context, the Court describes each of the recordings

related to Petitioner’s argument in these proceedings. The first recording, which was

played at Petitioner’s trial, contained the following message from Dawn to Petitioner:

Ed, I just wanted to ask you if you had any input on this before I make a

call. I thought I was going to call Jim Stover of the O’Fallon Police

Department about an unsolved murder. I just wondered if you had any

thoughts on that before I made the Call. I’ll talk to you later. Bye.

Phillips, 2022 IL App (5th) 180348-U, ¶ 187; (Docs. 1, pg. 22; 13, pg. 9).

Petitioner left Dawn the following voicemail in response to the above message:

Hi, Dawn. I just wondered if you had any input on this and I just wanted

to check with you first in case I decided to make a call. I made a little trip to

talk to some people and I decided to make a statement, and these nice

people assured me that there is absolutely nothing to be concerned about.

In fact, someone mentioned a term called attempted blackmail. This would

be a good time to stop playing games and treat each other like we at least

used to love each other. So, I guess it is back to the bargaining table since I

want the home and 50-50 visitation and you will have custody and I will

help you get a place if you treat me like you know you should. I just wanted

to get your input first in case I decided to make a call. I guess I’ll talk to you

later.

Phillips, 2022 IL App (5th) 180348-U, ¶ 187; (Doc. 1, pg. 22).

The additional recording, which was not played at trial and is now identified as

new evidence, contained the following responsive message from Dawn to Petitioner:

Hi, Ed. It’s Dawn. I just got your last message. Okay. I guess it won’t be

blackmail because I’m gonna call Captain Jim Stover tomorrow at the

O’Fallon Police Department and I guess we’ll just do this. I can’t understand

why you won’t be nice and I guess it is what I will have to do. Well, I will

talk to you later. Bye.

Phillips, 2022 IL App (5th) 180348-U, ¶ 187; (Doc. 1, pgs. 22-23).

Petitioner argues, if the additional recording was played at trial, it “would have

completely undermined Dawn’s testimony—including her denial that it was her voice on

the first voice-mail recording, her claim that she had only threatened to tell the divorce

court, and not the police, about [him] being at the scene of the murder, and her evasion

of the question as to whether she had sought to blackmail [Petitioner].” (Doc. 13, pg. 10).

Petitioner argues the additional recording “would have exposed her as someone willing

to lie in order to convict” Petitioner. (Doc. 13, pg. 10) (Emphasis in original omitted.).

Like Petitioner’s February 21, 2013, affidavit, the additional recording is not the

type of evidence that typically allows a petitioner to prevail on an actual innocence

gateway claim. In other words, the additional recording is unlike the type of reliable

evidence described by the Seventh Circuit, i.e., exculpatory scientific or biological (DNA)

evidence, trustworthy eyewitness accounts, or other critical physical or documentary

evidence. See Patterson, 124 F.4th at 1046-47; Dixon, 93 F.4th at 403.

In any event, though, even when viewing the additional recording in the light

requested by Petitioner, the Court cannot conclude that evidence proves it is more likely

than not that no reasonable juror would find him guilty beyond a reasonable doubt.

See Patterson, 124 F.4th at 1046; Dixon, 93 F.4th at 403; (Doc. 13, pgs. 7-10). That is, even

assuming the additional recording undermines Dawn’s testimony or amplifies her

alleged credibility issues, as discussed above, Petitioner cannot satisfy the demanding

standard for an actual innocence gateway claim in light of all the other available evidence

of record. In reaching this conclusion, the Court stresses that it cannot make independent

factual determinations about what occurred in this case, as it is only tasked with assessing

the likely impact of the evidence on reasonable jurors. See Blackmon, 823 F.3d at 1102.

When doing so, the Court recognizes Petitioner’s theory is that Dawn sought an

upper hand in their divorce proceedings when reporting her knowledge of the murder.

However, it remains the case that Dawn, by choosing to make that report years after the

murder, potentially subjected herself to criminal liability for not making an earlier report.

See Phillips, 2011 IL App (5th) 070416-U, ¶ 246. Further, regardless of whether she

intended to make a report to the divorce court or to the police, or whether the second

recording was more threatening than the first recording, the record shows Dawn accused

Petitioner of failing to report the murder but not of committing the murder. See id. ¶ 247;

Phillips, 2022 IL App (5th) 180348-U, ¶ 192. Indeed, the record indicates Dawn initially

believed Petitioner’s version of events. And, importantly, Petitioner admits, “[o]n cross-

examination, [Dawn] admitted telling police that her voice-mail message…was

‘threatening’ because he was seeking custody of their children.” (Doc. 1, pgs. 14-16, 24).

Also, Petitioner told a largely consistent version of events to James Ritchey, Joseph

Hea, Emily Hea Buss, and John Hackman, including, inter alia, that he: (1) was at the scene

of the crime interacting with Amy immediately before her murder; (2) found, and then

touched, Amy’s dead body; (3) had blood on his clothing; (4) fled the store without

reporting the crime to law enforcement; (5) destroyed the evidence, including the leotard,

his clothing, and his firearm, that tied him to the scene of the murder; (6) found Amy with

a gunshot wound to the head, despite the fact that the police investigators and the

forensic pathologist could not determine a cause of death by looking at Amy; and

(7) indicated he met with, and was subsequently cleared by, police detectives, when that

was not true. See Phillips, 2011 IL App (5th) 070416-U, ¶¶ 247-250; Phillips, 2022 IL App

(5th) 180348-U, ¶ 192. Therefore, even when setting Dawn’s testimony aside, the Court

agrees with the Illinois Appellate Court, Fifth District, that “[i]t defies logic that every

one of these witnesses, all of whom relay[ed] essentially the same story, ha[d] motivations

to falsify evidence and to harm” Petitioner. See Phillips, 2011 IL App (5th) 070416-U, ¶ 247.

Petitioner’s interview with the police was also played for the jury at trial, which

indicated he could remember “precise details” about some things, such as seeing a man

exiting the store before he found Amy’s body and subsequently deciding to touch Amy’s

body to determine if she was still alive, but not other things, such as whether Amy’s

clothes were removed. See id. ¶ 252. Finally, the jury heard that, while Petitioner denied

owning a .38 caliber firearm, John Toumbs sold such a firearm to Petitioner in 1992 and

was able to identify the “blue Bryco Arms box” that was found in the attic of the Phillips’

marital home. See id. ¶¶ 25, 253. Based on this evidentiary record, which would still allow

a reasonable juror to find beyond a reasonable doubt that Petitioner’s actions were

inconsistent with innocence, Petitioner cannot prove a gateway claim of actual innocence.

III. CONCLUSION

As stated above, the Motion to Dismiss is GRANTED. The case is DISMISSED

with prejudice. The Clerk of the Court is DIRECTED to enter judgment accordingly.

Since Petitioner is a state prisoner, he does not enjoy an absolute right to appeal.

See Buck v. Davis, 580 U.S. 100, 115 (2017). He must obtain a certificate of appealability,

which may issue only if Petitioner made a substantial showing of the denial of a

constitutional right. See 28 U.S.C. § 2253(c)(1)(A), (2); see also Rule 11(a) of the Rules

Governing Section 2254 Cases in the United States District Courts. Petitioner must show

“jurists of reason could disagree with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues presented are adequate to deserve

encouragement to proceed.” Buck, 580 U.S. at 115. If a petition is dismissed on procedural

grounds, without consideration of the merits, then the petitioner must show jurists of

reason would find it debatable whether he or she stated a valid claim for the denial of a

constitutional right and that the Court was correct in its procedural ruling. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000); accord Peterson v. Douma, 751 F.3d 524, 530-31 (2014).

Here, the Petition was filed after the time prescribed by the one-year limitations

period and Petitioner has not shown he is entitled to either an equitable tolling or to

proceed through the actual innocence gateway. The Court FINDS jurists of reason would

not disagree with this conclusion. Therefore, a certificate of appealability is DENIED.

SO ORDERED.

Dated: February 7, 2025

s/ David W. Dugan

__________________________

DAVID W. DUGAN

United States District Judge