# Phillips v. Wills

> District Court, S.D. Illinois · February 7, 2025

URL: https://www.frixlaw.com/law-library/cases/10796149

## Case

- **Court:** District Court, S.D. Illinois
- **Decided:** February 7, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10796149. Public record. Not legal advice.