Escamilla, Nicholas v. Jungwirth, Eugene ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3666
NICHOLAS ESCAMILLA,
Petitioner-Appellant,
v.
EUGENE JUNGWIRTH, Warden,
East Moline Correctional Center,
Respondent-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 00 C 3270—Marvin E. Aspen, Judge.
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ARGUED SEPTEMBER 20, 2005—DECIDED OCTOBER 14, 2005
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Before EASTERBROOK, MANION, and SYKES, Circuit
Judges.
EASTERBROOK, Circuit Judge. Nicholas Escamilla was
convicted of murder for his role in the death of Hector
Olague, who belonged to a rival gang. The prosecution’s
theory is that Escamilla drove a car that two of his fellow
gang members used to hunt down the victim and escape
after the shooting. Several eyewitnesses described
Escamilla’s role. Testifying at his trial consistently with a
statement he had made to the police, Escamilla admitted
driving the car from which other gang members debarked
to commit the murder, but he contended that he thought
the expedition’s purpose was to pick up one passenger’s
2 No. 04-3666
girlfriend rather than to kill anyone. The jury concluded
that Escamilla had known of the trip’s goal. He is serving
a term of 29 years’ imprisonment.
In this collateral attack under 28 U.S.C. §2254, Escamilla
contends that his attorney furnished ineffective assistance
by withdrawing a motion to suppress the statement and by
not finding potential alibi witnesses. Yet if Escamilla told
the truth at trial, then alibi testimony would have been
perjured, and there would have been little point in exclud-
ing a statement that was all but identical to the defendant’s
trial testimony. Escamilla’s current position, however, is
that he was the perjurer at trial—that he was nowhere near
the scene of the murder, and that his pretrial statement is
the product of coercive interrogation.
It is difficult to see how a collateral attack based on the
proposition that the petitioner’s own trial testimony
was a pack of lies has any prospect of success. Litigants
must live with the stories that they tell under oath. See,
e.g., United States v. Stewart, 198 F.3d 984 (7th Cir. 1999);
Dye v. Wargo, 253 F.3d 296 (7th Cir. 2001); cf. Cleveland v.
Policy Management Systems, Inc., 526 U.S. 795, 806 (1999);
Opsteen v. Keller Structures, Inc., 408 F.3d 390 (7th Cir.
2005).
Escamilla maintains that, once his lawyer withdrew
the motion to exclude the statement, he had “no choice” but
to testify consistently with it. Not at all. He could have
asked the court for a new lawyer, remained silent at
trial, or testified to what he now insists is the truth and
asked the jury to disregard what he had said before. The
legal system offers many ways to deal with problems;
perjury is not among them. See, e.g., Brogan v. United
States, 522 U.S. 398 (1998). How could any court credit
statements made by a litigant such as Escamilla who
trumpets a willingness (indeed, asserts an entitlement) to
lie under oath whenever deceit serves his interests?
No. 04-3666 3
The district court did not deny the petition on this
ground, however. Instead it held the petition untimely.
Escamilla v. Walls, 2004 U.S. Dist. LEXIS 14626 (N.D. Ill.
July 29, 2004). Escamilla’s conviction became final in 1997,
and he did not file a federal petition until 2000. None of the
intervening time is excludable under 28 U.S.C. §2244(d)(2),
because Escamilla did not file a state collateral attack until
after getting the federal proceeding under way. The district
court stayed the federal case to allow exhaustion. See
Rhines v. Weber, 125 S. Ct. 1528 (2005). The state court’s
willingness to entertain a belated collateral attack on the
merits does not affect the timeliness of the federal proceed-
ing, because no state collateral review was “pending” during
1998 and 1999. See Fernandez v. Sternes, 227 F.3d 977 (7th
Cir. 2000); see also Daniels v. Uchtman, No. 04-2574 (7th
Cir. Aug. 29, 2005) (decision by state court on the merits of
a belated collateral attack does not renew the time for a
federal collateral proceeding).
Escamilla contends that his time restarted under
§2244(d)(1)(D), which grants a fresh year from “the date on
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due
diligence.” According to Escamilla, he did not discover until
some time during 1999 (if not later) that other persons who
had been interrogated by Detectives Halloran, O’Brien,
Ryan, and Boudreau had accused these detectives of
coercing them to confess. This additional information
bolsters the contention that his confession should have been
suppressed, Escamilla insists, and justifies a new year
under §2244(d)(1)(D). This argument founders on both
factual and legal grounds.
The factual problem is that people interrogated by these
detectives had been accusing them of misconduct for many
years. The Chicago Tribune ran a story on the subject
during 1993, and the Chicago Police Department’s Office of
Professional Standards published a report in May 1997;
4 No. 04-3666
both of these occurred before Escamilla’s conviction became
final. The district judge sensibly concluded that “Escamilla
could have obtained this evidence through the exercise of
due diligence much earlier than 1999 or 2000.” 2004 U.S.
Dist. LEXIS 14626 at *10. See also Owens v. Boyd, 235 F.3d
356, 359 (7th Cir. 2001) (time runs from when evidence
could have been discovered through diligent inquiry, not
when it was actually discovered or its significance realized).
The legal problem is that Escamilla knew “the factual
predicate of [his] claim” before his trial. The “claim” is that
the statement had been coerced; the “factual predicate” for
that claim is what happened to Escamilla himself (as
opposed to other suspects). Escamilla knew before his
trial how the detectives had treated him. He filed a mo-
tion to suppress. A claim made by pretrial motion, sup-
ported by the recollections of witnesses, is not one in which
the “factual predicate” did not come to light until long
after trial. Section 2244(d)(1)(D) does not restart the time
when corroborating evidence becomes available; if it did,
then the statute of limitations would fail in its purpose
to bring finality to criminal judgments, for any prisoner
could reopen the judgment by locating any additional fact.
As a matter of law, new evidence supporting a claim
actually made at or before trial cannot form the basis of
a new period under §2244(d)(1)(D).
Escamilla cannot get traction by recharacterizing this as
a challenge to counsel’s conduct, for he knew before trial
that counsel had withdrawn the motion. A complaint about
that decision could have been presented to the state
judiciary on appeal or by a prompt collateral attack. No new
“factual predicate” supporting a “claim” that counsel
rendered ineffective assistance is possible even in theory,
because the adequacy of counsel’s performance must
be assessed in light of what was actually known (or reason-
ably knowable) at the time counsel acted, rather than
what comes to light years later. See Strickland v. Washing-
No. 04-3666 5
ton, 466 U.S. 668, 690 (1984); Jarrett v. United States, 822
F.2d 1438, 1442 (7th Cir. 1987).
This drives Escamilla to contend that the statutory
criteria may be overridden by equitable considerations. He
observes that “actual innocence” can excuse a procedural
default in state court and may permit a federal court to
adjudicate a second or successive contention on the merits,
see §2244(b)(2)(B); Herrera v. Collins, 506 U.S. 390 (1993);
he wants us to extend this so that innocence also per-
mits belated filing, despite the lack of any support in
§2244(d) for such an extension. Again this contention has
both factual and legal shortcomings.
The factual shortcoming is that Escamilla cannot demon-
strate, by clear and convincing evidence, that no reasonable
jury would have convicted him. Escamilla’s own words on
the stand at trial show that he drove his fellow gang
members to and from the killing. Courts do not allow
prisoners to start with clean slates after their convictions
and argue “actual innocence” as if the trial had not oc-
curred.
The legal shortcoming is that “actual innocence” is
unrelated to the statutory timeliness rules. See Gildon
v. Bowen, 384 F.3d 883 (7th Cir. 2004). “Actual innocence”
permits a second petition under §2244(b)(2)(B)—it clears
away a claim that the prisoner defaulted in state court or by
omission from the first federal petition—but does
not extend the time to seek collateral relief. Section 2244(d)
sets the timing rules for all petitions. The Supreme Court
said in Dodd v. United States, 125 S. Ct. 2478, 2482-83
(2005), that a second or successive petition must meet these
requirements—and this is so, the Court added, even if the
time runs out before a given avenue of attack on the
conviction becomes legally and factually tenable.
A second petition thus is possible if the factual predicate
could not have been discovered earlier, and the prisoner
shows actual innocence by clear and convincing evidence.
6 No. 04-3666
The first showing resets the clock under §2244(d)(1)(D), and
the second clears the remaining procedural hurdle under
§2244(b)(2)(B). Actual innocence without a newly discovered
claim does nothing at all. Although the statute leaves some
(limited) room for equitable tolling, see Pace v. DiGuglielmo,
125 S. Ct. 1807, 1814-15 (2005), courts cannot alter the
rules laid down in the text. Section 2244(d) has a rule for
when new factual discoveries provide a fresh period for
litigation; unless that standard is met, a contention that the
new discoveries add up to actual innocence is unavailing.
Prisoners claiming to be innocent, like those contending
that other events spoil the conviction, must meet the
statutory requirement of timely action.
AFFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-14-05