United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
February 7, 2011
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 08‐3537
MAURICE COLEMAN, Appeal from the United States District
Petitioner‐Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:99‐CV‐02635
MARCUS HARDY,
Respondent‐Appellee. Amy J. St. Eve,
Judge.
O R D E R
On consideration of the petition for panel rehearing and for rehearing en banc filed by
Respondent‐Appellee on December 3, 2010, the opinion issued in the above‐titled case on
November 19, 2010 is hereby AMENDED as follows:
On page 11 of the slip opinion, a footnote is inserted immediately following the
sentence, “In such a case an evidentiary hearing is warranted only if ‘the facts underlying the
claim would be sufficient to establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have found the applicant guilty of the
underlying offense.’ 28 U.S.C. § 2254(e)(2)(B).” The footnote reads:
We join the Third and Eleventh Circuits in finding that the requirements of 28 U.S.C. §
No. 08‐3537 Page 2
2254(e)(2)(A) do not have to be met in order for a court to hold an evidentiary hearing
on whether the petitioner has met the actual innocence threshold necessary to consider
the merits of his procedurally defaulted claim. See Cristin v. Brennan, 281 F.3d 404, 418‐
19 (3d Cir. 2002) (finding no indications that “Congress intended § 2254 (e)(2)ʹs
restrictions on evidentiary hearings to apply, in addition to hearings on the merits, to
hearings on excuses to procedural default.”); Sibley v. Culliver, 377 F.3d 1196, 1207 n.9
(11th Cir. 2004) (“We do not believe this provision governs the availability of
evidentiary hearings when petitioners seek to introduce evidence concerning actual
innocence. By its own terms, § 2254(e) applies only where a petitioner ‘has failed to
develop the factual basis of a claim in State court.’ The term ‘claim’ appears to refer to
the substantive claim for relief upon which the petition for habeas corpus is based.”).
Cf. Morris v. Dormire, 217 F.3d 556, 560 (8th Cir. 2000) (rejecting argument that district
court abused its discretion in failing to hold an evidentiary hearing on claim of actual
innocence where petitioner made no attempt to satisfy § 2254(e)(2)).
All members of the original panel have otherwise voted to deny the petition for
rehearing. No judge in regular active service requested a vote on the petition for rehearing
en banc. Accordingly, the petition is DENIED.
