No. 11-8474 ______________________________ (Seventh Circuit No.

11-1945) IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2011

LATHIERIAL BOYD, Petitioner, v. LEONTA JACKSON, Warden, Respondent. ______________________________

PETITIONERS REPLY IN SUPPORT OF HIS PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ______________________________ Richard H. McLeese 900 W. Jackson Blvd. Suite 6W Chicago, IL 60607 312.492.7273 312.268.6291 (fax) RMcLeeseLaw@aol.com May, 2012

TABLE OF CONTENTS Table of Authorities ----------------------------------------------------------------------- ii A. The Respondent Does Not Dispute That This Legal Question Whether Actual Innocence Is Irrelevant, As A Matter Of Law, When Deciding A Motion To Dismiss A Habeas Petition As Untimely Is An Important One On Which The Circuit Courts Of Appeal Are Split, With At Least Three Circuits On Each Side-------------------------------- 1 The Respondents Contention That This Case Is A Poor Vehicle For Deciding This Question Of Law Crumbles Upon Inspection------------------------------------------------------ 1 1. The Respondent Misconceives The Seventh Circuits Decision, Which Applied A Per Se Legal Rule---------------------------------

B.

2.

The Respondent Misconceives The Question Presented, Which Is Purely One Of Law------------------------------------------ 3 The Respondent Misconceives The Role Of This Court A Court Of Final Review, Not First View--------------------

3.

C.

The Respondents Claim That This Petition Should Be Denied Because The Petitioner Has Not Made A Plausible Showing Of Actual Innocence Cannot Be Reconciled With, Among Other Things, The District Courts Grant Of A Certificate Of Appealability-------The Respondents Treatment Of The Seventh Circuits Decision Raises More Legal Questions Than It Answers--------------------------

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D.

TABLE OF AUTHORITIES Cases Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir. 2005)-------------------------Griffith v. Rednour, 614 F.3d 328 (7th Cir. 2010)------------------------------Holland v. Florida, __ U.S. __, 130 S. Ct. 2549 (2010)-------------------------Schlup v. Delo, 513 U.S. 298 (1995)-----------------------------------------------Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289 (2010)-------------------------Slack v. McDaniel, 529 U.S. 473 (2000)-------------------------------------------Thompson v. Keohane, 516 U.S. 99 (1995)----------------------------------------Zivotofsky v. Clinton, __ U.S. __, 132 S. Ct. 1421 (2012)----------------------Other Authorities Eugene Gressman, Kenneth S. Geller, Stephen M. Shapiro, Timothy S. Bishop, Edward A. Hartnett, Supreme Court Practice (9th ed. 2007)--------------------------------------------------------------------------Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 2.2, at 14-17 (6th ed. 2011, with 2012 Supp.)------------2 2 7 7 3 4, 5 1 passim

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ii

For the reasons set forth below, the Respondents arguments in opposition to our petition for certiorari (Petition) should be rejected. A. The Respondent Does Not Dispute That This Legal Question Whether Actual Innocence Is Irrelevant, As A Matter Of Law, When Deciding A Motion To Dismiss A Habeas Petition As Untimely Is An Important One On Which The Circuit Courts Of Appeal Are Split, With At Least Three Circuits On Each Side The Respondents Brief In Opposition (Brief or Resp. Br.) is noteworthy for what it does not say. The Respondent does not dispute that this questionwhether actual innocence is irrelevant, as a matter of law, when deciding a motion to dismiss a habeas petition as untimelyis an important one.1 Nor does the Respondent dispute that this question has divided the circuit courts of appeal, with at least three circuits on each side.2 B. The Respondents Contention That This Case Is A Poor Vehicle For Deciding This Question Of Law Crumbles Upon Inspection The Respondent contends that this case is a poor vehicle for deciding this question of law.3 This contention crumbles upon inspection. The

Cf., e.g., Thompson v. Keohane, 516 U.S. 99, 106 (1995) (habeas case; circuits split on the question whether state-court in custody determinations are matters of fact entitled to a presumption of correctness under 28 U.S.C. 2254(d), or mixed questions of law and fact warranting independent review by the federal habeas court; [b]ecause uniformity among federal courts is important on questions of this order, we granted certiorari to end the division of authority). See Resp. Br. at 22 (three circuits [Sixth, Ninth, Tenth] have recognized an actual-innocence exception to AEDPAs limitations period), 28-29 (four circuits [First, Fifth, Seventh Eighth] bar consideration of actual innocence in this context). Cf. Petition at 5-6 (four circuits have recognized an actual-innocence exception to the habeas limitations period [Sixth, Ninth, Tenth, Eleventh], whereas three circuits have rejected it [First, Fifth, Seventh]). Resp. Br. at 15.

Respondent misconceives the following: (1) the Seventh Circuits decision, which applied a per se legal rule; (2) the question presented, which is purely one of law, and (3) the role of this Court as a court of final review, not first view.4 1. The Respondent Misconceives The Seventh Circuits Decision, Which Applied A Per Se Legal Rule The Respondent contends that certain threshold issues make it unlikely the Court would ever reach the question presented in the petition.5 This is false. In deciding this appeal, the Seventh Circuit applied a per se legal rule: Boyds petition is time-barred and any tolling argument based on actual innocence would be foreclosed by the decisions of this court. See Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010); Escamilla v. Jungwirth, 426 F.3d 868, 87172 (7th Cir. 2005).6 The Seventh Circuits application of this rule did not turn on any case-specific issues; indeed, a per se rule precludes consideration of such issues. Hence, given the nature of the Seventh Circuits decision, there are no threshold issues.7

Zivotofsky v. Clinton, __ U.S. __, 132 S. Ct. 1421, 1430 (2012). Resp. Br. at 15. See Pet. at Appendix (copy of Seventh Circuits decision). Resp. Br. at 15.

2.

The Respondent Misconceives The Question Presented, Which Is Purely One Of Law Because the Seventh Circuit applied a per se legal rule in deciding this

case,8 the question presented is purely one of law. How could a case present this legal issue any more clean[ly]?9 3. The Respondent Misconceives The Role Of This Court A Court Of Final Review, Not First View As the Court has often emphasized, this is a court of final review, not first view.10 Thus, while issues that were unaddressed by the courts below might well be matters for consideration on remand, such issues are not ripe for decision, in the first instance, by this court of review.11 The Respondent repeatedly disregards these fundamental principles. Having relied solely on a per se legal rule in the lower courts,12 the Respondent now raises for the first time, in this Court, a laundry list of fact-intensive issues that the lower courts never

See Pet. at Appendix (copy of Seventh Circuits decision).

Eugene Gressman, Kenneth S. Geller, Stephen M. Shapiro, Timothy S. Bishop, Edward A. Hartnett, Supreme Court Practice 504 (9th ed. 2007). Zivotofsky v. Clinton, __ U.S. __, 132 S. Ct. 1421, 1430 (2012) ([o]urs is a court of final review and not first view [internal quotation marks and citation omitted]). Skinner v. Switzer, __ U.S. __, 131 S. Ct. 1289, 1300 (2010) (internal quotation marks and citation omitted). See, e.g., Boyd v. Mathy, No. 08 CV 4257 (N.D. Ill.), Dkt. # 23 (Respondents Motion To Dismiss Petition For Writ Of Habeas Corpus As Time-Barred) at 32 (Petitioner alleges that he is actually innocent, but that contention does not excuse him from complying with 2241(d)(1).) See also, e.g., Resp. Br. at 24 n.7 (acknowledging that, in the lower courts, the Respondents position was that, as a matter of law, evidence [of a habeas petitioners actual innocence] is irrelevant to the timeliness of a federal habeas petition.).

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considered, much less decided.13 What the district court did decide is this: the Petitioner raised a colorable claim of actual innocence, one deserv[ing] encouragement to proceed further and, therefore, a certificate of appealability (COA).14 If anything, the Respondents Brief, which is riddled with errors and half-truths, only confirms the wisdom of restricting litigation in this Court to issues that were raised and decided below.15

13

See, e.g., Resp. Br. at 1-2, 15-16. Slack v. McDaniel, 529 U.S. 473, 484 (2000). See Pet. at 2. Consider, for example, the following: (1) The Respondent claims that, after consulting with his attorneys in February of 2007, the Petitioner made a strategic choice not to seek habeas review of the Brady claim. Resp. Br. at 18. See also, e.g., id. at 15 (referring to Petitioners strategic decision not to timely petition for federal habeas review when it was still possible to do so). This is false. The evidence would show that the Petitioner never made such a strategic choice. Severely depressed at the time (after 17 years of incarceration for a crime that, an ever-growing body of evidence shows, he did not commit), the Petitioner was then in no condition to represent himself; he asked his then-lawyers to take his case to federal court; they refused. (2) The Respondent claims that the clemency petition filed by the Petitioners former lawyersthe lawyers who refused his request to pursue habeas reliefremains pending. Resp. Br. at 14. This is false. That petition was denied on April 6, 2012. (Of course, this denial was a forgone conclusion; an inmate cannot expect to obtain clemency where, as here, his request involves disputed issues of fact. Such issues can only be resolved in a court of law.) (3) The Respondent claims that the petitioner failed to satisfy the procedural requirements for advancing . . . a claim of actual innocence in the state court; this may be technically true, but it is, at best, misleading. Resp. Br. at 15. The Petitioner, an inmate in an Illinois penitentiary with limited access to the outside world, succeeded in obtaining a written statement from a witness, the victims (Ricky Warners) brother, James Fleming, indicating that the victimthe only eyewitness that incriminated the Petitioner[cont.]

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C.

The Respondents Claim That This Petition Should Be Denied Because The Petitioner Has Not Made A Plausible Showing Of Actual Innocence Cannot Be Reconciled With, Among Other Things, The District Courts Grant Of A Certificate Of Appealability The Respondent additionally claims that the Petition should be denied

because the Petitioner has not made a plausible showing of actual innocence.16 This contention has several flaws. First, it cannot be reconciled with the fact that, as stated, the district court decided that the Petitioner raised a colorable claim of actual innocence, one deserv[ing] encouragement to proceed further and, therefore, a certificate of appealability (COA).17 Second, in asking this Court to deny the Petition on the basis of points never argued in the courts below, the Respondent again disregards this Courts role as a court of final review, not first view.18

had told him shortly after this shooting that he did not see the person who shot him. Moreover, the written statement obtained by the Petitioner reflected that it was provided under penalty of perjury. What the statement lacked, at the time, was a notarys stamp and signature. (Subsequently, in 2001, the Petitioner did obtain a notarized statement from this witness. See Boyd v. Mathy, No. 08 CV 4257 [N.D. Ill.], Dkt. # 1 [Petitioners Pro Se Habeas Petition, Exhibit 3]). The asserted procedural noncompliance thus turns on the difference between (1) a notarized statement, and (2) an unnotarized statement reflecting that it has been provided under penalty of perjury. Cf. 28 U.S.C. 1746 (authorizing the use in federal court proceedings of unnotarized statements made under penalty of perjury).
16

Resp. Br. at 28. Slack v. McDaniel, 529 U.S. 473, 484 (2000). See Pet. at 2. Zivotofsky v. Clinton, __ U.S. __, 132 S. Ct. 1421, 1430 (2012).

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Finally, the Respondents Brief illustrates, albeit unintentionally, why a party is ordinarily not permitted, in this forum, to argue fact-intensive issues for the first time.19 D. The Respondents Treatment Of The Seventh Circuits Decision Raises More Legal Questions Than It Answers According to the Respondent, the Seventh Circuit correctly decided the question presented because reading an actual-innocence exception into AEDPAs statute of limitations would be contrary to its plain language.20 The Respondents treatment of the Seventh Circuits decision, we submit, raises more legal questions than it answers. Consider, for example, the following:

19

Consider, for example, the following: (1) The Respondent, incredibly, contends that the discrepancies between the physical descriptions of the shooterheight, weight, skin colorprovided by disinterested eyewitnesses and the Petitioners own physical characteristics were [in]significant. Resp. Br. at 27. See Pet. at 16-17. (2) The Respondent, incredibly, contends that the differences between the descriptions provided by Ricky Warner and the descriptions provided by disinterested eyewitnesses, with respect to the color of the shooters car and the way the shooter left the scene, concerned only peripheral details. Resp. Br. at 27. See Pet. Br. at 1718. (3) The Respondent, incredibly, asserts that the sworn statement provided by Ricky Warners brother, James Fleming, stating that Ricky told him that he did not see who shot him that night, had only limited credibility, despite the fact that the Respondent has not offered a single reason why Fleming would have offered false evidence on the Petitioners behalf. Resp. Br. at 28. See Pet. Br. at 18.

20

Resp. Br. at 29.

(1) Can the Seventh Circuits rigid per se rule, barring consideration of actual innocence in deciding a motion to dismiss a habeas petition as untimely, be reconciled with the role of equitable principles in habeas litigation?21 (2) Can the Seventh Circuits rigid per se rule, barring consideration of actual innocence in deciding a motion to dismiss a habeas petition as untimely, be reconciled with the role that actual innocence plays in habeas litigation with respect to application of the miscarriage of justice exception to procedural-default rules?22 (3) Can the Seventh Circuits rigid per se rule, barring consideration of actual innocence in deciding a motion to dismiss a habeas petition as untimely, be reconciled with the interests of the public at large in seeing that the criminal-justice system operates fairly and reliablyinterests that are particularly

21

Holland v. Florida, __ U.S. __, 130 S. Ct. 2549, 2560 (2010). See generally 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure 2.2, at 14-17 (6th ed. 2011, with 2012 Supp.). See, e.g., Schlup v. Delo, 513 U.S. 298, 321-22 (1995). See generally 2 Randy Hertz & James S. Liebman, supra, 26.4, at 1520 et seq.

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significant in this case, given the unusual amount of public concern and skepticism the case has generated?23 Respectfully submitted,

____________________________ Lawyer for Petitioner Lathierial Boyd Richard H. McLeese 900 W. Jackson Blvd., Suite 6W Chicago, IL 60607 312.492.7273 312.268.6291 (fax) RMcLeeseLaw@aol.com

23

For example, WGN-TV News (Chicago) has done a two-part story on the case, Reasonable Doubt. See <http://www.youtube.com/watch?v=MTPtr47DJmg>.

CERTIFICATE OF FILING AND SERVICE I hereby certify as follows: (1) I caused the requisite number of copies of the foregoing submission to be sent to the Clerks Office, United States Supreme Court, One First St. N.E., Washington, D.C. 20543, by Federal Express overnight delivery on May 24, 2012. (2) I caused a copy of the foregoing document to be served on the following lawyer by mailing it to her on May 24, 2012: Illinois Attorney General Lisa Madigan, 100 W. Randolph St., 12th Floor, Chicago, IL 60601. (2) All parties required to be served have been served.

_______________________________ Richard H. McLeese Counsel for Petitioner Lathierial Boyd