United States District Court, N.D. Indiana, Hammond Division
Althirty C. Hunter, Petitioner,
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
C. Hunter, a pro se prisoner, filed a habeas corpus petition
attempting to challenge his convictions and 85-year sentence
by the Lake Superior Court on January 13, 2006, under cause
number 45G04-0409-MR-7. Hunter acknowledges that his petition
is untimely, but argues the Court should consider his claim
because he is actually innocent.
“To invoke the miscarriage of justice exception to
AEDPA's statute of limitations, we repeat, a petitioner
must show that it is more likely than not that no reasonable
juror would have convicted him in the light of the new
evidence. Unexplained delay in presenting new evidence bears
on the determination whether the petitioner has made the
McQuiggin v. Perkins, 133 S.Ct. 1924, 1935 (2013)
(quotation marks and citation omitted). A petitioner who
asserts actual innocence “must demonstrate
innocence; the burden is his, not the state's . . .
.” Buie v. McAdory, 341 F.3d 623, 626-27 (7th
Cir. 2003) (emphasis in original). Furthermore, actual
innocence means “factual innocence, not mere legal
insufficiency.” Bousley v. United
States, 523 U.S. 614, 623 (1998). To support a claim of
actual innocence the petitioner must come forward with
“new reliable evidence - whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or
critical physical evidence - that was not presented at trial,
” id., and must show that “in light of
new evidence, it is more likely than not that no reasonable
juror would find him guilty beyond a reasonable doubt.”
House v. Bell, 547 U.S. 518, 537 (2006). Because of
the difficulty of meeting this standard, such claims are
“rarely successful.” Schlup v. Delo, 513
U.S. 298, 324 (1995).
evidence that Hunter believes proves he is actually innocent
is testimony given by Calvin Lyons in 2006. Lyons was charged
with the same murder as Hunter. Lyons plead guilty a few
months after Hunter was convicted. Hunter argues that Lyons
testified that he acted alone, that Hunter did not provoke
the gunfight, did not have a gun, and did not encourage him
to shoot the victim. The Court of Appeals of Indiana
explained the relationship between Hunter, Lyons, and the
murder in its opinion affirming Hunter's conviction on
“Evidence at trial indicated that on September 11,
2004, Hunter arrived with Calvin Lyons at Jawuan Blake's
residence in Gary at approximately 3:00 p.m. and purchased
some marijuana from Blake. Blake shared his residence with
Dino Moore, who was present that day. According to Blake,
Hunter called him after leaving his residence because Hunter
believed he had unintentionally dropped $100 on Blake's
floor. Apparently Blake was hosting a party that evening and
several people, including Jeff Morgan, were gathered at his
home when Hunter returned at about 9:00 p.m. Blake testified
that Hunter approached him and others in the kitchen, pulled
out a gun, and indicated he wished to recover his $100.
According to Blake, Lyons then also pulled out a gun,
whereupon Moore grabbed Hunter. Others inside the house,
including Blake, grabbed guns, and a firefight ensued. Moore
was killed, and Blake and Morgan were injured.
“Hunter was charged on September 16, 2004 with murder,
two counts of attempted murder, and two counts of battery. In
a November 28, 2005 trial, the State did not allege that
Hunter was the ‘trigger man' but proceeded under a
theory of accomplice liability.”
Hunter v. State, 861 N.E.2d 25 (Ind.Ct.App. 2007).
Lyons' guilty plea testimony was available to Hunter for
more than a decade. He provides no explanation for why he
waited so long to raise this issue. Second, Lyons'
testimony is not new evidence. Though Lyons' words were
not transcribed until after Hunter was convicted, Hunter was
at the party with Lyons and personally knew all of these
relevant facts. Third, even if Lyons had presented this
testimony at Hunter's trial, reasonable jurors could have
still believed Jawuan Blake who testified that Hunter had a
gun. Fourth, because Hunter was not alleged to have shot
Moore, it was not relevant whether he had a gun. Reasonable
jurors could have believed that Hunter was an accomplice
because he went to the party with Lyons after they bought
drugs together earlier in the day.
cannot demonstrate actual innocence. He has admitted that the
petition is untimely. Therefore this petition must be
dismissed as untimely pursuant to 28 U.S.C. § 2244(d).
Pursuant to Rule 11 of the Rules Governing Section 2254
Cases, the Court must consider whether to grant a certificate
of appealability. When the Court dismisses a petition on
procedural grounds, the determination of whether a
certificate of appealability should issue has two components.
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
First, the petitioner must show that reasonable jurists would
find it debatable whether the Court was correct in its
procedural ruling. Id. at 484. If the petitioner
meets that requirement, then he must show that reasonable
jurists would find it debatable whether the petition states a
valid claim for the denial of a constitutional right.
Id. As previously explained, this petition is
untimely. Because there is no basis for finding that jurists
of reason would debate the correctness of this procedural
ruling or find a reason to encourage him to proceed further,
a certificate of appealability must be denied. For the same
reasons, he may not appeal in forma pauperis because an
appeal could not be taken in good faith.
these reasons, the Court:
DISMISSES the petition pursuant to Habeas Corpus Rule 4
because it is untimely;
DENIES a certificate of appealability;
DENIES leave to proceed on appeal in forma pauperis pursuant
to 28 U.S.C. § 1915(a)(3) because an appeal in this ...