In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3537
M AURICE C OLEMAN,
Petitioner-Appellant,
v.
M ARCUS H ARDY, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:99-cv-02635—Amy J. St. Eve, Judge.
____________
A RGUED N OVEMBER 30, 2009—D ECIDED N OVEMBER 19, 2010
____________
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. In 1983, Maurice Coleman
was convicted of the murder and armed robbery of
Terrell Jackson. The sole evidence in the trial against
him was the eyewitness testimony of Jackson’s brother
and stepdaughter, who were present in the home on the
day of the murder. Coleman sought habeas corpus
We substitute Marcus Hardy, the current warden of
Stateville Correctional Center, as the Respondent in this
action. See Fed. R. App. P. 43(c)(2).
2 No. 08-3537
relief from his sentence, claiming that he was deprived
of his Sixth Amendment right to effective assis-
tance of counsel. He also requested an evidentiary hearing
to allow the court to make factual findings and credibility
determinations regarding his claims of actual innocence
and ineffective assistance of counsel. The district
court denied Coleman’s habeas petition and his request
for an evidentiary hearing. Because we cannot meaning-
fully review Coleman’s habeas petition without
more information regarding the content of potential
witnesses’ testimony, we remand to the district court
for an evidentiary hearing as to his claim of
actual innocence.
I. BACKGROUND 1
A. The Crime and Investigation
On August 2, 1981, Chicago police were called to a house
1
While this appeal was pending and before we heard oral
argument, the district court granted the government’s motion to
supplement the appellate record with Coleman’s pro se petition
for a writ of habeas corpus filed in 2006. Coleman responded
with a motion to strike in this court, arguing that the supple-
mental pleadings have never been previously reviewed.
Although we generally decline to supplement the record
on appeal, Ruvalcaba v. Chandler, 416 F.3d 555, 562 n.2 (7th Cir.
2005), we do so when the supplemental material would provide
helpful context, Crockett v. Hulick, 542 F.3d 1183, 1188 n.3 (7th
Cir. 2008). The added context is particularly helpful here, when
we are analyzing whether C olem an can show
“actual innocence.” The motion to strike is denied and the
record is supplemented with Coleman’s 2006 pro se petition.
No. 08-3537 3
in response to a report of a homicide. The victim, Terrell
Jackson, was found in a second floor bedroom with
multiple gunshot wounds. Arlander Adamson, Jackson’s
brother, and Gwen Thomas, Jackson’s stepdaughter, both
claimed to have witnessed the crime. According to the
police report and Adamson’s testimony at trial, Adamson
had been watching television on the first floor when two
men entered the house from behind with guns pointed at
him. They forced Adamson to lie down and then tied his
hands behind his back and gagged him. The men then
forced Adamson up the stairs to the bedroom where
Jackson was sleeping. They forced Adamson to lie down on
the floor face down, next to his sleeping brother. Jackson
woke up as the men slapped him and shouted “where’s the
money, where’s it at?” and then shot him multiple times.
One of the men then went to the room where Thomas
was watching television with her week-old baby. She was
led to Jackson’s room, where the men forced her to help
them look for the money. The room was ransacked but no
money was found. One gold chain with a round medallion
bearing the initials “T.J.” in diamonds and a ring also
bearing the initials “T.J.” in diamonds were allegedly taken
in the invasion. The men then allegedly tied up Thomas
and left. Adamson and Thomas untied each other and
called the police. Adamson and Thomas gave a general
description of the perpetrators to the police. The first man
was described as a black male, 25-30 years old, 5 feet 10
inches to 6 feet tall, 140-150 pounds, black hair, light
complexion, a possible small mustache, and wearing a blue
track suit jacket with white stripes on the arms and blue
jeans. The second man was described as a black male, 23-26
4 No. 08-3537
years old, 5 feet 4 inches to 5 feet 6 inches tall, medium
build, black hair, dark brown skin, mustache and beard
wearing a dark baseball-type cap and blue jeans.
Thomas called her cousin, Dorothy Davis, after the
incident. Davis was on her way to Jackson’s house when
she was stopped by two men in a blue car. They asked if
she was going to Jackson’s, she denied she was, and they
continued on their way. She gave a description of the males
similar to that given by Adamson and Thomas.
Police also interviewed witnesses David and Tracey
Wilkins, who lived next door to Jackson. At the time of the
incident, David said he saw two black males sitting on the
rear porch of Jackson’s home. The two males left and
returned several times during the one-and-a-half-hour
period before the victim was shot. One male ran across to
the laundromat and then returned. David’s brother,
Tracey, had been at the laundromat across the street, where
he saw a black male come into the laundromat and use the
phone. Approximately 45 minutes later, he saw two males
running in the street (he assumed they were running
because of the rain). The police report states that both
brothers gave descriptions of the males similar to those
given by Adamson and Thomas.
Several weeks later, on August 19, 1981, Thomas and
Adamson separately picked Coleman out of a police
lineup. David Wilkins also viewed the lineup but did not
identify Coleman or anyone else as the perpetrator. At a
police interview that day, Coleman told police he was not
sure what he was doing on the day of the murder but that
he was probably at his girlfriend’s house or home alone.
He denied any involvement in the murder.
No. 08-3537 5
During the investigation, police talked to a man named
Roy Wright two different times. In the first interview, on
August 3, 1981, Wright gave the police the following
information: he was coordinating a drug deal with Jackson;
he had picked up two men (one man he knew as “Rip” and
later identified as Coleman, and one man he said he did
not know at all) on the night of the murder; while in his car
these strangers discussed a past event where they had
killed someone; and he dropped them off in front of
Jackson’s house. During the second interview, on August
18, 1981, Wright also told the police that a few days after
the murder, Coleman tried to sell him Jackson’s medallion.
Wright identified Coleman in a book of photographs.
Before a September 3, 1981 evidentiary hearing, Adam-
son picked out Joseph Barnes from a photo array and
indicated that he thought Barnes might be one of the
perpetrators. Barnes was living in Baltimore, Maryland at
the time, and was extradited to Chicago. Adamson and
Thomas separately identified Barnes as one of the perpetra-
tors in a lineup.
B. The Trial
Coleman and Barnes were tried together, with each
represented by separate counsel. The sole evidence against
Coleman at trial was Adamson’s and Thomas’s eyewitness
testimony. There was no forensic evidence introduced at
trial that tied Coleman to the crime. Coleman called three
witnesses in his defense. Dorothy Davis testified about the
two black males who had stopped her on her way to
Jackson’s house. She testified that neither man was
Coleman nor Barnes.
6 No. 08-3537
Coleman also called two police officers to testify to
impeach Thomas’s trial testimony. Thomas testified at trial
that a chain was pulled off her neck on the day of the
murder while she was in her room. Two police officers
testified that Thomas did not report a theft on the day of
the crime, and that her bedroom was not searched or
dusted for fingerprints.
During the trial, Coleman’s counsel, Geary Kull, asked
for a severance. When asked for reasons why he needed a
severance, he asked to speak with the judge ex parte or in
camera. The judge refused, and Kull did not publicly state
his reasons for desiring a severance because he did not
wish to disclose his evidence to the state’s attorney. Kull
renewed his motion for severance just prior to trial, but the
trial judge again refused to have proceedings without the
state’s attorney present. Kull then asked to “preserve the
record” for appeal, by putting a statement of his need for
a severance under seal. The judge did not read this state-
ment and denied the motion for a severance.
Co-defendant Barnes advanced an alibi defense by
having a woman testify that she was with him at the time
of the crime. This defense was disbelieved when the state
presented evidence of his past lies during an extradition
hearing. Both Barnes and Coleman were convicted by a
jury of murder and armed robbery.
C. The New Evidence Discovered Post-Conviction
During Coleman’s state post-conviction proceedings, co-
defendant Barnes submitted an affidavit stating that
No. 08-3537 7
Coleman had nothing to do with the murder. Barnes stated
his co-defendant should have been Roy Wright, and that
Jackson was a drug dealer and the murder was a result of
a drug deal gone wrong. Through the affidavit, and at an
evidentiary hearing, Barnes testified to a detailed sequence
of events leading up to the murder. Barnes’s trial attorney,
James Rhodes, signed an affidavit stating that Barnes had
told him, during the trial, that Coleman had nothing to do
with the murder. He also said that after the verdict, Barnes
expressed dismay that Coleman had been convicted.
An investigator for the defense interviewed Adamson.
Adamson admitted that Jackson was a drug dealer, that
Wright had been to Jackson’s home a couple of times on
the day of the murder, and that Wright and Thomas had an
intimate relationship. Adamson also acknowledged that
the robbers were looking for $10,000 in drug money.
Loretta Cade, Coleman’s girlfriend and the mother of his
child, signed a statement that Coleman was with her at the
time of the shooting. She also claimed that she gave this
information to Coleman’s trial attorney and advised him
that she was willing to testify at the time of trial. Evelynn
Cade, Loretta’s mother, signed a statement that she called
Loretta and Coleman on the day of the shooting at approxi-
mately 5:00 or 5:15 p.m. and spoke to Coleman for fifteen
minutes. She stated that she specifically remembered the
day because it was August 2, and her birthday was August
3. She also stated that she told this to Coleman’s attorney
at the time and that she had been willing to testify.
Evelyn’s statement was made in 1999, two days before the
order of the state court on Coleman’s post-conviction
8 No. 08-3537
motion asserting innocence. Loretta gave her statement in
2000, a year and a half later.
Coleman challenged his conviction on direct appeal, and
filed a state post-conviction petition. The Illinois Appellate
Court affirmed his conviction on July 31, 1998, and the
Illinois Supreme Court denied leave to appeal on Decem-
ber 2, 1998. In April 1999, Coleman filed a habeas corpus
petition under 28 U.S.C. § 2254, challenging the validity of
his convictions for murder and armed robbery. The district
court denied the petition on August 28, 2008, and we
granted a certificate of appealability on the question of his
procedural default and ineffective assistance of counsel
claims.
II. ANALYSIS
Coleman did not raise an ineffective assistance of counsel
claim on direct appeal or on post-conviction review of his
conviction. For this reason, unless an exception to the
procedural default rule applies, Coleman’s ineffective
assistance claim is procedurally defaulted. Lewis v. Sternes,
390 F.3d 1019, 1026 (7th Cir. 2004). A procedural default
can be avoided if a petitioner can show cause and prejudice
or a fundamental miscarriage of justice. Holmes v. Hardy,
608 F.3d 963, 967 (7th Cir. 2010). Coleman argues that we
can reach the merits of his ineffective assistance of counsel
claim because a fundamental miscarriage of justice oc-
curred, as he says he is innocent of the crime. See Schlup v.
Delo, 513 U.S. 298, 315 (1995). He requested an evidentiary
hearing to develop his actual innocence and ineffective
assistance of counsel claims, but the district court denied
No. 08-3537 9
his request. We review the district court’s denial of a
habeas petitioner’s request for an evidentiary hearing for
an abuse of discretion. Schriro v. Landrigan, 550 U.S. 465,
468-69 (2007).
Coleman’s effort to overcome his default is based on a
procedural claim of innocence, and he does not bring a
substantive claim of innocence. Schlup, 513 U.S. at 314. This
means that his constitutional claim is based not on his
innocence, but rather on his contention that the ineffective-
ness of his counsel “denied him the full panoply of
protections afforded to criminal defendants by the Consti-
tution.” Id. His assertion of innocence does not by itself
provide a basis for relief. Instead, “his claim for relief
depends critically on the validity” of his ineffective
assistance of counsel claim. Id. at 315 (petitioner’s claim of
innocence is “not itself a constitutional claim, but instead
a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered
on the merits.”) (internal quotation omitted).
A prisoner asserting innocence as a gateway to a de-
faulted claim 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) (internal quotation and citation omit-
ted); Holmes, 608 F.3d at 968. This standard is “fundamen-
tally different”, and lower, than that for a substantive
innocence claim because the procedural claim of innocence
is accompanied with an assertion of constitutional error at
trial. Schlup, 513 U.S. at 315-16. The petitioner must support
the innocence claim “with new reliable evidence—whether
10 No. 08-3537
it be exculpatory scientific evidence, trustworthy eyewit-
ness accounts, or critical physical evidence—that was not
presented at trial.” Id. at 324. The reviewing court must
consider all the evidence, old and new, and based on this
total record, make a “probabilistic determination about
what reasonable, properly instructed jurors would do.”
House, 547 U.S. at 538 (citing Schlup, 513 U.S. at 329). In
making a probabilistic determination, it “must be pre-
sumed” that jurors obey the instructions of the court,
including the instruction requiring proof beyond a reason-
able doubt. Schlup, 513 U.S. at 329.
Although a claim of actual innocence is “rarely success-
ful,” Schlup, 513 U.S. at 324, an absolute certainty about a
petitioner’s guilt or innocence is not required to satisfy the
petitioner’s burden at the gateway stage. House, 547 U.S. at
538. And the proper inquiry is not whether a particular
juror would have the power to convict in light of the old
and new evidence, but rather “how reasonable jurors
would react to the overall, newly supplemented record.”
Id. The actual innocence inquiry may also involve credibil-
ity assessments and a consideration of the strength of the
government’s case. Id. at 539-41.
The district court denied Coleman’s request for an
evidentiary hearing because it felt it had “the ability to
make credibility determinations and no new factual
findings are necessary to determine Coleman’s ineffective
assistance of counsel claims.” Because Coleman did not
pursue his ineffective assistance of counsel claim in his
state post-conviction appeal, the federal court’s ability to
hold an evidentiary hearing is circumscribed. Boyko v.
No. 08-3537 11
Parke, 259 F.3d 781, 789 (7th Cir. 2001). In such a case an
evidentiary hearing is warranted only if “the facts underly-
ing 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).
It follows that a hearing should be granted if it could
enable a habeas applicant to prove his petition’s factual
allegations, which, if true, would entitle him to federal
habeas relief. Schriro, 550 U.S. at 474. Here, development
of the new evidence presented in Coleman’s case, reviewed
in concert with the total information available, could
support his claim of procedural actual innocence.
An evidentiary hearing is warranted to allow the district
court a chance to evaluate the totality of this evidence.
The two pieces of new evidence here are the affidavits of
Joseph Barnes (Coleman’s co-defendant at trial) and James
Rhodes (Barnes’s trial attorney). In Barnes’s affidavit,
Barnes asserts that his co-defendant should have been Roy
Wright, and that the murder was related to a bad drug
deal. According to Barnes, he had not met Terrell Jackson
before the evening of Jackson’s murder because the drug
deal had been set up using Wright and a man named
Barnett Hall as middlemen. Barnes stated that he had
expected drugs that could be “re-cut” several times as a
way of increasing his profit, but when he received Jack-
son’s drugs, he was disappointed by their lack of quality.
He stated that he wanted either a better product or
his money back, and so he told Wright to get in touch with
Jackson. Wright could not reach Jackson and wanted
more time to try to talk to him, but eventually Wright and
12 No. 08-3537
Barnes went to Jackson’s house, where the murder oc-
curred. In Barnes’s testimony at the 1985 state post-convic-
tion hearing, most of this version of events had been the
same, but there is one significant difference. At the post-
conviction hearing, Barnes testified that Barnett Hall came
into Jackson’s house during the night of the murder as
well, and that Hall got shot in the ensuing fight. There is no
corroborating evidence of a third offender being present,
and Hall did not testify to any of these events as he died
before the 1985 hearing.
We recognize that Barnes’s reputation for honesty is
weak. During an extradition hearing prior to trial, Barnes
lied about living in Baltimore at the time of the murder.
And, during the trial, he presented a false alibi defense. In
addition, Barnes claimed in his own post-conviction
hearing that Rhodes provided ineffective assistance of
counsel by preventing Barnes from testifying, which
Barnes later admitted was not true. In attempting to
discredit Barnes’s version of events, the government also
places emphasis on the unknown extent of friendship
between Barnes and Coleman. They claim to merely know
each other from the neighborhood but were members of
warring gangs that did not fight “on sight” (as the oppos-
ing gangs were supposedly instructed to do), and Barnes
placed Coleman on a list of acceptable visitors when he
spent time in jail in the 1980s. The weight of these inconsis-
tencies led the state court to deem Barnes’s testimony
incredible and lacking in reliability.
Of course, as a general matter, at its evidentiary hearing
the district court should accord a presumption of correct-
No. 08-3537 13
ness to the state court’s credibility determination. 28 U.S.C.
§ 2254(e)(1); Araujo v. Chandler, 435 F.3d 678, 682 (7th Cir.
2005). But this “deference does not imply abandonment or
abdication of judicial review.” Miller-El v. Cockrell, 537 U.S.
322, 340 (2003). The court can disagree with the state
court’s credibility determination and conclude that the
decision was unreasonable. Ward v. Sternes, 334 F.3d 696,
704 (7th Cir. 2003). Here, the court can consider the fact
that Barnes’s statements proclaiming Coleman’s innocence
were made to his attorney, a disinterested third party, at
a time where there was no rationale or motive for dishon-
esty. It can also consider the significant fact that Barnes’s
contention to Rhodes that Coleman was not involved in
the crime has remained consistent since the time of trial,
but that Rhodes was prevented by the attorney-client
privilege from revealing that information until Barnes
waived the privilege. An evidentiary hearing would allow
the district court to evaluate the reliability of Barnes’s
statements together with the additional evidence devel-
oped at the hearing.
And an evidentiary hearing would also allow further
consideration of Adamson’s account and possible ulterior
explanations for the crime. First, Adamson admitted to
police officers and to a private investigator that Jackson
was involved with drugs. Adamson also stated to
the private investigator that the robbers were looking for
$10,000 in drug dealing money, that Wright had been
to Jackson’s home a couple of times on the day of the
murder, and that Wright and Thomas, Jackson’s step-
daughter, were intimately involved. The jurors heard
no testimony about Jackson’s involvement with drugs or
14 No. 08-3537
drug dealing, and they were not given a motive for the
crime. Second, Wright gave two odd, contemporaneous
statements to the police that support his involvement.
Wright claimed that on the night of the murder, he picked
up an acquaintance known as “Rip” (whom he later
identified as Coleman) and a man he did not know. Even
though Wright did not know Rip well or the other man at
all, Wright claimed that the two men discussed a previous
murder they had committed. Wright stated that he shared,
with these two acquaintances, the details of a drug deal
that he was attempting to set up for that night. Wright
continued to say that he saw the men hang out by the
laundromat. Wright also stated that he approached Jack-
son’s door several times that night. A few days after the
murder, according to Wright, Coleman approached him to
sell him a medallion that Wright knew belonged to Jack-
son. Wright’s statement dovetails with Barnes’s statements
in key ways—both say there was a drug deal in progress,
both claim a third person set up the deal with Jackson, and
both agree the drug deal was going badly. Wright was also
the first person to target Coleman as a possible suspect,
and he was not called by the state as a witness.
Wright’s involvement would also shed light on another
odd aspect of the crime. All the bedrooms in Jackson’s
home were on the same floor. Although Gwen Thomas was
in a bedroom down the hall from Jackson’s, she claimed
not to have heard the shouting or the gunshots or know
that anything was amiss until a man came into her room
and dragged her to Jackson’s room. She alternatively
testified that this was because she was watching television
or sleeping. According to Adamson, Thomas and Wright
No. 08-3537 15
had an intimate relationship, and this might give her a
reason to protect Wright. Thomas did not report to the
police that anything had been stolen from her person until
the preliminary hearing and trial, when she claimed a
necklace had been ripped from her neck. Given the exis-
tence of a possible bias, jurors may not have credited
Thomas’s version of the events.
An evidentiary hearing would also allow evaluation of
Coleman’s alibi witnesses. The affidavits of Loretta and
Evelyn Cade state that both are able to provide Coleman
with an alibi for the time of the murder. Evelyn stated that
Loretta and Coleman were watching her house while she
was on vacation during this time, and that she called home
on the day of the shooting around 5:00 or 5:15 in the
afternoon and spoke to Coleman. She stated that she
remembers the date and time exactly because it was
August 2, and her birthday was the next day. Loretta
stated that Coleman was with her at her mother’s house at
the time of the shooting. Loretta is the mother of Coleman’s
child and Evelyn is the child’s grandmother, so they may
have a motive to lie for Coleman. Cf. House, 547 U.S. at 552
(stating that testimony from those with no motive to lie has
“more probative value than, for example, incriminating
testimony from inmates, suspects, or friends or relations
of the accused”). But when evaluating the likely impact of
these affidavits, it is important that they are not a sudden
and “eleventh-hour affidavit vouching for a defendant.” Id.
(citing Herrera v. Collins, 506 U.S. 390, 423 (1993) (O’Connor,
J., concurring)). Both Cades stated that they told Coleman’s
attorney of their willingness to provide an alibi defense,
and both were listed as potential defense witnesses at trial.
16 No. 08-3537
And the affidavits are also corroborated by Coleman’s
contemporaneous statements. During his police interview,
where Coleman also denied any involvement in the crime
or owning a gun, he stated that he was a loner who could
not remember his exact whereabouts at the time of the
murder but was probably home alone or at his girlfriend’s
house.
The total record evidence also includes the statements by
the Wilkins brothers, but without an evidentiary hearing it
is impossible to know exactly what their testimony would
be. See Davis v. Lambert, 388 F.3d 1052, 1059 (7th Cir. 2004)
(“The district court could not assess what impact the
exculpatory eyewitnesses likely would have had upon the
petitioner’s trial without hearing their testimony.”) (inter-
nal quotation and punctuation omitted). David and Tracey
Wilkins were brothers who lived in a nearby house and
saw a series of events leading up to the shooting. Accord-
ing to detectives, David stated that he observed two men
sitting on the rear porch of Jackson’s home, and that these
men left and returned several times during the one-and-a-
half-hour period prior to the shooting. Tracey stated that
he was in the laundromat across the street when he saw a
black male who matched the general description of the
suspects come into the laundromat and use the telephone.
Tracey stated he later saw two males erratically running
down the street and changing directions as they ran, which
he did not think was unusual because it was raining at the
time. The police report did not contain the brothers’ exact
descriptions of the men they saw, but instead noted that
the description was similar to the descriptions previously
given. David viewed a police line-up and did not identify
No. 08-3537 17
Coleman at the lineup or at any point after the crime. And,
in a joint letter written by Rhodes and Kull, the two
defense lawyers stated that David Wilkins could affirma-
tively state that Coleman was not one of the two men
David saw at the scene but that Barnes definitely was. An
evidentiary hearing would allow an evaluation of whether
and to what extent the Wilkinses are able to exculpate
Coleman.
Finally, an evidentiary hearing would allow Coleman’s
attorney the opportunity to explain his strategy consider-
ations in not calling the Cades or the Wilkinses, and in not
verbalizing why his client needed a severance. See Brown v.
Sternes, 304 F.3d 677, 691-92 (7th Cir. 2002) (noting impor-
tance of analyzing potential strategy decisions in evaluat-
ing counsel’s performance); Matheney v. Anderson, 253 F.3d
1025, 1040 (7th Cir. 2001) (“An adequate record is impera-
tive to properly evaluate ineffective assistance claims.”).
These are all critical factors in evaluating Coleman’s claim
of innocence and, if that threshold is met, his ineffective
assistance claim. See Schlup, 513 U.S. at 314-15; Strickland v.
Washington, 466 U.S. 668, 688-94 (both deficient perfor-
mance and prejudice are required to establish ineffective
assistance claims).
Here, an evidentiary hearing is warranted if the facts
underlying Coleman’s claim could establish by clear and
convincing evidence that but for constitutional error, no
reasonable factfinder would have found him guilty. 28
U.S.C. § 2254(e)(2)(B). The new evidence of Barnes’s and
Rhodes’s affidavits, combined with the available testimony
of the Wilkinses, the Cades, and Adamson, fulfill this
18 No. 08-3537
standard. An evidentiary hearing is warranted to develop
this evidence.
III. CONCLUSION
We R EMAND to the district court for an evidentiary
hearing as to Coleman’s procedural actual innocence claim
and for further proceedings consistent with this opinion.
11-19-10