In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1293
T YRONE H OLMES,
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. 04 C 8311—Ronald A. Guzmán, Judge.
A RGUED M AY 21, 2010—D ECIDED JUNE 11, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
T INDER, Circuit Judges.
B AUER, Circuit Judge. After a bench trial, an Illinois
court found Tyrone Holmes guilty of murder and
sexual assault. Now, more than twenty years later,
Holmes seeks federal relief from his life sentence,
claiming that the state prosecution withheld exculpa-
tory evidence and suborned perjury. But Holmes proce-
durally defaulted his claims and cannot otherwise
show either that he was insufficiently informed to raise
2 No. 09-1293
them earlier or that the newly discovered evidence he
presents exonerates him. Therefore, we affirm.
I. BACKGROUND
After an Illinois court convicted Tyrone Holmes for
murder and sexual assault, the state appellate court
affirmed Holmes’ convictions and sentence and the
Illinois Supreme Court denied his petition for leave to
appeal. Then from 1993 to 2004, Holmes filed five dif-
ferent state petitions for post-conviction relief. He
asserted various challenges in these petitions but has
since abandoned all but the two he pursues in this
court: (1) that the prosecution withheld exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963), by failing to turn over serologist Pamela Fish’s
handwritten notes regarding preliminary test results
for the presence of blood on Holmes’ clothing; and
(2) that the prosecution knowingly used testimony by
Fish that was false. Holmes first raised these claims in his
fourth post-conviction petition, and the state appellate
court found them waived. See Illinois v. Holmes, No. 1-02-
3303, at 8 (Ill. App. Ct. June 16, 2004) (finding Holmes
unable to meet his burden to show that he could not
have raised the claims until the fourth petition, because
“it is unclear if defendant learned of the notes prior to
or after the filing of his third petition”).
The district court in turn found the two claims proce-
durally defaulted, because the state court “rejected both
based on the independent and adequate state ground of
waiver.” Holmes v. Pierce, No. 04 CV 8311, 2009 WL 57460,
No. 09-1293 3
at *4 (N.D. Ill. Jan. 7, 2009). The district court further
found that Holmes pointed to no cause for his procedural
default. Id. at *6. Finally, the district court declined to
excuse Holmes’ procedural default on the ground that
he is actually innocent, because Holmes presented no
new evidence establishing that “it was more likely than
not that no reasonable juror would have convicted him
in light of the new evidence.” Id. at **6-8 (quoting Gomez
v. Jaimet, 350 F.3d 673, 679 (7th Cir. 2003)). Holmes
appeals each of these findings.
II. DISCUSSION
As an initial matter, the government seeks to quash
Holmes’ appeal by arguing that he failed to address
this court about the merits of his two prosecutorial-mis-
conduct claims. The constitutional claims are waived,
argues the government, because Holmes addressed only
the antecedent procedural question in his opening brief.
We disagree because Holmes did exactly as we
instructed him. Our order granting a certificate of
appealability from the district court’s ruling invited the
parties only to brief the procedural issue. Indeed, it stated
that “Holmes has made a substantial showing [on the
constitutional claims]. . . . The parties must first, how-
ever, address the antecedent issue of procedural de-
fault.” Holmes v. Mathy, No. 09-1293 (7th Cir. May 4, 2009)
(order granting certificate of appealability). The govern-
ment made no effort to construe this language
as requiring the parties to additionally address the consti-
tutional questions in their briefs. The government’s
4 No. 09-1293
waiver argument is thus waived. See Fed. R. App. P.
28(a)(9)(A) and 28(b) (requiring the appellee to state not
only its contentions, but also its “reasons for them, with
citations to the authorities and parts of the record on
which the appell[ee] relies.”); cf. Supreme Court Rule
14.1(a) (providing a more lenient standard in that the
issue need only be “fairly included” in the parties’ briefs).
Even were the government correct that the certificate
of appealability is defective for failure to require the
parties to brief the constitutional issues, “[a] litigant
whose lawyer is misled by the language of a judicial
order should not suffer ill consequences.” Beyer v. Litscher,
306 F.3d 504, 507 (7th Cir. 2002). And in any event, the
certificate of appealability is not defective. The require-
ment that not only procedural but also constitutional
claims always be addressed is directed not at advo-
cates’ briefs, but at judges’ issuances of certificates
of appealability. See id. at 505-07 (citing 28 U.S.C.
§ 2253(c)(3) and Slack v. McDaniel, 529 U.S. 473, 483-85
(2000)) (“[N]either Congress nor the Supreme Court has
required advocates to cook up constitutional issues in
briefs. . . . Slack imposes duties on judges rather than
lawyers, and thus never requires any particular question
to be briefed.”) (emphasis in original). The cases the
government cites for the proposition that Holmes was
additionally required to address his constitutional claims
either: (1) involve certificates of appealability that,
unlike the one in this case, instructed the petitioner to
address those claims, see Modrowski v. Mote, 322 F.3d
965, 967 (7th Cir. 2003) (“[T]he district court granted a
certificate of appealability on the equitable tolling ques-
No. 09-1293 5
tion and on all but one of Modrowski’s substantive
claims.”); Anderson v. Litscher, 281 F.3d 672, 675 (7th Cir.
2002) (“Also certified for appeal were two constitu-
tional issues.”), or (2) excused the petitioner’s failure to
brief the constitutional issues. See Beyer, 306 F.3d at 507.
More generally, in the typical case where we find an
issue waived, there is no prior finding that the issue
has “substantial” merit, and to rule on the unbriefed
issue would be to engage in a form of judicial
activism contrary to our normal mode of operation. See
United States v. Lanzotti, 205 F.3d 951, 957 (7th Cir.
2000) (quoting Carducci v. Regan, 714 F.2d 171, 177
(D.C. Cir. 1983) (Scalia, J.)) (“The premise of our ad-
versarial system is that appellate courts do not sit as
self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and
argued by the parties before them.”); see also Sarah M. R.
Cravens, Involved Appellate Judging, 88 Marq. L. Rev. 251
(2004); Adam A. Milani & Michael R. Smith, Playing God:
A Critical Look at Sua Sponte Decisions by Appellate Courts,
69 Tenn. L. Rev. 245 (2002). By contrast, here we found
in our order granting a certificate of appealability that
Holmes had already made a substantial showing as to
the constitutional claims, and certified the appeal as to
the complex procedural question only. We did so on
the theory that we would prefer to allow the district
court to decide the constitutional issues in the first
instance were Holmes to win this appeal on the
procedural one, which as we discussed above is entirely
within our power. See Beyer, 306 F.3d at 505-07. Here
we decide an issue that has been fully briefed. This is
hardly judicial activism.
6 No. 09-1293
Thus we arrive at the procedural question we
certified for appeal. We review de novo each of the
district court’s rulings that Holmes procedurally
defaulted his constitutional claims, Smith v. Gaetz, 565
F.3d 346, 351 (7th Cir. 2009), that he could show no
cause for the procedural default, Tolliver v. Sheets, 594
F.3d 900 (6th Cir. 2010), and that he is not otherwise
excused from the procedural default because he failed
to establish that no reasonable juror would convict him
in light of the new evidence he presented. Gomez v.
Jaimet, 350 F.3d 673, 679 (7th Cir. 2003).
A. Procedural Default
A federal court will not review a question of federal
law decided by a state court if the decision of the
state court clearly and expressly relied on the petitioner’s
failure to meet a state procedural requirement as an
independent basis for its disposition of the case. Harris
v. Reed, 489 U.S. 255, 261-62 (1989) (citing Caldwell v.
Mississippi, 472 U.S. 320, 327-28 (1985)); Moore v. Bryant,
295 F.3d 771, 774 (7th Cir. 2002). Here the state court
disposed of Holmes’ case by finding that he failed to
meet his burden of showing that he could not have
raised his claims of prosecutorial misconduct until the
fourth petition. Indeed, the court noted that Holmes
“states in his brief that he first learned of Fish’s notes . . .
before the filing of his third post-conviction petition.”
Holmes, No. 1-02-3303, at 8.
More fundamentally, any fair reading of the state
court’s opinion reveals that it clearly, expressly, and only
No. 09-1293 7
relied on Holmes’ procedural failure, without deciding
the substantive claims. Holmes disagrees, arguing that
the state court reached the merits of his constitutional
claims when it considered the “actual innocence” excep-
tion to his state procedural misstep, that is, when it
judged the weight of Fish’s notes and the likelihood
Holmes would have succeeded on the merits had the
notes been included. But to decide whether a case’s
outcome would have been different given a different
mix of evidence is not to review a case’s merits. Cf.
Serafinn v. Local 722, Int’l Bhd. of Teamsters, 597 F.3d 908,
917 (7th Cir. 2010) (distinguishing between Fed. R. Civ. P.
60(b)(2)’s requirement of showing that the new evidence
is likely to change the outcome and Fed. R. Civ. P.
56(c)(2)’s standard for entering summary judgment). In
any event, a state court that separately reaches the
merits of a substantive claim may also produce an inde-
pendent procedural ruling that bars federal habeas
review. The test to avoid procedural default in federal
court is whether the state court’s decision rests on the
substantive claims primarily, that is, whether there is
no procedural ruling that is independent. Moore, 295
F.3d at 774 (citing Coleman v. Thompson, 501 U.S. 722,
735 (1991)). Here, the state court’s procedural ruling was
primary, and a fortiori independent. Thus, the district
court decided correctly that Holmes procedurally de-
faulted his claim in federal court.
B. Cause and Prejudice
One way to avoid procedural default is to show cause
for the default. See Coleman, 501 U.S. 722; Wainwright v.
8 No. 09-1293
Sykes, 43 U.S. 72 (1977). Holmes tries to show cause by
asserting only that he could not have raised the issue
of withholding Fish’s notes in his third state petition
because he did not have them by then. But as we noted,
he admitted in state court that he did have them
before filing the third petition. And he admits in this
court that “it is unclear when Holmes discovered the
existence of Ms. Fish’s notes.” Holmes thus continues to
be unable to meet his burden to show cause, just as he
was unable to do in state court. Instead, he has shown
only ambiguity. That is not enough.
C. Actual Innocence
The other way to avoid procedural default is to show
actual innocence, that is, to show that “in light of new
evidence, ‘it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a rea-
sonable doubt.’ ” House v. Bell, 547 U.S. 518, 537 (2006)
(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). The
new evidence Holmes presents here is twofold, each of
which we will discuss in turn: (1) Fish’s notes; and
(2) results from recent blood and DNA testing.
As to Fish’s notes, they do not preclude a finding of
guilt by a reasonable juror. The notes indicated that
Holmes’ pants had “no stains identifiable as blood” and
“several reddish brown stains neg PT”—which might mean
negative for blood after preliminary testing, but we cannot
tell because no one has bothered to explain to us the
meaning of “PT.” Cf. (visited May 26, 2010) (listing 172 possibilities).
No. 09-1293 9
The notes also indicated that Holmes’ boots were “pos
PT by laces.” Finally, the district court found that the
notes “merely indicate that [Holmes’] coat was tested,”
but “do not indicate the result of the preliminary testing.”
Holmes, 2009 WL 57460, at *7. The notes as they have
been provided to us are illegible as to the coat and the
parties have provided us with no reason to find a
clear error in the court’s finding. In sum, Fish’s notes
indicated at best that preliminary testing results were
negative for blood on the pants and positive for blood
on the boots, and that the notes were inconclusive with
respect to the coat.
Yet Fish testified that she found blood on all three
items after conducting a “preliminary chemical test.”
Petitioner’s Br. at 3-4 (quoting Tr. at 141-42). And “prelimi-
nary chemical test” might be the same thing as “PT,” which
would mean that Fish’s testimony was inconsistent with
her notes. But this possibility that Fish’s testimony was
inconsistent, even were Holmes to prove it, is not enough
to show actual innocence. Rather, it impeaches Fish’s
testimony as to the pants, not to the coat and boots. A
reasonable finder of fact still could have found credible
Fish’s testimony that she found blood on Holmes’ coat
and boots, notwithstanding Fish’s inconsistent testimony
about evidence in a prior case. See People v. Willis,
No. 90 CR 23912 (cited in the parties’ briefs, but no one
gives us a court or a date). Moreover, Fish’s testimony
was hardly the lynchpin in the state’s case, as there was
so little blood that she could not test whether it
belonged to the victim. The following evidence of guilt
also was presented at trial: (1) Holmes’ admission that
10 No. 09-1293
he was with the victim about one hour before she was
found in a stairwell; (2) his changing account of when
he had last seen the victim; (3) eyewitness testimony
placing him in the stairwell arguing with and holding
the arm of the crying victim, who carried a fresh bruise
on her chin; (4) a different witness who found the victim
in the stairwell an hour later, thirty minutes after
hearing a thumping sound; (5) semen in Holmes’ under-
wear and in the victim; (6) Holmes’ explanation for the
semen in his underwear, that he had sex with someone
else earlier that night, denied by the someone else;
(7) and Holmes’ fingerprint on the liquor bottle found
next to the victim. This heap of evidence shows that
Fish’s notes, while troubling, at best show a mere possi-
bility that a jury presented with the notes would have
exonerated Holmes, not a probability, as is required.
House, 547 U.S. at 537.
Neither does the new blood and DNA test results
Holmes presents exonerate him. Cellmark Diagnostics
performed testing ten years after trial on Holmes’ coat,
pants, and boots, and on a vaginal swab of the victim.
It found no blood on the three items of clothing, but this
is consistent with Fish’s testimony that there were
no portions left on the clothing to test after she had sam-
pled the already minuscule amounts. The results also
found that Holmes could not be excluded as the source
of the DNA obtained from the sperm fraction of the
vaginal swab although only 1 in 2900 people with
Holmes’ racial profile was consistent with that DNA.
Finally, the results excluded Holmes “as the source of
the DNA obtained from the non-sperm fraction of the
No. 09-1293 11
vaginal swab.” Respondent’s Br., App. at 32 (emphasis
added). Holmes interprets this to mean that Holmes
is excluded as the source of the DNA obtained from the
non-sperm fraction of the semen. But he relegated
this argument to a footnote in his brief, without any ex-
planation as to why the non-sperm fraction of the
vaginal swab constituted semen and not, say, cells from
the victim’s vagina. When we asked Holmes’ attorney
at oral argument how we should interpret the report, she
responded only with how she interpreted it and gave
no reasons for her interpretation. This is insufficient a
predicate on which to base any conclusion. We are left
with a report from Cellmark Diagnostics about blood
and DNA that, if anything, only confirms Holmes’ guilt.
III. CONCLUSION
Holmes procedurally defaulted his habeas petition and
cannot show cause for doing so. Moreover, the new
evidence Holmes presents is too inconclusive and vague
to show a reasonable probability that he is actually inno-
cent. Therefore, we affirm.
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