United States District Court, E.D. Wisconsin
Stadtmueller U.S. District Judge
January 18, 2017, the Court screened Petitioner Craig
Tolonen's ("Tolonen") petition pursuant to Rule
4 of the Rules Governing Section 2254 Cases. (Docket #19).
The Court found that it was subject to a number of procedural
infirmities, including untimeliness, exhaustion of state
remedies, and procedural default. Id. The Court
ordered further briefing on those procedural issues, which
was completed on April 27, 2017. See (Docket #34,
#38). Respondent confirmed the Court's suspicions that
Tolonen's petition is both late and procedurally
defaulted. See (Docket #34).
does not contest these facts. See (Docket #38 at
9-18). Instead, Tolonen clings to his final hope for a merits
review of his petition- the "actual innocence
gateway." Gladney v. Pollard, 799 F.3d 889, 895
(7th Cir. 2015).Initially, the Court notes that Tolonen
raises two grounds for relief. His first is for a violation
of his Miranda rights. (Docket #1 at 6-7). The
second ground is that he is actually innocent of his crime.
Id. at 7. Innocence is not a stand-alone ground for
relief in a case like Tolonen's, so that portion of the
petition must be dismissed. Gladney, 799 F.3d at
895; McQuiggin v. Perkins, 133 S.Ct. 1924, 1931
(2013); Herrera v. Collins, 506 U.S. 390, 400
(1993). The Court must instead consider whether
the actual innocence gateway allows Tolonen's
Miranda claim to continue despite his procedural
provides a succinct explanation of the actual innocence
In federal habeas law, the actual innocence exception is one
application of the broader "fundamental miscarriage of
justice" exception to procedural default intended to
ensure that federal constitutional errors do not result in
the incarceration of innocent persons. The Supreme Court has
made clear that this exception covers all sorts of procedural
The actual innocence gateway is narrow. Gladney's
procedural default can be excused only if he "presents
evidence of innocence so strong that a court cannot have
confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless
constitutional error." [Schlup v. Delo, 513
U.S. 298, 316 (1995)]. Gladney must show that "in light
of new evidence, it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt." House v. Bell, 547 U.S. 518,
537. ., (2006)[.]
Gladney's gateway claim of actual innocence under
Schlup could be viable only if he presents evidence
not previously considered. Such new evidence can take the
form of any "new reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence." See
Schlup, 513 U.S. at 324[.] The reviewing court then
considers the total record-"all the evidence, old and
new, incriminatory and exculpatory" -and makes "a
probabilistic determination about what reasonable, properly
instructed jurors would do." House, 547 U.S. at
538[.] It is not the role of the court to "make an
independent factual determination about what likely occurred,
but rather to assess the likely impact of the evidence on
reasonable jurors." Id.
Gladney, 799 F.3d at 895-96.
evidence of actual innocence should be compelling to warrant
relief, but it is thin and unpersuasive. The primary thrust
of his argument is that he could, if appointed counsel in
this proceeding, obtain the testimony of two experts in
shaken-baby deaths. These two individuals would, according to
Tolonen, opine that the injuries sustained by the infant
Tolonen killed were inconsistent with shaking, thereby
exonerating him. (Docket #38 at 11-12). But Tolonen provides
none of their actual testimony-not even an affidavit from
either person stating that they would, if counsel was
appointed, offer an opinion, regardless of what it might
ultimately be. Instead, he relies entirely on his own
averment that these individuals would testify on his behalf.
He then proceeds to speculate as to what the contents of
their opinions might be, all the while conceding that he does
not actually know what they would say. Id.
presentation is surely insufficient to fall within the narrow
actual innocence gateway. To meet his threshold burden,
Tolonen was required to come forward with some new evidence
of his innocence. His own lay speculation about what two
experts might say is not evidence, much less the sort of
evidence that would disturb this Court's confidence in
the outcome of Tolonen's trial. Blackmon v.
Williams, 823 F.3d 1088, 1099 (7th Cir. 2016) (showing
actual innocence requires "new, reliable evidence, that
'in light of new evidence, it is more likely than not
that no reasonable juror would find him guilty beyond a
reasonable doubt'") (quoting Coleman v.
Hardy, 628 F.3d 314, 319 (7th Cir. 2010)).
Tolonen hold this Court hostage by claiming that he needs
counsel appointed before these experts will testify. He was
required to put forward evidence of his innocence, and based
on the Court's earlier findings, Tolonen did not need
counsel's aid to do this. Again, apart from Tolonen's
own speculation, the Court has no reason to believe that
these experts would actually have participated in this
proceeding or that their testimony would support
Tolonen's claim for relief.
balance of Tolonen's "evidence" is likewise
unavailing. For instance, Tolonen complains that this Court
denied his requests to propound discovery on Respondent.
(Docket #34 at 14). Yet discovery in habeas proceedings is
rarely undertaken, particularly when such a specious claim of
actual innocence is raised. See Hubanks v. Frank,
392 F.3d 926, 933 (7th Cir. 2004). Moreover, Tolonen does not
explain how his proposed discovery requests would have
meaningfully contributed to demonstrating his innocence. As a
result, the Court remains unconvinced that such discovery is
necessary or appropriate. See United States v.
Volpentesta, No. 14 C 50343, 2015 WL 4545215, at *6
(N.D. 111. July 27, 2015) (dismissing conclusory assertions
that discovery would reveal grounds supporting actual
Tolonen offers uncorroborated, unsworn claims that various
witnesses to the relevant events lied and that the
infant's injuries were inconsistent with being shaken.
(Docket #38 at 15-16). Again, these are not the type of
assertions that meet the "demanding" standard
enunciated in Schlup, which permits a court to
excuse procedural infirmities "only in the
'extraordinary' case." House, 547 U.S.
at 538 (quoting Schlup, 513 U.S. at 327); Hayes
v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005) (noting
that actual-innocence gateway requires "powerful"
evidence and rejecting conclusory assertion that
prosecution's eyewitnesses might have been unreliable).
Moreover, this evidence is not new, as it was presented to
and rejected by the Wisconsin Court of Appeals. (Docket #39-2
at 7-8). Additionally, the vast weight of the evidence
introduced at trial-including Tolonen's own confession
and expert testimony by a physician who treated the infant
before she died-undermines the purportedly contrary evidence
Tolonen has tried to present here, leaving a very low
likelihood that Tolonen's evidence would have had an
effect on jury's verdict. House, 547 U.S. at
result, the Court finds that Tolonen has not sustained a
claim of actual innocence, nor made even a preliminary
showing warranting further development through discovery or
an evidentiary hearing. Schriro v. Landrigan, 550
U.S. 465, 474 (2007) (observing that the decision to grant an
evidentiary hearing is within the trial court's
discretion); Boyko v. Parke,259 F.3d 781, 790 (7th
Cir. 2001) (holding that discovery or evidentiary hearings
should not be allowed in the district court in Section 2254
cases where the petitioner failed to develop the sought-after
facts in state court, unless those facts would establish
innocence by clear and convincing evidence) (citing 28 U.S.C.