Tony Thomas v. TARRY WILLIAMS, Warden of the Stateville Correctional Center

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2610
T ONY T HOMAS ,
Petitioner‐Appellant,
v.
T ARRY WILLIAMS, Warden of the
Stateville Correctional Center,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 CV 6443 — Charles R. Norgle, Judge.
____________________
A RGUED FEBRUARY 18, 2016 — D ECIDED MAY 18, 2016
____________________
Before WOOD, Chief Judge, and KANNE and S YKES , Circuit
Judges.
KANNE , Circuit Judge. A jury convicted Tony Thomas of the
2001 murder of Khatim Shakir. In January 2005, after his con‐
viction was final, Thomas received a letter from his trial attor‐
ney informing him that unidentified gang members told po‐
lice that Thomas did not commit the murder, but rather, that
the shooter was a drug dealer named Robert Pinkston.

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2 No. 14‐2610
In April 2005, Thomas filed a petition for post‐conviction
relief in state court arguing that he was actually innocent in
light of the newly discovered evidence. After unsuccessfully
pursuing that petition, Thomas filed a second petition in state
court in 2007. This time Thomas alleged that the government
withheld evidence that the officer was told that Pinkston was
the shooter in violation of Brady v. Maryland, 373 U.S. 83
(1963). The state court held that the claim was defaulted be‐
cause Thomas did not raise it in his first state post‐conviction
petition.
Before us is Thomas’s federal petition for a writ of habeas
corpus, in which he re‐raises the Brady claim. The district
court denied relief on Thomas’s Brady claim, holding that it
was procedurally defaulted. Because we agree that Thomas’s
Brady claim is procedurally defaulted, we affirm the district
court’s denial of his petition.
I. BACKGROUND
We address the complicated fifteen‐year history of this
case beginning with the underlying murder, followed by an
explanation of Thomas’s trial, direct appeal, state post‐convic‐
tion proceedings, and finally, the federal proceedings.
A. The Murder
Sometime between 11:30 p.m. and midnight on September
22, 2001, Officer John Massi observed several individuals en‐
gaged in a heated conversation outside the Thousand Liq‐
uors, located at the intersection of Belmont and Sheffield Av‐

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No. 14‐2610 3
enues in Chicago. Officer Massi ordered the group to dis‐
perse. Thomas,1 a member of the Gangster Disciples, re‐
sponded that he “wasn’t about to take any shit off of any‐
one … . [I]f any of the local gangbangers fuck with me, I’m
going to come back with my shit and blow them away.”
Thomas then left in a taxi with some friends.
Later that night, the victim, Khatim Shakir, a member of
the Latin Kings, was at a party with his girlfriend, Vanessa
Perez, and friends Fernando Cota, Joseph Igunbor, and Henry
Igunbor. 2 The group left the party to go to Thousand Liquors
to meet up with another Latin King, Gregory Hoyos. While
outside the liquor store, a man approached Hoyos and said
“what’s up, motherfucker, G.D.,” indicating that he was a
member of the Gangster Disciples. The man then stated that
he was a “King killer,” at which point he pulled a gun from
his waistband and pointed it at Hoyos. He fired the gun four
or five times while Hoyos and Shakir ran across the street.
Shakir collapsed and died at the scene. Chicago police re‐
sponded at 2:25 a.m. Perez, Cota, the Igunbors, and Hoyos all
identified Thomas as the shooter in a photo array or lineup
(or both).
B. Thomas’s Trial, Conviction, and Direct Appeal
At trial, all five eyewitnesses again identified Thomas as
the shooter. Thomas’s defense was alibi, specifically that he
1 Officer Massi identified Thomas as the individual who spoke, and
Thomas admitted that he was present and said something to the officer.
2 There is some confusion as to the victim’s and witnesses’ affiliation with
the Latin Kings. For example, Henry Igunbor testified at trial that Shakir
and Cota were former members of the Latin Kings, but that he and his
brother Joseph were never members.

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4 No. 14‐2610
was on the south side of Chicago fighting with his girlfriend,
Delilah Cruz, and therefore could not have committed the
murder. Thomas took the stand and testified that after Officer
Massi ordered him to leave, he, Cruz, and three friends got
into a taxi and went to Gill Park. At 12:30 a.m., Thomas paid
a man to drive him and Cruz back to the south side where
Thomas lived with his mother. The man only drove them to
63rd and Yale, at which point the couple decided to take a bus.
Instead, they got into a fight around 1:00 a.m. Cruz testified
that Thomas tried to hit her, so she said she was calling the
police, which she did shortly thereafter. Thomas then fled the
scene. A police report—which was not admitted into evidence
at trial—indicates that Cruz told police the fight occurred
around 1:15 a.m.
Thomas testified that after he left Cruz, he paid someone
else to drive him the rest of the way to his mother’s house. He
said he arrived home around 2:00 a.m., argued with his
mother for 45 minutes, made some phone calls to his child’s
mother and his sister,3 and then went to bed.
Thomas’s mother testified that he arrived home around
2:30 a.m., and they had argued. She admitted on cross‐exam‐
ination, however, that she had originally told police she did
not see him until 5:00 a.m. In addition, an assistant state’s at‐
torney testified that Thomas’s mother had at one point told
him that Thomas arrived home at exactly 2:37 a.m.
Thomas’s sister testified that he called her around 3:00
a.m., but she admitted that she may have originally told in‐
3 Phone records reveal that the first of these phone calls was made at 3:00
a.m.

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No. 14‐2610 5
vestigators that he called her at exactly 2:37 a.m. Thomas’s un‐
cle testified that he was at the house watching a movie and
that Thomas had arrived home and argued with his mother.
But, Thomas’s uncle admitted that he originally told police
that he was not home that morning until 7:00 a.m. Thomas’s
child’s mother testified that Thomas called her from his
mother’s house around 2 or 3 a.m.
A jury convicted Thomas of first‐degree murder, and the
state trial court sentenced him to seventy‐five years’ impris‐
onment. The Illinois Appellate Court affirmed his conviction,
and the Illinois Supreme Court denied his petition for leave
to appeal on November 24, 2004.
C. State Post‐Conviction Proceedings
In state court, Thomas filed two state post‐conviction pe‐
titions—in April 2005 and November 2007. He also filed a suit
for declaratory relief under Illinois’s Freedom of Information
Act (FOIA) after being denied access to Chicago Police De‐
partment (CPD) records.
1. First State Post‐Conviction Petition—April 2005
On April 27, 2005, Thomas filed his first pro se state post‐
conviction petition, arguing that he was “actually innocent”
in light of newly discovered evidence showing that the mur‐
derer was a drug dealer named Robert Pinkston. In support
of his petition, Thomas attached a letter (“Strunck letter”)
dated January 12, 2005, from his trial attorney, Robert Strunck,
to the assistant state’s attorney. The Strunck letter said:
I have recently received hearsay information from
someone who works in the neighborhood of the
homicide that the beat officer, John Massi, was in‐
formed by some of the various neighborhood gang

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6 No. 14‐2610
members that Tony Thomas did not commit the
homicide and that a drug dealer named Robert Pink‐
ston did. Obviously, this information was not known
to me at the time of the trial.
Due to the evidence which had Tony Thomas batter‐
ing his girlfriend on 63rd Street shortly before this
homicide on Belmont Avenue, I would appreciate it
if Pinkston could be looked into.
Thomas also attached a CPD report that showed that Cota,
after looking through a CPD photo book, identified Pinkston
as resembling Shakir’s killer. According to the report, Cota in‐
dicated that the resemblance between Pinkston and the
shooter was an eight out of ten, but that the shooter was a little
older.
The state trial court denied Thomas’s post‐conviction peti‐
tion, and the state appellate court affirmed on February 7,
2007, noting that “an unauthenticated letter with several lay‐
ers of hearsay” was insufficient to raise “the gist of a merito‐
rious claim of actual innocence,” in light of the overwhelming
evidence presented against Thomas at trial. The Illinois Su‐
preme Court denied leave to appeal on May 31, 2007.
2. Successive State Post‐Conviction Petition—November 2007
On November 6, 2007, Thomas filed a motion for leave to
file a successive post‐conviction petition in state court, argu‐
ing that the state withheld exculpatory evidence that Pinkston
committed the murder in violation of Brady v. Maryland, 373
U.S. 83 (1963). In addition to the Strunck letter, Thomas at‐
tached an affidavit from his attorney, Gayle Horn (“Horn af‐
fidavit”). The Horn affidavit indicated that she spoke with
Strunck, who told her “that the person who works in the
neighborhood who provided him with this information is

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No. 14‐2610 7
named either George or Jorge. Mr. Strunck said that he met
George or Jorge in a cigar store nearby.” Thomas attached a
second affidavit from Margaret Betts (“Betts affidavit”),
which said that she was on a three‐way phone call between
Thomas and Detective Tony Villardita who “confirmed that
he knew that Officer John Massi was told by several people
that Mr. Thomas did not commit the homicide of Khatim
[Shakir].”
The trial court denied Thomas leave to file the successive
petition. The appellate court affirmed, finding that Thomas
failed to show cause for not raising his Brady claim in his first
post‐conviction petition as required by 725 ILCS 5/122‐1(f).
The Illinois Supreme Court denied leave to appeal on Novem‐
ber 24, 2010.
3. State FOIA Lawsuit—August 2008
On August 28, 2008, Thomas filed a lawsuit in state court
seeking declaratory relief from the CPD’s denial of his request
for documents made pursuant to Illinois’s FOIA statute. The
trial court dismissed his suit on September 11, 2008. Thomas
appealed, but he moved to voluntarily dismiss his appeal be‐
cause he had filed in the wrong venue. The motion was
granted on May 6, 2010. He then refiled the FOIA lawsuit in
the proper state venue.
D. Federal Proceedings
Shortly after filing his second petition in state court, on
November 14, 2007, Thomas filed a 28 U.S.C. § 2254 petition
in federal court. Thomas did not raise his Brady claim in the
petition. But, on February 4, 2008, the district court granted
Thomas’s motion to stay the proceeding while he exhausted
his state remedies.

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8 No. 14‐2610
On June 7, 2011, Thomas filed a renewed motion to stay
the federal § 2254 proceedings or to file an amended § 2254
petition. The district court granted the motion to continue the
stay, but it denied his motion to file an amended petition.
Thomas filed another motion to continue the stay, which the
district court denied on October 24, 2011, resuming the fed‐
eral proceeding. Although the district court denied Thomas
leave to file an amended petition, Thomas did so anyway on
November 17, 2011, raising his Brady claim for the first time
in federal court.
Then, on February 27, 2012, the district court granted yet
another of Thomas’s motions to stay the proceedings because
the state appellate court had granted Thomas leave to file a
late appeal in his FOIA lawsuit. Finally, on June 20, 2013, the
district court lifted the stay for the final time. Thomas volun‐
tarily dismissed several claims, and he filed a second
amended § 2254 petition on December 20, 2013.
On June 17, 2014, the district court denied Thomas’s sec‐
ond amended petition. It found that Thomas did not raise his
Brady claim in state court until his second state post‐convic‐
tion petition. The state court had dismissed the claim under a
state procedural rule, namely for failing to have raised it in
the first state post‐conviction petition. Because the state pro‐
cedural rule constituted an independent and adequate state
ground, the district court held that Thomas’s Brady claim was
procedurally defaulted. The district court also found that
Thomas had not made a showing of actual innocence that
would excuse his procedural default. The district court re‐
fused to grant a certificate of appealability.
This court granted a certificate of appealability on June 18,
2015, finding that Thomas made a “substantial showing of the

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No. 14‐2610 9
denial of a constitutional right” on his Brady claim. In addi‐
tion, we asked the parties to address both procedural default
and timeliness in light of Thomas’s claim of actual innocence.
II. A NALYSIS
We will not address the merits of Thomas’s Brady claim
unless we are first satisfied that the claim has not been proce‐
durally defaulted. On appeal, Thomas argues that his Brady
claim is not procedurally defaulted because he fairly pre‐
sented it to the state courts in his first state post‐conviction
petition filed in April 2005. Alternatively, he contends that
any procedural default is excused because he has presented
sufficient evidence for a finding of actual innocence. We disa‐
gree and conclude that Thomas did not fairly present his
Brady claim to the state court in his 2005 petition nor has he
shown sufficient evidence of actual innocence to excuse the
procedural default.
A. Procedural Default
We review a district court’s decision on whether a claim
was procedurally defaulted de novo. Ward v. Jenkins, 613 F.3d
692, 696 (7th Cir. 2010).
There are two distinct ways in which a state prisoner can
procedurally default a federal claim. The first, relied upon by
the district court, comes from the independent and adequate
state ground doctrine. Coleman v. Thompson, 501 U.S. 722, 729–
30 (1991). In the context of federal habeas corpus, the doctrine
applies to preclude review where the state courts declined to
address a petitioner’s federal claims because the petitioner
did not meet state procedural requirements. Id. In those cases,
the state court judgment rests on an independent and ade‐
quate state ground, and principles of comity and federalism

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10 No. 14‐2610
dictate against upending the state‐court conviction, and in‐
stead, finding that the petitioner’s claim is procedurally de‐
faulted. Id. at 30.
The second comes from the rule that before pursuing post‐
conviction relief in federal court, a state prisoner must “ex‐
haust[] the remedies available in the courts of the State,” 28
U.S.C. § 2254(b)(1)(A), by giving the state courts an “oppor‐
tunity to act on his claims,” O’Sullivan v. Boerckel, 526 U.S. 838,
842–44 (1999). Such an opportunity requires that the state
prisoner “fairly present” the federal issue for the state court’s
review. Ward, 613 F.3d at 696. Thus, “when the federal issue
was not fairly presented to the state courts and those courts
would now hold the claim procedurally barred,” the proce‐
dural default doctrine precludes federal post‐conviction re‐
view of the federal claim. Id.
Thomas’s Brady claim is procedurally defaulted under ei‐
ther rule. The first time that Thomas labeled his claim a Brady
claim in state court was in his second state post‐conviction pe‐
tition filed in November 2007. The state court denied his peti‐
tion because he did not show cause for his failure to raise the
claim in his first state post‐conviction petition. See 725 ILCS
5/122‐1(f). The state procedural rule is an adequate and inde‐
pendent state ground precluding federal habeas review of the
Brady claim raised in his second state petition.
But, for the first time on appeal, 4 and in an effort to avoid
the obvious procedural default from his second state petition,
4 We acknowledge that “arguments raised for the first time on appeal are
waived,” Coleman v. Hardy, 690 F.3d 811, 818 (7th Cir. 2012), but because
the parties addressed and argued the merits of procedural default, we rule
on those grounds.

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No. 14‐2610 11
Thomas argues that he raised his Brady claim before the state
court in his first state post‐conviction petition filed in April
2005. The question then is whether Thomas fairly presented
his Brady claim to the state court in his first petition such that
the state court should have been on notice as to the federal
constitutional claim.
A claim is fairly presented where “the state court was suf‐
ficiently alerted to the federal constitutional nature of the is‐
sue to permit it to resolve that issue on a federal basis.” Ells‐
worth v. Levenhagen, 248 F.3d 634, 639 (7th Cir. 2001) (quotation
marks omitted). Although fair presentment generally re‐
quires the petitioner to present “[b]oth the operative facts and
controlling law” to the state court, we focus on four factors:
(1) whether the habeas petitioner relied on federal
cases that engage in constitutional analysis, (2)
whether the petitioner relied on state cases that ap‐
ply constitutional analysis to similar facts, (3)
whether the petitioner framed the claims in terms so
particular as to call to mind a specific constitutional
right, and (4) whether the petition alleges a pattern
of facts within the mainstream of constitutional liti‐
gation.
McDowell v. Lemke, 737 F.3d 476, 482 (7th Cir. 2013) (citing Ells‐
worth, 248 F.3d at 639)).
In conducting this analysis, we take care to construe
Thomas’s pro se petition liberally, id., but even a generous
construction cannot save his claim from procedural default.
In his first state post‐conviction petition, Thomas asserted an
“actual innocence claim,” supported by the Strunck letter, and

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12 No. 14‐2610
he argued that the evidence “shows that the defendant is fac‐
tually innocent.” He sought a new trial in light of “the newly
discovered evidence of the defendant’s innocence.”
The first three Ellsworth factors are not present. Thomas
did not present the law controlling a Brady claim, nor did he
offer any federal or state cases engaging in a Brady analysis.
His petition also was not framed in terms “so particular as to
call to mind a specific constitutional right.” McDowell, 737
F.3d at 482. Thomas did not attribute to the government any
withholding of evidence or allege that the evidence was avail‐
able at the time of trial but not disclosed.
Thus, Thomas relies on the fourth Ellsworth factor, arguing
that he alleged “a pattern of facts that is well within the main‐
stream of constitutional litigation.” Id. But, Thomas alleged
that Officer John Massi “has recently received information”
that Pinkston may have been the shooter. Recent discovery of
evidence did not constitute a typical Brady claim then, and the
Supreme Court has since said that Brady only applies to evi‐
dence existing at the time of trial. Dist. Atty’s Office for the
Third Judicial Dist. v. Osborne, 557 U.S. 52, 68–69 (2009). Fur‐
thermore, Thomas argued that the recently discovered evi‐
dence showed he was “actually innocent.” We agree that the
pattern of facts Thomas alleged was within the mainstream of
constitutional litigation, but for a state‐law actual innocence
claim, which the state court did address. The pattern of facts
alleged is not within the mainstream of Brady litigation.
Without more facts alleging that the government knew of
the evidence at the time of trial and withheld it or some cita‐
tion to the Constitution or cases applying Brady, the state
court could not have been on notice sufficient to give it an op‐
portunity to act on Thomas’s Brady claim, particularly in light

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No. 14‐2610 13
of the fact that Thomas alleged facts bringing to mind a com‐
pletely different claim.
In support of his theory that he fairly presented his Brady
claim, Thomas relies on Lewis v. Sternes, 390 F.3d 1019 (7th Cir.
2004). In Lewis, we held that a Brady claim was fairly presented
where the pro se petitioner had labeled the section “Ineffec‐
tive Assistance of Trial Counsel,” but he alleged “that author‐
ities in advance of trial had improperly destroyed the clothes
he was wearing at the time of his arrest.” Id. at 1021–22.
Thomas’s factual allegations are much less clear than those in
Lewis. Allegations of destruction of evidence before trial fall
clearly within the realm of a Brady violation and outside the
realm of a typical ineffective assistance of counsel claim.
Lewis’s allegations, therefore, were inconsistent with the label
he attached to them, whereas the facts Thomas alleged were
perfectly consistent with the label of an actual innocence
claim, not with a Brady claim.
Absent other indicators of a Brady claim, such as a citation
of authority, Thomas’s allegations are insufficient to establish
fair presentment of his Brady claim to the state court. Compare
McDowell, 737 F.3d at 482 (holding claim was not fairly pre‐
sented where petition alleged that a photo was shown “in
such a suggestive manner that there was little room to exclude
him,” but there was no citation to the federal or state consti‐
tution, case law, or facts upon which to evaluate the claim of
suggestiveness), and Perruquet v. Briley, 390 F.3d 505, 520–21
(7th Cir. 2004) (holding that claim was not fairly presented
where petitioner did not mention due process or the federal
constitution and relied only on cases discussing state law in
challenging the rejection of his self‐defense theory), with Ells‐
worth, 248 F.3d at 639–40 (holding claim was fairly presented

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14 No. 14‐2610
despite the absence of a citation to the federal constitution be‐
cause of presence of the remaining three factors). Accordingly,
Thomas’s Brady claim is procedurally defaulted.
B. Excuse for the Procedural Default—Actual Innocence
Procedural default may be excused, however, where the
petitioner demonstrates either (1) “cause for the default and
actual prejudice” or (2) “that failure to consider the claims will
result in a fundamental miscarriage of justice.” Coleman, 501
U.S. at 750.
Thomas does not contest on appeal the district court’s
finding that he had not shown good cause for failing to raise
his Brady claim in his original state post‐conviction petition.
Instead, he relies on the “fundamental miscarriage of justice”
exception to excuse his procedural default.
To demonstrate a fundamental miscarriage of justice, a pe‐
titioner must show that “a constitutional violation has proba‐
bly resulted in the conviction of one who is actually innocent”
such that “it is more likely than not that no reasonable juror
would have convicted [the petitioner] in the light of the new
evidence.” Schlup v. Delo, 513 U.S. 298, 327 (1995) (quotation
marks omitted). Although not subject to strict rules of admis‐
sibility, “‘[t]o be credible’ a gateway claim requires ‘new reli‐
able evidence—whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evi‐
dence—that was not presented at trial.’” House v. Bell, 547 U.S.
518, 537 (2006) (alteration in original) (quoting Schlup, 513 U.S.
at 324).
Thomas presents three pieces of new evidence in support
of his actual innocence: the Strunck letter, the Horn affidavit,
and the Betts affidavit. None of the information contained in

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No. 14‐2610 15
these sources is “exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence” that would
give his claim of actual innocence credibility. Id. Rather, the
information is hearsay within hearsay. We do not know the
identity of any of the declarants so that the content of what
was said can be verified. At oral argument, Thomas offered
no explanation as to why he did not provide an affidavit from
Officer Massi or from any of the “gang members” or “several
people” who have said that Robert Pinkston committed the
murder. The utter lack of corroboration of the contents of the
letter and affidavits weighs heavily against finding the infor‐
mation to be credible.
Thomas relies on the fact that the Strunck letter and Horn
affidavit are from lawyers who have “an obligation to be
truthful to the court,” and thus, the information contained in
the letters is trustworthy. 5 See In Re A.V., 674 N.E.2d 118, 121
(Ill. App. Ct. 1996), overruled on other grounds by People v. Colon,
866 N.E.2d 607 (Ill. 2007). We harbor no doubts that these law‐
yers truthfully described what they were told. But that is be‐
side the point. The truth of the content of what the lawyers
were told—that Pinkston killed Shakir—cannot be estab‐
lished from uncorroborated hearsay evidence of unknown
declarants. Thus, the lawyers’ statements have little probative
value in establishing the “fact” of Thomas’s innocence.
5 Betts is not an attorney. In fact, we do not know who she is because her
affidavit only describes the content of the three‐way call she made on
Thomas’s behalf. Even if we assume that her affidavit is true, it meets the
same demise as the lawyers’ statements. The “truth” of Thomas not hav‐
ing committed the murder cannot be established.

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16 No. 14‐2610
That is because the new evidence must be “considered in
light of the proof of petitioner’s guilt at trial.” Herrera v. Col‐
lins, 506 U.S. 390, 418 (1993). At trial, five different eyewit‐
nesses identified Thomas as the shooter. Although Cota did
initially point out Pinkston’s photo as resembling the shooter,
he later identified Thomas in a photo array, live lineup, and at
trial. The other four eyewitnesses also identified Thomas mul‐
tiple times.
In addition, Officer Massi placed Thomas at the scene of
the murder hours before it happened, and Thomas threatened
to “come back with [his] shit and blow [local gangbangers]
away.” The police report corroborates that Thomas threatened
his girlfriend around 1:15 a.m. But that left Thomas over an
hour to return to Thousand Liquors, which he himself testi‐
fied was only 35 minutes away. With the exception of his
child’s mother, Thomas’s alibi witnesses were all family mem‐
bers who gave conflicting reports to the police and at trial as
to his whereabouts and the times they had seen him. Finally,
phone records do corroborate that Thomas made phone calls
from his mother’s house at 3:00 a.m. But that was at least 35
minutes after the shooting occurred because the police re‐
sponded at 2:25 a.m., leaving Thomas sufficient time to travel
to his mother’s house.
Given the overwhelming evidence of his guilt and the
questionable reliability of his alibi, we do not find that it is
more likely than not that a jury would not have convicted
Thomas based solely on evidence that unidentified gang
members told someone who told someone that Thomas did
not commit the murder. Thus, Thomas’s gateway claim of ac‐
tual innocence is insufficient to excuse his procedural default.

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No. 14‐2610 17
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Thomas’s petition for a writ of habeas corpus.

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