Myron A. Gladney v. William Pollard

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3141
MYRON A. G LADNEY,
Petitioner-Appellant,
v.
WILLIAM P OLLARD,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-C-805 — William C. Griesbach, Chief Judge.
____________________
A RGUED D ECEMBER 8, 2014 — D ECIDED A UGUST 26, 2015
____________________
Before BAUER and H AMILTON, Circuit Judges, and E LLIS,
District Judge.
HAMILTON , Circuit Judge. Petitioner Myron Gladney chal-
lenges his 1996 Wisconsin conviction for murdering Christo-
pher Wilson. At trial, Gladney did not dispute that he inten-
The Honorable Sara L. Ellis, United States District Judge for the
Northern District of Illinois, sitting by designation.

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2 No. 13-3141
tionally killed Wilson, but he argued unsuccessfully that he
should not be found guilty of first-degree intentional homi-
cide because he acted in what Wisconsin calls “imperfect
self-defense.” Imperfect self-defense, unlike perfect self-
defense, does not serve as a complete defense to the charge
of first-degree intentional homicide but instead mitigates
that charge down to second-degree intentional homicide.
Over a decade later, Gladney filed a federal petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging
that (1) his due process rights were violated because subse-
quent state case law cast doubt on whether he was convicted
under the correct imperfect self-defense standard and (2) his
trial counsel was constitutionally ineffective for failing to in-
terview a witness who would have corroborated his self-
defense theory. The district court concluded that the petition
was untimely under 28 U.S.C. § 2244(d)(1) and rejected
Gladney’s theory that the statute of limitations did not apply
to his claims because he has demonstrated actual innocence.
We affirm. Gladney’s federal petition was filed far too
late. Even if the limitations period could have been tolled
until Gladney found out about his counsel’s failure to inter-
view the witness, his petition would still have been filed well
outside the adjusted limitations period. Gladney’s attempt to
invoke the narrow actual innocence exception to disregard
the time limits for seeking federal habeas relief, see Schlup v.
Delo, 513 U.S. 298 (1995), is not persuasive.
I. Factual and Procedural Background
Gladney killed Wilson in August 1996 when Gladney
confronted Wilson about money Wilson owed him. Accord-
ing to Gladney, Wilson had robbed him at gunpoint several
weeks earlier during a dice game. Gladney and Wilson knew

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No. 13-3141 3
each other prior to the robbery, so Gladney thought he
would try to talk to Wilson about getting his money back.
When Gladney ran into Wilson one week after the robbery,
Wilson promised to return the money. When Gladney met
up with him two weeks after that, however, Wilson had
changed his mind and refused to honor his earlier promise.
Wilson’s refusal to pay led to an argument that escalated
quickly. Gladney testified that he hoped to end the argument
and turned away from Wilson. But as he was doing so, he
decided to take out his gun and hold it by his side. When
Gladney was distracted by a car horn, Wilson rushed him
and grabbed his wrist. They struggled for the gun. During
that struggle, Gladney was shot in the arm, but he also shot
Wilson multiple times, killing him.
The State charged Gladney with first-degree intentional
homicide. At trial, Gladney did not argue that he had not in-
tentionally shot and killed Wilson. He argued instead that he
should not be found guilty of first-degree intentional homi-
cide because he acted in self-defense. Gladney testified at
trial that he shot Wilson because he feared Wilson would
gain control of his gun and kill him. Gladney argued that he
had been particularly afraid given Wilson’s reputation for
violence and the earlier armed robbery. The jury rejected the
self-defense theory and found Gladney guilty of first-degree
intentional homicide. The court sentenced Gladney to life in
prison without parole for a minimum of seventy-five years.
Over a decade later, and long after the first round of post-
conviction review was complete, Gladney seeks post-
conviction relief based on two developments that took place
after his conviction became final. First, he argues that his tri-
al counsel was ineffective for failing to interview Carl Cal-

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4 No. 13-3141
houn, a man who had also been present at the robbery and
could have corroborated Gladney’s claim that Wilson had
robbed him. Gladney claims he did not learn of his counsel’s
failure to interview Calhoun until 2010 when he happened
to run into Calhoun in prison. At this chance meeting, Glad-
ney asked Calhoun why he did not testify about the robbery
at his trial. Calhoun explained that he had never been con-
tacted by Gladney’s lawyer.
Second, after Gladney’s conviction became final, Wiscon-
sin modified the standard for “imperfect self-defense,”
which can transform first-degree intentional homicide into
second-degree intentional homicide with a much less severe
sentence. Gladney presents this as a federal claim that his
conviction violated the Due Process Clause of the Fourteenth
Amendment because the State was permitted to convict him
without proving all of the elements of intentional first-
degree murder. See Fiore v. White, 531 U.S. 225, 228–29 (2001)
(per curiam).
Under Wisconsin law, to convict a person of first-degree
intentional homicide the State is required to defeat any cred-
ible claim of self-defense. Wis. Stat. § 940.01(3). Gladney
claims that the State was not required to do so here because
it was given the option of defeating his imperfect self-
defense claim merely by attacking the objective reasonable-
ness of his threshold belief that he was preventing or termi-
nating an unlawful interference with his person. At the time
of his trial, this accurately stated the law of imperfect self-
defense in Wisconsin. See State v. Camacho, 501 N.W.2d 380,
388–89 (Wis. 1993). After Gladney’s trial, however, the Wis-
consin Supreme Court held that the State cannot defeat a
claim of imperfect self-defense by arguing that the defend-

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No. 13-3141 5
ant’s threshold belief was objectively unreasonable. See State
v. Head, 648 N.W.2d 413, 434, 437 (Wis. 2002) (explicitly mod-
ifying this part of Camacho). Now, the only way the State can
defeat such a claim is by proving that the defendant did not
subjectively believe the amount of force used was necessary
to prevent death or great bodily harm to himself. Id.
Gladney’s state conviction became final on January 12,
1999. He did not file his federal habeas petition until July 17,
2013. The district court ordered Gladney to show cause why
his petition should not be dismissed as untimely. The court
explained that unless some form of statutory or equitable
tolling applied, Gladney’s petition was untimely because he
would have needed to file his federal petition by January 12,
2000, one year after his state court conviction became final.
See 28 U.S.C. § 2244(d)(1)(A).
The district court rejected Gladney’s attempts to toll the
limitations period—either statutorily or equitably—based on
his 2010 discovery that his lawyer had failed to interview
Calhoun. The district court also concluded that Gladney had
failed to establish that he should be exempt from the limita-
tions period altogether because he was actually innocent of
his crime of conviction. The district court dismissed the peti-
tion as untimely and decided not to issue a certificate of ap-
pealability.
Gladney appealed. We granted a certificate of appealabil-
ity on both of his constitutional claims and also directed the
parties to address the timeliness questions presented by the
petition. We asked the parties to address whether the peti-
tion might be considered timely and, if not, whether Glad-
ney can demonstrate that he is entitled to an equitable excep-

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6 No. 13-3141
tion to § 2244(d)(1)’s timeliness requirements because he is
actually innocent of his crime of conviction.
II. Timeliness of Federal Habeas Petitions
A. Determination of the Limitations Period
Under 28 U.S.C. § 2244(d)(1)(A), a state prisoner seeking
federal habeas relief has just one year after his conviction be-
comes final in state court to file his federal petition. Gladney
was convicted by a jury on November 21, 1996. Wisconsin
courts may elect to conduct direct review of a conviction at
the same time they review a post-conviction petition, and
that is what happened here. See Socha v. Boughton, 763 F.3d
674, 678 (7th Cir. 2014). Simultaneous review does not
change the time when the limitations clock starts under
§ 2244(d)(1). See id. at 678–79. For purposes of
§ 2244(d)(1)(A), therefore, the limitations period expired on
January 12, 2000, which was one year after the date Gladney
could no longer seek certiorari from the Wisconsin Supreme
Court’s October 14, 1998 decision to deny review. See Morales
v. Boatwright, 580 F.3d 653, 657 (7th Cir. 2009).
Gladney did not file either of the two state post-
conviction petitions raising the claims on which his federal
petition is based until much later. He filed the first on Octo-
ber 5, 2009 and the second petition on April 7, 2010. Though
the clock did not run from the time Gladney filed his Octo-
ber 5, 2009 petition in state court to its resolution on May 14,
2012, when the Wisconsin Supreme Court denied review of
both petitions, see § 2244(d)(2); Carter v. Litscher, 275 F.3d
663, 665–66 (7th Cir. 2001), Gladney’s July 17, 2013 federal
filing was still well outside the one-year limitations period

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No. 13-3141 7
that began when his conviction first became final back in
January 1999.
This appeal centers on whether Gladney has a legally vi-
able basis for allowing such a late federal habeas petition.
We agree with the district court that he does not. We consid-
er first, and briefly, Gladney’s arguments for statutory or eq-
uitable tolling, and then his argument for actual innocence
based on his theory of imperfect self-defense.
B. Tolling the Limitations Period
Gladney gestures in the direction of statutory tolling un-
der § 2244(d)(1)(D) as well as equitable tolling under Holland
v. Florida, 560 U.S. 631 (2010) (counsel abandoned petitioner),
as bases for finding his petition timely. But he concedes cor-
rectly that his petition would still be late even if we gave him
the benefit of generous tolling under either theory.
Under § 2244(d)(1)(D), a petitioner has an additional year
to file any claim starting from “the date on which the factual
predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” Under
equitable tolling principles, a petitioner need not count the
time during which he (1) pursues his rights diligently, and
(2) “some extraordinary circumstance stood in his way and
prevented timely filing.” Holland, 560 U.S. at 649 (citation
and internal quotation marks omitted).
Gladney’s only asserted basis for either form of tolling is
that he could not have filed a petition alleging the claims he
does now until his February 4, 2010 discovery that his attor-
ney failed to interview Calhoun as part of his trial prepara-

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8 No. 13-3141
tion. 1 Even if all other criteria were satisfied, a new one-year
limitations period would have expired on February 4, 2011
unless Gladney stopped the clock by seeking post-conviction
review in state court. See § 2244(d)(2). As noted above,
Gladney had state court post-conviction petitions pending
on at least one of the claims beginning on October 5, 2009.
This was enough to stop the clock until the Wisconsin Su-
preme Court denied review of those petitions on May 14,
2012. See Carter, 275 F.3d at 665–66. That generous calcula-
tion would yield a new federal filing deadline of May 14,
2013, and Gladney’s July 17, 2013 filing would still have been
two months late. Because no form of tolling he seeks would
render his petition timely, we need not address the underly-
ing details of Gladney’s tolling arguments.
C. Actual Innocence Gateway
Gladney’s last theory for avoiding the one-year time limit
is to argue for an equitable exception to § 2244(d)(1) based
on a claim of actual innocence. See McQuiggin v. Perkins, 569
U.S. —, 133 S. Ct. 1924, 1931 (2013) (describing difference be-
tween equitable excuse that permits extending a time limit
and equitable exception that renders a time limit inapplica-
1 The Calhoun discovery does not directly support the due process
claim, so it is possible that each claim would present a different date on
which to begin the timeliness calculation. As we noted in Taylor v. Mi-
chael, 724 F.3d 806, 809 n.3 (7th Cir. 2013), we have yet to decide how to
evaluate the timeliness of habeas petitions that present multiple claims.
While all circuit courts addressing this issue have determined that the
best approach is to evaluate timeliness on a claim-by-claim basis, see id.,
we have yet to foreclose the possibility of considering all claims if one
claim is timely. Because no individual claim by Gladney is timely, we
need not resolve this issue.

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No. 13-3141 9
ble). Gladney argues that he can avoid his procedural default
because he is actually innocent of his crime of conviction—
first-degree intentional homicide—under the standard artic-
ulated in Schlup v. Delo, 513 U.S. 298 (1995).
The Supreme Court has not recognized a petitioner’s
right to habeas relief based on a stand-alone claim of actual
innocence. See McQuiggin, 133 S. Ct. at 1931, citing Herrera v.
Collins, 506 U.S. 390, 404–05 (1993). To win federal relief, a
petitioner must show an independent constitutional viola-
tion. But when a petitioner accompanies his persuasive
showing of actual innocence with a different claim for re-
lief—here, ineffective assistance of counsel or the denial of
due process—actual innocence may be used as a “gateway”
to excuse procedural defaults that would otherwise bar a
federal court from reaching the merits of the underlying
claims. See id. at 1931–32.
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 incar-
ceration of innocent persons.” Id. at 1931, quoting Herrera,
506 U.S. at 404. The Supreme Court has made clear that this
exception covers all sorts of procedural defaults and recently
explained that it covers the procedural default at issue here:
Gladney’s failure to comply with § 2244(d)(1). See id. at
1931–32.
The actual innocence gateway is narrow. Gladney’s pro-
cedural 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.”

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10 No. 13-3141
Schlup, 513 U.S. at 316. 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 reason-
able doubt.” House v. Bell, 547 U.S. 518, 537 (2006), quoting
Schlup, 513 U.S. at 327; see also McQuiggin, 133 S. Ct. at 1935.
Gladney’s gateway claim of actual innocence under
Schlup could be viable only if he presents evidence not pre-
viously considered. Such new evidence can take the form of
any “new reliable evidence—whether it be exculpatory sci-
entific evidence, trustworthy eyewitness accounts, or critical
physical evidence.” See Schlup, 513 U.S. at 324. The review-
ing 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,
quoting Schlup, 513 U.S. at 327–28, 329. 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 argues that two developments since his trial
meet the Schlup standard of actual innocence: (1) the Wis-
consin Supreme Court’s modification of the law of imperfect
self-defense in State v. Head, 648 N.W.2d 413 (Wis. 2002), and
(2) Calhoun’s testimony corroborating that Wilson had
robbed Gladney a few weeks before the fatal encounter.
1. Change in State Law
When Gladney was convicted, the controlling case on
imperfect self-defense in Wisconsin was State v. Camacho, 501
N.W.2d 380 (Wis. 1993), which required a defendant assert-
ing it to meet an objective threshold requirement. Under

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No. 13-3141 11
Camacho, in essence, a killing that would otherwise be treat-
ed as first-degree intentional homicide would be reduced to
second-degree intentional homicide if the accused (a) had an
objectively reasonable belief that he was preventing or ter-
minating an unlawful interference with his person; and (b)
had either (1) “an actual, but unreasonable, belief that force
was necessary because the unlawful interference resulted in
an imminent danger of death or great bodily harm,” or (2) a
reasonable belief that some degree of force was necessary
but had an unreasonable belief about the amount of force
needed. See id. at 388–89; see also Head, 648 N.W.2d at 432–
33 (describing the rule under Camacho).
In State v. Head, the Wisconsin Supreme Court modified
the imperfect self-defense standard to make it easier for de-
fendants to satisfy. The court made clear that a defendant
need not make the threshold showing that he held “an objec-
tively reasonable belief in the existence of an unlawful inter-
ference.” 648 N.W.2d at 434. Following this change in the
law, a defendant can prevail on the imperfect self-defense
claim if she has an “actual but unreasonable belief that she
was in imminent danger of death or great bodily harm and
an actual but unreasonable belief that the force she used was
necessary to defend herself.” Id. To convict of first-degree
intentional homicide under the new standard, the State must
show that the “defendant did not have an actual belief in one
or both elements.” Id.
Gladney argues that under the Head standard, he would
be found actually innocent of first-degree intentional homi-
cide. That argument raises a new question in this circuit,
which is whether the Schlup actual innocence standard can
be satisfied by a change in law rather than new evidence. See

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12 No. 13-3141
513 U.S. at 324 (emphasizing need for new evidence). Glad-
ney urges us to adopt the view that a petitioner can demon-
strate actual innocence by showing “in light of subsequent
case law that he cannot, as a legal matter, have committed
the alleged crime.” Vosgien v. Persson, 742 F.3d 1131, 1134 (9th
Cir. 2014); see also Phillips v. United States, 734 F.3d 573, 581
n.8 (6th Cir. 2013) (declining “to accept the government’s
suggestion that in McQuiggin, the Court meant to limit actu-
al innocence claims to those instances where a petitioner
presents new facts … and by implication to undermine those
cases that have applied an equitable exception in cases
where the innocence is occasioned not by new evidence but
by an intervening, controlling change in the law as applied
to a static set of facts”).
We need not resolve that broader question here because
the Wisconsin Supreme Court has made it clear that the rule
announced in Head does not apply to defendants in Glad-
ney’s position. In State v. Lo, 665 N.W.2d 756, 770–72 (Wis.
2003), the Wisconsin Supreme Court explained that the in-
terpretation of the imperfect self-defense rule announced in
Head was a “new rule” that would not apply retroactively to
cases on collateral review. In other words, defendants like
Gladney convicted under the “reasonable belief” threshold
test of Camacho were not entitled to benefit from Head’s more
defendant-friendly rule because it was not the law at the
time their convictions became final. See id. at 773–74. The
state court of appeals reviewing Gladney’s claims said as
much, concluding that “Camacho was the law in this state
during the trial and postconviction proceedings, and there-
fore, the circuit court was obliged to follow it.”

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No. 13-3141 13
Gladney resists the holding of Lo, explaining all the ways
that the state court may have gotten the retroactivity analysis
wrong. Whether a state must make retroactive changes in
state law, however, is itself ordinarily a matter of state law.
As a general rule, the federal Constitution “neither prohibits
nor requires” retroactive application of a state’s judicial deci-
sions. Linkletter v. Walker, 381 U.S. 618, 629 (1965), disapproved
on other grounds by Griffith v. Kentucky, 479 U.S. 314, 320–22
(1987); see also Wainwright v. Stone, 414 U.S. 21, 23–24 (1973)
(state supreme court was not compelled “to make retroactive
its new construction of the [state] statute”).2 States are free to
choose whether a change in state law is retroactive without
running afoul of the federal Constitution. See Great Northern
Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364
(1932) (“A state in defining the limits of adherence to prece-
dent may make a choice for itself between the principle of
forward operation and that of relation backward. It may say
that decisions of its highest court, though later overruled, are
law none the less for intermediate transactions.”). The Lo
court did exactly that, concluding as a matter of Wisconsin
2 By contrast, if a state court holds that a subsequent interpretation of
a statute was the correct statement of the law at the time a defendant’s
conviction became final, the Due Process Clause requires giving peti-
tioners on collateral review the benefit of that subsequent interpretation.
See Fiore v. White, 531 U.S. 225, 228–29 (2001) (per curiam); Bunkley v.
Florida, 538 U.S. 835, 839–842 (2003) (per curiam). The Wisconsin court
avoided any constitutional problem here by holding that Camacho—and
not Head—was the correct view of the imperfect self-defense statute until
Head came along. See Bunkley, 538 U.S. at 841 (“Ordinarily, the [state]
Court’s holding that [intervening precedent] constitutes a change in—
rather than a clarification of—the law would be sufficient to dispose of
the Fiore question.”). Thus, petitioner Gladney, like petitioner Lo, was
convicted under the applicable state-law standard.

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14 No. 13-3141
law that the change in law announced in Head would not be
applied retroactively. See 664 N.W.2d at 772.
Gladney presents no federal constitutional issue and no
ground upon which we could grant habeas relief because a
“federal court may not issue the writ on the basis of a per-
ceived error of state law.” See Holman v. Gilmore, 126 F.3d
876, 884 (7th Cir. 1997), quoting Pulley v. Harris, 465 U.S. 37,
41 (1984); see also Estelle v. McGuire, 502 U.S. 62, 67–68
(1991); Burris v. Farley, 51 F.3d 655, 659–60 (7th Cir. 1995). Ac-
cordingly, Gladney cannot rely on subsequent state case law
on imperfect self-defense to establish his actual innocence
and thereby to excuse his late federal habeas petition.
2. New Evidence
Gladney’s other argument for actual innocence is based
on the testimony of Calhoun about Wilson’s earlier robbery
of Gladney. To be sure, this evidence cannot be considered
newly discovered—in the way that would be required for
equitable or statutory tolling—because Gladney had been
aware of Calhoun’s presence at the robbery. But the Schlup
actual innocence gateway does not require that the new evi-
dence be newly discovered. We have rejected limiting the
Schlup inquiry to newly discovered evidence: “All Schlup re-
quires is that the new evidence is reliable and that it was not
presented at trial.” See Gomez v. Jaimet, 350 F.3d 673, 679 (7th
Cir. 2003) (“[N]othing in Schlup indicates that there is such a
strict limitation on the sort of evidence that may be consid-
ered.”); see also Schlup, 513 U.S. at 324 (permitting any new
evidence to be considered so long as it was “not presented at
trial”). So long as the evidence was “genuinely not presented
to the trier of fact then no bar exists to the habeas court eval-

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No. 13-3141 15
uating whether the evidence is strong enough to establish
the petitioner’s actual innocence.” Gomez, 350 F.3d at 680.
The Supreme Court has since explained that we were
right to conclude that “the absence of a newly ‘discovered’
requirement in Schlup” was not a “mere oversight.” Id. at
679. In McQuiggin, the Court made clear that the threshold
diligence requirement of equitable tolling and
§ 2244(d)(1)(D) tolling does not apply when a court is con-
sidering whether evidence is new for the purposes of the ac-
tual innocence inquiry. See 133 S. Ct. at 1935. Unexplained
delay in presenting such evidence is not an absolute bar,
though it may play a role in determining whether a petition-
er has proven his actual innocence: a delayed petition
“should seriously undermine the credibility of the actual-
innocence claim.” See id. at 1935–36 (whether petitioner
should have known about new evidence earlier is only rele-
vant “as part of the assessment whether actual innocence has
been convincingly shown.”). Since Calhoun’s testimony
about the earlier robbery was not presented at trial, it can be
considered for Gladney’s actual innocence gateway theory,
though any unexplained delay calls for some skepticism on
our part.
Gladney has failed to meet Schlup’s demanding standard
for actual innocence. We are not convinced that it is more
likely than not that no reasonable juror would have convict-
ed him even in light of Calhoun’s testimony that the robbery
actually took place. Under Wisconsin’s law of imperfect self-
defense, under both Camacho and Head, the State could con-
vict Gladney of first-degree intentional homicide if it could
persuade a jury that Gladney did not actually believe that he
was in imminent danger of great bodily harm or death or

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16 No. 13-3141
did not actually believe that the amount of force used was
necessary to prevent that harm. See Head, 648 N.W.2d at 437.
Nothing in Calhoun’s statement, which focuses on the cir-
cumstances of the robbery several weeks earlier, bears direct-
ly on Gladney’s mental state at the time of the shooting: that
he actually believed he was acting to prevent harm to him-
self when he shot and killed Wilson. There is no indication
that Calhoun would have testified, for example, that Glad-
ney had discussed with him after the robbery that he lived in
fear that Wilson would kill him. Further, and contrary to
Gladney’s suggestion, the state trial court did not definitive-
ly establish that Gladney had the actual belief necessary to
make out an imperfect self-defense claim. The trial court
language to which he points—the court’s conclusion that
Gladney “intentionally fired to get him off of him” and that
his testimony showed that his defense was self-defense—is
best understood in the context in which it was used: explain-
ing that the court would not give a reckless homicide in-
struction because no juror could find that it was a reckless
homicide rather than an intentional one.
Even though Calhoun’s testimony could not directly es-
tablish Gladney’s mental state at the time of the killing,
Gladney argues that Calhoun’s testimony would have been
decisive because it provided the only first-hand account—
besides his own—that Wilson robbed Gladney at gunpoint
several weeks before Gladney fatally shot him. Two other
witnesses testified about the robbery, but neither had actual-
ly witnessed it. In Gladney’s view, their relatively weak sec-
ond-hand accounts enabled the State to cast doubt on
whether the robbery actually took place. Calhoun’s detailed
account of the robbery—including that he feared he might
be shot by Wilson, who was waving a pistol around while

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No. 13-3141 17
demanding everyone’s money—would have made it harder
for a reasonable juror to doubt that Gladney had been
robbed.
For purposes of argument, we grant Gladney the premise
that, in light of Calhoun’s testimony, any reasonable juror
would conclude that the earlier robbery took place. From
that premise, Gladney argues that it necessarily follows that
the same reasonable juror would be compelled to conclude
that he actually believed he was acting in self-defense when
he killed Wilson. That is a possible inference but by no
means a required one. The actual innocence gateway of
Schlup demands more than a possible inference that might
lead a juror to acquit. To meet his heavy burden, Gladney
must show it is likely that no reasonable juror would have
convicted.
Gladney does not meet that standard. Calhoun was not a
witness to the critical, fatal encounter. He corroborated an
important point of Gladney’s version of the back-story, but
he provided no details of the fatal shooting itself. It would be
reasonable for a juror—even one who accepted that the rob-
bery happened as Gladney described—to conclude that
Gladney did not actually believe that the force used was
necessary to protect himself from great bodily harm or
death. As the State argued in state court, and again at oral
argument, a juror hearing about the earlier robbery could
reach one of two conclusions: Gladney killed Wilson out of a
fear that he would otherwise be shot by Wilson; or, alterna-
tively, Gladney killed Wilson because Gladney was angry
that Wilson had robbed him and refused to repay the money
he had taken.

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18 No. 13-3141
On the record here, a reasonable juror could accept the
second theory. The actual jury heard evidence that Gladney
confronted Wilson about the robbery and brought a gun
with him to do it. Gladney testified that the argument got
“heated” once Wilson refused to pay up. Following that
heated argument, the jury heard, Gladney pulled out a gun.
He was the only person to pull a gun, and he shot Wilson
multiple times. Of course, some testimony indicated that
Wilson charged at Gladney and that the two struggled for
control of the gun. But consistent with that testimony, a trier
of fact might reasonably conclude that all this showed is that
Gladney had threatened to kill Wilson—either verbally or by
taking out his gun—as their argument escalated. A juror
would not be required to conclude that Gladney actually be-
lieved he was acting in self-defense at the time he shot Wil-
son just because Gladney testified there was a struggle for
the gun and that he shot Wilson only because he feared for
his life. Accordingly, we are not convinced that no reason-
able juror hearing Calhoun’s testimony would have convict-
ed him of first-degree intentional homicide. Without a strong
showing of actual innocence required by Schlup, Gladney’s
petition is untimely and we cannot address its merits.
The judgment of the district court dismissing the habeas
corpus petition as untimely is AFFIRMED.

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