No. 11A469

______________________________ (Seventh Circuit No. 11-1945)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2011

LATHIERIAL BOYD,

Petitioner,

v.

LEONTA JACKSON,

Warden, Respondent.

______________________________

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

______________________________ Richard H. McLeese 900 W. Jackson Blvd. Suite 6W Chicago, IL 60607 312.492.7273 312.268.6291 (fax) RMcLeeseLaw@aol.com January, 2012

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES------------------------------------------------------- ii

QUESTIONS PRESENT FOR REVIEW---------------------------------------- 1

ORDERS AND OPINIONS BELOW------------------------------------------- 2

JURISDICTIONAL STATEMENT---------------------------------------------- 2

STATUTORY PROVISION INVOLVED IN THE CASE------------------ 3

STATEMENT OF THE CASE---------------------------------------------------- 3

REASON WHY THE WRIT SHOULD BE ALLOWED------------------- 4

The Writ Should Be Allowed Because There Is A Split In The Circuits On The Question Whether An Otherwise Time-Barred Habeas Petition Can Be Considered On Its Merits Where The Inmate Shows He Is Innocent Of The Crime For Which He Is In Prison ADDENDUM----------------------------------------------------------------------- 7 APPENDIX--------------------------------------------------------------------------- following Addendum

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TABLE OF AUTHORITIES

Cases

Cousin v. Lensing, 310 F.3d 843 (5th Cir. 2002)-------------------------------- 5

David v. Hall, 318 F.3d 343 (1st Cir. 2003)-------------------------------------- 5

Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir. 2005)-------------------------- 5

Flanders v. Graves, 299 F.3d 974 (8th Cir. 2002)------------------------------- 5

Gildon v. Bowen, 384 F.3d 883 (7th Cir. 2004)---------------------------------- 5

Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011) (en banc)-------------------------- 5

Lopez v. Trani, 628 F.3d 1228 (10th Cir. 2010)---------------------------------- 5

Riva v. Ficco, 615 F.3d 35 (1st Cir. 2010)----------------------------------------- 5

San Martin v. McNeil, 633 F.3d 1257 (11th Cir. 2011)------------------------ 5

Souter v. Jones, 395 F.3d 577 (6th Cir. 2005)------------------------------------- 5

Statutory Provisions

28 U.S.C. § 2244----------------------------------------------------------------------- 3

1

QUESTION PRESENTED FOR REVIEW

Can an otherwise time-barred habeas petition be considered on its

merits where the inmate shows he is actually innocent of the crime for which

he is in prison?

2

ORDERS AND OPINIONS BELOW

In this habeas proceeding, the district judge granted the State’s motion

to dismiss Lathierial Boyd’s petition as time-barred.1 The judge granted a

certificate of appealability on this question—whether an otherwise time-

barred habeas petition can be considered on its merits where the inmate

shows he is actually innocent of the crime for which he is in prison—because

the circuit courts of appeal are split on this issue.2 On appeal the Seventh

Circuit Court of Appeals summarily affirmed the judgment, relying on

Seventh Circuit precedent “foreclos[ing]” “any tolling argument based on

actual innocence.”3 A copy of the Seventh Circuit’s Order appears in the

Appendix.

JURISDICTIONAL STATEMENT

The Seventh Circuit’s Order affirming the judgment was entered on

May 31, 2011.4 A timely petition for rehearing was denied on August 11,

2011. A motion to extend the time for filing this petition was granted,

extending the due date to January 8, 2012. (Because January 8th is a Sunday,

the effective due date is January 9, 2012.) This Court's jurisdiction is based on

28 U.S.C. § 1254(1).

1 Boyd v. Pierce, No. 08 CV 4257 (N.D. Ill.), Docket (“Dkt.”) #97 (Memorandum Opinion and Order, granting the State’s motion to dismiss; available through PACER). 2 Id. at Dkt. #119 (Order granting, in part, our request for a certificate of appealability) at 5-6. 3 Boyd v. Pierce, No. 11-1945 (7th Cir.), Order of May 31, 2011 (copy in Appendix).

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STATUTORY PROVISION INVOLVED IN THE CASE

28 U.S.C. § 2244(d)(1) provides in relevant part:

A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.

STATEMENT OF THE CASE

I. Basis For The District Court’s Jurisdiction

The district court's jurisdiction over this habeas case was based on 28

U.S.C. §§ 2241 and 2254.

II. Background

Lathierial Boyd, an Illinois prisoner who was convicted of murder and

related offenses, is serving a sentence of 82 years’ incarceration.5 Boyd has

been incarcerated since 1990; his projected date of release is in 2031.6 As

detailed in the district court, an ever-growing body of evidence—virtually all

of it undisputed—provides support for the proposition that Boyd is actually

innocent of the crime for which he has been incarcerated for over 20 years.7

The evidence of Boyd’s innocence is summarized in the accompanying

Addendum, as is the prosecution’s case against him.

4 See id. 5 Boyd v. Pierce, No. 08 CV 4257 (N.D. Ill.), Dkt. #80 (Petitioner’s Response To The State’s Motion To Dismiss) at 2-3 (available through PACER). 6 Id. 7 Id. at 17-18.

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The district judge found that Boyd’s habeas petition contained “several

colorable constitutional claims.”8 But the judge did not reach the merits of those

claims.9 Instead, despite the largely undisputed evidence of Boyd’s innocence,

the judge dismissed his habeas petition as time-barred, relying on controlling

Seventh Circuit precedent barring consideration of an otherwise time-barred

petition on the basis of actual innocence.10

REASON WHY THE WRIT SHOULD BE ALLOWED

The Writ Should Be Allowed Because There Is A Split In The Circuits On The Question

Whether An Otherwise Time-Barred Habeas Petition Can Be Considered On Its Merits

Where The Inmate Shows He Is Innocent Of The Crime For Which He Is In Prison

This is a case that, we submit, cries out for review by this Court,

because there is a stark split in the circuits on the question raised: whether an

otherwise time-barred habeas petition can be considered on its merits where

the inmate shows he is innocent of the crime for which he is in prison. In three

circuits (First, Fifth, Seventh), the answer to this question is “no.” In four

other circuits (Sixth, Ninth, Tenth, Eleventh), the answer is “yes.” In a recent

en banc decision, the Ninth Circuit Court of Appeals, holding that an

otherwise time-barred habeas petition can be considered under these

circumstances (then concluding that the petitioner had failed to make the

8 Boyd v. Pierce, No. 08 CV 4257 (N.D. Ill.), Dkt. #119 at 2. 9 Id. at Dkt. #97. 10 See id. at 7-8.

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requisite showing of innocence), summarized the present state of the law this

way:

In recognizing an equitable exception based on a credible showing of actual innocence, we join three of our sister circuits on an issue that has divided the courts of appeal. See Souter v. Jones, 395 F.3d 577, 602 (6th Cir. 2005); Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010); San Martin v. McNeil, 633 F.3d 1257, 1267-68 (11th Cir. 2011).

***

The First, Fifth, and Seventh Circuits do not recognize an actual innocence exception under any circumstances. See David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002); Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir. 2005). But see Riva v. Ficco, 615 F.3d 35, 44 n.4 (1st Cir. 2010) (characterizing David as merely "expressing skepticism" about whether an actual innocence claim can excuse AEDPA's limitations period, and remanding to the district court to consider the issue in the first instance); Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004) (adopting the Eighth Circuit's approach in Flanders v. Graves, 299 F.3d 974, 976-78 (8th Cir. 2002)). The Eighth Circuit has left open the possibility that actual innocence could bear on a claim for equitable tolling. See Flanders, 299 F.3d at 976-78.

Lee v. Lampert, 653 F.3d 929, 932-33 & n.6 (9th Cir. 2011) (en banc). The availability of habeas relief should not turn on a fortuity—the state

in which an inmate happens to be imprisoned. The doors of the federal courts

would be open to Boyd if he were incarcerated in Kentucky, Michigan, Ohio, or

Tennessee; in Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, or

Washington; in Colorado, Kansas, New Mexico, Oklahoma, Utah, or Wyoming;

in Alabama, Florida, or Georgia. He should not be denied entry simply because

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he happens to be incarcerated in Illinois. Nothing is to be gained by allowing

this conflict between the circuits to fester. It is time, we submit, for this Court to

decide this question.

Respectfully submitted, _____________________________ Lawyer for Petitioner Lathierial Boyd Richard H. McLeese 900 W. Jackson Blvd., Suite 6W Chicago, IL 60607 312.492.7273 312.268.6291 (fax) RMcLeeseLaw@aol.com

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ADDENDUM

Summary Of The Prosecution’s Case Against Lathierial Boyd And The Evidence Of His Innocence

This Addendum has four parts:

(1) overview, see Part 1, infra;

(2) the prosecution’s case against Lathierial Boyd, see

Part 2, infra;

(3) the evidence of Lathierial Boyd’s innocence, see

Part 3, infra; and

(4) Lathierial Boyd’s efforts, over more than 20 years of

incarceration, to overturn his conviction, establish his innocence, and

regain his freedom. See Part 4, infra.

1. Overview

Lathierial Boyd was charged in April of 1990 with murder, attempted

murder, and various related offenses.11 He was tried, and found guilty, in

October of that year by a judge sitting without a jury.12 That December he

was sentenced to a total of 82 years’ imprisonment (55 years for murder; 27

11 See Boyd v. Pierce, No. 08 CV 4257 (N.D. Ill.), Dkt. #80 (Petitioner’s Response To The State’s Motion To Dismiss) at 2 (available through PACER). 12 See id.

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years, consecutive, for attempted murder).13 His “Projected Parole Date” is

“04/10/2031.”14

The crimes for which Boyd was convicted were committed at 2 a.m. on

February 24, 1990.15 They took place outside a reggae bar located on the north

side of Chicago, about a block from Wrigley Field.16 At the time the street was

well-lighted.17 Many people were out.18

Shortly before these crimes were committed, two individuals outside

the bar, Michael Fleming and Ricky Walker, were trying to sell fake

marijuana.19 A car screeched to a halt and an armed assassin emerged,

spraying victims with an uzi.20 Fleming was shot and killed.21 Walker was

shot and paralyzed.22 Three other people were also shot, sustaining relatively

minor injuries.23

13 See id. at 2-3. 14 http://www.idoc.state.il.us/(Inmate Search: “Latherial [sic] Boyd”). 15 See id. at 3. 16 See id. 17 See id. 18 See id. 19 See id. 20 See id. 21 See id. 22 See id. 23 See id.

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2. The Prosecution’s Case Against Lathierial Boyd

This section has three parts:

(1) the prosecution’s theory of the case, see Part 2, a,

infra;

(2) evidence the prosecution introduced, see Part 2, b,

infra; and

(3) evidence the prosecution did not introduce. See Part

2, c, infra.

a. The Prosecution’s Theory Of The Case: Lathierial Boyd, Toting An Uzi On A Crowded, Well-Lighted Street

Outside A Bar Near Wrigley Field, Shot One Man To Death, Shot And Paralyzed A Second Man, And Shot And Wounded Several Others— All Because One Of These Individuals Had Not Paid A Debt, From Past Drug Dealings, Of $1,000

According to the State, Lathierial Boyd was the uzi-wielding assassin

who, outside a bar on a crowded, well-lighted street near Wrigley Field, shot

one man to death, shot and paralyzed a second man, and shot and wounded

several others.24 The motive for these crimes, according to the State, was that

the man who was left paralyzed, Ricky Warner, had not paid Boyd money

that was owed from past drug transactions.25 Warner was the only

eyewitness to identify Boyd as the shooter.26 The amount of money in

24 See id. at 4. 25 See id. 26 See id. at 4-5.

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question, according to Warner, was $1,000.27 (Coincidentally, according to

Warner, he was selling fake marijuana that night to get money to pay this

debt.28)

At the time these crimes were committed, Boyd was 24 years old.29 He

had worked as (among other things) a model, appearing in (among other

places) the Style Section of the Chicago Tribune.30 His criminal history was

limited to three relatively minor offenses (i.e., misdemeanor battery and

violation of an order of protection, for which he was sentenced to one year of

court supervision; misdemeanor theft, for which he was sentenced to one

year of probation; and possessing a controlled substance, for which he was

sentenced to 14 months of nonreporting probation and a $100 fine).31

b. Evidence The Prosecution Introduced

The prosecution’s case had three main parts:

(1) the testimony of Ricky Warner, the man who was

shot and paralyzed, see Part b, i, infra;

27 See id. at 5. 28 See id. 29 See id. 30 See id. 31 See id.

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(2) the testimony of Herbert Warner, Ricky’s father, see

Part b, ii, infra; and

(3) a piece of paper that, according to Ricky, was given to

him by Lathierial Boyd a couple of months before the shooting

and contained Boyd’s beeper number, his partner’s beeper

number, and various figures relating to drug transactions. See

Part b, iii, infra.

i. Testimony of Ricky Warner

As stated, Ricky Warner was the only eyewitness to identify Boyd as

the shooter. According to Ricky:

(1) He and Boyd, whom he’d known for several years,

had an ongoing feud.32

(2) He owed Boyd $1,000 from past drug dealings. He

was selling fake marijuana that night to get money to pay this

debt.33

(3) Outside the bar that night, when he was trying to sell

fake marijuana, he saw Boyd about ten feet away, but he did

not see a gun.34 After shooting him, Boyd got into a white car.35

32 See id. at 6.

33 See id.

34 See id. at 6-7.

35 See id. at 7.

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On at least one occasion before he identified Boyd as the shooter, Warner had

told the police that he did not know who shot him.36

ii. Testimony of Herbert Warner

According to Herbert Warner (Ricky’s father):

(1) He had a confrontation with a person he identified as

Boyd on two occasions.37

(2) These confrontations occurred at his house five or six

months prior to the shooting.38

(3) Boyd said that Warner’s son, Ricky, owed him

money. The amount, according to Herbert Warner, was $600.

Boyd threatened to kill Warner and his family if Ricky did not

pay him.39

According to Warner, Boyd arrived at his house in a car that had a vanity

license plate: “RAT” (which, according to Ricky, was Boyd’s nickname).40

(This license-plate testimony was referred to by the prosecutor in closing

argument and by the trial judge in finding Boyd guilty.41)

36 See id.

37 See id.

38 See id.

39 See id.

40 See id. at 7-8. 41 See id. at 8.

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iii. A Piece Of Paper (People’s Ex. 20) That, According To Ricky Warner, Lathierial Boyd Gave Him A Couple Of Months Before The Shooting With Beeper Numbers For Him and His Partner A piece of paper, referred to at trial as People’s Exhibit 20, was

introduced into evidence. According to Ricky Warner:

(1) He was given this piece of paper by Lathierial Boyd

a couple of months before he was shot.42

(2) It had beeper numbers for Boyd and his partner

Reggie, as well as numbers relating to drug transactions.43

According to the trial judge, this piece of paper served to corroborate Ricky’s

testimony.44

c. Evidence The Prosecution Did Not Introduce

The prosecution’s case included none of the following evidence.

i. No Eyewitness Testimony Corroborating Ricky Warner’s Identification Of Lathierial Boyd As The Shooter As stated, this crime was committed on a well-lighted street.45 Many

people were around.46 Only one eyewitness identified Boyd as the shooter:

42 See id. 43 See id. 44 See id. 45 See id. at 9. 46 See id.

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Ricky Warner.47 Nine eyewitnesses viewed a line-up that included Boyd.48

None identified Boyd as the man who shot Ricky Warner and the others.49

ii. No Physical Evidence Corroborating Ricky Warner’s Identification Of Lathierial Boyd As The Shooter No physical evidence was introduced to corroborate Ricky Warner’s

identification of Lathierial Boyd as the shooter.50

iii. No Inculpatory Statements By Lathierial Boyd Corroborating Ricky Warner’s Identification Of Him As The Shooter No inculpatory statements by Lathierial Boyd were introduced to

corroborate Ricky Warner’s identification of him as the shooter.51 (Boyd has

consistently maintained, for over 20 years, that he is innocent.52)

iv. Nothing To Corroborate Herbert Warner’s Testimony That Lathierial Boyd Had A “RAT” Vanity License Plate No evidence was introduced, such as records from the Illinois

Secretary of State’s Office, to corroborate Herbert Warner’s testimony that

47 See id. 48 See id. 49 See id. 50 See id. 51 See id. at 10. 52 See id.

15

Lathierial Boyd arrived at his house in a car with a “RAT” vanity license

plate. 53

v. Nothing To Corroborate Ricky Warner’s Testimony That The Handwriting On The Piece Of Paper (People’s Exhibit 20) Was Lathierial Boyd’s No evidence was introduced, such as testimony from a handwriting

expert, to corroborate Ricky Warner’s testimony that the handwriting on

Exhibit 20 was Lathierial Boyd’s.54

vi. Nothing To Corroborate Ricky Warner’s Testimony That The Beeper Numbers On The Piece Of Paper (People’s Exhibit 20) Belonged To Lathierial Boyd And His Partner No evidence was introduced, such as records from a pager company,

to corroborate Ricky Warner’s testimony that the beeper numbers on Exhibit

20 belonged to Lathierial Boyd and his partner Reggie.55

3. The Evidence Of Lathierial Boyd’s Innocence

Because of (among other things) constitutionally deficient performance

by Boyd’s trial counsel, none of the following evidence of Boyd’s innocence

was presented at trial.

53 See id. 54 See id. 55 See id. at 11.

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a. Disinterested Eyewitnesses Provided A Description Of The Shooter

That Did Not Match Lathierial Boyd

As stated, only one eyewitness identified Lathierial Boyd as the

shooter: Ricky Warner.56 None of the nine disinterested eyewitnesses who

viewed a line-up including Boyd identified him as the shooter.57 Not only did

the other eyewitnesses fail to identify Boyd; they provided a description of

the shooter that did not match him. Their descriptions of the shooter differed

from Boyd in each of the following respects (among others):

(1) Height: Eyewitnesses described the shooter as

“5-10—6-0.”58 Boyd is taller than that: “6’1”,” according to one

later police report;59 “74 1/2”,” according to the Illinois

Department of Corrections.60

(2) Weight: Eyewitnesses described the shooter as “170-

190” pounds.61 Boyd is heavier than that: 215 pounds according

56 See id. 57 See id. 58 See id. at 12. 59 See id. 60 See id. 61 See id.

17

to the later police report;62 209 pounds according to the Illinois

Department of Corrections.63

(3) Complexion: Eyewitnesses described the shooter’s

complexion as “med dk.”64 Boyd is lighter than that: he is a

“very light skinned African American.”65

b. Disinterested Eyewitnesses Provided A Description Of The Shooter’s Car That Did Not Match Ricky Warner’s Testimony

As stated, Ricky Warner testified that, on the night of the shooting,

Boyd had a white car.66 That doesn’t match the description provided by

eyewitnesses, who described it as “brown, maroon, or copper.”67

c. Disinterested Eyewitnesses Provided A Description Of The Shooter’s Departure From The Scene That Did Not Match Ricky Warner’s Testimony

As stated, Ricky Warner testified that he saw Boyd leave the scene,

after shooting him, in a white car.68 That’s not how disinterested

62 See id. 63 See id. 64 See id. 65 See id. 66 See id. at 13. 67 See id. 68 See id.

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eyewitnesses said the shooter left the crime scene. According to them, the

shooter “ran SB on Clark to WB on Cornelia.”69

d. According To Ricky Warner’s Brother, Ricky Told Him That He Did Not Know Who Shot Him

A sworn statement by Ricky Warner’s brother, James Fleming,

contradicts Ricky’s identification of Boyd as the shooter. According to

Fleming:

(1) Ricky told him, a few months after the shooting, that

“he did not see the shooter and did not know who shot him.”70

(2) “Ricky said he was running away when he was shot,

so he never saw the shooter.”71

(3) “Ricky told me that he had told the police that

Latherial Boyd was the shooter because Boyd had threatened

him before, but he did not really know that Boyd was the

shooter.”72

69 See id. 70 See id. at 14. 71 See id. 72 See id.

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e. According To One Disinterested Eyewitness, Not Only Did She Tell The Police That She Could Not Identify Anyone in The Line-Up That Included Lathierial Boyd; She Told Them That Boyd Was Not The Shooter

One of the disinterested eyewitnesses (Jennifer Bonanno) has said that

not only did she tell the police that she could not identify anyone in the line-

up that included Boyd; she told them that Boyd was not the shooter.73

f. Herbert Warner’s Testimony That Lathierial Boyd Had A “RAT” Vanity License Plate Does Not Match Illinois Secretary of State Records

As stated, Herbert Warner testified that when Boyd came to his house,

told him that Ricky owed him money, and made threats, he arrived in a car

that had a vanity license plate: “RAT.”74 This testimony was relied upon by

the prosecutor in closing argument and by the judge in finding Boyd guilty.75

However, Illinois Secretary of State records show that (as the police knew

prior to trial) Boyd did not have such a license plate.76 (At a post-conviction

proceeding, the judge accepted this—that Boyd did not have a “RAT” vanity

license plate—“as fact,” ruling that trial counsel, in failing to develop and

73 See id. at 14-15. 74 See id. at 15. 75 See id. 76 See id.

20

present this evidence at trial, had not performed in an objectively

unreasonable fashion for Strickland purposes.77)

g. Ricky Warner’s Testimony That The Beeper Numbers On People’s Exhibit 20 Belonged To Lathierial Boyd And His Partner Do Not Match Pager Company Records

As stated, Ricky Warner testified that Boyd gave him a piece of paper

(People’s Exhibit 20) a couple of months before the shooting that contained

his and his partner Reggie’s beeper numbers.78 No evidence was presented to

corroborate the proposition that these numbers belonged to these men.79

Pager company records show that they did not.80 (As with the “RAT” trial

testimony, the post-conviction judge accepted this—that these beeper

numbers did not belong to these men—“as fact.”81)

4. Lathierial Boyd’s Efforts, During 20 Years Of Incarceration, To Overturn His Conviction, Establish His Innocence, And Regain His Freedom Except when sidelined by health problems, Lathierial Boyd has fought

for the last 20 years, tirelessly and relentlessly, to overturn his conviction,

establish his innocence, and regain his freedom. As his former lawyers put it:

“Throughout the years since he has been convicted, Lathierial Boyd has

77 See id. 78 See id. at 16. 79 See id. 80 See id. 81 See id.

21

worked passionately to prove his innocence and to undercut the evidence that

was used to convict him.”82 In a similar vein, journalists who prepared a

television news story about Boyd’s case stated: “Lathieriel Boyd has spent

every day of the last twelve years behind bars proclaiming his innocence. He’s

written thousands of letters, trying to get somebody to help him prove he’s

not a killer.”83

Boyd himself has summarized his efforts, in a sworn statement, this

way:

During the 20 years that I’ve been locked up, except for when I’ve been sidelined by health problems, I have worked extremely hard to try to regain my freedom. Writing letters from my prison cell, I developed evidence contradicting Herbert Warner’s testimony about the “RAT” vanity license plate. I also developed evidence contradicting Ricky Warner’s testimony about the beeper numbers on People’s Ex. 20. In 1998, I prepared and filed a 49-page pro se post-conviction petition. And I have written hundreds and hundreds of letters over the years to lawyers, investigators, and journalists all over the country (including the people at WGN-TV News who did a story about my case in 2002).84

82 Id. at 16-17 (quoting Professor Lawrence C. Marshall, then at Northwestern Law School and now at Stanford Law School, and Patricia A. Bronte and Lisa Parker Gates, then at Jenner & Block). 83 Id. at 17 (quoting Muriel Clair, WGN-TV Reporter, and Jason Jedlinski, former WGN-TV Producer). 84 See id. at 17-18.

APPENDIX

United States Court of AppealsFor the Seventh CircuitChicago, Illinois  60604

Submitted May 9, 2011Decided May 31, 2011

Before

 MICHAEL S. KANNE, Circuit Judge

 DIANE P. WOOD, Circuit Judge

 DAVID F. HAMILTON, Circuit Judge

No. 11‐1945

LATHIERIAL BOYD,Petitioner‐Appellant,

v.

GUY PIERCE,Respondent‐Appellee.

Appeal from the United States DistrictCourt for the Northern District ofIllinois, Eastern Division.

No. 1:08‐cv‐04257

Robert W. Gettleman,Judge.

O R D E R

Upon consideration of the MOTION TO VACATE THE CERTIFICATE OFAPPEALABILITY, filed on May 4, 2011, by respondent‐Appellee,

IT IS ORDERED that the motion is DENIED.

IT IS FURTHER ORDERED that the judgment of the district court is AFFIRMED.Boyd’s petition is time‐barred and any tolling argument based on actual innocence wouldbe foreclosed by the decisions of this court. See Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir.2010); Escamilla v. Jungwirth, 426 F.3d 868, 871‐72 (7th Cir. 2005).

Case: 11-1945 Document: 10 Filed: 05/31/2011 Pages: 1

CERTIFICATE OF SERVICE

I hereby certify as follows:

(1) I caused a copy of the foregoing document to be

served on the following lawyer by mailing it to her on January

9, 2012: Illinois Attorney General Lisa Madigan, 100 W.

Randolph St., 12th Floor, Chicago, IL 60601.

(2) All parties required to be served have been served.

_______________________________ Richard H. McLeese Counsel for Petitioner Lathierial Boyd