Darnell Dixon v. Tarry Williams

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-1375
DARNELL DIXON ,
Petitioner-Appellant,
v.
TARRY WILLIAMS ,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1-17-cv-01142 — Robert W. Gettleman, Judge.
____________________
A RGUED O CTOBER 26, 2022 — DECIDED F EBRUARY 20, 2024
____________________
Before R OVNER , HAMILTON , and BRENNAN , Circuit Judges.
R OVNER , Circuit Judge. An Illinois state court jury con-
victed Darnell Dixon of home invasion and murder, for which
he received a life sentence. Dixon sought post-conviction re-
lief several times in the Illinois state courts before turning to
the current federal habeas petition which focuses primarily on
a claim of actual innocence and prosecutorial misconduct.

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2 No. 21-1375
I.
Because Dixon did not contest the state court’s factual
findings, the district court adopted them, as will we. At
Dixon’s trial in a Cook County, Illinois court, Myron Gaston
(Myron),1 testified that he went to buy cocaine from James Al-
len (James) while his friends, Chris Jones and Jerome DeBerry,
waited outside. After completing the transaction, the three
men returned and robbed James and Marshan Allen (Mar-
shan) of drugs and money. Dixon was present in the apart-
ment during the robbery but testified that he was not robbed.
James later called Myron’s brother, Elroy Gaston (Elroy), to
discuss the robbery, and over the next few days Myron met
with James to return some of the stolen money, but none of
the cocaine.
A few days later, on March 15, 1992, DeBerry, Elroy, and
John Harris were at Myron’s apartment when they received a
phone call, but the caller said nothing. Myron left to run an
errand and returned to find Harris hiding, and DeBerry and
Elroy lying on the floor with fatal gunshot wounds.
Eventually the police identified the sixteen-year-old Mar-
shan as a suspect in the murders of DeBerry and Elroy, and
after hours of interrogation without his parents or a lawyer,
Marshan confessed that he, Eugene Langston, and Dixon had
robbed and killed DeBerry and Elroy.2 Police arrested Dixon
1 Several of the people involved in this case have the same last names
and thus in those instances we use their first names for clarity and sim-
plicity.
2 Because there are so many people involved in this case, it may be
helpful to categorize Dixon, Marshan, James, and Langston as the group
of original robbery victims/later murder suspects, and Elroy, Myron,
(continued)

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No. 21-1375 3
the next day. At the police station, Detective Michael McDer-
mott and Assistant State’s Attorney Henry Simmons interro-
gated Dixon. After six hours of interrogation, Simmons wrote
a summary of the interview and brought it to Dixon to sign.
Dixon initialed some changes that Simmons made to the writ-
ten summary, such as correcting his name from Durrell to
Darnell, but ultimately refused to sign it, claiming that it was
false.
The state court denied Dixon’s motion to exclude testi-
mony about his confession, so at trial both McDermott and
Simmons testified about the contents of that confession. De-
tective John Leahy, one of the arresting officers, also testified
at trial that he advised Dixon of his Miranda rights upon arrest
and was also present when Dixon’s co-defendant, Marshan,
confessed and implicated Dixon.3 According to McDermott’s
testimony, after an officer read Dixon his Miranda rights,
Dixon described how Myron failed to return the money and
cocaine that he stole from James. Consequently, Dixon and
Marshan stole a van, and the next morning Dixon and Lang-
ston used the van to drive to Myron’s apartment. There, Lang-
ston fired into the door, kicked it in, and continued firing.
Dixon also fired four to five rounds from a nine-millimeter
handgun, and then the two returned to the van, which they
subsequently abandoned a few blocks away from the crime
scene before walking home. According to State’s Attorney
Simmons’ testimony regarding the confession, Simmons read
Jones, DeBerry and Harris as the group of original robbery suspects/later
robbery-murder victims.
3 Another officer, James Boylan, testified that he repeated the Miranda
warnings to Dixon at the police station.

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4 No. 21-1375
Dixon his Miranda rights, offered food and use of the bath-
room, and also offered Dixon the option of either having his
statement reduced to writing by a court reporter or having
Simmons write it up. According to Simmons, Dixon chose the
latter. Simmons testified that when presented with the writ-
ten statement, Dixon admitted that it was true, but neverthe-
less refused to sign it. Simmons’ testimony about the substan-
tive contents of the confession mirrored that of McDermott
and the written statement itself. The state read the alleged
confession into the record, and the court allowed the jurors to
take the unsigned, written confession into the jury room and
use it during deliberations.
Most of the state’s case centered on that confession, but the
state did present some corroborating evidence, albeit thin.
That evidence included a report of a van closely matching the
description of the one in the confession that had been stolen
from the location where Dixon allegedly confessed to having
stolen it. One witness reported seeing men fleeing in a brown
van with a grey stripe. The stolen van was, in fact, grey with
a maroon stripe. Police found the stolen grey van with the col-
umn stripped (indicating that it had been stolen), a few blocks
from Dixon’s apartment, near where Dixon described aban-
doning it in his alleged confession. The state never collected
fingerprints from the van. Nor did investigators find any fin-
gerprint matches for Dixon, Marshan, or Langston in the
apartment where the murders took place. The state also called
a witness from the telephone company who confirmed that
the mystery phone call to Myron’s apartment just shortly be-
fore the murders came from James’ apartment—in other
words, from the place where the original robbery that spurred
the alleged vigilantism occurred.

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No. 21-1375 5
During the trial, Dixon’s lawyers sought to present evi-
dence that Horace Chandler, who worked in the apartment
building and was the only known neutral witness to the
events of the day, had not identified Dixon in a lineup. Shortly
after the crime, Chandler told the police that he saw a person
leave the scene and enter a van. He was later called to identify
the suspect in a lineup that included both Langston and
Dixon, but, according to the police, he identified only Lang-
ston and not Dixon. Dixon’s attorney would have liked to put
Chandler on the stand to testify that he had not identified
Dixon, but he was unable to locate Chandler by the time of
the trial. Moreover, Chandler later swore in an affidavit
signed before his lawyer that he had never identified anyone
in the lineup.4
At trial, the court made clear that it would not accept hear-
say evidence about Chandler’s lineup identifications—or lack
thereof—at trial. Despite that admonishment, Dixon’s counsel
nevertheless asked the detective present at the lineup, Detec-
tive David Friel, whether anyone witnessing the lineup had
identified Dixon. After sustaining the state’s objection, the
trial judge gave Dixon’s counsel two options to cure the error:
Dixon’s counsel could choose to strike all of Detective Friel’s
testimony or allow the state to question Detective Friel
4 The parties refer to this as a recantation, although it is not a recanta-
tion in the literal sense. In general, we think of a recantation as a confession
of error—that is, that someone later claims that she was incorrect about
what she saw or heard. In this case, Chandler claims that he never identi-
fied anyone at the lineup—the implication of which is not that he erred or
changed his mind, but rather that the government witnesses who said that
he made an identification were either mistaken or not telling the truth.
Despite this distinction, we use the term “recantation” at times for sim-
plicity.

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6 No. 21-1375
regarding whether Chandler identified anyone as the of-
fender. The judge made clear that should counsel choose the
latter option, he would not allow in evidence that Chandler
later swore that he had never identified Langston. Dixon’s
counsel chose the latter option without objection to the op-
tions, thus allowing the jury to hear that Chandler had iden-
tified Langston as the person he saw at the crime, without any
evidence of the recantation. Because the state’s theory was
that Langston and Dixon had committed the crime together,
and that each accomplice was liable for the acts of the other,
this evidence undoubtedly harmed Dixon’s case.
Dixon testified in his own defense, stating that he had sold
drugs for James in the past and was at his residence during
the initial robbery, but that on the day James was robbed, he
did not know about the drug sale and was not personally
robbed. He testified that he knew nothing about the murders,
did not receive a warning about his Miranda rights, and only
initialed the alleged confession because Simmons ordered
him to do so. He also testified that he refused to sign the con-
fession because he knew nothing about the murders and did
not commit them—a position he continues to hold to this day.
Dixon’s lawyer argued to the jury that McDermott had a mo-
tive to lie because the murders had gone unsolved for three
weeks, and that Simmons was motivated by his desire to be-
come a judge.
The jury found Dixon guilty of two counts of first-degree
murder and one count of home invasion. The trial judge sen-
tenced him to life in prison on June 24, 1994. Dixon appealed
to the state appellate court, raising claims that are not relevant
to this habeas petition. The appellate court affirmed the

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No. 21-1375 7
decision on November 11, 1996, and Dixon did not appeal to
the Illinois Supreme Court.
Over three years later, on July 25, 2000, Dixon filed a pro
se post-conviction petition in the state court claiming, among
other things, that he was actually innocent and that both trial
and appellate counsel provided ineffective assistance of coun-
sel. The state trial court denied the petition reasoning that it
was both untimely and meritless. Dixon appealed the denial
of his petition for post-conviction relief, arguing that his trial
counsel had been ineffective first by opening the door for the
state to introduce evidence of Chandler’s identification of
Langston, and later by failing to call Chandler to testify that
he never made an identification. The state responded that the
argument was untimely, forfeited, and meritless. The merits
portion of the state’s argument included the following para-
graph:
Moreover, Eugene Langston was not a co-
defendant at the time of trial. Eugene
Langston was never found guilty [in] con-
nection to the crimes underlying defend-
ant’s conviction. Therefore, defendant’s
claim that he was prejudiced by a recanted
identification of a man who had nothing to
do with the murders is legally baseless and
fully without any merit. While defendant’s
culpability may have rested on the theory
of accountability to some extent, none of
that accountability lies with Eugene Lang-
ston.
R. 25-14 at 41.

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8 No. 21-1375
This was an odd argument for the state to make because,
as we noted, the state had molded its case on a theory of ac-
complice liability—that is, that Dixon could be held account-
able for Langston’s conduct. The state’s brief also incorrectly
stated that Dixon could not have been prejudiced by Friel’s
testimony because “[t]here was no testimony regarding any
identification made by Horace Chandler.” R. 25-14 at 41. This
too was incorrect. The state put on testimony that Chandler
viewed a lineup and identified Langston in that lineup. R. 25-
26 at 518–519.
In his reply brief, Dixon pointed out the misstatements,
but the state appellate court nevertheless affirmed, ruling that
the petition for post-conviction relief lacked merit. In making
that decision, the state appellate court explained that Chan-
dler’s identification of Langston probably had little effect on
the outcome of the trial “as the prosecution never used that
identification in argument, and Langston and other associates
of the Allens could have committed the murders without
Dixon’s involvement. Placing Langston at the scene bore little
relevance to the case against Dixon.” R. 25-2 at 13–14. The Il-
linois Supreme Court denied Dixon’s petition for review of
that decision.
On June 27, 2011, Dixon filed a second petition for post-
conviction relief in state court based, in part, on the fact that
the state’s latest filing acknowledged that Langston had noth-
ing to do with the murders, thus eviscerating the state’s argu-
ment about accomplice liability. The trial court denied the pe-
tition, the appellate court affirmed, and the Illinois Supreme
Court denied the petition for leave to appeal.
Although it was not known at the time of the events of this
case or the trial, it came to light later that Officer McDermott’s

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No. 21-1375 9
supervising officer, Commander Jon Burge of the Chicago Po-
lice Department, tortured countless suspects to elicit confes-
sions in the decades between 1972 and 1991. Burge was even-
tually convicted in a federal court of obstruction of justice and
perjury for his acts related to torturing suspects. See United
States v. Burge, No. 08 CR 846, 2011 WL 13471, at *1 (N.D. Ill.
Jan. 3, 2011), aff’d, 711 F.3d 803 (7th Cir. 2013). As for McDer-
mott, the Illinois Torture Inquiry and Relief Commission doc-
umented fourteen abuse allegations against McDermott be-
tween 1984 and 1999, ranging from threatening and slapping
suspects, squeezing their testicles, severely beating them, and,
in one case, holding a gun to a suspect’s head and threatening
to kill him.5 Several federal and state court judges have dis-
cussed McDermott’s perjury. See United States v. Burge, No. 08
CR 846, 2014 WL 201833, at *2–3 (N.D. Ill. Jan. 17, 2014)
(“McDermott has previously perjured himself and even gave
testimony at the Burge trial that was inconsistent with his
grand jury testimony.”); People v. Smith, 596 N.E.2d 789, 792
(Ill. App. 1st 1992) (rejecting McDermott’s testimony and
finding that the arrestee was detained on pretext); People v.
Mitchell, 972 N.E.2d 1153, 1159–60 (Ill. App. 1st 2012) (“A re-
port of special prosecutors concerning an investigation into
the crimes police committed at Area 2 specifically found suf-
ficient evidence to prove beyond a reasonable doubt that
McDermott, amongst others, participated in aggravated
5 The Commission is authorized to gather evidence about claims of
torture occurring in Cook County, and then determine whether there is
sufficient credible evidence of torture to merit judicial review. 775 ILCS
§ 40/5.

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10 No. 21-1375
battery of suspects and perjured himself about alleged confes-
sions.”).6
In February 2017, Dixon filed a pro se petition pursuant to
28 U.S.C. § 2254 for federal habeas corpus relief in the United
States District Court for the Northern District of Illinois, the
denial of which we now review. Dixon raised the two new
pieces of evidence we described above—the state’s brief stat-
ing that Langston had no involvement in the murders, and the
evidence of McDermott’s abuse of suspects and perjury. He
raised the following three legal claims: (1) he was denied due
process when the trial court excluded evidence that the state
had dismissed charges against his alleged accomplice, Lang-
ston; (2) he received ineffective assistance of counsel when his
trial lawyer failed to object to the exclusion of the evidence of
Langston’s dismissal; and (3) new evidence demonstrated
that he was actually innocent. The district court agreed with
the state’s argument that Dixon’s claims had been procedur-
ally defaulted but held that Dixon had shown enough evi-
dence of actual innocence to merit a further look. Thus, the
6 According to Dixon’s brief, on November 4, 2016, Dixon filed yet
another petition for post-conviction relief in state court based on new evi-
dence regarding Officer McDermott’s recently discovered history of per-
juring himself and coercing confessions. According to Dixon’s brief, he
supplemented his petition in 2018 and again in 2021, and the motion is
currently pending before the Circuit Court of Cook County. Dixon did not
offer any citations for these filings, and we have not pored through the
Illinois court’s records to verify them. See Williams v. Bd. of Educ. of City of
Chicago, 982 F.3d 495, 510 (7th Cir. 2020) (“[I]t is not the role of the court to
search the record to find support for a party’s assertion.”).

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No. 21-1375 11
court ordered the state to respond to Dixon’s petition on the
merits.
After reviewing the parties’ written submissions, in an
August 2017 order, the district court held that Dixon pre-
sented new evidence sufficient to pass through the actual in-
nocence gateway—which we explain below—to a merits re-
view of his procedurally defaulted claims. Dixon v. Watson,
No. 17 CV 1142, 2017 WL 3838027, at *5 (N.D. Ill. Aug. 31,
2017). Thereafter, to the three claims listed in the paragraph
above, Dixon’s newly appointed counsel added a fourth —
that new evidence demonstrated that the state committed
prosecutorial misconduct.
During the course of the proceedings in the district court,
on November 20, 2018, Dixon moved the court to supplement
the record on habeas review to include new evidence alleg-
edly calling into question Simmons’ credibility. In that mo-
tion, Dixon submitted a 2011 report published by the Chicago
Council of Lawyers bar association that alleged that when
Simmons ran for a position as a circuit judge in Cook County,
he likely arranged for false candidates from his uncle’s law
firm to run against him to draw votes away from opponents,
and thus swing the election.7 Simmons denied the allegations.
That evaluation also pointed to an opinion in which the Illi-
nois Appellate Court found that a habeas petitioner had made
“a substantial showing of a violation of a constitutional right,”
in part because Simmons had allowed a jailhouse informant
7 The Chicago Council of Lawyers describes itself as “Chicago’s public
interest bar association.” According to its website, since 1970, the Council
has been evaluating judges and judicial candidates to provide information
to the voting public.

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12 No. 21-1375
to give false testimony against the petitioner. See People v.
Ramey, No. 1-97-3817, slip op. at 9 (Ill. App. 1st, Feb. 22, 2000),
attached as addendum to Appellant’s Reply Brief at 9. Ac-
cording to the Illinois Appellate Court, “Although both
Campbell [the testifying convicted felon] and Assistant State’s
Attorney Simmons testified that the state did not give Camp-
bell a deal in exchange for his testimony against Ramey, Sim-
mons’ comment that he would inform [Campbell’s sentenc-
ing] judge of Campbell’s cooperation in the Ramey trial indi-
cates otherwise.” Id.
In a January 2019 order, the district court concluded that
in the state court proceedings Dixon had a meaningful oppor-
tunity to present a complete defense, he was not denied due
process, and his counsel was not deficient. Yet the district
court’s interest was still piqued by the actual innocence claim
that had pushed Dixon through the gateway to this review.
Regarding the claim of substantive actual innocence (which
we will elaborate upon further below), the district court noted
that the Supreme Court has never held that such a claim is
cognizable absent a freestanding constitutional claim, but has
surmised that if, in fact, the Court were to recognize such a
claim, the new evidence would have to “’unquestionably es-
tablish’ innocence.” D. Ct. Op. at 15, R. 46 at 15 (citing Schlup
v. Delo, 513 U.S. 298, 317 (1995)). The district court mused that
had the jury known about McDermott and Simmons’ histo-
ries, their credibility would have been “indelibly damned”
and ”[i]n light of their lack of credibility, the State’s later dis-
avowal of Langston’s involvement, and the dearth of any
physical evidence tying the petitioner to the crime, no reason-
able juror would have found petitioner guilty beyond a rea-
sonable doubt.” D. Ct. Op. at 16, R. 46 at 16. Nevertheless, the
district court concluded that the new evidence provided by

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No. 21-1375 13
Dixon “does not, however, seem to meet the ‘extraordinarily
high’ threshold of showing that petitioner is ‘unquestionably’
innocent.” Id. at 17 (citing House v. Bell, 547 U.S. 518, 554–55
(2006)).8 The district court’s language that the new evidence
did not “seem” to meet the threshold, reflected the court’s dis-
comfort with that new evidence—discomfort that was signif-
icant enough that the court wanted to determine whether an
evidentiary hearing might alter its conclusion regarding ac-
tual innocence. Consequently, the court directed “the parties
to submit supplemental briefs on what evidence, if any,
would be produced at an evidentiary hearing that would en-
title petitioner to relief on his substantive actual innocence
claim.” D. Ct. Op. at 17, R. 46 at 17. It is important to note that
the judge did not order a hearing on substantive actual inno-
cence, but rather ordered the parties to demonstrate in brief-
ing what, if any, evidence they might submit at such a hear-
ing.
On the prosecutorial misconduct claim, the court was dis-
turbed by the contradictory positions the state took at trial
and in post-conviction proceedings. At trial, the state secured
Dixon’s conviction by convincing the jury that he was ac-
countable for Langston’s acts. On post-conviction review,
however, the state asserted that Langston had nothing to do
with the murders and therefore exculpatory evidence about
8 The word “unquestionably” as modifying “innocent” comes not
from Bell, but from a key Supreme Court case on actual innocence, Schlup,
513 U.S. at 317 (“If there were no question about the fairness of the crimi-
nal trial, a Herrera–type claim would have to fail unless the federal habeas
court is itself convinced that those new facts unquestionably establish
Schlup’s innocence.”).

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14 No. 21-1375
him would not have benefitted Dixon. Accordingly, the court
also directed Dixon to present supplemental briefs describing
what, if any, evidence he would produce in a hearing to
demonstrate that he was entitled to relief on his prosecutorial
misconduct claim.
After reviewing the written submissions on actual inno-
cence and prosecutorial misconduct, the district court held
from the bench that “on the actual innocence claim, the pro-
posed witnesses that the petitioner would like to present,
even if they were to be believed, would not meet the ex-
tremely high standard that would be required to conclusively
exonerate him.” R. 53 at 2. The court went on to explain that
“[t]here is other evidence that would support a verdict in this
case. It would basically be retrying the case. That’s not the
purpose of habeas. … So we’re not going to have an eviden-
tiary hearing on the actual innocence claim.” Id.
As for the prosecutorial misconduct claim, the district
court found the issue to be “disturbing,” and concluded that
Dixon should have a chance to take some discovery. Id. at 3–
4. The court then held an evidentiary hearing, during which
the appellate attorneys confessed that the statement in the
state’s brief that Langston’s conduct was irrelevant was
poorly written and inconsistent with the accountability the-
ory of the case, which the state did not intend to abandon. At
the end of the hearing, the district court concluded that “the
prosecutors genuinely believed that Chandler had made a
positive identification of Langston at the lineup despite his
later recantation,” and that Dixon failed to demonstrate that
the testimony was false or that prosecutors knew Detective
Friel’s testimony was false. R. 127 at 4. As for the statement in
the appellate brief that “Langston had nothing to do with the

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No. 21-1375 15
crime,” the court concluded that the statement had been made
in error in a manner that amounted to “prosecutorial incom-
petence or even malpractice,” but not the kind of prosecuto-
rial misconduct that would call for the grant of a writ of ha-
beas. Id. at 5–6. The district court concluded by granting a cer-
tificate of appealability.
II.
A. Actual innocence and prosecutorial misconduct
The only task for a federal court in reviewing a habeas pe-
tition from a state court conviction is to “ensure that individ-
uals are not imprisoned in violation of the Constitution—not
to correct errors of fact.” Herrera v. Collins, 506 U.S. 390, 400
(1993). Dixon centers his habeas petition on a claim of actual
innocence. When courts speak of “actual innocence” claims
on habeas review, they are referring to one of two kinds of
actual innocence claims—“actual innocence” as a substantive
matter, and “actual innocence” as a gateway claim through
which a habeas petitioner might pass so that a court can con-
sider constitutional claims that were otherwise procedurally
barred. Schlup, 513 U.S. at 314–15. Dixon makes both claims
here, but because the gateway claim of actual innocence is the
one that unlocked the federal courthouse doors to Dixon’s
claim, we begin there.
A habeas petitioner may use a claim of actual innocence to
overcome a procedurally defaulted and time-barred habeas
claim, as a way to prevent a miscarriage of justice. See 28
U.S.C. § 2244(d)(1) (setting the period of limitation for appli-
cation of a writ of habeas corpus); McQuiggin v. Perkins, 569
U.S. 383, 386 (2013) (describing actual innocence as a gateway
through which a petitioner may pass to overcome a

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16 No. 21-1375
procedural bar such as a statute of limitations). Allowing this
gateway to a constitutional challenge balances concerns of fi-
nality and comity with the important “concern about the in-
justice that results from the conviction of an innocent person
[which] has long been at the core of our criminal justice sys-
tem.” Schlup, 513 U.S. at 325.
The bar to proving such a claim, however, is onerous. The
“standard is demanding and permits review only in the ‘ex-
traordinary’ case.” House, 547 U.S. at 538 (quoting Schlup, 513
U.S. at 327). See also McQuiggin, 569 U.S. at 386 (“tenable ac-
tual-innocence gateway pleas are rare”); Arnold v. Dittmann,
901 F.3d 830, 838 (7th Cir. 2018) (“No doubt the Schlup stand-
ard is an onerous one for the petitioner to meet”). The peti-
tioner must show that “’a constitutional violation has proba-
bly resulted in the conviction of one who is actually inno-
cent.’” Schlup, 513 U.S. at 327 (citing Murray v. Carrier, 477 U.S.
478, 496 (1986)). “To establish the requisite probability, the pe-
titioner must show that it is more likely than not that no rea-
sonable juror would have convicted him in the light of the
new evidence.” Id. New evidence in this context is not “newly
discovered evidence,” but rather any evidence that was not
presented at trial. Jones v. Calloway, 842 F.3d 454, 461 (7th Cir.
2016). “In evaluating the claim, the court is to conduct a com-
prehensive assessment that takes into account any reliable ev-
idence probative of petitioner’s innocence or guilt, even evi-
dence that was previously excluded; the court is not bound
by the rules of evidence that would govern at trial.” Arnold,
901 F.3d at 837 (citing Schlup, 513 U.S. at 327–28).
To pass through the gateway, the petitioner must support
the claim of actual innocence with “reliable evidence—
whether it be exculpatory scientific evidence, trustworthy

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No. 21-1375 17
eyewitness accounts, or critical physical evidence—that was
not presented at trial.” Schlup, 513 U.S. at 324. As this court
described it, “[t]o demonstrate innocence so convincingly that
no reasonable jury could convict, a prisoner must have docu-
mentary, biological (DNA), or other powerful evidence: per-
haps some non-relative who placed him out of the city, with
credit card slips, photographs, and phone logs to back up the
claim.” Hayes v. Battaglia, 403 F.3d 935, 938 (7th Cir. 2005).
Even if a petitioner meets these high burdens, the heavy
lifting has only begun. A procedural actual innocence claim is
merely “a gateway through which a habeas petitioner must
pass to have his otherwise barred constitutional claim consid-
ered on the merits.” Herrera, 506 U.S. at 439. Once a petitioner
satisfies the procedural actual innocence exception, he “must
show that his conviction violates the Constitution, laws, or
treaties of the United States” to obtain habeas relief. Arnold,
901 F.3d at 837.
The district court allowed Dixon to pass through the ac-
tual innocence gateway based on the new evidence Dixon
presented on habeas review—the state’s post-conviction con-
tention that Langston’s involvement was irrelevant to Dixon’s
case and evidence of McDermott’s abusive and perjurious
past. Despite significant doubts that Dixon could meet the
high standard of proving that he was unquestionably inno-
cent as a substantive matter, the district court allowed Dixon
to submit supplemental briefs on “what evidence, if any,
would be produced at an evidentiary hearing that would en-
title petitioner to relief on his substantive actual innocence
claim.” R. 46 at 17.
Passage through that procedural gateway did not get
Dixon far—not even to a hearing on substantive actual

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18 No. 21-1375
innocence. The district court denied Dixon an evidentiary
hearing on that claim, holding that “the proposed witnesses
that the petitioner would like to present, even if they were to
be believed, would not meet the extremely high standard that
would be required to conclusively exonerate him.” R. 53 at 2.
That decision—not to hold an evidentiary hearing—is one we
review for abuse of discretion only. Schriro v. Landrigan, 550
U.S. 465, 475 (2007). We see no abuse of discretion here.
Dixon’s evidence of actual innocence fell far from meeting the
substantial burden of establishing that no reasonable juror
could have convicted him in light of the new evidence. Schlup,
513 U.S. at 327. Dixon simply had nothing close to the kind of
reliable, conclusive, evidence that the case law demands. See
Schlup, 513 U.S. at 324; Hayes, 403 F.3d at 938.
Of course, Dixon did have robust evidence that would
give a jury good reason to doubt the credibility of McDer-
mott’s testimony. It goes without saying that McDermott’s be-
havior warrants our most severe condemnation. Police offic-
ers who violate the rights of defendants by physically abusing
them or by illegally coercing confessions in any manner not
only harm the defendant but also, as this case demonstrates,
risk degrading the strength of the government’s case or hav-
ing it dismissed outright. More importantly, those types of ac-
tions erode the public’s trust and confidence in law enforce-
ment and in our entire system of justice. For this reason, we
would not want to conclude that the district court erred in al-
lowing Dixon through the procedural actual innocence gate-
way. To the contrary, the district court properly paused to
consider more thoroughly the implications of this kind of
criminal behavior by police officers. We do not find it neces-
sary to assess whether, after the pause, the district court
should have allowed Dixon through the procedural actual

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No. 21-1375 19
innocence gateway or not. That gateway itself, after all, does
not allow for habeas relief. It merely allows a petitioner the
opportunity to demonstrate some constitutional error in his
trial. Herrera, 506 U.S. at 400. And because, after passing
through that gateway, the court quickly dismissed his sub-
stantive actual innocence claim, even if we assumed the dis-
trict court might have been too generous in allowing him
through the actual innocence gateway (and we are not saying
it was), that indulgence would have had no effect on the out-
come of the habeas petition. The district court quickly con-
cluded, even before allowing an evidentiary hearing on sub-
stantive actual innocence, that Dixon could not “meet the ex-
tremely high standard that would be required to conclusively
exonerate him.” R. 53 at 2.
The evidence that McDermott coerced confessions and
perjured himself in other cases is simply not enough to sur-
pass the high hurdle to show actual innocence given the facts
of this case. To begin, Dixon has never alleged that McDer-
mott coerced his confession, instead asserting that one of the
arresting officers berated and screamed at him. But perhaps
more importantly, a reasonable juror could have found Dixon
guilty of the murder and robbery even knowing that McDer-
mott coerced his confession and lied about it in court. See, e.g.
Gladney v. Pollard, 799 F.3d 889, 900 (7th Cir. 2015) (noting that
actual innocence cannot be found if a reasonable juror could
accept any theory establishing guilt). It can, of course, simul-
taneously be true that McDermott was abusive and a liar and
that Dixon committed the crime. Dixon has not presented the
sort of evidence that could confidently demonstrate his inno-
cence—no exonerating DNA evidence, record of incarcera-
tion at the time of the crime, video evidence of him in a

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20 No. 21-1375
faraway location, or other evidence that could establish inno-
cence conclusively. See Schlup, 513 U.S. at 324; Hayes, 403 F.3d
at 938.
The state’s evidence, thin as it was, was not dependent en-
tirely on McDermott’s testimony. The state set forth evidence
of the stolen van that corroborated Dixon’s confession, as well
as the mystery call that came from James’ apartment just be-
fore the murders. Of course, the former also falls apart if the
confession from which the information about the van came
was fabricated by Simmons and McDermott, who may have
been aware of the report of a stolen van in the area. But both
Simmons’ and McDermott’s testimony about the confession
lined up. Simmons’ credibility, we now know, could have
been challenged at trial with evidence that he was criticized
by a bar association for his campaign tactics and also by—an
Illinois Court of Appeals opinion for allowing an inmate to
testify falsely. But the accusations against Simmons were far
milder than those surrounding McDermott.9 A jury could cer-
tainly choose to believe Simmons’ retelling of the confession.
9 The state implies that Dixon’s attack on Simmons lacks persuasive
value because he “served with distinction as a state court judge and is now
the managing partner of a prominent law firm. See Brief of Appellee at 17.
Unfortunately, history has revealed that neither of those roles insulates a
person from the temptation to engage in conduct unbecoming of the posi-
tion. We acknowledge both the appellant’s argument that Simmons was
critiqued by a state appellate court and a reviewing bar association who
rated him “not qualified” on three separate occasions before finding him
qualified on a fourth (although we do not understand the significance of
labeling the bar association as “alternative”), and also the appellee’s argu-
ment that Simmons’ more recent professional activity has faced no criti-
cism. Neither party’s assessment of Simmons’ credibility alters the out-
come of this case.

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No. 21-1375 21
And in any event, just as was the case with McDermott, the
impeaching allegations against Simmons, even if believed, are
not definitive evidence of Dixon’s actual innocence.
Finally, in assessing actual innocence, a federal court also
could have considered statements Marshan has made about
the crime outside of Dixon’s trial. Schlup, 513 U.S. at 327–28;
Arnold, 901 F.3d at 837. In his own confession, Marshan told
the police that he committed the crimes in a manner con-
sistent with Dixon’s confession. See People v. Allen, 2013 IL
App (1st) 102884-U, ¶ 6, as modified on denial of reh’g (Nov. 13,
2013). Additionally, in a 2018 Chicago Tribune article, Mar-
shan admitted that he, along with his “two co-defendants
killed Elroy Gaston and Jerome DeBerry in a drug dispute.”
Marshan T. Allen, Why Illinois Needs to Restore Parole for Juve-
nile Lifers, Chi. Trib., Feb. 22, 2018.10 Marshan has admitted his
guilt in other interviews as well. See Rob Stafford and Lisa
Capitanini, Race in Chicago: One Man’s Fight for Redemption,
NBC5 Chicago, Sept. 3, 2020. All of this would be fair game
for a federal court to consider when evaluating a claim of ac-
tual innocence.
As for the existence of a substantive innocence claim, the
Supreme Court has never held that such a claim, standing
alone—separate and apart from any constitutional error—
could support habeas relief; but neither has it held that such
a claim cannot be considered. See Herrera, 506 U.S. at 404–05;
see also McQuiggin, 569 U.S. at 392 (“We have not resolved
whether a prisoner may be entitled to habeas relief based on
10 https://www.chicagotribune.com/opinion/commentary/ct-perspec-
parole-juvenile-lifers-prison-illinois-children-criminals-0222-story.html.
https://perma.cc/PAL9-56SM

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22 No. 21-1375
a freestanding claim of actual innocence.”); Dist. Att’y’s Office
for the Third Jud. Dist. v. Osborne, 557 U.S. 52, 71 (2009) (noting
that it is an open question as to whether there exists a federal
right to be released upon proof of actual innocence.); House,
547 U.S. at 554–55 (declining to “answer the question left open
in Herrera” about the existence of freestanding actual inno-
cence claims). Nor has this court so held. Cal, 991 F.3d at 850–
51; Arnold, 901 F.3d at 837 (explaining that we have never “in-
dicated that an actual innocence claim could, standing alone,
support the issuance of a writ in a non-capital case”); Tabb v.
Christianson, 855 F.3d 757, 764 (7th Cir. 2017) (“Whether the
constitutional guarantee of due process supports independ-
ent claims of actual innocence without any other constitu-
tional violation remains open to debate.”). As we recently
pointed out in Cal, 991 F.3d at 851, many of our sister circuits
have similarly grappled with the issue. See id. (compiling
cases).
The Supreme Court in Herrera left open the possibility “in
a capital case a truly persuasive demonstration of ‘actual in-
nocence’ made after trial would render the execution of a de-
fendant unconstitutional, and warrant federal habeas relief if
there were no state avenue open to process such a claim.” Her-
rera, 506 U.S. at 417. This is not a capital case, but the Supreme
Court has also noted that “it would be a rather strange juris-
prudence, in these circumstances, which held that under our
Constitution [a prisoner] could not be executed, but that he
could spend the rest of his life in prison.” Id. at 405.
Even Dixon concedes that if this circuit were to recognize
a substantive actual innocence claim, the evidence of inno-
cence would have to be highly reliable and “affirmatively

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No. 21-1375 23
prove that [Dixon] is probably innocent.” Appellant’s Brief at
32 (citing Jones v. Taylor, 763 F.3d 1242, 1246 (9th Cir. 2014)).
Unlike the threshold for a claim for procedural or gateway
actual innocence, which we described above, the threshold for
a substantive actual innocence claim is far less defined—per-
haps because the right to such a claim is still very much up in
the air. See Arnold, 901 F.3d at 837 n.4 (“It is also unsettled
what particular standard of proof a petitioner would have to
meet in order to be entitled to relief on a freestanding claim of
innocence.”) All indications, however, point to a standard of
proof for substantive actual innocence claims that is even
more demanding than that for gateway actual innocence
claims. See Schlup, 513 U.S. at 316 (noting that a petitioner try-
ing to make a gateway claim of actual innocence need carry
less of a burden than if claiming substantive actual inno-
cence); House, 547 U.S. at 555 (“The sequence of the Court’s
decisions in Herrera and Schlup—first leaving unresolved the
status of freestanding claims and then establishing the gate-
way standard—implies at the least that Herrera requires more
convincing proof of innocence than Schlup.”); Arnold, 901 F.3d
at 838 (“The State presumes (not unreasonably) that the stand-
ard for granting habeas relief on such a [substantive actual in-
nocence] claim would be even more demanding than the
standard Schlup has established for innocence as a gateway to
habeas review.”)
Whatever the standard would be if the Supreme Court or
this circuit decided to entertain claims of substantive actual
innocence on habeas review, Dixon could not meet it. As we
concluded in discussing even the lower standard of actual in-
nocence as a gateway claim, Dixon lacks anything close to the
kind of definitive or convincing evidence that the Supreme

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24 No. 21-1375
Court and this court require. Hayes, 403 F.3d at 938 (describ-
ing “documentary, biological (DNA), or other powerful evi-
dence” such as “credit card slips, photographs, and phone
logs.”).
We also reject Dixon’s alternative request to remand for an
evidentiary hearing on the issue of actual substantive inno-
cence. We review the district court’s denial of further eviden-
tiary hearings for an abuse of discretion and we see none here.
Coleman v. Hardy, 628 F.3d 314, 318 (7th Cir. 2010). The district
court gave Dixon more than the benefit of the doubt by allow-
ing him to pass through a very demanding procedural gate-
way to a merits review. The court then carefully considered
the arguments Dixon made about the state’s appellate brief,
the new evidence about McDermott and Simmons, and even
allowed an evidentiary hearing on prosecutorial misconduct.
The district court concluded that even if Dixon were to pre-
sent the evidence he described in his filings, and the witnesses
were believed, the evidence would not meet the extremely
high standard required for a showing of actual innocence. We
see no abuse of discretion.
B. Constitutional claims
Dixon’s final claims are ones he had hoped to make after
passing through the procedural actual innocence gateway.
We have declined to conclude one way or another about the
propriety of opening that gateway, but we will swiftly resolve
these claims in any event.
Dixon argues that the state trial court violated his rights
under the Confrontation Clause by admitting hearsay and
then prohibiting Dixon from responding. As we described
earlier, the court had issued an order excluding testimony

-- 24 of 26 --

No. 21-1375 25
regarding the lineup and specifically about the witness, Chan-
dler’s, out-of-court statements regarding the lineup identifi-
cations. Nevertheless, Dixon’s counsel asked Detective Friel
whether he had shown Chandler a lineup that included
Dixon. And he asked Simmons whether any detectives had
told him that “Dixon had been in a lineup that day and was
not identified?” R. 25-26 at 393. In response to the violation of
the court’s order, the court gave Dixon the choice of striking
Friel’s testimony or allowing the state to question Friel about
whether Chandler identified anyone in the lineup. The court
stated that it would not, however, allow hearsay testimony of
Chandler’s recantation.
Dixon concedes that he did not raise this claim in the dis-
trict court. An argument not raised in the district court is for-
feited on appeal. Frazier v. Varga, 843 F.3d 258, 262 (7th Cir.
2016). We are not convinced that there are any extraordinary
considerations that would warrant overlooking the forfeiture.
For the same reason, Dixon has forfeited the claim that his
trial counsel was ineffective by opening the door to Detective
Friel’s testimony in the first place.
Finally, Dixon alleges that the court erred when making
credibility findings about the prosecutors’ beliefs regarding
the lineup identification. Dixon argued below that the prose-
cutors committed misconduct because they knew that Chan-
dler did not identify Langston during the lineup, and yet they
elicited testimony from Detective Friel to the contrary. This
argument assumes that Chandler was telling the truth when
he declared, over a year after the lineup, that he had never
identified anyone in the lineup. After an evidentiary hearing
on prosecutorial misconduct, including testimony from the
prosecutors about why they were skeptical of the late

-- 25 of 26 --

26 No. 21-1375
recantation, the court found that the prosecutors “genuinely
believed that Chandler made a positive identification of Lang-
ston at the lineup despite his later recantation.” R. 127 at 4.
The court continued, “I find that the petitioner had failed to
demonstrate that that testimony was false or that the prose-
cution knew that it was false.” Id. This was a factual finding
made by the district court after a full hearing and review of
post-hearing briefs, transcripts, notes, prior opinions, and
Dixon’s entire file. We review such factual determinations for
clear error only, giving special deference to factual findings
regarding credibility. United States v. Sanford, 35 F.4th 595, 599
(7th Cir. 2022). The court’s hearing fully aired the evidence as
to whether the prosecutors believed that Chandler positively
identified Langston. The court also thoroughly vetted the
state’s claim that it simply erred when it stated in its brief that
Langston’s actions were irrelevant to the crime. The court de-
scribed the event as “prosecutorial incompetence, or even
malpractice,” but not the type of error that would allow for a
grant of habeas. R. 127 at 247.We see no clear error in the dis-
trict court’s factual findings on the prosecutorial misconduct
and the related credibility determinations.
The decision of the district court is AFFIRMED.

-- 26 of 26 --