                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 04-2574
BRIAN DANIELS, aka BRIAN TRIPLETT,
                                             Petitioner-Appellant,
                                 v.

ALAN M. UCHTMAN,
                                             Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 04 C 888—Suzanne B. Conlon, Judge.
                          ____________
    ARGUED MARCH 30, 2005—DECIDED AUGUST 29, 2005
                    ____________


  Before BAUER, RIPPLE, and KANNE, Circuit Judges.
  BAUER, Circuit Judge. In 1984, Brian Daniels was con-
victed of murder and sentenced to 30 years in prison.
Fifteen years later, the primary eyewitness for the prosecu-
tion recanted his testimony. Furthermore, Daniels learned
that the witness was facing a juvenile burglary charge at
the time of his testimony, which the prosecution failed to
disclose. Based on these new developments, Daniels
unsuccessfully sought post-conviction relief in state court,
then filed a petition for writ of habeas corpus in federal
court. The district court dismissed the petition as untimely
under 28 U.S.C. § 2244(d)(1)(D). We affirm.
2                                                No. 04-2574

                      I. Background
  Daniels was convicted for the December 24, 1981 murder
of Edward Knight. The prosecution’s primary witness was a
boy named Caston Rollins, who was 10 years old at the time
of the murder and 12 years old at trial. Rollins testified that
he saw Daniels and some other boys breaking into the
victim’s house that morning. Fifteen years later, on June
25, 1999, Rollins executed an affidavit recanting his trial
testimony. He stated that he was prompted to come forward
after being contacted by Daniels’ representatives. On
October 27, 1999, Daniels filed for relief in state court. The
trial court denied his post-conviction petition. The appellate
court affirmed, and the Illinois Supreme Court denied leave
to appeal on February 5, 2003. Daniels filed his federal
habeas petition on February 4, 2004. He brings a due
process claim based on Rollins’ affidavit and a Brady claim
based on the prosecution’s failure to disclose evidence
regarding Rollins’ pending juvenile charge and its represen-
tations to Rollins that it would provide assistance to him on
that charge.
   The district court dismissed Daniels’ petition as time-
barred under 28 U.S.C. § 2244(d)(1)(D). The petition was
due one year after “the date on which the factual predicate
of the claim or claims presented could have been discovered
through the exercise of due diligence.” Id. The issue on
appeal is what constitutes the “factual predicate” of Daniels’
claims. The district court held that the execution of Rollins’
affidavit on June 25, 1999, was the factual predicate for
Daniels’ claims. Daniels argues that the factual predicate
for his claims was not “discovered” until the date of the
Illinois Supreme Court decision, February 5, 2003.
  The district court reasoned that a state court decision is a
procedural requirement, not a factual predicate for Daniels’
claims. As such, the one-year limitations period began to
run when Rollins executed his affidavit. Under that ratio-
No. 04-2574                                                    3

nale, the statute ran for a total of 123 days from the signing
of the affidavit until Daniels filed for relief in state court.1
At that point, the statute was tolled. After the Illinois
Supreme Court denied relief, the statute began to run
again, this time for 364 days until Daniels filed his habeas
petition. In the view of the district court, a total of 487 days
elapsed after the date on which the factual predicate of
Daniels’ claims had been discovered, making his habeas
petition untimely.
  Daniels contends that since he could not file his federal
habeas claim until the state court had ruled, the one-
year statute of limitations began to run on February 5,
2003, the date the Illinois Supreme Court denied leave to
appeal. By his rationale, only 364 days elapsed and his
petition was timely.


                       II. Discussion
  Shortly after oral argument in this case, the Supreme
Court decided Johnson v. United States, 125 S.Ct. 1571
(2005). In Johnson, the petitioner received an enhanced
sentence on his federal drug conspiracy conviction based on
his prior state court convictions. After successfully moving
to vacate his state court convictions, he filed for federal
habeas relief on the basis that the vacatur of his state
convictions required vacatur of his enhanced federal
sentence.2 Johnson filed his petition after the one-year


1
   The district court erroneously calculated that the statute had
run for 169 days. The error is insignificant; under the dis-
trict court’s analysis, Daniels’ petition would still be untimely
using the correct figure of 123 days.
2
   Since the petitioner in Johnson was a federal prisoner, his
claims are governed by 28 U.S.C. § 2255, ¶ 6(4). This is the
counterpart to § 2244(d)(1)(D); the provisions are virtually
                                                 (continued...)
4                                                 No. 04-2574

grace period set out by the AEDPA, but he argued that the
order vacating the state court conviction was a “new fact”
and triggered a new limitations period. The Eleventh
Circuit rejected the argument, holding that a state court
order was not a “fact” as contemplated by § 2255.
  The Supreme Court, while affirming on other grounds,
held that the vacatur of Johnson’s prior state conviction was
a matter of fact for purposes of the one-year limitations
period set out in § 2255. The Court addressed the narrow
question of what “facts” affecting an enhanced sentence
most reasonably fit into the language of the limitation
provision of § 2255, which states that the one-year limit
begins to run from “the date on which the facts supporting
the claim or claims presented could have been discovered
through the exercise of due diligence.” 125 S.Ct. at 1578.
Ultimately, the Court noted that it is “peculiar to speak of
‘discovering’ the fact of the very eventuality the petitioner
himself has brought about, but when that fact is necessary
to the § 2255 claim, and treating notice of it as the trigger
produces a more reasonable scheme than the alternatives,
the scheme should be reconciled with the statutory lan-
guage if it can be.” 125 S.Ct. at 1580.
  The situation in the instant case is distinguishable from
Johnson. In Johnson, the state court decision vacating his
state convictions supplied a necessary element of the
petitioner’s claim. Here, the state court’s decision was
not an element of Daniels’ due process or Brady claims, but
rather a procedural hurdle to clear before proceeding with
his federal habeas petition. The state court decision plays
a different role here; it does not operate as the factual



2
  (...continued)
identical and the Supreme Court has interpreted the statute of
limitations provisions interchangeably. See Shannon v. Newland,
410 F.3d 1083, 1088 (9th Cir. 2005).
No. 04-2574                                                 5

predicate of Daniels’ claim. Treating the state court decision
as the trigger for a renewed one-year period does not
produce a reasonable scheme in the instant case. Rather, it
would significantly undermine the one-year statute of
limitations and render the provision tolling the limitation
during the pendency of the state claim meaningless. The
factual predicate for Daniels’ due process claim was the
execution of Rollins’ affidavit; his petition was untimely and
was properly dismissed.
  Daniels further argues that his Brady claim is timely
since he did not learn of the burglary charge against Rollins
until September 26, 2000. This argument is unpersuasive.
Daniels, through his representatives, contacted Rollins at
some point before Rollins signed his affidavit on June 25,
1999. Even though the facts surrounding Rollins’ burglary
charge were not actually discovered by Daniels’ counsel
until an interview in September 2000, Daniels could have
discovered the information supporting his Brady claim at
least as early as June 1999. Section 2244(d)(1)(D) requires
the petitioner to exercise due diligence in discovering the
factual basis for his claims. Daniels failed in this respect,
and his Brady claim was properly dismissed as untimely.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the decision of
the district court dismissing Daniels’ petition as untimely.
6                                         No. 04-2574

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—8-29-05
