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

No. 05-1174
ROLANDO ARAUJO, JR.,
                                               Petitioner-Appellant,
                                   v.

NEDRA CHANDLER, Warden,
                                               Respondent-Appellee.
                            ____________
              Appeal from the United States District Court
         for the Northern District of Illinois, Eastern Division.
             No. 04 C 374—Blanche M. Manning, Judge.
                            ____________
    ARGUED NOVEMBER 8, 2005—DECIDED DECEMBER 16, 2005
                       ____________


    Before BAUER, MANION, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. In 1991, a jury sitting in the
Circuit Court of Cook County convicted Rolando Araujo
of the 1988 murder of Mario Rodriguez. On January 20,
2004, Araujo petitioned for the first time for the issuance of
a writ of habeas corpus, pursuant to 28 U.S.C. § 2254.1
Given the dates we just set out, it is not surprising that the



1
  Araujo’s current custodian is Nedra Chandler, the warden of the
Dixon Correctional Center. We therefore substitute Chandler as
the respondent-appellee in this case. 28 U.S.C. § 2254, Rule 2(a);
Fed. R. App. P. 43; see also Briggs v. Chambers, 425 F.3d 1048
(7th Cir. 2005).
2                                                  No. 05-1174

primary issue before us in this appeal from the dis-
trict court’s denial of his petition is whether the one-year
statute of limitations in the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d),
bars relief.
  The facts established at trial, as recited by the Illinois
Appellate Court on direct appeal, show that the shooting
happened as members of a street gang, the Bishops, and the
victim, Mario Rodriguez, were walking near Harris Park in
Chicago. Araujo, a member of the rival Ambrose street
gang, drove past them, stopped his car, jumped out, and
shot Rodriguez. At the same time, Robert Mendoza, another
Ambrose street gang member, was shooting a gun in the
direction of other Bishops. Both Mendoza and Araujo were
charged. Mendoza entered a plea of guilty to the first degree
murder of Rodriguez based on his role as a lookout. Araujo
went to trial and was convicted. In addition to his direct
appeal, Araujo has, over the years, filed two petitions for
postconviction relief in the Illinois courts. His claims have
been rejected each time.
   AEDPA contains a one-year statute of limitations, set out
in 28 U.S.C. § 2244(d). But because Araujo’s conviction was
final prior to the effective date of the statute, that is, before
April 24, 1996, he is subject to the one-year grace period for
timely petitions for review in federal court. See Lindh v.
Murphy, 96 F.3d 856 (7th Cir. 1996), rev’d on other grounds,
521 U.S. 320 (1997). Had his petition been filed by April 24,
1997, it would have been timely. In addition, under
§ 2244(d)(2), the time during which his state postconviction
litigation was pending would have tolled the running of the
statute. However, these time periods are not sufficient to
bring him within the statute of limitations, and Araujo does
not seriously argue that they are.
  What he does argue is that he is actually innocent and
that therefore the application of the statute of limitations in
§ 2244(d) to bar his petition would result in a fundamental
No. 05-1174                                                 3

miscarriage of justice. He urges us to determine that a
freestanding “actual innocence” exception must be read into
the statute. The exception would not require a showing that
a petitioner exercised due diligence in discovering his claim.
It would be “a gateway through which a habeas petitioner
must pass to have his otherwise barred constitutional claim
considered on the merits.” Herrera v. Collins, 506 U.S. 390,
404 (1993).
  Unfortunately for him, the argument comes too late. We
have recently decided that “[p]risoners claiming to be
innocent, like those contending that other events spoil the
conviction, must meet the statutory requirement of time-
ly action.” Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir.
2005).
  In an ordinary case, the one-year statute of limitations in
§ 2244(d)(1) runs from the latest of four possible dates:
    (A) the date on which the judgment became final by the
    conclusion of direct review or the expiration of the time
    for seeking such review;
    (B) the date on which the impediment to filing an
    application created by State action in violation of the
    Constitution or laws of the United States is removed, if
    the applicant was prevented from filing by such State
    action;
    (C) the date on which the constitutional right asserted
    was initially recognized by the Supreme Court, if the
    right has been newly recognized by the Supreme
    Court and made retroactively applicable to cases on
    collateral review; or
    (D) the date on which the factual predicate of the
    claim or claims presented could have been discovered
    through the exercise of due diligence.
In addition, we have recognized that in some situations
the statute might be subject to equitable tolling. In
4                                                No. 05-1174

Gildon v. Bowen, 384 F.3d 883, 887 (7th Cir. 2004), we said
that “[e]quitable tolling is proper when extraordi-
nary circumstances outside of the petitioner’s control
prevent timely filing of the habeas petition.” In that case,
the circumstance—which ultimately failed to carry the
day—was that the corrections officers did not deliver
petitioner’s mail on time. We also have recognized that
equitable estoppel may apply to § 2244 but, as with equita-
ble tolling, “only where the doctrine’s operation would not
conflict with the tolling provisions specifically listed in §
2244(d).” Balsewicz v. Kingston, 425 F.3d 1029 (7th Cir.
2005). We rejected the argument that the language of the
Wisconsin postconviction statute misled Balsewicz into
believing that he could file his state postconviction chal-
lenge at any time and still obtain federal habeas review.
  The assumption underlying Araujo’s appeal is that his
petition does not comfortably fall within any of the stat-
utory or equitable principles. Were the petition to be
forced into one of the existing exceptions, the parties do not
agree on which one would be appropriate. The State
contends that Araujo’s “actual innocence” claim must “by
default . . . fall within the equitable tolling camp.” Araujo
disagrees and argues, somewhat halfheartedly, that if
actual innocence is not a freestanding exception, his case
would most closely fall within the statutory provision in
§ 2254(d)(1)(D)—he must file within one year of the date on
which the facts on which his claim is based could have been
discovered “through the exercise of due diligence.”
  We agree with the latter contention that § 2254(d)(1)(D)
would be the provision to which we should look, but we
cannot find that Araujo meets the requirements of that
provision. The Illinois state trial court was considering
Araujo’s claims of innocence at a hearing in 1994. He has
not exercised due diligence in bringing to the federal courts
the facts which he claims show he is innocent. That failing
No. 05-1174                                                  5

means that we are left with his contention that actual
innocence is a freestanding exception to the statute.
  It is an argument which has caused courts a good deal
of consternation. The Court of Appeals for the Eighth
Circuit has determined that actual innocence is relevant
to a claim that the statute of limitations should be tolled,
but the petitioner must still make a showing of reason-
able diligence in discovering the facts underlying his
claim. Flanders v. Graves, 299 F.3d 974 (2002). In contrast,
recently in Souter v. Jones, 395 F.3d 577 (2005), the Court
of Appeals for the Sixth Circuit has found that, if a peti-
tioner can demonstrate that it is more likely than not that
no reasonable juror would have found him guilty, he should
be allowed to pass through the “gateway” (provided by
actual innocence) and argue the merits of his underlying
constitutional claims. Other courts of appeals have avoided
deciding the timeliness issue by first requiring that the
district court determine whether there is, in fact, a showing
of actual innocence. See Whitley v. Senkowski, 317 F.3d 223
(2nd Cir. 2003); Majoy v. Roe, 296 F.3d 770 (9th Cir. 2002).
  However, in this circuit, it seems clear that Araujo’s
argument cannot survive Escamilla. Escamilla also was
a case subject to § 2244(d)(1)(D), and it also was a case, like
this one as we shall see in a moment, where the support for
the claim of actual innocence involved facts which were
subject to interpretation—that is, the claim of innocence
was not clear-cut. It was not DNA evidence conclusively
ruling him out as the perpetrator, for instance. We said
Escamilla failed on two fronts: he made an insufficient
showing of actual innocence, and he did not establish that
his petition was timely under § 2244(d).
  Like Escamilla, Araujo has made an insufficient show-
ing to raise the inference that he is actually innocent.
He relies on postconviction testimony of Mendoza and Zaida
Cintron; on his claim that Bishops gang members testified
6                                               No. 05-1174

falsely; on what he calls the exculpatory eyewitness account
of Officer John Delgado; and on false gun evidence. We will
review this evidence briefly.
  As we noted, both Mendoza and Araujo were charged in
the murder of Rodriguez. It was the State’s theory that
Araujo did the shooting. Mendoza’s guilty plea was based on
his admission that he was the “cover man” for Araujo. Now,
Mendoza claims he was the shooter. At the time he testified
at Araujo’s postconviction hearing, he had only 3 or 4 years
left to serve on his sentence for his participation in the
murder, a fact which causes one to view his testimony with
some skepticism. Zaida Cintron, who was an Ambrose gang
member and Mendoza’s girlfriend, testified at Araujo’s trial
that she was walking up the street and saw Araujo driving
a maroon-colored car. She asked him for a ride, but he told
her that he couldn’t give her one because he needed to hide
his gun because he “had done something.” She said Araujo
was alone in the car. At the postconviction hearing, Cintron
testified that her trial testimony was false. She said she
testified falsely to protect her boyfriend, Mendoza.
  The state trial judge, who listened to these witnesses,
found them incredible. He rejected Mendoza’s testimony
“not so much as for what he said, but for how he said it.” He
was also skeptical of Cintron’s recantation, in part because
she had been convicted of forgery, a conviction the judge
found highly relevant on the issue of her credibility. The
appeals court upheld these findings and the Illinois Su-
preme Court denied review. People v. Araujo, 184 Ill. 2d 560
(1999). As a general matter, of course, findings made in the
course of a state court proceeding are presumed correct. 28
U.S.C. § 2254(d)(2); § 2254(e)(1).
   The claim that somehow Officer Delgado’s eyewitness
account must now show that Araujo is innocent needs
little comment. Delgado testified for Araujo at his trial.
He said on the day of the shooting he was off duty when
No. 05-1174                                                  7

he saw yet another person, Willie Perez, firing a gun
between two parked cars. It is hard to see how that testi-
mony can meaningfully be improved on. Furthermore, the
claim that the Bishops gang members’ testimony was false
lacks support.
  Finally, the ballistics evidence, tendered during the
postconviction proceedings, showed that the .38 caliber
pistol found in Araujo’s home after the shooting was not the
murder weapon. The bullet recovered from the victim
was not fired from that weapon, a fact the prosecution
conceded at the postconviction hearing. However, at trial
the prosecution witness did not positively match the
gun with the bullet and testified that the majority of
weapons in the United States exhibited similar characteris-
tics. The evidence Araujo offers falls short of showing that,
in the face of the new ballistics evidence, the jury would
have been unlikely to convict him. Even were actual
innocence a freestanding exception to the time limits
imposed by § 2244, Araujo would fail to show he should be
allowed to proceed with his petition and to pursue his
underlying constitutional claims. However, and most
importantly, as we have said, it is clear that in this circuit,
actual innocence is not a freestanding exception to the
statute. For that reason, Araujo’s petition is barred by the
one-year statute of limitations. Accordingly, the judgment
of the district court is AFFIRMED.
8                                         No. 05-1174

A true Copy:
      Teste:

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




               USCA-02-C-0072—12-16-05
