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

No. 02-4372
ARIEL GOMEZ,
                                             Petitioner-Appellant,
                                 v.

DANNY JAIMET,
                                             Respondent-Appellee.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 01 C 7192—Elaine E. Bucklo, Judge.
                          ____________
 ARGUED OCTOBER 22, 2003—DECIDED NOVEMBER 26, 2003
                    ____________



 Before FLAUM, Chief Judge, and EASTERBROOK and
WILLIAMS, Circuit Judges.
  FLAUM, Chief Judge. In 1999, an Illinois trial court con-
victed Ariel Gomez of first-degree murder and sentenced
him to a thirty-five year prison term. Gomez filed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
alleging that his constitutional right to testify in his own
defense was denied by the state trial court and that his trial
counsel was constitutionally ineffective for failing to present
Gomez’s testimony. The district court denied the writ
finding each of Gomez’s constitutional claims either without
merit or defaulted. Gomez v. Pierson, 232 F. Supp. 2d 888
(N.D. Ill. 2002). Gomez’s appeal is limited to the ineffective
2                                              No. 02-4372

assistance of counsel claim. For the reasons stated herein,
we affirm the district court’s decision.


                     I. Background
   Gomez’s conviction arose from a June 1997 incident at the
intersection of Cicero and Diversey in Chicago during which
a man waiting for a bus was fatally shot. A crowd had
gathered in the street after the Chicago Bulls won their
fifth National Basketball Association championship— some
people were waiting for a bus and others were celebrating
the victory. Gomez, then seventeen years old, and four of
his friends, were driving around in Gomez’s mother’s
Nissan Pathfinder. The group stopped at the
Cicero/Diversey intersection and several men in the crowd
exchanged gang signs with them. These men also threw
bricks and stones at the Pathfinder. Gomez drove off and
stopped on a side street to retreive a .45-caliber semiauto-
matic pistol that he had earlier placed under the vehicle’s
hood. One of his friends, Jose Dominguez, then drove back
towards the intersection while Gomez sat in the passenger
window and pointed the gun over the top of the vehicle. The
crowd began to scatter and Gomez fired the gun in the
direction of the group. Two bullets entered the victim,
Conception Diaz. Diaz died of multiple gunshot wounds, two
of which lacerated his heart and lung.
  Eyewitness accounts of how many shots were fired vary
somewhat, but generally allege multiple shots. Rey Arroyo
testified that the shooter’s gun was chrome and that he
heard three shots. Arroyo testified that he did not hear any
gunshots that sounded different from those gunshots.
George Soria witnessed the incident from his car. Soria,
familiar with sounds of weapons from his employment
background, testified that he heard two or three shots and
that no shots were fired other than those coming from the
No. 02-4372                                                  3

Pathfinder. Stipulations established that several other wit-
nesses heard up to five shots.
  Because they feared someone might have seen the Path-
finder’s license plate, Gomez and his friends decided to
wreck the Pathfinder and tell his mother that it had been
stolen. Gomez and Dominguez carried out an elaborate
scheme so that the car would crash into a wall while no one
was driving it. After the crash, Gomez returned home,
where he was later arrested. In Gomez’s statement to
police, he said that he had hidden in the house the gun that
he had fired into the crowd. Ballistics tests later established
that the gun recovered from Gomez’s house was not the
weapon that fired the bullets that were subsequently
removed from the victim.
  Gomez was charged with first-degree murder and tried in
a joint bench trial with his four co-defendants. Although the
cases were technically severed, the judge heard evidence
against all of the defendants simultaneously. The trial court
inferred that Gomez used another gun to shoot the victim
and, just as he elaborately planned the disposal of the
Pathfinder, Gomez disposed of the gun used in the shooting.
The court noted that there was no evidence of anyone else
besides Gomez firing a weapon and that Gomez himself
admitted that no one in the crowd on the street had any
guns. The court found Gomez guilty of murder. Dominguez
was also found guilty of first-degree murder while the other
three friends riding in the Pathfinder were acquitted.
  Gomez appealed to the Illinois Appellate Court, where he
challenged the sufficiency of the evidence and argued,
among other things, that he did not knowingly and volun-
tarily waive the right to testify and that his trial counsel
was ineffective. Eight months after the Illinois Appellate
Court affirmed Gomez’s conviction, the same court reversed
Dominguez’s conviction, holding that there was insufficient
4                                                No. 02-4372

evidence of Gomez’s guilt on the murder charge to hold
Dominguez accountable.
  Gomez filed a habeas petition in the district court. The
district court denied the petition finding that Gomez’s in-
effective assistance of counsel claim, premised on his
counsel’s failure to advise or call him to testify, was pro-
cedurally defaulted. The district court based its finding on
the fact that the state appellate court disposed of that claim
on the adequate and independent state ground of waiver,
resulting from Gomez’s failure to raise that claim in his
motion for new trial. Furthermore, the district court found
that Gomez failed to remove the procedural bar to his claim
by proving that he was actually innocent of the crime.
  This Court granted Gomez’s application for a certificate
of appealability.


                      II. DISCUSSION
  Generally, federal courts cannot review a petition for writ
of habeas corpus premised on questions of federal law that
have not been properly presented to the state court. Under
this principle, absent a showing of cause and prejudice,
federal habeas corpus review is precluded when a state
court did not reach a federal issue because it applied a state
procedural rule. Wainwright v. Sykes, 433 U.S. 72, 90-91
(1977). This rule promotes federalism by respecting the
importance of state procedural rules and the finality of
state court judgments. Furthermore, it discourages “sand-
bagging” on the part of defense lawyers who may withhold
constitutional claims in state proceedings to have them
heard first in federal court.
  Illinois has a procedural rule providing that if a de-
fendant fails to raise a claim of ineffective assistance of
counsel in his motion for a new trial, the claim is waived
No. 02-4372                                                   5

on appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988);
People v. Keys, 195 Ill. App. 3d 370, 376 (1990). When,
under this rule, the state court declines to review a claim
not properly raised, the state court decision rests upon a
state law ground that is both “independent of the federal
question and adequate to support the judgment.” Coleman
v. Thompson, 501 U.S. 722, 729 (1991); see also Whitehead
v. Cowan, 263 F.3d 708, 726-27 (7th Cir. 2001) (finding the
state supreme court’s determination that defendant’s claims
were waived because they were not raised during trial or
post-trial brief constitutes an independent and adequate
state grounds for its decision).
  An adequate and independent state ground bars federal
habeas review of constitutional claims only if “the last state
court rendering judgment in the case ‘clearly and expressly’
states that its judgment rests on the state procedural bar.”
Harris v. Reed, 489 U.S. 255, 263 (1989). Here, the Illinois
Appellate Court was the last state court to consider Gomez’s
case; the Illinois Supreme Court denied review. The Illinois
Appellate Court “clearly and expressly” found that Gomez
had waived his ineffective assistance of counsel claim by
failing to raise it in the motion for new trial before it
discussed the merits of the claim. People v. Gomez, No. 1-98-
4474, at 12 (“The State correctly notes that defendant failed
to raise this issue in his motion for a new trial and has
therefore waived it on appeal. . . . Waiver aside . . . .”). The
Appellate Court further noted that there was no conflict of
interest present that would preclude waiver because
Gomez’s motion for a new trial was prepared by a different
attorney than the one who represented him at trial. Id.
  Against this backdrop, we will consider Gomez’s argu-
ments that the procedural default rule is precluded in this
case and that the narrow exception to procedural default
based on actual innocence should be applied.
6                                                No. 02-4372

    A. Massaro v. United States
  Gomez argues that the recent Supreme Court case,
Massaro v. United States, 123 S.Ct. 1960 (2003) removes
the procedural bar to his ineffective assistance of counsel
claim and thereby allows this Court to review that claim on
its merits. In Massaro, the Supreme Court held that a
defendant challenging a federal conviction under 28 U.S.C.
§ 2255 could raise an ineffective assistance of counsel claim
in a collateral proceeding, even though the defendant could
have, but did not, raise the claim on direct appeal. Gomez
argues that the Massaro rule should apply with equal force
to proceedings challenging a state conviction under 28
U.S.C. § 2254.
  Echoing Massaro’s reasoning, Gomez argues that direct
appeal is not the forum best suited to determining the ade-
quacy of representation because guilt or innocence is gen-
erally the issue of primary importance. Indeed, Massaro
concluded that requiring criminal defendants to bring
ineffective assistance of counsel claims on direct appeals of
federal convictions does not promote the objectives of
the procedural default doctrine, namely conservation of
judicial resources and respect for the finality of judgments.
While logically these arguments may extend to ineffective
assistance claims arising out of state court convictions,
the holding of Massaro is not legally binding on states.
Massaro was not a constitutional decision. Id. at 1693 (“The
procedural default rule is neither a statutory nor a constitu-
tional requirement . . . .”). While Illinois law on waiver may
be in conflict with the federal court’s own procedural default
rule, it continues to operate as an adequate and independ-
ent state ground for barring federal habeas review of his
ineffective assistance of counsel claim.
  This position was taken in the only appellate decision to
date dealing with Massaro’s application to proceedings
challenging state convictions. See Perkins v. Lee, 72 Fed.
No. 02-4372                                                 7

Appx. 4, 9 n.1 (4th Cir. 2003). As the Fourth Circuit found
itself “constrained to respect the contrary view of the North
Carolina Supreme Court,” we are constrained by the view
of Illinois. Id.


  B. Fundamental Miscarriage of Justice
  Next, Gomez argues that his claim of actual innocence
overcomes the procedural bar to his ineffective assistance
of counsel claim. Without doubt, a disturbing aspect of
this case is that Dominguez’s conviction was overturned
by a panel of the Illinois Appellate Court on the basis
that there was insufficient evidence to prove that Gomez
actually fired the shots killing the victim. This decision was
rendered just eight months after the denial of Gomez’s own
appeal by another panel of the Appellate Court and, most
interestingly, both panels had a judge in common. The
evidence against Dominguez was similar to the evidence
against Gomez; the only difference was that Dominguez’s
own statement to the police was admitted. Portions of
Gomez’s statement were admitted against Dominguez, but
not a sentence claiming that nobody else in the crowd had
any weapons.
  In any event, the Constitution does not require that ver-
dicts against an accomplice and his principal be consistent.
The fact that Dominguez’s conviction was overturned is not
grounds in itself for finding that Gomez’s case overcomes
the procedural bar to his ineffective assistance of counsel
claim. When a petitioner has procedurally defaulted a
claim, a federal court cannot reach the merits of that claim
unless the petitioner demonstrates: (1) cause for and actual
prejudice arising from failing to raise the claim as required,
or (2) that enforcing the default would lead to a “fundamen-
tal miscarriage of justice.” Wainwright v. Sykes, 433 U.S. at
87; Steward v. Gilmore, 80 F.3d 1205, 1211-12 (7th Cir.
8                                                No. 02-4372

1996). Gomez does not argue cause and prejudice on this
appeal, therefore we focus our attention on the second
exception.
   The fundamental-miscarriage-of-justice exception applies
only in the “extremely rare” and “extraordinary case” where
the petitioner is actually innocent of the crime for which he
is imprisoned. Schlup v. Delo, 513 U.S. 298 (1995). To
support a colorable claim of actual innocence the petitioner
must come forward with “new reliable evidence—whether
it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence—that was not
presented at trial.” Id. at 324. The petitioner must also
establish that “it was more likely than not that no reason-
able juror would have convicted him in light of the new
evidence.” Id. at 327. As a mixed question of law and fact,
we review the Schlup probability determination that no
reasonable juror would convict de novo. Bell v. Pierson, 267
F.3d 544, 552 (7th Cir. 2001).
   The evidence not considered at trial with which Gomez
comes forward includes: (1) the statements of Gomez’s co-
defendants and (2) Gomez’s own testimony. Respondent ar-
gues that this evidence cannot be considered new because
it is not newly discovered, i.e., Gomez was aware of its ex-
istence at the time of trial. However, nothing in Schlup
indicates that there is such a strict limitation on the sort of
evidence that may be considered in the probability determi-
nation. All Schlup requires is that the new evidence is
reliable and that it was not presented at trial. Schlup, 513
U.S. at 324; see also Calderon v. Thompson, 523 U.S. 538,
559 (1998). While a petitioner claiming that his factual
innocence alone entitles him to habeas corpus relief must
present newly discovered evidence, see Herrera v. Collins,
No. 02-4372                                                     9

506 U.S. 390 (1993),1 Gomez is using actual innocence solely
as a basis, or a gateway, for having his otherwise barred
constitutional claims heard. The majority opinion in Schlup
recognized this critical distinction with respect to Herrera
from the outset of the case and we should not consider the
absence of a newly “discovered” requirement in Schlup a
mere oversight.
  Particularly in a case where the underlying constitutional
violation claimed is the ineffective assistance of counsel
premised on a failure to present evidence,2 a requirement
that new evidence be unknown to the defense at the time of
trial would operate as a roadblock to the actual innocence
gateway. Here, the very premise of the ineffectiveness claim
is that the trial counsel knew of yet failed to present
evidence that Gomez is alleging proves his innocence. If
procedurally defaulted ineffective assistance of counsel
claims may be heard upon a showing of actual innocence,
then it would defy reason to block review of actual inno-
cence based on what could later amount to the counsel’s
constitutionally defective representation. The burden for
proving actual innocence in gateway cases is sufficiently
stringent and it would be inappropriate and unnecessary to
develop an additional threshold requirement that was not
sanctioned by the Supreme Court. We agree with the
Eighth Circuit that merely putting a different spin on
evidence that was presented to the jury does not satisfy the


1
  Although language in the majority opinion in Herrera appears
to bar habeas claims based solely on actual innocence, the con-
curring opinion of Justices O’Connor and Kennedy makes clear
that a majority of justices agree that habeas relief would be war-
ranted upon a truly persuasive showing of actual innocence, at
least in a capital case. Herrera, 506 U.S. at 427 (O’Connor, J.,
concurring).
2
  Gomez’s ineffective assistance of counsel claim is premised on
his trial counsel’s failure to call Gomez as a witness at trial.
10                                              No. 02-4372

Schlup requirements, see Bannister v. Delo, 100 F.3d 610,
618 (8th Cir. 1996), but if a petitioner comes forth with
evidence that was genuinely not presented to the trier of
fact then no bar exists to the habeas court evaluating
whether the evidence is strong enough to establish the
petitioner’s actual innocence.
   Ultimately, however, Gomez fails to satisfy this stringent
standard. We are not convinced that it is more likely than
not that no reasonable juror would have convicted him in
light of the statements of his co-defendants and his own
testimony. Gomez argues that his co-defendants’ statements
are beneficial to him for the following reasons: (1)
Dominguez’s statement asserts that only one bullet re-
mained in Gomez’s gun prior to the shooting; (2) no state-
ment says that Gomez was seen firing all of the shots; and
(3) no statement references a gun other than the one found
at Gomez’s house. Additionally, Gomez argues that his own
testimony would clarify the statement that he gave on the
night of the shooting that no one on the street had a
weapon and would strongly support that he did not have
more than one gun. As for his “no other weapons” state-
ment, Gomez claims that he had no way of knowing such a
fact given the size of the group and the darkness of the
night. Moreover, he claims that he never actually made the
statement—he only told police that he could not recall
seeing another weapon (he claims that he overlooked his
error when he signed the statement).
  This evidence is insufficient to warrant applying the
“extremely rare” actual innocence exception. First of all,
while the co-defendants’ statements do add some credit to
Gomez’s “one gun” theory in that they only mention Gomez
having one gun, they also corroborate inculpatory facts
presented at trial. The statements agree that Gomez fired
a gun at least once from the front passenger-seat window of
the vehicle. Multiple witnesses testified that they saw
someone shooting from the front passenger seat of the
No. 02-4372                                               11

Pathfinder. Just as no witnesses claimed to either see or
hear gunshots coming from anywhere but the Pathfinder,
the co-defendants’ statements make no reference to an ex-
change of gunfire or other shooters.
  Moreover, the new evidence does not prove Gomez’s
theory of innocence, i.e., that he did not actually fire the
gun that shot and killed the victim. Nothing in the state-
ments directly ties the gun that the police recovered from
Gomez’s house to the gun he used at the scene of the crime.
While the statements describe the gun as chrome (the gun
recovered from Gomez’s house was chrome), no statement
explains what Gomez did with the gun after the shooting.
Only Gomez’s statement mentions what happened to the
gun (he put it on a shelf by the TV in his house). While
Gomez argues that the lack of any mention of a second gun
by his co-defendants leads to the conclusion that the gun
recovered from his house was the one he fired out of the
Pathfinder, it would also be reasonable for the trier of fact
to conclude that Gomez covertly disposed of the gun used in
the shooting without alerting his friends. Indeed, it is
entirely possible that Gomez owned more than one chrome
gun and that he led police to the one that he left at home on
the night of the shooting.


                     III. Conclusion
  For the reasons stated above, Gomez failed to show a
fundamental miscarriage of justice sufficient to overcome
the procedural bar to his ineffective assistance of counsel
claim. Therefore, we cannot consider Gomez’s ineffective-
ness argument on its merits. The judgment of the district
court is AFFIRMED.
12                                        No. 02-4372

A true Copy:
      Teste:

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




               USCA-02-C-0072—11-26-03
