O R D E R
Jumar House, an Illinois prisoner, appeals the denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The district court denied his petition because House's claims—involving ineffective assistance of trial counsel, ex parte communications after trial, waiver of his right to a jury trial, and actual innocence— * We have agreed to decide the case without oral argument because the briefs and record adequately present the facts and legal arguments, and oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
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were procedurally defaulted, and his evidence of actual innocence was not enough to overcome that default. We agree and affirm.
I
In 2012, Norman Gates was shot outside a nightclub in Peoria, Illinois. Gates was leaving the club with his friend Nicholas Pannell (and another friend) when a man walked up to speak with them. The man then walked away. Just over a minute later, the man returned and shot at Gates and his friends. Gates was wounded but survived. Although Gates did not see the shooter, Pannell did. In an interview with police days later, he said he recognized House as the man who shot Gates. He recognized House because he had known him for nearly a decade. House was arrested and charged with attempted murder, aggravated battery, and unlawful possession of a weapon by a felon. See 720 ILCS 5/9-1(a)(1), 5/8-4(a), 5/12-3.05(e)(1), 5/24-1.1(a) (West 2012). House waived his right to a jury trial and proceeded to a bench trial. There, Pannell testified that he recognized House as the shooter but was impeached on three fronts: He (1) was a convicted felon awaiting sentencing; (2) did not like House; and (3) made inconsistent statements to police, having first told officers that he was not at the club the night of the shooting. To support Pannell's testimony, the prosecution presented two videos: surveillance video from a bar next to the night club and dash- cam video of House during an (unrelated) traffic stop from the night of the shooting. The surveillance video showed the shooter wearing a nondescript black coat and black hat, and the dash-cam video showed House wearing the same.
The trial judge found House guilty on all charges. He explained that Pannell's credibility issues were overcome by the video evidence showing House wearing similar clothing to the shooter and, in the judge's view, having a similar stature and hair length. Before sentencing, the lead detective approached the judge and thanked him for convicting House. The judge responded that the comment was inappropriate and informed both parties of the encounter. The judge retired soon after, so a different judge handled House's sentencing. That judge sentenced House to 33 years in prison. House then sought review of his convictions and sentence. He first directly appealed but was unsuccessful. People v. House, No. 3-13-0312, 2014 WL 3401109, at *1 (Ill. App. Ct. July 9, 2014) (House I). He did not seek review from the Illinois Supreme Court. House then filed a state post-conviction petition, later supplemented by counsel, asserting that he was actually innocent of the shooting and that Pannell had lied about
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seeing him shoot Gates. His petition was summarily dismissed, but on appeal that dismissal was reversed with instructions to hold a hearing on House's claims. People v. House, 152 N.E.3d 574, 580-81 (Ill. App. Ct. 2020) (House II). At the hearing, House had three witnesses testify to his innocence: Kenwaun Murray, Corey Hunter, and Mario Davis. After hearing their testimony, the postconviction court concluded that they were not credible and rejected House's claim of innocence. The state appellate court affirmed. People v. House, 229 N.E.3d 945, 951 (Ill. App. Ct. 2023) (House III).
We detail the portions of the state courts' reasoning that are relevant to this appeal. Murray testified at the hearing that he spoke with Pannell two times after the shooting. The first time, he and Pannell got into a fight at a bar, and the second time he asked Pannell "why he lie[d]" about House's involvement in the shooting. Pannell then admitted to falsely accusing House to obtain a more lenient sentence in a then-pending case. The state courts found Murray not credible because he is a felon and because "it is not believable that Pannell would openly confess to Murray that Pannell had framed Murray's friend for attempted murder" when their first encounter was a bar fight. Hunter testified at the hearing that he was outside the nightclub when the shooting happened. He recounted that the shooter pulled up in a car next to him before opening fire, so he was close enough to see the shooter's face, but that he did not recognize the shooter despite being "acquaintance[s]" with House. Hunter also testified that he knew Pannell but did not see him during the shooting. The state courts found Hunter not credible because the surveillance video showed the shooter on foot (never in a car) and because he did not see Pannell (suggesting an "unconvincing" and
"selective" identification). Davis testified at the hearing that he also was outside the nightclub when the shooting happened. He said that he saw the shooter's face and it was not House, who he had seen around before. The state courts found Davis not credible because he admitted to having a "few" beers and smoking marijuana before the shooting; failed to come forward for over two years despite knowing of House's conviction; and gave a
"panicky, stuttering answer" when asked about the delay on direct examination. After the state appellate court affirmed the denial of his postconviction petition, House sought review from the Illinois Supreme Court. He raised only a freestanding claim of actual innocence. The court declined to review his case. People v. House,
232 N.E.3d 22 (Ill. 2024) (Table).
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II
House then petitioned for a writ of habeas corpus in federal court. See 28 U.S.C. § 2254. In his pro se petition, he raised four claims: (1) trial counsel was ineffective for not investigating and cross-examining Pannell about his pending plea agreement; (2) the trial judge's communication with the detective after trial violated House's right to due process; (3) he did not knowingly and voluntarily waive his right to a jury trial; and
(4) he is actually innocent of the shooting. The district court received a response from the state and denied House's petition. It concluded that House's first three claims were procedurally defaulted because he had not sought review of those claims in the Illinois Supreme Court. The court continued that House's evidence of actual innocence was not enough to overcome that default. The court explained that House's innocence turned on the credibility of his three witnesses but that the state courts had reasonably determined their testimony was not credible. Thus, House failed to show that it was more likely than not that no reasonable juror would have convicted him. Because House's evidence of actual innocence was not enough to overcome procedural default, the court determined that his standalone claim of actual innocence also failed.
Despite denying House's petition, the district court concluded that reasonable jurists could debate whether he had satisfied the actual innocence exception and whether a freestanding actual innocence claim could proceed. So it granted House a certificate of appealability, see 28 U.S.C. § 2253(c)(2), and House appealed.
III
House first challenges the district court's determination that he has not presented evidence of actual innocence sufficient to excuse his procedural default. A state prisoner's procedural default may be excused if he presents evidence that he is actually innocent, meaning "it is more likely than not that no reasonable juror would have convicted him." Schlup v. Delo, 513 U.S. 298, 327 (1995). To satisfy this standard, he must present "new reliable evidence—whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence." Id. at 324. Because the Illinois courts' assessments of the credibility of House's eyewitnesses are entitled to deference, House must demonstrate that those assessments were wrong by clear and convincing evidence. See Coleman v. Lemke, 739 F.3d 342, 349, 351 (7th Cir. 2014) (citing
28 U.S.C. § 2254(e)(1)); Nichols v. Wiersma, 108 F.4th 545, 557 (7th Cir. 2024). After that,
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we review de novo whether House's credible evidence proves actual innocence. Wilson
v. Cromwell, 69 F.4th 410, 418 (7th Cir. 2023). We agree with the district court that House has not presented evidence of actual innocence sufficient to overcome his procedural default. House insists that the state courts' credibility determinations were wrong, but he has presented no clear and convincing evidence that the assessments were erroneous. The state courts reasonably concluded that Murray was not credible when he testified that Pannell admitted that he had falsely accused House. This was a significant confession and purportedly made to a man who Pannell had previously gotten into a bar fight with, not a trusted confidant. For Hunter, jurors could readily find that he was mistaken about the car—the video was inconclusive—and doubt his view or recollection because he did not see Pannell. And Davis was intoxicated when he witnessed the shooting and failed to come forward with his purportedly exonerating evidence for years.
House argues that despite any problems with the eyewitness testimony, Pannell's testimony also was not credible. To be sure, Panell admitted that he disliked House and was facing sentencing on felony charges. But Pannell's testimony was not incredible. See Dixon v. Williams, 93 F.4th 394, 405 (7th Cir. 2024) (jury may still believe key witness despite significant credibility issues). He saw the shooting, and his identification of House was corroborated, to some degree, by the videos, showing the shooter wearing similar clothes to House and with a similar stature and hair length. House makes much of Pannell's undisclosed plea deal but this changes little in our view. See McDowell v. Lemke, 737 F.3d 476, 484 (7th Cir. 2013) ("[L]atter-day impeachment evidence seldom, if ever, makes a clear and convincing showing that no reasonable juror would have believed the heart of the witness's account." (cleaned up) (citation omitted)). The transcript of Pannell's plea hearing does not suggest that he was offered leniency for testifying against House. Moreover, Pannell testified at trial that he was awaiting sentencing, and from that a factfinder could infer that he might want to curry favor with the prosecution.
House urges that some of the state courts' reasons for disbelieving his witnesses and crediting Pannell rest on flimsy logic. If Murray was not a credible witness of House's innocence because of his felon status, House argues, then Pannell—a felon himself—cannot be a credible witness of House's guilt. For Hunter, House identifies that the surveillance video captures only one side of the street and does not show where the shooter came from or went after the shooting. Thus, House insists, it is possible that a car was not captured by the video. Davis's nervousness while testifying, House
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continues, is not evidence of deceit but rather the natural response of someone intimidated by the court system and interrogated by a prosecutor. Despite these criticisms, a state court's factual determination is not unworthy of deference merely because we could have viewed the evidence differently in the first instance. Nichols, 108 F.4th at 557 (quoting Burt v. Titlow, 571 U.S. 12, 18 (2013)). For the reasons already explained, there was enough reason to doubt House's witnesses such that the state courts' credibility determinations were not beyond "the boundaries of permissible differences of opinion." See Morgan v. Hardy, 662 F.3d 790, 800 (7th Cir. 2011) (affirming denial of habeas petition where state court rejected "more plausible"
factual account in favor of less plausible but still reasonable account) (quoting Starkweather v. Smith, 574 F.3d 399, 402 (7th Cir. 2009)).
Without credible testimony from eyewitnesses contradicting Pannell's testimony, House has failed to demonstrate that it is more likely than not that no juror would have convicted him. He would need something more, like "exonerating DNA evidence, record of incarceration at the time of the crime, video evidence of [House] in a faraway location, or other evidence." See Dixon, 93 F.4th at 405. But that does not exist here to overcome this swearing match between witnesses. See id.
We next turn to House's freestanding claim of actual innocence. Although the Supreme Court has never recognized a freestanding claim of actual innocence, if such a claim were recognized it would require a more compelling demonstration of innocence than we require to overcome procedural default. See Fernandez v. United States, 608 U.S. ____, 146 S. Ct. 1292, 1306 (2026) (citing Herrera v. Collins, 506 U.S. 390, 417 (1993)); Dixon, 93 F.4th at 406. Because House has not sufficiently proven his innocence to bypass default, his freestanding claim also fails.
Finally, we note that House raises two new claims on appeal. He asserts that the state violated his rights by not disclosing Pannell's plea deal, see Brady v. Maryland,
373 U.S. 83 (1963), and that he received ineffective assistance of appellate counsel, see Strickland v. Washington, 466 U.S. 668 (1984). But House did not raise these claims in the district court, so they are waived on appeal. See Jannke v. Gierach, 159 F.4th 517, 522 (7th Cir. 2025).
AFFIRMED
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