on the merits, one of these two standards is applicable.
In Carrier, the Supreme Court defined actual innocence as a showing by an otherwise-barred petitioner that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Carrier, 477 U.S. at 496, 106 S. Ct. at 2639. Subsequent to Carrier, however, in Sawyer v. Whitley, 505 U.S. 333, 348, 112 S. Ct. 2514, 2523, 120 L. Ed. 2d 269 (1992), the Court held that "actual innocence" in the capital sentencing context required that the petitioner show "by clear and convincing evidence that but for constitutional error, no reasonable juror would find him eligible for the death penalty . . . ." Id. (emphasis added). No explanation was given for the apparent increase in the burden placed on petitioners. In Schlup, the Court clarified its earlier cases, and held that in a habeas petition challenging a conviction, the Carrier standard applied, while in a challenge to capital sentencing, the Sawyer standard applied. See Schlup, 513 U.S. at 323-27, 115 S. Ct. at 865-67.
Schlup cited two reasons for distinguishing between the two standards. First, it noted that claims of actual innocence of the crime are much less likely to be successful than a challenge to a capital sentence, and thus "the threat to judicial resources, finality, and comity posed by claims of actual innocence . . . is significantly less than that posed by claims relating only to sentencing." Id. at 324, 115 S. Ct. at 866. Second, the Court felt that the injustice of executing (or incarcerating) one innocent of the crime is greater than imposing a too-severe sentence upon one who is factually guilty, and therefore "the overriding importance of this greater individual interest merits protection by imposing a somewhat less exacting standard of proof . . . ." Id. at 325, 115 S. Ct. at 826. This reasoning would be no less applicable in overcoming a statute of limitations here than in overcoming the various procedural bars in Schlup, and thus this Court will evaluate the instant petition's claims under the Carrier standard, as explicated in Schlup.
Under Schlup, "the petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Id. at 327, 115 S. Ct. at 867. The Court emphasized that this is a question of actual innocence, and thus "the district court is not bound by the rules of admissibility that would govern at trial" but instead "must make its determination . . . 'in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.'" Id. at 327-28, 115 S. Ct. at 867 (quoting Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)).
The Schlup burden, it should be noted, is not whether no reasonable juror could find petitioner guilty, and is therefore less than the insufficiency of evidence standard of Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Schlup, 513 U.S. at 330, 115 S. Ct. at 868. It is, however, a significantly higher burden than showing prejudice, which only requires a reasonable probability that the factfinder would have reasonable doubt, and moreover is evaluated only in light of the evidence that should have properly been before the factfinder. See id. at 332-33, 115 S. Ct. at 870 (O'Connor, J., concurring). In order to pass through the actual innocence gateway, a petitioner's case must be "truly extraordinary." Id. at 327, 115 S. Ct. at 867.
The instant petition is not such a case. To begin with, the Court notes the admonition in Schlup that "to be credible, [a claim of actual innocence] requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial." Id. at 324, 115 S. Ct. at 865; see also id. at 329, 115 S. Ct. at 868 ("a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonable, would have voted to find him guilty beyond a reasonable doubt")(emphasis added). This Court does not understand "new" evidence to be limited to evidence that was unavailable at trial, see id. at 328, 115 S. Ct. at 867 (court must evaluate " in light of . . . evidence tenably claimed to have been wrongly excluded or to have become available only after the trial"), but that a claim of actual innocence must at least present evidence that the original factfinder did not consider to be cognizable. Accord Embrey v. Hershberger, 131 F.3d 739, 1997 U.S. App. LEXIS 35624, at *6-9, 1997 WL 773359, at *3-4 (8th Cir. 1997) (en banc). Given the probabilistic standard of Schlup, a claim without new evidence unseen by the jury, to be successful, would put the court in the position of asserting that none of the jurors acted reasonably. Accordingly, petitioner's claims that the trial evidence was insufficient to convict and of ineffective assistance of counsel on direct appeal will not be considered.
The only claims asserted by petitioner which raise "new evidence" are that (1) the jury should have been allowed to visit the site where a key eyewitness, Ertha Lee, viewed petitioner enter and leave the crime scene, and that this visit would have revealed that it was impossible for the witness to have seen the petitioner, and (2) a prosecution witness, Beverly Eason, testified that she had not been originally charged with the murder for which petitioner was convicted (and was testifying pursuant to a cooperation agreement), and when defense counsel presented records to the contrary and asked the prosecution to stipulate to their accuracy, the prosecutor "merely mouthed the word 'agreed'" rather than "correct the falsity of the trial testimony." Pet. Opp. Mem., at 5. These claims do not come close to meeting the Schlup standard.
As to the first claim, the site visit could have at most cast doubt on the credibility of this one witness. As noted by the Appellate Division in Alexander's direct appeal, there was significant other evidence at trial. Eason testified that she planned the robbery which led to the murder along with Alexander, took part making sure the victim was alone and witnessed the petitioner at the crime scene, and that the petitioner confessed the robbery to her the following day. Moreover, in addition to the testimony the petitioner challenged here, Ms. Lee testified that she had witnessed the petitioner near the crime scene shortly before the crime, wearing a jacket that was similar to one found by the victim's body. See People v. Alexander, 153 A.D.2d 507, 507-08, 544 N.Y.S.2d 595, 596-97 (1st Dep't 1989). Under these circumstances, petitioner's complaint about the jury visit is hardly sufficient to cause this Court to find that no reasonable juror would have found petitioner guilty.
As to the second claim, it is barely "new evidence" at all. Petitioner agrees that his trial counsel got evidence in, with the prosecutor's stipulation, of Eason's falsehood on whether she was originally charged in the case. Petitioner only complains that the prosecutor was not more forceful in disavowing Eason's testimony on this point. Significantly, petitioner does not assert that Eason's testimony was perjurious on the most damning evidence. Actual innocence must be based on much stronger evidence than this. Accordingly, this Court finds that petitioner has not made a colorable showing of actual innocence, and therefore does not need to reach the difficult constitutional issues raised above. The petition must therefore be dismissed as time-barred.
For the reasons discussed, respondent's motion to dismiss is granted. The petition for a writ of habeas corpus is denied and dismissed.
Dated: New York, New York
January 14, 1998