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January 14, 1998

MATTHEW ALEXANDER, Petitioner, against JOHN KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.

The opinion of the court was delivered by: SOTOMAYOR



 Respondent moves to dismiss this habeas petition on the ground that the claims asserted by petitioner are barred by the one-year limitations period of § 101 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. 104-132, 110 Stat. 1217 (April 24, 1996), codified at 28 U.S.C. § 2244(d). The petitioner filed this petition approximately eleven months after the effective date of the AEDPA, and over six years after exhausting state direct review of his conviction. For the reasons to be discussed, I grant respondent's motion to dismiss the habeas petition as untimely.


 Petitioner was convicted on June 15, 1988, following a jury trial in New York State Supreme Court, Bronx County, of Murder in the Second Degree (N.Y. Penal Law § 125.25(3)) and Robbery in the First Degree (N.Y. Penal Law § 160.15(3)). Petitioner was sentenced to an indeterminate prison term of twenty years to life on the murder count and a term of from eight and one-third to twenty five years on the robbery count. Petitioner is currently incarcerated at Sing Sing Correctional Facility.

 Petitioner appealed his conviction to the Supreme Court, Appellate Division, First Department, on the grounds that 1) the prosecution failed to establish his guilt beyond a reasonable doubt, 2) the evidence did not corroborate the accomplice testimony, 3) the trial court erred in failing to give a circumstantial evidence charge, and 4) the trial court's sentence was excessive. On August 10, 1989, the Appellate Division affirmed petitioner's conviction. See People v. Alexander, 153 A.D.2d 507, 544 N.Y.S.2d 595 (1st Dep't 1989). On May 3, 1990, the New York State Court of Appeals affirmed. See People v. Alexander, 75 N.Y.2d 979, 556 N.Y.S.2d 508, 555 N.E.2d 905 (1989). Petitioner did not file for certiorari with the United States Supreme Court.

 On May 11, 1991 petitioner filed a motion in the trial court, pursuant to N.Y. Crim. Proc. Law § 440.10, to vacate the conviction on the grounds of ineffective assistance of trial counsel; this motion was denied on July 16, 1991, and the Appellate Division denied leave to appeal on September 26, 1991. See People v. Alexander, No. M-4181, 1991 N.Y. App. Div. LEXIS 12470 (1st Dep't Sept. 26, 1991). Finally, on March 11, 1992, petitioner filed in the Appellate Division for a writ of error coram nobis, raising the same grounds as his unsuccessful § 440.10 motion. The petition was denied on May 14, 1992, see People v. Alexander, 183 A.D.2d 1110, 592 N.Y.S.2d 542 (1st Dep't 1992), and the Court of Appeals denied leave to appeal on August 5, 1992. See People v. Alexander, 80 N.Y.2d 900, 588 N.Y.S.2d 826, 602 N.E.2d 234 (1992).

 On March 31, 1997, this Court received the instant petition, dated March 21, 1997, for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent submitted its motion to dismiss on July 29, 1997, and petitioner opposed the motion on September 18, 1997. Respondent submitted a reply on November 6, 1997, and the petitioner submitted a sur-reply on November 9, 1997.


 Petitioner filed this petition after April 24, 1996, the effective date of the AEDPA. The AEDPA amended the habeas corpus statute to require that habeas petitions "be filed no later than one year after the completion of state court review." 28 U.S.C. § 2244(d)(1)(A) (1997). However, "time during which a properly filed state court application for collateral review is pending is excluded from the one year period." Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996); see 28 U.S.C. § 2244(d)(2). The Second Circuit in Peterson v. Demskie, 107 F.3d 92, 93 (2d Cir. 1997), recognized that it would be unfair to deny access to the federal courts to prisoners who did not have notice of the new time limits of the AEDPA. Although other circuits have ruled that "habeas petitioners should have a full year after the effective date of the AEDPA to file their petitions in federal district court, " Lindh v. Murphy, 96 F.3d 856, 866 (7th Cir. 1996) (en banc), rev'd on other grounds, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997); United States v. Simmonds, 111 F.3d 737 (10th Cir. 1997); Calderon v. United States District Court for the Central District of California (Beeler), 112 F.3d 386, 389 (9th Cir. 1997), this Circuit has held that "a habeas corpus petitioner is entitled to a 'reasonable time' after the effective date of the AEDPA to file a petition." Peterson, 107 F.3d at 92. Furthermore, "in circumstances . . . where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, we see no need to accord a full year after the effective date of the AEDPA." Peterson, 107 F.3d at 93.

 Following Peterson, district courts in this circuit have found petitions filed near the end of the year following the enactment of the Act to be untimely. See Rashid v. Khulmann, 991 F. Supp. 254, 1998 U.S. Dist. LEXIS 130, at *5, 1998 WL , at * (S.D.N.Y. 1998) (collecting cases). The Second Circuit in Peterson also cautioned, however, that "we do not think that the alternative of a 'reasonable time' should be applied with undue rigor." Peterson, 107 F.3d at 93. Accordingly, courts in this circuit have found petitions filed after the effective date of AEDPA to be timely where the petition was filed well before the conclusion of the one year period following the effective date of the Act or soon after state review concluded. See id.

 The Second Circuit in Peterson provided little guidance as to what factors should be considered in determining whether a petition is filed within a reasonable time after the effective date of the AEDPA, except to say that "where a state prisoner has had several years to contemplate bringing a federal habeas corpus petition, we see no need to accord a full year . . . ." Peterson, 107 F.3d at 93. The implication of this statement is that the length of time since conviction is a factor to be considered, with more recently convicted petitioners afforded longer time, perhaps even up to one full year. See Morillo v. Crinder, 1997 U.S. Dist. LEXIS 18295, at *5-6, No. 97 Civ. 3194, 1997 WL 724656, at *2 (S.D.N.Y. Nov. 17, 1997) (petition filed 350 days after AEDPA timely because, inter alia, petitioner who filed 370 days after conviction "did not have years to contemplate bringing his petition"); Jones v. Artuz, 1997 U.S. Dist. LEXIS 15581, at *2-3, No. CV 97-2394 (E.D.N.Y. Sept. 13, 1997) (petition filed 357 days after AEDPA not untimely where filed only fourteen months after conviction).

 In addition to this factor, the district courts applying Peterson have relied on a number of common factors in making their analysis: (1) whether the federal petition merely restates claims made to the state courts, and thus does not require extensive additional preparation, see Avincola v. Stinson, 1997 U.S. Dist. LEXIS 17078, at *6, No. 97 Civ. 1132, 1997 WL 681311, at *2 (S.D.N.Y. Oct. 29, 1997) (petition filed 266 days after AEDPA untimely because, inter alia, "the claims raised here are identical to those raised in state court"); White v. Garvin, 1997 U.S. Dist. LEXIS 15577, at *5, No. 97 Civ. 3244, 1997 WL 626396, at *2 (S.D.N.Y. Oct. 7, 1997) ("Because petitioner raised the same claims in his prior appeals, he did not have to do much, if any, legal research or writing to complete his petition.") (petition filed 341 days after the AEDPA untimely), Berger v. Stinson, 977 F. Supp. 243, 245 (W.D.N.Y. 1997) ("It is difficult to see why an extended period of time was necessary to prepare and file a habeas corpus petition based on the same facts" as a previous state collateral motion); (2) whether the petitioner is proceeding pro se or is represented by counsel, see Morillo, 1997 U.S. Dist. LEXIS 18295, at *6, 1997 WL 724656, at *2 (filing pro se "can substantially increase the time involved in preparation of court documents")(petition timely); Rivalta v. Artuz, 1997 U.S. Dist. LEXIS 10282, at *2, n.1, 1997 WL 401819, at *1, n.1 (S.D.N.Y. 1997) (petition filed six months after AEDPA timely "in light of the . . . liberal treatment traditionally conferred by this Circuit on pro se parties"); but see Rosa v. Senkowski, 1997 U.S. Dist. LEXIS 11177, at *10-11, No. 97-2468, 1997 WL 436484, at *4 (S.D.N.Y. Aug. 1, 1997) ("To allow the absence of counsel to extend the filing period would render the 'reasonable' time limitations imposed by the Second Circuit void in the substantial number of pro se habeas corpus petitions brought in this district."); (3) whether the petitioner was pursuing state collateral relief during the post-AEDPA period, see Newton v. Strack, 1997 U.S. Dist. LEXIS 17511, at *6-7, No. CV 97-2812, 1997 WL 752348, at *2 (E.D.N.Y. Oct. 15, 1997); Johnson v. Kelly, 1997 U.S. Dist. LEXIS 15580, at *6-7, No. CV 97-1298 (E.D.N.Y. Sept. 12, 1997); and (4) the difficulty or complexity of the issues raised by the petition, see Carmona v. Artuz, 1997 U.S. Dist. LEXIS 15791, at *15, No. 96 Civ. 8045 (S.D.N.Y. Oct. 3, 1997) (magistrate judge report and recommendation). Generally speaking, petitions filed within a month or two of the one-year anniversary of the AEDPA have been presumed untimely absent compelling explanation. See Pacheco v. Artuz, 1997 U.S. Dist. LEXIS, at *5, No. 97 Civ. 3171, 1997 WL 724774, at *2 (S.D.N.Y. Nov. 17, 1997); Garcia v. New York State Dep't of Corrections, 1997 U.S. Dist. LEXIS 17079, at *7, No. 97 Civ. 3867, 1997 WL 681313, at *2 (S.D.N.Y. Oct. 28, 1997).

 In this case, petitioner's application is not timely. The petition was filed, at the earliest, on March 21, 1997 *fn1" -- almost eleven months after the effective date of the AEDPA, and over six years after his conviction had become final. *fn2" The claims raised in this petition are essentially the same as petitioner raised in his state court proceedings. Petitioner is not raising any new claims of unusual difficulty or magnitude. Petitioner offers no compelling explanation as to why the petition could not have been filed much earlier. The petition is therefore untimely under Peterson.

 Petitioner's arguments that the AEDPA statute of limitations should not be applied retroactively have been addressed by the Second Circuit in Peterson and in Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996), and are therefore foreclosed. To the extent that petitioner's arguments raise a claim under the Ex Post Facto Clause, U.S. Const. art I., § 9, cl. 3, this Court addressed that claim in a recent opinion, see Rashid, 991 F. Supp. 254, 1998 U.S. Dist. LEXIS 130, at *17, 1997 WL , at * , and rejected it for essentially the reason that the AEDPA statute of limitations does not "'retroactively punish[] as a crime an act previously committed, which was innocent when done,' 'make more burdensome the punishment for a crime, after its commission,' or 'deprive[] one charged with crime of any defense available according to law at the time when the act was committed.'" Doe v. Pataki, 120 F.3d 1263, 1272 (2d Cir. 1997) (quoting Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68-69, 70 L. Ed. 216 (1925)).

 Likewise, petitioner's argument that the respondent's motion to dismiss is actually raised under Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts ("Habeas Rules"), and that prejudice must therefore be shown, is incorrect. The respondent is not invoking Habeas Rule 9(a), but rather 28 U.S.C. § 2244(d). There is no requirement of prejudice in the AEDPA statute of limitations.

 In Rosa v. Senkowski, 1997 U.S. Dist. LEXIS 11177, No. 97 Civ. 2468, 1997 WL 436484 (S.D.N.Y. Aug. 1, 1997), certified for interlocutory appeal, 1997 U.S. Dist. LEXIS 18310, 1997 WL 724559 (S.D.N.Y. Nov. 19, 1997), appeal docketed, No. 97-2974 (2d Cir. Dec. 31, 1997), Judge Robert J. Sweet refused to dismiss a petition that was time-barred under Peterson on grounds that the statute of limitations in the AEDPA violates the Suspension Clause, see U.S. Const. art. I, § 9, cl. 2, and the Due Process Clause of the Fourteenth Amendment, see U.S. Const. amend. XIV, § 1. See also Montalvo v. Portuondo, 1997 U.S. Dist. LEXIS 19288, No. 97 Civ. 3336, 1997 WL 752728 (S.D.N.Y. Dec. 4, 1997) (Sweet, J.) (reaffirming Rosa holding). In a recent opinion, this Court declined to follow Judge Sweet's holding. See Rodriguez v. Artuz, 990 F. Supp. 275, 1998 U.S. Dist. LEXIS 131, at *16, No. 97 Civ. 4694, 1998 WL , at * (S.D.N.Y. Jan. 8, 1998).

 In Rodriguez, this Court stated that "at least where no claim of actual or legal innocence has been raised, as long as the procedural limits on habeas leave petitioners with some reasonable opportunity to have their claims heard on the merits, the limits do not render habeas inadequate or ineffective to test the legality of detention and, therefore, do not constitute a suspension of the writ in violation of Article I of the United States Constitution." Id. Furthermore, this Court held that in general Peterson afforded petitioners such a reasonable opportunity. Id.

 In Rodriguez, however, this Court did not need to pass upon the question of whether a claim of "actual innocence" could override the AEDPA's statute of limitations -- or, more precisely, whether the dismissal of a claim of actual innocence as time-barred would be a violation of the Suspension Clause -- because no claim of actual innocence was raised in that case, nor did it appear from the face of the petition that the claims Rodriguez raised were sufficient in any case to make such a claim. The petitioner here, however, does appear to assert such a claim. See Pet. Mem. in Opp., at 18-19 ("This petitioner is innocent of the crime in which he is presently unlawfully imprisoned in violation of his constitutional rights. . . . The state seeks to convince this Court to merely dismiss this action as a means of dispensing with justice. This is not what Congress intended when drafting of federal habeas review . . . . Nor would the framers of the United States Constitution sanction the outright summary dismissal of this petitioner's cause . . . ."). While not expressly stating that the Suspension Clause requires an actual innocence exception to a statute of limitations, this Court believes that a fair reading of petitioner's argument, construed liberally as required when a pro se petitioner is involved, requires this Court to more fully explore the issue it left open in Rodriguez.

 "Actual innocence" in habeas jurisprudence refers to a means by which petitioners can avoid certain procedural bars to having their habeas petitions considered on the merits. As described by the Supreme Court, the type of actual innocence claim asserted by petitioner in this case "is 'not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.'" Schlup v. Delo, 513 U.S. 298, 314, 115 S. Ct. 851, 861, 130 L. Ed. 2d 808 (1995) (quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862, 122 L. Ed. 2d 203 (1993)). *fn3" The Court has usually allowed actual innocence to serve as a substitute for showing "cause and prejudice," the usual standard for overcoming procedural bars in habeas cases. See Schlup, 513 U.S. at 314, 115 S. Ct. at 861. The availability of the actual innocence gateway has been reiterated in cases where petitions would be barred for state procedural defaults, see Coleman v. Thompson, 501 U.S. 722, 750, 111 S. Ct. 2546, 2565, 115 L. Ed. 2d 640 (1991); Murray v. Carrier, 477 U.S. 478, 495-96, 106 S. Ct. 2639, 2649, 91 L. Ed. 2d 397 (1986); or where they would be barred as abusive, see McCleskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991); or where they would be barred as successive, see Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S. Ct. 2616, 2617, 91 L. Ed. 2d 364 (1986) (plurality opinion); id. at 471 n.5, 106 S. Ct. at 2636 n.5 (Brennan, J., dissenting); id. at 476, 106 S. Ct. at 2639 (Stevens, J., dissenting). In Schlup, the Court simply described the petitioner as facing "various procedural bars" to which the actual innocence exception would apply, which at least suggests that any procedural bar may be overcome by meeting the actual innocence test.

 However, the Supreme Court has never addressed whether actual innocence (or even cause and prejudice) is available to overcome the procedural bar of a statute of limitations, because prior to the enactment of the AEDPA there was no statute of limitations affecting habeas petitions. Moreover, the Supreme Court has never had to address whether the actual innocence exception is constitutionally required, because it has always been applied either to overcome procedural hurdles of the Court's own making, see, e.g., Coleman, 501 U.S. at 729-32, 111 S. Ct. at 2554-55 (procedural default rules created by Court in interests of comity and federalism); or as a means of giving content to a discretionary power vested in the courts by statute, see, e.g., Kuhlmann, 477 U.S. at 448-52, 106 S. Ct. at 2624-26 (under version of 28 U.S.C. § 2244(b) then in effect, courts "need not entertain" successive or abusive petitions; "permissive language" gives court discretion to consider claims of innocence). Prior to the AEDPA, there had never been a provision in the habeas statutes which strictly prevented a court from issuing the writ on behalf of a person "in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2241(c)(3), except for the provision that required exhaustion of remedies, see 28 U.S.C. § 2254(b) ("An application for a writ of habeas corpus . . . shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state . . . .") (emphasis added). Even then, this provision only postponed the possibility of federal relief. The Supreme Court has always been able to fit an exception for actual innocence comfortably into the statutes, and thus the constitutional nature of the exception has never been squarely presented.

 Similarly, the Second Circuit, in the recent decision of Triestman v. United States, 124 F.3d 361 (2d Cir. 1997), was able to avoid directly addressing the issue of whether federal habeas must be available, at least at some point, *fn4" adjudicate a claim of actual innocence, because the language of 28 U.S.C. § 2255 contains a "safety valve," -- namely, that the writ of habeas corpus under 28 U.S.C. § 2241 is still available to federal prisoners if "the remedy by motion [under § 2255] is inadequate or ineffective to test the legality of [the prisoner's] detention." 28 U.S.C. § 2255. By holding that the procedural bars on Triestman's claim rendered § 2255 "inadequate and ineffective," and that therefore habeas corpus relief under § 2241, to which the gatekeeping procedures do not apply, remained open to him, the Second Circuit was able to avoid directly addressing the extent to which federal habeas is constitutionally required. See Triestman, 124 F.3d at 380.

 For purposes of this petition, however, what Triestman does confirm is that procedurally barring a claim of actual innocence raises serious constitutional issues. See id. at 378-79. *fn5" Moreover, Triestman also confirms that the concern that habeas be available to hear claims of actual innocence is not necessarily limited to capital cases, because Triestman was not under a sentence of death for his crime. See Triestman, 124 F.3d at 379 (noting "the distinct possibility that the continued incarceration of an innocent person violates the Eighth Amendment"); see also Borrego v. United States, 975 F. Supp. 520, 525 (S.D.N.Y. 1997) (actual innocence exception extends to noncapital sentencing issues).

 It must be noted, however, that Triestman differs from the instant case in a potentially significant way. The Triestman court found that Triestman "could not have raised his claim of innocence . . . in an effective fashion at an earlier time." Triestman, 124 F.3d at 379. The petitioner here, however, is not in such a situation -- he does not rely on any newly discovered evidence or new legal rulings, and this Court's finding that his filing was unreasonable under Peterson virtually forecloses a finding that he did not have sufficient opportunity to raise his claim. The issue before this Court is therefore slightly different from Triestman : not, as in that case, whether the Constitution requires Congress to provide (at least) one meaningful opportunity for federal review of an innocence claim, but whether the federal habeas doors must, in effect, remain perpetually open to such a claim, at least until the claim has been adjudicated on the merits. Although Triestman did not address this issue, this Court believes that the concerns of that court, as well as a consistent line of Supreme Court jurisprudence, also indicate that procedural bars to hearing actual innocence claims -- even if there was some prior opportunity (but not a prior federal rejection of the merits) -- raise serious constitutional concerns.

 The Triestman court noted, for instance, that "it is certainly arguable . . . that the continued imprisonment of an actually innocent person would violate just such a fundamental principle." Id. It also noted that "serious due process questions would arise if Congress were to close off all avenues of redress in such cases, especially when the prisoner could not have raised his claim of innocence . . . in an effective fashion at an earlier time." Id. (emphasis added). The fair implication of this last statement is that "such cases" refers to more than just those in which the actual innocence claim could not have been effectively raised earlier.

 This is confirmed by the Supreme Court's decision in Murray v. Carrier, 477 U.S. 478, 106 S. Ct. 2639, 91 L. Ed. 2d 397 (1986). In Carrier, the Court held that, although failure to raise a claim on direct appeal constituted procedural default which would normally bar federal habeas review, the default could be overcome by a showing of "cause and prejudice." The Court specifically noted that "a showing that the factual or legal basis for a claim was not reasonably available to counsel . . . would constitute cause . . ." and also that "ineffective assistance of counsel . . . is cause for a procedural default." Id. at 488, 106 S. Ct. at 2645. The Court then went on to state the following:


"in appropriate cases" the principles of comity and finality that inform the concepts of cause and prejudice "must yield to the imperative of correcting a fundamentally unjust incarceration." We remain confident that, for the most part, "victims of a fundamental miscarriage of justice will meet the cause-and-prejudice standard." But we do not pretend that this will always be true. Accordingly, we think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default.

 Id. at 495-96, 106 S. Ct. at 2649 (quoting Engle v. Isaac, 456 U.S. 107, 135, 102 S. Ct. 1558, 1576, 71 L. Ed. 2d 783 (1982). Any case in which a claim of actual innocence could not have been raised earlier would obviously meet the "cause" standard set out above (factual or legal basis not reasonably available). Cf. Triestman, 124 F.3d at 367-69 (prior to AEDPA, district courts would have been able to reach merits of claim that could not have been raised earlier but was now viable due to intervening change in law). Clearly, this does cover most actual innocence claims, because they are normally based on new evidence that was either unavailable earlier or was omitted due to ineffective assistance of counsel. However, that the Carrier Court felt this did not exhaust the universe of cognizable actual innocence claims strongly suggests that the prior availability of an actual innocence claim does not necessarily remove it from the universe of "fundamentally unjust incarcerations." See also Kuhlmann v. Wilson, 477 U.S. 436, 452, 106 S. Ct. 2616, 2626, 91 L. Ed. 2d 364 (1986) (plurality opinion) ("Even where . . . the many judges who have reviewed the prisoner's claims in several proceedings provided by the State and on his first petition for federal habeas corpus have determined that his trial was free from constitutional error, a prisoner retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated.") (holding that federal habeas court may hear claim previously litigated in federal habeas if prisoner makes a "colorable showing of factual innocence.").

  The Supreme Court has long noted that the "concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system." Schlup, 513 U.S. at 324, 115 S. Ct. at 866; see also O'Neal v. McAninch, 513 U.S. 432, 442, 115 S. Ct. 992, 997, 130 L. Ed. 2d 947 (1995) (describing as "basic purpose[] underlying the writ" the correction of an error "that risks an unreliable trial outcome and the consequent conviction of an innocent person"). In fact, the Supreme Court has often justified pruning back the scope of federal habeas review by cutting away those aspects which do not bear on actual innocence. See, e.g., Teague v. Lane, 489 U.S. 288, 312-13, 109 S. Ct. 1060, 1076-77, 103 L. Ed. 2d 334 (1989) (retroactivity on collateral review limited to those new rules of constitutional law which either "place[] 'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe' or are designed to eliminate 'procedure[s] which create an impermissibly large risk that the innocent will be convicted') (quoting Mackey v. United States, 401 U.S. 667, 692, 91 S. Ct. 1160, 1180, 28 L. Ed. 2d 404 (1971) (opinion of Harlan, J.) and Desist v. United States, 394 U.S. 244, 262, 89 S. Ct. 1030, 1041, 22 L. Ed. 2d 248 (1969) (Harlan, J., dissenting)); Kuhlmann, 477 U.S. at 454, 106 S. Ct. at 2627 (federal court may entertain successive habeas petitions only where colorable showing of actual innocence is made); Stone v. Powell, 428 U.S. 465, 491 n.31, 96 S. Ct. 3037, 3051 n.31, 49 L. Ed. 2d 1067 (1976) (Fourth Amendment claims not cognizable in federal habeas because petitioner "is usually asking society to redetermine an issue that has no bearing on the basic justice of his incarceration" and does not remove a "safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty").

 The point of the above discussion is this: If there is any core function of habeas corpus -- any constitutionally required minimum below which the scope of federal habeas may not be reduced -- it would be to free the innocent person unconstitutionally incarcerated. Thus, the question which began this inquiry -- does the Suspension Clause require that an exception for actual innocence be made to the AEDPA statute of limitations? -- translates into the more basic question: Does the Suspension Clause require Congress to provide any federal habeas relief for state prisoners whatsoever?

 This is an extremely difficult question, implicating as it does some of the most fundamental and fiercely contested issues of constitutional law -- relations among the three branches of the federal government, relations between the federal and state governments, and the balancing of individual liberty interest against society's need for a criminal justice system that at some point rests in its adjudication of guilt. The Supreme Court itself avoided these questions in Felker v. Turpin, 518 U.S. 651, 135 L. Ed. 2d 827, 116 S. Ct. 2333 (1996), when it simply assumed, for purposes of decision, that the Suspension Clause protects the federal writ for state prisoners "as it exists today." 116 S. Ct. at 2340. When such momentous issues are involved, particularly where, as here, no clear guidance can be found from higher courts, this Court is mindful of the longstanding maxim of judicial restraint that it is "'our duty to avoid deciding constitutional questions presented unless essential to proper disposition of the case.'" Dean v. Superintendent, Clinton Correctional Facility, 93 F.3d 58, 61 (2d Cir. 1996) (quoting Harmon v. Brucker, 355 U.S. 579, 581, 78 S. Ct. 433, 434-35, 2 L. Ed. 2d 503 (1958)). Thus, the Court turns to petitioner Alexander's claims to see whether, assuming an "actual innocence" exception to the statute of limitations exists, he could take advantage of it to have this Court hear his petition on the merits notwithstanding its being time-barred.

 This Court is mindful that it is undertaking the difficult task of applying an unclear standard -- the colorable factual showing of actual innocence which would be necessary to overcome a statute of limitations. This Court, however, is not without guidance. The Supreme Court has defined two standards for actual innocence in the habeas context, and this Court believes that, because the basic question in all of these cases, including this petition, is the threshold showing necessary to overcome a procedural bar to adjudication 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



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