The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se Petitioner Toddrick Brockington ("Petitioner" or "Brockington") commenced the instant habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, on April 30, 2007. Dkt. No. 1. Petitioner challenges the constitutionality of his conviction, following a jury trial in Monroe County Court, on charges of Manslaughter in the Second Degree, Murder in the Second Degree, and Robbery in the First Degree. Trial Transcript ("T.T.") at 655-656. The charges arose from a shooting incident that occurred on April 9, 1991, in the City of Rochester in which Petitioner shot and killed Timothy McFarland ("the victim") during a robbery. Petitioner is currently serving an aggregate sentence of twenty-five years to life.
In the habeas petition, Petitioner seeks relief on the following grounds: (1) the conviction was obtained by an unconstitutional failure of the prosecution to disclose evidence favorable to Petitioner; (2) ineffective assistance of trial counsel based on trial counsel's failure to make a reasonable investigation into property collected from victim as well as any evidence the medical examiner collected from the victim; (3) the prosecution suppressed medical examiner's Case Narrative and allowed false testimony to be presented to jury; and (4) the jury charge on the robbery count was erroneous. See Pet. ¶ 12 A-D (Dkt. No. 1). Respondent argues that all of these grounds for relief are subject to an unexcused procedural default and are, in any event, entirely without merit. Resp't Mem. at 10-11, 13 (Dkt. No. 22-1). Respondent argues that the jury instruction claim is unexhausted but procedurally defaulted and, moreover, without merit. Id. at 15.
On January 22, 2008, the Court (Skretny, D.J.) dismissed the habeas petition on the basis that it was untimely. Dkt. No. 8. Petitioner sought and obtained a certificate of appealability from the Second Circuit Court of Appeals. The Second Circuit held that the district court had correctly concluded that Brockington's 2007 petition was filed more than a decade after the "grace period" of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Brockington v. Marshal, 275 F.3d. Appx. 157, 158, 2010 WL 1740817, at **1 (2d Cir. May 3, 2010) (citing Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (allowing defendants convicted before AEDPA to file habeas petitions by April 24, 1997)). However, the Second Circuit found, the district court erred in failing to determine whether Brockington was entitled to equitable tolling of the statute on the basis of actual innocence.
In particular, the Second Circuit concluded that Brockington's pro se petition--albeit "barely so"-- asserted a claim of actual innocence by attaching copies of "two state court decisions denying post-conviction relief, each noting his claim that the case narrative supported his defense that the robbery never occurred and that he was innocent." Brockington, 2010 WL 1740817, at **1 (citing People v. Brockington, No. 91-0321, slip op. at 3 (N.Y. Sup. Ct. Feb. 27, 2006) ("[D]efendant contends that . . . he is innocent of the crimes of which he stands convicted."); People v. Brockington, No. 91-0321, slip op. at 8 (N.Y.Sup.Ct. Dec. 22, 2003) ("[I]t is defendant's contention that the Case Narrative proves that no robbery occurred. . . .")).
Therefore, the Second Circuit remanded the matter "to permit the district court to conduct the following sequential inquiry," 2010 WL 1740817, at **2:
(1) Did [Petitioner] pursue his actual innocence claim with reasonable diligence?
(2) If [he] did not pursue the claim with reasonable diligence, must an actual innocence claim be pursued with reasonable diligence in order to raise an issue of whether the United States Constitution requires an 'actual innocence' exception to the AEDPA statute of limitations?
(3) If [he] did pursue the claim with reasonable diligence or if reasonable diligence is unnecessary, does [he] make a credible claim of actual innocence?
(4) If [he] does make a credible claim of actual innocence, does the United States Constitution require an 'actual innoence' exception to the AEDPA statute of limitations on federal habeas petitions?
Id. (citing Whitley v. Senkowski, 317 F.3d at 225-26).
Courts in this Circuit determining whether a petitioner is entitled to equitable tolling based on a claim of actual innocence have found no need to address the first, second, and fourth factors of the above-described analysis if the petitioner fails to "make a credible claim of actual innocence." E.g., Bower v. Walsh, 703 F. Supp.2d 204 (E.D.N.Y. 2010) ("In light of this determination [that petitioner has not set forth a credible claim of actual innocence], the Court need not address the issue of whether reasonable diligence is required in order to pass through the actual innocence 'gateway.'")(citing Doe, 391 F.3d at 161)("In adherence to our repeated statements that we will decide whether equitable tolling is available on the basis of actual innocence only in a case in which the petitioner has made a credible claim of actual innocence, therefore, we do not reach Doe's arguments that various constitutional provisions require that AEDPA's limitations period be tolled for actual innocence.") (emphasis supplied); id. at 173-74; Whitley v. Senkowski, 317 F.3d at 225-26; Lucidore v. New York State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000)).
Given the Second Circuit's stated preference for refraining from deciding whether the Constitution requires an "actual innocence" exception to the statute of limitations unless a petitioner presents a credible claim of factual innocence, the Court confines its analysis to the third aspect of Whitley--that is, whether Petitioner's claim of actual innocence is credible. As discussed further below, Petitioner has clearly failed to make a "credible claim of actual innocence" under the pertinent standards articulated by ...