United States District Court, Middle District of Alabama, Southern Division
SUPPLEMENTAL RECOMMENDATION OF THE MAGISTRATE JUDGE
SUSAN RUSS WALKER, CHIEF UNITED STATES MAGISTRATE JUDGE
This court is in receipt of petitioner Jerry Hammond’s objections to the Recommendation of the Magistrate Judge entered on March 27, 2014. In his objections (Doc. No. 36), Hammond contends, among other things, that the Magistrate Judge failed to address his claim of actual innocence before determining that his petition for writ of habeas corpus under 28 U.S.C. § 2254 was time-barred pursuant to the one-year limitation period in 28 U.S.C. § 2244(d) and should therefore be dismissed without addressing the merits of the claims in his petition.
Hammond did not assert a claim of actual innocence in his § 2254 petition.However, a careful reading of Hammond’s March 6, 2013, response to this court’s order to show cause why his petition should not be dismissed as time-barred reveals that Hammond asserted in that response that he is actually innocent of the crime of which he was convicted. See Doc. No. 24 at 9-10. Hammond is correct in contending that this claim of actual innocence was not addressed in the Recommendation of the Magistrate Judge. See Doc. No. 33.
Because a petitioner’s actual innocence may create an exception to application of the statute of limitation in habeas corpus proceedings, this court shall therefore determine whether Hammond has made a showing of actual innocence. See Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1218 (11th Cir. 2000).
I. Actual Innocence Standard
The interests that this court must balance in creating an exception to the statute of limitations based on actual innocence are governed by the standard set forth in Schlup v. Delo, 513 U.S. 298, 327-28 (1995). In an effort to “balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case, ” Schlup, 513 U.S. at 324, the Court has recognized a miscarriage-of-justice exception to procedural default. “‘[I]n appropriate cases, ’ “the Court has said, “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.’” Murray v. Carrier, 477 U.S. 478, 495 (1986) (quoting Engle v. Isaac, 456 U.S. 107, 135 (1982)). In Schlup, the Court adopted a specific rule to implement this general principle. It held that prisoners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” 513 U.S. at 327.
“[T]he Schlup standard is demanding and permits review only in the ‘extraordinary’ case.” House v. Bell, 547 U.S. 518, 538 (2006). Thus, “[i]n the usual case the presumed guilt of a prisoner convicted in state court counsels against federal review of [untimely] claims.” Id. at 537. “It is important to note in this regard that ‘actual innocence’ means factual innocence, not mere legal insufficiency. See Sawyer v. Whitley, 505 U.S. 333, 339 (1992).” Bousley v. United States, 523 U.S. 614, 623-24 (1998); Doe v. Menefee, 391 F.3d 147, 162 (2nd Cir. 2004) (“As Schlup makes clear, the issue before [a federal district] court is not legal innocence but factual innocence.”).
As the Supreme Court in Schlup observes:
[A] substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare.... To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence – that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.
513 U.S. at 324.
A Houston County jury found Hammond guilty of murdering his uncle, James McNeil, during the commission of a robbery in the first degree.Sandra Jackson, Hammond’s co-defendant, testified for the State and maintained that she remained in a Volkswagen automobile while Hammond entered his uncle’s home carrying a knife. Jackson stated that she heard the sounds of a struggle and of glass breaking, and that, shortly thereafter, Hammond returned to the car still carrying the knife. According to Jackson, Hammond was also carrying a pair of blue pants that had what appeared to be wet blood on them. Jackson stated that, as Hammond drove, he removed his shirt and threw it out the car window. Jackson testified that Hammond went through the blue pants and retrieved a wallet from which he removed money. He then threw the wallet and pants out the car window, according to Jackson.
In asserting his actual innocence, Hammond states as follows:
23. Finally, Hammond argues that he is actual[ly] innocent of the crime upon which he stands convicted. Specifically, Hammond avers that there is new reliable Scientific Evidence that establishes that it is more likely than not that no reasonable juror would have ...