United States District Court, Middle District of Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
TERRY F. MOORER UNITED STATES MAGISTRATE JUDGE
On February 27, 2012,  proceeding pro se, Alabama inmate Ronald Andre Goodson (“Goodson”) filed this petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2006 robbery conviction in the Houston County Circuit Court and claiming errors in proceedings on a state petition for post-conviction relief (Ala.R.Crim.P. 32) he filed in 2008. See Doc. Nos. 1 & 2. On September 27, 2012, Goodson moved to amend his § 2254 petition to add claims of ineffective assistance of counsel at trial and on appeal and in the proceedings on his Rule 32 petition. Doc. No. 15. The respondents argue that Goodson’s § 2254 petition is time-barred by the one-year federal limitation period. See 28 U.S.C. § 2244(d). Doc. Nos. 12 & 17.
A. Actual Innocence as “Gateway” to Excuse Time Bar
Goodson asserts he is “actually innocent” of the crime of which he was convicted, which, if proved, would trump a time-bar and act as a gateway through which he can pass to have the claims in his § 2254 petition reviewed. See Rozzelle v. Secretary, Florida Dept. of Corrections, 672 F.3d 1000, 1011 (11th Cir. 2012). Doc. No. 1 at 15; Doc. No. 2 at 4-5; Doc. No. 14 at 2. This court will therefore determine whether Goodson has made a showing of actual innocence before addressing the respondents’ contention that his petition is time-barred by the statute of limitations. See Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1218 (11th Cir. 2000).
The interests this court must balance in creating an exception to the statute of limitations based on actual innocence are governed by the standard in Schlup v. Delo, 513 U.S. 298, 327-328 (1995). 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 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). “In 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.
In asserting his actual innocence, Goodson alludes to his trial counsel’s failure to call an alibi witness, a friend of Goodson’s, who, according to Goodson, would have testified that Goodson spent the night at her house (in a different room) on the night of the robbery and supposedly did not leave her house to commit Shell station robbery of which he was convicted. At a hearing on Goodson’s Rule 32 petition, his trial counsel testified he did not call this alibi witness at Goodson’s trial because he questioned whether a jury would find her credible and because she appeared unwilling to testify. Doc. No. 12-3 at 67-68, 73-74, 89-90. Counsel stated he discussed this decision with Goodson before trial. Id. at 91-92.
The alibi witness also testified at the Rule 32 hearing and claimed she had been willing to testify at trial that Goodson spent the night at her house on the night of the robbery. Doc. No. 12-3 at 36-37. She stated she and Goodson slept in different rooms. Id. at 39. She claimed that although she “went to bed early, ” while Goodson was still up, Goodson could not have left the house without her knowing because the doors of the house had inside locks and she had the keys. Id. at 35-36.
The record reflects that Goodson was aware at the time of trial of the alibi witness he offers as evidence of his actual innocence. Therefore, the evidence is not new. Nor does it appear that such evidence is highly reliable. Goodson’s trial counsel testified that a principal reason for his decision not to call this witness at Goodson’s trial was his concern that the jury would not find her credible. Although she was a friend of Goodson’s, the witness had also evidenced an unwillingness to testify, a consideration Goodson’s counsel weighed in assessing the value of presenting testimony from the witness. Thus, Goodson presents neither new nor reliable evidence to establish his innocence. See Schlup, 513 U.S. at 324.
Even had the alibi witness testified at trial to the matters alleged by Goodson, the jury could weigh and assess the credibility of such testimony against the substantial evidence of Goodson’s guilt presented by the State. In its memorandum opinion affirming Goodson’s conviction on ...