Petition for Writ of Certiorari — Burton v. Fairman

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Supreme Court, U.S.

FILED

¥11010 DEC 2 8 200)

No. 01-_ OP FACE OF THE Ciutat

In The

Supreme Court of the United States

ANTHONY BURTON,

Petitioner,

J.W. FAIRMAN, Warden,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

o¢—

PETITION FOR A WRIT OF CERTIORARI

CHARLES D. WEISSELBERG

ELIZABETH SEMEL

CENTER FOR CLINICAL

EDUCATION

UNIVERSITY OF CALIFORNIA

ScHOOL OF Law (BOALT

HALL)

Berkeley, CA 97420-7200

Telephone: 510-643-8159

Facsimile: 510-642-3856

Attorneys for Petitioner

GeorceE A. CUMMING, JR.

Counsel of Record

Kirstin E. Wo LF

DAWN CEIZLER

BrRosECK, PHLEGER &

Harrison LLP

One Market, Spear Tower

San Francisco, CA 94105

Telephone: 415-442-1198

Facsimile: 415-442-1910

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

SPEC

QUESTIONS PRESENTED

1. When a federal habeas petitioner seeks equitable

tolling of the one-year limitations period of the Antiter-

rorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. §2244(d)(1), should the district

court apply a conclusory “extraordinary circumstances”

standard, such as adopted by the Ninth and some other

Circuits, or should the lower court apply the factual

analysis required by the Sixth Circuit?

2. Does a habeas corpus petitioner discover the

“factual predicate” of his claims, which commences the

running of the AEDPA limitations period under Section

2244(d)(1)(D), when he receives “notice” of some facts,

where those facts will not support a good faith petition

under the pleading and evidentiary standards for collat-

eral relief in the state court?

3. In holding that the petitioner failed to make a

gateway showing of actual innocence under Schlup v.

Delo, 513 U.S. 298 (1995), did the appellate court err by

(a) summarily rejecting compelling new evidence from

the State’s key witness without a hearing of any kind, and

(b) applying a “sufficiency of the evidence” test to the

remaining evidence, rather than the standard required by

Schlup?

TABLE OF CONTENTS

Page

COSESTIOING PRICE GOD ccc sesccvccsctesoassvcves i

Het 8 tk rrr errr rr rire rrr rrr errr ory. 1

pe es 8 er rr err rr re 1

STATUTORY PROVISION INVOLVED................ 1

STATEMENT OF THE CASE..............-seeeeeeeee 2

Pan GRO oon oidinc cccdcccvevisescccaserverssees 2

B. The Evidence at Trial in 1982.................. 4

C. Ronald Washington Confesses in 1995 ......... 5

D. 1996: Ronald Confesses Again, and Provides a

Handwriting Sample that Leads to the Authen-

tication of Fils. 1995 LAG? s...cscccsccvonenssss 7

E. Mr. Burton’s Efforts to Secure Collateral Relief.... 9

REASONS FOR GRANTING THE PETITION ....... 11

A. The Court Should Resolve Circuit Disagreement

on the Standards for “Equitable Tolling” of the

AEDPA Limitations Period, and Clarify the Cir-

cumstances Under Which Equitable Tolling is

WIN osc cc i'd x cece 11

1. The Conflict and its Importance............ 11

2. The Need for Resolution and Guidance.... 15

B. The Court Should Clarify that the Limitations

Period Begins to Run when a Reasonably Dili-

gent Petitioner Can File a Non-Frivolous State

Femvens FOGMOR: «sis ecdenedsd oes 18

ill

TABLE OF CONTENTS - Continued

Page

C. The Court Should Grant Review or Summarily

Reverse Because the Court of Appeals’ Summary

Disposition Conflicts with Schlup v. Delo....... 23

1. The Court of Appeals Erred in Not Remand-

ing for a Credibility Determination......... 24

2. Alternatively, the Court of Appeals Inap-

propriately Applied the Jackson v. Virginia

Standard in Rejecting the New Evidence... 26

ER 29

TABLE OF AUTHORITIES

Page

CASES

Allen v. Lewis, 255 F.3d 798 (9th Cir. 2001) .......... 17

Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988)......... 12

Baja v. Ducharme, 187 F.3d 1075 (9th Cir. 1999) ...... 21

Baskin v. United States, 998 F.Supp. 188 (D. Conn.

6 bei dCs RAT kL KREME na 14

Bousley v. United States, 523 U.S. 614 (1998) ......... 24

Calderon v. United States District Court (Beeler), 128

F.3d 1283 (9th Cir. 1997), overruled in part on other

grounds, Calderon v. United States District Court

(Kelly), 163 F.3d 530 (9th Cir. 1998)....... 11, 12, 13, 14

Davis v. Johnson, 158 F.3d 806 (5th Cir. 1998)..... 11, 12

Duncan v. Walker,-533 U.S. 167, 121 S.Ct. 2120

Sas sce kv ans eenees tind saad area tou 11, 19, 20

Dunlap v. United States, 250 F.3d 1001 (6th Cir.

RNa vcd ukasuaad eccaaivees cons bee eens 12, 13, 15

Easterwood v. Champion, 213 F.3d 1321 (10th Cir.

POT Tey Pee Pr re may: Pe mne ane Pree 15

Erwin v. Elo, 130 F.Supp.2d 887 (E.D. Mich. 2001) .... 13

Felder v. Johnson, 204 F.3d 168 (5th Cir. 2000)........ 15

Flanagan v. Johnson, 154 F.3d 196 (Sth Cir. 1998)..... 21

Frye v. Hickman, __ F.3d ___, 2001 U.S. App. Lexis

Berek CO. Ge FP A bbe Wihd ee dkercan eden lees 14

Gibson v. Klinger, 232 F.3d 799 (10th Cir. 2000) ...... 12

Glass v. Vaughn, 65 F.3d 13 (3d Cir. 1995) ........... 25

oe eS:

TABLE OF AUTHORITIES - Continued

Page

Harris v. Hutchinson, 209 F.3d 325 (4th Cir.

ry rr rere en er errr 11, 12, 14

Hasan v. Galaza, 254 F.3d 1150 (9th Cir. 2001)..... 21, 22

Jackson v. Virginia, 443 U.S. 307 (1979)............ 27, 28

Jihad v. Hvass, 267 F.3d 803 (8th Cir. 2001) .......... 11

Johnson v. McCaughtry, 265 F.3d 559 (7th Cir. 2001) .... 12

Kyles v. Whitley, 514 US. 419 (1995).............006. 23

McCoy v. Norris, 125 F.3d 1186 (8th Cir. 1997)....... 25

Miller v. Marr, 141 F.3d 976 (10th Cir. 1998)...... 11, 12

Miller v. New Jersey State Dept. of Corrections, 145

Pus: We Ge a I bob's vedoedebeebecsceesecs 11

Mooney v. Holohan, 294 U.S. 103 (1935) .............. 23

Murray v. Carrier, 477 U.S. 478 (1986) ............ 26, 27

O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996)

(en banc), aff'd on other grounds, 521 U.S. 151

Cs Kid au boca een ee ere ceded eee 25

People v. Duvall, 9 Cal. 4th 464, 37 Cal. Rptr. 2d 259

CE cnc cows en senda h dete ees as enhendees nes 7, 21

People v. Martinez, 36 Cal. 3d 816, 205 Cal. Rptr.

Se Es ev 0k 5 ee ees pekeres ees 7, 21

Sandvik v. United States, 177 F.3d 1269 (11th Cir.

NK bana aheeans aka Fa ea cae Peay on hae 12

Schlup v. Delo, 513 U.S. 298 (1995) ......... 3, 11, 23-29

Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000)........ 12

Stead v. Head, 219 F.3d 1298 (11th Cir. 2000)......... 14

TABLE OF AUTHORITIES - Continued

Page

Taliani v. Chrans, 189 F.3d 597 (7th Cir. 1999)........ 14

United States ex rel. Bell v. Pierson, 267 F.3d 544 (7th

i elke ee che ee eee ee CR een eeeteks c4ee% 25

United States v. Agurs, 427 U.S. 97 (1976)............ 23

United States v. Griffin, 58 FSupp.2d 863 (N.D. Il.

EE ao ecg ekene ks abe 6b SERS EUSO ES OSSSE07 13

DE RUSS T Eb Pine badeaeunseébeeesntcedisesense es 13

Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) .... 15

Wilkerson v. Cain, 233 F.3d 886 (5th Cir. 2000) ....25, 28

Williams v. Taylor, 529 U.S. 420 (2000)............... 19

Statutes & RUuLEs

Antiterrorism and Effective Death Penalty Act of

1996, 110 Stat. 1214, 28 U.S.C. §2244(d)(1)..... passim

28 United States Code

NN foc wsicnuyeeueneevpedtsnessussnedens 1

§2244(d)(1)(D) .....0.ceceececececeeceeeeeeee 3, 18-22

RNS hE Se os eal a 1

ERE el ee ee 1, 20, 22

i hee. oo hrc tieedecthince Pen 24

California Rules of Court

Nn a a oh ak edie hn ait si uewaw an 16

Vii

TABLE OF AUTHORITIES - Continued

Page

ey RG nbs leer dds beeen ed enewaens 17, 20

eS ee SS. RR rr ee porn rs 19

Local Rule 26.1, United States District Court for

the Central District of California.................. 10

OTHER AUTHORITIES

AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LAN-

SAE Ge Ge Bi on cawntbetiweesndsescedes seuss 19

Wesster’s TH1rRD New Int’t DictTIONArRy, UNABRIDGED

PE cuicdehevaseuracaesinekevistldueccaenttecin 19

OPINIONS BELOW

The opinion of the court wf appeals (App., infra, 1a-3a)

is not reported. The final order of the district court (App.,

4a), and the final report and recommendation of its mag-

istrate judge, adopted by the district court (App., 5a-12a),

are not reported.

JURISDICTION

The district court had jurisdiction of petitioner’s

habeas corpus petition under 28 U.S.C. §2254; its final

judgment was entered November 2, 1998. App., 4a. The

court of appeals issued a timely Certificate of Appeal-

ability (App., 13a-16a), and thus had jurisdiction under 28

U.S.C. §2253(c)(1). Its judgment was entered August 15,

2001 (App., 1a), and a timely petition for rehearing was

denied October 2, 2001 (App., 17a). This petition for a writ

of certiorari therefore is due on or before January 2, 2002.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. §2244(d), as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), is

printed at App., infra, 18a-21a.

STATEMENT OF THE CASE

A. Summary

Petitioner Anthony Burton was convicted of murder

in the 1981 death of one Fred Wright. The decedent was

accosted by three persons at the end of an alley in

Pomona, California, where he was shot by at least two of

them. The State’s chief trial witness was Ronald Washing-

ton, a “scaird” thirteen-year-old boy who admitted that

he was one of the three assailants. Granted immunity by

the State, Ronald denied that he was armed, and claimed

instead that Mr. Burton was one of the two shooters. The

State also immunized Ronald’s brother, sixteen-year-old

Derek Washington, who likewise exculpated himself and

implicated Mr. Burton. The prosecutor therefore urged

the jury to convict Mr. Burton because of “the direct

evidence, the eyewitness testimony of Ronald Washington and

Derek Washington that they actually saw the guns fired.” (ER

448).}

Thirteen years after the trial, Ronald voluntarily

came forward, and twice confessed that his trial testi-

mony was false, that Mr. Burton was actually innocent of

Wright’s ,murder, and that he perjured himself at trial

because, in Ronald’s own words, “D.A. Solomon said if I

put him Anthony Burton at the seen, he would drop charges on

me.” (ER 117). Ronald made his first confession in a letter

he wrote Mr. Burton and mailed to petitioner’s wife in

1995 (ER 109). Ronald then confessed again when he was

1 “ER” references are to the excerpts of record below. All

emphasis in materials quoted in this Petition has been added.

interviewed by a criminal investigator in 1996 (ER

114-17).

After marshaling the evidence of Mr. Burton’s actual

innocence and prosecutorial misconduct at trial, his vol-

unteer lawyer filed a fully developed .abeas petition

with the Supreme Court of California (ER 158). The court

denied it without comment on January 14, 1998. (ER 179).

Mr. Burton, however, did not learn of the denial for over

two months. When his lawyer finally told him what had

happened, he also told Mr. Burton that he could not assist

him in pursuing federal habeas relief (ER 8). With his

wife’s help, Mr. Burton filed a pro se petition (his first) in

the district court on May 19, 1998 (ER 1).

The district court dismissed the petition on pro-

cedural grounds, holding that it was filed about two

months late under the one-year limitations proviso of the

AEDPA, 28 U.S.C. §2244(d)(1), and that there was no

basis for equitable tolling. App., 4a-12a. The district court

completely ignored the question whether, under Schlup v.

Delo, 513 U.S. 298 (1995) (“Schlup”), the evidence of peti-

tioner’s innocence provided a “gateway” to the plenary

consideration of his constitutional claims.

The court of appeals granted Certificates of Appeal-

ability as to equitable and statutory tolling, and on the

Schlup issues that the district court had ignored. (App.,

13a-16a). The panel that then heard the case affirmed the

dismissal, holding that (1) equitable tolling is reserved for

unexplained “extraordinary circumstances;” (2) petitioner

discovered the “factual predicate of his claims” (28 U.S.C.

§2244(d)(1)(D)), when his wife received Ronald’s letter of

confession in 1995, rather than when petitioner obtained

admissible evidence of it in 1996; and (3) Ronald’s letter

“is not sufficient proof of Burton’s innocence, given

Derek Washington’s similar testimony, inculpating Bur-

ton at trial.” App., 2a-3a. ;

B. The Evidence at Trial in 1982

The Pomona police arrested four suspects in the mur-

der of Wright. Two were adults — one Anthony Sneed and

petitioner Burton — and the other two were the juvenile

Washington brothers. It became clear, however, that only

three of the four were complicit, for all the witnesses

testified that one of the four broke off from the others,

and remained “up the alley” when Wright was shot at the

alley’s mouth. That fourth person was objectively inno-

cent within the meaning of Schlup, and had all four been

tried together, one would have been exonerated.

But the jury was not permitted to see the truth in this

light. The State tried only the two adults, Sneed and_ Mr.

Burton, and granted immunity to the Washington

brothers. The evidence at trial established that Sneed was

one of the shooters. There was also considerable evidence

that one or both Washington brothers also shot the dece-

dent, and that Mr. Burton did not. Ronald Washington ~

admitted he wore a distinctively orange-colored jacket

(ER 321), and prosecution eyewitness Hal Spring testified

that he saw the assailant wearing this jacket fleeing the

murder scene with a gun in his hand. (ER 242, 251-52).

Indeed, as Ronald confessed many years later: “Cause in

the alley, I was their. Howl Spring seen me their at the seen.

When all this took place, Anthony Burton was up the

alley ...” (ER 109). Another prosecution eyewitness,

Leon Moore, corroborated Spring’s account, testifying

that Ronald was “holding something” at the time of

Wright’s murder. (ER 281-83). Defense eyewitness Quin-

ola Arnold testified that Mr. Burton was “up the alley”

speaking with her at the very moment the gunfire

erupted at the alley’s mouth. (ER 401-08). And Derek

Washington for his part had an argument with the dece-

dent at a party just hours before the shooting. (ER 394).

The State sought to overcome this evidence by offer-

ing immunity to the two juveniles. Ronald and Derek

Washington each then testified that Mr. Burton was at the

mouth of the alley and was the second shooter, and that

Derek was the innocent fourth suspect “up the alley”

when the murder occurred. (ER 309-13; 362-66). Mr. Bur-

ton is now serving a life sentence for a murder because of

— again to use the prosecutor’s words to the jury — “the

eyeitness testimony of Ronald Washington and Derek Wash-

ington that they actually saw the guns fired.” (ER 448).

C. Ronald Washington Confesses in 1995

Thirteen years after the trial, Ronald Washington

twice confessed that the facts were quite different than he

and his brother portrayed them at the trial. Ronald made

his first confession in a letter that he wrote to petitioner,

and mailed to him in care of his wife, Robin Burton. It

states:

“I am writing to let you know, I know it has

been along time ago, in [and] you know I was

scaird even though Mr. Solomon told me he

didn’t wont me he wanted the both of you.

Cause you was older. That why I put you at the

seen. If I can I would like to clean it up now if I

can.

“I know it has been a long time in I should have

been did this cause I do allway think about you,

cause I wish thing[s] could have been different.

So now I am coming forward. I wish I can

change something. I no I can’t change the pass.

But I can do right by it now.

“Cause in the alley I was their. Howl Spring

seen me their at the seen. When all this took

place Anthony Burton was up the alley cause he

really didn’t no his way around. I most definely

no Anthony Burton didn’t do it. /s/ Ronald

Washington.” (ER 109).

After receiving this letter, Robin Burton asked a state

judge how she could use it to clear her husband. The

judge replied that she should “seek counsel and have

counsel begin an investigation” to determine “if it would

be appropriate to seek some relief either in a trial court or

at the appellate level,” because “a judge would simply

not have the jurisdiction to act on your request without

the assistance of attorneys.” (ER 180).

This was good advice, for the State has consistently

argued that Ronald’s 1995 letter was unauthenticated,

inadmissible and incompetent - labeling it “an undated,

unaddressed, unsworn, almost unintelligible letter, pur-

portedly written by Ronald” - that would not entitle

petitioner to any relief, or even an evidentiary hearing,

under the strict pleading standards to which the Califor-

nia courts subject collateral relief petitioners.?

D. 1996: Ronald Confesses Again, and Provides a

Handwriting Sample that Leads to the Authentica-

tion of His 1995 Letter

After a long search, petitioner’s wife found an attor-

ney, James Farley, willing to assist her husband on a pro

bono basis. Farley reviewed the police reports and the

evidence and transcript of the trial, and enlisted the aid

of two volunteer experts, a criminal investigator and a

handwriting examiner. (ER 161). The investigator, Wil-

liam Kurta, located Ronald at a state prison, and inter-

viewed him there on May 22, 1996. Ronald immediately

asked him, “there’s no statute of limitations on murder, is

there?,” to which Mr. Kurta truthfully replied that there

was not. (ER 115). Ronald therefore knew that the state-

ments he had made in his letter, and those he was about

to make to the investigator, were against his penal inter-

est. Nevertheless, with nothing to gain and much to lose,

Ronald confessed again, as Kurta recorded in his memo

of the same day:

2 See the State’s “Informal Response” in the Supreme Court

of California, ER 172-78 (citing People v. Duvall, 9 Cal. 4th 464,

474, 37 Cal. Rptr. 2d 259 (1995) and People v. Martinez, 36 Cal. 3d

816, 821-22, 205 Cal. Rptr. 852 (1984)).

The State used the same words - “an undated, unaddressed,

unsworn, almost unintelligible letter, purportedly written by

Ronald” — in assailing Ronald’s confession in the court of

appeals below (Appellees’ Brief, pp. 36, 40).

e “[Ronald] Washington said that at the time of

the shooting, Burton was at the top of the

alley with Washington’s brother, Derrick

Ross. He stated that earlier they had gone to

a party and that Burton got into it with some

guys and they had charged at Burton, which

is when Washington gave Burton the gun to

defend himself with. When they split from

the party, Burton gave Washington the gun

back in the car on the way back to his

mother’s house.” (ER 115-16).

e “While they were kicking back at his

mother’s house, they saw Berty, aka ‘Twirp,’

Fred [Wright] the guy that got killed, and

‘Bobo,’ a girl, pass by. When they ran

through the back yard, Derrick and Anthony

Burton, stopped in the middle of the alley.

Washington said that he had a gun and that

Anthony Sneed had a .22 cal rifle, and they

both ran down the alley and that is when ‘the

shit happened.’ Washington said that the wit-

ness Hal Springs then saw Washington and

Leon in his back yard.” Id.

e “Washington said that the D.A. told him that

if he put Burton at the scene, he would drop

charges against him, which he subsequently

did. . . . He said he was 12 or 13 years old at

the time, and didn’t want to go to jail.” Id.

The investigator then noted “throughout the inter-

view, it was obvious that the way Washington was telling

it, he was the actual shooter but is not going to say so as

he believes he would then be charged with the murder.”

(ER 116). He therefore asked Ronald for a handwriting

sample, and in Mr. Kurta’s presence, Ronald wrote and

signed this statement:

“5-22-96

“D.A. Solomon said if I put him Anthony Burton

at the seen he would drop charges on me. /s/

Ronald Washington.” (ER 117).

Richard Fox, the pro bono handwriting expert, then

compared the 1995 letter to this sample, and to other

known samples of Ronald’s handwriting. In a report

dated November 19, 1996, Mr. Fox concluded that the

person who executed the 1995 letter was Ronald Wash-

ington. (ER. 118-20, and Exhs. 2-5 thereto).

The documents reveal Ronald’s perjury; he told the

jury that petitioner Burton shot Fred Wright when in fact

Mr. Burton “was up the alley” just as Quinola Arnold

testified at trial. He told the jury that he did not have a

gun, when in fact he ran down the alley with a gun when

“the shit happened,” just as Hal Spring testified at trial.

And Ronald told the jury that he “didn’t know” about a

conversation with the prosecutor, when in fact the pros-

ecutor told him he would “drop charges” if “I put

Anthony Burton at the seen” of Wright’s murder.

E. Mr. Burton’s Efforts to Secure Collateral Relief

After obtaining this reliable and admissible evidence

of Mr. Burton’s innocence and Ronald’s State-induced

perjury, attorney Farley filed a comprehensive habeas

petition in the Supreme Court of California on March 21,

1997. (ER 158). It was denied without comment on Janu-

ary 14, 1998 (ER 179), but neither the court nor the State’s

Attorney General notified Mr. Burton, presumably

because he was represented by volunteer counsel. Attor-

ney Farley, however, did not inform Mr. Burton of the

denial for over two months, and Mr. Burton thus did not

learn of the ruling until March 21, 1998. At this point Mr.

Farley said that he “could not represent [Burton] on the

federal level as he is not familiar with federal procedure

and due to his trial case load.” (ER. 8). Counsel’s unfamil-

iarity with federal procedure also undoubtedly explains

why he did not tell Mr. Burton of the time remaining

under the AEDPA’s one-year limitations period.

Mr. Burton was left to proceed on his own. On March

22, the very next day after he learned of the state court’s

denial, he asked the prison librarian for the habeas

corpus petition form that the district court requires peti-

tioners to use,? and for standard reference books on fed-

eral habeas practice. But the prison library was not even

open for business until June 1998, several months later.

“Paging services” were available when Mr. Burton

needed help in March, yet - as prison staff were eventu-

ally forced to acknowledge - the books he requested

“were not and still are not available.”* The prison never

provided the mandatory habeas corpus forms, and peti-

tioner’s wife eventually had to drive to the district court

in Los Angeles to obtain them. (ER 50). With the assis-

tance of his wife, Mr. Burton prepared and filed a pro se

petition (his first) in the district court on May 19, 1998.

(ER 1).

3 See Local Rule 26.1 (C.D. Cal.) (“A petition for a writ of

habeas corpus . . . shall be submitted on the forms approved and

supplied by the Court.”)

4 See Memorandum of Corcoran Prison Litigation Assistant

Tamara Cowell to Deputy Att’y Gen’l Wm. Davis, Jr., dated

October 8, 1998 (district court docket Item No. 23, Dec. Davis,

Jr., cited at App., 9a, n. 1).

Without considering Schlup at all, the district court

denied the petition as untimely under the AEDPA. (App.,

4a-12a). The court of appeals affirmed, holding that equi-

table tolling was not available, that petitioner discovered

the “factual predicate” of his claims when his wife

received Ronald’s initial letter in 1995, and that Ronald’s

letter was not “sufficient proof” of Mr. Burton’s inno-

cence, given the testimony at trial by his brother, Derek

Washington. App., 2a-3a.

REASONS FOR GRANTING THE PETITION

A. The Court Should Resolve Circuit Disagreement on

the Standards for “Equitable Tolling” of the

AEDPA Limitations Period, and Clarify the Circum-

stances Under Which Equitable Tolling is Available

1. The Conflict and its Importance

Although the State urged otherwise below, the courts

of appeals are generally agreed that AEDPA’s one-year

limitations proviso is subject to equitable tolling.> The

lower courts do not, however, agree at all as to the

circumstances in which equitable tolling is, or may be,

5 See, e.g., Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001);

Harris v. Hutchinson, 209 F.3d 325, 328-30 (4th Cir. 2000); Calderon

v. United States District,Court (Beeler), 128 F.3d 1283, 1288-89 (9th

Cir. 1997), overruled in part on other grounds, Calderon v. United

States District Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en

banc); Davis v. Johnson, 158 F.3d 806, 810 (Sth Cir. 1998); Miller v.

New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d Cir.

1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). ,

Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2129-31 (2001)

(concurring opinions of Justices Souter and Stevens).

available. A number of the circuits have held that tolling

is only available in “rare,” “exceptional,” or “extraordin-

ary” circumstances,® and the court below adhered to that

view as well. App., 2a-3a.

But these catch-phrases have little meaning, and pro-

vide no real guidance to the district courts that must

apply them to the realities of the facts at hand. The Sixth

Circuit, in contrast, employs a more nuanced approach

_ that gives district courts something meaningful and tang-

ible to consider. In Dunlap v. United States, 250 F.3d 1001

(6th Cir. 2001), the circuit directed its district courts to

consider five factors: (1) the petitioner’s lack of actual

notice of the filing requirement; (2) the petitioner’s lack

of constructive knowledge of the filing requirement; (3)

diligence in pursuing one’s rights; (4) absence of preju-

dice to the State; and (5) the petitioner’s reasonableness

in remaining ignorant of the legal requirement for filing

his claim. (Id., 250 F.3d at 1008, citing a pre-AEDPA

decision, Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988)).

Recognizing that other circuits apply a “rare or excep-

tional” or “extraordinary” circumstances standard, the

Sixth Circuit. nevertheless stated:

6 See Johnson v. McCaughtry, 265 F.3d 559 (7th Cir. 2001)

(“extraordinary circumstances”); Harris v. Hutchinson, 209 F.3d

325, 329-30 (4th Cir. 2000) (same); Smith v. McGinnis, 208 F.3d 13,

17 (2d Cir. 2000) (same); Sandvik v. United States, 177 F.3d 1269,

1271 (11th Cir. 1999) (same); Miller v. Marr, 145 F.3d 616, 618 (3d

Cir. 1998) (same); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.

2000) (“in rare and exceptional circumstances”); Davis v.

Johnson, 158 F.3d 806, 811 (Sth Cir. 1998) (same); Calderon v.

United States District Court (Beeler), 128 F.3d at 1288-89

(“extraordinary circumstances beyond a prisoner’s control”).

“While we value continuity in standards with

our sister circuits, we think it more important to

be consistent within our own Circuit as to the

standards we are to apply. We therefore hold

that hereafter equitable tolling shall only be

appropriate, in habeas and all other cases, after

a court has properly considered and balanced

the factors set out in Andrews v. Orr unless there

is congressional authority to the contrary.”

(Dunlap, 250 F.3d at 1009.)

The Court should resolve this conflict, particularly

because the catch-phrases employed by circuits other

than the Sixth simply generate confusion in the district

courts. Here, Mr. Burton’s volunteer lawyer failed to

advise him for over two months that the California court

had denied his habeas petition, and then resigned with-

out advising petitioner that the AEDPA limitations period

had resumed running. Once Mr. Burton learned of the

denial, he immediately sought help in the prison law

library, only to learn that the library had no habeas

corpus forms, and could offer little assistance. These

same circumstances have provoked quite different results

in the lower courts.

A number of courts have held that an attorney's

abandonment of a client or failure to advise the client

about a court decision may constitute grounds for equita-

ble tolling. See, e.g., Calderon v. District Court (Beeler), 128

F.3d at 1289 (equitable tolling where appointed capital

habeas counsel resigned); Erwin v. Elo, 130 F.Supp.2d 887,

890 (E.D. Mich. 2001) (equitable tolling where petitioner’s

counsel never notified him of state court ruling); Vasquez

v. Greiner, 68 F.Supp.2d 307 (S.D.N.Y. 1999) (ordering a

hearing to determine whether petitioner’s counsel failed

to notify client of decision); United States v. Griffin, 58

F.Supp.2d 863, 870 (N.D. Ill. 1999) (ordering a hearing to

determine if attorney failed to file an appeal after being

instructed to do so); Baskin v. United States, 998 F.Supp.

188, 189-90 (D. Conn. 1998) (equitable tolling where coun-

sel failed to notify petitioner that certiorari had been

denied).

On the other hand, some courts take the view that, no

matter the facts, “extraordinary” or its synonyms trump

all. See, e.g., Frye v. Hickman, __ F.3d __, 2001 U.S. App.

Lexis 25914 (9th Cir. 2001) (as amended) (attorney’s mis-

calculation of time period is not an extraordinary circum-

stance); Stead v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000)

(same); Harris v. Hutchinson, 209 F.3d at 330-31 (same);

Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir. 1999) (same).

There may be stronger reasons to permit tolling where a

lawyer fails to advise about a ruling that a client cannot

discover through other means, rather than when a lawyer

misinterprets a statute, but surely clients ought to be able

to rely upon their attorneys in both sets of circumstances.

Regrettably, the cases do not generally discuss why the

different outcomes may be justified, and so they promote

arbitrary decisionmaking.”

The same conflict and arbitrariness attend cases that

address whether severe problems in prison libraries may

support tolling. At least two circuits have recognized that

inadequacies in a prison law library may be grounds for

7 Frye may purport to confine Beeler to its facts; counsel in

Beeler was appointed by statute. See Frye, 2001 U.S. App. Leus

25914, at *4. Nevertheless, a client ought to be justified in

relying upon an attorney, whether appointed or pro bono, and it

is difficult to understand why the fact of appointment should

make one case suitable for equitable tolling and the other not.

equitable tolling. See Whalem/Hunt v. Early, 233 F.3d 1146

(9th Cir. 2000) (en banc) (failure to provide copy of

AEDPA may support tolling); Easterwood v. Champion, 213

F.3d 1321 (10th Cir. 2000) (lack of library access to an

appellate case may support tolling). The Fifth Circuit

disagrees. In its view, ignorance of the law — even when

occasioned by the prison’s failure to provide a copy of the

AEDPA to the petitioner - is insufficient to warrant toll-

ing. Felder v. Johnson, 204 F.3d 168, 171-74 (5th Cir. 2000).

2. The Need for Resolution and Guidance

The standard for equitable tolling matters, and a

meaningful standard matters most. An undifferentiated

conclusory standard for tolling, such as “extraordinary

circumstances,” leads to decision by whim. On the same

essential facts, some courts will reject petitions, while

others will accept them. The current state of confusion

also provokes unnecessary litigation because petitioners

do not know what reasons will permit a late filing. This

Court should grant review, determine the appropriate

standard for tolling, and provide clear guidance to the

lower courts.

This case shows why the standard is important, and

it affords an appropriate opportunity to clarify the law

for the lower courts. Had Mr. Burton’s petition been filed

within the Sixth Circuit, it is likely that equitable tolling

would have been granted under the Dunlap approach, for

these reasons:

e Mr. Burton lacked actual and cor«tructive

notice, because for 66 days, he was jnorant

of the state court’s denial. Mr. Burton reason-

ably depended on his attorney for informa-

tion about his case and a person with a life

sentence ought not lose the opportunity to

file a first federal petition because he was

abandoned by his lawyer.®

e Mr. Burton exercised due diligence in pursu-

ing his rights. His wife sought legal advice

and representation right after she received

Ronald’s original letter. The volunteer attor-

ney and his experts appropriately estab-

lished Ronald’s authorship of the letter and

its credibility, and all the new evidence was

submitted to the state court in a petition

faithful to the exhaustion and factual devel-

opment obligations of federal-state comity.

e The very day after Mr. Burton learned of the

state court denial, he asked the prison for

habeas forms and books on habeas practice.

See ante, p. 10.

e There was no prejudice to the State. All the

evidence and arguments that petitioner later

presented in federal court were also present-

ed to the California court, and so the State

was not put in the position of defending new

claims or evidence in federal court. Indeed,

the magistrate judge below argued that Mr.

Burton did not “need” the prison library,

because his federal petition presented “the

8 States wishing to assure that the AEDPA “clock” resumes

running instanter can easily mail notice of state court’s denial to

the prisoner, whose whereabouts are certainly no secret. Cf,,

CauiForniA Rutes or Court Rule 2(a)(2) (180-day period for filing

notice of appeal shortened to 60 days whenever the adverse

party serves notice of entry of judgment “upon the party filing

the notice of appeal.”)

same claims petitioner raised before the

California Supreme Court,” (Apr., 9a),

thereby demonstrating lack of prejudice to

the State.?

e Mr. Burton was reasonable in finding an

attorney and in depending upon the attor-

ney’s expertise. Mr. Burton had been in regu-

lar contact with his lawyer and had no

reason to suspect that counsel would fail to

tell him of the state court’s ruling. Thus, it

would not be fair to impute to Mr. Burton

knowledge acquired by his attorney but not

communicated to him. Indeed, a holding that

prisoners cannot rely upon their attorneys

for information would prompt daily collect

phone calls to state courts, an outcome that

this Court ought not promote.

At the end of the day, however, none of this — not

even the evidence of petitioner’s innocence — mattered in

the court below. The court simply repeated the “extraor-

dinary circumstances” palliative and, strangely, cited a

decision that would seemingly support equitable tolling.

App., 3a.!° Because the equitable tolling standard in the

9 Although the “relation back” provision of Feb. R. Cu. P.

15(c) may not apply — at least not technically - to a federal

petition whose core, as here, is the previously-filed state

petition, the Rule nevertheless reflects the well-settled principle

that an adversary is never prejudiced when a later pleading

presents claims that “arose out of the conduct, transaction or

“occurrence set forth, or attempted to be set forth” in the earlier

pleading.

10 The panel cited Allen v. Lewis, 255 F.3d 798 (9th Cir. 2001)

for the proposition that it will normally be more difficult to

prevail “where [the Petitioner] encounters the ‘extraordinary

circumstances’ in the beginning or middle of the limitations

Ninth Circuit is merely the conclusory “I know it when I

see it” test, the panel was not obliged to weigh or indeed

even mention any of the compelling facts in his case.

Neither was the panel required to address the various

decisions holding that an attorney’s abandonment of his

client or failure to notify a client of court rulings may

support tolling. The palliative simply displaced reasoned

analysis.

The difference among circuits is important to resolve

and the lower courts need guidance. Review should

therefore be granted particularly where, as here, there is

strong evidence of actual innocence.

B. The Court Should Clarify that the Limitations

Period Begins to Run when a Reasonably Dili-

gent Petitioner Can File a-Non-Frivolous State

Habeas Petition.

AEDPA provides that the one-year period of limita-

tions does not begin to run “until the date on which the

factual predicate of the claim or claims presented could

have been discovered in the exercise of due diligence.” 28

U.S.C. §2244(d)(1)(D). In this case, both the lower courts

held that petitioner “discovered” the factual predicate

of his claims when Ronald’s recantation letter was

received by petitioner’s wife in 1995, not when

Ronald was interviewed or his letter authenticated in

period rather than where he encounters them at the end of the

limitations period.” App., 2a-3a. But Mr. Burton was not timely

advised that his state habeas corpus petition had been denied

and, once he learned, he encountered enormous obstacles at the

prison. This occurred at the very end of the limitations period,

not “at the beginning” or even “in the middle.”

1996. (See App., 2a; 1la, n. 5). When the letter was

received, Mr. Burton was on notice that he had facts to

investigate, and that he needed to muster competent,

admissible evidence of those facts, all of which he did

through the considerable and diligent efforts of the law-

yer and the experts who came to his aid. Ante, pp. 6-9.

But respectfully, until they did so, petitioner did not have

the “factual predicate” for his claims. This Court should

clarify the meaning of “factual predicate,” for a holding

that equates mere “notice” with “factual predicate” is

contrary to the plain meaning of the statute and defeats

the larger purposes of the AEDPA statute. Rather, “fac-

tual predicate” must mean sufficient credible facts to

permit the filing of a habeas corpus petition under state

pleading rules and the comity to which those rules are

entitled under the AEDPA’s exhaustion and factual devel-

opment branches.

One must “begin, as always, with the language of the

statute.” Duncan v. Walker, 121 S.Ct. at 2124. The phrase

that Congress selected was “factual predicate,” not

“notice of possible facts,” or information “reasonably cal-

culated to lead to the discovery of admissible evidence,”

to borrow the familiar phrase of Fev. R. Crv. P. 26(b)(1). To

“predicate” ordinarily means to “found,” “base” or

“establish,” indicating that the limitations period begins

to run when a petitioner has uncovered the essential

foundation of the legal claim.

Moreover, the statutory phrase must be read in light

of the overall statute and its purposes. In Williams v.

11 See Wesster’s THIRD New Int’t Dicrionary, UNABRIDGED, at

1786 (1993); AmericAN Heritace DicTIONARY OF THE ENGLISH

LANGuAGE, at 1426 (3d ed. 1996).

Taylor, 529 U.S. 420, 434 (2000), the Court interpreted one

part of the AEDPA, §2254(e)(2), “to avoid[ } putting it in

needless tension with §2254(d).” Likewise, in Duncan, the

Court drew support for its construction of §2244(d)(2)

from the overall purposes of AEDPA; the interpretation

of the statute was “consistent with ‘AEDPA’s purpose

to further the principles of comity, finality, and federal-

ism.’ ” Duncan, supra, 121 S.Ct. at 2127. Construing “fac-

tual predicate” simply as “notice” would create needless

tension with another part of the statute, section

2254(e)(2), and_would detract from the overall purposes

of AEDPA.

Here’s the problem: In an ordinary civil case in which

permissive, “notice pleading” is the norm, a plaintiff may

file a complaint with a good faith but bare-bones allega-

tion of facts not within the plaintiff's own personal

knowledge, and the plaintiff can depend on the ability to

depose witnesses and establish the essential facts during

the civil discovery process.!2 But in a habeas corpus case,

many jurisdictions — including California - expect the

petitioner to have affidavits and substantial evidence in

hand before filing. A petitioner must gather that evidence

before filing in the state court. He cannot use a later

federal petition as a means to conduct discovery, because

the AEDPA generally forbids an evidentiary hearing in

federal court “{i]f the applicant has failed to develop the

factual basis of a claim in State court proceedings ... .” 28

12 Put another way, every lawyer knows that in a notice-

pleading setting, one can “beat the clock of limitations” by filing

the barest of allegations, and fleshing them out later,

particularly in light of the “relation back” proviso of Fen. R. Civ.

P. 15(c).

U.S.C. §2254(e)(2).!3 Thus, if the habeas corpus petitioner

is in a jurisdiction that requires more than mere notice in

a habeas corpus petition, equating AEDPA’s “factual

predicate” with “mere notice” will force petitioners into

state court before they-have adequately developed their

claims or will lead to the filing of premature, “protective”

federal petitions. Both of these outcomes are counter to

the underlying purposes of the AEDPA.

The lower courts have not satisfactorily resolved this

problem. In Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.

1998), the Fifth Circuit found that the “factual predicate”

date was when the petitioner knew certain underlying

facts, not when he could prove them, though it must be

said that the facts in Flanagan were within the petitioner's

own personal knowledge. In Hasan v. Galaza, 254 F.3d

1150, 1155 (9th Cir. 2001), the court held that the factual

13 California, Mr. Burton’s state of conviction, is typical. In

People v. Duvall, 9 Cal. 4th at 474, the California Supreme Court

specified that collateral relief petitions must:

“(i) state fully and with particularity the facts on

which relief is sought, as well as (ii) include copies of

reasonably available documentary evidence

supporting the claim, including pertinent portions of

trial transcripts and affidavits or declarations. . . .

Conclusory allegations made without any

explanation of the basis for the allegations do not

warrant relief, let alone an evidentiary hearing.”

(internal citations omitted).

See also, People v. Martinez, 36 Cal.3d at 821. Washington has

similar requirements. See Baja v. Ducharme, 187 F.3d 1075, 1079

(9th Cir. 1999) (prior failure to present affidavits in state court

that are required by Washington law bars federal petition under

the AEDPA’s factual development provision).

predicate date was when the petitioner could have

alleged the basis of his claim in objective good faith. In

this case, the panel below put an unacceptable gloss on

Hasan, ruling that the “factual predicate” date was when

Ronald’s letter was received and not when Mr. Burton's

lawyer established that the letter in fact was penned by

Ronald. (App. 2a). But Mr. Burton needed to determine

that Ronald Washington wrote the recantation letter

before he could bring a good-faith petition in the state

courts of California; the facts within the letter were not

within Mr. Burton’s own personal knowledge, and so he

could not credibly - or even in good faith — assert them

by himself. Had Mr. Burton gone into state court with an

unauthenticated letter, his state habeas petition would

have been summarily dismissed. And any later attempt to

develop the facts in federal court likely would have been

met with the argument that he had failed to do so in state

court.

—

Review should be granted so that the Court may give

“factual predicate” its proper meaning. The statute says

“factual predicate,” and not “notice of some facts.” The

“factual predicate” date is when a reasonably diligent

prisoner has sufficient credible evidence to file a state

habeas petition that will avoid summary dismissal. This

construction harmonizes §2244(d)(1)(D) with a prisoner’s

equally-important AEDPA obligation under §2254(e) “to

develop the factual basis of his claim in State court”

before seeking federal relief. It avoids the need for pre-

mature “protective” federal petitions and by giving the

state courts a fair first opportunity to develop the facts

and resolve the constitutional claims, promotes comity,

finality and federalism.

C. The Court Should Grant Review or Summarily

Reverse Because the Court of Appeals’ Sum-

mary Disposition Conflicts with Schlup o. Delo.

The district court completely ignored Schlup v. Delo

as a possible basis for relief from petitioner’s “default”

under the AEDPA, but a motions panel of the court of

appeals granted a Certificate of Appealability in order to

afford a full consideration of the implications of Schlup in

this case (App., 13a-14a).14 Yet the panel to which the case

was assigned for decision rejected Mr. Burton’s showing

of actual innocence in a single sentence: “Ronald Wash-

ington’s letter, alleging prosecutorial misconduct during

Burton’s trial, is not sufficient proof of Burton’s inno-

cence, given Derek Washington’s similar testimony, incul-

pating Burton during trial.” (App., 2a). There are only two

possible explanations for this holding, and each conflicts

with Schlup and decisions applying Schlup.

14 The courts below should have considered whether Mr.

Burton’s alleged default could be excused under Schlup. His

petition set forth a claim of constitutional error coupled with

actual innocence; he did not make merely a “freestanding”

claim of innocence. His new evidence showed that a key

prosecution witness, Ronald Washington, lied, and that he did

so at the instigation of the prosecutor. This allegation, if proved,

would entitle Mr. Burton to relief. See United States v. Agurs, 427

U.S. 97, 103 (1976), discussing Mooney v. Holohan, 294 U.S. 103

(1935) (due process violation to introduce material evidence that

prosecutor knew or should have known was perjured); Kyles v.

Whitley, 514 U.S. 419 (1995) (granting petition because failure to

disclose exculpatory evidence undermined confidence in the

outcome of the trial).

_ 1. The Court of Appeals Erred in Not Remand-

ing for a Credibility Determination.

“To be credible,” a claim of actual innocence must be

based upon “new reliable evidence . . . that was not

presented at trial.” Schlup, 513 U.S. at 324. One possible

explanation for the Ninth Circuit's summary ruling is

that the panel determined that Ronald’s letter simply was

not credible or reliable. It is difficult to see how the panel

could have reached such a conclusion. The recantation

was consistent with the testimony of two prosecution

eyewitnesses (Leon Moore and Hal Spring) as well as the

testimony of defense eyewitness Quinola Arnold. More to

the point, however, summarily rejecting the recantation

on credibility grounds is not appropriate under Schlup,

and is inconsistent with the approach taken by this Court

and other circuits where the petitioner presents new evi-

dence of innocence that goes to the very heart of the

State’s case.

The court of appeals should have remanded for a

hearing. In Schlup itself, this Court noted that

“It]he fact-intensive nature of the inquiry,

together with the District Court's ability to take

testimony from a few key witnesses if it deems

that course advisable, convinces us that the

most expeditious procedure is to order that the

decision of the Court of Appeals be vacated and

that the case be remanded to the Court of

Appeals with instructions to remand to the Dis-

trict Court for further proceedings consistent

with this opinion.” (Schlup, 513 U.S. at 332).

Much the same is Bousley v. United States, 523 U.S. 614,

623-24 (1998), where this Court remanded a §2255 motion

for further proceedings under Schlup because the district

court failed to address the movant’s actual innocence.

Several circuits, applying Schlup, have emphasized the

need for assessment in the first instance by the district

court. See, e.g., United States ex rel. Bell v. Pierson, 267 F.3d

544, 552 (7th Cir. 2001) (“Schlup requires the district court

to consider the credibility of the petitioner’s new evi-

dence”); Wilkerson v. Cain, 233 F.3d 886, 893 (5th Cir. 2000)

(remand for district court determination of the reliability

of the new evidence on innocence); O’Dell v. Netherland,

95 F.3d 1214, 1250 (4th Cir. 1996) (en banc), aff'd on other

grounds, 521 U.S. 151 (1997) (“[a]scertaining the cred-

ibility of [Schlup] evidence is ‘quintessentially’ a task for

the factfinder”).

It is the office of the district court to determine the

credibility of the new evidence of innocence, and the

probable effect of that evidence, had the jury heard it.

Once the district court has done so, there are times when

an appellate court might revisit the lower court's “proba-

bility” determination, if it concludes that the district

- court was in no better position than the appellate court to

assess the “likelihood that a reasonable juror would con-

vict based on the sum of all the evidence.” Pierson, 267

F.3d at 552 (quoting O'Dell, 95 F.3d at 1250). There might

be instances in which the “new” evidence is so obviously

unavailing under Schlup that an evidentiary hearing can

be avoided,15 but cases of that kind are poles apart from

15 See, e.g., McCoy v. Norris, 125 F.3d 1186, 1190 (8th Cir.

1997) (evidence was cumulative, not new); Glass v. Vaughn, 65

F.3d 13, 17 (3d Cir. 1995) (new evidence of lack of memory of the

murder was contradicted by petitioner's

even at the scene”).

alibi that he was not

one in which the State’s key eyewitness confesses to

State-induced perjury at the trial. Neither the state court

nor the district court held an evidentiary hearing; no

judge has made a proper determination of the credibility

of Ronald Washington’s recantation. The court of appeals’

summary affirmance cunflicts with Schlup and the rulings

in other circuits.

2. Alternatively, the Court of Appeals Inap-

propriately Applied the Jackson v. Virginia

Standard in Rejecting the New Evidence.

In Schlup, this Court ruled that a procedural default

will be excused if a constitutional violation ” ‘probably’

resulted in the conviction of one who is actually inno-

cent.” Schlup, 513 U.S. at 322 (quoting Murray v. Carrier,

477 U.S. 478, 496 (1986)). The other possible explanation

for the court of appeals’ ruling in this case is that Ronald

Washington’s recantation was credible and reliable, but

that the new evidence was not sufficient to allow Mr.

Burton to pass through the Schlup “gateway.” If that is the

meaning of the court’s ruling, however, the panel applied

the wrong standard and its holding conflicts with Schlup.

Once a habeas corpus petitioner has come forward

with reliable new evidence, a court must evaluate the

claim of innocence in light of all of the evidence. Schlup,

513 U.S. at 527-28. This requires a probabilistic deter-

mination. A habeas court must ask whether the new

evidence “more likely than not” would have undermined

the State’s case, which includes assessing how the new

evidence may “call into question the credibility of the

witnesses presented at trial.” (Id., at 529-30). This Court

took pains to distinguish the Schlup/Carrier standard for

actual innocence from the much higher “sufficiency of the

evidence” test described in Jackson v. Virginia, 443 U.S.

307 (1979). The Jackson standard assumes that the State’s

witnesses are credible and merely “looks to whether there

is sufficient evidence which, if credited, could support

the conviction.” Schlup, 513 U.S. at 530.

In rejecting Ronald Washington’s new and (finally)

truthful account, the court of appeals merely said that the

evidence was insufficient “given Derek Washington’s

similar testimony, inculpating Burton during trial.” (App.,

2a). The panel appeared to employ, sub silentio, Jackson's

“sufficiency of the evidence” test. The court assumed that

Derek’s version was credible, as one does under Jackson,

and ruled that his testimony was sufficient to uphold the

verdict. But Schlup requires something more. Under

Schlup, the court below was obliged to examine Ronald

Washington’s truthful recantation in light of all of the

evidence and, most critically, assess how Ronald’s recan-

tation would have influenced the jury’s consideration of

the testimony of his brother Derek. This it manifestly

failed to do.

Under the proper standard, Mr. Burton has made a

strong showing of actual innocence. There were three -

and only three - young men in the mouth of the alley

when Fred Wright was shot. By finally coming clean and

affirming that petitioner Burton was not one of the three,

Ronald implicated his brother, Derek. If Mr. Burton was

up the alley, then the three at the mouth of the alley must

have been Anthony Sneed, Ronald Washington and Derek

Washington, and two of the three were shooters. Truthful

testimony by Ronald Washington would surely have

undermined the jury’s consideration of Derek’s wholly

self-serving testimony. Indeed, the jury would have had

all the more reason to believe that Derek and not peti-

tioner Burton was one of these three because it was Derek

~ not Mr. Burton - who had fought with the decedent at a

party earlier in the evening.

Ronald’s confessions go to the core of the reliability

of the conviction. Looking at all of the evidence, Ronald’s

confessions are entitely consistent with the testimony of

two prosecution eyewitnesses, Hal Spring and Leon

Moore, and the defense eyewitness Quinola Arnold. See

ante, pp. 4-5. Further, as explained by the Fifth Circuit in

Wilkerson v. Cain, 233 F.3d at 892, remanding for further

proceedings under Schlup, restricting evidence about

rewards offered to a crucial prosecution witness, who

testified at trial under a grant of immunity, is constitu-

tional error.

The decision below ignores these facts completely,

and elevates Derek’s testimony to Jackson-like preemi-

nence. One simply cannot say that if the jury had heard

the truth from Ronald - including the truth of the State’s

offer of immunity if but only if Ronald “put you [Mr.

Burton] at the seen” — Derek’s similarly immunized testi-

mony would have been seen in the light the court of

appeals now suggests, particularly inasmuch as Ronald

has implicated Derek. Respectfully, Schlup does not

authorize appellate courts to proceed in this fashion. The

petition should be granted for the Court’s full review or,

alternatively, the ruling should be summarily reversed

and the case remanded for the full inquiry that Schlup

requires.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Georce A. CUMMING, Jr.

Counsel of Record

Kirstin E. WoLF

Dawn CEIZLER

BROBECK, PHLEGER & Harrison LLP

CHARLES D. WEISSELBERG

ELIZABETH SEMEL

CENTER FOR CLINICAL EDUCATION*

Attorneys for Petitioner

San Francisco, California

December 2001

* Elaine Collins, a law student at the University of Cali-

fornia School of Law (Boalt Hall), assisted in the prepara-

tion of this petition.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed August 15, 2001]

ANTHONY BURTON, ) N® 9999000

Petitioner-Appellant, ) DC# 98-3915-ABC

) Central California

)

J.W. FAIRMAN, Warden, )

et al.,

Vv.

)

Respondents-Appellees.

)

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Argued and submitted July 12, 2001

Pasadena, California

Before: RYMER and RAWLINSON, Circuit Judges, and

RESTANI, CIT Judge.**

Anthony Burton (“Burton”), appeals the district

court’s order denying his 28 U.S.C. § 2254 petition for

* This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as may

be provided by Ninth Circuit Rule 36-3.

** The Honorable Jane Restani, Judge for Court of

International Trade, sitting by designation.

writ of habeas corpus as untimely. Because Burton’s peti-

tion was filed after the effective date of the Anti-Terror-

ism and Effective Death Penalty Act (“AEDPA”), the

provisions of that Act apply to his case. See Patterson v.

Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001). AEDPA

imposes a one-year statute of limitations on habeas

corpus petitions filed by state prisoners in federal court.

See 28 U.S.C. § 2244(d)(1). State prisoners, like Burton,

whose convictions became final prior to AEDPA’s enact-

ment, have a one-year grace period in which to file their

petitions in federal court. See Patterson at 1245. We review

the district court’s dismissal of Burton’s petition de novo.

See id.

Pursuant to § 2244(d) of AEDPA, Burton’s petition

was untimely. However, Burton claims that he is actually

innocent and that a showing of actual innocence is an

exception to the limitations period. Assuming, without

deciding, that an actual innocence exception exists, Bur-

ton has not made the requisite showing. See Carrig~

Stewart, 132 F.3d 463, 478 (9th Cir. 1997) (en banc). Ronald

Washington’s letter, alleging prosecutorial misconduct

during Burton’s trial, is not sufficient proof of Burton’s

innocence, given Derek Washington’s similar testimony,

inculpating Burton during trial.

Burton’s contention that the limitations period did

not begin to run until Ronald’s letter was authenticated

by the handwriting expert also fails. Burton was aware of

the factual predicate for his actual innocence claim when

Ronald’s letter was received. See Hasan v. Galaza, 254 F.3d

1150, 2001 WL 699339, at *4, n.3 (9th Cir. 2001) (holding

“time begins when the prisoner knows. the important

facts, not when the prisoner recognizes their legal signifi-

cance.”). Burton’s petition was therefore, untimely.

Burton’s equitable tolling arguments also fail. See

Calderon v. United States District Court (Beeler), 128 F.3d

1283 (9th Cir. 1997), overruled in part on other grounds

by Calderon v. United States District Court (Kelly), 163 F.3d

530 (9th Cir. 1998) (en banc) (setting forth AEDPA stan-

dard of extraordinary circumstances beyond prisoner’s

control that made it impossible to file petition on time);

Allen v. Lewis, 255 F.3d 798, 2001 WL 717021 *1 (9th Cir.

2001) (“It will normally be much more difficult for a

prisoner to demonstrate [that the ‘extraordinary circum-

stances’ were the but-for and proximate cause of untime-

liness] where he encounters the ‘extraordinary

circumstances’ in the beginning or middle of the limita-

tions period than where he encounters them at the end of

the limitations period.”)

AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA -

WESTERN DIVISION

[Filed November 2, 1998]

CV 98-3915-ABC (SH)

ORDER ADOPTING

FINAL REPORT AND

RECOMMENDATION OF

UNITED STATES

MAGISTRATE JUDGE

ANTHONY BURTON,

Petitioner,

J.W. FAIRMAN, Warden,

Respondent.

a ee ee ee

Pursuant to 28 U.S.C. Section 636(b)(1)(C), the Court

has reviewed the Petition, all of the records and files

herein and the attached Final Report And Recommenda-

tion of the United States magistrate Judge, and has made

a de novo determination of the Final Report and Recom-

mendation. The Court concurs with and adopts the con-

clusions of the Magistrate Judge.

IT IS ORDERED that the Petition filed herein is ‘dis-

missed with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve

copies of this Order, the Magistrate Judge’s Final Report and

Recommendation and the Judgment herein by the United

States Mail on petitioner and counsel for respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: October 29, 1998

/s/ AUDREY B. COLLINS

UNITED STATES DISTRICT JUDGE

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA -

WESTERN DIVISION

[Filed October 29, 1998]

ANTHONY BURTON,

Petitioner, ) CV 98-3915-ABC (SH)

].W. FAIRMAN, Warden,

Respondent.

ee eee eee Se

FINAL REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

This Final Report and Recommendation is submitted

to United States District Judge Audrey B. Collins pur-

suant to 28 U.S.C. § 636 and General Order 194 of the

United States District Court for the Central District of

California.

I. PROCEDURAL BACKGROUND

On January 8, 1982, petitioner was convicted of mur-

der, assault by means of force likely to produce great

bodily injury, and shooting at an inhabited dwelling.

(Petition, p. 3.) Petitioner’s conviction was affirmed by

the Court of Appeal on August 25, 1984. (Pet., p. 3.)

Petitioner’s Petition for Review in the California Supreme

Court was denied on October 31, 1984. (Pet., p. 4.)

More than twelve years later, on March 21, 1997,

petitioner filed a Petition for Writ of Habeas Corpus in

the California Supreme Court. The Petition was denied

on January 14, 1998. (Pet., p. 5, Ex. 4-A.)

On May 19, 1998, petitioner filed the instant Petition

for Writ of Habeas Corpus (the “Petition”) in this Court.

Respondent filed an Answer on June 17, 1998, followed

by a Return on July 16, 1998. On September 1, 1998,

petitioner filed a Traverse. The matter was taken under

submission.

On September 11, 1998, the Magistrate Judge issued a

Report and Recommendation in this matter, recommend-

ing that the Petition be dismissed with prejudice. See

Report and Recommendation filed September 11, 1998.

Petitioner filed Objections to the Report and Recommen-

dation on September 30, 1998, and respondent filed a

Reply to petitioner’s Objections on October 27, 1998. This

Final Report and Recommendation now issues.

II. DISCUSSION

In its Return, respondent asserts that the instant Peti-

tion must be dismissed because it was not filed within the

statutory deadline. The Magistrate Judge agrees with the

respondent’s analysis, as shown below.

28 U.S.C. § 2244, provides in relevant part:

(d)(1) A 1-year period of limitation shall apply to

an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a

State court. The limitation period shall run from the

latest of -

(A) the date on which the judgment became

final by the conclusion of direct review or the

expiration of the time for seeking such review;

(B) the date on which the impediment to filing

an application created by State action in viola-

tion of the Constitution or laws of the United

States is removed, if the applicant was pre-

vented from filing by such State action;

right asserted was initially recognized by the

Supreme Court, if the right has been newly recog-

nized by the Supreme Court and made retroac-

tively applicable to cases on collateral review; or

(D) the date on which the factual predicate of

the claim or claims presented could have been

discovered through the exercise of due dili-

gence.

(2) The time during which a properly filed applica-

tion for State post-conviction or other collateral

review with respect to the pertinent judgment or

claim is pending shall not be counted toward any

period of limitation under this subsection.

(emphasis added).

Thus, Congress provided a one-year limit for filing a

habeas corpus petition in order to strengthen the policy

favoring finality and comity. Calderon v. United States

District Court (Beeler), 128 F.3d 1283, 1286 (9th Cir. 1997).

Petitioner’s State court judgment became final on

October 31, 1984, when the California Supreme Court

declined to review petitioner’s convictions. (Ret., p. 7.)

However, as held in Beeler, the one-year period of limita-

tions did not begin to run against petitioner until April

24, 1996, the date of the enactment of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Bee-

ler, 128 F.3d at 1287. Thus, absent any tolling, the statute

of limitations would have expired one year later on April

24, 1997. As noted above, petitioner did not file the

Petition in this court until May 19, 1998.

Respondent acknowledges that the period of limita-

tions was tolled for some time under 28 U.S.C.

§ 2244(d)(2). Petitioner filed his state habeas petition 34 days

prior to the original deadline under the AEDPA. Thus, the

period of limitations was tolled from March 21, 1997 until

January 14, 1998, when the state habeas petition was denied.

As a result, petitioner had 34 days after January 14, 1998, or

until February 17, 1998, to file a petition in this Court.

However, the instant Petition was filed after that date.

Beeler, supra, held that the one year period in which a

state prisoner has to file a Petition for Writ of Habeas Corpus

in the District Court constitutes a statute of limitations which

may, on certain narrow circumstances, be tolled. Specifically,

Beeler stated that “equitable tolling will not be available in

most cases, as extensions of time will only be granted if

“extraordinary circumstances beyond a prisoner’s control

make it impossible to file a Petition on time. [citation omit-

ted] We have no doubt that district judges will take seriously

Congress’ desire to accelerate the federal habeas process, and

will only authorize extensions when this high hurdle is

surmounted.” Beeler, 128 F.3d at 1288-89.

Petitioner concedes that the instant Petition was filed

late. Petitioner’s primary explanation for his delay in filing

the Petition is that there was “no law library established in

his facility, in which he is housed; and he had no adequate

access to legal books, or material to assist him in filing the

writ of Habeas Corpus”.! (Obj., p. 4; see also Trav., pp. 7, 12;

Pet., see attach. entitled “Explanation (sic) for Delay”, p. 2.)

However, petitioner fails to provide this court with suffi-

cient specificity regarding the alleged lack of access and

the steps he took to diligently pursue his federal claims.

“It is not enough to say that the ... facility lacked all

relevant statutes and case law or that the procedure to

request specific materials was inadequate.” Miller v. Marr,

141 F.3d 976 (10th Cir. 1998).

In support of his argument for a period of equitable

tolling, petitioner contends that “he submitted several

requests for legal material from the law library located in

another part of the institution and physically inaccessible

to him”. (Trav., p. 8.) However, petitioner does not pro-

vide this court with any relevant documentary evidence

supporting this contention, nor does petitioner provide

this court with any specific dates that he allegedly

requested law library access or legal materials. Respon-

dent submits that petitioner completed only one “Inmate

Request for Interview”, requesting certain publications

from the law library. (Reply, p. 14, Decl. of Davis, Jr., Ex.

B., p. 25.) The court notes that this inmate request was

completed on March 22, 1998, after petitioner’s extended

AEDPA deadline for filing a habeas petition has passed.

1 Respondent concedes that the Facility C law library was

not opened for inmate use until June 1998. However, a paging

service was available to all inmates requesting library resources

and photocopying from February 1998 until the library opened.

(Reply, p. 13, Decl. of Davis, Jr., attaching memoranda from

Corcoran Litigation Office Assistant Tamara Colwell.)

10a

Moreover, this court notes that the claims petitioner is

seeking to raise in the instant Petition are the same claims

petitioner raised before the California Supreme Court,

thereby undercutting his argument that lack of access to the

prison law library caused his delay. (Pet., Ex. 4-A.)

Furthermore, the fact that petitioner submitted an

inmate appeal to prison offices on July 19, 1998 regarding

the alleged lack of law library access does not persuade

this Court that petitioner should be granted equitable

tolling with respect to the instant Petition filed before

that date, namely on May 19, 1998.

Petitioner also argues that the statute of limitations

should be equitably tolled on the ground that he did not

become personally aware until March 21, 1998 that the

California Supreme Court had denied his habeas petition

on January 14, 1998.2 However, as respondent correctly

notes, even if petitioner was granted equitable tolling

until March 21, 1998, the instant Petition would still have

been due 34 days later, on April 24, 1998.°

2 With respect to the status of his state habeas petition,

petitioner states that he “did what most layman (sic) persons

would do when being represented by an attorney ... wait to be

contacted by the attorney concerning the court's decision”.

(Obj., p. 13.) Such a statement underscores petitioner’s lack of

diligence in this matter.

3 Nor does petitioner assert that he made any inquiry to the

California Supreme Court regarding the status of his state

habeas petition, prior to receiving notice from his wife that such

court had denied his petition. In fact, only after receiving notice

from his wife did petitioner contact his attorney to confirm that

the California Supreme Court had denied his petition. (Pet., see

attachment entitled “Explaination (sic) for Delay”, p. 2.)

lla

In sum, the Magistrate Judge finds that petitioner’s

allegations do not amount to the “extraordinary circum-

stances” envisioned by the Beeler court. See also Calderon

v. United States District Court (Kelly), 127 F.3d 782 (9th Cir.

1997); United States v. Van Poyck, 980 F.Supp. 1108

(C.D.Cal. 1997).4

Nor does petitioner argue that he falls within the

statutory tolling provisions of § 2244(d)(1)(C), as he does

not assert that he is relying on a constitutional right

newly recognized by the United States Supreme Court.

Lastly, petitioner argues that “it would be a funda-

mental miscarriage of justice if this court fails to review

petitioner’s claims based upon this newly discovered evi-

dence that came to light fourteen years after petitioner’s

conviction. Now for the first time, petitioner is finally

able to prove that he is innocent of the crimes for which

he is imprisoned”. (Trav., p. 16.) Petitioner contradicts

himself, in that he has conceded that this newly discov-

ered evidence came to light in 19955, and was brought to

4 Nor does petitioner fall with[in] 28 U.S.C. § 2244(d)(B), in

that no “state action” prevented him from filing the instant

Petition on a timely basis.

5 Petitioner argues that the newly discovered evidence

which came to light in 1995 was a letter from one of the co-

defendants who admitted that he knew petitioner was not with

him and the others at the end of the alley at the time of the

shooting. The letter was not addressed to anyone, and was

signed by “Ronald W”. Petitioner’s wife apparently received

this letter from “Ronald W”. (Pet., Ex. 4-A, p. 19.) According to

petitioner, this letter had to be “authenticated in order to insure

its reliability”, and the authentication of this letter occurred on

November 19, 1996. (Trav., p. 6.) Petitioner’s discussion on the

12a

the attention of the California Supreme Court in his state

habeas petition. Even if this court were to apply the

statutory tolling provisions of 28 U.S.C. § 2244(d)(1)(D),

the Petition is still time-barred.

Ill. RECOMMENDATION

For all of the foregoing reasons, IT IS RECOM-

MENDED that the court issue an Order: (1) approving

and adopting this Report and Recommendation; and (2)

directing that Judgment be entered dismissing the action

with prejudice.

DATED: Oct. 29, 1998

/s/ STEPHEN J. HILLMAN

UNITED STATES

MAGISTRATE JUDGE

authentication of the letter does not persuade this court that the

statutory tolling provisions of 28 U.S.C. § 2244(d)(1)(D) apply in

this case. Rather, the year 1995, when the letter was discovered,

is “the date on which the factual predicate of the claim”

presented was discovered.

13a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed January 25, 1999]

ANTHONY BURTON,

Petitioner-Appellant,

No. 99-55000

DC# 98-3915-ABC

Central California

ORDER

J.W. FAIRMAN, Warden,

et al.,

Respondents-Appellees. )

)

Before: KLEINFELD and HAWKINS, Circuit Judges:

The request for a certificate of appealability is

granted with respect to the following issues: 1. Whether

the combined showing of actual innocence and constitu-

tional error described in Schlup v. Delo, 513 U.S. 298

(1995), is sufficient to overcome the AEDPA’s one-year

time bar. 2. If so, whether remand to the district court is

warranted to establish whether petitioner can make a

showing of actual innocence sufficient to open the gate-

way to his claim that an eyewitness to the crime was

induced by the prosecutor to give false testimony. See 28

U.S.C. § 2253(c)(3).

Appellant is granted leave to proceed in forma pau-

peris. The court, on its own motion, appoints counsel to

represent petitioner in this appeal.

Counsel will be appointed by separate order.

l4a

The Clerk shall serve a copy of this order by facsimile

transmission on Maria E. Stratton, Federal public

Defender, 312 N. Spring Street, Room 1503, Los Angeles,

California 90012 (FAX: (213) 894-0081), who will locate

appointed counsel. The district court shall provide this

court with the name and address of appointed counsel

within 14 days of locating counsel.

Appellant’s opening brief and excerpts of record are

due March 26, 1999; appellees’ brief is due April 26, 1999;

the reply brief, if any, is due within 14 days after service

of appellees’ brief.

15a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed January 9, 2001]

ANTHONY BURTON,

Petitioner-Appellant, No. 99-55000

DC# 98-3915-ABC

Central California

ORDER

J.W. FAIRMAN, Warden,

et al.,

Respondents-Appellees.

i i eo

The Certificate of appealability granted by this court

on January 25, 1999 is expanded to include the following

issues:

A. Did petitioner file his § 2254 habeas petition

in district court within the limitations period

under 28 U.S.C. § 2244(d)(1)?

B. If not, does equitable or statutory tolling of

the limitations period make the petition timely?

Oral argument scheduled for February 9, 2001 is

vacated. Petitioner shall file a supplemental brief

addressing these issues by no later than February 12,

2001. Respondents shall file a response to the supplemen-

tal brief by no later than march 12, 2001. Petitioner shall

file a reply to the supplemental brief by no later than

April 12, 2001. Each brief shall not exceed 15 pages in

l6a

length. After briefing is complete, the Clerk shall place

this case before the next available panel.

FOR THE COURT

CATHY A. CATTERSON, CLERK OF COURT

By /s/ Gwen Baptista

Deputy Clerk

17a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

[Filed October 2, 2001]

No. 99-55000

DC# CV-98-03915-ABC-SH

Central District of

California

ORDER

ANTHONY BURTON,

Petitioner-Appellant,

J.W. FAIRMAN, Warden,

et al.,

mee ee ee ee ee ee ee ee

Respondents-Appellees.

Before: RYMER and RAWLINSON, Circuit Judges, and

RESTANL,* CIT Judge.

The panel has voted unanimously to deny the peti-

tion for rehearing en banc. Judges Rymer and Rawlinson

voted, and Judge Restani recommended, to reject the

suggestion for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc, and no active judge of the court has

requested a vote on the petition for rehearing en banc.

Fep. R. App. P. 35(f).

Appellant’s petition for rehearing en banc, filed

August 29, 2001, is DENIED.

* The Honorable Jane Restani, Judge for Court of

International Trade, sitting by designation.

18a

APPENDIX G

28 U.S.C. § 2244, as amended by the AEDPA

§ 2244. Finality of determination

(a) No circuit or district judge shall be required to enter-

tain an application for a writ of habeas corpus to inquire

into the detention of a person pursuant to a judgment of a

court of the United States if it appears that the legality of

such detention has been determined by a judge or court

of the United States on a prior application for a writ of

habeas corpus, except as provided in section 2255.

(b)(1) A claim presented in a second or successive

habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive

habeas corpus application under section 2254 that was

not presented in a prior application shall be dismissed

unless —

(A) the applicant shows that the claim relies on

a new rule of constitutional law, made retroactive to cases

on collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could

not have been discovered previously through the exercise

of due diligence; and

(ii) the facts underlying the claim, if proven

and viewed in light of the evidence as a whole, would be

sufficient to establish by clear and convincing evidence

that, but for constitutional error, no reasonable factfinder

would have found the applicant guilty of the underlying

offense.

19a

(3)(A) Before a second or successive application per-

mitted by this section is filed in the district court, the

applicant shall move in the appropriate court of appeals

for an order authorizing the district court to consider the

application.

(B) A motion in the court of appeals for an order

authorizing the district court to consider a second or

successive application shall be determined by a three-

judge panel of the court of appeals.

of a second or successive application only if it determines

that the application makes a prima facie showing that the

application satisfies the requirements of this subsection.

(D) The court of appeals shall grant or deny the

authorization to file a second or successive application

not later than 30 days after the filing of the motion.

(E) The grant or denial of an authorization by a

court of appeals to file a second or successive application

shall not be appealable and shall not be the subject of a

petition for rehearing or for a writ of certiorari.

(4) A district court shall dismiss any claim pre-

sented in a second or successive application that the court

of appeals has authorized to be filed unless the applicant

shows that the claim satisfies the requirements of this

section.

person in custody pursuant to the judgment of a State

court, a prior judgment of the Supreme Court of the

United States on an appeal or review by a writ of cer-

tiorari at the instance of the prisoner of the decision of

20a

such State court, shall be conclusive as to all issues of fact

or law with respect to an asserted denial of a Federal

right which constitutes ground for discharge in a habeas

corpus proceeding, actually adjudicated by the Supreme

Court therein, unless the applicant for the writ of habeas

corpus shall plead and the court shall find the existence

of a material and controlling fact which did not appear in

the record of the proceeding in the Supreme Court and

the court shall further find that the applicant for the writ

of habeas corpus could not have caused such fact to

appear in such record by the exercise of reasonable dili-

gence.

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

limitation period shall run from the latest of -

(A) the date on which the judgment became

final by the conclusion of direct review or the expiration

of the time for seeking such review;

(B) the date on which the impediment to filing

an application created by State action in violation of the

Constitution or laws of the United States is removed, if

the applicant was prevented from filing by such State

action;

asserted was initially recognized by the Supreme Court, if

the right has been newly recognized by the Supreme

Court and made retroactively applicable to cases on col-

lateral review; or

2la

(D) the date on which the factual predicate of

the claim or claims presented could have been discovered

through the exercise of due diligence.

(2) The time during which a properly filed applica-

tion for State post-conviction or other collateral review

with respect to the pertinent judgment or claim is pend-

ing shall not be counted toward any period of limitation

under this subsection.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.