Kuenzel v. Allen (880 F. Supp. 2d 1162, 2009)

MEMORANDUM OPINION

INGE PRYTZ JOHNSON, District Judge.

This is an action by an Alabama state prisoner, William Ernest Kuenzel, pursuant to 28 U.S.C. § 2254. He challenges the constitutional validity of the conviction he received in the Talladega County Circuit Court on September 23,1988, for capital murder, for which he was sentenced to death. The petitioner, with the assistance of an attorney, filed the instant petition for •writ of habeas corpus on February 7, 2000. He is incarcerated on Death Row at Holman Correctional Facility in Atmore, Alabama.

This is the third time this court has found that the instant habeas petition is barred by the time limitation mandated in 28 U.S.C. § 2244(d). The first time, in September 2002, this court dismissed the petition as time-barred by § 2244(d). That decision was vacated and remanded for further proceedings consistent with the Eleventh Circuit Court of Appeals’ opinion in Siebert v. Campbell, 334 F.3d 1018, 1032 (11th Cir.2003)(“Siebert I”). On remand, this court in February 2006 determined that the intervening authority of Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), effectively overruled Siebert I and compelled the conclusion that the petition is barred by the one-year limitation of § 2244(d) because petitioner’s untimely filed Rule 32 petition in state court had no tolling effect. Petitioner appealed that decision, which the Eleventh Circuit Court of Appeals vacated and remanded for further proceedings including the resolution of Kuenzel’s assertion that he is actually innocent and thus excepted from the procedural bar described in Siebert II. Kuenzel v. Allen, 488 F.3d 1341 (11th Cir.2007).

I. PROCEDURAL HISTORY IN STATE COURT

On September 23, 1988, the petitioner was convicted after a jury trial for the capital murder of Linda Offord, a convenience store clerk who was shot to death in 1987 during a robbery. Evidence presented at trial can be summarized as follows:

Around 11:00 p.m. on the night of Monday, November 9, 1987, Linda Offord was shot to death at Joe Bob’s convenience store in Sylacauga, Alabama, where she worked as a clerk. The petitioner was charged with capital murder. Petitioner’s co-worker and roommate, Harvey Venn, pleaded guilty to a lesser charge and testified at trial that he and Kuenzel had spent the afternoon and evening of the murder together, riding around Sylacauga in Venn’s car. Both were drinking heavily, and Venn was smoking marijuana. He testified that they stopped more than once at Joe Bob’s convenience store to use the restroom and buy cigarettes, and that Kuenzel suggested that they could get “easy money” by robbing the store. Venn stated that three guns were in his car that night — a 12-gauge shotgun Venn borrowed from Sam Gibbons, a 16-gauge shotgun Kuenzel had borrowed from his father, and a pistol. Venn told jurors that after a night of riding around and heavy drinking, he and Kuenzel returned to the convenience store about 10:00 p.m. and waited for customers to clear out. Several witnesses testified that they saw Venn’s car at the convenience store the night of the murder, and some identified Venn at the scene. They said Venn was with another man, whom they could not identify. Venn said he and Kuenzel left the store at some time after 10:00, but returned around 11:00. Venn testified that Kuenzel covered the car’s license plate, retrieved a shotgun from the back seat of the car, and went into the store. Within a few seconds, Venn heard a shot and saw Offord fall off the stool where she was sitting at the cash register. He testified that Kuenzel got into the car and told him to “haul ass.” They left, and Venn said that Kuenzel told him he didn’t mean to do it. They drove to Kuenzel’s house and took the guns inside. Venn said that Kuenzel took the spent shell out of the shotgun, put in into a paper bag, and threw it into a garbage can in front of the residence where they burned trash. After listening to some music, Kuenzel told him “it was a shame that she had to get killed over some money that wasn’t even hers.”

A co-worker testified that Venn and Kuenzel were together early in the evening, and came by the company where they worked to sell him some pills. A teenage girl who knew Venn and Kuenzel, April Harris, said she was riding in a car past the convenience store about 9:30 or 10:00 p.m. the night of the murder and could see Venn’s car in the parking lot. She testified that she saw Venn and Kuenzel just inside the store.

Testimony indicated that Offord was shot with No. 1 buckshot fired from a 16-gauge shotgun. A shell fired from the Kuenzel gun was found in the rubbish bin outside Kuenzel’s home. Also found in the search of Kuenzel’s home was a notebook in which Kuenzel had written down what Venn had told police about the night of the murder.

The defense presented testimony from Glenn Kuenzel, who said that he went to petitioner’s house around 10:30 the night of the murder, and saw through the window that Kuenzel was asleep on the sofa. The defense also offered testimony from Hope Champion, a visitor to Glenn Kuenzel’s home, who said that petitioner and Venn had returned the 16-gauge shotgun the day before the murder. The defense further attacked Venn’s credibility, showing that he had given prior inconsistent statements, and was also charged in the crime, but was accepting a plea deal. The defense rested after assurances from the defendant that he had decided not to testify-

There was no physical evidence linking Kuenzel to the crime scene. The only blood found was on Venn’s left pants leg, and it was the same type as the victim’s. Venn’s shoes were also tested, and no blood was found on the shoes. A lot of blood was present at the crime scene, but none was on the customer side of the counter that Offord was behind. No. 1 buckshot pellets were removed from the scene, along with a piece of wadding from a 16-gauge shotgun.

The jury returned a verdict of guilty to the capital crime. After the penalty phase of the trial concluded, the jury recommended that petitioner be sentenced to death, and, on November 7, 1988, following the jury’s 12-0 recommendation in favor of imposition of the death penalty, the trial judge sentenced petitioner to death by electrocution. Petitioner appealed his conviction to the Alabama Court of Criminal Appeals, which affirmed the conviction and sentence on June 29, 1990. Kuenzel v. State, 577 So.2d 474 (Ala.Cr.App.1990). On January 11, 1991, the Alabama Supreme Court affirmed the decision of the appellate court. Ex parte Kuenzel, 577 So.2d 531 (Ala.1991). A certificate of judgment was issued by the Alabama Court of Criminal Appeals on March 28, 1991. On October 7, 1991, the United States Supreme Court denied petitioner’s application for writ of certiorari. Kuenzel v. Alabama, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991)(Memo).

On October 4, 1993, petitioner filed a petition for post-conviction relief in the trial court pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. The petition initially was denied on October 6, 1994, as time-barred under Rule 32.2(c), but on May 6, 1996, the trial court granted petitioner’s motion to set aside the October 6, 1994, order. After an answer was filed and petitioner sought discovery, the State filed a motion to reinstate the October 6, 1994, order dismissing the petition as time-barred. On February 18, 1999, the trial court granted the State’s motion and entered an order dismissing the petition as time-barred. Petitioner appealed the dismissal, which was affirmed by the Alabama Court of Criminal Appeals on January 28, 2000. He sought rehearing, but that was denied a month later, on February 25, 2000. He next sought review in the Alabama Supreme Court, which denied certiorari on July 28, 2000. The United States Supreme Court denied certiorari on January 16, 2001.

II. PROCEDURAL HISTORY IN FEDERAL COURT

On February 7, 2000, while still litigating his appeals from the dismissal of a Rule 32 petition in the Alabama state courts, the petitioner, represented by counsel, filed a motion in this court seeking a ruling that his one-year limitation period set forth in 28 U.S.C. § 2254 “is tolled until all state court proceedings and possible appeals therefrom” were exhausted. With the motion, he filed a habeas corpus petition, requesting that it be filed if the motion for tolling were denied. On February 15, 2000, the court denied the motion on the ground that it was premature, deemed the petition filed, treating it as a “place-holder” petition, and stayed proceedings pending notification that all appeals from the state court proceedings had been concluded.

On January 22, 2001, petitioner notified the court that the United States Supreme Court had denied certiorari of the appeal from the state Rule 32 denial. By order dated February 5, 2001, the court lifted the stay and gave petitioner 30 days in which to amend his petition. Petitioner filed an amended petition on March 23, 2001.

On June 15, 2001, respondents filed a motion to dismiss the petition, contending that the petition is time-barred by operation of 28 U.S.C. § 2244(d)(1) and, alternatively, that the claims are without merit. Petitioner filed a memorandum of law and a supplemental memorandum in opposition to the motion to dismiss. Respondents filed an answer on July 11, 2001, together with a memorandum of law and a copy of the record of the trial, appellate, and post-conviction proceedings. On September 18, 2001, petitioner moved the court for leave to file a second amended habeas petition, which was granted, and the second amended petition was filed November 20, 2001. Respondents filed an amended answer on January 18, 2002, and a brief in response to the second amended petition. On July 1, 2002, petitioner filed a supplement to the second amended petition and a supplemental brief. A corrected version of the brief was filed July 8, 2002.

On September 27, 2002, this court entered a memorandum opinion and order dismissing the petition as time-barred. Petitioner appealed to the Eleventh Circuit Court of Appeals, which issued a mandate on October 15, 2003, vacating and remanding for further proceedings consistent with Siebert v. Campbell, 334 F.3d 1018 (11th Cir.2003). On May 11, 2005, however, the respondents filed a renewed motion to dismiss on time-bar grounds based upon the Supreme Court’s opinion in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Petitioner sought and received an extension of time in which to respond to the motion, with his response being filed on August 5, 2005. Respondents filed a reply on August 11, 2005, and petitioner sought to file a sur-reply, which was granted. The surreply was filed on August 19, 2005. On September 2, 2005, the court issued an order that the parties may file additional authority or argument related to the application of Pace in light of the Eleventh Circuit Court of Appeals’ August 16, 2005, unpublished decision in Colbert v. Head, 146 Fed.Appx. 340 (11th Cir.2005). Both parties filed responses on September 12, 2005. This court entered an order on February 9, 2006, dismissing the claims on the basis that Pace rendered the instant petition untimely.

Petitioner again appealed, and the Eleventh Circuit Court of Appeals entered an order on June 13, 2007, remanding for a determination of Kuenzel’s claim that he is actually innocent. Relying on the panel decision in Siebert v. Allen, 480 F.3d 1089 (11th Cir.2007), the court of appeals again rejected this court’s determination that the instant petition is time barred. The court of appeals found, however, that the petition is proeedurally defaulted because the state courts rejected the Rule 32 petition as being untimely filed, subject to petitioner’s argument that he can avoid the default because he is actually innocent under the “miscarriage of justice” exception to the procedural-default doctrine.

III. TIMELINESS AND EQUITABLE TOLLING

This court recently faced essentially the same question of timeliness under § 2244(d) in Siebert v. Campbell, Case No. l:01-cv-2323-IPJ-TMP. The respondents in the instant case, as in Siebert, assert that the decision made by the Supreme Court in Pace constitutes a change in law on a controlling issue. Further, the court of appeals’ reliance on the authority of Siebert v. Allen, 480 F.3d 1089 (11th Cir.2007) (“Siebert III ”), is fatally undermined by the fact that the Supreme Court reversed it after the panel decision was announced in the instant case. The court agrees that a change in law has occurred, and thus examines whether the intervening decision affects the mandate to treat Kuenzel’s petition as timely filed.

The issue presented here is discussed fully in the memorandum opinion entered by the court in Siebert, which is attached hereto. Stated succinctly, the question is whether petitioner’s state Rule 32 petition was “properly filed” for purposes of statutory tolling under 28 U.S.C. § 2244(d)(2) of the time period for filing the instant habeas petition, notwithstanding the finding by the Alabama state courts that the Rule 32 petition was not timely filed under state rules. For all the reasons set forth in this court’s Siebert opinion, the Alabama state courts’ determination that Kuenzel’s Rule 32 petition was untimely filed under Alabama Rule of Criminal Procedure 32.2(c) constitutes the “end of the matter.” The Supreme Court announced in Pace that a post-conviction petition that has been rejected by the state courts as untimely is not considered “properly filed” within the meaning of the AED-PA’s statutory tolling provision. Pace, 125 S.Ct. at 1810 n. 1.

In this case, petitioner filed his post-conviction motion in the state trial court on October 4, 1993, less than two years after the Supreme Court denied certiorari, but more than two years after the certificate of judgment was issued by the Alabama Court of Criminal Appeals. Upon motion of the respondents, the trial court dismissed the petition as untimely filed pursuant to Rule 32.2(c), specifically noting that the certificate of judgment following petitioner’s direct appeal was issued by the Alabama Court of Criminal Appeals on March 28, 1991, making any Rule 32 petition filed later than March 28, 1993, untimely. The Alabama Court of Criminal Appeals affirmed, and both the Alabama Supreme Court and the United States Supreme Court denied certiorari. Thus, the state courts determined conclusively, applying the clear language of the applicable rule, that, as a matter of state law, the Rule 32 petition filed in October 1993 was untimely at the time it was filed.

Based on this finding by the Alabama state courts, this court concluded that the instant habeas petition filed in February 2000 also was not timely filed under 28 U.S.C. § 2244(d), which mandates a one-year limitation period for the filing of federal habeas actions. The one-year limitation period began to run for petitioner on the date § 2244(d) was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) by Congress, April 26, 1996, and would have expired on April 26, 1997. Section 2244(d)(2), however, provides for the tolling of the limitation period during the pendency of a “properly filed” state post-conviction collateral petition. Because petitioners Rule 32 petition was pending on the date the AEDPA was enacted, it could have tolled the running of the one-year limitation during its pendency, but only if it was a “properly filed” petition. And that is the point of controversy in this case. Respondents contend that it was not “properly filed” because the state courts determined conclusively that it was untimely filed in violation of Rule 32.2(c). Petitioner argues that this question was resolved in his favor by the Eleventh Circuit Court of Appeals’ decisions in Siebert v. Campbell, 334 F.3d 1018 (11th Cir.2003) (“Siebert I”), and in this case, in which that court determined that the time limitation for filing Rule 32 petitions in Alabama state court was not “jurisdictional” in nature until 2000 and, therefore, was not a “condition to filing” that would preclude a finding that it was “properly filed” under § 2244(d)(2) and Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000).

Relying on Siebert I, the court of appeals reversed this court’s earlier dismissal and remanded for further proceedings on the instant habeas petition. When the United States Supreme Court announced its decision in Pace, however, the respondents renewed their motion to dismiss the petition as untimely filed. As discussed much more extensively in this court’s memorandum opinion in Siebert v. Campbell, Case No. 1:01-cv-2323-IPJ-TMP (attached), this court believed (and still believes) that Pace constituted an intervening controlling authority that excused the court from following the mandate of the court of appeals under the law-of-the-case doctrine. This court noted in its memorandum opinion dismissing this petition as time barred for a second time (Doc. 93) that the Supreme Court in Pace said:

“[W]e hold that time limits, no matter their form, are ‘filing’ conditions.” Pace, 125 S.Ct. at 1814 [italics added]. The Court then stated unequivocally that, when the state courts hold that a post-conviction petition is untimely under state law, “ ‘that is the end of the matter’ for purposes of § 2244(d)(2).” Id. at 1812.

(Doc. 93, p. 7). Thus, the essential holding and rationale of Pace is that, once state courts apply state law to the question of the timeliness of the filing of a state petition, the federal courts are not free to second-guess whether that determination creates a “condition to filing” or a “condition to obtaining relief.” It is a “condition to filing,” which precludes a finding that an untimely petition was, nonetheless, “properly filed” for § 2244(d)(2) purposes. The court concluded in 2006 (Doc. 93), therefore, that notwithstanding the mandate of the court of appeals, Pace, as intervening and controlling authority, required the court to hold that the petition is time barred.

On appeal from that dismissal, the court of appeals stated that the only issue was whether Pace overruled Siebert I. Citing to yet another decision in Siebert v. Allen, 480 F.3d 1089 (11th Cir.2007) (Siebert III), the court of appeals again reversed this court, holding that Pace had not overruled Siebert I and, thus, was not sufficient intervening authority to warrant the court’s departure from the mandate. The appellate court remanded the case to this court with the instruction that it proceed to consider the petitioner’s arguments that the procedural default of his claims can be excused because he is actually innocent. Once again, however, this court believes that' intervening authority from the Supreme Court fatally undermines the court of appeals’ reliance on Siebert I and Siebert III.

In concluding that Siebert I had not been overruled by the Supreme Court in Pace, the court of appeals relied upon its decision in Siebert v. Allen, 480 F.3d 1089 (11th Cir.2007) (“Siebert III ”). The entire foundation for the decision by the court of appeals in this case, that the petition is not time barred, flows from the opinion in Siebert III that Pace did not overrule Siebert I. The court said:

In April 2006, in accordance with 28 U.S.C. § 2253(c), the district court issued a Certificate of Appealability (“COA”) specifying the only issue on appeal as whether Pace overruled Siebert I. After briefing and oral argument in this case were concluded, another panel of this court answered this question in the negative. See Siebert v. Allen, 480 F.3d 1089, 1090 (11th Cir.2007) (“Siebert III ”). The district court therefore erred in dismissing Kuenzel’s petition as untimely under AEDPA.

Kuenzel v. Allen, 488 F.3d 1341, 1342 (11th Cir.2007) (Doc. 108 in this case). Thus, whether petitioner’s habeas petition is timely filed under AEDPA rests on the strength of the authority in Siebert III that Pace did not overrule the holding in Siebert I that only state time deadlines for filing post-conviction petitions that are “jurisdictional” could be “conditions to filing” sufficient to prevent an untimely filed state petition from being “properly filed” for purposes of tolling the AEDPA limitation period.

Siebert III, however, was itself reversed by the Supreme Court. In Allen v. Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007), decided five months after the court of appeals’ decision in the instant case, the Supreme Court reversed the Eleventh Circuit, saying:

The District Court dismissed Siebert’s habeas petition as untimely, reasoning that an application for state postconviction relief is not “properly filed” if it was rejected by the state court on statute-of-limitations grounds. The Court of Appeals reversed, however, holding that Siebert’s state postconviction petition was “properly filed” within the meaning of § 2244(d)(2), because the state time bar was not jurisdictional and the Alabama courts therefore had discretion in enforcing it. See Siebert v. Campbell, 334 F.3d 1018, 1030 (C.A.11 2003) (per curiam). The Court of Appeals accordingly remanded to the District Court to consider the merits of Siebert’s petition.

While Siebert’s habeas petition was pending on remand in the District Court, we decided Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). In Pace, we held that a state postconviction petition rejected by the state court as untimely is not “properly filed” within the meaning of § 2244(d)(2). Id., at 414, 417, 125 S.Ct. 1807. Relying on Pace, the District Court again found that Siebert’s state postconviction petition was not “properly filed,” and dismissed his federal habeas petition as untimely. The Court of Appeals, however, reversed and remanded. In a one-paragraph opinion, the court distinguished Pace on the ground that Rule 32.2(c), unlike the statute of limitations at issue in Pace, “operate[s] as an affirmative defense.” 480 F.3d 1089, 1090 (C.A.11 2007). Thus, the court found its prior holding — that Siebert’s state postconviction petition was “properly filed” because the state court rejected it on a nonjurisdictional ground — stood as the law of the case. Ibid.

The Court of Appeals’ carve-out of time limits that operate as affirmative defenses is inconsistent with our holding in Pace. Although the Pennsylvania statute of limitations at issue in Pace happens to have been a jurisdictional time bar under state law, see Commonwealth v. Banks, 556 Pa. 1, 5-6, 726 A.2d 874, 376 (1999), the jurisdictional nature-of the time limit was not the basis for our decision. Rather, we built upon a distinction that we had earlier articulated in Artuz v. Bennett, 531 U.S. 4,121 S.Ct. 361, 148 L.Ed.2d 213 (2000), between postconviction petitions rejected on the basis of “ ‘filing’ conditions,” which are not “properly filed” under § 2244(d)(2), and those rejected on the basis of “procedural bars [that] go to the ability to obtain relief,” which are. Pace, supra, at 417, 125 S.Ct. 1807 (citing Artuz, supra, at 10-11, 121 S.Ct. 361). We found that statutes of limitations are “filing” conditions because they “go to the very initiation of a petition and a court’s ability to consider that petition.” Pace, 544 U.S., at 417, 125 S.Ct. 1807. Thus, we held “that time limits, no matter their form, are ‘filing’ conditions,” and that a state postconviction petition is therefore not “properly filed” if it was rejected by the state court as untimely. Ibid, (emphasis added).

We therefore reiterate now what we held in Pace: “When a postconviction petition is untimely under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” 544 U.S., at 414, 125 S.Ct. 1807 (quoting Carey, 536 U.S., at 226, 122 S.Ct. 2134; alteration in original). Because Siebert’s petition for state postconviction relief was rejected as untimely by the Alabama courts, it was not “properly filed” under § 2244(d)(2). Accordingly, he was not entitled to tolling of AEDPA’s 1-year statute of limitations.

Allen v. Siebert, 552 U.S. 3, 5-7, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007). With the reversal of the court of appeals’ decision in Siebert III, the foundation for the holding in this case, that the AEDPA time bar was tolled by the untimely filed state post-conviction petition, crumbled. The intervening authority of Allen v. Siebert, therefore, requires the court to return — for the third time — to its original conclusion that the habeas petition in this action is time barred under § 2244(d) and that the state post-conviction petition rejected by the state courts as untimely filed was not “properly filed” for purposes of tolling the AEDPA one-year limitation.

As Supreme Court authority on point, this court is required to follow Pace, even though it apparently undermines the Eleventh Circuit’s decision in Siebert v. Campbell, 334 F.3d 1018 (11th Cir.2003), and the mandate in this case. The mandate in this case was fatally undermined by Allen v. Siebert, which reversed the very case the court of appeals relied on for its decision in this case. Allen v. Siebert leaves no doubt that Pace indeed overruled Siebert I. Applying Pace to this case, therefore, leads the court to the conclusion that, because petitioner’s state Rule 32 petition was not timely filed, it was not “properly filed” for purposes of statutory tolling under § 2244(d)(2) and thus, -the instant petition is due to be dismissed as untimely filed as well.

Finding that statutory tolling does not apply, the court also rejects the petitioner’s equitable tolling argument. Petitioner has made the argument that he is entitled to equitable tolling because the state court did not ultimately find that the Rule 32 petition was untimely until long after the one-year AEDPA limitation period had expired. Even though there is no statutory tolling available to petitioner, the limitation period might be equitably tolled by “extraordinary circumstances that are both beyond [petitioner’s] control and unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269 (11th Cir.1999). This argument was addressed in this court’s earlier order dismissing the petition, which is incorporated here. Petitioner was on notice as early as 1993 that his Rule 32 petition might be untimely when the respondents raised that very issue in a motion to dismiss the Rule 32 petition, which the state court initially granted. While it was not a concern at the time for his future habeas action, the enactment of the one-year limitation in the AEDPA in 1996 made it a concern, and he clearly could have filed a protective “placeholder” habeas petition within the one-year period after April 1996. Recent authority indicates that petitioner could have protected his rights simply by filing a protective habeas petition, which the court could then stay and hold in abeyance while the matter was litigated in the state courts. See Rhines v. Weber, 544 U.S. 269, 125 5.Ct. 1528, 161 L.Ed.2d 440 (2005). Indeed, this very petition, filed in February 2000, was a “place-holder” petition in the sense that he still was litigating in state court at the time it was filed — albeit too late. Petitioner is unable to demonstrate the requisite diligence to be entitled to equitable tolling of the limitation period. He has offered no reason why he could not have filed a protective habeas petition in 1996 or 1997, a time during which he was represented by counsel.

IV. ACTUAL INNOCENCE

Having concluded that the instant habeas petition is time barred, the court nonetheless faces the question remanded by the court of appeals, albeit for a different reason. In remanding the case to this court, the court of appeals found, not that the petition was time barred under § 2244(d), but that it was procedurally defaulted. The appellate court then instructed this court to consider whether the procedural default can be excused under the “miscarriage of .justice” exception to procedural default. This exception requires the petitioner invoking it to prove his actual, factual innocence of the crime. Preliminary to that issue, however, is whether the petition is even timely filed, which this court has determined that it was not. Nevertheless, the easelaw appears to suggest that, notwithstanding the time bar, habeas relief may be available to a petitioner who is “actually innocent.” See, e.g. Helton v. Secretary for the Department Of Corrections, 259 F.3d 1310, 1315 n. 2 (11th Cir.2001), cert. denied, 535 U.S. 1080, 122 S.Ct. 1965, 152 L.Ed.2d 1025 (2002); Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1218 (11th Cir.2000). Thus, the court’s examination of the petitioner’s purported “actual innocence” proceeds in this case in relation to whether he can overcome the § 2244(d) time bar.

Petitioner argues that “actual innocence” provides an exception to the AED-PA one-year statute of limitations. Kuenzel asserts that he is “actually innocent” of the murder for which he was convicted, and argues that he was at home sleeping when the murder occurred. He further argues that he is “actually innocent” of the death penalty in that his attorney failed to present sufficient evidence of mitigating factors at the penalty phase of his trial. As discussed infra, petitioner has failed to provide new, reliable evidence as is necessary to demonstrate that he is actually innocent. Furthermore, he has not proven that he is entitled to further discovery on this issue. See Melson v. Allen, 548 F.3d 993, 1003 (11th Cir.2008); Weeks v. Bowersox, 119 F.3d 1342, 1353 (8th Cir.1997), cert. denied, 522 U.S. 1093, 118 S.Ct. 887, 139 L.Ed.2d 874 (1998)(The actual innocence gateway is not intended to provide petitioner with a new trial “with all the attendant development of evidence, in hopes of a different result.”). Finally, he has failed to show that a hearing would be necessary in order for the court to evaluate the reliability of the evidence he has offered. A habeas petitioner is not entitled to an evidentiary hearing “on the threshold issue of cause and prejudice, or fundamental miscarriage of justice, unless he or she proffers ‘specific facts which support a finding that one of [the] exceptions to the procedural default rule exists.’ ” Baldwin v. Johnson, 152 F.3d 1304, 1319 (11th Cir.1998), cert. denied, 526 U.S. 1047, 119 S.Ct. 1350, 143 L.Ed.2d 512 (1999), quoting Hill v. Jones, 81 F.3d 1015, 1023 (11th Cir.1996). The burden is on petitioner to “demonstrate a likelihood that an evidentiary hearing will produce the sort of reliable evidence demanded by Schlup [v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995).]” Jemison v. Nagle, 158 Fed.Appx. 251, 256 (11th Cir.2005). For all the reasons explained infra, to the extent that petitioner’s briefs contain a motion for discovery and/or a motion for evidentiary hearing, both are due to be and hereby are DENIED. For all the reasons set forth below, the court also concludes that the instant petition is due to be dismissed as untimely.

A. Application of Actual Innocence “Gateway” to Time-Barred Claims

An “actual innocence” exception has been well established in the context of a procedural default since the Supreme Court held that a claim of actual innocence may “avoid a procedural bar” to consideration of the merits of a habeas petitioner’s claims. Schlup v. Delo, 513 U.S. 298, 326-27, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). In Schlup, a habeas petitioner sought review of claims of ineffective assistance of counsel and other constitutional errors at trial in a successive habeas petition. Those claims were proeedurally barred, but petitioner sought to escape the bar by demonstrating that he was actually innocent and, being so, the court’s refusal to hear his claims would result in a miscarriage of justice. 513 U.S. at 321, 115 S.Ct. 851. Accordingly, the claim of actual innocence provides a “gateway” through which otherwise proeedurally barred constitutional claims may be considered. Id. at 315, 115 S.Ct. 851. An “actual innocence” exception to the bar on successive habeas petitions was codified through AEDPA at 28 U.S.C. § 2244(b)(2)(B)(ii), but Congress did not include the same or any similar exception in the provisions governing time limitations at § 2244(d).

To date, the Supreme Court never has held that actual innocence may be used to overcome the one-year deadline. That issue has been presented to federal courts of appeals on several occasions, but most never have been required to decide it because the claimant usually is unable to make an adequate showing of actual innocence. In 2001, the Eleventh Circuit Court of Appeals expressly noted that it never has decided whether the “actual innocence” exception applies in the context of the AED-PA’s one-year filing deadline. Helton v. Secretary for the Department of Corrections, 259 F.3d 1310, 1315 n. 2 (11th Cir.2001), cert. denied, 535 U.S. 1080, 122 S.Ct. 1965, 152 L.Ed.2d 1025 (2002). The court of appeals observed that other courts “have been able to avoid deciding the difficult constitutional issue of whether the clause requires an exception to § 2244(d) for actual innocence because the petitioners were unable to make a showing of actual innocence.” Wyzykowski v. Department of Corrections, 226 F.3d 1213, 1218 (11th Cir.2000). See also Lucidore v. New York State Division of Parole, 209 F.3d 107, 114 (2d Cir.2000), cert. denied, 531 U.S. 873, 121 S.Ct. 175, 148 L.Ed.2d 120 (2000), (finding that petitioner failed to demonstrate actual innocence and therefore failing to reach the issue).

The trend toward recognizing that justice demands an exception exist for those who demonstrate actual innocence, however, has begun. In January of 2005, the Sixth Circuit Court of Appeals held that a credible claim of actual innocence will equitably toll the limitations period, allowing an otherwise time-barred habeas claim to be evaluated on the merits. Souter v. Jones, 395 F.3d 577, 588-590; cf. Escamilla v. Jungwirth, 426 F.3d 868, 871-72 (7th Cir.2005); but see Workman v. Bell, 227 F.3d 331, 342 (6th Cir.2000)(en banc), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001), (noting in dicta that a petitioner who lets the time run “either purposefully or by inadvertence” cannot receive relief on an untimely petition even if he claims actual innocence); Barreto-Barreto v. United States, 551 F.3d 95, 102 (1st Cir.2008)(finding that the actual innocence exception does not apply to the § 2255 one-year limitation period, and noting that defendants who are innocent are “constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming.”).

The Eleventh Circuit Court of Appeals similarly noted in February 2005 that innocence may serve “to lift the procedural bar caused by Appellant’s failure timely to file his § 2255 motion.” United States v. Montano, 398 F.3d 1276, 1284 (11th Cir.2005). In Montano, the court recognized that a procedural default, such as failure to appeal, “is different than the statute of limitations default,” yet applied the exception to the time-bar as well. Id. at 1285 n. 8. The appellate court did not explain its reasoning in applying, apparently for the first time, the “actual innocence” exception to the time-bar, and the only Supreme Court opinion cited in Montano is a case in which the petitioner had procedurally defaulted his claim by failing to raise the issue on appeal.

While Montano does not enunciate its reasoning for extending the “actual innocence” exception to time-barred claims, the Second Circuit Court of Appeals carefully examined the question in Doe v. Menefee, 391 F.3d 147, 159-161 (2d Cir.2004), cert. denied, 546 U.S. 961, 126 S.Ct. 489, 163 L.Ed.2d 364 (2005), but ultimately found, as it did in Lucidme, that the issue need not be decided because the petitioner failed to make a sufficient showing of actual innocence. In Doe, the appellate court determined that the AEDPA’s one-year limitations period “protects the same values of comity and finality as do the procedural limits on successive and defaulted petitions” and should therefore be subject to the same exception for those who show their actual innocence. Id. at 161. The court further noted that the standards for assessing innocence set forth in Schlup must be applied, and that if a petitioner shows that it is “more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt,” he may then access review of his otherwise time-barred claims via the “actual innocence” gateway. Doe, 391 F.3d at 161-62, citing Schlup, 513 U.S. at 324, 327-28, 115 S.Ct. 851. It is interesting to note that in Doe the Second Circuit Court of Appeals limited the application of the actual innocence exception to those instances in which the claim of innocence is supported by “new reliable evidence” that “was not presented at trial.” 391 F.3d at 161. Once the new evidence is proffered, the court “must determine whether the new evidence is trustworthy by considering it both on its own merits and, where appropriate, in light of the pre-existing evidence in the record.” 391 F.3d at 161, citing Schlup, 513 U.S. at 327-28, 115 S.Ct. 851.

This court finds that Montano provides binding precedent that an “actual innocence” exception applies to time-barred claims as well as to those that have been procedurally defaulted or are successive. The appellate court, in its order remanding this matter, specifically instructed this court to address the petitioner’s actual innocence claim, although it did so in the context of an exception to a procedural default, not a time bar. Moreover, the reasoning of the Sixth and Second Circuit Courts of Appeals persuades the court that application of such an exception is just, given the serious implications of barring a claim by one who demonstrates his actual innocence.

B. Burden of Showing Actual Innocence

Entering the gateway provided by a claim of actual innocence was not designed to be an easy task, and the burden placed on the habeas petitioner is a heavy one. It is rooted in the long-held notion that “it is far worse to convict an innocent man than to let a guilty man go free.” Schlup, 513 U.S. at 325, 115 S.Ct. 851, quoting In re Winship, 397 U.S. 358, 372, 90 S.Ct. 1068, 1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). Having already been convicted of a capital offense, however, a petitioner like Schlup or Kuenzel no longer has the benefit of any presumption of innocence, and instead “comes before the habeas court with a strong-and in the vast majority of the cases conclusive-presumption of guilt.” Schlup, 513 U.S. at 326 n. 42, 115 S.Ct. 851. The Supreme Court has noted that “experience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare.” 513 U.S. at 324, 115 S.Ct. 851. While the burden is on the petitioner to show his actual innocence, the burden for proving a Herrera innocence claim is higher than that imposed on a petitioner seeking to make merely a procedural or gateway innocence claim. Schlup, 513 U.S. at 316, 115 S.Ct. 851. A Herrera innocence claim requires a showing that the execution would be “ ‘constitutionally intolerable’ even if his conviction was the product of a fair trial.” 513 U.S. at 316, 115 S.Ct. 851. A gateway claim of innocence carries a slightly lower burden, and requires the petitioner to provide evidence that “must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.” 513 U.S. at 316, 115 S.Ct. 851.

C. Sufficiency of a Showing of Actual Innocence

As explained in Souter and Doe, the petitioner seeking to enter the “actual innocence gateway” must make a “credible showing” of innocence by providing the court with “new reliable evidence.” See Davis v. Terry, 465 F.3d 1249, 1251 n. 2 (11th Cir.2006) (“To pass through the Schlup ‘gateway,’ a petitioner’s new evidence must ‘establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.’ ”)(quoting Schlup, 513 U.S. at 316, 115 S.Ct. 851). A sufficient showing “requires the petitioner to produce “ ‘new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.’ ” ” Melson v. Allen, 548 F.3d 993, 1002 (11th Cir.2008), quoting Arthur v. Allen, 452 F.3d 1234, 1245 (11th Cir.2006), quoting Schlup, 513 U.S. at 324, 115 S.Ct. 851; Milton v. Secretary, Department of Corrections, 347 Fed.Appx. 528 (11th Cir.2009). The Fifth Circuit Court of Appeals has noted that, in addition to exculpatory-scientific evidence, trustworthy eyewitness accounts, and certain physical evidence, “credible declarations of guilt by another” are examples of the types of new, reliable evidence that may be used to establish factual innocence. Fairman v. Anderson, 188 F.3d 635, 644 (5th Cir.1999), citing Schlup, 513 U.S. at 324, 115 S.Ct. 851; Sawyer v. Whitley, 505 U.S. 333, 340, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992).

A threshold question then becomes whether the evidence proffered in support of an innocence claim is new. “New evidence” has not been defined by the Supreme Court or the Eleventh Circuit Court of Appeals in the context of the actual innocence gateway, but the Fifth Circuit Court of Appeals, evaluating both a free-standing actual innocence claim and a “gateway” claim in Lucas v. Johnson, 132 F.3d 1069, 1074 (5th Cir.1998), set the same evidentiary standard for both. That court noted that “much of the evidence alleged by Lucas to be newly discovered is neither new nor newly discovered, but in its essence and character, was presented, or available to present, to the trial jury.” That court went on to require a showing that: “(1) the evidence is newly discovered and was unknown to the defendant at the time of trial; (2) the defendant’s failure to detect the evidence was not due to a lack of diligence; (3) the evidence is material, not merely cumulative or impeaching; and (4) the evidence would probably produce acquittal at a new trial.” 132 F.3d at 1075 n. 3. Similarly, both the Seventh and Eighth Circuit Court of Appeals have required that a claim of actual innocence be brought within a year of the date on which the facts could have been discovered through the exercise of due diligence. Araujo v. Chandler, 435 F.3d 678, 680-81 (7th Cir.2005), cert. denied, 549 U.S. 810, 127 S.Ct. 39, 166 L.Ed.2d 18 (2006)(finding that the petitioner failed to exercise the requisite diligence in bringing to federal court the facts he claimed show that he is innocent); Flanders v. Graves, 299 F.3d 974 (8th Cir.2002), cert. denied, 537 U.S. 1236, 123 S.Ct. 1361, 155 L.Ed.2d 203 (2003). In the Tenth Circuit, the appellate court has required that a petitioner demonstrate due diligence in addition to satisfying the “high actual innocence standard.” Fleenor v. Scott, 37 Fed.Appx. 415, 417 (10th Cir.2002). The Ninth Circuit Court of Appeals, in contrast, has taken a broad view of “new” evidence, allowing a petitioner to proceed on the basis of evidence he possessed at trial, but did not present to the jury. See, e.g., Griffin v. Johnson, 350 F.3d 956, 961-63 (9th Cir.2003), cert. denied, 541 U.S. 998, 124 S.Ct. 2039, 158 L.Ed.2d 510 (2004).

Once the petitioner has come forward with new evidence, a habeas court next must evaluate the reliability of that evidence. The court may consider “the timing of the submission and the likely credibility of the affiants” in judging the reliability of the evidence. Melson, 548 F.3d at 1002. The court is “not required to test the new evidence by a standard appropriate for deciding a motion for summary judgment.” Bosley v. Cain, 409 F.3d 657, 664 (5th Cir.2005), cert. denied, 547 U.S. 1208, 126 S.Ct. 2887, 165 L.Ed.2d 920 (2006). The court not only reaches its own decisions about credibility and reliability, the court further must assess “the likely impact of this new evidence on reasonable jurors.” 548 F.3d at 1002. It has been noted that “[n]ew evidence that merely undermines the state’s theory of the case but does not rebut specific jury findings of guilt is insufficient to demonstrate actual innocence.” Buckner v. Polk, 453 F.3d 195, 200 (4th Cir.2006), cert. denied, 549 U.S. 1284, 127 S.Ct. 1817, 167 L.Ed.2d 327 (2007). The new evidence “must raise ‘sufficient doubt about [the petitioner’s] guilt to undermine confidence in the result of the trial.’ ” Milton v. Secretary, Department of Corrections, 347 Fed.Appx. 528, 531 (11th Cir.2009) (quoting Schlup, at 317, 115 S.Ct. at 862).

The court may grant the petitioner an evidentiary hearing to examine the assertion of actual innocence, but a hearing is not required where additional testimony from the affiants is “unlikely to make their revised account any more credible.” Adams v. Harrison, 266 Fed.Appx. 560, 562 (9th Cir.2008)(noting that the affidavits in question were submitted more than a decade after trial and were of “questionable credibility”). It has been noted that requiring that the district court hold an evidentiary hearing for every proffer of innocence defeats the goal of finality. In Amrine v. Bowersox, 128 F.3d 1222, 1230-31 (8th Cir.1997)(Beam, J., dissenting), cert. denied, 523 U.S. 1123, 118 S.Ct. 1807, 140 L.Ed.2d 946 (1998), it was noted: “In attempting to implement Schlup, the court exacerbates the confusion inherent in death penalty habeas litigation and opens the door to repetitive Schlup-type hearings in the federal district courts of this circuit by encouraging death-sentenced petitioners to release new and different bits of evidence, piecemeal, at various stages of the habeas proceeding.” Moreover, while a hearing may assist the court in determining reliability, hearings are not appropriate where a petitioner seeks to further “develop sufficient evidence of his actual innocence.” Weeks v. Bowersox, 119 F.3d 1342, 1353 (8th Cir.1997). In Weeks, the appellate court noted that the gateway is not intended to provide petitioner with a new trial “with all the attendant development of evidence, in hopes of a different result,” but instead is an “opportunity for a petitioner, aggrieved by an allegedly defective trial and having inexcusably defaulted the available remedies, to raise such a strong doubt to his guilt that, in hindsight, we cannot have confidence in the trial’s outcome.” 119 F.3d at 1354.

Because of the importance of the evaluation of actual innocence, a district court “is not bound by the rules of admissibility that would govern at trial” and can consider evidence that is “claimed to have been wrongly excluded” or which “became available only after the trial.” Schlup, 513 U.S. at 328, 115 S.Ct. 851. Although inadmissible evidence may be considered, its reliability still must be evaluated by the court. Similarly, the district court may evaluate the credibility of witnesses who testified at trial, in light of the newly discovered evidence. 513 U.S. at 330-32, 115 S.Ct. 851. A petitioner meets the threshold requirement if he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt. 513 U.S. at 327, 115 S.Ct. 851. Consequently, the burden that Kuenzel must meet in order to prevail is to establish by “new, reliable evidence” that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. He must do more than show that a reasonable doubt exists in light of the new evidence. See, e.g., Bosley v. Cain, 409 F.3d 657, 664 (5th Cir.2005).

It has been noted that actual innocence “means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998); Milton v. Secretary, Department of Corrections, 347 Fed.Appx. 528, 530-31 (11th Cir.2009). Actual innocence means that the person convicted did not commit the crime. Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir.1997), cert. denied, 520 U.S. 1267, 117 S.Ct. 2438, 138 L.Ed.2d 198 (1997), quoting Johnson v. Hargett, 978 F.2d 855, 859-60 (5th Cir.1992). “Even if the court, as one reasonable factfinder, would vote to acquit, the court must step back and consider whether the petitioner’s evidentiary showing most likely places a finding of guilt beyond a reasonable doubt outside of the range of potential conclusions that any reasonable juror would reach.” Doe v. Menefee, 391 F.3d 147, 173 (2d Cir.2004). In other words, a court may determine that, as factfinder, it would return a verdict of not guilty, yet still reject a petitioner’s argument that he is actually innocent. See, e.g., Lambert v. Blackwell, 134 F.3d 506 (3d Cir.1997), cert. denied, 532 U.S. 919, 121 S.Ct. 1353, 149 L.Ed.2d 284 (2001). As the Eleventh Circuit Court of Appeals noted in Melson, “[t]he demanding nature of the Schlup standard ensures that only the ‘extraordinary’ case will merit review of the procedurally barred claims.” 548 F.3d at 1002.

D. Illustrative Cases

A review of cases in which habeas petitioners have attempted to demonstrate their actual innocence compels the conclusion that a mere accumulation of additional evidence that would have bolstered the defense and would have persuaded some jurors to acquit still is insufficient to propel a petitioner through the narrow Schlup gateway. In Schlup, the petitioner was an inmate convicted of murder in a jailhouse stabbing. The new evidence he brought forward was the “sworn statements of several eyewitnesses” who said that Schlup was not involved in the crime. After the Supreme Court set forth the new standard for evaluating such an innocence claim, it remanded to the district court, which held an evidentiary hearing. The court heard testimony from 10 eyewitnesses, each of whom testified that Schlup had not been present at the murder scene, and who further explained that they had been unwilling to testify truthfully at trial because of the prison “code of silence” and out of fear for their own safety. The testimony of the “new” witnesses was buttressed by two other witnesses who testified that Schlup already had entered the dining room of the prison when the stabbing occurred in a hallway. The district court found that Schlup’s new evidence was both credible and reliable, and that “it is more likely than not that no reasonable juror would have convicted [Petitioner] in light of the new evidence.” Schlup v. Delo, 912 F.Supp. 448, 455 (E.D.Mo.1995). It thus appears that credible eyewitness testimony, from multiple witnesses, when accompanied by convincing explanations for the delay in producing such testimony, is sufficient to make a colorable showing of actual innocence for purposes of entering the gateway.

A search for instructive case law further indicates that a successful showing of actual innocence is very rare. The Supreme Court apparently only once has found that a habeas petitioner met the heavy burden. In House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006), an inmate sentenced to death for a murder conviction brought forward new evidence that semen evidence entered at the trial belonged to the victim’s husband, not to him, in “direct contradiction” of the trial presentation. 547 U.S. at 540, 126 S.Ct. 2064. The jury had been informed that the semen on the victim’s clothing could have come from the petitioner, who had a previous conviction for sexual assault. Discovery that the semen belonged to the victim’s husband served to drop from the case the only direct evidence of sexual assault. 547 U.S. at 541, 126 S.Ct. 2064. In addition, petitioner presented new testimony that blood evidence used against him appeared to have been deposited on his clothing after the autopsy — not while the victim was alive — raising “substantial questions” about the blood’s origin. 547 U.S. at 548, 126 S.Ct. 2064. House also brought forward two witnesses who described a confession by the husband, and a history of spousal abuse, pointing for the first time to a different suspect: the victim’s husband. 547 U.S. at 548-49, 126 S.Ct. 2064. Even such a strong showing of new evidence by House was not enough to meet the threshold of a free-standing claim of actual innocence as referenced in Herrera, the court held, but was enough to satisfy the Schlup standard to enter the gateway for federal review of his otherwise barred claims. 547 U.S. at 554-55, 126 S.Ct. 2064.

In House, the district court granted petitioner’s request for an evidentiary hearing, a motion apparently unopposed by the state. After examining petitioner’s new evidence, along with the evidence presented at trial, the Court made “a probabilistic determination about what reasonable, properly instructed jurors would do.” 547 U.S. at 538, 126 S.Ct. 2064, citing Schlup, 513 U.S. at 329, 115 S.Ct. 851. The court further noted that its function “is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors.” 547 U.S. at 538, 126 S.Ct. 2064. Even with House’s new scientific evidence, and evidence pointing to a new suspect who allegedly confessed, three justices dissented in House, rejecting the notion that “no reasonable juror would vote to convict” the petitioner, even in light of the new scientific evidence and the new evidence that the husband could have committed the crime. 547 U.S. at 555-56, 126 S.Ct. 2064 (Roberts, J., dissenting).

While new scientific evidence, such as DNA results that were unavailable at the time of trial, exemplify the type of “new evidence” envisioned by the Court in opening the innocence gateway, a petitioner’s own protestations seem inapposite to any definition of “new evidence.” As the Third Circuit Court of Appeals recognized in Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir.2004), cert. denied, 543 U.S. 1070, 125 S.Ct. 910, 160 L.Ed.2d 805 (2005), a petitioner’s “own sworn testimony” cannot be considered new where the petitioner chose not to testify at trial even though he was available to do so. Such a “choice does not open the gateway,” the court opined. 378 F.3d at 340. To permit such self-serving testimony to suffice would set the bar “so low that virtually every [actual innocence] claimant would pass through it.” 378 F.3d at 340. In short, a petitioner’s own insistence on his innocence should not sway the habeas court. As the Eighth Circuit Court of Appeals has noted: “Were protestation of innocence the only prerequisite to application of this exception, we fear that actual innocence would become a gateway forever open to habeas petitioners’ defaulted claims.” Wyldes v. Hundley, 69 F.3d 247, 254 (8th Cir.1995), cert. denied, 517 U.S. 1172, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996).

The Eleventh Circuit Court of Appeals has found that recantations of trial testimony, attacks on the credibility of witnesses, or evidence that merely adds support to a defense or alibi presented at trial generally do not meet the high standard required for a showing of actual innocence. The appellate court recently examined the requirement of “trustworthy, reliable evidence that Schlup envisioned” when evaluating affidavits produced by the petitioner in Melson v. Allen, 548 F.3d 993, 1003 (11th Cir.2008). Melson offered the court two statements by a co-defendant who swore that Melson was not his accomplice; a recantation from a .witness who had testified at trial that Melson asked her to provide a false alibi, and other affidavits implicating another man as the accomplice. Such were deemed insufficient to satisfy Schlup. Melson, 548 F.3d at 1003-04. The court further noted that “because Melson failed to make a threshold showing of actual innocence, the district court properly denied his motions for discovery and an evidentiary hearing.” 548 F.3d at 1004.

Similarly, in Ray v. Mitchem, 272 Fed.Appx. 807 (11th Cir.2008), the court found that “an affidavit from a man claiming responsibility for the [crime], an affidavit from a woman claiming the victim told her that she had ‘made up’ the fact that Ray had beaten her, and a letter purportedly from the victim” were insufficient to make a threshold showing of actual innocence. 272 Fed.Appx. at 811. Moreover, where a petitioner fails to make his threshold showing of actual innocence, the court need not conduct an evidentiary hearing. 272 Fed.Appx. at 811 n. 3.

Other courts have examined evidence that exonerates the petitioner and points to other suspects and still have found it insufficient to meet the strict Schlup threshold. The Sixth Circuit Court of Appeals reversed a district court’s order that granted an untimely habeas petition, finding that the applicant had failed to meet the Schlup standard. McCray v. Vasbinder, 499 F.3d 568 (6th Cir.2007), cert. denied, 552 U.S. 1192, 128 S.Ct. 1236, 170 L.Ed.2d 81 (2008). In McCray, the petitioner came forward with five affidavits, including his own, which supported his argument that he was not the shooter. The petitioner’s own affidavit alleged that he was not at the crime scene when the shooting occurred, and was not clean-shaven (as witnesses had testified) at that time. Four other affiants offered testimony that indicated that the shooter was another man, Anthony Jones. The court discounted this evidence:

While McCray presents the testimony of many individuals to support his claim of innocence, he has not presented sufficient evidence to satisfy the Schlup standard. The sheer quantity of this evidence, in short, is - not matched by its quality.

Oyd McCray’s affidavit and testimony that he was not on Bessemore Street at the time of the murder adds little in the way of quality to his actual-innocence claim. A reasonable juror surely could discount his own testimony in support of his own cause. See Riggins v. Norris, 238 F.3d 954, 955 (8th Cir.2001) (noting that court is “certainly entitled to disbelieve [defendant’s] self-serving testimony”); Cuppett v. Duckworth, 8 F.3d 1132, 1139 (7th Cir.1993) (“[W]e have repeatedly held that self-serving statements by a defendant that his conviction was constitutionally infirm are insufficient to overcome the presumption of regularity accorded state convictions.”).

A reasonable juror also could conclude that the testimony of three of the other witnesses — Stacy (his brother), Bacon (his sister), Rice (his aunt) — would not alter the verdict. Not only did they, as family members, have a personal stake in exonerating McCray, see Bosley v. Cain, 409 F.3d 657, 665 (5th Cir.2005), but they did not see the murder and have not provided a good explanation for why they took so long to come forward with evidence that their relation stands wrongly accused of murder.

499 F.3d at 573. In McCray, the petitioner provided “no scientific evidence linking anyone else to the crime, no confession by [the alleged shooter], and no evidence casting sufficient doubt on [the eyewitness’s] testimony so as to ensure that no reasonable juror would have convicted McCray of the crime.” 499 F.3d at 576. The court in McCray ultimately found that:

All of the new evidence in this case, moreover, does nothing to contradict the testimony of an eyewitness, Perrin, who had no reason for lying about the murder and who had a bird’s-eye view of the shooting. While we do not doubt the unfortunate possibility lurking in many criminal cases of mistaken identification, that ever-present risk must be handled by the beyond-a-reasonable-doubt standard and the other procedural protections afforded criminal defendants, not by watering down the stringent Schlup s