Cleveland v. Bradshaw (65 F. Supp. 3d 499, 2014)

MEMORANDUM OPINION AND ORDER DENYING PETITION

JACK ZOUHARY, District Judge.

Introduction

This habeas action has a lengthy history. At the center of this case is the sad but all-too-common thread of drug addiction and drug-trafficking violence. In 1996, a jury convicted Petitioner Alfred Cleveland of aggravated murder for the 1991 slaying of Marsha Blakely. Three other individuals also were convicted of Blakely’s murder— Benson Davis, Lenworth Edwards, and John Edwards. It is undisputed that Cleveland and these others convicted of Blakely’s murder were trafficking drugs from Jamaica-Queens, New York to Lo-rain, Ohio during the summer of 1991. It is also undisputed that Blakely was addicted to crack-cocaine. The disputed allegations are that Cleveland and the Queens-based drug traffickers killed Blakely over money she owed them for drugs.

This Court originally dismissed Cleveland’s Petition as time-barred by the Anti-terrorism and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations (Doc. 20). The Sixth Circuit reversed, finding Cleveland presented a credible claim of actual innocence, entitling him to equitable tolling, and remanded to this Court for consideration of the Petition’s merits. Cleveland, v. Bradshaw, 693 F.3d 626 (6th Cir.2012).

On remand, Cleveland filed an Amended Petition (Doc. 34), adding additional claims for relief. Respondent Warden Maggie Bradshaw filed a Return of Writ (Docs. 35, 37), and Cleveland filed a Traverse (Doc. 39). This Court held a full-day evidentiary hearing on December 17, 2013 , during which both Cleveland and Respondent presented evidence (see 12/17/13 Minute Entry), and this Court reviewed videotape deposition testimony submitted by Cleveland (see Doc. 76). This Court held final oral argument on April 7, 2014 (see 4/7/14 Minute Entry). Also submitted is an Ami-cus Curiae Brief in support of the Petition (Doc. 99), Cleveland’s Final Argument Presentation (Doc. 100), and Cleveland’s Bench Brief on Actual Innocence Claim (Doc. 101).

Background

The Sixth Circuit

The following facts are taken from the Sixth Circuit opinion summarizing the state court record:

Marsha Blakely’s body was discovered in an alley in Lorain during the summer of 1991. She had fractured ribs and a broken neck. Her throat had also been cut, and she had torture-type wounds on the side of her neck and head. A witness to the murder eventually came forward, describing in detail the events of that fateful night. The witness’ statement implicated the group of men responsible, one of whom was Defendant. Defendant was indicted for the aggravated murder of Ms. Blakely. He was arrested and arraigned in May of 1995.

Trial began as scheduled. It lasted six days, and included the foregoing witness’ testimony explaining Defendant’s participation in the death of Ms. Blakely.

After two days of deliberations, Defendant was found guilty as charged in the indictment.

Although Cleveland was charged with Blakely’s murder only, another person, Floyd Epps, was murdered on the same night as Blakely and the police believed the murders were related. Epps’s body was discovered at approximately 1:25 a.m. on August 8, 1991, and Blakely’s body was discovered almost eight hours later at approximately 9:18 a.m. After the police investigation into these murders stalled, the Lorain County prosecutor offered a $2,000 reward. In response, William Avery, Sr. (“Sr.”), a longtime police informant, contacted the police on September 10, 1991, with information about the murders. The police informed Sr. that the reward would be given only to someone with firsthand information. The following day, Sr. brought his son, William Avery, Jr., to the police and informed them that Avery had firsthand information to provide. Avery then implicated four persons in Blakely’s murder — Lenworth Edwards, Benson Davis, John Edwards, and Cleveland. According to Avery, all four men were drug dealers from New York who came to Lorain, Ohio to sell crack-cocaine. Avery informed the police that he owed Cleveland money for drugs and that he had offered to assault someone to pay off the debt. Cleveland then took Avery to Epps’s apartment and told Avery to assault Blakely, who was there at the time: However, Avery refused to assault Blakely because he knew her personally. Avery and Cleveland then watched while Edwards, Davis, and John Edwards assaulted Blakely for twenty minutes. Avery told the police that although he was present only at the assault, Cleveland came to his apartment an hour or two after the assault and told him, “We took care of the junkie, we knocked her off.”

As a result of providing the above information, Avery received the $2,000 reward, an additional $2,000-$3,000 for his deposition testimony, and a relocation stipend.

The State tried Edwards first in 1991. At the behest of Sr., Avery demanded $10,000 more from the prosecutor for his trial testimony. When the prosecutor refused, Avery refused to testify at the trial. The court then put Avery in jail for contempt. At some point, Avery returned to court and testified under oath that he had lied about witnessing any acts involving Blakely. This resulted in a mistrial and Avery’s imprisonment for perjury. While in jail, Avery decided to withdraw his recantation and again state that Cleveland, Edwards, Davis, and John Edwards were involved in Blakely’s murder. At this time, Avery also informed the prosecutor for the first time that instead of going home after Blakely’s assault, as he previously stated he did, he went with all four defendants and Blakely to the back of a shopping plaza where he saw a fifth male, known as “Justice,” repeatedly beat Blakely with a shiny object.

During Edwards’s retrial, Avery testified that he had lied about not being a witness during Edwards’s first trial and that he had seen part of the second assault that eventually caused Blakely’s death before he ran away. Avery repeated this version of events at the trials of Davis, Cleveland, and John Edwards, who was tried last. During Cleveland’s trial, Avery explained that he had recanted his testimony in Edwards’s first trial because he had been threatened by Edwards while in the county jail for his contempt charge. Avery also admitted on cross-examination that he had lied to the police on at least two occasions regarding what he witnessed that night.

Cleveland maintained his innocence throughout the trial and presented several witnesses who testified that he was in New York throughout the week of August 5-12, 1991. Based on evidence that Cleveland had met with his probation officer on the morning of August 7, 1991, the government conceded Cleveland’s presence in New York at that time. Cleveland also presented evidence that he was in New York at approximately 10 a.m. on August 8, 1991, the morning Blakely’s body was discovered. Nonetheless, the jury convicted Cleveland of aggravated murder on January 31,1996.

The court sentenced Cleveland to life imprisonment with the possibility of parole after twenty years. Cleveland filed a timely appeal to the Ohio Court of Appeals on February 27, 1996. The Ohio Court of Appeals affirmed Cleveland’s conviction on March 6, 1997. Cleveland filed a pro se notice of appeal and a motion for leave to file a delayed appeal to the Ohio Supreme Court on May 9, 1997, which the Ohio Supreme Court denied on July 2, 1997. On July ■15, 1997, Cleveland filed a delayed application to re-open his appeal in the Ohio Court of Appeals to assert a claim of ineffective assistance of appellate counsel. The Ohio Court of Appeals dismissed Cleveland’s application as untimely on July 29, 1997. Cleveland then filed a timely appeal to the Ohio Supreme Court on September 8, 1997 and, on November 12, 1997, that court dismissed his appeal as not involving any substantial constitutional question.

In the interim, on December 3, 1996, Cleveland filed a motion for a new trial in state court and a motion for leave to file a delayed motion for a new trial based on an affidavit from Jeremiah Ab-dullah Charlton. Abdullah attested in his affidavit that Cleveland was not involved in the murder and that Abdullah had tried to inform law enforcement and the prosecutor of this fact prior to trial. Abdullah further declared that Avery stated that he had fabricated the story about the four defendants’ involvement in Blakely’s murder. The court held a hearing on June 9, 1997, but denied the motion for a new trial because Cleveland produced no evidence at the hearing in support of his motion. Cleveland filed a timely appeal to the Ohio Court of Appeals on July 8, 1997, and that court affirmed the trial court’s decision on April 8,1998.

Between 1998 and 2006, Cleveland searched for Avery. Cleveland’s family hired ' a private investigator, Martin Yant, who located Avery in 1998. However, Avery fled when Yant and Cleveland’s wife attempted to meet with him to discuss the case. Students from the Innocence Project at Northwestern University also hired a private investigator who unsuccessfully searched for Avery for two years.

.On November 24, 2004, Avery, unbeknownst to Cleveland, contacted FBI Agent William Beachum and informed him that he had lied during the trials of Cleveland and the other defendants. Avery also informed Agent Beachum that Avery’s father had committed the murders and that Sr. had pressured Avery to come forward so that Sr. could collect the reward money and cover up his guilt. This information was not communicated to Cleveland.

Cleveland’s wife learned that Avery was in Detroit in late 2005 and traveled there to find him but was unsuccessful. Cleveland’s father then went to Detroit in January 2006 and informed Avery’s mother that he wanted to speak with Avery. Avery called Cleveland’s father a week later and said that he would meet with Cleveland’s attorney, Bruce Ellison, and private investigator, Paul Ciolino. Avery then spoke with Ellison telephonically and admitted that he had lied during Cleveland’s trial. Ellison informed Cleveland of this fact during a jailhouse conversation on February 5, 2006.

On February 9, 2006, Avery met with Ellison and Ciolino and signed an affidavit recanting his trial testimony. In this affidavit, Avery also averred 'that during Edwards’s trial he informed the prosecutor that his earlier statements about witnessing the murder were false but the prosecutor told him, “[I]f these dudes don’t go down for this, that [Avery] would.” Avery met with Ellison and Ciolino again on April 4, 2006, this time with a court reporter present, and provided a sworn statement of recantation with additional details. Avery claimed that he was now recanting because he had quit using drugs, had a full-time job, and was trying “to get [his] life straight with God.” Avery also claimed that after informing his mother about his 2004 conversation with the FBI, she told him that he needed to come forward and tell the truth. However, at no point during Avery’s conversations with Cleveland’s counsel did Avery repeat the detail he had stated previously that his father had actually committed the murders.

Cleveland v. Bradshaw, 693 F.3d 626, 628-30 (6th Cir.2012).

Evidence of Actual Innocence Cited by the Sixth Circuit

The Sixth Circuit found four pieces of new evidence to be sufficiently reliable to warrant equitable tolling for actual innocence.

(1) Avery Jr. Recantation

The Sixth Circuit pointed to the “substantial differences between Avery’s 1991 [pre-trial] recantation and his 2006 recanting affidavit.” , Cleveland, 693 F.3d at 636. It found the 2006 affidavit to be internally consistent and reliable — noting the only discrepancy in the affidavit “pertains to whether Detective Taliano showed Avery crime scene photographs during Avery’s initial interview or at some later point in the investigation.” Id. at 640.

The Sixth Circuit also found that “the circumstances surrounding Avery’s recantation render it more credible than his trial testimony or pre-trial statements.” Id. The court cited the fact that Avery received reward and relocation money from law enforcement for his pretrial and trial testimony but received no compensation for his later recantation statements. Id. The court also cited Avery’s 2004 unsolicited statement to the FBI. Id. Finally, the court pointed out that Avery did not recant his latest recantation as he did with his 1991 recantation. Rather, this time around, Avery invoked his Fifth Amendment right to remain silent in a 2008 state court post-conviction hearing. In light of these circumstances, the Sixth Circuit concluded that “the fact that Avery had no motive to recant his testimony but instead sought to do so on his own free will, and has not subsequently withdrawn that testimony, lends it credibility.” Id. (citing House v. Bell, 547 U.S. 518, 552, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006)).

(2) Dehus Affidavit Re: DNA

Cleveland offered the October 2005 affidavit of forensic scientist Larry Dehus in which Dehus testifies that Blakely’s blood was found on a piece of rubber found at the Epps murder scene. This evidence is potentially significant because it impacts the time frame in which Blakely could have been murdered. Because Epps was discovered by police several hours before Blakely, Cleveland claims this forensic evidence shows that Blakely was murdered before Epps, shortening Blakely’s time of death from sometime between 12 midnight and 3:00 a.m., as the medical examiner testified at Cleveland’s trial, to sometime between 12 midnight and 1:25 a.m. The State did not challenge the reliability of Dehus’ affidavit in connection with Cleveland’s equitable tolling, and the Sixth Circuit concluded it was sufficiently reliable. Cleveland, 693 F.3d at 638.

(3) Donaphin Affidavit Re: Cleveland’s Alibi

Cleveland also offered the July 2006 affidavit of childhood friend David Donaphin in support of his alibi. Donaphin was not called to testify at Cleveland’s trial. In the affidavit, Donaphin asserts that on the evening of August 7, 1991, he'celebrated his twenty-third birthday with friends in Hollis Hills, New York. The affidavit further states when his party ended, he drove á friend home and, in the process, ran into Cleveland in St. Albans, New York, sometime between 10:00 p.m. and 12 midnight. Donaphin states he spent some 15-20 minutes with Cleveland that evening.

The Sixth Circuit determined Dona-phin’s affidavit was reliable. The court found that because August 7, 1991 was Donaphin’s birthday, it was “more likely that Donaphin would remember the events that transpired on that date than if it had been another date with no particular significance.” Id. at 641. The court also found that because “there is no evidence of any close ties” between Donaphin and Cleveland, Donaphin’s affidavit “does not have the same risk of bias as an affidavit made by close friends or relations of Cleveland.” Id.

(4)Flight Records from New York City to Cleveland, Ohio

Finally, the Sixth Circuit cited evidence of flight records for August 7,1991 submitted by Cleveland. The records show that the last flight from New York to Cleveland on August 7 departed at 10:40 p.m. Given Donaphin’s affidavit about meeting Cleveland between 10:00 p.m. and 12 midnight, Cleveland contends it would have been impossible for him to be at the airport in time for that flight. The State did -not challenge the reliability of the flight records, and the Sixth Circuit concluded they were sufficiently reliable. Cleveland, 693 F.3d at 638.

Cleveland’s Amended Petition

After the remand to this Court, Cleveland filed an Amended Petition (Doc. 34), raising the following grounds for relief:

• First Ground: Cleveland is actually innocent of Blakely’s murder, and therefore his conviction violates the U.S. Constitution.

• Second Ground: The State violated Cleveland’s due process rights by presenting testimony from William Avery and Delphina Guice that the State knew or should have known was false.

• Third Ground: The State violated Cleveland’s due process rights when it failed to disclose evidence favorable to the defense.

• Fourth Ground: The State violated Cleveland’s substantive and procedural due process rights to a fair trial because the prosecutor committed misconduct.

• Fifth Ghvund: Cleveland’s trial counsel was constitutionally defective.

• Sixth Ground: Cleveland’s appellate counsel was constitutionally defective on direct appeal.

Summary of Evidence Presented During the Evidentiary Hearing

Paul Ciolino, a private investigator working on behalf of Cleveland, testified about his encounters with Avery in 2006 and the circumstances under which Avery provided the February 2006 affidavit and an April 2006 oral statement. He also testified about his investigation into flight records from New York City to Cleveland, Ohio for August 7, 1991, and that, according to airline records (EX 24), the last flight to Cleveland departed from New York at 10:33 p.m. The State pointed out that one of its theories at trial was that Cleveland had driven, not flown (TR 67), and trial evidence showed that Cleveland could drive from New York to Lorain in six hours.

Benson Davis, a convicted co-defendant of Cleveland, testified about his involvement in selling and transporting drugs to the Lorain area (TR 77). The bulk of his testimony concerned a telephone bill (EX 10) for a phone number assigned to his brother, Ian Davis, which he asserted showed Cleveland was in New York late into the evening and early morning of August 7-8. The phone bill is a single page that does not identify the individual associated with the phone number or otherwise reflect a connection between Davis and the bill. The single page contained handwritten markings — -lines and dashes — not written by Davis or Cleveland — instead, allegedly the markings of Ian Davis, Benson’s brother. The thrust of Davis’ testimony was that a call placed from the phone bill’s number to a Cleveland, Ohio number at 12:18 a.m. on August 8 could only have been placed by Cleveland, proving he was in New York at the time Blakely was murdered. Davis testified that the first time he was aware of the phone bill’s existence was in December 1992 when Ian brought it to his attention; however, Cleveland was not aware of the phone bill until years later in 2011 when he and Davis were incarcerated at the same prison.

Ian Davis testified (via video deposition) that in 1991 he lived in the basement of his family home in New York where he had his own phone line; was responsible for paying his phone bill and kept copies of paid phone bills; and occasionally his brother Benson and Cleveland used his phone line and would pay him for calls they made. Each month, Ian would go through his phone bill and mark who made each call and how much was owed for the call (Doc. 76-8, pp. 6-7). Ian claims he did not place a call on August 8, 1991 at 12:18 a.m. to Cleveland, Ohio, and that on the phone bill he assigned the call to Cleveland because “Cleveland was the only one I knew that knew someone in Cleveland!, Ohio]” (p. 11). He admitted he did not personally witness Cleveland place the call (p. 15), but did remember seeing Cleveland at his home on August 7-8 because Cleveland had brought his BMW car to the Davis house (pp. 11-12).

Cleveland testified, denying murdering or even knowing Blakely (TR 123). He was trafficking drugs between New York and Cleveland, Ohio during the summer of 1991, at which time he was 21 years old (TR 129). He primarily lived in New York with one of his girlfriends, Tanya Hawkins. They lived in a townhouse, and a teenaged girl named Ayasha Teague and her family lived above Cleveland and Hawkins (TR 130-31). During that summer, Cleveland drove a used black BMW purchased for $30,000 from a local auto body repairman (TR 132-34).

Cleveland described how he first encountered Avery that summer. Cleveland had traveled to Lorain to visit John Edwards, and together they sold drugs on the street. Edwards was arrested, after which Cleveland ended up meeting an unknown man who drove Cleveland around Lorain and eventually dropped him off at Avery’s house (TR 136-37). That was the first time Cleveland met Avery who later owed Cleveland $1,300 for drugs (TR 137).

According to Cleveland, on August 7, 1991, he was in New York. He had a meeting there with his probation officer sometime that afternoon (TR 146). In the evening hours, he went to the Davis family home (next door to his childhood home) and by around 10:30 or 11:00 p.m., Cleveland and a “bunch of guys” were hanging out on the street, listening to music being played in Cleveland’s BMW, and “just kicking it” (TR 141^42, 147). He recalled using Ian Davis’ phone in New York during the early morning hours of August 8, 1991 to call another girlfriend he knew in Cleveland, Ohio (TR 142^43). After he placed that phone call, he returned to his BMW to find an acquaintance, named David Donaphin sitting in his BMW (TR 149). Cleveland explained he did not testify at trial about seeing Donaphin because he had forgotten about some of the details of that particular night (TR 150-51).

On cross examination, the State pointed out the inconsistencies between Cleveland’s 2013 testimony and his 1996 trial testimony. For instance, at trial, Cleveland denied he sold drugs and never mentioned a black BMW; he only testified about owning a Jetta. He also never mentioned his Ohio girlfriend or that he ran into Donaphin and others the evening of August 7. The State also pointed out that Cleveland has no evidence he ever purchased or owned the BMW.

David Donaphin testified (via video deposition) that he and Cleveland grew up together in the same New" York neighborhood (Doc. 76-5, p. 2). Donaphin recalls some of the events of Wednesday, August 7 because it was his twenty-third birthday, and his girlfriend threw him a birthday party that started in the afternoon and lasted five or six hours (p. 6). After the party, Donaphin drove a friend named Mark Callahan to his home on Hillburn Avenue. While traveling to Callahan’s home, Donaphin drove by Mangin Avenue where he encountered many individuals in front of the Davis home (p. 7). He recalled seeing a black BMW parked in front of the house, and Donaphin stopped to chat with some of the individuals outside the Davis home. A few minutes later, Cleveland emerged from the Davis home, and Donaphin asked Cleveland if he could take the BMW for a drive. Cleveland said “no,” to which Donaphin protested that it was his birthday, and Cleveland instead gave him some money (pp. 7-8). During the encounter, Cleveland asked Donaphin to transport drugs to Ohio, which Dona-phin and Benson Davis later did (pp. 11-12). Donaphin estimates his conversation with Cleveland lasted about 30^45 minutes and occurred around 11:30 p.m. or midnight (p. 8). Donaphin could not name any other individuals who were present at the Davis home that evening (p. 17).

Ayasha Teague testified (via video deposition) that in 1991, when she was 16 years old, she kept a daily record of events (EX 5 is a copy of her entire 1991 calendar). The calendar listed both upcoming events as well as past events that had already taken place. A “past events” entry “would be made either that day or the next day” (Doc. 76-2, pp. 6-7). The notations cover birthdays and also rather mundane details about Teague’s daily life.

In 1991, Teague and her family lived in the apartment above Cleveland and Hawkins. Teague’s calendar includes some details of Cleveland’s comings and goings. For example, the date of May 19 includes the notation “A1 leaves” and the date of July 6 includes the notation “Greek fest. Hair done. A1 came home.” On August 7, the calendar notes: “A1 playing around. Washed BMW. He wet me and my clothes. Irv came over.” Teague remembers that on August 7 Cleveland was washing his BMW and began spraying her with the hose, and then a Mend of Cleveland’s named Irv stopped by (p. 10). Teague does not recall what time this occurred (TR 16). August 8 does not contain a notation referencing Cleveland, but does read: “Ruby’s B’Day. Kyle is home early. Jamaica Ave. Tonya. Gyro.” The next day, August 9, her calendar shows “A1 get screen T.V.Ü” She remembers that on August 9, Cleveland had a big screen television delivered to his home. Teague testified at the 1996 trial, but was not permitted to testify about the calendar because Cleveland’s counsel had failed to timely disclose it as an exhibit.

Former Lorain Police Officer Leslie George testified about responding to the Epps murder scene in the early morning of August 8. He found a rubber sleeve with blood on it near Epps’ body, a photo of which was admitted as EX 70. Elizabeth Benzinger, an expert with the Ohio Bureau of Criminal Investigation (“BCI”), tested the sleeve for DNA. She refuted the allegations in the Larry Dehus affidavit previously submitted by Cleveland. The BCI reports of this testing are EXS 99 and 105. According to Benzinger, DNA testing revealed the blood on the sleeve did not match Blakely and was from a male, not a female (TR 195). Benzinger surmised the blood was likely Epps’ but was not certain because law enforcement did not have a DNA standard for Epps for comparison (TR 198). Stacy Violi, also from BCI, testified generally about DNA and the testing reflected in EXS 99 and 105.

Former Lorain Police Detectives Richard Resendez and Geno Taliano were the primary investigators of the Blakely and Epps murders. Resendez testified that investigators first visited Epps’ apartment on August 9, and then again on September 18 at which time police took photographs of the apartment (TR 211). He and Tali-ano held several interviews with Avery. He first spoke with Avery about the Blakely murder on September 11 when police had not yet photographed the interior of the Epps apartment (TR 213). Resendez and Taliano also interviewed Delphina Guice who had approached police on August 13 with information about the murders. Guice was concerned that a potential suspect, Lenworth Edwards, had used her vehicle the evening of the murder and stayed at her house that same night (TR 218-19). Guice later gave police clothing Edwards wore that night and left at her residence, including a jean jacket with blood stains (TR 219).

Former Assistant Lorain County Prosecutor Jonathan Rosenbaum testified about his involvement in the prosecution of Cleveland and his three co-defendants for Blakely’s murder. Rosenbaum prosecuted each defendant in separate trials, and had continuing contact with Avery during those trials.

Standard op Review

Statute of Limitations and Procedural Default

The State once again argues that Cleveland’s Petition is barred by AEDPA’s one-year statute of limitations. This argument ignores the Sixth Circuit’s prior ruling applying equitable tolling, and this Court is bound by the law of the case. See Westside Mothers v. Olszewski, 454 F.3d 532, 538 (6th Cir.2006) (“[U]pon remand the trial court is bound to proceed in accordance with the mandate and law of the case as established by the appellate court.”) (internal quotation marks and citation omitted). Therefore, the State’s untimeliness argument is rejected.

Notably, the Ohio courts never squarely addressed the grounds now raised by Cleveland in his Amended Petition. This is so, in part, because the Ohio courts found Cleveland’s 2006 post-conviction relief petition untimely and equitable tolling unavailable. See State v. Cleveland, 2009-Ohio-397, 2009 WL 224505 (Ohio Ct.App.2009). Cleveland did raise on direct appeal the claims now presented in his Amended Petition. See State v. Cleveland, 1997 WL 104653 (Ohio Ct.App.1997).

The State further argues that Cleveland’s claims are procedurally barred because he failed to timely present them to the state courts. However, this argument again ignores that the Sixth Circuit’s application of actual innocence to Cleveland’s Petition provides a “gateway” for Cleveland “to have his otherwise barred constitutional claim[s] considered on the merits.” Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (quoting Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). The Circuit’s actual innocence finding enables Cleveland to overcome not only the one-year AEDPA statute of limitations bar, but also the state procedural bar (premised on Ohio’s post-conviction petition statute of limitations). See id.; accord Reeves v. Fortner, 490 Fed.Appx. 766, 770 (6th Cir.2012) (“Because we conclude that Reeves has not met the standard required to excuse a procedural default by demonstrating evidence .of actual innocence, we do not address Reeves’s claim of ineffective assistance of counsel.”).'

Fact Record before this Court

Under AEDPA, a state court’s factual findings that may bear on petitioner’s claims are presumed correct on federal habeas review, and may be rebutted only with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir.1998). This Court held an evidentiary hearing and admitted additional evidence on Cleveland’s claims under 28 U.S.C. § 2254(e)(2) and Townsend v. Sain, 372 U.S. 293, 312-13, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

De Novo Review of Legal Claims

Because the Ohio courts did not reach the merits of Cleveland’s claims, federal habeas review by this Court is not subject to the deferential standard under AEDPA that applies to “any claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). Instead, the legal claims are reviewed de novo. Cone v. Bell, 556 U.S. 449, 472, 129 S.Ct. 1769, 173 L.Ed.2d 701 (2009) (de novo review appropriate where state courts did not reach merits of petitioner’s Brady claim).

Analysis

First Ground: Actual Innocence

The Supreme Court has never recognized a stand-alone habeas claim of actual innocence. “Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). The Supreme Court recently acknowledged the absence of precedent for such a claim— “Whether such a federal right exists is an open question. We have struggled with it over the years, in some cases assuming, arguendo, that it exists while also noting the difficult questions such a right would pose and the high standard any claimant would have to meet.” Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). Citing Supreme Court precedent (or more aptly, the lack therefore), courts have held that a freestanding claim of actual innocence in a non-capital case based on newly discovered evidence is not a proper ground for habeas relief. See Cunningham v. Dist. Attorney’s Office for Escambia County, 592 F.3d 1237, 1272 (11th Cir.2010) (“[T]his Court’s own precedent does not allow habeas relief on a freestanding innocence claim in non-capital cases.”); Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir.1998) (“[T]he claim of innocence grounded in [multiple personality disorder] itself is not a basis for federal habeas corpus no matter how convincing the evidence.”).

This Court is not in a position to create a new constitutional claim and define the “high standard” necessary for such a claim where the Supreme Court has expressly declined to do so. Thus, as the law currently stands, actual innocence claims only operate to excuse procedural default so that a petitioner may bring an independent constitutional challenge. Herrera, 506 U.S. at 400, 404, 113 S.Ct. 853. To the extent Cleveland’s first ground alleges a free-standing claim of actual innocence, his claim is not cognizable. Any such claim must be tied to a constitutional injury.

Second Ground: Napue False Testimony Violation

Cleveland claims the State knew Avery and Guice’s trial testimony were false when prosecutors offered their testimony during trial.

In Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), the Supreme Court held that a defendant’s due process rights are violated when a state knowingly uses false evidence, including false testimony, to obtain a conviction. The knowing use of false or perjured testimony constitutes a denial of due process if there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989). In order' to prevail on a false-testimony claim, a petitioner must show “(1) the statement was actually false; (2) the statement was material; and (3) the prosecution knew it was false.” Id. (citing United States v. O’Dell, 805 F.2d 637, 641 (6th Cir.1986)).

Avery’s Statements

This Court acknowledges Avery’s testimony was “material” to the State’s prosecution of Cleveland. The first and third elements are inherently intertwined and call for a closer analysis of Avery’s statements and the circumstances under which he gave them.

September 11, 1991 Recorded Statement. The audio recording of this interview is EX 2 and the transcript is EX 15. Avery came forward after a $2,000 reward was publicized for information about the murders. Avery’s first recorded conversation with police took place on September 11, 1991. ■ The day prior, Avery’s father, Avery Senior (“Senior”), went to the Lo-rain police and told them he had a witness to Blakely’s murder. The next day, Senior brought his son to the police station where Avery told officers he would provide information he had in exchange for the $2,000 advertised reward and protection from the murderers. Avery proceeded to give officers a summary of what he professed to know about the crime.

Avery told detectives he owed about $3,000 to a New York drug trafficker he knew as “A1 Monday” (Cleveland’s pseudonym) and that he was to satisfy this debt by assaulting an individual who also owed Cleveland money. Avery told detectives that Cleveland approached him on August 7 about assaulting someone and Cleveland took him to Floyd Epps’ apartment, where a second car with three males associated with New York drug trafficking also arrived (later identified as Benson Davis, Lenworth Edwards, and John Edwards). Avery claimed that he, Cleveland, and the men from the second car entered Epps’ apartment where they encountered Blakely with another male New York drug trafficker.

Avery told detectives that at this point Cleveland told him to assault Blakely in order to get information from her about missing drugs and money. Avery was unwilling to do so because he had grown up with Blakely. After he refused to assault Blakely, Cleveland directed the other men to assault her, which they did. Avery relayed that Blakely struck Lenworth Edwards in the face during the assault, causing Edwards to cover his face and retreat from the attack. (Police had recovered from Guice a jacket Edwards was wearing that evening with his own blood on it.). Avery told police that during the melee, a kitchen table in the apartment was turned over. A subsequent police investigation of Epps’ apartment noted that a kitchen table leg was broken.

During this interview, Avery told detectives that Blakely was rendered unconscious during the attack, at which time Benson Davis dragged her out of the apartment and placed her in the backseat of the car Davis, Lenworth Edwards, and John Edwards had arrived in. Avery got back into the car with Cleveland, and Cleveland proceeded to return Avery to his home. Avery did not know what happened to Blakely after she was put in the other car with the three men. He told detectives he did not witness her murder.

September 20, 1991 Interview. The audio recording of this interview is EX 3, and the transcript is EX 16. In an effort to confirm the information Avery provided to police on September 11, police gave Avery a polygraph exam. The exam indicated Avery had additional information about the murder and had not been completely forthcoming. After police advised Avery of the polygraph results, he gave a new recorded statement to police, adding details to his initial statement.

Avery now told police that Cleveland left after dropping Avery off at his home but later returned on foot to Avery’s home after about one or two hours. Upon his return, Avery reported that Cleveland stated “We took care of that junkie.... We knocked her off.” Avery was afraid to relay this detail during the initial interview because he was fearful of retaliation from the perpetrators.

September 25, 1991 Grand Jury Testimony. Avery testified before the Lorain County Grand Jury. His testimony comported with the statements he gave police on September 11 and 20.

September 26, 1991 Deposition. The prosecutor deposed Avery with defendant Lenworth Edwards and his defense counsel present. The transcript is EX 18. At that time, Edwards had been charged and arrested for the assault and murder of Blakely. The deposition was taken to preserve Avery’s testimony because the prosecution feared that something could happen to Avery prior to trial. Avery testified to the same facts he reported to police on September 11 and 20.

Following Avery’s deposition testimony, the Lorain County Prosecutor’s Office provided him with $1,000 for relocation expenses and $2,000 in reward money. Avery relocated to Detroit but returned to Lorain after a short time.

December 1991 Contempt of Court and Recantation. After Lenworth Edwards’ trial commenced, Avery told Detective Ta-liano that he would not testify at the trial unless he was given “immunity” and another $10,000 (EX 9 at 131). The trial court brought Avery to the witness stand outside the presence of the jury at which time Avery asserted his Fifth Amendment right and refused to testify (id. at 134-35). The prosecutor and the court informed Avery he was not under the threat of indictment for any crime, so he could not assert the Fifth Amendment as a basis not to testify. Avery continued to refuse to testify unless he was paid additional money. The judge jailed Avery for contempt of court.

A couple days later, as Avery sat in the Lorain County Jail for contempt of court (the same jail where Lenworth Edwards was being held), Avery contacted an FBI agent and told the agent Edwards had threatened him and his family — Edwards made a motion with his finger across his own neck to simulate a throat being sliced; Edwards later formed his hand in the shape of a handgun and pointed at Avery; a corrections officer approached Avery and told him to “save himself’ and not testify against Edwards, admonishing Avery that the perpetrators of Blakely’s murder knew where Avery’s father and girlfriend lived. After these threats, Avery returned to the trial court and recanted, testifying that he had previously lied to police and in his pretrial deposition about the events of August 7-8. He told the trial court he lied in order to obtain the reward and relocation money. The judge declared a mistrial.

January 1992 Interview. Avery, incarcerated for perjury in connection with the Lenworth Edwards case, told officers he had additional information about Blakely’s murder, beyond what he had already provided. Detective Resendez conducted an interview with Avery. The audio recording of this interview is EX 1 and the transcript is EX 14.

His story about the events of August 7-8 largely remained the same. He and Cleveland arrived at Epps’ apartment where they encountered John Edwards, Lenworth Edwards, and Benson Davis. Blakely was in the apartment with an unknown New York male known as “Supreme.” Avery told police the fight began in the bedroom area of the apartment, moving to the kitchen area where the table was knocked over. Avery and Cleveland were standing in the kitchen area, and Avery again recounted how Lenworth Edwards was hit in the face.

At this point, Avery’s story changed from his prior version. He now claimed that he was not taken home by Cleveland after Blakely was dragged from the apartment. Instead, they all drove directly to the Westgate Plaza (the commercial plaza near the alley where Blakely’s body was discovered). Upon arriving, Avery told police that he and Cleveland drove behind the plaza where the still-unconscious Blakely was taken out of the second car and placed on the ground. Avery now relayed that a new unknown black male (known only as “Justice”), who was already behind the shopping plaza in another vehicle, walked over to Blakely’s body and began making downward thrusting motions at her body with a shiny object that Avery could not identify. Avery stated that at this point he got scared and ran home and spent the remainder of the night with his girlfriend, Patricia Gaddy. The next- morning Gaddy informed him that Blakely’s body had been found behind the Westgate Plaza.

After hearing this, Avery left his house and went to the home of his other girlfriend, Charlotte Watkins. After three or four days, Avery told Watkins about witnessing Blakely’s assault and murder. Avery and Watkins then went to his father’s house and told Senior what happened.

In this interview with Detective Resen-dez, Avery admitted he had lied when he previously testified Cleveland had made a statement to him about how he “knocked that junkie off,” and did so because he did not want to place himself at the scene of the murder, so he made up the story about seeing Cleveland again.

January 1996 Trial Testimony. Avery testified at Cleveland’s trial (see APP' 1877). Avery told the jury about his drug-dealing relationship with Cleveland who would give Avery crack cocaine to sell and Avery would pay Cleveland later. Cleveland fronted Avery drugs in this fashion about four or five times (APP 1878). As a result of this relationship, Avery ended up owing Cleveland about $3,000 or $4,000, and Avery offered to beat up individuals to reduce his debt.

Avery testified that on August 7, 1991, Cleveland came to Avery’s house to collect his money. Avery gave Cleveland about $3,000 that day but still owed Cleveland more money. Avery recounted for the jury how he and Cleveland arrived at Epps’ apartment, how “Supreme” was already there with Blakely while Lenworth Edwards, John Edwards, and Benson Davis arrived separately by car, and how he refused Cleveland’s request to beat up Blakely. He testified how Blakely hit Lenworth Edwards in the face, described how the fight left a mattress askew and kitchen table flipped over, and that Davis dragged the unconscious Blakely out of the apartment and into the backseat of a car. Avery explained they took Blakely to the alley behind the Westgate Plaza where an unknown black male was waiting, and that this male began “swinging” an object at Blakely. Avery claimed he ran home and told his girlfriend and Senior about the murder a few days later.

Avery admitted to the jury that he had not been completely truthful with police during initial interviews, detailing how he initially told police Cleveland had dropped him off at home, that he had not been to the Westgate Plaza, and that he had not witnessed Blakely’s murder (APP 1893-94). He also told the jury that he lied to police when he told them Cleveland made the statement that ‘We killed that junkie bitch,” explaining that he finally told police the truth after he was jailed for perjury charges in connection with Lenworth Edwards’ trial (APP 1895).

He explained to the jury that he refused to testify at Lenworth Edwards’ first trial because his father insisted Avery demand an additional $10,000 for his trial testimony (APP 1896). He then told the jury about how Lenworth Edwards had threatened him when Avery was sent to jail for contempt of court, causing him to recant his pretrial deposition testimony.

On cross examination, Cleveland’s trial counsel, Mary Papcke, questioned Avery about his different versions of events, pointing out that Avery’s September 1991 deposition was closer in time to Blakely’s murder than later statements (APP 1900-01). Papcke questioned Avery about the details of the evening, and highlighted that Avery could not recall the color and make of the car Cleveland was driving or what the participants in the murder were wearing (other than that they had on “dark colors”) (APP 1905, 1911-13). She also elicited testimony that Avery did not know who among the group first attacked Blakely (APP 1916). Papcke questioned Avery’s vantage point of the attack on Blakely (seated in a car with Cleveland) that took place in the alley and whether he could actually see what was happening (APP 1931-32).

Avery admitted he lied during the September 1991 deposition by leaving out the fact that he and Cleveland went with the group to the Westgate Plaza after the fight at Epps’ apartment (APP 1937). Avery also admitted that he collected somewhere between $4,000-5,000 in reward money, relocation money, and per diem compensation (APP 1938). Avery once again acknowledged that he had previously recanted his testimony during Len-worth Edwards’ first trial and that later he claimed he only recanted because he was threatened. Papcke cross examined him on the fact that, despite this claimed fear, Avery returned to Lorain shortly after relocating to Detroit (APP 1939). She also elicited testimony that Avery had been inconsistent in prior testimony as to whether or not he saw Lenworth Edwards’ nose bleeding after Blakely hit him in the face (APP 1941-42).

2001-05 FBI Statements. Avery approached FBI agents in November 2004 and met with Special Agent William Beac-hum and another agent from the Detroit office. Avery told the agents he had lied about witnessing Blakely’s murder and claimed his father had committed the crime (APP 595). He told the agents his motive was to collect reward money and avoid paying Cleveland a $5,000 drug debt. According to Agent Beachum’s affidavit, at no time during the interview did Avery allege police had shown him photos of the crime scene during questioning from which he conjured up a story of how the assault and murder occurred. Avery also told the agents Senior was involved in another murder in the Detroit area a few years prior (APP 596).

Avery had no further contact with the FBI agents until July 2005 when Agent Beachum tracked down Avery in an effort to locate Senior. Agent Beachum had no further conversations at that time with Avery about Blakely’s murder. Agent Beachum eventually located Senior who denied any involvement in Blakely’s murder and offered to take a polygraph. Senior told Beachum that his son Avery witnessed a murder in Lorain, and Blakely was murdered by “New Jersey” drug dealers because she took money and crack cocaine belonging to the dealers (APP 596).

February 2006 Affidavit. Paul Ciolino, a private investigator working on behalf of Cleveland, testified about how Avery’s 2006 affidavit (EX 12) came to pass. Cioli-no was first contacted by Cleveland’s wife around 1999 (TR 25). After reviewing the case file, Ciolino attempted to locate Avery, which was difficult because Avery was transient, had no job, and was not receiving public assistance (TR 35). Cioli-no fouhd Avery after seven years of searching.

In 2006, Avery’s mother received a phone call from Cleveland’s father, Leon (APP 285). Leon asked Avery’s mother to have Avery get in touch with him, which Avery did. Leon asked Avery to meet with Ciolino and Bruce Ellison, one of Cleveland’s attorneys, which Avery agreed to do. Ciolino located Avery in Detroit and spoke with him for over two hours, at the conclusion of which Avery signed an affidavit (APP 38). Witnessing Avery’s signature were Ciolino, Ellison, and a Detroit-area notary Ciolino found at a currency exchange near Ciolino’s hotel (APP 37). Ciolino and Ellison typed the affidavit at the hotel after speaking to Avery and took it to the currency exchange for Avery’s signature.

In the affidavit, Avery stated that while he did know Cleveland as a drug dealer from New York with whom he did business, his trial testimony “was a lie,” that he “never witnessed the murder of Marsha Blakely, was not with her or Al Cleveland the night she was murdered,” and his testimony “was a story my father told me to tell” (APP 281). Avery stated his father came to him after Blakely’s murder and told him the New York drug dealers were going to kill Avery next because he owed Cleveland money. While smoking crack, he and Senior decided Avery would lie and tell police he was a witness to Blakely’s murder. Senior proceeded to help make up a story for Avery to memorize (APP 282).

Avery stated that during the initial interview with police on September 11, the police showed him pictures of Epps’ apartment and Avery “made up the story of what happened in the apartment based upon the pictures” (APP 283). At some point, he wanted to tell police the truth— that Cleveland and the others were not involved in Blakely’s death' — but he was too afraid of Senior (APP 283):

I told my Dad that this was wrong, that Al was my friend, that I had no reason to think he would hurt me. My Dad then said I had to go to the police and continue to tell this story or he would kill me, my son, and Charlotte, if I told anyone about his plan. I believed him.

With regard to his testimony at Len-worth Edwards’ first trial, Avery now claimed that: Senior demanded Avery ask for an additional $10,000; he told Assistant Prosecutor Rosenbaum that he was “lying for the money”; Rosenbaum got angry with him and told him that “if these dudes don’t go down for this [Avery] would”; and he later testified at the trials because he feared Senior (APP 283-84).

April 2006 Oral Sworn Statement. Two months after Ciolino procured the February 2006 affidavit, he sought out Avery for another recorded statement. He again found Avery in the Detroit area. Ciolino rented a car and brought a court reporter with him. The court reporter gave Avery an oath and took down a statement in the back of the car. The questions and answers lasted approximately forty minutes (TR 41-42). Avery again claimed he did not witness Blakely’s murder (APP 290). He also provided more detail about his upbringing with Senior.

January 2008 Post-conviction Hearing. On January 31, 2008, the state trial court held a hearing on Cleveland’s state petition for post-conviction relief. The transcript of that hearing is EX 11. Avery was present in court and prepared to testify about the recantation outlined in the February 2006 affidavit and April 2006 statement. Before Avery began his testimony, the trial judge admonished Avery about the penalty for perjury:

THE COURT: And you understand, you understand what you are facing with your testimony today? Do you have any idea?

AVERY: Nothing but the truth coming out.

THE COURT: Okay. Should I find that what you testify is the truth, do you understand that that means that what you stated in at least four other trials — the mistrial, there is a question as to what you really testified to there, I guess — but on four other occasions, at the very least, would be at the very least contradictory to what you are testifying to today, based on what I’ve seen in your deposition and affidavit.

Do you know that that being the case, that there is the possibility that this Prosecutor’s Office could charge you with perjury, a felony of the Third Degree?

Do you realize that?

AVERY: No.

THE COURT: Do you know what the penalties for perjury are in this state?

AVERY: No.

The court then afforded Avery the opportunity to consult with a court-appointed lawyer, after which Avery returned to the witness stand. Before he testified, however, the prosecutor asked the trial judge to read Avery his Miranda rights, which the trial judge did (APP 1219). Avery then requested another opportunity to consult with his lawyer, after which Avery’s lawyer asked the prosecutor to grant him immunity. The prosecutor refused. Avery then declined to testify and asserted his Fifth Amendment rights (APP 1226). At the request of Cleveland’s counsel, the trial court took a recess to enable Avery to further consult with his lawyer. When the hearing reconvened for the final time, Avery again asserted his Fifth Amendment rights (APP 1232).

Hearing Evidence Re: Avery

Detective Taliano rejected Avery’s claim in his 2006 affidavit that “One time Taliano and Resendez came to the house to meet with my Dad. My Dad had a crack pipe in his hand at the time and the house was fall of people smoking crack,” and the detectives did nothing about the overt criminal activity (APP 282-83). Detective Taliano testified that Senior was becoming “a thorn in our side as far as investigation, actually an obstructionist,” and “had I had the opportunity to arrest him for having drug paraphernalia or a crack pipe in his hands, I would have taken that opportunity to remove him from the situation” (TR 257). He testified that, contrary to Avery’s 2006 affidavit, police investigators did not show Avery photographs of Epps’ apartment before questioning him. In fact, Taliano testified that the apartment was not photographed until September 18, 1991, well after his initial interview with Avery on September 11 (TR 257-58). He also testified that contrary to Avery’s 2006 oral statement, Avery and Senior did not come to the police “two or three days” after the murder (APP 291). Rather, the Averys first approached police more than a month after the murder(TR 258).

Following Avery’s “come clean” interview in January 1992, after he had been jailed on a perjury charge, Detective Tali-ano verified the latest version of events by interviewing Charlotte Watkins, the girlfriend in whom Avery had confided about witnessing the murder. Watkins verified that Avery told her about Blakely’s murder about four days after it occurred, and her version of what Avery told her corroborated what Avery had told Taliano (APP 1162).

Detective Taliano also testified that the polygraph of Avery’s initial September 11, 1991 story confirmed he was being deceptive as to only one point: that he went home after the scuffle and did not witness Blakely’s murder (TR 297-98).

Detective Resendez, in his experience, found Avery to be “always forthcoming” during their interviews and Avery “never had any problems conversing with us or answering any of our questions” (TR 242).

Assistant Prosecutor Rosenbaum also testified about his dealings with Avery at the evidentiary hearing. Rosenbaum prosecuted Cleveland, Lenworth Edwards, Benson Davis, and John Edwards. He stated that the prosecution was prepared to offer Avery’s September 26, 1991 deposition at Lenworth Edwards’ original trial when Avery initially refused to testify unless he was paid an additional $10,000 (TR 315-16). Rosenbaum explained that Avery “called the defense counsel for Mr. Edwards who brought him to court,” and when Avery found out the prosecution was unwilling to talk to him or give him more money, “he decided to tell the Judge then that he recanted” (TR 316). Rosenbaum also denied the allegation in Avery’s 2006 affidavit that Avery told Rosenbaum he was lying for money and that, in return, Rosenbaum threatened to prosecute Avery for the murder (TR 318).

Guice’s Statements

Delphina Guice was a girlfriend of Len-worth Edwards who loaned her car to Edwards the night of Blakely’s murder and.who brought Edwards’ bloody jacket to police shortly after the murder. She initially contacted police on August 13, 1991. She testified at both the Cleveland and Lenworth Edwards trials.

January 1996 Trial Testimony. Guice testified she knew Cleveland through Len-worth Edwards, whom she dated for a few months during the summer of 1991 (APP 1834). She gave Edwards’ bloody jacket to police shortly after Blakely was discovered murdered (APP 1836). Edwards borrowed Guice’s car the day before Blakely’s body was discovered and he returned the car during the early morning hours of August 8,1991 (APP 1837-38).

Cleveland’s defense counsel cross-examined. Guice with statements she made to police shortly after Blakely’s murder. Defense counsel pointed out that Guice had previously stated she did not know Cleveland or list him among individuals with whom she was familiar through Lenworth Edwards (APP 1843). Guice also testified that the only reason she gave Edwards’ jacket to police was because she saw blood on it and was told by police investigators she could be implicated in the murder if evidence came to light that she was involved (APP 1847). She denied that police told her that they would take away her kids (APP 1847). She testified that police impounded her car for an extended period of time in connection with the murder investigation (APP 1849). She also testified that she was mistreated by the police (APP 1851):

Taking my car and making me think I was going to jail, like they killed her [Blakely] in my car and I was scared and that was why I ran over there and gave them all that stuff, because I didn’t want to go to jail and I didn’t want my kids to get taken away.

October 2002 Affidavit. In 2002, Guice submitted a handwritten two-page affidavit as part of Cleveland’s state post-conviction proceedings in which she asserts Cleveland was in New York at the time Blakely was murdered (APP 332). She also contends her testimony at Cleveland’s trial was coerced by the prosecution and that she had been “constantly threatened and harassed” by Detective Taliano (APP 332).

Hearing Evidence Re: Guice

Detective Resendez testified at the evi-dentiary hearing that he did not threaten or intimidate Guice to testify at Lenworth Edwards’ trial and Detective Taliano denied he ever threatened or harassed Guice during interactions with her (TR 222, 252). Assistant Prosecutor Rosenbaum also denied Guice’s allegation that, at Lenworth Edwards’ trial, he told her that she was “going to testify to what we tell you,” as Guice alleged in her 2002 affidavit (TR 314, APP 333).

Analysis

“[A] recantation must be looked upon with the utmost suspicion.” Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir.2003) (quoting Sanders v. Sullivan 863 F.2d 218, 225 (2d Cir.1988)). The question here is not whether Avery changed his story. That is obvious. Over time, he has done so on more than one occasion. Indeed, even his original recantation was recanted. The record reveals that Avery would do (or say) anything for money and drugs. However, this Court finds the testimony by Avery at Cleveland’s 1996 trial was not “actually false” See Lochmondy, 890 F.2d at 822. Cleveland has not established that Avery was not telling the truth at trial. Avery has never recanted when it mattered. He has never recanted in a situation where he has been subject to cross examination. He has never recanted in open court.

And, more to the point, physical evidence corroborated his trial testimony. Police immediately made the connection between the murders of Epps and Blakely; they were aware that the two were acquaintances and spent a fair amount of time together. On August 8, police secured Epps’ residence, changing the locks (TR 293). Shortly after the murders, detectives discovered that the car involved may have belonged to Guice. They also discovered Guice was associating with a group from Jamaica-Queens, New York who were involved. in drug trafficking. Within a week of the murders, Guice produced the jacket with Lenworth Edwards’ blood on it and told police she had loaned her vehicle to Edwards during the time of the murders. Guice also relayed to police, again shortly after the murder, that Blakely might have stolen some drugs from the New York dealers. The information from Guice did not mean much to police until September 11, when Avery first spoke with detectives and recounted the scuffle that took place inside Epps’ apartment and how Blakely had managed to strike Len-worth Edwards and bloody his face. Avery also reported that the table had been knocked over during the scuffle, something he had no way of knowing unless