[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-13566
U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ June 22, 2005
THOMAS K. KAHN
D. C. Docket No. 03-02913-CV-J-S CLERK
AARON LAMONT JOHNSON,
Petitioner-Appellant,
versus
RALPH HOOKS,
Warden,
ATTORNEY GENERAL OF ALABAMA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 22, 2005)
Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.
PER CURIAM:
Petitioner is an Alabama prison inmate serving a life sentence for capital
murder. The district court denied his application for a writ of habeas corpus, 28
U.S.C. § 2254, as time barred. He now appeals. We granted a certificate of
appealability on two issues:
(1) Whether the district court properly found that [petitioner] did not
make a sufficient showing of actual innocence to potentially overcome
the untimeliness of his federal habeas corpus petition based on the
limited record before it?
(2) If not, whether the application of 28 U.S.C. § 2244's one-year
statute of limitations constitutes an unconstitutional suspension of the
writ of habeas corpus? See Wyzykowski v. Department of
Corrections, 226 F. 3d 1213, 1218-19 (11th Cir. 2000).
A federal court reviewing a § 2254 petition must give a level of deference to
a state court’s findings of fact. Specifically:
In a proceeding instituted by an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(e)(1).
Prisoners have a one-year limitation period to file a § 2254 habeas petition.
28 U.S.C. § 2244(d). In Wyzykowski, we held that the § 2244(d)’s one-year
statute of limitations was not an unconstitutional suspension of the writ of habeas
corpus. We noted a “troubling and difficult constitutional question,” however,
when a petitioner can show actual innocence and the statute of limitations has
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expired. Wyzykowski, 226 F.3d at 1218. We held that the petitioner must make
the actual-innocence showing before the court will address the constitutional issue.
Id. We vacated the district court’s decision because there was “a complete absence
in the record on appeal concerning . . . a showing of actual innocence.” Id. at
1219. In particular, although Wyzykowski had apparently pled guilty, we did not
have access to his plea colloquy. Id. Moreover, the district court never addressed
Wyzykowski’s claims of actual innocence. Id. at 1218.
To make a showing of actual innocence, the petitioner must establish that a
constitutional violation has probably resulted in the conviction of one who is
actually innocent.” Sibley v. Culliver, 377 F.3d 1196, 1205 (11th Cir. 2004). “To
meet this standard, a petitioner must demonstrate that it is more likely than not that
no reasonable juror would have convicted him of the underlying offense.” Johnson
v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quotations omitted); see also
Sibley, 377 F.3d at 1205. To accomplish this, the petitioner must offer reliable
evidence that was not presented at trial. Johnson, 256 F.3d at 1171.
Here, the record before the district court was sufficient to enable the court to
conclude that petitioner failed to meet the “actual innocence” exception. Included
in the record were the state appellate court’s opinion, the affidavits from the
additional witnesses, the reports, and the recorded statements that were submitted
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with petitioner’s traverse. We give deference to the facts set out in the state
appellate court’s opinion and presume them to be correct because petitioner
Johnson failed to prove them incorrect by clear and convincing evidence. 28
U.S.C. § 2254(e)(1). In the light of the state appellate court’s summary of the
testimony, the district court considered the new evidence petitioner offered to
establish his innocence and found that such evidence would have been repetitive
and conflicting. We agree. And, since we conclude that the district court properly
found that petitioner failed to meet the “actual innocence” exception, we need not
address the second issue the certificate of appealability presents, i.e., whether the §
2244(d) statute of limitations is constitutional as applied to someone who is
actually innocent.
AFFIRMED.
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