[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15594 ELEVENTH CIRCUIT
OCTOBER 1, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-01132-CV-ORL-28-KRS
JESSIE MILTON,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 1, 2009)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Proceeding pro se, Florida state prisoner Jessie Milton, serving a 22-year
sentence for the second-degree murder of his then girlfriend’s 1-year-old daughter,
appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas
corpus relief as time-barred by 28 U.S.C. § 2244(d). In his § 2254 petition, Milton
argued that he was actually innocent of the murder for which he was convicted,
alleging that the victim’s mother had lied at his trial, that the trial court erred by
giving a misleading jury instruction, that various forms of prosecutorial
misconduct had occurred during his trial, and that he received ineffective
assistance of counsel. Milton eventually submitted 18 documents–including
various unnotarized affidavits and letters–in support of his actual-innocence claim.
The district court denied Milton’s petition, finding that, assuming an actual-
innocence exception to 28 U.S.C. § 2244(d)’s statute of limitations existed under
the Suspension Clause, Milton failed to offer new, reliable evidence of his
innocence that was sufficient to undermine the district court’s confidence in
Milton’s conviction. We granted a certificate of appealability (“COA”) on the
following issue:
“Whether the district court erred in finding that Milton failed to present
sufficient evidence supporting his claim of actual innocence.”
On appeal, Milton argues that the district court failed to analyze his newly
presented evidence under the appropriate legal standard and further that his newly
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presented evidence supported his trial testimony, contradicted the testimony of the
victim’s mother, and implicated the victim’s mother in the murder, thus raising
substantial doubt as to his guilt. He also makes various arguments related to
prosecutorial misconduct and the jury instructions at his trial, the district court’s
failure to hold an evidentiary hearing, and the district court’s failure to address the
merits of all of his claims. He has also submitted a “motion for relief,” asking us
to vacate his conviction and sentence, remand to the district court, grant a new
trial, or order an evidentiary hearing.
As an initial matter, we will not address the merits of Milton’s claims
beyond the sufficiency of his actual-innocence claim as a way to overcome the
§ 2244(d) time-bar because our scope of review is limited to the issue specified in
the COA. See Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998)
(addressing a motion to vacate under 28 U.S.C. § 2255).
When reviewing the district court’s grant or denial of a § 2254 petition, we
review the decision de novo. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir.
2005). Legal questions and mixed questions of law and fact are reviewed de novo,
while a district court’s factual findings are reviewed for clear error. Arthur v.
Allen, 452 F.3d 1234, 1243 (11th Cir. 2006), modified on reh’g, 459 F.3d 1310
(11th Cir. 2006).
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The Suspension Clause provides: “The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Despite this
constitutional restriction, the “judgments about the proper scope of the writ are
normally for Congress to make.” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct.
2333, 2340, (1996) (quotation omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes a one-year statute of limitations for federal habeas petitions filed pursuant
to 28 U.S.C. § 2254:
The limitation period shall run from the latest of–
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable to
cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2244(d)(1). We have not decided whether a showing of actual
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innocence creates an exception to the AEDPA’s statute of limitations in order to
prevent a possible violation of the Suspension Clause. Wyzykowski v. Dept. of
Corr., 226 F.3d 1213, 1218-19 (11th Cir. 2000); see also Melson v. Allen, 548 F.3d
993, 1002-03 (11th Cir. 2008), pet. for cert. filed, (U.S. July 16, 2009) (No. 09-
5373) (noting that we have not decided whether the Constitution requires an
actual-innocence exception to AEDPA’s limitations period). To avoid answering
that difficult constitutional question until necessary, we have held that before
addressing whether the AEDPA’s limitations period constitutes a violation of the
Suspension Clause in the case of a claim of actual innocence, we should first
consider whether the petitioner can show actual innocence. Wyzykowski, 226 F.3d
at 1218-19.
In a related context, the Supreme Court has held that in order to avoid a
procedural bar based on successive habeas petitions and have his petition heard on
the merits, a habeas petitioner asserting actual innocence must show that his
conviction “probably resulted” from “a constitutional violation.” Schlup v. Delo,
513 U.S. 298, 327, 115 S.Ct. 851, 867 (1995). The petitioner can meet this
standard by presenting new evidence that shows “that it is more likely than not that
no reasonable juror would have convicted him in the light of the new evidence.”
Id. The “reasonable doubt” standard should be based on the district court’s
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“probabilistic determination about what reasonable, properly instructed jurors
would do.” Id. at 329, 115 S.Ct. at 868.
An actual-innocence claim must be supported “with new reliable
evidence–whether it be exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence–that was not presented at trial.” Id. at 324,
115 S.Ct. at 865. To meet the “threshold showing of innocence” justifying “a
review of the merits of the constitutional claims,” the new evidence must raise
“sufficient doubt about [the petitioner’s] guilt to undermine confidence in the result
of the trial.” Id. at 317, 115 S.Ct. at 862. “‘[A]ctual innocence’ means factual
innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614,
623, 118 S.Ct. 1604, 1611 (1998).
After reviewing Milton’s newly submitted evidence and the evidence
presented at trial, the district found that Milton had not made a sufficient showing
of actual innocence. The district court detailed the contents of the submissions in
its order dismissing Milton’s petition. The district court found that the affidavits
submitted by Milton were neither new nor reliable evidence of his innocence based
on the relationships between Milton and the various affiants and because many of
the affiants were aware of the alleged facts to which they attested before Milton’s
trial. The district court further found that none of the affidavits explained or
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nullified Milton’s confession or his taped conversation with the victim’s mother
wherein he implicated another individual. Based on those findings, the district
court found that Milton had not presented “sufficient evidence to undermine the
court’s confidence in the outcome of his criminal proceedings.”
Upon review of the record, and upon consideration of the parties’ briefs, we
hold that the district court did not err when it dismissed Milton’s petition. Before
addressing the affidavits more specifically, we note that the reliability of the
affidavits is called into question because all of these affidavits were presented more
than ten years after the murder and roughly eight years after Milton’s trial and that
in most cases, as the district court noted, the affiants were aware of the alleged
facts to which they now attest before Milton’s trial. A reasonable explanation for
this delay has not been presented. At most, some affiants noted that they did not
wish to “get involved.” See Schlup, 513 U.S. at 332, 115 S. Ct. at 869 (noting in
context of request for an evidentiary hearing on an actual-innocence claim that “the
court may consider how the timing of the submission and the likely credibility of
the affiants bear on the probable reliability of that evidence”).
Considering the submissions more closely, we conclude that the affidavits
are not sufficient to satisfy the threshold showing of actual innocence. The
reliability of the affidavits from Capers, Allen, and Walker are all called into
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question because they are all incarcerated with Milton. The reliability of the
affidavits of Roberts, Murphy, and Brown are all called into question because
Roberts and Brown are either friends with Milton or his family and Murphy is
Roberts’s cousin. The affidavit of Jenkins suffers a similar problem because she is
the cousin of an inmate incarcerated with Milton. Milton’s own affidavit is not
new, reliable evidence of his innocence because it primarily repeats his testimony
at trial and he presents no explanation for any factual differences from his trial
testimony. The alleged “Oath Statement” of the victim’s mother is not new,
reliable evidence because it is not sworn to or signed by the purported author. The
reliability of the hand-written letter from the victim’s mother is called into question
first because it is not in the form of an affidavit and also because it functions
primarily as a recantation of her prior testimony. See Melson, 548 F.3d at 1003
(noting that statements not in the form of an affidavit are less reliable); United
States v. Santiago, 837 F.2d 1545, 1550 (11th Cir. 1988) (noting that “recantations
are viewed with extreme suspicion by the courts”). The affidavit of Capers is not
new, reliable evidence of innocence because Capers claims that, although he did
not personally know Milton, he remembers seeing him out on the street one night
more than ten years ago and further because Capers can not remember whether this
occurred on the night of the murder or not.
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Even if any of the affidavits presented new, reliable evidence of actual
innocence, the evidence presented in the affidavits is not sufficient to show that
“more likely than not that no reasonable juror would have convicted” Milton in
light of the evidence. Schlup, 513 U.S. at 327, 115 S.Ct. at 867. The evidence is
insufficient because, despite the fact that several of the affidavits corroborate a
portion of Milton’s version of events and others implicate the victim’s mother in
the crime or undermine her trial testimony, none of the evidence negates Milton’s
confession or his taped conversation with the victim’s mother wherein he
implicates another individual in the murder. Finally, we note that the jury
instructions and verdict form submitted by Milton, the letter from Milton to
Whitson, and the Florida state court orders denying post-conviction relief have no
bearing on Milton’s actual-innocence claim.
Because Milton has not presented new, reliable evidence in light of which it
is more likely than not that no reasonable juror would have convicted him, Milton
has not made the threshold showing of actual innocence. Accordingly, we affirm
the district court’s dismissal of his petition. Because we are affirming the court’s
dismissal, we also deny as moot Milton’s motion for relief.
AFFIRMED.
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