[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
_____________ ELEVENTH CIRCUIT
July 21, 2004
No. 03-11604 THOMAS K. KAHN
CLERK
_____________
D.C. Docket No. 02-01217 CV-A-N
GEORGE EVERETTE SIBLEY, JR.,
Petitioner-Appellant,
versus
GRANTT CULLIVER, Warden
DONAL CAMPBELL, Commissioner,
Alabama Department of Corrections,
Respondents-Appellants.
____________
Appeal from the United States District Court
for the Middle District of Alabama
____________
(July 21, 2004)
Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.
TJOFLAT, Circuit Judge:
George Sibley Jr., along with his wife, Lynda Lyon-Sibley, were convicted
of capital murder on October 4, 1993 and sentenced to death.1 Though Sibley
consistently refused the assistance of counsel on appeal and did not file any briefs
pro se, the Alabama Court of Criminal Appeals examined the trial record “to
determine whether he validly waived counsel, whether there was sufficient
evidence at trial to support his conviction, and whether he was properly given the
death penalty.”2 On March 21, 1997, it affirmed his conviction. See Sibley v.
State, 775 So. 2d 235 (Ala. Crim. App. 1997).
On April 20, 2000, the Sibleys mailed several members of Congress a
“petition for orders commanding release from unlawful restraint of liberty.” It
1
The Alabama Court of Criminal Appeals summarized the facts as follows:
In responding to a call placed by a concerned citizen who had overheard a child
calling for help, an Opelika policeman, [Sgt.] Roger Lamar Motley, was killed in
the line of duty. After making an initial inquiry of Sibley, Officer Motley was
gunned down by Sibley and his codefendant, Lynda Lyon Block, both of whom
were fleeing from Florida to avoid being sentenced on assault charges.
...
The prosecution’s case was virtually impenetrable. The State produced 12
eyewitnesses, made a thorough presentation of forensic evidence tying Sibley to
the murder of Officer Motley, and presented Sibley’s statement and testimony.
Sibley admitted that he shot Officer Motley, but argued that his actions were in
self defense.
Sibley v. State, 775 So. 2d 235, 240 (Ala. Crim. App. 1997).
2
This is the description offered by the federal district court that later rejected Sibley’s
petition for habeas corpus.
2
declared that they were imprisoned because of a vast conspiracy involving the
American Bar Association, the Alabama Bar Association, and the Alabama court
yystem, apparently dedicated to suppressing the existence of the “true” Thirteenth
Amendment, which has something to do with titles of nobility. “Since lawyers
and judges accept the titles ‘Esquire’ and ‘The Honorable,’ it is argued they are
not citizens and the entire judicial system is illegal.”3
In the meantime, the Alabama Supreme Court appointed an attorney to
appeal the judgment of the court of criminal appeals on Sibley’s behalf. Sibley
repeatedly objected to this appointment. On May 12, 2000, after considering the
attorney’s arguments, the Alabama Supreme Court affirmed Sibley’s conviction.
Ex parte Sibley, 775 So. 2d 246 (Ala. 2000). Sibley did not seek certiorari in the
United States Supreme Court or state or federal post-conviction relief. The
deadline for seeking a writ of certiorari was August 10, 2000.
On July 12, 2001, Sibley filed a Notice with the Alabama Supreme Court
(hereinafter, “the Notice”). It read, in relevant part, “We, George Everette Sibley
and Lynda Lyon-Sibley . . . give notice that we lodged an appeal against
convictions of ‘capital murder’ and sentence of death . . . . Our appeal documents
were mailed to certain members of the Congress of the United States of America
3
See supra, note 2.
3
on April 20, 2000 and supplemented and/or amended thereafter.”4 The Notice
closed by emphasizing, “This Notice may not be construed as a motion or
pleading, but only as a notice to the fact that we are actively appealing the
convictions and sentences contrived against us in a venue Constitutionally
available, and our reasons for not doing so in the Unified Judicial System.” The
Sibleys disclaimed any involvement in the Alabama court system and simply
wished to inform the courts that their “appeal” was pending before Congress. The
Alabama Supreme Court has apparently never acted on this filing.
August 10, 2001 was the deadline established by 28 U.S.C. § 2244(d)(1) for
Sibley to file a federal petition for a writ of habeas corpus. Following this
deadline, he filed a variety of additional notices with the Alabama Supreme Court,
which can only be described as rambling and bizarre.
Finally, six days before his scheduled execution, on November 1, 2002,
Sibley filed a petition for a writ of habeas corpus and a motion for stay of
execution with the United States District Court for the Middle District of
4
The Notice purported to inform the court of four other things, few of which make any
sense. First, it claimed that the Alabama courts had violated the Fourteenth Amendment by
treating them as serfs. Second, it emphasized that the Sibleys did not knowingly or willingly
trade with any enemy of the “Constitutional United States.” Third, it declared that the Sibleys
did not accept the “ridiculous invention called ‘self-representation’ (or ‘pro se’)” and did not
seek any “privileges or benefits under the 14th Amendment.” Finally, it contended that Sibley
and his wife had not authorized the actions of the attorneys who had been appointed to represent
them before the state supreme court.
4
Alabama. The district court stayed his execution to determine whether the habeas
petition—Sibley’s first—had been filed within AEDPA’s one-year statute of
limitations. See 28 U.S.C. § 2244(d)(1). It ultimately concluded that the petition
was untimely.
On appeal, Sibley raises three issues. First, he contends that he was entitled
to statutory tolling of AEDPA’s statute of limitations under 28 U.S.C.
§ 2244(d)(2). Second, he maintains that, because he is raising a claim of actual
innocence, it would be unconstitutional to apply AEDPA’s statute of limitations to
him. Finally, he claims that his death sentence should be vacated based on the
Supreme Court’s decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153
L. Ed. 2d 556 (2002). We reject these claims as they are wholly without the
slightest trace of redeeming merit.
I.
AEDPA contains a one-year statute of limitations for filing a federal habeas
petition, which in this case began running on August 10, 2000, the deadline for
filing a petition for certiorari with the United States Supreme Court. See 28
U.S.C. § 2244(d)(1)(A). Under this provision, Sibley’s presumptive deadline for
filing a habeas petition was August 10, 2001. He did not file his petition until
November 1, 2002, making it untimely.
5
The statute provides that this limitation period may be tolled during any
time in which “a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending . . . .”
Id. § 2244(d)(2). Sibley contends that his July 12, 2001 Notice to the Alabama
Supreme Court, filed a month before his deadline for seeking federal habeas relief,
constitutes a properly filed application for State post-conviction or collateral
review that triggered tolling under § 2244(d)(2). Because the Alabama Supreme
Court has never acted on that filing, he maintains that it is still pending, and so the
limitation period for filing his federal habeas petition is still in abeyance. As a
result, he argues, his November 1, 2002 federal habeas petition was timely.
The question before us is whether the 2001 Notice Sibley filed with the
Alabama Supreme Court constitutes “a properly filed application for State post-
conviction or other collateral review” that tolled the statute of limitations for filing
a federal habeas petition. This encompasses three separate inquiries: (1) whether
Sibley’s Notice was an “application for State post-conviction or other collateral
review” at all, (2) if so, whether it was “filed”, and (3) if so, whether it was filed
“properly.”
6
A.
Beginning with the first step of our analysis, we conclude that Sibley’s
filing did not toll § 2244(d)(1)’s statute of limitations because it did not even
constitute “an application for State post-conviction or other collateral review.”
Three separate and independently adequate reasons support this conclusion. First,
the Notice did not actually request relief from the court from Sibley’s execution.
The simple fact that Sibley mailed something to the court is surely insufficient to
trigger § 2244(d)(2)’s tolling provision. By definition, the defining factor of an
application for review is that it seeks review. As the First Circuit has held,
Giving the term “application” its natural meaning, a filing that
purports to be an application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim must
set forth the grounds upon which it is based, and must state the relief
desired; it must attack collaterally the relevant conviction or sentence.
Voravongsa v. Wall, 349 F.3d 1, 6 (1st Cir. 2003). As far as § 2244(d)(2) is
concerned, Sibley’s notice is the legal equivalent of a greeting card—a nice
gesture, but not enough to toll the deadline for filing a federal habeas petition.
Second, even if we do construe the Notice as implicitly requesting review or
relief of some sort, we still cannot in good faith view it as an “application for post-
conviction or other relief” because it does not even attempt to make a good faith
effort to offer at least a potentially plausible or coherent basis for granting Sibley
7
relief. To take an extreme case, a document captioned “Application for Post-
Conviction or Other Relief,” which contained nothing more than the phrase “Let
me out!,” would not trigger § 2244(d)(2)’s tolling provisions. Instead, the
document must contain something vaguely approaching legitimate, relevant,
coherent legal analysis.
In Ford v. Moore, 296 F.3d 1035, 1038 (11th Cir. 2002), we held that a
filing will be considered an application for state post-conviction review sufficient
to toll AEDPA’s statute of limitations “whether the basis of the attack [it contains]
is grounded in federal or state law.” One fair inference of this holding is that
where a petitioner fails to include any meaningful federal or state legal analysis,
we need not consider his filing an application for state post-conviction review.
This is not to say that a document, particularly a pro se pleading, which we
construe liberally, must necessarily even successfully state a claim to constitute an
application for review. All we are holding is that there is an outer limit to the
nonsense a petitioner may include in a purported “application for post-conviction
or other relief” and still have it count as such. Ramblings about how Sibley is not
a “serf,” is not “in trade or business with any enemy of the Constitutional United
States,” does not have a social security number, does not believe in self-
representation yet rejects all court-appointed attorneys, and for unspecified
8
reasons was somehow beyond the jurisdiction of any Alabama court, are
insufficient for a court to consider something a legitimate filing. This is by no
means a high standard; we simply believe Congress enacted § 2244(d)(2) to allow
the deadline for federal filings to be tolled when a prisoner legitimately pursues
state remedies in good faith, and did not intend it to be triggered simply because a
prisoner mailed nonsense to a state court.5
Third, the various disclaimers the Notice contains prove that Sibley’s Notice
is not an application for State post-conviction or other collateral review. The
Notice expressly declared, “This Notice may not be construed as a motion or
pleading, but only as a notice to the fact that we are actively appealing the
convictions and sentences contrived against us in a venue Constitutionally
available, and our reasons for not doing so in the Unified Judicial System.”
Elsewhere, it states, “We do not apply for, nor are we eligible for ‘civil rights’,
privileges or benefits under the 14th Amendment.” Thus, by its own terms, the
5
In Artuz v. Bennett, 531 U.S. 4, 9, 121 S. Ct. 361, 364, 148 L. Ed. 2d 213 (2000), the
Supreme Court held, “[T]he question whether an application has been ‘properly filed’ is quite
separate from the question whether the claims contained in the application are meritorious . . . .”
The Artuz Court, in focusing specifically and exclusively on 28 U.S.C. § 2244’s “properly filed”
language, did not address the unusual threshold question of how to tell whether a filing
constitutes an “application for State post-conviction or other collateral review” in the first place.
Such an inquiry necessarily entails at least some form of superficial examination of whether the
document contains something that even vaguely resembles a claim potentially justifying review
or relief.
9
Notice was not to be construed as an application for review. For these reasons,
Sibley cannot even clear the first threshold for proving his entitlement to tolling
under § 2244(d)(2).
B.
Even if we were to give Sibley the benefit of the doubt and accept arguendo
that his Notice was an application for State post-conviction or other collateral
review, he does not qualify for § 2244(d)(2) statutory tolling because it was not
“filed,” as that term has been defined by the Supreme Court. In Artuz v. Bennett,
531 U.S. 4, 9, 121 S. Ct. 361, 364, 148 L. Ed. 2d 213 (2000) (emphasis added), the
Court held that “[a]n application is ‘filed,’ as that term is commonly understood,
when it is delivered to, and accepted by, the appropriate court officer for
placement into the official record.” Alabama Rule of Criminal Procedure 32.5
states that a post-conviction petition must be “filed in and decided by the court in
which the petitioner was convicted.” Sibley’s Notice was mailed to the Alabama
Supreme Court. Because it was not sent to the proper court, it was not “filed,” and
so was insufficient to trigger § 2244(d)(2)’s tolling provisions.
Sibley points out that Rule 32.5 goes on to state, “If a petition is filed in
another court, it shall be transferred to the court where the conviction occurred.”
He contends that, under this Rule, the Alabama Supreme Court was under an
10
obligation to ensure that his Notice was filed with the trial court. Nothing in the
record suggests that the Alabama Supreme Court ever transferred the application
anywhere, however—most likely because it did not recognize the Notice as being
a petition for post-conviction relief, see supra Section I.A. Consequently, the
petition was never “filed.”
Sibley might respond that it is unfair to penalize him because the state
supreme court failed to perform its mandatory statutory duty. Under § 2244(d)(2),
however, statutory tolling is available only if an application for review is filed; it
does not contain language directing us to consider whether a putative petitioner is
responsible for an application not being successfully filed. Congress could have
written the statute in such a way that statutory tolling was available unless it was
the putative petitioner’s fault that an application for review was not filed. This
was the approach it took in 28 U.S.C. § 2254(e)(2), which states that a petitioner
may not receive an evidentiary hearing “[i]f the applicant has failed to develop the
factual basis of a claim in State court proceedings” (emphasis added). The Court
held, “In its customary and preferred sense, ‘fail’ connotes some omission, fault,
or negligence on the part of the person who has failed to do something. . . . In this
sense, a person is not at fault when his diligent efforts to perform an act are
thwarted, for example, by the conduct of another or by happenstance.” Williams
11
v. Taylor, 529 U.S. 420, 431-32, 120 S. Ct. 1479, 1488, 146 L. Ed. 2d 435 (2000).
Based on its interpretation of the term “fail,” the Court concluded that
§ 2254(e)(2) was a fault-based provision. “[A] failure to develop the factual basis
of a claim is not established unless there is a lack of diligence, or some greater
fault, attributable to the prisoner or the prisoner’s counsel.” Id. at 432, 120 S. Ct.
at 1488.
The Williams Court also pointed out, however, that “[h]ad Congress
intended a no-fault standard, it would have had no difficulty in making its intent
plain. It would have had to do no more than use, in lieu of the phrase ‘has failed
to,’ the phrase ‘did not.’” Id. Section 2244(b)(2) is the type of provision to which
the Court was referring. Unlike § 2254(e)(2), it does not contain language
directing us to consider whether the prisoner is at fault for not having filed the
application; our only concern is whether an application was filed at all, regardless
of fault. Thus, even if the Alabama Supreme Court had a duty to forward Sibley’s
misfiled application to the court that convicted him, its failure to actually do so
precludes him from invoking statutory tolling under § 2244(d)(2)’s no-fault
standard.
12
C.
“Where the petition is not ‘properly filed’ there is no tolling of the one year
limitations period.” Hurley v. Moore, 233 F.3d 1295, 1297-98 (11th Cir. 2000).
Even if we were somehow to conclude that Sibley’s Notice constituted an
application for post-conviction relief, and that it had been“filed” with the court
(perhaps because of the state supreme court’s duty to forward it), it surely was not
filed “properly,” as § 2244(d)(2) requires. “[J]ust because [an] application is
pending, does not mean that it was properly filed. For example, if an application
is erroneously accepted by the clerk without the requisite filing fee, it will be
pending, but not properly filed.” Christian v. Baskerville, 232 F. Supp. 2d 605,
607 (E.D. Va. 2001). “[A]n application is ‘properly filed’ when its delivery and
acceptance are in compliance with the applicable laws and rules governing filings.
These usually prescribe, for example, the form of the document, the time limits
upon its delivery, the court and office in which it must be lodged, and the requisite
filing fee.” Artuz, 531 U.S. at 8, 121 S. Ct. at 364; see, e.g., Hurley, 233 F.3d at
1298 (holding that a state application for relief had not been properly filed because
it was not accompanied by an oath as required by state law). For the reasons
discussed in the previous Section, the application was not filed properly since it
was delivered to the wrong court, regardless of whether the Alabama Supreme
13
Court had a duty to correct Sibley’s error. The Notice also violated a host of other
filing requirements as well.6
6
Though Sibley also flouted the state statute of limitations for seeking post-conviction
relief, precedent forecloses us from using Alabama’s statute of limitations, as it existed prior to
2000, as a basis for concluding that Sibley’s Notice was improperly filed.
Alabama Rule of Criminal Procedure 32.6(a) states, “A petition may be filed at any time
after entry of judgment and sentence (subject to the provisions of rule 32.2(c)).” Rule 32.2(c), as
it existed both in 1993, at the time of Sibley’s conviction, and in 1997, at the time the court of
criminal appeals rejected Sibley’s court-initiated appeal, stated in relevant part,
[T]he court shall not entertain any petition for relief from a conviction or sentence
on the grounds specified in Rule 32.1(a) and (f), unless the petition is filed . . .
within two (2) years after the issuance of the certificate of judgment by the Court
of Criminal Appeals . . . . The court shall not entertain a petition based on the
grounds specified in Rule 32.1(e) unless the petition is filed within the applicable
two-year period specified in the first sentence of this section, or within six (6)
months after the discovery of the newly discovered material facts, whichever is
later . . . .
This Rule sets forth two limitations periods: one for claims brought under Rules 32.1(a) and (f),
involving, respectively, general constitutional challenges and failures to appeal, and a separate
one for claims brought under Rule 32.1(e), involving newly discovered evidence. As discussed
above, see supra Section I.A, Sibley’s Notice did not contain any coherent allegations, so it is
difficult to determine which limitations period applies. Nevertheless, since he definitely did not
bring any newly discovered evidence to the attention of the court, and had been granted an appeal
by the court of criminal appeals, if the Notice is to be construed as an application for relief at all,
it should be viewed as being brought under Rule 32.1(a). See Ala. R. Crim. P. 32.1(a) (“[A]ny
defendant who has been convicted of a criminal offense may institute a proceeding in the court of
original conviction to secure appropriate relief on the ground that[] [t]he constitution of the
United States or of the State of Alabama requires a new trial, a new sentence proceeding, or other
relief.”). This means that Sibley’s application for post-conviction relief had to have been filed
within two years of his direct criminal appeal, or no later than March 21, 1999. Since his Notice
was submitted on November 1, 2002, it fell well outside of this deadline.
This circuit has held, in general, that when a state petition for post-conviction relief fails
to comply with state filing deadlines, it is not “properly filed.” Hurley, 233 F.3d at 1298; see,
Drew v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002) (“Because Drew's third [state]
motion [for review] was untimely and did not allege facts relevant to any of the statutory
exceptions to Florida's filing deadline, the motion was not properly filed under the AEDPA.”).
In Siebert v. Campell, 334 F.3d 1018, 1027 (11th Cir. 2003), however, we held that,
notwithstanding the language of Rule 32, adherence to its limitation period was not, until the year
14
Alabama Rule of Criminal Procedure 32.6(a) provides, “The petition should
be filed by using or following the form accompanying this rule. If that form is not
used or followed, the court shall return the petition to the petitioner to be amended
to comply with the form.” Sibley’s Notice made no effort whatsoever to comply
with any of the form’s requirements. See Ala. R. Crim. P. 32 app. (providing
forms for Alabama post-conviction proceedings)
Rule 32.6(a) also states, “The petition shall be accompanied by two copies
thereof.” Again, we find no evidence in the record suggesting that Sibley
complied with this. Furthermore, the Rule mandates,
[The petition] shall also be accompanied by the filing fee prescribed
by law or rule in civil cases in the circuit court unless the petitioner
applies for and is given leave to prosecute the petition in forma
pauperis. If the petitioner desires to prosecute the petition in forma
pauperis, he or she shall file the “In Forma Pauperis Declaration” at
the end of the form. In all such cases, the petition shall also be
accompanied by a certificate of the warden or other appropriate
officer of the institution in which the petitioner is confined, stating
2000, regarded as an actual restriction by which Alabama prisoners had to abide in filing for
post-conviction relief. We found that, prior to 2000, “Alabama law made clear . . . that
noncompliance with the Rule 32 time bar did not divest courts of discretion to entertain late
petitions should they choose to do so, at least in the absence of an appropriate pleading by the
state of a [statute of] limitations defense.” Id. The 2000 case Williams v. State, 783 So. 2d 135,
137 (Ala. Crim. App. 2000), reinterpreted Rule 32 as being jurisdictional, and hence mandatory.
Because, prior to 2000, the Rule 32 time-bar was interpreted by Alabama courts as
optional, we concluded in Siebert that the petitioner’s “non-compliance with Rule 32’s time bar .
. . did not render his post-conviction applications [im]properly filed.” 334 F.3d at 1032
(quotation marks omitted). This reasoning compels us to overlook Sibley’s non-compliance with
the Rule as well.
15
the amount of money or securities on deposit to the petitioner's credit
in any account in the institution for the previous twelve (12)
months . . . .
Nothing in the record before us suggests that Sibley submitted a filing fee or a
petition to proceed in forma pauperis. For these reasons, Sibley’s Notice was not
“properly filed,” and so did not trigger statutory tolling under § 2254(d)(2).
We note in closing that none of the documents Sibley attempted to file with
the state courts after August 10, 2001—the deadline for filing a federal habeas
petition— could in any way toll that deadline because, once a deadline has
expired, there is nothing left to toll. A state court filing after the federal habeas
filing deadline does not revive it. See Moore v. Crosby, 321 F.3d 1377, 1381
(11th Cir. 2003) (“While a ‘properly filed’ application for post-conviction relief
tolls the statute of limitations, it does not reset or restart the statute of limitations
once the limitations period has expired. In other words, the tolling provision does
not operate to revive the one-year limitations period if such period has expired.”).
Petitioner may not attempt to resurrect a terminated statute of limitations by
subsequently filing documents that purport to “relate back” to previously
submitted documents that were, in themselves, insufficient to toll the statute. Id.
at 1381 (“The statutory tolling provision does not encompass a period of time in
which a state prisoner does not have a ‘properly filed’ post-conviction application
16
actually pending in state court.”). Consequently, we need not examine the
substance of his later filings because, even if they were “properly filed
application[s] for State post-conviction or other collateral review,” they would not
extend the August 10, 2001 deadline.
II.
Though § 2244(d)(2) sets forth the standard for “statutory tolling” of
§ 2244(d)’s limitations period, this period—like most other nonjurisdictional
limitations periods—is also subject to equitable tolling. “In order to be entitled to
the benefit of equitable tolling, a petitioner must act with diligence, and the
untimeliness of the filing must be the result of circumstances beyond his control.”
Drew v. Dep’t of Corr., 297 F.3d 1298, 1286-87 (11th Cir. 2002). Sibley makes
no effort to demonstrate that he meets these criteria, and so is ineligible for
equitable tolling.
Sibley contends instead that it would be unconstitutional under the
Suspension Clause7 to apply this limitations period to him because, in addition to
his underlying claim that his constitutional rights were violated, he is also
asserting a claim of actual innocence. The Tenth Circuit has held that § 2244(d)’s
7
See U.S. Const. Art. I, § 9, cl. 2 (“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.”).
17
limitations period does not apply where a petitioner makes such a claim. See
Malone v. Oklahoma, Nos. 03-6175 & 03-6246, 2004 U.S. App. LEXIS 11245, at
*7 (10th Cir. June 8, 2004) (“[E]quitable tolling would be appropriate, for
example, when a prisoner is actually innocent . . . .”). Our precedent prohibits us
from reaching this question in this case, however. As we held in Wyzykowski v.
Dep’t of Corr., 226 F.3d 1213, 1218 (11th Cir. 2000), “[T]he factual issue of
whether the petitioner can make a showing of actual innocence should be first
addressed, before addressing the constitutional issue of whether the Suspension
Clause requires such an exception for actual innocence.” Following Wyzykowski,
we decline to reach the merits of this issue because, even assuming that § 2244’s
limitations period could not be constitutionally applied to a prisoner who made a
sufficient showing of actual innocence, Sibley failed to do so.
There are two different ways in which a person sentenced to death might be
able to show “actual innocence.” First, he might attempt to prove his innocence of
the underlying capital offense itself. In Schlup v. Delo, 513 U.S. 298, 317, 115 S.
Ct. 851, 862, 130 L. Ed. 2d 808 (1995), the Supreme Court held that a prisoner
attempting to make such a showing must raise “new facts” that cast “sufficient
doubt upon [his] guilt to undermine confidence in the result of a trial without the
assurance that the trial was untainted by constitutional error.” In practical terms,
18
this means that the petitioner must show that “‘a constitutional violation has
probably resulted in the conviction of one who is actually innocent.’ To establish
the requisite probability, the petitioner must show that it is more likely than not
that no reasonable juror would have convicted him in the light of the new
evidence.” Id. at 327, 115 S. Ct. at 867 (quoting Murray v. Carrier, 477 U.S. at
496, 106 S. Ct. at 2649).
Either in addition, or as an alternative, to this a petitioner may attempt to
demonstrate that, whether or not he is guilty of the capital offense, he is
“innocent” of the death penalty because none of the aggravating factors legally
necessary for invocation of the death penalty applied.8 The Supreme Court has
emphasized that, in making this determination, a court may not look to new
evidence concerning mitigating factors; once it has satisfied itself that the
minimum state law requirements concerning the presence of aggravating factors
have been satisfied, its review is complete. Sawyer v. Whitley, 505 U.S. 333, 347,
112 S. Ct. 2514, 2524, 120 L. Ed. 2d 269 (1992) (“[T]he ‘actual innocence’
8
The petitioner in a recent Supreme Court case, Dretke v. Haley, 124 S. Ct. 1847, 158 L.
Ed. 2d 659 (2004), attempted to apply this reasoning in a non-capital case, claiming that he was
“actually innocent” of a habitual-offender sentencing enhancement he received. The petitioner
attempted to use this actual innocence as a gateway through which the court could consider
procedurally defaulted claims in his federal habeas petition concerning constitutional deficiencies
in his sentencing hearing. The Supreme Court refused to rule on the issue, and instead remanded
the case for the district court to address the petitioner’s other, non-defaulted claims.
19
requirement must focus on those elements that render a defendant eligible for the
death penalty, and not on additional mitigating evidence that was prevented from
being introduced as a result of a claimed constitutional error.”). To make this
showing, a petitioner “must show by clear and convincing evidence that, but for a
constitutional error, no reasonable juror would have found the petitioner eligible
for the death penalty.” Id., 505 U.S. at 336, 112 S. Ct. at 2517. Thus, a petitioner
challenging his underlying conviction faces a lower burden of proof than a
petitioner challenging the existence of aggravating circumstances rendering him
death-eligible.
Sibley brings only the first type of challenge; he claims he is not guilty of
murdering Officer Motley because he shot at Motley in self-defense, and
regardless of why he was shooting at Motley, his wife fired the fatal shot. In
support of these claims, Sibley points to three pieces of information. First, he
maintains that unspecified information in Officer Motley’s personnel file, to which
he seeks access, would demonstrate his history of aggressive behavior that would
demonstrate Sibley acted in self-defense. Second, Sibley alleges that his stepson
is willing to testify that he (the stepson) had not cried for help on the day in
question. According to the district court, however, Sibley “has presented no
evidence to the court, by affidavit or otherwise, to show what the stepson would,
20
in fact, have testified.” Finally, he contends that there is new evidence that his
wife (who has already been executed) saw one of her bullets hit Motley in the
chest. Again, the district court noted, “No evidence to that effect has been
presented to the court, and the court is unaware of what form it might take.”
Sibley’s actual innocence claim is hindered at the outset by a fatal
shortcoming—he has not presented any actual evidence to the district court. He is
not privy to the contents of Motley’s personnel file and offers no affidavits from
either his stepson or wife. Consequently, he has provided no basis upon which a
court can second-guess the jury’s verdict.
Nor can Sibley bootstrap the right to an evidentiary hearing from this
paucity of evidence. Sibley contends that Wyzykowski, 226 F.3d at 1219, entitles
him to discovery and a hearing on his actual innocence claims. The case stands
for no such propositions, however. In Wyzykowski, the petitioner made a claim of
actual innocence along with his otherwise time-barred habeas petition. The
district court dismissed the petition as time-barred without ruling on whether the
petitioner had actually made a showing of actual innocence, or whether such a
showing warranted an exception to § 2244’s statute of limitations. On appeal, we
remanded the case to the district court with directions to determine whether the
petitioner had demonstrated his innocence. Id. at 1219 (“[W]e decline to address
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the factual issue whether Wyzykowski can make a showing of actual innocence,
preferring that the district court do so in the first instance.”). Nothing in our
opinion required that the district court grant him either discovery or an evidentiary
hearing.
As the Eighth Circuit held in Oswald v. Gammon, “The petitioner must
make a threshold showing of actual innocence to warrant a hearing. The timing of
the submission is relevant, as is the likely credibility of the affiants.” No. 94-
3044, 1995 U.S. App. LEXIS 6229, at *3 (8th Cir. Mar. 29, 1995) (quotation
marks and citation omitted). In a separate case, that court elaborated that our
“confidence in the outcome of [the petitioner’s] state trial” must be “undermined”
before he is entitled to a hearing “for the purpose of developing the evidence
needed to pass his procedurally defaulted habeas claims through the actual
innocence gateway.” Davis v. Gammon, 27 Fed. Appx. 715, 717 (8th Cir. 2001);
see also Patterson v. Bartlett, 56 Fed. Appx. 762, 764 (9th Cir. 2002) (holding that
a district court did not abuse its discretion in failing to grant an evidentiary
hearing to a habeas petitioner claiming actual innocence because “[i]t is unlikely
that an evidentiary hearing on the allegations contained in the affidavits would
produce the sort of reliable evidence of actual innocence that Schlup demands”).
Our confidence in Sibley’s guilt remains substantially solid. Consequently,
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Sibley’s demands lack legal foundation.9
Even accepting Sibley’s factual allegations at face value, they do not meet
the standard articulated in Schlup for making a finding of actual innocence.
Assuming Officer Motley had a history of aggression and nonfatal violent
9
Some courts have applied 28 U.S.C. § 2254(e)(2) in determining when a petitioner is
eligible for an evidentiary hearing on his actual innocence contention. That section states:
If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that—
(A) the claim relies on—
(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered
through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense
Id.
We do not believe this provision governs the availability of evidentiary hearings when
petitioners seek to introduce evidence concerning actual innocence. By its own terms, § 2254(e)
applies only where a petitioner “has failed to develop the factual basis of a claim in State court.”
The term “claim” appears to refer to the substantive claim for relief upon which the petition for
habeas corpus is based. See, e.g., 28 U.S.C. § 2254(d) (limiting the circumstances under which
“[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the
judgment of a State court shall . . . be granted with respect to any claim that was adjudicated on
the merits in State court”) (emphasis added). This case involves a petitioner who wishes to
adduce additional facts to support his allegation of actual innocence. While we have referred to
that allegation throughout this opinion as a “claim of actual innocence,” it is not a “claim” for
purposes of § 2254. An actual innocence allegation is, instead, a “gateway through which a
habeas petitioner must pass to have his otherwise barred constitutional claim considered on the
merits.” Herrera v. Collins, 506 U.S. 390, 404, 113 S. Ct. 853, 862, 122 L. Ed. 2d 203 (1993).
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confrontations, a reasonable juror could still quite possibly have concluded that
Sibley had acted with murderous intent, rather than out of self-defense. Such
generalized evidence concerning the victim’s character would not, in itself, be
enough to support a claim of actual innocence.
The stepson’s testimony as to whether he called for help is simply irrelevant
to the question of Sibley’s guilt. As the district court found, it could at most “be
used to attack the credibility of the State’s witness who testified that she called the
police because of a child’s call for help.” A dispute over such a tangential
question does not undermine our confidence in Sibley’s guilty in the least.
Finally, Sibley’s allegation that his wife saw one of her shots hit Motley in the
chest is also of no avail. Without more, we are unable to conclude that a jury
would necessarily infer that she fired the fatal shot. Moreover, as the district court
held, “[t]he issue of which of the two persons who admittedly shot at Sgt.
Motley . . . actually fired the fatal shot is irrelevant as long as Sibley himself had
the requisite intent to kill.” Consequently, Sibley has failed to satisfy the Schlup
standard of actual innocence, and so is not entitled to consideration of the merits
of his constitutional claims.
III.
Sibley also contends that his conviction should be vacated based on Ring v.
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Arizona, 536 U.S. at 584, 122 S. Ct. at 2428. In Ring, the Supreme Court held that
a jury, and not a judge, must make all findings of fact, including aggravating
factors, that render someone eligible for the death penalty. Id. at 609, 122 S. Ct. at
2443 (holding that “a sentencing judge, sitting without a jury, [may not] find an
aggravating circumstance necessary for imposition of the death penalty”). In
Turner v. Crosby, 339 F.3d 1247, 1283 (11th Cir. 2003), however, we expressly
held that Ring is not retroactive to death sentences that were imposed before it was
handed down. The Supreme Court recently endorsed this view in Schriro v.
Summerlin, No. 03-526, 2004 U.S. LEXIS 4574, at *19 (June 24, 2004) (“Ring
announced a new procedural rule that does not apply retroactively to cases already
final on direct review.”). Under Turner and Summerlin, a petitioner may not
appeal a conviction or bring a habeas attack based on Ring violations that
occurred before Ring was handed down. Consequently, we reject Sibley’s Ring
claim out of hand.
For these reasons, the judgment of the district court, in its entirety, is
AFFIRMED.
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