Cosey v. Lilley, 62 F.4th 74

Background

In 1998 Archie Cosey pleaded guilty to first-degree conspiracy (narcotics) and second-degree murder and was sentenced to concurrent 25‑to‑life terms; he immediately moved to withdraw the plea but was denied.
After an unsuccessful federal habeas petition and an unsuccessful New York § 440.10 motion, Cosey pursued a second federal habeas petition (filed 2018) asserting newly discovered evidence showed he was actually innocent of the murder.
At the state § 440.10 evidentiary hearing, witnesses for Cosey offered an alibi, recantations, and a bystander account; experts presented forensic/ballistics evidence suggesting the rival‑gang shooting was possible but the evidence was deemed inconclusive.
The state court found the defense witnesses unreliable, discounted unsworn recantations as hearsay, and concluded the forensic evidence did not definitively refute the State’s theory. New York appellate review and the District Court affirmed denial.
Cosey argued the Schlup actual‑innocence gateway should excuse AEDPA’s one‑year limitations period; the District Court and the Second Circuit held he failed to show, by the Schlup standard, that "more likely than not no reasonable juror would have convicted."
The Court (per curiam) applied the presumption of correctness to the state court’s factual findings under 28 U.S.C. § 2254(e)(1), declined relief, and affirmed; Judge Park concurred, noting freestanding innocence claims cannot support successive habeas relief absent a constitutional error.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cosey’s newly discovered evidence satisfies the Schlup actual‑innocence gateway to excuse AEDPA’s one‑year time bar	Cosey: new witness testimony (alibi, recantations) and forensic evidence make it more likely than not that no reasonable juror would convict	State: witnesses are unreliable, recantations unsworn/hearsay, forensic evidence inconclusive; Schlup not met	Held: Schlup not met — petition is time‑barred.
Whether federal courts must defer to state post‑conviction factual findings when evaluating a Schlup gateway claim	Cosey: federal review should consider new evidence de novo without heavy deference	State: §2254(e)(1) presumption of correctness applies to state factual findings	Held: §2254(e)(1) presumption applies; state factual findings are presumed correct unless rebutted by clear and convincing evidence.
Whether the specific new evidence (recantations, bystander alibi, ballistics) is sufficiently reliable and compelling	Cosey: recantations, eyewitness account, and ballistic analysis undermine State’s timeline and implicate rival‑gang shooting	State: recantations are unsworn/hearsay and suspect; bystander testimony is equivocal; ballistics are troubling but technically consistent with State’s theory	Held: evidence unreliable or inconclusive; it does not satisfy the Schlup "credible and compelling" standard.
Effect of Cosey’s guilty plea on his Schlup actual‑innocence claim	Cosey: plea allocution should not preclude innocence claim; he sought to withdraw plea and says allocution was not full admission	State: guilty plea carries a strong presumption of verity that weighs against innocence claim	Held: Guilty plea is not a categorical bar to Schlup relief, but here it carries a strong presumption the petitioner failed to rebut.

Key Cases Cited

Schlup v. Delo, 513 U.S. 298 (establishes actual‑innocence gateway standard to excuse AEDPA time bar)
McQuiggin v. Perkins, 569 U.S. 383 (recognizes equitable exception for credible claims of actual innocence)
House v. Bell, 547 U.S. 518 (requires evaluating new evidence in the record as a whole for Schlup inquiry)
Doe v. Menefee, 391 F.3d 147 (2d Cir.) (explains evidence reliability and analysis for Schlup claims)
Rivas v. Fischer, 687 F.3d 514 (2d Cir.) (describes credible and compelling components of Schlup standard)
Herrera v. Collins, 506 U.S. 390 (discusses freestanding actual‑innocence claims and high proof required)