Rivas v. Fischer, 2012 U.S. App. LEXIS 13974

Background

Rivas was convicted in 1993 for second-degree murder of Valerie Hill and sentenced to an indeterminate term of 25 years to life.
AEDPA imposes a one-year limit for federal habeas petitions, with a grace period for pre-AEDPA convictions; Rivas filed his petition December 12, 2001, after the limitations period expired.
On remand, the district court developed the record and heard new evidence on whether Rivas could establish actual innocence and whether the petition was timely under 28 U.S.C. § 2244(d)(1)(D).
New evidence on remand included the testimony of forensic pathologist Cyril Wecht challenging the time-of-death estimate attributed to the medical examiner, and related affidavits and neighbor affidavits suggesting Hill died later than the State contended.
The magistrate judge and district court concluded the new evidence was discoverable before May 8, 1999, and thus not a new factual predicate; equitable tolling was not warranted, and the petition remained time-barred.
The Second Circuit reversed, concluding that a credible and compelling actual innocence showing can warrant an equitable exception to AEDPA’s limitations period, permitting merits review.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under 2244(d)(1)(D)	Rivas argues new evidence could not have been discovered before May 8, 1999, so § 2244(d)(1)(D) tolls time.	Evidence was discoverable with due diligence before May 8, 1999; petition untimely.	No, timely under 2244(d)(1)(D) not established; but issue resolved in favor of equitable exception due to actual innocence.
Equitable tolling	State post-conviction counsel and trial counsel failures constitute extraordinary circumstances warranting tolling.	Counsel failures do not amount to extraordinary circumstances; petitioner did not act with due diligence.	No equitable tolling; time-bar not excused on tolling grounds.
Actual innocence gateway extending to AEDPA time limits	Credible, compelling actual-innocence showing via Schlup gateway should excuse untimely filing.	Schlup gateway does not apply to excusing AEDPA’s time bar for a first petition.	Yes; Schlup gateway extends to excuse the time bar, creating an equitable exception to § 2244(d)(1).
Credibility and sufficiency of new evidence	Wecht’s testimony and Lazarski/neighbor affidavits undermine Mitchell’s time-of-death conclusion and support innocence.	New evidence is not sufficiently credible to undermine prior trial evidence.	Wecht’s testimony, on balance, credibly undermines central forensic proof; credible new evidence supports doubt about guilt.
Remand for merits review	If the gateway is opened, the district court should address the underlying constitutional claims on the merits.	Limitation doubts and lack of tolling preclude merits review unless proper procedural relief is afforded.	Remand to consider merits of underlying claims consistent with gateway relief.

Key Cases Cited

Schlup v. Delo, 513 U.S. 298 (Supreme Court (1995)) (gateway to review actual-innocence claims; not a substantive innocence standard)
House v. Bell, 547 U.S. 518 (Supreme Court (2006)) (Schlup gateway standard; credibility of new evidence requires consideration of all evidence)
Holland v. Florida, 560 U.S. 631 (Supreme Court (2010)) (equitable tolling applies to AEDPA's nonjurisdictional limits; presumption in favor of tolling)
Doe v. Menefee, 587 F.3d 543 (2d Cir. 2009) (counseling error and equitable considerations in timeliness; certification on timeliness)
McAleese v. Brennan, 483 F.3d 206 (3d Cir. 2007) (definition of factual predicate for § 2244(d)(1)(D))
Escamilla v. Jungwirth, 426 F.3d 868 (7th Cir. 2005) (clarifies scope of factual predicates; not new evidence that restarts time)
Flanagan v. Johnson, 154 F.3d 196 (5th Cir. 1998) (concept of factual predicate; evidence that strengthens but does not restart time)
Wims v. United States, 225 F.3d 186 (3d Cir. 2000) (timeliness and discovery standards for factual predicates)