Cosey v. LilleyCosey v. Lilley
After pleading guilty to first-degree conspiracy and second-degree murder in state court, petitioner Archie Cosey filed an unsuccessful federal habeas petition as well as an unsuccessful motion in state court to vacate his conviction. In this second habeas petition presently before us, Cosey argues that newly discovered evidence shows that he is actually innocent of the murder charge. The United States District Court for the Southern District of New York (Koeltl, J.) dismissed the petition as both procedurally barred and lacking merit. Although Cosey’s petition was filed after the one-year time limit in
Judge Park concurs in a separate opinion.
GLENN A. GARBER (Rebecca E. Freedman, on the brief), The Exoneration Initiative, New York, NY, for Petitioner-Appellant Archie Cosey.
STEPHEN KRESS, Assistant District Attorney (Karen Schlossberg, Assistant District Attorney, on the brief), for Cyrus R. Vance, Jr., District Attorney of New York County, New York, NY, for Respondent-Appellee Lynn Lilley.
Parvin Daphne Moyne, Elise B. Maizel, Andrew A. McWhorter, Akin Gump Strauss Hauer & Feld LLP, New York, NY; Zara H. Shore, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Amici Curiae The Innocence Project and Centurion Ministries, Inc., in support of Petitioner-Appellant Archie Cosey.
PER CURIAM:
The Antiterrorism and Effective Death Penalty Act (“AEDPA“) erects a difficult series of procedural and substantive barriers for prisoners who collaterally attack their state convictions in federal court. Consider, for example, the strict one-year time limit to file a federal habeas petition. See
Petitioner Archie Cosey pleaded guilty in 1998 in state court to first-degree conspiracy to engage in drug trafficking and second-degree murder and was sentenced to two concurrent terms of twenty-five years to life in prison. Two decades later, with a failed federal habeas petition and a failed motion in New York state court to vacate his conviction behind him, Cosey filed a second federal habeas petition under
The United States District Court for the Southern District of New York (Koeltl, J.) dismissed Cosey’s petition because it failed to meet the threshold requirements of
Based on the record before us, we agree with the District Court that it is more likely than not that a reasonable juror would have convicted Cosey of murder and that he therefore failed to demonstrate his actual innocence. See Schlup, 513 U.S. at 327. Cosey’s petition is therefore barred by AEDPA’s one-year time limit. AFFIRMED.
BACKGROUND
“In reviewing a gateway claim of actual innocence, a court ‘must consider all [record] evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted
On August 3, 1993, James Williams was murdered in the Harlem brownstone headquarters of a violent drug trafficking gang run by Carl Dushain. Suspecting that Williams was a police informant who had also stolen from his gang, Dushain recruited Danny Green, a gang member, to kill Williams for $500. By sheer coincidence, at nearly the time that Green is alleged to have shot Williams from inside the brownstone, a rival gang shot at the same brownstone from the street, apparently in retaliation for an unrelated prior gunfight.
The State contends that Dushain’s gang killed Williams. It claims that Green pulled the trigger, David Bobbitt served as a lookout outside the brownstone, and Cosey and Chris Ortiz3 blocked Williams’s escape. Cosey disputes the State’s version of events and contends that Williams was killed by the second, rival gang shooting.
Four years after Williams’s murder, Cosey, Dushain, Green, and Ortiz were arrested and charged with the murder as well as drug conspiracy and an unrelated kidnapping. Dushain and Green proceeded to trial and were convicted of the murder and several other charges, in part based on the testimony of Janet Hutchens and other witnesses who also implicated Cosey.4
By contrast, in October 1998 Cosey pleaded guilty in New York state court to first-degree conspiracy to engage in narcotics trafficking and second-degree murder, in violation of
At sentencing less than a month later, Cosey moved to withdraw his plea, claiming, among other things, that it had been coerced, that his counsel was ineffective, and as relevant here, that he was innocent of the murder charge. The state court found that Cosey’s plea was knowing and voluntary and denied the motion. It then sentenced Cosey principally to two concurrent terms of twenty-five years to life in prison. The New York Appellate Division affirmed the conviction, see People v. Cosey, 730 N.Y.S.2d 434 (1st Dep’t 2001), and Judge Smith of the New York Court of Appeals denied his petition
On August 6, 2002, Cosey filed his first federal habeas petition challenging his state convictions. The district court (Scheindlin, J.) denied that petition. See Cosey v. Walsh, No. 02 Civ. 6251, 2003 WL 1824640 (S.D.N.Y. Apr. 8, 2003). In October 2011 Cosey filed a motion in state court to vacate his murder conviction under
After the hearing, the state court denied Cosey’s motion. As relevant to Cosey’s claim of actual innocence, the court found that Summers, Hutchens, Bobbitt, and Cosey were unreliable witnesses and that the remainder of the lay testimony, all of which was elicited on Cosey’s behalf, was unreliable hearsay or otherwise fell short of showing by clear and convincing evidence that Cosey was not inside the brownstone when Williams was murdered.5
The state court also considered the extensive forensic evidence, which, in its view, strongly suggested that Williams was more likely to have been killed by the rival gang shooting. See People v. Cosey, 54 Misc.3d 1208(A), 52 N.Y.S.3d 247, 2016 WL 7812677, at *9 (N.Y. Sup. Ct. 2016). But it deemed the forensic evidence “ultimately inconclusive” as to Cosey’s innocence because the State’s theory of the case was also “physically . . . [and] technically possible.” Id.
The New York Appellate Division denied Cosey’s petition for leave to appeal the state post-conviction court’s denial of his
In December 2018 Cosey filed this second federal habeas petition, essentially incorporating the arguments made in his
This appeal followed.
DISCUSSION
Cosey raises three claims on appeal. First and foremost, he claims that he is actually innocent of the murder charge, notwithstanding his guilty plea. Second, he asserts that the State withheld exculpatory information in violation of Brady v. Maryland, 373 U.S. 83 (1963). And third, he contends that the State also violated his right to due process under the Fourteenth Amendment by depriving him of a fair hearing on the motion to withdraw his plea. As a threshold matter, we can consider these claims only if Cosey can demonstrate that his petition is not time-barred under
Instead, Cosey claims to have made a “credible and compelling showing of actual innocence under the standard described by the Supreme Court in Schlup” as to “warrant[] an equitable exception to AEDPA’s limitation period, allowing [him] to have his otherwise time-barred claims heard by a federal court.” Rivas v. Fischer, 687 F.3d 514, 518 (2d Cir. 2012). As we explain below, we conclude that Cosey has not made the showing necessary to warrant the equitable exception under Schlup, and that his petition is therefore time-barred.
I. AEDPA’s Gateway Exception for Actual Innocence8
The actual innocence gateway (or Schlup) exception to AEDPA’s one-year
But “tenable actual-innocence gateway pleas are rare.” McQuiggin, 569 U.S. at 386. And even a successful actual innocence claim “cannot itself afford [a petitioner] habeas relief from his state conviction. It can only open a gateway to federal review of an otherwise procedurally barred . . . claim that, if itself successful, could afford him relief.” Hyman, 927 F.3d at 655. In other words, even if it succeeds, a Schlup claim cannot provide relief on the merits. See McQuiggin, 569 U.S. at 386.
Section
“For the claim to be ‘credible,’ it must be supported by ‘new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.‘” Rivas, 687 F.3d at 541 (quoting Schlup, 513 U.S. at 324). “For the claim to be ‘compelling,’ the petitioner must demonstrate that ‘more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt — or[,] to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.‘” Id. (quoting House, 547 U.S. at 538). As we explained in Doe v. Menefee:
The Schlup Court carefully limited the type of evidence on which an actual innocence claim may be based and crafted a demanding standard that petitioners
must meet in order to take advantage of the gateway. The petitioner must support his claim ‘with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial.’ Because Schlup explicitly states that the proffered evidence must be reliable, the habeas court must determine whether the new evidence is trustworthy by considering it both on its own merits and, where appropriate, in light of the preexisting evidence in the record. Once it has been determined that the new evidence is reliable, Schlup unequivocally requires that reviewing courts consider a petitioner’s claim in light of the evidence in the record as a whole, including evidence that might have been inadmissible at trial . . . .
391 F.3d 147, 161-62 (2d Cir. 2004) (Sotomayor, J.) (quoting Schlup, 513 U.S. at 324, 327–28). The new evidence must be so compelling that “a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 316.
II. Review of State Court Factual Determinations
“AEDPA . . . provides that in a habeas proceeding challenging a state conviction, ‘a determination of a factual issue made by a State court shall be presumed to be correct.‘” Sharpe v. Bell, 593 F.3d 372, 378 (4th Cir. 2010) (quoting
It is settled that “we review [a] district court’s ultimate finding [relating to] actual innocence de novo.” Rivas, 687 F.3d at 543 (quoting Doe, 391 F.3d at 163). This is “[b]ecause the determination as to whether no reasonable juror would find a petitioner guilty beyond a reasonable doubt is a mixed question of law and fact.” Id. (quoting Doe, 391 F.3d at 163).
But the standard of review with respect to the underlying factual findings of the state post-conviction court is less settled. In particular, an unresolved question for our Court is whether the presumption of correctness likewise applies when we consider whether a petition satisfies the Schlup gateway standard. Noting, among other things, that the presumption is codified in
We now join our sister circuits in holding that, in the context of a gateway claim of actual innocence under Schlup, a federal habeas court must presume that a
III. Cosey’s Actual Innocence Claim
With these principles in mind, we consider whether Cosey’s claim of actual innocence satisfies the Schlup standard.
A. Witness Testimony
In support of his actual innocence claim, Cosey points to the testimony introduced during the
killed by the rival gang shooting and that he saw Cosey running toward the brownstone after he had already seen Williams‘s dead body inside. Cosey likewise testified that he was not present at the brownstone when Williams was shot and killed by the rival gang. Finally, Hutchens recanted her prior trial testimony implicating Cosey. As the District Court summarized, at the hearing she testified that Cosey “was not present at the shooting, that she did not know who killed Williams, . . . and that she believed Williams was killed by crossfire coming from outside the [brownstone].” Cosey, 460 F. Supp. 3d at 358.
The state post-conviction court did not credit any of this testimony. To start, it found “several discrepancies” in Bobbitt‘s account, identified false details that “undercut[] the testimony of both Cosey and Summers,” and noted “substantial financial incentive[s]” that cast further doubt on the credibility of Cosey, Bobbitt, and Summers. Cosey, 2016 WL 7812677, at *14–17. The court ultimately found that “Cosey was willing to say almost anything if he believed that doing so would serve his purpose.” Id. at *17. The state court likewise found that “[i]n the course of her testimony Hutchens‘s story changed,” that “some of her answers show, at best, a casual disregard for accuracy,” and that “[o]f her two versions of the events . . . the version that she gave at trial is more believable.” Id. at *11–12.
On appeal, Cosey also points to the testimony of Anderson, the bystander who testified that he saw Cosey running toward the brownstone after the shootings but could not say that Cosey was away from the brownstone when Williams was killed. In contrast to the nonhearsay testimony of the other lay witnesses who testified at the hearing, the state court credited
Lastly, Cosey urges us to consider the testimony of investigative reporter Sarah Wallace. At the hearing, Wallace recounted a 2006 conversation with Chris Ortiz, who testified at the trial of Dushain and Green and implicated Cosey in the murder. Wallace testified that Ortiz admitted to her that Cosey was not present when Williams was killed. But, as the state court noted, Ortiz “refused to sign an affidavit or submit to a television interview on the basis that doing so might jeopardize his parole.” Id. at *14. The state court rejected Ortiz‘s unsworn recantation statement to Wallace because it was hearsay and there was “no way to test its reliability.” Id. at *14.9
The state court did not err in discounting Ortiz‘s statement. “[W]itness recantations must be looked upon with the utmost suspicion,” particularly when, as here, “the recanting witness is one who was involved in the same criminal scheme” and provides a recantation that “is general, unsworn, and conclusory.” Haouari v. United States, 510 F.3d 350, 353 (2d Cir. 2007) (quotation marks omitted); see id. at 354 (“At the very least, before a recantation statement may qualify as competent evidence for habeas review, it would need to be in sworn affidavit form, subject to penalty for perjury.“). Although we review record evidence as to a claim of actual innocence “without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial,” Hyman, 927 F.3d at 643, under these circumstances, Ortiz‘s statement is not even reliable evidence, let alone clear and convincing evidence, that the factual findings of the state post-conviction court were wrong.
For these reasons, we conclude that the witness testimony at the state post-conviction hearing failed to establish that it is “more likely than not that no reasonable juror would have found [Cosey] guilty beyond a reasonable doubt.” Schlup, 513 U.S. at 327 (emphasis added).
B. Forensic Evidence
Cosey also points to forensic evidence adduced at the
C. Cosey‘s Guilty Plea
In habeas proceedings, guilty pleas are impossible to ignore. Here, each side invites us to draw very different conclusions from Cosey‘s 1998 guilty plea.
In urging affirmance out of the gate, the Superintendent relies on the “weighty presumption[] favoring the veracity of a defendant‘s sworn plea of guilty” to argue that Cosey‘s voluntary and knowing guilty plea presents a per se bar to his actual innocence claim. Doe, 391 F.3d at 173. We disagree that Cosey‘s guilty plea is categorically incompatible with his claim of innocence. To the contrary, “[a] claim of actual innocence could provide a basis for excusing [a] late filing even though petitioner pled guilty.” Friedman v. Rehal, 618 F.3d 142, 152 (2d Cir. 2010). This is because “the issue before . . . a court” considering a Schlup claim “is not legal innocence but factual innocence,” and because “in rare cases a finding of guilt beyond a reasonable doubt may not be synonymous with factual guilt.” Doe, 391 F.3d at 162–63. Schlup therefore “allows the court to analyze the petitioner‘s potential innocence in light of the fact that the petitioner is essentially claiming that the criminal justice process has reached the wrong factual result, whether after a trial or a guilty plea.” Id. at 163 (emphasis added). A gateway claim of innocence is thus not barred per se by a petitioner‘s guilty plea. See Bousley v. United States, 523 U.S. 614, 621–23 (1998).
Conversely, Cosey exhorts us to discount, if not altogether overlook, his plea. In considering this argument, we accept that Cosey almost immediately sought to withdraw his plea on the ground that it was coerced and because he believed that Summers would provide him with an alibi. We also recognize that Cosey regards his plea allocution as falling short of a full admission of guilt. As Cosey himself acknowledges, however, we may consider his guilty plea alongside the mix of other reliable evidence in the record to determine whether his claim of actual innocence excuses his untimely filing. See Doe, 391 F.3d at 169. Thus, having rejected the Superintendent‘s position that Cosey‘s guilty plea categorically bars his Schlup claim, we likewise reject Cosey‘s view that we should downplay his plea, which carries “a strong presumption of verity.” Adames v. United States, 171 F.3d 728, 732 (2d Cir. 1999) (quotation marks omitted).
Cosey fails to rebut that presumption, especially in view of the state court‘s assessment,
Indeed, at his plea allocution, Cosey admitted to conspiring with Dushain and others to murder Williams. He specifically confirmed Williams‘s role at the Harlem brownstone and membership in the gang, identified Green as the shooter, and admitted that he “knew [Williams] was about to be killed on the orders of Carl Dushain” when he “prevent[ed] [him] from leaving” the brownstone. App‘x 69. Cosey also agreed that he was “pleading guilty of [his] own free will,” that no one “threatened [him] or forced [him] in anyway to take th[e] plea,” and that he had talked about the plea with his attorney “at some length.” Id. at 64–65. Our reading of the plea allocution itself reinforces our view that Cosey failed to rebut the presumption of verity associated with his plea.
* * *
Bearing in mind that the state post-conviction court‘s factual findings, including determinations of witness credibility, are entitled to the presumption of correctness under
CONCLUSION
We have considered Cosey‘s remaining arguments in support of timeliness and conclude that they are without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.
Although I join the Court‘s opinion today, I write separately to note that a freestanding actual innocence claim cannot be heard in a second or successive habeas petition. Such a petition requires not only clear and convincing evidence of actual innocence, but also another constitutional violation.
Cosey‘s second or successive habeas corpus petition must show that “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.”
This plain reading makes good sense. “Granting habeas relief to a state prisoner intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.” Brown v. Davenport, 142 S. Ct. 1510, 1523 (2022) (cleaned up). This is doubly true when the state has previously defeated the prisoner‘s attempt to obtain release. And triply so when the new attempt relies on a novel constitutional theory. The Supreme Court has never held that “a prisoner may be entitled to habeas relief based on a freestanding claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383, 392 (2013). “Actual innocence is not itself a constitutional claim” at all. Hyman v. Brown, 927 F.3d 639, 656 n.10 (2d Cir. 2019) (cleaned up).1
Cosey suggests that
Notes
Cosey v. Lilley, 460 F. Supp. 3d 346, 357 (S.D.N.Y. 2020) (cleaned up).Hutchens went to 162 West 123rd Street on the night of August 3, 1993 to meet Williams. Dushain, Green, and [Cosey] then arrived and began arguing with Williams in the building; Ortiz joined five to ten minutes later. Dushain told Hutchens to go to the rear apartment on the first floor and shut the door. Hutchens opened the door anyway and saw [Cosey] and Ortiz beat Williams, while Green went upstairs to retrieve the gun. Green ultimately fired two shots at Williams, the second one of which hit Williams. Williams was already down, and after he was shot, laid out onto the floor.