Myron Gladney challenges his 1996 Wisconsin conviction for murdering Christopher Wilson. At trial, Gladney did not dispute that he intentionally killed Wilson, but he argued unsuccessfully that he should not be found guilty of first-degree intentional homicide because he acted in what Wisconsin calls “imperfect self-defense.” Imperfect self-defense, unlike perfect self-defense, does not serve as a complete defense to the charge of first-degree intentional homicide but instead mitigates that charge down to second-degree intentional homicide. Over a decade later, Gladney filed a federal petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that (1) his due process rights were violated because subsequent state case law cast doubt on whether he was convicted under the correct imperfect self-defense standard and (2) his trial counsel was constitutionally ineffective for failing to interview a witness who would have corroborated his self-defense theory. The district court concluded that the petition was untimely under 28 U.S.C. § 2244(d)(1) and rejected Gladney’s theory that the statute of limitations did not apply to his claims because he has demonstrated actual innocence.
We affirm. Gladney’s federal petition was filed far too late. Even if the limitations period could have been tolled until Gladney found out about his counsel’s failure to interview the witness, his petition would still have been filed well outside the adjusted limitations period. Gladney’s attempt to invoke the narrow actual innocence exception to disregard the time limits for seeking federal habeas relief, see Schlup v. Delo,
I. Factual and Procedural Background
Gladney killed Wilson in August 1996 when Gladney confronted Wilson about money Wilson owed him. According to Gladney, Wilson had robbed him at gunpoint several weeks earlier during a dice game. Gladney and Wilson knew each other prior to the robbery, so Gladney thought he would try to talk to Wilson about getting his money back. When Gladney ran into Wilson one week after the robbery, Wilson promised to return the money. When Gladney met up with him two weeks after that, however, Wilson had changed his mind and refused to hon- or his earlier promise.
Wilson’s refusal to pay led to an argument that escalated quickly. Gladney testified that he hoped to end the argument and turned away from Wilson. But as he was doing so, he decided to take out his gun and hold it by his side. When Gladney was distracted by a car horn, Wilson rushed him and grabbed his wrist. They struggled for the gun. During that struggle, Gladney was shot in the arm, but he also shot Wilson multiple times, killing him.
The State charged Gladney with first-degree intentional homicide. At trial, Gladney did not argue that he had not intentionally shot and killed Wilson. He argued instead that he should not be found
Over a decade later, and long after the first round of post-conviction review was complete, Gladney seeks post-conviction relief based on two developments that took place after his conviction became final. First, he argues that his trial counsel was ineffective for failing to interview Carl Calhoun, a man who had also been present at the robbery and could have corroborated Gladney’s claim that Wilson had robbed him. Gladney claims he did not learn of his counsel’s failure to interview Calhoun until 2010 when he happened to run into Calhoun in prison. At this chance meeting, Gladney asked Calhoun why he did not testify about the robbery at his trial. Calhoun explained that he had never been contacted by Gladney’s lawyer.
Second, after Gladney’s conviction became final, Wisconsin modified the standard for “imperfect self-defense,” which can transform first-degree intentional homicide into second-degree intentional homicide with a much less severe sentence. Gladney presents this as a federal claim that his conviction violated the Due Process Clause of the Fourteenth Amendment because the State was permitted to convict him without proving all of the elements of intentional first-degree murder. Seé Fiore v. White,
Under Wisconsin law, to convict a person of first-degree intentional homicide the State is required to defeat any credible claim of self-defense. Wis. Stat. § 940.01(3). Gladney claims that the State was not required to do so here because it was given the option of defeating his imperfect self-defense claim merely by attacking the objective reasonableness of his threshold belief that he was preventing or terminating an unlawful interference with his person. At the time of his trial, this accurately stated the law of imperfect self-defense in Wisconsin. See State v. Camacho,
Gladney’s state conviction became final on January 12, 1999. He did not file his federal habeas petition until July 17, 2013. The district court ordered Gladney to show cause why his petition should not be dismissed as untimely. The court explained that unless some form of statutory or equitable tolling applied, Gladney’s petition was untimely because he would have needed to file his federal petition by January 12, 2000, one year after his state court conviction became final. See 28 U.S.C. § 2244(d)(1)(A).
The district court rejected Gladney’s attempts to toll the limitations period — either statutorily or equitably — based on his 2010 discovery that his lawyer had failed
Gladney appealed. We granted a certificate of appealability on both of his constitutional claims and also directed the parties to address the timeliness questions presented by the petition. We asked the parties to address whether the petition might be considered timely and, if not, whether Gladney can demonstrate that he is entitled to an equitable exception to § 2244(d)(l)’s timeliness requirements because he is actually innocent of his crime of conviction.
II. Timeliness of Federal Habeas Petitions
A. Determination of the Limitations Period
Under 28 U.S.C. § 2244(d)(1)(A), a state prisoner seeking federal habeas relief has just one year after his conviction becomes final in state court to file his federal petition. Gladney was convicted by a jury on November 21, 1996. Wisconsin courts may elect to conduct direct review of a conviction at the same time they review a post-conviction petition, and that is what happened here. See Socha v. Boughton,
Gladney did not file either of the two state post-conviction petitions raising the claims on which his federal petition is based until much later. He filed the first on October 5, 2009 and the second petition on April 7, 2010. Though the clock did not run from the time Gladney filed his Octo- . ber 5, 2009 petition in state court to its resolution on May 14, 2012, when the Wisconsin Supreme Court denied review of both petitions, see § 2244(d)(2); Carter v. Litscher,
This appeal centers on whether Gladney has a legally viable basis for allowing such a late federal habeas petition. We agree with the district court that he does not. We consider first, and briefly, Gladney’s arguments for statutory or equitable tolling, and then his argument for actual innocence based on his theory of imperfect self-defense.
B. Tolling the Limitations Period
Gladney gestures in the direction of statutory tolling under § 2244(d)(1)(D) as well as equitable tolling under Holland v. Florida,
Under § 2244(d)(1)(D), a petitioner has an additional year to file any claim starting from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” Under equita
Gladney’s only asserted basis for either form of tolling is that he could not have filed a petition alleging the claims he does now until his February 4, 2010 discovery that his attorney failed to interview Calhoun as part of his trial preparation.
C. Actual Innocence Gateway
Gladney’s last theory for avoiding the one-year time limit is to argue for an equitable exception to § 2244(d)(1) based on a claim of actual innocence. See McQuiggin v. Perkins, 569 U.S. -,
The Supreme Court has not recognized a petitioner’s right to habeas relief based on a stand-alone claim of actual innocence. See McQuiggin,
In federal habeas law, the actual innocence exception is one application of the broader “fundamental miscarriage of justice” exception to procedural default intended to ensure that “federal constitutional errors do not result in the incarceration of innocent persons.” Id. at 1931, quoting Herrera,
The actual innocence gateway is narrow. Gladney’s procedural default can be excused only if he “presents evidence of innocence so strong 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,
Gladney’s gateway claim of actual innocence under Schlup could be viable only if he presents evidence not previously considered. Such new evidence can take the form of any “new reliable evidence— whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” See Schlup,
Gladney argues that two developments since his trial meet the Schlup standard of actual innocence: (1) the Wisconsin Supreme Court’s modification of the law of imperfect self-defense in State v. Head,
1. Change in State Law
When Gladney was convicted, the controlling case on imperfect self-defense in Wisconsin was State v. Camacho,
[10] In State v. Head, the Wisconsin Supreme Court modified the imperfect self-defense standard to make it easier for defendants to satisfy. The court made clear that a defendant need not make the threshold showing that he held “an objectively reasonable belief in the existence of an unlawful interference.”
Gladney argues that under the Head standard, he would be found actually innocent of first-degree intentional homicide. That argument raises a new question in this circuit, which is whether the Schlup actual innocence standard can be satisfied by a change in law rather than new evidence. See
We need not resolve that broader question here because the Wisconsin Supreme Court has made it clear that the rule announced in Head does not apply to defendants in Gladney’s position. In State v. Lo,
Gladney resists the holding of Lo, explaining all the ways that the state court may have gotten the retroactivity analysis wrong. Whether a state must make retroactive changes in state law, however, is itself ordinarily a matter of state law. As a general rule, the federal Constitution “neither prohibits nor requires” retroactive application of a state’s judicial decisions. Linkletter v. Walker,
Gladney presents no federal constitutional issue and no ground upon which we could grant habeas relief because a “federal court may not issue the writ on the basis of a perceived error of state law.” See Holman v. Gilmore,
2. New Evidence
Gladney’s other argument for actual innocence is based on the testimony of Calhoun about Wilson’s earlier robbery of Gladney. To be sure, this evidence cannot be considered newly discovered- — -in the way that would be required for equitable or statutory tolling — because Gladney had been aware of Calhoun’s presence at the robbery. But the Schlup actual innocence gateway does not require that the new evidence be newly discovered. We have rejected limiting the Schlup inquiry to newly discovered evidence: “All Schlup requires is that the new evidence is reliable and that it was not presented at trial.” See Gomez v. Jaimet,
The Supreme Court has since explained that we were right to conclude that “the absence of a newly ‘discovered’ requirement in Schlup” was not a “mere oversight.” Id. at 679. In McQuiggin, the Court made clear that the threshold diligence requirement of equitable tolling and § 2244(d)(1)(D) tolling does not apply when a court is considering whether evidence is new for the purposes of the actual innocence inquiry. See
Gladney has failed to meet Schlup’s demanding standard for actual innocence. We are not convinced that it is more likely than not that no reasonable juror would have convicted him even in light of Calhoun’s testimony that the robbery actually took place. Under Wisconsin’s law of imperfect self-defense, under both Camacho and Head, the State could convict Gladney of first-degree intentional homicide if it could persuade a jury that Gladney did not actually believe that he was in imminent danger of great bodily harm or death or did not actually believe that the amount of force used was necessary to prevent that harm. See Head,
Even though Calhoun’s testimony could not directly establish Gladney’s mental state at the time of the killing, Gladney argues that Calhoun’s .testimony would have been decisive because it provided the only first-hand account — besides his own— that Wilson robbed Gladney at gunpoint several weeks before Gladney fatally shot him. Two other witnesses testified about the robbery, but neither had actually witnessed it. In Gladney’s view, their relatively weak second-hand accounts enabled the State to cast doubt on whether the robbery actually took place. Calhoun’s detailed account of the robbery — including that he feared he might be shot by Wilson, who was waving a pistol around while demanding everyone’s money — would have made it harder for a reasonable juror to doubt that Gladney had been robbed.
For purposes of argument, we grant Gladney the premise that, in light of Calhoun’s testimony, any reasonable juror would conclude that the earlier robbery took place. From that premise, Gladney argues that it necessarily follows that the same reasonable juror would be compelled to conclude that he actually believed he was acting in self-defense when he killed Wilson. That is a possible inference but by no means a required one. The actual innocence gateway of Schlup demands more than a possible inference that might lead a juror to acquit. To meet his heavy burden, Gladney must show it is likely that no reasonable juror would have convicted.
Gladney does not meet that standard. Calhoun was not a witness to the critical, fatal encounter. He corroborated an important point of Gladney’s version of the back-story, but he provided no details of the fatal shooting itself. It would be rea
On the record here, a reasonable juror could accept the second theory. The actual jury heard evidence that Gladney confronted Wilson about the robbery and brought a gun with him to do it. Gladney testified that the argument got “heated” once Wilson refused to pay up. Following that heated argument, the jury heard, Gladney pulled out a gun. He was the only person to pull a gun, and he shot Wilson multiple times. Of course, some testimony indicated that Wilson charged at Gladney and that the two struggled for control of the gun. But consistent with that testimony, a trier of fact might reasonably conclude that all this showed is that Gladney had threatened to Mil Wilson — either verbally or by taking out his gun — as their argument escalated. A juror would not be required to conclude that Gladney actually believed he was acting in self-defense at the time he shot Wilson just because Gladney testified there was a struggle for the gun and that he shot Wilson only because he feared for his life. Accordingly, we are not convinced that no reasonable juror hearing Calhoun’s testimony would have convicted him of first-degree intentional homicide. Without a strong showing of actual innocence required by Schlup, Gladney’s petition is untimely and we cannot address its merits.
The judgment of the district court dismissing the habeas corpus petition as untimely is AFFIRMED.
Notes
. The Calhoun discovery does not directly support the due process claim, so it is possible that each claim would present a different date on which to begin the timeliness calculation. As we noted in Taylor v. Michael,
. By contrast, if a state court holds that a subsequent interpretation of a statute was the correct statement of the law at the time a defendant’s conviction became final, the Due Process Clause requires giving petitioners on collateral review the benefit of that subsequent interpretation. See Fiore v. White,