*1 Prоcess Compulsory purposes For DOE, Plaintiff-Appellant, John con-
Clause, pre-prosecution Petitioner’s determining not be relevant should duct v. by the prejudice suffered quantum Warden, MENEFEE, Warden Frederick pro- late notice of when receives State Federal of the Otisville Correctional testimony.. prosecu- While posed alibi Attorney Institution; General defense) (and for that matter tion York, of New Defendants- the State year three by Petitioner’s hampered be Appellees. absence, Amendment a defendant’s Sixth by flight to avoid not diminished rights are No. 03-2432. given timely Had Petitioner prosecution. Appeals, United States Court testimony, notice of Ms. Jackson’s Second Circuit. objected to that evi- not have could State ability to ground its dence on Argued: Dec. investigate cross-examination develop Decided: Nov. by the prejudiced rebuttal There- before his arrest. passage of time
fore, analyze preju- must I believe that we not from the date
dice to the State from the date flight,
Petitioner’s but given. have been alibi notice should Petition- the evidence of
Putting aside my review of the year flight, three
er’s that it would be satisfy does not me
record Taylor for the application of
a reasonable that there Division to conclude
Appellate solely by caused prejudice
was incurable delay filing notice of the alibi wit- in footnote argument expressed
ness. The an
five, majority opinion has supra, of the I its disagree but appeal,
instinctive pros- that the
logic. Appelman Justice felt concerns could be alleviated
ecution’s for the adjournment provide time
an alibi de- investigate Petitioner’s
State assessment that agree I with her
fense. as the appropriate, sanctions were
lesser so year delay was neither post-arrest
one justify the as to
severe nor irremediable Moreover, preclusion. sanction of
extreme agree- panel is in unanimous miscon- to the existence of willful
ment as
duct, reach this issue. there is no need to *2 corpus.2 Although
tion for a writ of habeas challenge Doe seeks to his 1995 New York second-degree sodomy, conviction for State *3 petition he failed to file his within the period provided by the Anti- limitations Penalty Terrorism and Effective Death 2244(d)(1). (“AEDPA”), § Act 28 U.S.C. argues period Doe the limitations actually should be tolled because he is pled to which he innocent the offense attorney the whom guilty, because post-conviction hired to file his state mo- incompetently tion failed to file the motion trigger tolling provision in time to the Pollok, Pollok, & Michael S. Hoffmann 2244(d)(2), § in 28 provided U.S.C. York, NY, LLP, plaintiff-appel- for unavailability New because the of New York library case in the of the federal lant. State law in prison which he was incarcerated ren- District Attor- Sergi, John J. Assistant post- dered him unable to file his state (Jeanine Pirro, Attorney of ney District pro Although conviction motion se. the brief; Joseph County, on Westchester actually district court found that Doe was counsel), Plains, NY, Latino, M. White innocent, it declined to hold that actual defendant-appellee Attorney Gen- for provides tolling innocence a basis for York. eral of the State of New period, AEDPA’s limitations and it also rejected for Doe’s other asserted bases POOLER, MESKILL, Before: tolling. SOTOMAYOR, Judges. Circuit Doe that because he appeal, argues
On separate in a Judge POOLER dissents presented a credible claim of actual has Clause, innocence, opinion. Suspension Amendment, man- Eighth process and due SOTOMAYOR, Judge. Circuit period that AEDPA’s limitations be date appeals Petitioner-appellant John Doe1 respect to the at- equitably tolled. With issue, of the States from the decision United torney competence he asserts Baldayaque District for the District v. United Court Southern our decision (2d States, Cir.2003), (Brieant, J.), F.3d 145 issued denying peti- York New challenges custody, requested supple- petition his state argument, oral we 2. Doe's After resulting York State conviction from his New briefing on whether "John Doe” mental second-degree sodomy, pursuant to 28 for permitted litigate should been under have caption § reflects U.S.C. 2254. The official pseudonym. judge granted The below use respon- that Doe named as one of the the fact giving ap- pseudonym parte, ex without Menefee, of the feder- dents Frederick warden However, pellees opportunity an to be heard. al institution in which Doe correctional order, learning appellees upon failed to that he incarcerated at the time filed reconsideration, and have make a motion for agreed petition. parties that Attor- The appeal. not raised the issue on We decline to ney of New York is the General of State complex question applica- address the only proper respondent, and have litigating pseudo- ble standards for under litigated accordingly. district this matter nym under these circumstances. recognized Janu- this in an order dated court ary ruling testimony given on the is- after the district court’s- well as sue, reversing the court’s find- necessitates evidentiary hearing conducted before the incompetence of Doe’s attor- ing district court March and are es- Finally, ney tolling. did not warrant sentially undisputed. Any disputes factual argues that the district erred during pro- have arisen habeas prison library claim of holding that his ceedings greater will be treated- detail inadequacy could not serve as basis hearing testimony, the discussion of the equitable tolling., Because one of below. to toll the limi- grounds these is sufficient second-degree sodomy John Doe’s con- maintains, he should be period,
tations *4 viction the result of a long-running given opportunity the to have his constitu- adjudicated jointly by tional claims on their merits. investigation, conducted federal agencies, and state law enforcement into a the district court relied We hold York, ring pedophiles based New clearly findings on erroneous of fact in Jersey Maryland. ring New and The determining presented that Doe had new composed of men who called themselves reliable evidence of innocence and was Lovers,” “Boy phrase Doe defined actually respect innocent. With to Doe’s young as men who liked to have sex with attorney argument, af- incompetence we boys, firm court’s conclusion that the and its activities consisted of ex- diligence, failed to exercise reasonable changing creating pornography, and child and do not reach Doe’s contention thus viсtims, “seducing” sharing and solicit- and- attorney’s incompetence suffi- ing prostitution.3 child Although the exact Doe’s, ciently tolling egregious to'warrant under dates of affiliation group with the Baldayaque. We also affirm the court’s unclear, appears are it friendly he was holding tolling that Doe is not entitled to principals, participated and in its its inadequacies purported based on of the activities, beginning early in the 1980s and prison library post-convic- because Doe’s continuing at through least 1993. Doe’s tion motion on largely relied federal law. group appar- activities as member of the ently gave never rise to a criminal investi-
BACKGROUND gation prior to although Doe did Second-Degree Sodomy I. Doe’s Con- Maine, have one sex offense conviction in viction stemming from attempt pay his 1975 young boys two following pose pornographic The are taken from facts the record, transcripts pictures. affidavits and as provided description acclimating boy
3. Doe of the detailed to a more erotic rela- Boy tionship, allowing pedophile Lovers' victims and “seduction” methods and to evalu- cooperator boy’s willingness engage in his as a federal ate the in eventual Doe, against Boy two According eventually fellow Lovers. The men sexual acts. victims, generally pre-teen process would and choose would culminate in a sexual relation- teenage boys disadvantaged ship, during Boy back- which the Lover con- grounds, to, for, ingratiate by taking give money and themselves tinue to and do favors boys boy to arcades and fast family. boy food restaurants. and his friends and The boy’s parents Doe stated that sometimes a would also be coached on how to deceive assistance, authorities, given especially might would be financial and be used create child Boy thought parents pornography, if the Lover which would then be shared being groomed were amongst Boy boys aware that their son was -Lovers. Some were trust, Lovers, having boy’s Boy for sex. boys After obtained the shared between and certain Boy potential Lover would invite to a him nude would be used to recruit new vic- beach, purposes which would serve the dual tims. 9, 1993, September York Lovers. During the summer of New On the FBI investi- Jersey investigators state and federal and from the DA’s New Office and investigating the activities of gators were other state authorities searched Doe’s group, Bagar- Richard two members County apartment part Westchester Federowicz, and Edward who were ozy a coordinated series of searches and ar- creating warehousing suspected up ring. rests intended to break boys pornography transporting child investigators por- recovered items of child Jersey for from New York to New sex. nography from apartment, and the County Investigators for the Westchester Attorney’s United States office for the Attorney’s in New York District Office initially Southern District of New York (“the Office”) conducted several wire- DA’s prosecuting por- considered on child Federowicz, taps Bagarozy and be- nography charges, although is not clear when, came alerted to Doe’s existence on far progressed. how these deliberations 17, 1993, they Bagarozy August overheard search, days September Six after the discussing how Doe had and Federowicz attorney, Murray Doe and his Rich- recently boy had sex with a named Edwin4 man, met *5 investigators with federal for the In paid and had him afterwards.5 later purpose determining whether Doe had wiretaps, discussing Doe was overheard knowledge Boy sufficient of the Lovers’ sexually in a Edwin with Federowicz ex- ring offering to warrant him a plea bargain information, plicit manner. Based on this in return for cooperation.6 spoke his Doe attempted to locate Edwin the DA’s Office investigators pursuant with the federal to in to whether a crime had order determine proffer agreement guaranteed a committed, not been but did succeed any the United States would not use of his February until doing so 1994. against any judicial pro- statements him in Meanwhile, begun ceeding, except purposes the FBI also had to for of cross-ex- investigate Boy During proffer Doe as a member of the amination or rebuttal.7 evidence, proffer tapes 4. The surnames of all victims who were mi- fused to even question nors at the time of the inquired evidentiary events after the court as to their throughout litigation value, redacted been we will not consider them as substan- protect privacy. order to the victims' tive evidence here. Although wiretaps 5. these were not intro- 6. The session was run and recorded below, duced into evidence two witnesses tes- investigators, including representa- federal as to substance. addition to the tified their In tives of the FBI and the United States Attor- Bagarozy conversation between and Federo- ney’s Office of the Southern District of New vich, investigators overheard conversation Although representative York. at least one Doe, Bagarozy they between in which Jersey present, the New state authorities was Edwin, Bagarozy discussed informed Doe evidentiary hearing testimony both the Boy preferred that Edwin Doe to fellow Lover recording the session indicate the documents conversations, subsequent O'Rourke. Bill nobody DA's from the Westchester Office in the course of a Doe mentioned Edwin participated in the session. Richman testified gen- sexually explicit boys’ conversation about hearing, evidentiary an below, Supreme italia. As discussed present. somebody from the DA's Office Court’s actual innocence case law would al- tapes transcripts low us to consider these or agreement It is unclear whether the binds purposes of as substantive evidence for determination, agency, any as the state law enforcement though actual innocence even Office,” agreement only refers to "this a refer- tapes some of the statements contained on Office, Attorney’s States might Schlup ence to the United not be admissible at a trial. See Delo, 298, 327, only representative of a state law and the v. 513 U.S. 115 S.Ct. (1995). agency signed agree- respondents who L.Ed.2d 808 Because re- enforcement Meanwhile, Pat descrip- investigator Storino session, detailed provided Doe investigating the con- the DA’s Office was “seduction” meth- Boy Lovers’ tion between Doe and Edwin on the nection victims, ods, as well as names of their wiretaps. lo- August basis of the Storino involvement personal of his an account 3, 1994, February Edwin on but did cated and Federowicz and Bagarozy n con- attempt question about his children. He volun- acts with own sexual early February, tact with Doe. Also months,” couple “in teered that the last Kyle had Special Agent told that Edwin Edwin, boy named who had had sex with attempted contact Doe sexually Bagaro- was also associated ' recently gotten prison out of O’Rourke July zy. place This would the encounter un- and had coached Edwin and another Doe, According to “the August of 1993. victim, R., derage Edward on how to de- and masturba- oral'copulation included sex Doe, According ceive the authorities. tion.” Edwin wanted Doe to know that he had proffer in a second ses- participated say anything promised incriminating provided where he sion in October Spe- law enforcement authorities. Bagarozy’s information about more Agent Kyle cial transmitted this informa- activities, apparently Federowicz’s but did February tion to the DA’s Office on with Edwin.8 not discuss his own activities In March the DA’s inter- Office was still under in- Although Doe himself separate viewed Edwin on two occasions. time, crimes at that vestigation federal (“ADA”) Attorney Eliza- Assistant District point government the federal de- some beth Special Cronin9 Prosecutions *6 Nonetheless, charge cided not to him. Division, which handles domestic violence Special Agent to work with continued Doe cases, and child abuse conducted the inter- FBI, Kyle providing of the James informa- views. In accordance the DA’s Of- regarding ongoing tion activities customary practice dealing fice’s when in Boy assisting and the FBI locat- Lovers victims, underage the interviews were ing Bagarozy’s pornography. stash of child not recorded and Edwin was not asked to 1995, In for the February Doe testified statement, sign a written so Cronin’s hand- trial of government Bagaro- the federal only provide written notes record of Federowicz, zy provided he ex- and where Dur- the substance of Edwin’s statements. Boy tensive evidence of the Lovers’ activi- interview, ing the gen- first Cronin elicited victims, ties and as well as defendants’ eral information about Edwin’s relation- individual and of child proclivities ship practice taking creation with Doe and Doe’s of pornography. hotdogs Edwin and his friends out for signed immunity agreement during appears proffer a witness ment to have ses- agreement party. rather than as a The itself sion. Because all of Doe’s admissions with party indicates that the DA's-Office was not a respect during Sep- to Edwin occurred representa- agreement, as no to session, however, proffer tember 15 Doe’s signed agreement in tive of that office has during statements the October session are not Pelletier, any capacity. v. See United States record, included in the and the October im- 297, Cir.1990) (2d (holding 898 F.2d munity agreement pur- is irrelevant for our scope immunity provided proffer of use poses. agreement governed by princi- contract law ples). . 9. Ms. Cronin is now the Director of the Office Legal of Affairs in this Court. parties, including representative of Office, signed tlie Westchester DA’s different restaurant, Nathan’s, ly immunity agreement, a fast food to ar- misconstrued the cades, apartment play to Doe’s and back him Doe fired and retained another law- during notes taken games. video Cronin’s yer, negotiated who plea bargain. 1994, interview, 18, on March the second 1995, February pled guilty Doe told her that Doe had indicate Edwin County count Westchester Court one of attempted “grab occasions on earlier second-degree sodomy. During plea driving crotch” while him to Na- [Edwin’s] allocution, asked, you Doe “Do admit than’s, and had at least once tried to force you, Village Tarrytown in the ... apartment. the bed in Doe’s Edwin onto July on or about and between 1st of 1993 13, 1993, August On Edwin went to Doe’s 1993, August and being years 13th apartment play computer games, more, age engaged in deviate sexual pull pants Doe tried to down while Edwin’s a person intercourse with less than 14 sitting computer. Edwin Edwin, years age, of contact consisting him between grabbed then took to the bed- room, bed, Doe, oath, him down on mouth pulled penis?” threw under ad- down, put his mouth around pants charge. Approximately mitted the ten penis. Edwin was able to shake Edwin’s entering guilty plea, months after him, by kicking Doe off and Doe later rehired Richman attempted to with- gave drove home and Ed- Edwin $50. plea draw his on the of an alleged basis description also a detailed provided win defect, jurisdictional but did not assert his which later veri- apartment, Cronin denied, actual innocence. The motion was fied, and indicated that he remembered years’ pro- and Doe was sentenced to five alleged when the forcible contact had oc- in January Appellate bation 1996. The Friday curred it was the before Division affirmed the conviction relevant 15, 1993, August places on moved which part September and denied leave August the incident on appeal August AED- 1998. The In October Cronin notified Doe’s PA limitations therefore run- period began Richman, attorney, Murray that the DA’s 19, 1998, ning on November after the 90- *7 prosecute Office intended to Doe for at- day period to seek certiorari with the Unit- tempting to have sex with Edwin. Rich- Supreme expired. ed States Court See protested, asserting man that the use im- Greiner, 1190, Pratt v. n. 306 F.3d 1195 & munity agreements signed that Doe had (2d Cir.2002). immediately Doe did not during proffer prohibited his sessions challenge file a collatеral to his con- state prosecuting any DA’s Office from Doe for pursuant to New York viction Criminal during offense that he had described § Procedure Law 440.10. proffer maintained that session. Cronin 1998, In November Doe was arrested on September immunity agreement 15 use charges conspiring federal to receive Office, purport did not the DA’s bind possess pornography child over the plead and offered to allow Doe to to sec- apparent internet.10 After it became that sodomy, ond-degree sentence of second-degree sodomy the New York con- sodomy probation, rather than to forcible adversely viction would affect Doe’s sen- charge prison that would mandate a sen- Angry apparent- tence. that Richman had under the United States tencing Sentenc- co-defendant, Doe, alleged by possessed equip- complaint 10. his federal admission, create, necessary duplicate, his own had downloaded some ment and en- 46,000 viewing quality images pornography, digitized hance the of videos and CDs of child having containing pornography. a video of children sex that was filmed child had run. He attorney period AEDPA’s limitations Guidelines,11 Doe retained ing petition untimely, that his was February to collater- conceded in Patrick Wall tolling arguments the three in York but raised ally attack the conviction New here, developed in although § a l'ess by filing a 440 motion. issue Supreme Court inno- respect to the actual in a federal form. With Because Doe was incarcerated issue, brother, an affidavit time, proffered cence facility gave at the his that Doe never mo- Gould, attorney to enable which Edwin stated power Peter the DA’s retain, him and'that he never told pay supervise Wall. lested him to attempted that Doe had supervision, and Gould’s Office Despite Doe’s § contact with him. The district delay filing the 440 mo- sexual Wall decided to found, however, in an order dated pre-sentence report until the federal tion claim actual inno- February that a completed, part at least provide tolling if a basis for necessary pre- cence did might motion be sodomy period, noting limitations “the report did not use the AEDPA’s sentence bring repose cal- of AEDPA to sentencing to enhance Doe’s clear intent conviction courts, the AEDPA limitations state convictions the federal culation. When 19,1999, the social cost.” The court also on November Wall whatever period expired motion, claim on attor- thereby tolling § 440 denied Doe’s based yet had not filed the ney incompetence, finding that our deci- losing opportunity to invoke 28 U.S.C. Senkowski, 2244(d)(2)’s limi- v. 273 F.3d provision tolling § sion Smaldone (2d Cir.2001) curiam), mandated during pendency (per of a period tations diligence lack of post-conviction By motion. Febru- the conclusion Wall’s state “extraordi- ary apparent vari- was insufficient constitute Wall’s nary meriting equitable problems preventing ous health were circumstanсes” motion, tolling. Finally, implicitly the court held working on the and Doe fired petition pro § in that have filed his finally him. Doe filed the 440 motion Doe could May despite the DA’s se his incarceration. alleging Office evidence, exculpatory withheld committed we declined to review the appeal, On by breaching the prosecutorial misconduct rulings. merits of the district court’s We immunity agreements, and federal use yet that this Court has “not deter stated guilty plea. The motion was coerced requires mined whether the Constitution 2001,12 Appellate denied in and the June exception an actual innocence to [AED- appeal Division denied leave to Novem- limitations,” statute of but we PA’s] ber 2001. *8 in would decide this issue the context of in petitioner’s case which the credible II. Doe’s Federal Habeas Petition “compels showing of actual innocence us to Proceedings A. Initial Menefee, Fed.Appx. do so.” Doe v. (2d Cir.2002) petition (unpublished opinion) Doe filed the instant on Novem- 341-42 (“Doe 7”) (internal 30, 2001, just quotation years ber over two after marks and motion, considering § pled guilty pornog- to the federal child raphy charges in the Eastern District of New County challenges Court denied Doe’s on April prior York in 2000. Because of his their merits and did not address whether the conviction, applied a five- the district court Edwin nev- affidavit in which asserted he enhancement, resulting statutory level in a’ any er accused Doe of sexual assault raised mandatory sixty minimum sentence actual innocence. issue of months. omitted). Noting that “Doe citations has Federowicz and was not aware of the bulk activities, evidence, the affidavit of his al- of their he associated with presented many victim, of the boys a rea- same as did the two leged might which well lead convicted pedophiles. juror guilty,” overlap him not but Doe attributed this sonable to find association to the fact routinely that he respondent presented that “the also has made himself to underprivileged available undermining extensive evidence the vic- boys Edwin, like Edward R. and affidavit,” taking tim’s we remanded the case to arcades, to hotdogs, them to Nathan’s for court to determine whether the district occasionally apartment back to his to presented a credible claim of “Doe has play games. watch movies and video actual innocence.” also Id. 342. We to consider whether a directed court 13, 1993, August On the date of the pur- petitioner must demonstrate he assault, alleged picked up Edwin from claim actual sued his innocence with him, alone, Bronx and drove to Doe’s diligence, required reasonable as is as- apartment Tarrytown. just Doe had serting grounds equitable tolling. other for work, finished change wanted to into Finally, Id. we declined consider Doe’s casual clothes took before he Edwin to arguments respect attorney incom- Sportstime, an arcade. At apart- petence inadequacy prison and the of the ment, Edwin waited while Doe changed, library. Id. and the two were alone in apartment perhaps ten minutes. Doe denied hav- Evidentiary Hearing
B. The on Re- ing sex or having attempted with Edwin mand force him into sexual contact. remand,
On the district conducted Doe maintained that even August after issue, hearing on the actual innocence Edwin continued to call him and ask to after which it determined that Doe had They appear be taken out. to have met by preponder- “established his innocence once, Doe, just though, July when ance of the evidence.” O’Rourke, credible The court Playland and Edwin went Doe, Edwin, testimony heard Rich- County. Park in Westchester Doe stated man, Cronin, Storino, Greg and ADA him that Edwin told that the DA’s Office innocence, Bernhard on the issue of actual approached questions about and from Peter Gould the issue of Doe’s Doe, but that Edwin had denied im- diligence pursuing reasonable his claim. proprieties. that is relevant to the dis- questioned why pled When as to
position appeal of this is summarized be- guilty second-degree sodomy when he low. offense, innocent Doe asserted pleading that he felt coerced into 1. Doe frightened he was that he would be through charged Doe testified he met Edwin with a more serious offense—and R., boys closely prison Edward one most face time—if he did not plead. *9 Moreover, Bagarozy, early connected with in the Doe to help was anxious assertedly summer of government Bagarozy 1993. Doe did not federal convict and time, however, Federowicz, realize at the that Edward because he had been com- sleeping Bagarozy, R. was pletely unsavory was unaware of their more by Bagarozy including having used and Federowicz to iden- sex with Ed- activities— others, attract tify Although using boys new victims. ward R. and to very Bagarozy pornography Doe was not close to and make child be- felt —and on a team played fied that he basketball himself would not have he trayed because Bagarozy, and knew of organized by Doe be- exploitation. such countenanced Bagarozy but had through O’Rourke never guilty to the plead if he did not lieved that Bagar- that met him. He further testified offense, prosecutors federal sodomy once, him to a nude beach but ozy invited trial running Bagarozy/Federowicz gave None of the men ever he refused. possibility and that angry, be money or other financial assistance. Edwin the Fifth have to invoke that he would on the witness stand Amendment while had con- Edwin learned that Doe been ability to function as jeopardize his could involving August an offense victed of cooperator. Edwin was incarcerat- 1993 incident when his admis- attempted explain also There, Island in 1998. Edwin ed Rikers proffer session September at the sion brother, approached by Edward R.’s was by stating with Edwin that he had sex R., closely associated Angel who had been asked about “panicked” that he had when and was known as one of with O’Rourke proffer that was Edwin. He stated boys. Angel main R. told Boy Lovers’ airless, small, room” “in a windowless held jail that Doe “in of’ Edwin ... it was [and] the end of the summer “at Edwin, attempt to con- leading Edwin that he extremely hot.” Doe worried speak tact Doe refused to with Edwin Doe. explain to be able to going “was not arising protection because of an order of ... role in agents [his] [the what these conviction, after from the 1995 but soon was, not a criminal Boy which was Lovers] contact, Doe attempted Edwin to initiate role,” and he therefore “lied” stated speak to private investigator sent a that had had sex with Edwin. an attorney generated Edwin. Doe’s then signed, asserting affidavit that Edwin
2. Edwin he had never told the DA’s Office testimony roughly corroborated Edwin’s him. an attor- assaulted Doe also retained Doe’s, vary in although the two accounts Edwin, ostensibly protect Edwin ney for respects. some Edwin stated he was “pressure” from the DA’s Office. against apartment, in Doe’s never alone with Doe Finally, Edwin maintained that he was not contact, had sexual consen- and had never promised anything exchange for his tes- forcible, with Doe. sual or willing to timony hearing; at the he was testify truth needs to because “the be by the DA’s Of- approached Edwin was told.” early meeting and went to one fice ADA He recalled that Cro- Cronin.13 Elizabeth Cronin only person
nin involved in the was the until a man came towards the interview Cronin recounted her interviews with end, but he admitted his recollection refreshing her recollection Edwin after of the interviews was particulars during with the notes that she took asked Edwin if Doe ever unclear. Cronin interviews. Cronin testified that of seven money for sexual favors or “gave [him] notes, four, pages of the first dated March that,” anything replied like and Edwin 18, 1994, during were taken her second no sexual contact had ever occurred. The next two interview with Edwin. undated, during were taken respect larger pages, to his involvement With Lovers, interview, Boy page testi- first and the last of notes with the circle of Edwin *10 meetings. ed two affidavit states that Edwin attend- 13. Edwin's later, why Edwin he accompa- taken when Cronin Cronin asked had may have been The proceeding. apartment for a nied Doe to his after the preparing was first evidence, incident, then offered into notes were which itself had involved an ele- in included the record. compulsion, are ment of and Edwin answered thought that he had he had Cronin, According to the DA’s Office made it clear to Doe that he did not like with Edwin be- conducted two interviews advances, Doe would come practice standard to conduct cause it was again. with a dealing at least two interviews when Bernhard, Greg ADA who child victim. practice, accordance with standard investigation until had handled Cronin also asked Edwin to describe prose- DA’s Office decided to transfer the detail, in apartment verify order to Division, Special cution to the Prosecutions actually Edwin been there. Cronin for both interviews. present was also verify descrip- was later able to Edwin’s interview, first Cronin elicited During the tion with Storino’s and Bernhard’s knowl- information about Edwin’s rela- general edge of the apartment, based on their Doe and how the two had tionship with property. search of the interview covered the met. second Edwin, Based on the interviews with alleged sexual contact and its aftermath. charge DA’s Office decided Doe with had met Doe Cronin stated Edwin offense, and sex Cronin contacted Doe’s summer, early through Edward R. Richman, attorney, Murray to discuss the drive to various that Doe would Edwin told Richman that charges. Cronin attempt to places. Sometimes Doe would DA’s Office believed had sufficient evi- car. At groin touch Edwin’s some charge sodomy, dence to Doe with forcible point alleged before the contact B felony carry a Class that would a sen- sodomy charge, formed basis time, prison tence of but that because Doe Edwin, by any boys, other unaccompanied cooperating govern- with the federal computer on the in a back playing Bagarozy ment in the and Federowicz tri- apartment in Doe’s when Doe came room al, willing the DA’s Office was to consider up attempted put him and his behind second-degree sodomy, charging Doe with told Ed- pants. hands down Edwin’s Doe felony probably D that would re- Class up, strug- to stand and when Edwin win probation. sult a sentence of gled, Doe carried Edwin into the bedroom. struggle, continued to Doe When Edwin Greg Bernhard not to drive angry became and threatened Edwin home. Bernhard, supervised ADA who 13, 1993, wiretaps and the search for Edwin and August again Edwin accom-
On interviews, cor- panied apartment. present Doe back to his Doe’s was Cronin’s testimony in its entire- began they advances had on the earlier roborated Cronin’s time; that he had not ty. further this once Bernhard testified occasion but went bed, *11 him, willing participant ception demonstrating of the standard for paid Edwin was innocence, that “the stan- stating actual in the encounter. n proof possible dard of is at the lowest allegedly what asked to describe When only level. Innocence need be demonstrat- second visit to during Edwin’s occurred likely unlikely.” ed to be more than that Bernhard stated apartment,14 Doe’s The district court found Edwin’s testi- that him and Cronin he was Edwin told mony entirety, credible its as Edwin that, and while he playing computer games “forthright responsive” ... and in an- began grabbing computer, was on the swering questions. The court concluded him legs trying and to turn from the his although Edwin had “socialized” with Eventually pulled Edwin computer. Lovers, Boy Doe and other he “had not bed, chair, off of threw him onto the personally engaged any activity sexual down, mouth pulled pants put his or with Doe other man.” Because penis. on Edwin’s Edwin kicked Doe and crediting Edwin’s accounts what he had him to stop. told during his re-
said interviews Cronin Investigator Pat Storino quired that the court or discount discredit directly and Bernhard’s conflict- Cronin’s Finally, Storino testified as to his inves- -testimony, ing the court concluded that tigation into Edwin’s whereabouts and the primarily Cronin’s recollection was based process by DA’s Office learned which the notes, on her “at least some of which are Al- potential and the crime. Edwin Thus, contemporaneous al- records.” joint though wiretaps’ were federal- explicitly the court refused to make though endeavors, representative state no credibility an adverse determination with present September DA’s Office was at the Cronin, respect it found that Edwin’s in which Doe proffer session admitted testimony was entitled to weight. more having sex with Edwin. The DA’s Of- analyze acknowledge The court did not investigation fice’s into the incident was implications testimony, of Bernhard’s conducted, first, therefore at least at with- however. knowledge out of Doe’s admission that he had sex with Edwin. Storino also testified Turning to testimony, Doe’s the court Kyle Special Agent contacted relationship credited Doe’s account of his February relayed Doe’s statements with and his explanations Edwin of his that Edwin had been coached on what to previous inconsistent statements. The authorities, say promised to the and had placed weight court on the fact al- divulge any incriminating not to informa- though Edwin stated he was never tion. apartment, alone with Doe in his Doe ad- having mitted to been alone with Edwin Findings
C. The District Court’s once, inconsistency an court be- Conclusions suggested forthrightness. lieved Following hearing, pled district court also concluded that Doe had detailing findings issued an order its of guilty genuinely because he was afraid of fact jail and conclusions of law. The court if receiving plead, time he did not analyzed light con- betrayal arising its that his out of sense Edwin, only attempted Bernhard was asked about Edwin's in which Doe to molest but apartment, second visit to the from which the having any did not succeed in sexual contact visit, sodomy charge presum- arose. The first with him. notes, ably, was the described in Cronin's one
159 rulings attorney activities that Doe’s claims of in- and Federowicz’s Bagarozy’s endan- competence prison library inadequacy him reluctant to particularly made ability testify against them ger pe- his were insufficient to toll the limitations The court also refusing plead guilty. argues riod. that each of these Doe just Richman be- discharge found grounds equitable tolling,15 entitles him to guilty consistent with Doe’s pled fore he that he therefore should op- have the innocence, may Doe have been his portunity to have constitutional claims advice that he accept loath to Richman’s adjudicated on the merits.16 reasoning suggested This turn plead. guilt during admission of his
that Doe’s Although AEDPA provide does not Finally, was false. plea allocution period may that its limitations be tolled for “pan- found Doe’s statement pendency reason other than the of a and felt com- proffer icked” at the session motion, post-conviction state see 28 U.S.C. having with Edwin pelled to lie about sex 2244(d)(2), § cir exceptional “rare and strained,” apparently but did “somewhat petitioner may cumstances” a invoke the feel that Doe’s 1993 admission threw not power equitably courts’ toll the limita testimony into veracity hearing of his McGinnis, period. tions Smith v. 208 doubt. (2d Cir.2000) curiam) (in 13, (per F.3d 17 quotation ternal marks and citations omit
The court therefore concluded that Doe ted). treatment, for qualify To such by prepon- innocence had established his petitioner must establish that “extraordi of the evidence. It next deter- derance nary prevented circumstances from mined that Doe had exercised reasonable time,” filing petition his and that he the claim of actual diligence pursuing diligence through with reasonable innocence, “acted its initial conclu- but reiterated period out the he seeks to toll.” Id. We tolling AEDPA sion that does allow innocence, only have established a limited number of Suspension actual equitable circumstances that merit exception such an require Clause does tolling, attorney’s such as where an con period. to AEDPA’s limitations outrageous incompetent
duct is so
DISCUSSION
truly extraordinary,
Baldayaque,
see
152,
prison
and where
officials
338 F.3d
challenges
ruling
the district court’s
intentionally
ability
a petitioner’s
cannot
obstruct
period
that AEDPA’s limitations
be
petition by confiscating
legal
to file his
his
tolled based on a credible claim of actual
Stinson, 224 F.3d
February
papers,
innocence as well
its
see Valverde v.
discovery
prevail
argu-
Doe's belated
of the new evi-
15. Even if Doe were to
on his
tolling
petition
ment that he is entitled to
based on
might
his
dence
not in itself render
innocence, however,
note, however,
actual
it is not clear
timely.
question
We
that the
tolling would in itself be sufficient to
such
tolling
of how
for actual innocence will be
clearly
petition timely.
render his
Doe never
not be decided until we deter-
calculated need
established, and the district court made no
period may
mine whether the limitations
be
to,
finding
respect
when
first
tolled for actual innocence.
purportedly
learned of the new evidence that
demonstrates his actual innocence. There is
argues
16. Doe also
there is sufficient
some indication in the record that Doe first
enable us to reach
evidence in the record to
investigated
alleged vic-
learned of and
grant
petition.
the merits and
his habeas
testify
willingness to
that no
as-
tim's
sexual
issues,
disposition
tolling
light
of our
early
occurred as
as 1998 or
well
sault
argument.
we need not reach this
period expired.
before the limitations
If this
case, any tolling
might
were the
arise
Cir.2000).
(2d
Schlup
in the
courts.
v.
specif
tions
federal
See
133-34
We
Delo,
298, 318-21,
S.Ct.
ically
-question
of whether
U.S.
reserved
(1995) (describing
Acosta v.
F.3d
122-23
may
claim
and crafted a
cence
be based
Cir.2000),
surprising
it is not
that several
demanding
petitioners
standard
must
petitioners
attempted
have
to ar
habeas
advantage
meet in order to take
of the
justice
gue that considerations of
mandate
gateway.
petitioner
support
must
adopting
gаteway
the actual innocence
as a
claim
new
evidence—wheth
“with
reliable
tolling
peri
means of
AEDPA’s limitations
evidence,
exculpatory
er it be
scientific
See,
Senkowski,
e.g., Whitley
od.
v.
accounts,
trustworthy eyewitness
or criti
(2d Cir.2003).
223,
F.3d
225-26
We have
physical
pre
cal
evidence—that was not
yet
question, reasoning
decided this
Schlup,
sented at trial.”
513 U.S. at
that we
decide whether the Consti
should
Schlup explicitly
Once it has
reliable,
States,
Schlwp unequivo-
Bousley
v.
new evidence
that under
United
reviewing courts consid-
cally requires
[This]
legal
such a court is not
innocence
before
on actual innocence.
assess-
inquiry
Integral
factual
innocence.
but
adequacy
petitioner’s showing
ing the
holding
express
is an
command
Schlup’s
...
district court is not bound
reviewing
courts consider all evidence
admissibility
govern
rules of
admissibility,
regard
without
to its
while
Instead,
emphasis
trial.
on “actu-
portion Bousley
upon by
relied
reviewing
allows the
tribu-
al innocence”
dissent is mere dictum.17
probative
force
nal also to consider
*15
Only
examining
after
all evidence is
that
of relevant evidence
was excluded
the court able to determine whether new
unavailable ....
believe that
[W]e
truly
petitioner’s
throws the
con
evidence
Friendly’s description of the in-
Judge
doubt,
viction into
or whether it is so over
quiry
appropriate:
is
The habeas court
by
weight
whelmed
the
of other evidence
concerning
must make its determination
light
question
innocence “in
of all
that it is insufficient to raise a
as
petitioner’s
the
evidence,
to
including
alleged
the
that
petitioner’s
to a
factual innocence.
If the
(but
admitted
illegally
that,
have been
all
light
court then concludes
of
the
it)
unreliability of
regard
due
evidence,
likely
it
than
no
is “more
not that
tenably claimed to have been
evidence
juror would have
peti
reasonable
found
or to have
wrongly excluded
become
doubt,”
guilty beyond
tioner
a
a
reasonable
only
trial.”
available
after the
petitioner may invoke the actual innocence
gаteway
obtain
of the merits of
Friendly,
review
(quoting Henry
Id.
Is Innocence
and.
327,
Schlup,
his claims.
17. The
has
by failing
type
habeas claim
to chal-
therefore "clarified the
of evidence that
defaulted his
lenge
validity
plea.
assessing
523 U.S. at
the
of his
can be considered in
actual inno-
However,
621,
S.Ct. 1604. The Court held that he
cence.”
we decline to treat
118
exception
pro-
overruling Schlup's square holding
had neither satisfied the
dictum as
by
reviewing
rule nor overcome the rule
courts must evaluate all
cedural default
622-23,
327-28,
showing
prejudice.
Schlup,
Id. at
at
cause or
evidence.
513 U.S.
115
dicta,
suggested
Bousley's
of factual
findings
factual
where the trial court incor
plausible
the evidence is
court’s account of
value of vari
rectly
probative
assessed the
viewed in its entire
light
of the record
evidence,
rely
it to
pieces
leading
ous
Anderson,
573-74,
105
ty.”
470 U.S.
Rizzo,
States v.
349
speculation, see United
may
re
reviewing
1504. The
S.Ct.
(2d
94,
Cir.2003), and where
F.3d
100-02
when,
verse, however,
although there is
weigh
all of the relevant
the court failed
finding,
“on the
support
evidence to
factual find
making
evidence before
its
is left with the
entire evidence [the court]
Duncan,
102,
ings,
Ortega
see
v.
333 F.3d
that a
definite and firm conviction
mistake
(2d Cir.2003). Moreover,
we have
573, 105
Id. at
been committed.”
S.Ct.
has
credibility
trial court’s
determi
found the
v.
(quoting
United States
United
they
found
nations vulnerable where
were
364, 395,
Co.,
Gypsum
333 U.S.
States
ed on factual inferences that the evidence
(1948)).
525,
S.Ct.
with Edwin.19 trial that he acknowledged Bagarozy at the might to lie not be Although this motive aware, R. by that Edward was well to discredit Doe’s hear- itself sufficient Bagar- sleeping were and his brother testimony testimony, presents ing Boy other Lovers as well. ozy, perhaps in- account of his substantially different Thus, introduction to Edwin did Doe’s Boy Lovers and his with the volvement context discon- place take an innocent testimony than his relationship with Edwin Lovers; rather, Boy from the nected trial and the Bagarozy/Federowicz at the through whom Doe arranged by boy session, ineluctably to proffer leading routinely met Lovers had Boy and other testimo- hearing that Doe’s the conclusion are incon- victims. These statements new hearing, Doe At the ny is not reliable. hearing attempt at the sistent with although he was testified that repeatedly Edwin as relationship with present R., Edwin Edward introduced to Boy Lovers from the circle disconnected Edwin not because Edwin associated with and their victims. victims, Boy but one of the Lovers’ to the to his connection respect With him—and oth- enjoyed taking because Doe Lovers, Boy prior other happened to be victims boys er who who “boy lover” as someone twice definеd they enjoyed. Doe Boy places Lovers—to age under the boys who are has sex with himself from attempted to distance also aware- consent, demonstrating both his activities, “boy of defining Boy Lovers’ his own activities and of the circle’s ness “prefers to associ- as someone who lover” also joining group. maintaining reason socially boys, ate” Boy age Lover’s each Bagaro- explicitly defined very familiar with that he was not corroboration, reasons, rarely constitute reliable petitioner's own testi- these 19. For the crime for mony he did not commit of actual innocence. evidence *20 convicted, type absent some of which he was leaving persuasive explanation no doubt that Doe was that Doe had no of preference, admissions, internally those inconsis- associating aware that he was with a circle Second, tent. the court failed in to consider pedophiles. Doe stated that in all the evidence the record when it Bagarozy Doe and both had a sexual rela- neglected attempt to reconcile Doe’s tionship boy Tony, with a named and that hearing testimony Bagarozy/Fed- with his fought boy. Finally, the two over the testimony, erowicz trial and therefore re- Bagarozy asserted that he observed coach- unapprised mained of Doe’s consistent at- ing Edward R. on how to deceive investi- tempt through hearing testimony his in gators Bagarozy and that he and present flattering himself in a light. The took Edward R. to a beach in nude New court also failed to consider Storino’s testi- Jersey. According to testimony, his trial mony that Edwin told Doe that he would therefore, Doe was both enmeshed not give any the authorities incriminating Boy Lovers’ activities and was close Doe, information about suggests which Bagarozy, Mends with with whom he relationship that the between Edwin and underage partners, exchanged shared sex Doe was less than innocent. When Doe’s pornography, child and discussed methods hearing testimony is weighed against his seducing young boys. 1993 admissions and other evidence sum, a comparison of all of Doe’s record, bearing in probable mind his mo- testimonial statements demonstrates that tives at both proceedings and his evident hearing attempted at the present willingness to bend the truth at the hear- relationship his Edwin a substan- ing, hearing testimony his cannot be cred- tially light, more innocent and himself as ited as reliable evidence of innocence. substantially less Boy involved We also find that the district court’s Lovers, than he had in prior testimony. discounting of Doe’s guilt admission of argue Because Doe does not that he lied at plea his allocution clearly erroneous. trial, Bagarozy or at the proffer The court credited Doe’s assertion that he session, any respect other than his ad- pled guilty only because he was afraid that Edwin, mission that he had sex with the DA’s bring Office would more serious inconsistencies in testimony only his can charges, and becausе he did not want to reasonably indicate that attempt- Doe was endanger cooperation against Bagarozy his ing present himself in a light favorable and Federowicz. It therefore concluded hearing. at the discrepan- Given the stark that Doe say decided “to whatever he cies in the testimony, Doe’s blunt admis- say” needed to plead guilty order to sion that he had sex with Edwin before probation. secure sentence of While we Edwin had even been identified have no reason to doubt sincerity authorities, state obviously extensive Doe’s explanations of the forces that led of, in, knowledge and participation Boy plead him to guilty, explanations these are activities, Lovers’ and his earlier testimony not, in light viewed of the record as a as to Edwin’s involvement in those activi- whole, support sufficient to the district ties, hearing testimony Doe’s simply finding court’s falsely alloeuted to reliable. the crime. Defendants be reluctant In ruling was cred- plead guilty in absence clear ible in entirety, its the district court strategic clear- reasons for so doing only ly First, erred. its failure to weigh innocent, they are but for hearing testimony against the 1993 admis- number of nothing reasons that have to do sions, in the face of recognition innocence, the court’s with factual such as their belief
169 trial, accepting committed clear error a or their court well at they would fare that events, guilt. that “admitting” Edwin’s version of and Ed- to be seen as reluctance that the 1993 testimony not reliable evidence of light of our determination win’s is In rehable, but are admissions proffer session actual innocence. Doe’s that he never had testimony hearing Doe’s First, testimony that Doe never Edwin’s not, we find that Edwin is sex with him, molested while consistent with Doe’s under oath that he lied has not established testimony, veracity is of dubious hearing plea Doe’s admission guilty plea. at his much reasons as Doe’s. Doe for the same with Edwin had sexual contact that he plea under oath at his himself admitted considered as evidence therefore be Edwin, had sex allocution that he had with States, v. United guilt. See Rosario a credible basis on provided and has not Cir.1998) (consider- (2d 729, 734 164 F.3d Edwin’s to discount that admission. which statements inculpatory ing petitioners’ weighed must therefore be determining during plea allocution made admission and the other evi- against Doe’s juror would find reasonable whether no find that Edwin’s dence the record. We guilty). petitioners that evidence in a testimony conflicts with that leads to the conclusion manner 2. Edwin attempting bis involve- he was to minimize that he never had testified Edwin Boy hearing. Lovers at the ment with the Doe, that when sexual contact Doe had ever by whether asked Cronin hearing, Edwin testified that he At the him, toward he de advances made sexual only slightly, through his Bagarozy knew insisted that any improprieties nied boys’ in a basketball team participation figure” “friend and a simply a Doe was know that he did not by Bagarozy, run bht crediting this testi influence. positive Boy Lover. Edwin Bаgarozy district court stated mony, the O’Rourke, but he knew of also stated that “forthright direct.” [and] Edwin found him, and denied never had contact demean- of Edwin’s this assessment While time with sin- spending making habit uniquely within on the witness stand men, or in the com- either alone gle older court, the de of the district province time, At the same boys. of other pany finding cannot be determina meanor alone knew that that he Edwin testified testimony. Edwin’s reliability tive boy,” indicating Angel R. “was O’Rourke’s above, actual innocence As discussed knowledge of had more extensive that he require and Anderson determination otherwise admit- the’Boy Lovers than he of the tes the substance court to consider testimony, The thrust of Edwin’s ted. whole, as a of the record timony light therefore, only tangentially is that he demeanor, de when well as the witness’s Lovers, and Boy circle of connected to the the witness’s ac to credit ciding whether nature of their unaware of the that he was Schlup, 513 U.S. count. See activities, preference the men’s or even of Anderson, 851; U.S. S.Ct. boys. young than (noting that “factors other S.Ct. are belied both These assertions into the deci go inflection demeanor and that O’Rourke witness”). statements Doe’s 1993 or not to believe sion whether with Ed- sexually involved Bagarozy were Here, considera ignored the district testimo- win, by Investigator Storino’s directly in the record ble evidence evidentiary hear- testified at ny. Doe testi or undermines Edwin’s contradicts O’Rourke, he, and Edwin reason, ing that the we find mony. For this *22 Park in 1994 gone Playland testimony to discuss win’s as a whole. Storino’s tes- notes, timony investigation, suggest the DA’s Office’s thus con- which a particu- lar tradicting assertion that he never connection between Doe and Edwin Edwin’s and corroborate provided proffer met O’Rourke. Storino also evi- session statement that Edwin dence of Edwin’s close association with was close to O’Rourke, demonstrate that Boy by testifying Doe Edwin was and other Lovers attempting to distance that, himself from the January before Edwin was Boy hearing, Lovers and that Office, by DA’s in- interviewed presented version of events that he agent Kyle formed federal O’Rourke entirely court, accurate. The district had met with Edwin and him on coached however, ignored this evidence in Moreover, assess- lying to the authorities. Edwin ing testimony. Edwin’s Given the indica- attempted contact order to as- tions that Edwin lied about the closeness say nothing sure that he would incrim- others, of his relationship with Doe and inating. testimony Storino’s is corroborat- impossible testimony credit Edwin’s by ed the notes that he took during his evidence, over the other including Doe’s Agent Kyle, conversation with which state admission, own that Doe assaulted Edwin. reaching “Edwin out thru Bill [is] and others to 0’R[ourke] see Edwin [Doe]. Second, Edwin’s assertion that he de- spoke and Edward [R.] 0’R[ourke] being by nied victimized Doe when inter- say and were coached on what to to thwart by viewed the DA’s Office is contradicted investigation. Edwin is supposedly by testimony by other evidence. Most going say anything Cronin, obviously, ADA incrimfinat- who conducted the ing].... Edwin and Edward [R. are] interviews, testified that Edwin detailed spending time with O’Rfourke].” This evi- Doe, two instances of sexual advances dence contradicts Edwin’s assertions that one of which resulted in actual sexual con- O’Rourke, he had never met that he did tact and formed the sodomy basis of the not realize that Doe and his adult friends charge. The district court discounted her pedophiles, were and also strongly sug- testimony, finding that her “rec- gests that Edwin himself was involved in ollection primarily [was] based on her activities, sexual and therefore had “in- notes,” and that Cronin “conceded that she Moreover, criminating” information. Ed- was not sure if the notes were” taken win’s stated desire to in partic- inform Doe during the interviews. This is a mischar- ular that he divulge anything would not acterization testimony. of Cronin’s the authorities raises the inference that that, Cronin testified pages seven Doe would have reason to fear Edwin’s notes, handwritten pages four were dated communicating investigators.20 18, 1994, March during were taken
Thus, the bulk of the evidence in the
the second interview with Edwin. These
record casts
veracity
doubt on the
of Ed-
are
pages
purport
to record Ed-
noting
It is worth
that both Storino’s testi-
against
O’Rourke’s and Doe’s statements were
mony on this
interest,
issue and his notes rest on the
penal
Kyle
their
and Storino are law
hearsay
Kyle.
statements of O'Rourke and
We
professionals
enforcement
perform-
who were
need not consider whether
this evidence
duties,
ing
contemporane-
their
and Storino
trial, however,
would be admissible at a
be-
ously recorded the substance of his conversa-
Schlup
cause
allows us to consider all evi-
Moreover,
Kyle.
party
tion with
neither
has
Schlup,
dence in the record. See
513 U.S. at
proffered any
suggest
evidence to
that either
327,
tion that
proffered
the
new evidence must
be
To allow
reliable.
this mode of analysis
Application
B.
Schlup
of
to Doe’s
Schlup
eviscerate the
standard.
Proffered New Evidence
In light of our conclusion that it
is
We find that
presented
Doe
no new necessary to apply the Schlup “no reason-
reliable evidence of his factual innocence at
juror”
able
standard because Doe has not
evidentiary
March 2003
hearing or
presented any
evidence,
new reliable
we
submissions,
his habeas
required by
as is
need not review the district
appli-
court’s
Schlup.
Schlup,
See
U.S.
115 cation of that standard.
The district
S.Ct.
Because
presented
Doe has not
court’s
of
misstatement
stan-
Schlup
evidence,
new reliable
it is unneces-
dard
its June 2003 order
com-
merits
sary to determine whether no reasonable ment, however, in order
clarify
our
juror
in light
would convict
newly
Doe’s
standing instruction to district courts faced
proffered evidence.23
innocence claims in
.actual
the context
contrary,
clearly
erroneous. See 23.
noting,
It is worth
evi-
Here,
course,
id.
state
has
guilt
dence of
overwhelming.
presented credible
employ-
evidence that the
twice,
guilt
admitted
proffer
at the
session
ees
properly.
of DA's Office acted
allocution,
plea
and his
and Edwin described
to Cronin.
assault
reasons,
22. For much the same
Edwin’s less
affidavit,
detailed
submitted as part of Doe’s
petition,
habeas
does not constitute reliable
evidence Doe's innocence.
AEDPA tolling
in the context
innocence
F.3d
Whitley, 317
tolling. See
AEDPA
225-26, in which
F.3d at
Whitley,
court stated
The district
at 225-26.
deter-
should
held that district courts
we
...
“innocence
only that
requires
Schlup
presents
a
petitioner
mine whether
likely than
more
to be
demonstrated
be
(cid:127)
innocence”
claim of actual
before
“credible
reducing
substantially:
thereby
unlikely,”
issue of whether the
legal
ruling on
required to
Doe was
showing that
tolled.
could be
period
limitations
actual inno-
his
in order
establish
make
our reference to
court understood
district
of the standard
This statement
cence.
innocence”
claim of actual
a “credible
act
court to
the district
essentially allowed
than that
standard”
a “lesser
represent
in the first instance
jury, determining
as a
that, in
noted
by Schlup, and
its
delineated
by
pre-
demonstrated
whether
higher
view,
both
Doe had satisfied
that he
of the evidence
ponderance
lesser
and the
credible
Schlup standard
Thus,
concluded
innocent.
to a credi-
The reference
claim standard.
innocence
has established
“petitioner
itself,
Schlup
directly
claim arises
ble
credible evi-
preponderance
*25
credi-
be
“[t]o
which states that
dence.”
requires
claim
ble,
innocence]
actual
[an
above, however,
Schlup
the
discussed
As
allegations of con-
support his
petitioner to
find,
court
the district
requires
standard
reliable evi-
with new
error
stitutional
evidence, that
preponderance
aby
at
513 U.S.
S.Ct.
Schlup,
dence.”
peti-
find
juror would
the
reasonable
no
case,
Thus,
this
our instruction
showing
preponderance
guilty. The
tioner
instruction in
extension of that
and our
proof,
of
as
high burden
in itself a
is not
to relax the
purport
Whitley, do
noted,
the
that
but
fact
the district
that the bur-
Schlup
suggest
standard
reason-
that no
must establish
showing
less-
innocence is
showing of actual
den of
substantially in-
convict
juror would
able
context,
tolling
but
equitable
in the
ened
court,
if the
Even
that burden.
creases
any showing
the fact that
simply refer
factfinder,
would vote
reasonable
one
must be based
new
innocence
of actual
con-
step back and
court must
acquit, the
evidence.
reliable
evidentiary
petitioner’s
whether the
sider
of
case is not one
in this
The issue
finding
a
of
likely places
showing most
of reli-
but
credibility of witnesses
relative
outside of
a
doubt
beyond reasonable
guilt
all
light of
evidence in
ability
newof
any
conclusions that
range
potential
of
The actual innocence standard
evidence.
Schlup,
juror
reach. See
reasonable
Failing to account for
demanding one.
ais
(O’Connor,
at
a proper case will where petitioner is able to make a credible argues Doe next the limita showing of actual innocence based on new period tions should be tolled between Feb evidence, thereby demonstrating eq- ruary 1999 February 2000 because uitably tolling period the limitations could Wall, Patrick attorney represent who prevent justice. a miscarriage of himed during period, that time incompe petition clearly present does not such a tently failed to post-convic file Doe’s state case. tion motion.25 The district court dismissed moreover,
It is
noting,
worth
argument
order,
its February 2002
*26
Supreme
recently
Court has
finding
counseled
alleged
Wall’s
incompetence
lower
extending
courts to avoid
the actual
did not rise to the level of extraordinary
exception
innocence
to new
if
contexts
necessary
circumstances
equita
invoke
grounds
there are “other
for
Senkowski,
cause to ex-
tolling,
ble
see Smaldone v.
273
procedural
(2d
cuse the
133,
Cir.2001).
default.” Dretke v. F.3d
138
The court
386,-,
Haley,
1847,
541
124
U.S.
S.Ct.
also found that Doe did not exercise rea
—
-
1852,
(2004).
L.Ed.2d
diligence
sonable
during
period,
this
be
“[bjeeause
Court’s statement that
the vari-
cause he should have realized that Wall
exceptions
ous
procedural
to the
default
incapable
of filing
petition
at least
(cid:127)
rules[,j
doctrine are judge-made
... courts
ten months
finally
before he
fired
restraint,
their stewards must exercise
hired new counsel. We declined to review
adding to or expanding
only
them
I,
when
these conclusions in Doe
and Doe now
necessary,”
1853,
id. at
counsels restraint
argues that Baldayaque
States,
v. United
in the judge-created
(2d
equitable
area of
Cir.2003),
toll-
179 trial and se, presented not show that was pro or § motion filed the 440 not likely than not that no “that it is more arguments the that of suggested juror [him] motion could would have found § 440 reasonable in his eventual raised d on relying doubt.” beyon raised reasonable guilty have been without Delo, 298, 324, 327, affirm therefore 115 case law. We Schlup New York v. 513 U.S. equitable (1995) of toll- court’s denial 851, (quota the district 130 808 S.Ct. L.Ed.2d theory. omitted). this ing on the defen tion marks Where guilty, the standard never pleaded
dant CONCLUSION Bousley See v. remains the same. theless States, 614, 623, 118 523 S.Ct. United U.S. reasons, judgment the foregoing the For (1998). 1604, 140L.Ed.2d 828 AjpfiRmed the court is district in this opinion. stated grounds Here, court found that Ed- the district credibly that the Doe testified win and POOLER, dissenting. never which was convicted crime for I believe dissent respectfully I It found that Doe “exer- occurred. then court’s find district affirm we should the pursuing diligence reasonable cise[d] claim of a credible presented ing that claim once he became his actual innocence panel should This actual innocence. Menefee, all.” Doe v. pursue able credibility judge’s the trial guess second (S.D.N.Y. 10782, slip op. at No. 01 Civ. extrinsic or no findings compelling where 2003). 23, reviewing “In factual June conclu compels other evidence .different strong findings,.we particularly owe defer- otherwise, majority holding In sion. its premises where the district ence fac district court’s reasoned supplants credibility determinations.” findings on speculations findings with its own tual Monzon, 110, 359 F.3d v. United States major importantly, conjectures. More Cir.2004) Castrol, (2d Inc. v. (citing and dis most unusual ity over the glosses (2d 57, 64 Quaker Corp., 977 F.2d State here,, the of case: concerting aspect this (internal Cir.1992)) marks omit- quotation assault violent sexual victim of a alleged ted); City Anderson v. Bessem- see also testified, that come forward has 105 S.Ct. City, er 470 U.S. my It is view occurred. crime never (1985). “clearly erro- 84 L.Ed.2d witness, juror, awith no reasonable faced standard, factual deter- applied neous” court, the district highly credible found court, is by the district minations made that he was nev testifies emphatically who 52(a), which from Fed.R.Civ.P. derived victimized, beyond a reason could find er “[fjindings part, provides, pertinent guilty of that the defendant was able doubt fact, on oral docu- whether based one of This is therefore same crime. evidence, set aside shall not be mentary viola a constitutional cases “where few erroneous, regard and due clearly in the conviction unless resulted probably tion has opportunity Mur actually given be -the innocentf.]” one who is shall 478, 496, 106 Carrier, credibility to'judge S.Ct. 477 U.S. trial court ray v. added). (1986). In (emphasis Id: witnesses.”
Anderson, held that Court- Supreme REVIEW I. OF STANDARD overstepped its bounds circuit court court’s factual finding district inno- actual order to demonstrate In so clearly erroneous. conclusions were petition- proceeding, in a collateral cence the Court reiterated holding, rehable evidence” “new present er must *31 180 exceedingly an high incorrectly
standard sets thresh- probative assessed old: evidence[,]” of pieces value various of Op. 165,
If the district
acсount of
court’s
the evi- at
by
circumstances illustrated
plausible
light
dence is
of the record
these cases do not involve situations where
entirety,
viewed in its
the court
ap-
the evidence at issue was witness testimo
peals may not
it
though
reverse
even
ny.
Instead,
majority
cites to United
sitting
convinced that had it been
as the
Rizzo,
States v.
where this
primarily
Court
fact,
weighed
trier of
documentary
evaluated
evidence before
evidence differently. Where there are
court,
the district
and the district court’s
permissible
evidence,
two
of the
views
conclusions with respect to this evidence.
the fact finder’s choice between them
(2d
94,
Cir.2003) (conclud
349 F.3d
100-02
clearly
cannot be
erroneous.
ing that the
clearly
district court
erred in
Anderson,
573-74,
470
U.S.
105 S.Ct.
finding “that the
by
documents used
[the
(citations omitted).
1504
Recognizing the
defendant] were
obtained
through
superior position that trial
occupy
courts
in theft[.]”). Rizzo
did
comment on the
making
determinations,
factual
the Court
reliability
credibility
any
testifying
noted that trial
particularly
courts are
able
Similarly,
witness.
in Jiminez v. Mary
credibility
assess the
of testifying wit- Washington College, the Fourth Circuit
nesses:
held that the district court drew unreason
findings
When
are based on determina-
able conclusions
respect
to documen
regarding
tions
credibility
of wit-
evidence,
tary
specifically student evalua
52(a)
nesses, Rule
greater
even
demands
(4th
369,
Cir.1995).
tions. 57 F.3d
380
findings;
the trial court’s
deference
Finally,
Duncan,
in Ortega v.
this Court
only
judge
the trial
can be aware of
found that the lower court
erred
draw
the variations in
demeanor
tone of
ing unreasonable conclusions based on tes
heavily
voice
bear so
on the listen-
timony which the lower court had found to
understanding
er’s
of and belief in what
102,
(2d
be credible. 333 F.3d
Cir.
is said.
2003). In so holding, we did not disturb
Id.
Although that, majority facts of
181 speci however, further the Court recently, DETERMINING FOR II. STANDARD be that should type the evidence fied INNOCENCE ACTUAL innocence. assessing actual in considered Determining Actual Standard A. for on how court district to the In directive its Innocence claim that actual innocence to assess an the dis- majоrity that the with agree I remand, Supreme Court the arise on the standard misapprehended court trict is “the Government that Bousley stated Op. at innocence. actual determining for record rebut existing to the limited not incorrectly held court The district 161. peti showing that innocence] any [actual the totality of the “satisfied it was that the Govern Rather make. might tioner estab- has that [Doe] [it] before record any present permitted be should ment by a preponderance innocence lished guilt of petitioner’s evidence admissible also met has He evidence. credible the presented not if evidence that even in the man- mentioned standard lesser the 523 colloquy.” plea during petitioner’s claim a credible presented date, having (emphasis add 624, 1604 118 S.Ct. at U.S. pre- evidence On the innocence. of actual States, v. United ed); Fountain see also have to juror would sented, reasonable Cir.2004) (2d (reciting 250, 255 F.3d 357 [Doe’s] as to doubt a reasonable find stan evidence” “admissible Bousley 20. The Doe, at Civ. No. 01 guilt.” in a innocence determining actual dard on the this conclusion based court district pro to launder conspiracy involving case “[ijnnocence that assumption erroneous fraud). Thus, only evi wire ceeds more to be demonstrated only be need consider should this Court dence that at 5. Id. unlikely.” likely than is evidence actual innocence determining not whether inquiry, Our trial, at admissible have been would prepon aby his innocence Doe established evidence inadmissible not patently new evi rather, whether derance, but preju testimony highly or hearsay as such conjunction with dence, considered when value. probative little with evidence dicial it is record, establishes entire States, 164 F.3d v. Rosario United See no reasonable not likely than “more Cir.1998) de (2d (finding 729, 733-34 guilty petitioner have found juror would actual innocence to establish failed fendant Schlup, doubt.” 513 a reasonable beyond in the evidence Bousley because under S.Ct. 327, 115 U.S. by hearsay record, minus informant, de established Be Considered Can That Evidence confidential B. dismisses majority Innocence Determining Actual guilt). fendant’s may con court that a directive Bousley’s assessing that, clear makes Schlup as “mere evidence only admissible sider must innocence, the district actual it is true While dictum,” atOp. the evi- of all “light its decision reach reach have to strictly did the Court been alleged to have dence, including that inno actual issue because evidentiary (but regard due illegally admitted it, we before directly was not claim cence tenably evidence it and unreliability of directiye explicit an such ignore should wrongly excluded have been claimed Moreover, a con court. highest only after available to have become inconsistency an cause reading would trary (quoting trial.)” S.Ct. 851 Id. standard, which innocence the actual Irrelevant? Innocence Friendly, “Is Henry ju the reasonable benchmark as its uses Judgments,” оn Criminal Attack Collateral plainly juror hypothetical This ror. More (1970)). L.Rev. U. Chi. not have access to inadmissible stead, evidence. the majority chooses to credit the Accordingly, intimated Bousley, in testimony by other witnesses over the tes *33 determining whether the juror reasonable by timony choice, victim. This howev petitioner found the er, to be actu- is not for us to make. As by held ally innocent, this Court rely on Supreme Anderson, Court in “when a trial evidence that would have plainly been un- judge’s finding is based on his decision to available to hypothetical juror. The credit the testimony of one of two or more majority’s implicit suggestion that witnesses, there is each of whom has told a coher n process two-step that neatly separates ent facially plausible story is not the evidentiary analysis from the reason- contradicted by evidence, extrinsic juror analysis able supported is not by if finding, not internally inconsistent, can case law. virtually never be clear error.” 470 U.S.
at 575, 105
S.Ct.
III. APPLICATION OF LAW TO
Here, there was no forensic
evidence
FACTS
trustworthy eyewitness accounts establish-
ing that Doe had in fact assaulted Edwin.
I respectfully find that
majority
im-
Indeed, there was no admissible evidence
properly substituted its own
view the
that corroborated the
by
testimony
former
evidence over that of the district court’s
pi'osecutors in the Westchester District
when it concluded that “the district court’s
(“D.A.’s
Attorneys Office
Office”), aside
finding that the hearing testimony of Doe
from handwritten notes
by
created
and Edwin constitutes reliable evidence of
prosecutor herself. Therefore, pursuant
Doe’s actual innocence
clearly
was
errone-
Anderson,
the district court’s ruling
ous.” Op.
Instead,
at 165.
I find that the
should not be disturbed unless there is
district court’s assessment of Doe’s and
extraordinary evidence that directly un-
Edwin’s testimony
reasonable,
and its
dermines the district court’s assessment of
“account of the evidence
plausible
the victim’s testimony. No such evidence
light of the record
viewed
its entirety.”
exists in this case.
Anderson,
U.S.
At the hearing before the court, district Edwin testified that he was years old, (a) No Physical Evidence Supported for Wal-Mart, worked son, had one The Allegation Edwin Had .That in upstate resided (Arkville). New York Been Assaulted Regarding the issue, events at Edwin stat- The majority disregards the district ed that he engaged never in sexual rela- court’s role as the finder-of-facts when tions Doe, with otherwise, forcible or sets aside the lower court’s assessment of that he was never alone with Doe when he Edwin’s testimony. In discounting his tes went to see him. He also stated that Doe timony, the majority relies1 on solid never refused to take him or put home his extrinsic evidence, instead, but on testimo hands on him. He testified unequivocally ny by other witnesses. Such that, although “I was young at the time was oftentimes hearsay, conjectural, or di ... I right knew from wrong. And I rectly by refuted other testimony. Thus, wasn’t going to let a man or any other man n the alleged victim’s testimony was not try con to touch me.” Tr. at 16. He also tradicted evidence; extrinsic in testified that he never told investigators he the insinuation fortable been had that he Office D.A.’s To this attack. of a homosexual victim told that he He said by Doe. assaulted homosexuality does responded Edwin apart- about details investigators inwas him, his brother and that not bother had been that was because ment, but suggested likewise Respondents gay. fact occasions other the apartment inside history. criminal lengthy that Edwin cousin Edward his friend consist- record However, criminal Edwin’s Abamelay. dispute, domestic a conviction ed of examination, testified Edwin cross *34 On fare when the paying for not arrest an know that previously did not that he pos- for an arrest subway, and the riding in-He men. young for preference had a ac- Respondents gun. sessing .paint-ball a posi- a been Doe had that explained stead loyalty to testifying out cused Edwin to him, him and wanted for model tive role a been Doe had past Doe, in the He also of trouble.1 and out stay in school responded Edwin To this him. friend to that on cross-examination responded “he Doe, because loyal feel to he did that on not even any presents, gave never Tr. at wrong to me.” anything did never birthday. his had he that testified Finally, Edwin 30. to be found Edwin The district was he nor anything promised not been an- responsive and forthright, direct his for exchange any benefit getting moti- No posed. questions swering simply that Instead, stated he testimony. that record appears vation told, to and be the truth needs “I feel that was that he an justify inference all.” That’s to truth. going I’m tell strong stand with left He lying. Tr. at 52-53. that of this Court the part on impression witness, had that he he was truthful of Edwin’s tes- rejection majority’s his some of and [Doe] with socialized infer- factual an adverse timony rests on engaged friends, personally had not but drawn permissibly ence, contrary to that any activity or [Doe] with sexual Edwin’s It discredits judge. trial by the man. other that speculation on its testimony based relationship Doe, misrepresented No. 01 Civ. Edwin that and this group “Boy Lovers” with the Edwin’s This assessment one. The actually a close relationship was dispute It is without error. clear was solely on this conclusion anchors majority motive discernable no Edwin had “yeah” responded, Edwin fact notwithstanding course, is, of This lie. Angel knew he whether asked Ed- when disparage best efforts respondents’s This answer boy?” “Bill O’Rourke’s was Respondents and motives. character win’s learned first Edwin when indicate does not testifying be- Edwin was suggested he was whether or information uncom- was and homophobic, he cause them, just I met No. It’s that. like met since I ever you know. And a lot Question: family didn't ... Your [Doe], a ... friend like been he’s money? always ... No, he’s figure, because sir. Edwin: O’Rourke, [Doe, Question: things Bill I’ve What did like about cared you? Federowicz] do Rich done, he didn't you Like know. any- they didn’t do They didn’t Edwin: He do— trouble. get no into me want out went I thing. It wasn’t like stay in school. me wanted supposed to and I—I’m them with at 29. Tr. anything orme them touch let like OO (cid:127)
aware of the implications of his response.
Finally, a potential to confuse
boys
Additionally, majority
relies on the
great.
fact
involved was
There were numerous
investigator
similarly
Pat
aged boys
Storino testified that
“Boy
involved
group,
received a
Lover”
telephone
and
call
one of
from FBI
the main boys’
R.,
name
Agent Kyle
Edward
on
who was
February
about
also
10th or
known
R.,
as Eddie
12th,
who lived
indicating
across the
that “Edwin had been
street from Edwin. Coincidentally,
reaching
both
out,
thr[ough] Bill 0’R[ourke]
Edwin’s
Edward’s mother
others,
was named
to see [Doe]. Edwin and Ed-
Gladys, a fact that
took respondents by
spoke
ward [R.]
0’R[ourke]
were
surprise at the hearing.2
coached
what
say
to thwart
investigation.” Op. at 171.
I
This
am
factual
not convinced that the two events
contention, however,
great
cited
potential
majority
are sufficient to ren
to discredit
der
Edwin’s testimony.
It
Edwin’s testimony “internally
seems
inconsis
*35
strange
Anderson,
tent.”
respondents
that
See
575,
did not
470
directly
U.S. at
105
question
S.Ct. 1504. Accordingly,
Edwin or Doe about
it is not
signifi-
appro
this
priate for this Court
cant issue.
guess
second
trial judge’s assessment of Edwin’s testi
Moreover,
the majority admits that mony and to substitute its view of the
“Storino’s testimony on this issue and his
evidence “as a whole” for that of the lower
notes rest
hearsay
on the
statements of
court’s.
(cid:127)
Kyle.”
O’Rourke
Op.
and
at 170 n. 20.
Relying
(c)
on Schlup, the majority
Doe’s Testimony
dismisses
concern,
this
finding
it may
that
properly
Doe testified that he did not
any
consider
Storino’s
in assessing
physical or sexual contact with
He
Edwin.
’
Doe’s claims of actual innocence. The ma-
that,
testified
contrary to Edwin’s testimo-
jority, however,
sight
loses
of the fact that
ny, he was alone with Edwin once at his
the standard for determining actual inno-
apartment and the two were there for less
cence is whether' a
juror
reasonable
would than 10 minutes
they
before
left for an
have found
beyond
a reasonable doubt
arcade.
that,
He testified
there,
while
he
petitioner
was actually innocent.
did not attempt
forcibly
have sex with
Schlup,
327,
nin thought that, it odd after Edwin Without making any adverse credibility attacked, been violently he would con- (as finding [Doe]) requested by I con- Doe, tinue to meet with Cronin responded, clude where [Edwin’s] testimony “I say odd, wouldn’t I considered it but I facts, diffеrs as to material his version is did consider it something I needed to entitled greater weight. talk to him about.” Tr. at 183. Doe, No. 01 Civ. at 11. While the
Third, the time line of the alleged events majority discounts testimony as self- is also suspicious. Cronin testified that Ed- time, serving, the same ignores win met Doe in May [1993], “sometime fact that Cronin’s was likewise then the sexual stuff didn’t actually happen tinged with self-interest. Doe accuses until July or August.” Tr. at 185. Ed- Cronin of committing misconduct in the *39 win’s introduction to Doe in May prosecution was 1993 of his case. He claims that by corroborated Thus, Cronin’s notes. actively she misled attorney his into believ- Edwin had associated with Doe for a short ing that there was a signed victim’s state- amount of time before the alleged assault ment when there was none. He also Moreover, occurred. during July ear- and claims that the D.A.’s Office made assur- ly August of Doe was traveling with ances that if he cooperated with Westches- his group chorus Europe, a fact attested ter and federal law agents, enforcement he to in the Bagarozy/Federowiez trial prosecuted not be by the D.A.’s again and at the 2003 before hearing Office. Cronin therefore had an incentive that suggests further majority The while she made that the choices to defend failing acknowl- erred court district her testi- Because case. this prosecuting testimony was that Cronin’s the fact edge self- as be viewed likewise mony could testimony of by full “corroborated to decide Court for this is not serving, it There Op. at 172-73. ADA Bernhard.” on this more believable testimony is which be- however, discrepancy was, seeming basis. testimony. Bernhard’s tween Cronin’s found that this further at Bernhard, Cronin’s present The district was who Edwin, situa- about many sordid testified one was but interviews “case assault, according Cronin’s by while single with Ms. dealt involving children tions notes, alleg- was testimony and Edwin her service public lengthy her during Cronin di- asked on twice. When edly assaulted Attorney. Her District of the the office re- Bernhard whether rect examination her on primarily is based recollection of the aspect “how the coerced membered con- are not of which notes, at least some responded to be?” he first came conduct majority The Id. records.” temporaneous him and Cronin told that Edwin specu- “pure this observation dismisses “grab- began apartment, to his took Edwin only four admits although it lation,” that Doe] ... legs [and bing [Edwin’s] were dated. of notes pages seven out of of the chair eventually pulled off [Edwin] no “there was It contends 172. Op. at down pulled him a bed and on and threw routinely dealt with testimony that Cronin on Edwin’s put his mouth pánts and his Cronin, Op. at accusations.” similar at- majority Tr. at 198-99. penis.” employed was that she testified by discrepancy stat- explain tempts and for years, for D.A.’s Office at the only about was asked “Bernhard ing that to the assigned she was years, of those apartment, visit to the second Edwin’s de- She Division.” Prosecutions “Special charge sodomy arose.” which the D.A. “Assistant as the position her scribes This characterization n. 14. Op. abuse child handling dоmestic office in that is inaccu- to Bernhard posed the question it is clear Accordingly, assault, cases.” first discussed Bernhard rate. later, child abuse routinely respon- dealt with questions she then few questioning of the discounting to this line majority’s cases, returned dents was describ- that Bernard clear and made of Cronin’s court’s view district Unfortunately, attack.5 ing second improper. likewise basis on this computer and that game, eventually pulled him off Question: you how Okay. Do remember bed him on a and threw chair aspect of conduct coerced pants and pulled his down suggest- Was it to be? came first pe- on Edwin’s put mouth you Cronin stat- by or Ms. ed nis. boy the first time? ed sake, Question: Okay. For clarification’s Edwin. It was Bernhard: basing your you’re it himself, true Question: before— He stated today a com- testimony here word use the force. didn’t He Bernhard: your own recollec- bination one who Edwin was But review of notes your tion telling invited [Doe] us that you understand prepared that *40 apartment to use into him by Cronin? Ms. that, prepared be game, while computer and computer, [Doe] was on the essence, Question: So, what just tell us legs and at his grabbing you Ed- recall you away from trying to turn understand — party neither sought clarify this ambi- exercise reasonable diligence during the guity. period he seeks to toll.
[*] [*] [*] [*] [*] [*] CONCLUSION I conclude that the district court did not err in crediting Edwin’s Doe’s testimo- While there are conflicts between Doe’s ny. Adopting the district court’s credibili- and Edwin’s testimony hand, on one ty findings, I find that. Doe presented has Cronin’s, Storino’s, and Bernard’s testimo- new ipnocence reliable evidence actual ny other, on the I believe the district court likely and that it is more than not “that no did not clearly err finding Doe’s and juror reasonable have found [Doe] Edward’s testimony be more credible. guilty.” Schlup, U.S. 115 S.Ct. It is inappropriate all but the most juror No reasonable would have extraordinary cases for this Court to sec- found guilty beyond a reasonable ond-guess a district court’s credibility find- Edwin, doiibt where alleged victim, ings. Nothing the record convinces me credibly testified no criminal act oc- Cronin’s, Bernhard’s and Storino’s curred, .damning, physical and no evidence testimony was irrefutably more credible. eyewitness testimony or. exists contra- majority’s dissection of the district dict this testimony. court’s departs decision prece- our wrongly dents and supplants the lower IV. TOLLING AEDPA court’s assessment of the evidence with its own inferences, factual never having seen Had I been able to convince the majority heard of the testimony it now presehted this case a credible claim of seeks to discredit. Edwin’s innocence, actual panel would then not so inconsistent with other evidence in up taken the issue of whether AED- the record that this Court is compelled to year PA’s one statute limitations is discredit it. Accordingly, I must dissent. tolled. Because the majority does not agree that this present case does a credi-
ble innocence, claim of actual I decline to
consider that panel one, issue as a
tempting as that opportunity be,
leave day for another the resolution of this
difficult issue. V. ATTORNEY INCOMPETENCE In re: ENGINEERING, COMBUSTION I not dispute do the majority’s affir- INC. mance of the district court’s conclusions with respect to attorney incompetence First State Insurance Company; Hart issue. For the reasons stated the ma- ford Accident Indemnity jority; I likewise find that Doe did not Company, Appellants win to regard have said in to the out, and he told him to cut second time that he went “Stop grabbing my leg.” apartment]? [Doe's put that [Doe] his mouth on his he, fact,
Bernhard: up That to was invited penis pulled [Doe] after [Ed- game, use video to see a pants win’s] down. computer game, actually, and Tr. at 198-99. kept him, grabbing [Doe] notes reviewed Cronin’s interview Doe had maneuvered Edwin onto the testimony, for his because he pulled pants put preparation Edwin’s down and “vividly.” interviews penis. mouth around Edwin’s Edwin remembered him, to de- expected had not Edwin pushed away Doe’s hands and kicked Bernhard forcible, be- sexual contact as and Doe retreated. Doe later accused Ed- scribe the conversations had coming wiretapped into cause the having provoked win of him, impression that because gave Edwin created on to $50 $60.
Notes
notes at 139-40. Id. a defense witness. our ened not conflict with does Our conclusion There, Greiner, argue that the miscon- did not the state F.3d 135 holding v. in Hemstreet occurred, we therefore Cir.2004), duct (2d upheld the district which we inference that the district court’s sparse found misconduct, of a rec- finding, the basis court’s any evidence to absence of in the ord, prosecution had threat- agents of the do not hold that prosecutorial We The district crediting court’s of Doe’s testimony, and Edwin’s proven consequent misconduct never be absent its innocence, finding of actual in the resulted direct evidence of misconduct or that an Schlup’s dilution Schlup directives. alleged victim’s statement that he never dictates that the habeas court faced wrongdoing accused the defendant of purported new petitioner’s evidence of a always an insufficient to raise inference of actual innocence make credibility its own observe a presump misconduct. Courts determinations based on its assessment prosecutors tion that act properly fur record, totality evidence both duties, therance their see United States
notes under this case are not such that a circumstances, certain this departure Court has “re- established line of versed factual findings where the trial cases is warranted.
notes majority The them. with involved that “he was that, testified although Doe Moreover, supposedly though even actually hav- was Bagarozy not aware proffer September at the claimed boys,” R. and other with Edward ing sex Edwin were rumors that there session Boy in the truth, “enmeshed he was O’Rourke, sex with having friends close and was activities Lovers’ Bagaro- Richard also “one Edwin ” un- shared whom he Bagarozy, Kap- RA Laura J. boys,’ ‘main zy’s por- child exchanged partners, derage sex Attorney States lan, United the assistant seduc- methods and discussed nography, Jersey New (“AUSA”) the District is, It Op. at boys.” [35-36]. ing young Bagar- in the prosecutor the lead who was Doe was dispute that without case, acknowledged that ozy/Federowicz observation majority’s
notes rela- his exaggerated Doe plausible in one Edwin tensive, only mentions Doe proffer initial at the Edwin tionship with have also had he claims where sentence the benefits gain in order session just his residence “at with Edwin sex cooperation. the sex months couple [of] the last Doe’s argues that further majority masturba- copulation oral included truth- have been must statements proffer Respondent-Ap- Appendix for tion.” about to lie no motive had ful (“RA”) subse- Significantly, pellee The focus Edwin. having sex with sessions, Doe was proffer quent federal Ed- clearly indicate investigator Kyle no there majority is Although held that proffer second Doe stated was not discussed of what in the record win indication 8], session, Op. at [9 n. proffer see the October session. Kaplan Laura by AUSA submitted affidavits meeting was to ascertain Doe’s knowledge Doe, vival.” No. 01 Civ. at 17. As of the. Boy other Lovers’s activities. Doe’s by noted court, the district case, in this if personal conduct “was at most an ancillary accepted the plea, he would have been n Op. issue.” at 167. The majority con- sentenced to a non-custodial sentence of cludes that Doe must probation. have mentioned hav- hand, On the other if he did ing sex with Edwin because it true. accept was plea, or if plea his was The majority’s speculation rejected regarding allocute, for failure to he could not supposed motive for discussing Edwin testify in the federal Newark case and he dubious. There is no evidence to suggest would have been charged tried in that Doe did not feel the need to implicate Westchester for the more charge serious himself. contrary, To the notes from the sodomy, forcible a Class B violent felo- proffer replete session were ny, self-in- subject which would prison ato criminating information, such as Doe’s of up years. sentence to 25 The likelihood paid statement that he two young boys to that he would be convicted if he failed to pose naked for photographs, that trav- plead great. He allegedly in- Baltimore, eled to Maryland in 1989 and formed Elizabeth Cronin4 that she had 1990to engage in sex young boys, and a written statement from the victim and that he boys took to a certain hotel fre- that the victim intended testify against quented by Boy Indeed, Lovers. is him. Murray Richman, Doe’s attorney equally likely that he mentioned these during events, these testified that Cronin events as an attempt exaggerate his “definitely” represented to him that she experience Lover, a Boy which thereby signed statement from the alleged increased prosecution, usefulness victim. Tr. at 18-19. Cronin denies that rather than volunteered information be- this representation Further, was made. cause of some desire to confess all of his Richman most likely informed Doe that a past deeds. child’s testimony regarding a sexual as-