Calvin Whitley v. Daniel A. Senkowski, Superintendent, Clinton Correctional Facility

Citations: 317 F.3d 223; 2003 U.S. App. LEXIS 660; 2003 WL 133231Docket: 02-2444

Court: Court of Appeals for the Second Circuit; January 16, 2003; Federal Appellate Court

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Calvin Whitley, representing himself, sought a certificate of appealability and in forma pauperis status regarding the district court's denial of his 28 U.S.C. § 2254 petition as time-barred. The United States Court of Appeals for the Second Circuit granted these motions, vacating the district court's judgment and remanding the case for further consideration on several issues: whether Whitley pursued his actual innocence claim with reasonable diligence, if a claim must be pursued with diligence to invoke an 'actual innocence' exception to the AEDPA statute of limitations, whether he credibly claims actual innocence, and if so, whether the Constitution necessitates an 'actual innocence' exception to the AEDPA time constraints. The court also ordered the appointment of counsel for Whitley under the Criminal Justice Act.

Whitley's background includes a 1983 conviction for Murder in the Second Degree and Assault in the First Degree, primarily based on testimony from Belinda McMillan, who later recanted, alleging police coercion. Despite attempts to vacate his conviction based on this new evidence, including multiple motions under New York Criminal Procedure Law § 440.10 and a writ of error coram nobis citing ineffective counsel, his appeals were ultimately denied, culminating in the New York Court of Appeals rejecting his application to appeal.

On April 25, 2000, Whitley filed a pro se petition for a writ of habeas corpus in the Southern District of New York under 28 U.S.C. § 2254, asserting three key arguments: (1) actual innocence of the crimes, (2) violation of his Sixth Amendment right to counsel when required to proceed pro se during the reargument of his direct appeal, and (3) withholding of exculpatory evidence by the state in violation of Brady v. Maryland. Whitley included a transcript from a 1990 interview where a witness recanted her testimony, claiming state coercion. The district court ordered Whitley to justify why the petition should not be dismissed as time-barred. The State moved to dismiss the petition, citing untimeliness under the Antiterrorism and Effective Death Penalty Act (AEDPA). On May 13, 2002, the district court denied Whitley’s petition without addressing the actual innocence claim.

The court noted that it has not determined whether an actual innocence exception to AEDPA’s statute of limitations is constitutionally required. The district court's dismissal based solely on the statute of limitations was deemed erroneous, as it failed to analyze Whitley's actual innocence claim. The court indicated that before addressing constitutional issues, the factual basis of Whitley’s actual innocence must be evaluated first. Furthermore, it highlighted the need to assess whether Whitley demonstrated reasonable diligence in pursuing this claim. The judgment was vacated, and the case was remanded for further factual determination regarding Whitley’s claim of actual innocence.

The district court is instructed to sequentially evaluate several questions regarding Whitley's actual innocence claim: 1) whether he pursued the claim with reasonable diligence; 2) if not, whether reasonable diligence is required to assert the constitutionality of an 'actual innocence' exception to the AEDPA statute of limitations; 3) if he did pursue it diligently or if diligence is not necessary, whether he presents a credible claim of actual innocence; and 4) if he does present a credible claim, whether the Constitution mandates an 'actual innocence' exception to the AEDPA time limit for federal habeas petitions. Additionally, Whitley's motions for in forma pauperis status and a certificate of appealability are granted, the district court's prior order is vacated, and the case is remanded for further proceedings. The court is also directed to appoint counsel for Whitley under the Criminal Justice Act. The opinion is published to guide district courts handling similar claims.