Perkins v. McQuiggin

• Decision Date: 01 March 2012
• Docket Number: No. 09–1875.,09–1875.
• Citation: 670 F.3d 665
• Parties: Floyd PERKINS, Petitioner–Appellant, v. G. McQUIGGIN, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

670 F.3d 665

Floyd PERKINS, Petitioner–Appellant,

v.G. McQUIGGIN, Respondent–Appellee.

No. 09–1875.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 13, 2011.Decided and Filed: March 1, 2012.

ARGUED: Allison E. Haedt, Jones Day, Columbus, Ohio, for Appellant. Mark G. Sands, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF: Allison E. Haedt, Chad A. Readler, Jones Day, Columbus, Ohio, for Appellant. Mark G. Sands, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee.Before: MOORE and COLE, Circuit Judges; BECKWITH, District Judge. ^*COLE, J., delivered the opinion of the court, in which MOORE, J., and BECKWITH, D.J., joined. BECKWITH, D.J. (pp. 676–77), delivered a separate concurring opinion.

OPINION

COLE, Circuit Judge.

Floyd Perkins, the petitioner-appellant, asks this Court to determine whether a credible claim of actual innocence, without more, warrants equitable tolling of AEDPA's statute of limitations. This Court has previously held that it does, but the Warden asserts that a recent Supreme Court decision places an additional burden upon such prisoners. Specifically, the Warden argues, that even if a prisoner petitioning for a writ of habeas corpus makes a credible claim of actual innocence, the district court may not assess the merits of the claim unless the prisoner also pursued the writ with reasonable diligence. Because we find that such a reading would render the concept of equitable tolling nugatory, we REVERSE the judgment of the district court and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

On March 4, 1993, Perkins attended a house party in Flint, Michigan, with Damarr Jones and Rodney Henderson. The three men left the party together, but what happened next is in dispute. Jones testified that as they walked down a wooded trail towards another house party, Perkins pulled out a knife and began stabbing Henderson. Perkins maintains that after leaving the party, the three men went to a store to buy alcohol and cigarettes, but that Henderson and Jones left before Perkins finished paying. He claims that he later saw Jones standing under a streetlight with bloody clothing. Neither Perkins nor Jones disputes that at some point later in the evening, they arrived at another friend's home to play video games.

A Michigan jury convicted Perkins of fatally stabbing Henderson after hearing Jones testify. After exhausting his appeals, Perkins's conviction became final on May 5, 1997. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Perkins needed to file his petition for a writ of habeas corpus by May 5, 1998. See 28 U.S.C. § 2244(d)(1)(A). He did not.

On June 13, 2008, Perkins filed his petition for a writ of habeas corpus in the district court, raising sufficiency of the evidence, jury instruction, trial procedure, prosecutorial misconduct, and ineffective assistance of counsel claims of error. The magistrate judge recommended the petition be denied as barred by the statute of limitations. Perkins objected, arguing that the petition should be governed by AEDPA's “new evidence” statute of limitations, which extends the statute of limitations to one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

In support of this objection, Perkins introduced three previously unpresented affidavits that alluded to his innocence and to the guilt of Jones, the prosecution's eyewitness. An affidavit from Perkins's sister, Ronda Hudson, stated that the affiant heard that Jones had bragged about stabbing Henderson and taking his clothes to the cleaners after the murder. An affidavit from Demond Louis, the younger brother of one of Perkins's friends, stated that Jones admitted, on the night of the murder, to killing Henderson. Louis also noticed Jones wearing orange shoes, orange pants, and a colorful shirt, and that there was blood on his shoes and pants. Finally, an affidavit from Linda Fleming, a dry-cleaning clerk, stated that a man matching Jones's description came in around the date of the murder wanting to know if blood stains could be removed from clothing that matched the description given in Louis's affidavit.

These affidavits were signed on January 30, 1997, March 16, 1999, and July 16, 2002, respectively. AEDPA's “new evidence” statute of limitations expired on July 16, 2003, one year after the last affidavit was signed. Perkins filed the instant petition in 2008, almost five years after the statute of limitations had run. Perkins, drawing upon this Court's precedent, requested that AEDPA's statute of limitations be equitably tolled because he is actually innocent of murdering Henderson. The district court denied the request because Perkins's new evidence was not of the sort needed to pursue an actual innocence claim. “His alleged newly discovered evidence was substantially available to him at trial” and the evidence pointed to the same theory that Perkins had already unsuccessfully argued at trial: that the prosecution's lead witness was framing him.

The district court went further, and found that even if Perkins had put forth the type of evidence that would satisfy the actual innocence standard, he had not pursued his claims with reasonable diligence. Drawing upon the Supreme Court's decision in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), the district court determined that a petitioner who seeks to equitably toll a statute of limitations must demonstrate that he has been diligent in pursuing his rights. Perkins, however, waited almost six years after the last affidavit was signed to file his petition in the district court. On June 18, 2009, the district court adopted the magistrate judge's report, denied Perkins's petition for relief, and denied Perkins a certificate of appealability to appeal the judgment to this Court.

Perkins filed a motion requesting a certificate of appealability with this Court on September 14, 2009. On February 24, 2010, this Court, finding that “jurists of reason could debate the district court's conclusion that reasonable diligence is a precondition to relying on actual innocence for purposes of equitable tolling,” granted the certificate of appealability request. The certificate of appealability identified this issue alone for review. This appeal followed.

II. ANALYSIS

The district court's dismissal of a petition for a writ of habeas corpus for failing to comply with 28 U.S.C. § 2244's statute of limitations is reviewed de novo. Cook v. Stegall, 295 F.3d 517, 519 (6th Cir.2002). Perkins asserts that the district court improperly assessed his actual innocence claim for purposes of tolling AEDPA's statute of limitations, and that the district court erroneously assumed that a petitioner with a credible claim of actual innocence must additionally prove that he acted with reasonable diligence for such tolling to occur.

A. Perkins's claim of actual innocence

For Perkins to have his habeas petition heard on the merits in federal court, he must first persuade the district court that AEDPA's statute of limitations, which has already run, should be equitably tolled in his favor. To do this, he must show that he is factually innocent of killing Henderson, not just that there was insufficient evidence to convict him. The district court stated that Perkins's delay in filing his petition precluded further review. It also found that Perkins's new evidence was not of the sort needed to pursue a claim of actual innocence, though its analysis on this point was limited to two sentences. We cannot say that the district court's analysis on this issue is a sufficient basis on which to rest our review, such that we need not reach the issue specified in the certificate of appealability.

If a state prisoner's habeas petition is denied in federal district court, “the applicant cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c).” Fed. R.App. P. 22(b). The certificate of appealability may be issued only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If the district court's denial of habeas relief is on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). The certificate of appealability issued to Perkins identified only the issue of whether reasonable diligence is a prerequisite for equitably tolling AEDPA's statute of limitations for review.

Our review of a petitioner's § 2254 motion is limited to those issues specified in the certificate of appealability. Harris v. Haeberlin, 526 F.3d 903, 908 n. 1 (6th Cir.2008); see also Willis v. Jones, 329 Fed.Appx. 7, 12 (6th Cir.2009) (“[A certificate of appealability] only vests jurisdiction to consider issues specified in the certificate.”). Close to half of Perkins's opening brief is dedicated to proving that he is innocent. Perkins asserts that we should consider his actual innocence claim because it is “part and parcel” of his overall tolling claim. Calvert v. Wilson, 288 F.3d 823, 838 n. 4 (6th Cir.2002) (Cole, J., concurring). A closer reading of Calvert belies this argument. In Calvert, we reviewed a claim not expressly granted in the certificate of appealability because the substantive argument, whether the district court's error was harmless, could not be analyzed without assessing whether the respondent waived the argument. Id. (“This [certificate of appealability] argument clearly lacks merit, as the...