10-1300-pr
Rivas v. Fischer

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                            August Term, 2011

(Argued: December 08, 2011                                                      Decided: July 9, 2012)

                                           Docket No. 10-1300-pr

HECTOR RIVAS,

                   Petitioner-Appellant,

                   v.

BRIAN FISCHER, Superintendent,
Sing Sing Correctional Facility,

                   Respondent-Appellee.


Before: CABRANES, POOLER, and SACK, Circuit Judges.

         Petitioner-appellant Hector Rivas appeals from a judgment of the United States District

Court for the Northern District of New York (Gary L. Sharpe, Judge), following a remand of the

cause by this Court, dismissing as time-barred his petition for a writ of habeas corpus under 28

U.S.C. § 2254. We agree with the District Court that Rivas’s petition was not timely filed and that he

is not entitled to equitable tolling, but we conclude that Rivas has successfully presented a “gateway”

showing of actual innocence under the standard set by the Supreme Court in Schlup v. Delo, 

 (1995), and House v. Bell, 

 (2006). We further conclude, as a matter of first

impression in this Circuit, that such a showing entitles him to an equitable exception from the

limitations period set forth in § 2244(d). Accordingly, we reverse the judgment of the District Court

and remand with instructions to consider the merits of Rivas’s habeas petition.


                                                    1
                                          RICHARD M. LANGONE, Langone & Associates, PLLC,
                                                Levittown, NY, for Petitioner-Appellant.

                                          PRISCILLA STEWARD, Assistant Attorney General (Barbara D.
                                                 Underwood, Solicitor General, Roseann B.
                                                 MacKechnie, Deputy Solicitor General for Criminal
                                                 Matters, and Lea La Ferlita, Assistant Attorney
                                                 General, on the brief), for Eric T. Schneiderman*,
                                                 Attorney General of the State of New York, NY, for
                                                 Respondent-Appellee.

JOSÉ A. CABRANES, Circuit Judge:

        The issue in this appeal is whether petitioner-appellant Hector Rivas—who is currently

serving an indeterminate life sentence for the second-degree murder of his former girlfriend, Valerie

Hill—should be permitted to present in federal court his claim that constitutional error at his

criminal trial renders his current confinement unlawful. The merits of Rivas’s constitutional claims

are not before us. Rather, we address only whether his petition for a writ of habeas corpus under

28 U.S.C. § 2254 was timely filed, or, if untimely, whether he should nevertheless be permitted to

pursue those claims in federal court under the circumstances here presented.

        When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), it imposed a one-year period of limitation

on petitioners seeking federal collateral review of state convictions pursuant to 28 U.S.C. § 2254. See

28 U.S.C. § 2244(d).1 The Supreme Court has recognized that a “credible” and “compelling” claim

        *
            Named officials have been substituted for their predecessors pursuant to Fed. R. App. P.
43(c)(2).
        1
            Section 2244(d) provides as follows:

                  (1) A 1-year period of limitation shall apply to an application for a writ
                  of habeas corpus by a person in custody pursuant to the judgment of a
                  State court. The limitation period shall run from the latest of—

                      (A) the date on which the judgment became final by the conclusion

                                                      2
of actual innocence may provide a “gateway” through other procedural barriers to habeas relief, see

Schlup v. Delo, 

, 324, 315 (1995) (successive petitions); House v. Bell, 

, 521–22

(2006) (state procedural default), but it remains an open question both in the Supreme Court and in

this Circuit whether such a claim may allow a petitioner to circumvent AEDPA’s limitation period.

In the years since § 2244(d) went into effect, we have heard several appeals from prisoners who have

asserted that their claims of actual innocence should provide an equitable ground for allowing them

to pursue habeas corpus relief notwithstanding their failure to timely file a petition. See, e.g., Doe v.

Menefee, 

 (2d Cir. 2004); Whitley v. Senkowski, 

 (2d Cir. 2003); Lucidore v.

N.Y. State Div. of Parole, 

 (2d Cir. 2000). We have thus far resisted deciding whether

equity demands such an exception, explaining that we would only do so “in a proper case,” Whitley,

317 F.3d at 225, “where a petitioner is able to make a credible showing of actual innocence based on

new evidence,” Doe, 391 F.3d at 174.




                of direct review or the expiration of the time for seeking such review;

                    (B) the date on which the impediment to filing an application
                created by State action in violation of the Constitution or laws of the
                United States is removed, if the applicant was prevented from filing by
                such State action;

                    (C) the date on which the constitutional right asserted was initially
                recognized by the Supreme Court, if the right has been newly
                recognized by the Supreme Court and made retroactively applicable to
                cases on collateral review; or

                     (D) the date on which the factual predicate of the claim or claims
                presented could have been discovered through the exercise of due
                diligence.

                (2) The time during which a properly filed application for State post-
                conviction or other collateral review with respect to the pertinent
                judgment or claim is pending shall not be counted toward any period of
                limitation under this subsection.
                                                   3
        In this case, which returns to us following a remand to the District Court for development

of the record, see Rivas v. Fischer, 294 F. App’x 677, 679 (2d Cir. 2008) (“Rivas II”), Rivas has raised a

credible and compelling claim of actual innocence, as those concepts are understood in the relevant

habeas jurisprudence. His claim is based on new information not presented to the jury that

dramatically undermines the central forensic evidence linking him to the crime of which he was

convicted. In sum and substance, Rivas has shown, through the essentially unchallenged testimony

of a respected forensic pathologist, that the victim was almost certainly killed at a time when he had

an uncontested alibi, and not earlier, as the prosecution had contended at his trial. We are not here

called to determine whether Rivas is in fact innocent. However, on the record before us, we “cannot

have confidence in the outcome of [Rivas’s] trial” unless we can be assured that “the trial was free of

nonharmless constitutional error.” Schlup, 513 U.S. at 315.

        Here presented with a “proper case,” we now conclude, as a matter of first impression in

this Circuit, that a credible and compelling showing of actual innocence under the standard

described by the Supreme Court in Schlup and House warrants an equitable exception to AEDPA’s

limitation period, allowing the petitioner to have his otherwise time-barred claims heard by a federal

court. Because Rivas has made such a showing, we reverse the decision of the United States District

Court for the Northern District of New York (Gary L. Sharpe, Judge) dismissing his petition for

habeas relief and remand for full consideration of his underlying constitutional claims.

                                           BACKGROUND

        The following background is taken from the record of Rivas’s criminal trial, his state

collateral proceeding, and the evidentiary hearing held by the District Court on remand. Although

we refer in the margins to relevant newspaper articles, we do not rely on them in the disposition of

this appeal.


                                                     4
A.      The Murder of Valerie Hill

        At approximately 11:45 a.m. on Monday, March 30, 1987, Randall Hill (“Randall”)

discovered the lifeless body of his twenty-eight-year-old daughter, Valerie Hill (“Hill”), on the living-

room floor of her apartment on Hickok Avenue in Syracuse, New York. Transcript of the Trial of

Hector Rivas (March 17, 1993) (“Trial Tr.”) at 103.

        Randall had last seen his daughter on Friday night, March 27, when the two met for dinner

at a nearby restaurant. He later recalled that Hill seemed upset during their meeting and did not eat

anything. Id. at 96–98. During their conversation, Hill informed her father that she was planning to

spend the weekend visiting a friend in the Albany area and would not return until Sunday evening.

Id. at 99. Hill left the restaurant at approximately 8:15 p.m. on Friday. Id. at 97–98. The friend Hill

planned to visit, Laura Adams, later testified that she called Hill “dozens of times” on Friday night

and throughout the weekend, but never reached her, although she encountered at least one “busy”

signal. Id. at 217–19, 221. Randall also had no success when he attempted to call Hill on Sunday

night and again Monday morning. Id. at 99–100.

        On Monday morning, Randall went to the hospital where Hill was employed as a pediatric

nurse (and where Randall’s wife was then admitted as a patient) and discovered that Hill had not

reported to work. Id. at 101, 103. Concerned, he drove to Hill’s apartment, where he found her car

parked in the driveway. Randall let himself in through the unlocked side door and discovered Hill

lying “face down on the carpet” in her living room. She was wearing a bathrobe, which was pulled

“up around her shoulders,” and was otherwise naked. Id. at 100–03. The belt of the bathrobe was

wrapped around her neck. Id. at 157.

        Randall immediately called the police, as well as his son, David. Id. at 104. Arriving at the

scene, police investigators found no signs of forced entry into Hill’s apartment, which was on the


                                                    5
bottom floor of a two-family house. Id. at 107, 228–29. The apartment was “very neat,” and at first

nothing appeared to be out of order. Id. at 228. A number of cigarettes of the brand Rivas smoked

were found in an ashtray in Hill’s kitchen. Id. at 150–51, 638. Later testing revealed that fingerprints

on the ashtray, as well as on a bottle of wine, belonged to Rivas. Id. at 591–93.2 In addition to Rivas’s

and Hill’s fingerprints, an unidentified set of prints was taken from the telephone. Id. at 588. Missing

from the apartment was an airline ticket that Hill had collected from her travel agent on the

afternoon of Friday, March 27.

        After learning from Randall and David that Hill had recently broken up with Rivas, police

officers went to Rivas’s house in Cazenovia, a town about twenty miles southeast of Syracuse. Id. at

235. Rivas agreed to accompany the officers to the Syracuse police station. Sergeant John D.

Brennan later testified that Rivas appeared nervous,3 but was cooperative and did not inquire as to

why he was being questioned. Id. at 237–28. At the police station, Rivas was taken to an

interrogation room where police proceeded to question him for approximately twelve hours. Despite

the fact that he was interrogated at length regarding his activities the weekend of Hill’s death, Rivas

was never informed of his Miranda rights because, the police officers later insisted, he was not

regarded as a suspect at that time. Trial Tr. at 239. At approximately 5:30 p.m., after over two hours

of questioning, police informed Rivas that Hill had been killed. According to Brennan, Rivas

exhibited no discernible reaction upon hearing this news. Id. at 247.




        Rivas, having dated Hill, had been in her apartment many times before and it was
        2

undisputed at trial that he had been in her apartment as recently as Thursday, March 26, 1987. Id. at
240.
        3
          However, another officer who interviewed Rivas that day, Frank Pieklik, testified at a
pretrial motions hearing that Rivas “appeared, as I recall, quite normal.” Transcript of Feb. 24, 1993,
Hearing (“Pretrial Hearing Tr.”) at 30 (Feb. 24, 1993).

                                                    6
        During the interview, Rivas told the police that he had last seen Hill four days earlier, on the

evening of Thursday, March 26, 1987, when he had gone to her house and talked to her for half an

hour. Id. at 240. He had also driven by Hill’s apartment at 2:00 p.m. the following day, Friday, March

27, and again approximately four hours later, at 6:00 p.m. He claimed he did not linger on either

occasion after discovering that Hill was not home. Id. at 240–41. Rivas said that he had spent most

of Friday evening with friends at various bars in Syracuse and Cazenovia. See Trial Exh. 1. He stated

that he was at Coleman’s Bar (“Coleman’s”) in Syracuse from about 6:00 to 11:00 p.m. He then went

to Albert’s Bar (“Albert’s”) in Cazenovia and stayed there until 2:00 a.m., before returning to

Syracuse to get breakfast at an all-night diner. He finally went home and fell asleep at 4:00 a.m. Rivas

claimed that he awoke at 11:30 a.m. on Saturday and returned to Albert’s to do some plumbing

work. He remained for lunch and then went home to take care of some yard work. He then returned

to Albert’s to watch Syracuse compete in the “Final Four” of the NCAA Men’s Basketball

Tournament. He remained at Albert’s until approximately 8:00 p.m., whereupon he went to a party

at a friend’s house until 4 a.m. on Sunday, March 29, before returning home to bed. As Rivas stated

in the interview, many people saw him and spoke with him on Saturday night. Id..

        While Rivas was being questioned at the station, other police officers put together an

application for a warrant to search his residence. Attached to the application was an affidavit signed

by Officer Timothy Phinney, attesting that there was probable cause to believe that several items

would be found in Rivas’s home, including a key to Hill’s apartment and clothing soiled with blood,

fecal matter, or other contaminants. See Motion to Vacate Sentence Pursuant to Criminal Procedure

Law 440.10 (“Section 440.10 Mot.”) Exhs. 1 & 2. The affidavit also stated that the Onondaga

County Medical Examiner, Dr. Erik Mitchell, had preliminarily estimated the time of Hill’s death to




                                                   7
be “sometime [between] [S]aturday the 28th of March afternoon and [S]unday morning [the] 29th of

March 1987.” Id. Exh. 2.4

        In the basement of Rivas’s house, investigators discovered a damp jacket draped over a

clothesline. Trial Tr. 274–75. Although a search of household trash was not expressly contemplated

by the warrant, investigators also seized and reconstructed a torn-up note, which they found in a

trash bag in Rivas’s kitchen.5 The note was from Hill to another former boyfriend, Bob Lucas,

expressing her thanks for their time together. See Trial Exh. 5.6 Finally, inside a bedroom closet,

investigators observed what they described as a “shrine,” consisting of a large statue of the Virgin

Mary surrounded by two smaller candles and a photograph of Hill. Trial Tr. at 270–74, 316.




        4
          Contemporaneous newspaper articles also reported that Mitchell had estimated the time of
death to have been sometime late Saturday night, March 28, to early Sunday morning, March 29. See,
e.g., Mike McAndrew, “As Wife Lay Dying, Man Found His Daughter Slain,” The Syracuse Post-
Standard, Apr. 1, 1987, at A1 (“Onondaga County Medical Examiner Erik Mitchell has determined
that Hill was strangled late Saturday or early Sunday, Deputy Police Chief Robert Galvin said.”);
John Doherty, “Police Have No Clues into Slaying of Nurse,” The Syracuse Post-Standard, Apr. 1,
1987, at B3 (“An autopsy has determined that Valerie J. Hill . . . was strangled to death with the
cloth belt of her bathrobe, police said. The report also indicated that she died sometime Saturday or
early morning, police said.”).

        We take judicial notice of “the fact that press coverage contained certain information, without
regard to the truth of [its] contents.” Staehr v. Hartford Fin. Servs. Grp., 

, 425 (2d Cir.
2008).

       Rivas later argued that the note had been recovered from Hill’s apartment and not his. See
        5

Mem. Supp. § 440.10 Mot. at 34.
        6
           The note was admitted at trial over Rivas’s objection. On direct appeal, the Appellate
Division of the New York Supreme Court held that the note should have been suppressed because
it was not within the scope of the warrant and did not fall under the “plain view” exception, but that
its improper admission at trial constituted harmless error. See People v. Rivas, 

, 641
(4th Dep’t 1995). Because in reviewing a claim of actual innocence we consider “all the evidence
. . . without regard to whether it would necessarily be admitted under rules of admissibility that
would govern at trial,” House, 547 U.S. at 538 (internal quotation marks omitted), we need not ignore
the contents of the note.
                                                    8
Although photographs were taken of the trash bag that contained the note, as well as other items in

Rivas’s house, no photograph was taken of the “shrine.” See id.

        Despite a thorough investigation, neither Rivas nor anyone else was charged with, or even

publicly identified as a suspect in, Hill’s murder, which remained a “cold case” for five years.

B.      The Indictment of Hector Rivas

        In January 1992, William J. Fitzpatrick was sworn in as District Attorney of Onondaga

County, having previously served in that office as an Assistant District Attorney. According to his

biography on the Onondaga County District Attorney’s website, when he was Chief Assistant

District Attorney, “Fitzpatrick specialized in re-opening cases that had previously been considered

inactive and, with the cooperation of various police agencies in Onondaga County and the state of

New York, he brought numerous killers to justice in cases that were thought to be un-winnable.” See

“Meet the DA,” Office of the Onondaga District Attorney,

www.ongovda.net/section/meet_the_da/ (last visited May 30, 2012).

        On November 22, 1992, nearly six years after the murder of Valerie Hill, a grand jury

indicted Rivas on charges of murder in the second degree and aggravated sexual abuse. It is not clear

what, if any, new evidence might have come to light that would lead authorities to pursue, and the

grand jury to indict, Rivas nearly six years after the murder. In its Bill of Particulars, responding to a

defense request for the date when Rivas was first identified as a possible perpetrator of the crime,

the prosecution stated, simply: “It is very difficult to respond to this request. Defendant was indicted

in November 1992.” See Rivas v. Fischer, No. 01-cv-1891, (N.D.N.Y. Sept. 18, 2009), ECF No. 55-2

at 56 (Answering Affidavit).

        Rivas contends that, sometime after becoming District Attorney, Fitzpatrick approached

Mitchell, the medical examiner, and requested that he review Hill’s autopsy report with an eye


                                                    9
toward expanding the time of death to include Friday, March 27, 1987, when Rivas’s alibi was not as

strong. According to Rivas, at the time this alleged request was made, Mitchell “was under criminal

investigation by DA Fitzpatrick’s office, as well as by the Department of Health and the Department

of Environmental Conservation” for varieties of misconduct, including improper disposal of waste

and stealing and mishandling of body parts. Appellant’s Br. at 8.

        The State concedes that Mitchell was accused of various forms of misconduct as early as

1989, see Appellee’s Br. at 24, and does not dispute that he was under investigation by the State

Department of Health at the time he testified against Rivas. It is also undisputed that Mitchell

resigned his office in November 1993, in part to avoid prosecution by the District Attorney’s Office.

See Remand Hearing Tr. at 205.7 It is not clear from the record, however, at what point the District

Attorney’s Office opened its criminal investigation into Mitchell’s conduct.8 Though Rivas’s state

post-conviction attorneys submitted requests under New York’s Freedom of Information Law




        7
         Mitchell’s decision to resign was widely reported in the local newspapers. See, e.g., John
O’Brien & Todd Lightly, “DA: Mitchell ‘Went Too Far’: Medical Examiner, Accused of
Mishandling Body Parts, Quits Under Pressure,” The Syracuse Post-Standard, Nov. 20, 1993, at A1
(“Thursday, Fitzpatrick told Mitchell’s lawyer that if Mitchell resigned, the criminal investigation
would end.”). In the separate investigation by the State Department of Health, Mitchell was later
cleared of wrongdoing. See Jim O’Hara, “Ex-Medical Examiner Cleared of Wrongdoing: Mitchell
was Accused of Improperly Harvesting Body Parts,” Syracuse Post-Standard, Nov. 16, 1995, at B1.
        8
          The investigation was triggered when two subordinates publicly accused Mitchell of
misconduct. These self-styled “whistleblowers” submitted statements that were included in the
record of Rivas’s initial appeal to this Court. One subordinate claimed to have witnessed Mitchell
“slant the interpretation of evidence and/or exclude evidence to serve his predetermined
objectives,” and averred that “Dr. Mitchell’s opinions and interpretations of evidence cannot be
trusted as impartial or accurate.” Aff. of William R. Sawyer at 5–7 (quoted in Joint App’x at 337 n.7).
Another—who was himself fired at the same time Mitchell resigned, and later had his medical
license revoked for persistent drug and alcohol abuse—claimed that Mitchell had instructed him to
fashion his autopsy reports in a way that would allow for manipulation of the case findings and had
remarked that “the medical examiners worked for Onondaga County and were there to serve the
needs of the District Attorney’s Office.” Letter of David A. Rigle at 16, (quoted in Joint App’x at
337 n.7).
                                                   10
requesting information regarding the investigation, the County provided only one page (a press

release) in response, stating that other materials were non-final agency records and attorney work

product. See Remand Hearing Tr. at 208. Rivas’s attorneys also persuaded a state Supreme Court

justice to conduct an in camera review of the County’s investigation of Mitchell in 1998, but the judge

determined that the documents would not be provided to Rivas.9

        In any case, whether it was out of an “eager[ness] to please the prosecutor,” Appellant’s Br.

at 5, as Rivas suggests, or based upon an independent reevaluation of the medical record, it does

appear that sometime in 1992, Mitchell reconsidered his estimate of the time of death. The grand

jury’s indictment alleges that Rivas killed Hill “on or about” Friday, March 27, 1987. The State has

identified no new evidence that came to light between March 1987 and November 1992 that led to

the indictment.10 As far as the record reflects, therefore, the only thing that changed during that span

of time was the medical examiner’s estimation of the time of death.

C.      The Trial of Hector Rivas

        Rivas was tried before a jury in March 1993, with now-deceased Onondaga County Court

Judge J. Kevin Mulroy presiding. He was represented by Richard J. Calle, an attorney then practicing

in Queens, New York. Rivas, who had moved downstate, hired Calle because Calle happened to be

representing him in a civil arbitration matter in the fall of 1992, around the time the District

Attorney’s Office renewed its investigation of him in connection with Hill’s murder. See Section


        9
         The judge did, however, inform one of Rivas’s attorneys that Fitzpatrick was scheduled to
attend a meeting with a legislative committee regarding allegations against Mitchell on April 13,
1993, just over two weeks after the conclusion of Rivas’s trial. See Remand Hearing Tr. 117–19.
        10
          It appears that the only new evidence prosecutors employed at Rivas’s trial was the
testimony of a former friend, who stated that Rivas made an incriminating statement to the effect
that he “didn’t mean to do it” shortly after Hill’s death. See Trial Tr. at 816–17. However,
prosecutors evidently did not learn of this alleged statement until after the indictment was returned,
when the witness’s girlfriend came forward. See id. at 828–29.
                                                    11
440.10 Hearing Tr. at 11. Calle did not work out of a formal business office and, on the occasions

that he met with Rivas prior to Rivas’s incarceration, those meetings were typically held in Rivas’s

sister’s apartment or at a local diner.11

        1.      The People’s Direct Case

        The People’s case was almost entirely circumstantial.12 District Attorney Fitzpatrick, who

tried the case himself, presented Rivas as an obsessive, jilted lover who harassed Hill following their

breakup and was pushed over the edge when he learned that Hill was planning to take a trip to the

Bahamas alone. Trial Tr. at 1127–28. As Fitzpatrick summarized: “Hector Rivas stalked this woman

[for] two and a half months, and finally strangled her and killed her in a jealous rage on March the

27th of 1987.” Id. at 1069.

        Trial testimony and exhibits supported at least part of this theory. Friends of Hill testified

that Rivas persisted in contacting Hill on a regular basis, even after she had made clear that she did

not want to continue or revive their relationship. In addition, the prosecution introduced dozens of

notes, cards, and letters that Rivas had written to Hill in the months between their breakup and her

death. See id. at 1092–97. Police investigators also testified regarding Rivas’s strange behavior when

he was first questioned, including his lack of reaction when he was told that Hill had died. Id. at 247.

        Several witnesses testified regarding Rivas’s whereabouts on Friday, March 27, 1987, the

alleged date of the murder. Taken together, the testimony of these witnesses suggested that there

may have been a window of time during which Rivas could have gone to Hill’s house and strangled



         Calle was later indicted and convicted on federal charges of obstruction of justice and mail
        11

fraud unrelated to his representation of Rivas. He was disbarred from the practice of law in New
York State nine years after Rivas’s trial. See In re Calle, 

 (1st Dep’t 2002).
        12
          Several of Rivas’s fingerprints had been found on several items in Hill’s house, including
on a bottle of wine. However, the prosecution acknowledged at trial that Rivas had been in the
apartment many times before, including in the week prior to Hill’s death.
                                                  12
her while en route from Coleman’s in Syracuse to Albert’s in Cazenovia, about thirty minutes away.

Prosecution witnesses testified that Rivas left Coleman’s at around 9:00 or 9:30 p.m. and did not

arrive at Albert’s until sometime between 11:00 p.m. and 12:30 a.m. Id. at 461–63, 439–40, 849. One

witness, a clerk at a liquor store near Hill’s apartment, testified that he saw Rivas enter the store

between 9:30 and 10:00 p.m. Id. at 496–99. Two witnesses testified that they observed Rivas

smoking a cigarette in his car, which was parked outside Hill’s house, sometime between 11:00 p.m.

and 12:00 a.m. that night—around the time that the prosecution theorized Hill was murdered. Id. at

533–34, 936–37.13

        Beyond making the case that Rivas had motive and the opportunity to murder Hill on Friday

night, Fitzpatrick deftly turned Rivas’s alibi for Saturday against him. Through witness testimony and

in his opening and summation, Fitzpatrick suggested that Rivas had contrived to be seen by many

people at all hours of the day Saturday and into Sunday morning, so that he would have an alibi in

the event that police focused on Saturday evening as the time of death. See, e.g., id. at 1084, 1124. For

example, Elizabeth Lewis, one of Hill’s friends, testified that Rivas sought her out at a party Saturday

evening and remarked that “[i]t’s too bad Valerie’s not feeling well, that she can’t be here tonight.”

Id. at 780. The implication, according to the prosecution, was that Rivas wanted to plant the idea in

Lewis’s mind that Hill was alive on Saturday evening, knowing that he was at that very moment

cementing his alibi. See id. at 1124.14


        13
          One of these witnesses, Hill’s upstairs neighbor, was in fact called by Rivas as a defense
witness, apparently because she had initially told police that she had seen Hill in their shared
basement on Saturday morning, March 28. However, under cross examination by Fitzpatrick, she
readily conceded that she was mistaken in her initial statement to police and had in fact seen Hill on
Friday morning, March 27. Trial Tr. 928–29, 932.

         Lewis did not testify that Rivas claimed to have spoken to Hill on Saturday. However, it
        14

was her sense, six years later, that he was trying to convey the impression that he had. This

                                                    13
        Similarly, Fitzpatrick emphasized a seemingly exculpatory item of evidence: a Stephen King

novel that Hill had checked out from the Cazenovia Public Library, and which a witness had seen in

the back seat of Hill’s car on Friday afternoon. See id. at 190–91. The book was returned to the

library’s drop box sometime between Saturday afternoon and Sunday morning, suggesting that Hill

(the most likely person to have returned it) was alive at least as late as Saturday afternoon. But

Fitzpatrick theorized that it was Rivas who returned the book, hoping that it would cause

investigators to believe that Hill was not killed on Friday night, when his alibi was relatively weaker.

Id. at 54–55, 1085.15

        Finally, the People elicited testimony from Joe Fields, an acquaintance of Rivas, who

encountered him at Albert’s bar approximately three weeks after the murder. Rivas had been

drinking heavily and was crying over Hill’s death. According to Fields, at a moment when Rivas did

not know that Fields was in earshot, he said to himself, “Valerie, Valerie, I didn’t mean to do it.” Id.

at 817–18.

        2.      The Medical Examiner’s Testimony

        No matter how much circumstantial evidence the prosecution could amass tending to link

Rivas to the crime, however, it had no case unless it could prove that Hill died on Friday night.

Fitzpatrick himself acknowledged that Rivas’s alibi was “complete—for Saturday night.” Id. at

55. Indeed, it was the People’s position that Rivas’s alibi was so strong on Saturday night precisely


purported plan backfired, because Lewis—unlike Rivas—knew that Hill was planning to be out of
town that weekend. Rivas’s comment therefore struck her as odd. Trial Tr. 780.
        15
           As Rivas pointed out in his state collateral motion, however, Hill had requested the book
through an interlibrary loan and all of the markings on the book indicated it was from a different
library, in Utica. Thus, Rivas (belatedly) argued, only Hill would have known to return it to
Cazenovia library and not the original library. Furthermore, although the prosecution’s fingerprint
expert examined the book and found three prints that he could not identify, he apparently did not
recover any of Rivas’s prints from the book. See Trial Tr. at 588.

                                                   14
because he had concocted it, having murdered Hill the night before. Therefore, the prosecution’s

case rested almost entirely on the testimony of Mitchell, the medical examiner, to persuade the jury

that Hill died on Friday night and not on Saturday as Mitchell had initially determined.

        Mitchell testified that, when he first observed Hill’s body on the afternoon of Monday,

March 30, it “was in rigor,” and that by the time he performed an autopsy later that day, “[s]he was

coming out of rigor.” Id. at 869, 872.16 He cautioned that no medical examiner can pinpoint with

certainty the time of a person’s death, id. at 886, but stated that, based on his observations of the

body, there was nothing inconsistent with Hill having died on either the night of Saturday, March

28, or Friday, March 27. Id. at 888. However, taking into account a number of external

factors—namely, that Hill’s cat was seen outside on Saturday morning; that Hill had not been seen

after Friday; that she never contacted the friend whom she intended to visit that weekend; that her

car had apparently not been driven since Friday; and that she had not been in touch with her father

despite the fact that his wife was gravely ill—Mitchell opined that “it’s more likely that she died

Friday night, to possibly very early Saturday morning” than on Saturday night. Trial Tr. 889–90. He

also stated his opinion “within a reasonable degree of medical certainty” that Hill died as a result of

being strangled. Id. at 891.17

         Confronted on cross-examination with contemporaneous newspaper accounts that reported

on his preliminary findings, Mitchell admitted that he “[q]uite possibly” had estimated at some point




        16
           In the “scene investigation” report that Mitchell prepared and signed at the time of his
initial inquiry into the cause and time of Hill’s death, he reported that he had found Hill’s body in
“full rigor, with fixed anterior livor.” See Remand Hearing Tr. 75–76 (emphasis added).

         Whether by design or oversight, Mitchell did not testify that his opinion on Hill’s time of
        17

death was “within a reasonable degree of medical certainty.” Trial Tr. at 891.

                                                   15
that Hill died late on Saturday night or early Sunday morning. Id. at 895–96.18 Mitchell also conceded

that, when he testified before the grand jury in November 1992, he had stated that it was merely “on

the outside edge of [ ] possibility” that Hill could have been murdered on Friday night. Id. at 907. At

trial, however, he insisted that he had never “tied [himself]” to a Saturday night estimate. Id. at 895.

He stressed that the onset and relaxation of rigor mortis was highly variable and could be slowed,

for example, by cold temperatures, id. at 905–06. Although Mitchell thus acknowledged that in most

cases rigor mortis relaxes within twenty-four to forty-eight hours (which would put Hill’s time of

death somewhere between Saturday and Sunday afternoon), he suggested that the cool temperatures

in Hill’s apartment could have retarded the process.

        On redirect examination, Mitchell explained that, when he testified before the grand jury

several months earlier, he had not reviewed “some of [his] notes and slides.” Id. at 915. Having had

the opportunity to review the “slides” before trial, he noticed in them “some decomposition to the

brain.” Id. This, he stated, “tends to push the [time] limits further out.” Id.19


        18
           Although Calle attempted to impeach Mitchell with newspaper articles suggesting that
Mitchell had initially estimated the time of death to be Friday night, he did not refer to the police
affidavit supporting the application to search Rivas’s residence, which stated that Mitchell had
preliminarily estimated the time of Hill’s death to be “sometime [between] [S]aturday the 28th of
March afternoon and [S]unday morning [the] 29th of March 1987,” Section 440.10 Mot. Exh. 2. See
Section 440.10 Hearing Tr. at 98.
        19
          Rivas contends that Mitchell committed perjury when he testified that he had examined
“brain slides,” because the medical examiner’s file did not, in fact, contain any such slides. The state
concedes that there were no “brain slides”—that is, sectional slides containing actual brain tissue. It
argues, however, that there were in fact two photographic slides containing images of Hill’s brain,
and that Mitchell may have been referring to those slides in his testimony.

        We need not, and therefore do not, address Rivas’s allegation that Mitchell committed
perjury. We note, however, that Fitzpatrick specifically characterized the slides in question as
“autopsy sectional slides” in his closing argument. Trial Tr. at 1082–83. Furthermore, Rivas’s expert,
Dr. Cyril Wecht, has testified that a forensic pathologist would “not use the word slide
synonymously with a photograph.” Remand Hearing Tr. at 27. In any case, Wecht has also testified

                                                    16
        3.      Belated Disclosure of Exculpatory Evidence

        At the close of the People’s case, Fitzpatrick disclosed the existence of an August 1988

affidavit from one Joe Morgan, in which Morgan attested that an individual named Patsy Barricella

had admitted to Morgan that he (Baricella) murdered Hill. Trial Tr. at 947–48.20 Recognizing that

this evidence was “exculpatory without a doubt,” id. at 984, the trial judge allowed Calle, Rivas’s

attorney, to decide whether to adjourn and attempt to call Morgan or Barricella as witnesses, or

instead to bring out the information contained in the affidavits by examining the Syracuse police

officer who had interviewed Morgan. Calle opted to draw the information out of the police officer,

Michael Ostuni. Id. at 987. According to Ostuni, Morgan claimed that he had a conversation with his

friend and neighbor Barricella in March 1988, at which time Barricella confessed to killing “the girl

on Hickok Avenue.” Section 440.10 Mot. Exh. 8. In addition, Barricella had, according to Morgan,

driven by the crime scene several times as police were investigating Hill’s murder and was stopped

by police as a result. (Indeed, a contemporaneous police report revealed that Barricella was stopped

by police after driving by the crime scene repeatedly. See Section 440.10 Mot. Exhs. 9 & 10.)

However, on cross-examination by the District Attorney, Ostuni also testified that Morgan was a

con artist and career criminal who had contacted the police from a county jail cell, demanding

release as a quid pro quo for cooperation. Trial Tr. at 998–1000. Ostuni further testified that Barricella

was known to be “mildly mentally retarded.” Id. at 1001.



that, even if Mitchell had examined “brain slides” (that is, sectional slides), such a review is “totally
unreliable” as a means of determining the time of death, because the sections of the brain contained
in such slides continue to decompose for up to ten days after the brain is placed in a formalin bath
for preservation. See Aff. of Cyril H. Wecht Supp. Section 440.10 Mot. at 6.
        20
            Though it is unclear when Fitzpatrick first became aware of or obtained Morgan’s affidavit
itself, the trial transcript suggests that he was in possession of at least some documents relating to
Morgan before opening statements were made, and thus well before this information was turned
over to the defense. See Trial Tr. at 65.
                                                      17
        4.      Rivas’s Direct Case

        Beyond the testimony of Ostuni, Rivas’s direct case was underwhelming. As Calle later

testified, he did not appreciate at trial that the precise time of Hill’s death was important because he

felt that Rivas had a strong alibi throughout the entire weekend. He therefore never considered

calling an expert forensic pathologist to challenge Mitchell’s adjusted findings. See Section 440.10

Hearing Tr. at 85, 87. He did attempt to establish that Hill was alive on Saturday by calling a

prosecution witness, Hill’s upstairs neighbor, to read from an affidavit in which she had stated that

she had seen Hill in their shared basement that morning. However, on cross-examination by

Fitzpatrick, the witness readily conceded that she had been mistaken in her affidavit and had in fact

seen Hill on Friday morning, not the following day. See Trial Tr. at 927–932. Calle also attempted to

establish Rivas’s alibi by calling a single witness who claimed to have seen Rivas at Albert’s in

Cazenovia as early as 7:30 p.m. on Friday. Id. at 967. Finally, he called a witness who testified that

Rivas was acting normally on Saturday night. Id. at 974. Rivas did not testify in his own defense, and

claims that Calle never informed him of his right to do so. Section 440.10 Hearing Tr. at 17–18.

        5.      Summations

        In his closing argument, Calle argued that the Hill murder had been solved backwards: The

police and the District Attorney’s Office had decided at the outset that Rivas was the killer and then

set out to find, or fabricate, the proof of the murder from there, ignoring other potential leads along

the way. Trial Tr. at 1044. With respect to the time of death, Calle argued that Mitchell had to stretch

science beyond the breaking point to opine at trial that it was more likely that Hill had been killed on

Friday than on Saturday, when Mitchell had previously testified before the grand jury that a Friday

time of death was only “on the outside limits of possibility.” Id. at 1062. Calle did not explicitly

challenge Mitchell’s credibility or suggest that he might be beholden to the District Attorney’s


                                                   18
Office. Indeed, Rivas claims that neither he nor Calle were aware of the investigations into Mitchell’s

conduct at the time of the trial, despite their widespread publicity in the weeks leading up to the trial,

apparently because they both then lived downstate. See § 2254 Petition at iv; Remand Hearing Tr. at

271–72.

        Fitzpatrick, in his summation, defended Mitchell’s estimates:

                [A]s [Dr. Mitchell] told the grand jury, rigor mortis, the stiffening of the
                body after death, normally begins to pass off within 24 to 48 hours. If
                we were looking at a calendar, this would put the normal time of death
                or the normal median time of death sometime Saturday afternoon.
                Could it have been 16, 17, 18 hours earlier? Absolutely. Absolutely.
                Heating conditions refer, first of all, to 75 degrees. It wasn’t the
                temperature of the house. The temperature of the house was 62 degrees.
                . . . Basement underneath her, cold floor. And the nights as you might
                expect, in March of 1987 were cold as well.

Trial Tr. at 1082–83.21 Furthermore, Fitzpatrick argued, Mitchell had “had a chance to review

autopsy sectional slides of the brain,” id., which tended to expand the range of possible times of

death. This review, Fitzpatrick claimed, combined with the external indications Mitchell had

identified, had led Mitchell to opine that it was most likely that Hill died on Friday, March 27.

        Summarizing the evidence against Rivas, Fitzpatrick theorized that Rivas had paid Hill a visit

on Friday night after he left Coleman’s bar, and had brought over a bottle of rum and a bottle of


        21
          In fact, the temperature of the apartment was never recorded and Hill was lying on a
carpeted floor. The record also reveals that the week of Hill’s death was unusually warm. One
witness told police that the last time she had seen Hill, Hill was sunbathing in her backyard. Section
440.10 Mot. Exh. 24. Another witness stated that she had her window open late Saturday night,
when she heard a woman’s scream. Id. Exh. 4.

         Parenthetically, we note that, according to the National Climatic Data Center, the mean
temperature in Syracuse, NY, on March 27, 1987, was 51E Fahrenheit, with a high of 61E and a low
of 40E. On March 28, the temperature ranged from 37–65E with a mean of 51E. And on Sunday,
March 29, the day before Hill’s body was discovered, the high temperature was 74E and the low 36E
with a mean of 55E. See Local Climatological Data, Monthly Summary for Syracuse, NY, March
1987, available at http://www7.ncdc.noaa.gov/IPS/lcd/lcd.html?_finish=0.400803217488396 (last
visited July 3, 2012).
                                                    19
wine in hopes that the two could mend their relationship. When he discovered that Hill not only did

not want to reunite with him, but was also planning a trip to the Bahamas alone, he flew into a rage

and strangled her. Then, realizing he needed to cover up the crime, he got rid of the airline ticket

(but left an ashtray full of his cigarettes), and, on the way to his car, took Hill’s library book from the

back seat of her car, intending to return it the next day to make it appear as though Hill were still

alive. He then crafted a tight alibi for the rest of the weekend. Id. at 1125–30.

        The jury deliberated for eight hours over the course of one day, during which time it asked

for further instructions on the meaning of “reasonable doubt.” Id. at 1188. At approximately 10:45

p.m. on March 25, 1993, nearly six years to the day after Valerie Hill was killed, Hector Rivas was

found guilty of second-degree murder. He was subsequently sentenced on May 12, 1993, to an

indeterminate term of imprisonment of twenty-five years to life.

D.      State Post-Conviction Proceedings

        Rivas, with the assistance of new counsel, appealed his conviction to the Appellate Division

of the New York Supreme Court, claiming, inter alia, that certain papers seized from his home on

March 30, 1987—including the torn-up note from Hill to her former boyfriend—should have been

suppressed; that police testimony regarding his statements and demeanor during his interrogation

should have been excluded; that he was deprived of a fair trial by the belated disclosure of the Joe

Morgan affidavit; and that the verdict was against the weight of the evidence. On April 28, 1995, the

Appellate Division issued a decision unanimously affirming Rivas’s conviction. People v. Rivas, 

 (4th Dep’t 1995). Although the Appellate Division held that the note should have been

excluded, it concluded that admission of the evidence was harmless. Id. at 996. The panel rejected

the remainder of Rivas’s claims on appeal. Id. at 996–97. Rivas’s application for leave to appeal to




                                                    20
the New York Court of Appeals was denied on August 15, 1995. People v. Rivas, 

(1995) (table).22

        Thereafter, with the assistance of yet another lawyer, Rivas filed a motion to vacate the

judgment of conviction pursuant to N.Y. Criminal Procedure Law § 440.10, which provides the

means of collateral attack on a criminal judgment in New York state courts. In that application,

Rivas alleged that he had been the victim of a “concerted effort to convict that was severed from

concerns over actual guilt very early on in this investigation and was orchestrated by the District

Attorney himself, William J. Fitzpatrick, who personally prosecuted this case.” Affirmation of H.

Mitchell Schuman in Support of Section 440.10 Mot. at 3.

        Principal among Rivas’s allegations was that Mitchell, the medical examiner, had altered his

original estimate of the time of Hill’s death in order to satisfy the District Attorney in hopes of

avoiding prosecution for alleged criminal misconduct. Id. at 4–7. Rivas claimed not to have known

about the investigation of Mitchell and his office until after the trial, when Mitchell was indeed

forced to resign to avoid prosecution by Fitzpatrick’s office. Id. at 6. Additionally, Rivas claimed to

have discovered only after the trial that, despite Mitchell’s testimony that he had examined “slides”

in coming to the conclusion that Hill most likely died on the night of Friday, March 27, 1987, and

despite Fitzpatrick’s characterization of these slides in his summation as “autopsy sectional slides,”

there were in fact no sectional slides of Hill’s brain in the medical examiner’s file. Id. at 6–7.

        Rivas also pointed to “new evidence,” in the form of an affidavit by Dr. Cyril H. Wecht, an

expert in forensic pathology, who attested that Mitchell’s calculations of the cause of death were

“misguided,” and that, in his expert opinion, “based upon a reasonable degree of medical certainty,



         Rivas also filed an application for a writ of error coram nobis, which was denied by the
        22

Appellate Division on September 27, 1996. People v. Rivas, 

 (4th Dep’t 1997)
(Table).
                                                   21
. . . the length of time between the death of Valerie J. Hill and the time she was found was less than

48 hours, and more likely less than 36 hours.” Affirmation of Cyril H. Wecht in Support of Section

440.10 Mot. (emphasis in original). In other words, according to Wecht, Hill most likely died

between 3:30 p.m. on Saturday, March 28, and 3:30 a.m. on Sunday, March 29.

        In addition, Rivas alleged that a significant amount of exculpatory material was withheld

from the defense at trial. Most saliently for our purposes, Rivas claimed that he never received an

affidavit taken from one of Hill’s neighbors, Mary Lazarski, and a police report memorializing an

interview with another unnamed neighbor. In her affidavit, Lazarski attested that, late in the evening

of March 28 or early in the morning of March 29, while she was watching “Saturday Night Live” on

television, she heard through her open window “a loud shriek or scream [that] seemed to cut off.”

Section 440.10 Mot. Exh. 4. She stated that “[t]he voice was a woman’s voice and it sounded like

someone was in trouble and not like anyone kidding around.” Id. Lazarski’s husband also signed an

affidavit confirming that his wife woke him up and told him about the incident that night. Id. The

unidentified neighbor told police that he heard a dog barking and a car speed away from the vicinity

of Hill’s house at around 11:00 Saturday night. Id.

        Beyond these documents, Rivas claimed that the prosecution failed to disclose: (1) a police

report regarding an interview with a neighbor who had seen Hill intimately embracing a man other

than Rivas a few days prior to her murder, and another interview stating that Hill had been involved

in an intimate relationship with a man other than Rivas at the time of her death; (2) information that

one of Hill’s neighbors had previously been arrested for burglary and was known to peer through

windows in the neighborhood;23 (3) information that an employee at the hospital where Hill worked



         This neighbor appears to have been a member of the family who lived upstairs from Hill at
        23

250 Hickok Avenue. The individual was interviewed by police in connection with Hill’s murder and
admitted to having been arrested and charged in 1985 with a burglary of 248 Hickok Avenue, the
                                                22
had been disciplined after Hill made a complaint against him; (4) information regarding a purported

“sexual deviant” who was residing in Hill’s neighborhood; (5) the fact that one of the prosecution

witnesses had a prior conviction; and (6) the affidavit stating that Patsy Barricella, not Rivas, had

committed the crime. Section 440.10 Mot. at 7–10.

        Finally, Rivas raised a claim of ineffective assistance of counsel, alleging that his trial

attorney, Calle, had failed to apprise him of his right to testify in his own defense, and had failed to

“investigate or challenge the false and misleading testimony given by the medical examiner at trial.”

Mem. Law. Supp. Section 440.10 Mot. at 34–40.

        On April 7, 2000, Acting Onondaga County Supreme Court Justice John J. Brunetti

conducted an evidentiary hearing in connection with Rivas’s § 440.10 motion. At the close of the

hearing, Justice Brunetti issued an oral ruling denying relief with respect to Rivas’s Brady claims and

one portion of his ineffective-assistance claim, finding that Rivas had not borne his burden of

persuasion on those points. See Section 440.10 Tr. at 135–41. After taking the remaining issues

under advisement and receiving post-hearing briefs from the parties, Justice Brunetti issued a written

decision on September 8, 2000, denying relief on the remaining claims. See People v. Rivas, No. 92-

2794 (N.Y. Sup. Ct. Sept. 8, 2000).




apartment later occupied by Hill. (He was ultimately convicted of petit larceny, according to the
report.) When questioned about his whereabouts the weekend of Hill’s death, he mentioned having
“pass[ed] by his parents house at 250 Hickok Avenue.” Section 440.10 Mot. Exh. 18. Although it
appears that the individual had an alibi for the relevant time period, the very fact that he was
questioned by police and had previously been arrested for suspicious criminal activity involving
Hill’s apartment, if disclosed to the defense, would likely have provided grounds for challenging the
credibility of his family members, who testified against Rivas.

                                                    23
E.      Federal Habeas Proceedings

        1.       Initial Decision and Appeal

        On December 12, 2001, Rivas filed a petition for a writ of habeas corpus pursuant to

28 U.S.C. § 2254. In it, he raised substantially the same claims that he had advanced before the state

court in his § 440.10 motion. Principally, he claimed that: (1) he was entitled to a new trial in light of

newly discovered evidence of misconduct and false testimony by the medical examiner; (2) the

prosecution failed to provide him with Brady material; and (3) his trial counsel was grossly

ineffective. § 2254 Petition at i–ii.

        The District Court dismissed Rivas’s claims as time-barred under 28 U.S.C. § 2244(d). See

Rivas v. Fischer, No. 01-cv-1891, ECF No. 21 (N.D.N.Y. Jan. 28, 2005) (“Rivas I”). By summary order

dated October 2, 2008, we vacated the judgment of the District Court, concluding that we were

unable to review its determination that the petition was untimely because it had not developed a

record as to whether a duly diligent person in Rivas’s circumstances would have been able to

discover the factual predicates for his claims more than a year prior to his filing the petition. We

therefore remanded the cause to the District Court with instructions that it “make specific factual

findings” regarding the timeliness of Rivas’s claims, noting that, in order to be timely, Rivas’s claims

must not have been discoverable through the exercise of due diligence prior to May 8, 1999, one

year prior to the actual filing of his petition (not including periods of time during which the statute

of limitations was tolled). See Rivas II, 294 F. App’x at 679.

        In addition, we instructed that, should the District Court determine that Rivas had not

satisfied the requirements of § 2244(d)(1)(D), it “should then make specific findings as to whether

Rivas has established a credible claim of actual innocence” under applicable Supreme Court and

Second Circuit standards. Rivas II, 294 F. App’x at 679. We specifically stated that “the District


                                                    24
Court may wish to examine the ‘likely credibility of the affiants,’” namely Wecht and Calle, and “the

relative strength of the State’s case against Rivas in light of any credibility determinations that the

District Court sees fit to make.” Id.

        2.      Proceedings on Remand

        Pursuant to our remand order, an evidentiary hearing was conducted by Magistrate Judge

David Peebles on September 21 and 22, 2009.24 The magistrate judge opened the hearing by

expressing his view that, “although actual innocence is at play, the primary focus [of the hearing] is

on the timeliness question”—that is, whether the “new evidence” upon which Rivas purported to

base his claims was known, or could have been discovered through the exercise of due diligence,

prior to May 8, 1999. Remand Hearing Tr. at 9.25 Much of the testimony at the hearing before the

magistrate judge therefore focused on the efforts of Rivas and his attorneys to track down the

information underlying his claims.

        The Court did, however, hear testimony from Wecht, the forensic pathologist whose

affidavit called into doubt Mitchell’s time-of-death estimate. Wecht testified that he had reviewed the

medical examiner’s file, as well as the relevant trial testimony, and concluded “with a reasonable

degree of medical certainty,” that “this death could not have occurred longer than 48 hours prior to




        24
          At the start of the hearing, the magistrate judge disclosed that, like Judge Mulroy, who
presided over Rivas’s trial, he had served with Fitzpatrick in the Onondaga County District
Attorney’s Office, and that (again like Judge Mulroy) he had selected Fitzpatrick to be the godfather
of his daughter. However, he felt that this relationship—which had apparently become less familiar
over time—would not prevent him from fairly adjudicating the case. Rivas did not seek his recusal.
See Remand Hearing Tr. at 3–5.
        25
          Indeed, the magistrate judge refused, for example, to admit evidence relating to the results
of DNA tests on items taken from Hill’s apartment that purportedly included only one “match” to
Rivas, stating “I have already made it clear I’m not retrying the murder case.” Remand Hearing Tr. at
114.
                                                   25
the time that Mitchell examined the body on Monday, March 30 at 3:30 p.m.” Id. at 36.26 Wecht

arrived at this conclusion primarily because Mitchell had written in his scene investigation report

that the body was in “full rigor” when he examined it and a body generally cannot remain in “full

rigor” more than forty-eight hours after death. Id. at 33–34; see note 13, ante.27 Furthermore, Wecht

noted that the autopsy report contained no reference to discoloration around the abdominal wall,

which would generally be found in a body that has been lying face-down on the ground for longer

than forty-eight hours. Id. at 34–35.

        Wecht further testified that the reasons Mitchell had provided at trial for “push[ing] the time

limits further out” were without scientific basis. With respect to Mitchell’s claim that cool

temperature conditions in Hill’s apartment could have delayed the onset and relaxation of rigor,

Wecht testified that, though a colder environment may slow down the development of rigor mortis,

the temperature in Hill’s apartment could not have been low enough to make a difference:

                Now if you have a particularly cold weather as you can have in Syracuse
                in the wintertime, that’s a different matter, a body found in your snowy
                mountains, but not a body, I don’t care if it’s 60 to 62 degrees or 70
                degrees, not going to make any difference. You’re not going to have a
                body in full rigor 48 hours after the person has died. You’re just not
                going to have that.

Id. at 34. With respect to Mitchell’s claim that he had observed decomposition in Hill’s brain when

he examined “slides” in his file, Wecht testified that such decomposition could not be observed in




        26
          Wecht clarified that, in his opinion, Hill “most likely [died] within 36 hours prior to [the
afternoon of March 30, when Mitchell first examined her body] . . . [but] that being extremely liberal
so to speak in terms of ascertaining a time of death that you might take it back as much as about 48
hours or so.” Id. at 26–27.
        27
          Wecht stated that he could not recall ever having encountered a body in full rigor more
than forty-eight hours after death, nor had he ever heard of such a case. Id. at 76.
                                                  26
photographic slides, but only in sectional slides, containing actual brain tissue.28 Inasmuch as there

were no sectional slides in the medical examiner’s file, and inasmuch as the neuropathologist who in

fact examined Hill’s brain had found no evidence of external decomposition, Wecht opined that

Mitchell’s trial testimony in this regard was unfounded. See Remand Hearing Tr. 27–28, 31.

        Overall, Wecht found Mitchell’s explanation for expanding the possible time of death to

include Friday to be unsound, and perhaps improper. He stressed that “any forensic pathologist in

the world” would agree that an estimation of time of death is more reliable if made at around the

time of the autopsy, and stated that Mitchell’s claim that he could “come back in six years later and

say that now I have a new estimate” was, at best, “a misrepresentation.” Id. at 37–38.

        On cross-examination, Wecht allowed that it was possible that Hill could have died as early

as 9:30 a.m. on Saturday, March 29. The attorney for the State then asked if it would have been

“impossible for Hill to have died at 2:30 a.m. on Saturday morning,” to which Wecht offered the

following response:

                You know, I am always very hesitant to use words like absolute and
                impossible . . . but I’ll answer with reasonable medical probability or
                reasonable medical certainty, I do not believe that Ms. Hill could have
                been killed as far back as 2:30 a.m. on Saturday morning, August 28th,
                that is after midnight on Friday, the 27th into the morning hours of
                Saturday, the 28th.

Id. at 64–65.29 Notably, the State did not challenge Wecht’s credibility or expertise as a forensic

pathologist or offer any expert testimony of its own.


        28
          Even observation of sectional slides is not a reliable means of determining the time of
death, according to Wecht, because the pieces of the brain contained in sectional slides continue to
decompose for approximately ten days after the brain is placed in a formalin bath for preservation.
See Aff. of Cyril H. Wecht Supp. Section 440.10 Mot. at 5.
        29
           In any case, Rivas had an alibi for 2:30 a.m. Saturday morning. Prosecution witnesses
testified that he arrived at Albert’s in Cazenovia between 11:00 p.m. Friday and 12:30 a.m. Saturday
and his alibi was unchallenged for the remainder of Saturday. See Trial Tr. at 461–63, 439–40.
                                                    27
        After the hearing, and upon receiving briefs from the parties, the magistrate judge issued a

Report and Recommendation recommending that the petition again be dismissed as untimely. See

Rivas v. Fischer, No. 01-cv-1891, 

 (N.D.N.Y. Jan. 8, 2010) (“Rivas III”). He found

that Rivas had “established neither that he did not and could not have discovered the evidence

serving as the factual predicate for his claims, through the exercise of due diligence, more than one

year before his petition was filed, excluding any intervening tolling periods, nor a colorable claim of

actual innocence[.]” Id. at *1.

        With respect to timeliness, the magistrate judge concluded that the investigation into

Mitchell’s misconduct as medical examiner was public knowledge at the time of the trial and

therefore could have been discovered well in advance of May 8, 1999, the latest date on which

Rivas’s § 2254 petition could have been timely filed. Id. at *10–11.30 Regarding Wecht’s June 9, 1999,

affidavit casting doubt on Mitchell’s testimony, the magistrate judge concluded that it was not in fact

“new evidence,” but instead was “nothing more than a conflicting opinion to that of Dr. Mitchell

regarding the time of the victim’s death.” Id. at *11. The magistrate judge did not make any finding

regarding when a duly diligent person would have discovered the factual predicates for Rivas’s Brady

claims, concluding instead that Rivas had failed to establish that the material in question was actually

withheld from the defense. Id. at *13–14. As a result of an apparent oversight, the magistrate judge

did not address Rivas’s claim of ineffective assistance of trial counsel.

        With respect to actual innocence, the magistrate judge concluded, without elaboration or

citation to the record, that the new evidence Rivas proffered “could [not] properly be characterized

as the type of highly reliable evidence upon which a claim of actual innocence could be predicated.”



         The magistrate judge also concluded that the evidence relating to the Mitchell investigation
        30

was “not of a character which would have altered the jury’s verdict,” because it did not include
evidence that Mitchell falsely testified at trials. Id.
                                                        28
Id. at *15 n.23. Addressing the affidavit and testimony of Wecht, which he deemed the “centerpiece

of petitioner’s actual innocence claim,” the magistrate judge noted that Wecht had “conceded on

cross-examination that Hill’s death could have occurred as early as four to six hours prior to [3:30

p.m. on Saturday, March 28, 1987] . . . and he was unable to state with absolute certainty that she could not

have died late Friday night into the early morning hours of Saturday, March 2[8], 1987.” Id. at *15

(emphasis added). Therefore, in the magistrate judge’s view, Wecht had not absolutely ruled out the

possibility that Mitchell was correct in estimating the time of death at Friday, March 27, 1987.

Importantly, the magistrate judge did not make any adverse credibility finding with respect to

Wecht’s affidavit and testimony. Rather, in light of what he deemed to be “overwhelming” evidence

of Rivas’s guilt, the magistrate judge concluded that “Dr. Wecht’s testimony does not rise to a level

sufficient to permit the conclusion that no reasonable juror could have found guilt beyond a

reasonable doubt had the additional evidence been considered.” Id. at *16.

        Rivas filed timely objections to the Report and Recommendation. After further briefing

from both sides, Judge Sharpe, upon de novo review, adopted the magistrate judge’s Report and

Recommendation and dismissed the petition without reaching the merits. See Rivas v. Fischer, No. 01-

cv-1891, 

 (N.D.N.Y. Mar. 26, 2010) (“Rivas IV”). The District Court granted a

certificate of appealability “limited to the issue of when petitioner discovered the new evidence that

serves as a factual predicate for some of his claims, and whether it could have been discovered

earlier through the exercise of due diligence.” See id. at *5 (granting certificate of appealability as

articulated by Magistrate Judge Peebles in Rivas III, 

 at *17).31 This appeal followed


        31
          Though the certificate of appealability was limited to the issue of when the factual
predicates for Rivas’s claims could have been discovered through the exercise of due diligence,
Rivas’s notice of appeal states that it is “from each and every part” of the District Court’s judgment.
Notice of Appeal, Rivas v. Fischer, No. 10-1300-pr (2d Cir. Apr. 8, 2010), ECF No. 1. We construe
the notice of appeal as a request to amend the certificate of appealability to reach the issues of
                                                    29
and was assigned to the original panel, pursuant to the instructions in our prior summary order. See

Rivas II, 294 F. App’x at 680 (invoking the remand procedure outlined in United States v. Jacobson, 

, 21–22 (2d Cir. 1994)).

                                            DISCUSSION

        The merits of Rivas’s habeas petition are not at issue in this appeal. Rather, our concern is

only with whether the petition was timely filed and, if the petition was untimely, whether Rivas’s

delay in filing it should be excused.

        Among the reforms instituted by Congress in the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”) is a one-year statute of limitations, 28 U.S.C. § 2244(d)(1), which runs from

the latest of a number of triggering events, including “the date on which the judgment became final

by the conclusion of direct review or the expiration of the time for seeking such review,” id.

§ 2244(d)(1)(A), and “the date on which the factual predicate of the claim or claims presented could

have been discovered through the exercise of due diligence,” id. § 2244(d)(1)(D). See note 1, ante.

Petitioners, like Rivas, whose convictions became final before the enactment of AEDPA on April

24, 1996, are entitled to a one-year “grace period,” meaning that their petitions would not be barred

if filed on or before April 24, 1997. Ross v. Artuz, 

, 103 (2d Cir. 1998).

        Rivas does not dispute that his federal habeas petition, filed December 12, 2001, would be

untimely under § 2244(d)(1)(A), but argues here (as he did before the District Court) that it should

nevertheless be considered timely under § 2244(d)(1)(D) because it is predicated on new evidence

which could not have been discovered more than a year prior to his filing (excluding the period




equitable tolling and actual innocence, and we grant that request. See Saunders v. Senkowski, 

, 547 (2d Cir. 2009) (amending certificate of appealability to reach issue of timeliness, where
certificate was granted only on issue of equitable tolling); Fed. R. App. P. 22(b)(2) (authorizing court
of appeals to construe a notice of appeal as a request for a certificate of appealability).
                                                   30
during which his state post-conviction motion was pending). He also argues that, even if the petition

was not timely filed under § 2244(d)(1)(D), he should benefit from equitable tolling, because it was

only due to ineffective assistance rendered by his trial and initial post-conviction counsel that he

failed to file sooner. Finally, he argues that the merits of his petition should be considered

irrespective of the statute of limitations because he has made a compelling showing of actual

innocence. The District Court rejected each of these arguments and dismissed the petition as

untimely.

        We consider the District Court’s treatment of each issue in turn, reviewing its factual

findings for clear error and its legal determinations de novo. See Drake v. Portuondo, 

, 239

(2d Cir. 2009).

A.      Timeliness Under § 2244(d)(1)(D)

        Although Rivas raises six claims in his habeas petition, the claims that are allegedly

predicated on new evidence fall into three categories: (1) the claims relating to the alleged

misconduct and false testimony of the medical examiner, Mitchell; (2) the Brady claims; and (3) the

ineffective-assistance-of-counsel claims. We have previously explained that, in order for Rivas’s

petition to be deemed timely under § 2244(d)(1)(D), he must show that the factual predicates for

these claims could not have been discovered through the exercise of due diligence before May 8,

1999. See Rivas II, 294 F. App’x at 678. We arrived at this date by working backward from the date

on which Rivas in fact filed his petition:

                  Three hundred days of the one-year limitations period elapsed between
                  the final denial of Rivas’s state post-conviction motion (February 15,
                  2001) and the date on which he filed his federal habeas petition
                  (December 12, 2001). From July 12, 1999 until February 15, 2001—the
                  period during which Rivas’s state post-conviction motion was pending
                  in state court—the limitations period was tolled. Counting back sixty-
                  five days from the date when Rivas filed his state post-conviction
                  petition (July 12, 1999) yields May 8, 1999.
                                                   31
Id. at 678. Accordingly, if the “newly discovered” evidence on which Rivas’s claims are predicated

could in fact have been discovered prior to May 8, 1999, then the petition, filed December 12, 2001,

is untimely under § 2244(d)(1)(D).

        The determination of the date on which the factual predicate for a habeas claim is first

discoverable is a “fact-specific” inquiry which requires a district court to analyze the factual bases of

each claim and to determine when the facts underlying the claim were known, or could with due

diligence have been discovered. See Wims v. United States, 

, 190 (2d Cir. 2000)

(addressing the parallel requirement in the statute governing habeas petitions challenging federal

convictions, 28 U.S.C. § 2255(f)(4)). Because the inquiry into when a factual predicate could have

been discovered with due diligence is, by definition, a question of fact, we review the District Court’s

determination for clear error. See Wilson v. Beard, 

, 660 (3d Cir. 2005) (“The ultimate

question whether a petitioner exercised due diligence is one of fact which we will set aside only if it

is clearly erroneous[.]”); see generally Drake, 553 F.3d at 239.

        Congress did not provide a definition of the term “factual predicate,” as used in

§ 2244(d)(1)(D); nor have we previously had occasion to offer one. Those courts that have given

meaning to the term agree that a factual predicate consists only of the “vital facts” underlying the

claim. McAleese v. Brennan, 

, 214 (3d Cir. 2007); see also Flanagan v. Johnson, 

,

199 (5th Cir. 1998). We agree. The facts vital to a habeas claim are those without which the claim

would necessarily be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the United

States District Courts (requiring a district judge to dismiss a petition “[i]f it plainly appears from the

petition and any attached exhibits that the petitioner is not entitled to relief”) or Rule 12(b)(6) of the

Federal Rules of Civil Procedure (allowing for dismissal of a civil complaint where the plaintiff has

“fail[ed] to state a claim upon which relief can be granted”).
                                                     32
        Accordingly, if new information is discovered that merely supports or strengthens a claim

that could have been properly stated without the discovery, that information is not a “factual

predicate” for purposes of triggering the statute of limitations under § 2244(d)(1)(D). See McAleese,

483 F.3d at 214 (observing that the petitioner had “confused the facts that make up his claims with

evidence that might support his claims”); Escamilla v. Jungwirth, 

, 871 (7th Cir. 2005)

(“Section 2244(d)(1)(D) does not restart the time when corroborating evidence becomes available; if

it did, then the statute of limitations would fail in its purpose to bring finality to criminal judgments,

for any prisoner could reopen the judgment by locating any additional fact.”); Flanagan, 154 F.3d at

199 (noting that petitioner “is confusing his knowledge of the factual predicate of his claim with the

time permitted for gathering evidence in support of that claim”). Furthermore, it should go without

saying that a factual predicate must consist of facts. Conclusions drawn from preexisting facts, even if

the conclusions are themselves new, are not factual predicates for a claim.

        Applying this definition, we conclude that the District Court (adopting the Report and

Recommendation of Magistrate Judge Peebles) did not clearly err in concluding that Rivas had

“failed to prove that the factual predicate for any of the grounds asserted in his amended petition

could not have been discovered by him through due diligence before May 8, 1999.” Rivas III, 

 at *16; see Rivas IV, 

, at *5 (adopting the magistrate judge’s Report

and Recommendation in full). We address each ground below.

        1.      Factual Predicate Supporting Claims of Misconduct and False Testimony by Mitchell

        In his Amended Petition, Rivas claims that “newly discovered evidence regarding the

conduct of the autopsy, the medical examiner’s false evidence and the medical examiner’s prior bad

acts, warrant the grant of habeas relief.” Am. § 2254 Petition at iv. The purportedly new evidence

supporting this claim is: (1) evidence that Mitchell was under investigation for professional


                                                    33
misconduct at the time of the criminal trial; (2) evidence that Mitchell falsely testified that he had

examined “slides” of the victim’s brain to determine her time of death, when in fact there were no

such slides; and (3) evidence in the form of Wecht’s affidavit and hearing testimony demonstrating

that Mitchell’s trial testimony ignored generally accepted scientific principles and arrived at a time-

of-death estimate that was highly implausible.

        We agree with the District Court that the Mitchell investigation was discoverable prior to

May 8, 1999. Indeed, in his § 440.10 Motion in state court, Rivas specifically cited newspaper

coverage of the investigation predating his trial. As the magistrate judge observed, “[t]he publicity

regarding that investigation belies any claim that Rivas and his counsel could not have learned of the

investigation at or prior to the time of trial through the exercise of due diligence.” Rivas III, 

, at *10.

        The evidence suggesting that Mitchell lied when he testified that he adjusted his time-of-

death estimate based in part on an analysis of autopsy sectional slides in the medical examiner’s file

was also discoverable prior to May 8, 1999. On February 5, 1998, at Rivas’s request, the Onondaga

County Court ordered the Medical Examiner’s Office to provide Rivas’s counsel with the records of

its investigation into Hill’s death, including copies of “all slides prepared by the Medical Examiner’s

Office of any organs or parts of organs of the deceased . . . or slides of any nature prepared in

reference to Hill, including microscopic slides.” Am. § 2254 Petition Exh. B at 3. A copy of the

medical examiner’s file was turned over on March 24, 1998. It included the report of Dr. George

Collins, who had examined Hill’s brain shortly after her body was found and identified no abnormal

postmortem decomposition. See id. Exh. C at 1, 3. It did not include any sectional slides. Thus, as of

March 24, 1998, the factual predicate for the claim involving Mitchell’s alleged false testimony

regarding so-called “brain slides” was discoverable with due diligence. Indeed, Rivas himself stated


                                                   34
in a letter to one of his attorneys dated April 23, 1998, that he “truly wasn’t surprised to learn that

the [file] didn’t have any brain slides,” suggesting that he was aware of this fact prior to May 8, 1999.

See Rivas III, 

, at *12 (quoting April 23, 1998, letter of Hector Rivas to Attorney

Sidney Manes).

        Finally, Wecht’s affidavit, though seriously detrimental to the State’s case, is not a “factual

predicate” as we have defined that term. Rather, it is a conclusion based on facts that were known to

Rivas or discoverable by him or his counsel at the time of his trial. Wecht himself stated in the

affidavit that his conclusions were based upon a review of the medical examiner’s file and the

transcript of Rivas’s criminal trial, in particular Mitchell’s testimony. The information upon which

Wecht relied in forming his conclusion is the factual predicate for this claim. This information was

discoverable (and discovered) by March 24, 1998, at the latest, when the medical examiner’s file was

turned over to Rivas.

        Moreover, even if the clock had started running on the date Wecht offered his conclusions,

it is undisputed that these conclusions were initially offered in a confidential report to Rivas’s

counsel on September 10, 1998, fully eight months prior to the critical date of May 8, 1999.

        2.       Factual Predicate Supporting Brady Claims

        Rivas contends that he was unable to establish his Brady claims until he succeeded in

reconstructing his case file, the original of which was apparently lost at some point after his trial.

Rivas’s efforts resulted in the Syracuse Corporation Counsel producing two batches of documents in

response to requests under New York’s Freedom of Information Law. The first was received in

September 1998 (with some additional material provided two months later) and the second in

September 1999. See Rivas III, 

, at *7. However, because Rivas only produced the

September 1999 batch at the evidentiary hearing on remand, the magistrate judge was “unable to


                                                    35
ascertain the extent to which the later produced materials duplicate those received earlier, and in

particular whether the alleged Brady materials were among the three hundred eighty seven pages

provided in September [and November] 1998, prior to the critical date.” Rivas III, 

at *7.

         It would have been preferable for the District Court to order Rivas to submit the September

1998 disclosure so that it could be determined whether the alleged Brady materials were contained

therein. However, it was Rivas’s burden (at that time, with the assistance of counsel) to prove that he

could not have discovered the factual predicate for his Brady claims prior to May 8, 1999. We agree

with the District Court that Rivas did not sustain his burden on this score.

         3.      Factual Predicate Supporting Ineffective Assistance of Counsel Claim

         In his amended petition, Rivas raises four claims of ineffective assistance of counsel, all tied

to Calle’s performance at or before trial. Specifically, Rivas claims that Calle: (1) failed to advise him

of his right to testify at trial; (2) failed to request a pretrial Sandoval ruling;32 (3) failed to cross-

examine adequately one of the prosecution’s witnesses; and (4) failed to indicate on the trial record

that certain evidence (namely, the letter from Hill to her ex-boyfriend), which the prosecution

claimed was discovered at Rivas’s home, was in fact discovered at Hill’s home. See Am. § 2254

Petition at ¶ 12.E. All of these allegations concern errors made prior to or during Rivas’s trial in

March 1993. Thus, the factual predicates for these claims arose well in advance of May 9, 1999. To

the extent Rivas claims that his failure to timely raise his claims of ineffective assistance of trial




          “In New York state courts a defendant may request a preliminary hearing, known as a
         32

Sandoval hearing, to determine whether, if he elects to testify, his prior criminal record may be used
to impeach his credibility.” Norde v. Keane, 

, 408 n.1 (2d Cir. 2002) (citing People v.
Sandoval, 

 (1974)).
                                                    36
counsel was due to the ineffectiveness of his post-conviction counsel, that argument is relevant to

the issue of equitable tolling (addressed below), not to the timeliness of the claim itself.

        For these reasons, we conclude, like the District Court, that all of Rivas’s claims are untimely

under 28 U.S.C. § 2244(d)(1)(D). We proceed to examine whether, despite his failure to timely file

his petition, Rivas should benefit from equitable tolling of, or an equitable exception to, the statute

of limitations.

B.      Equitable Tolling

        Rivas contends that, even if his petition was untimely under the strict operation of 28 U.S.C.

§ 2244(d)(1), the statute of limitations ought to be equitably tolled. The Supreme Court has

confirmed that AEDPA’s statute of limitations is not jurisdictional and “does not set forth ‘an

inflexible rule requiring dismissal whenever’ its ‘clock has run.’” Holland v. Florida, 

,

2560 (2010) (quoting Day v. McDonough, 

, 205 (2006)). Rather, the limitations period in

§ 2241(d) “is subject to equitable tolling in appropriate cases”—specifically, where the petitioner

shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Id. at 2560, 2562; see also Doe v. Menefee,

, 175 (2d Cir. 2004) (“To qualify for [equitable tolling], the petitioner must establish

that extraordinary circumstances prevented him from filing his petition on time, and that he acted

with reasonable diligence throughout the period he seeks to toll.” (internal quotation marks

omitted)). Whether a circumstance is extraordinary depends not on “how unusual the circumstance

alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is

for the petitioner endeavoring to comply with AEDPA’s limitations period.” Diaz v. Kelly, 

, 154 (2d Cir. 2008). “On an appeal from a district court’s denial of equitable tolling, we review




                                                    37
findings of fact for clear error and the application of legal standards de novo.” Harper v. Ercole, 

, 136 (2d Cir. 2011).

        The “extraordinary circumstances” that Rivas points to in this case are: (1) the failure of his

state post-conviction counsel, Mitchell Schulman, to file the § 440.10 motion sooner; and (2) the

lack of cooperation he received from his trial counsel, Calle, who possessed information essential to

Rivas’s habeas claims. We conclude that neither circumstance warrants equitable tolling of the

limitations period.

        Because a lawyer is the agent of his client, the client generally “must ‘bear the risk of attorney

error.’” Holland, 130 S. Ct. at 2563 (quoting Coleman v. Thompson, 

, 752–53 (1991)).

Therefore, “a garden variety claim of excusable neglect, such as a simple miscalculation that leads a

lawyer to miss a filing deadline, does not warrant equitable tolling.” Id. at 2564 (internal citations and

quotation marks omitted). Rather, in order to rise to the level necessary to constitute an

“extraordinary circumstance,” for purposes of tolling § 2254’s limitation period, attorney negligence

must be so egregious as to amount to an effective abandonment of the attorney–client relationship.

See id. at 2564–65 (“extraordinary circumstances” found where counsel ignored letters of client

emphasizing the importance of filing on time); Dillon v. Conway, 

, 363–64 (2d Cir. 2011)

(same); cf. Maples v. Thomas, 

, 923 (2012) (emphasizing, in context of showing cause for

a procedural default, “the essential difference between a claim of attorney error, however egregious,

and a claim that an attorney had essentially abandoned his client”).33


        33
           The majority in Holland suggested that a lesser degree of attorney negligence may be
required to merit equitable tolling (under the “extraordinary circumstances” standard) than is
required to excuse a procedural default (under the “cause and prejudice” standard). See 130 S. Ct. at
2563. As the majority explained, this distinction is derived from principles of federalism: The tolling
of a federal statute of limitations does not raise the same federalism concerns as does the excusing of
a failure to comply with state procedural rules. See id. Justice Alito wrote separately, however, and

                                                    38
        Under this standard, we cannot conclude that Schuman’s conduct in failing to file the

§ 440.10 motion sooner was so outrageous or incompetent as to amount to an abandonment of the

attorney–client relationship. In this case, unlike those in which we have found attorney

incompetence to be “extraordinary,” there is no indication that Schuman ignored or contravened

Rivas’s express instructions by delaying in filing the § 440.10 motion. Rather, Schuman’s conduct

appears at worst to be a garden variety case of neglect.

        Calle’s conduct, on the other hand, presents a closer call. Rivas alleges that Calle essentially

disappeared following his trial in 1993, could not be located until sometime in 1999, and even then

initially refused to cooperate with his post-conviction counsel. These circumstances, if true, would

certainly suggest that Calle abandoned Rivas and perhaps stood in the way of Rivas timely filing his

petition.

        However, even if Calle’s disappearance constitutes the requisite “extraordinary

circumstance[ ],” Rivas must still establish that he acted diligently to find Calle throughout the time

he seeks to have tolled. Doe, 391 F.3d at 175. In this regard, the magistrate judge found that the

efforts of Rivas and his attorneys in tracking down Calle were “both extremely modest and

ultimately successful.” Rivas III, 

 at *8. Although Rivas’s post-conviction counsel

were unable initially to find Calle through New York’s Office of Court Administration because he




argued that an attorney’s negligence can only rise to the level necessary to constitute an
“extraordinary circumstance” for tolling purposes if it amounts to constructive abandonment of his
client. Id. at 2567–68 (Alito, J., concurring).

        In Maples, the Court cited Justice Alito’s distinction between attorney negligence and attorney
abandonment with approval and clarified that there is “no reason . . . why the distinction between
attorney negligence and attorney abandonment should not hold in both” the tolling context and the
procedural-default context. 132 S. Ct. at 923 & n.7. Accordingly, we understand the distinction
between attorney negligence and attorney abandonment to be applicable here.

                                                   39
had been suspended from the bar, Rivas’s sister was able to find him within a month after she was

asked to do so. Id. Furthermore, even after Rivas obtained the affidavit from Calle, he allowed an

additional 300 days to elapse between the close of the § 440.10 proceeding and the filing of his

habeas petition, without any apparent impediment standing in the way of his timely filing. We

therefore cannot conclude that the District Court clearly erred in determining that Rivas failed to act

“with reasonable diligence . . . during the time he seeks to have tolled.” Doe, 391 F.3d at 175.

Accordingly, we decline to equitably toll the limitations period.

C.      Actual Innocence

        Having concluded that Rivas’s petition was untimely and that he does not qualify for

equitable tolling, we come at last to the question of actual innocence. Following the Supreme Court’s

decision in Schlup v. Delo, 

 (1995), we have held that a habeas petitioner “may use his

claim of actual innocence as a ‘gateway,’ or a means of excusing his procedural default, that enables

him to obtain review of his constitutional challenges to his conviction.” Doe, 391 F.3d at 161.

However, we have not yet decided whether a gateway claim of actual innocence may also excuse an

untimely filing under AEDPA’s limitation period—a question that has divided our sister courts of

appeal. See Lee v. Lampert, 

, 932 (9th Cir. 2011) (en banc) (noting circuit split). In prior

cases, we have declined to address the question, reasoning that we should only decide whether such

an exception is required in a case in which it could make a difference—that is, a case in which the

petitioner can actually make a credible and compelling showing of actual innocence. See Doe, 

; Whitley v. Senkowski, 

 (2d Cir. 2003); Lucidore v. N.Y. State Div. of Parole, 

 (2d Cir. 2000).

        In this case, we conclude that Rivas has indeed presented a credible and compelling claim of

actual innocence. We therefore proceed to address the gateway question. As explained below, we


                                                    40
hold that a petitioner who satisfies the Supreme Court’s actual-innocence standard may pass through

the Schlup gateway and have his substantive claims heard on the merits, notwithstanding an

otherwise unexcused delay in filing his habeas petition.

        1.       The Schlup Gateway Standard

        As the Supreme Court has repeatedly recognized, “habeas corpus is, at its core, an equitable

remedy.” Schlup, 513 U.S. at 319 (citing cases); see also Gomez v. U.S. Dist. Ct. for the N. Dist. of Cal.,

, 654 (1992) (per curiam); Fay v. Noia, 

, 438 (1963). For this reason, the

Court has long instructed that statutes and rules governing habeas petitions must be applied with an

eye toward “the ends of justice.” Sanders v. United States, 

, 12 (1963) (holding that a district

judge may decline to entertain a successive § 2255 petition “only if he is satisfied that the ends of

justice will not be served by inquiring into the merits” (internal quotation marks omitted)). As the

Court stated in Engle v. Isaac, in “appropriate cases,” the principles of comity and finality that

underlie federal habeas corpus review “must yield to the imperative of correcting a fundamentally

unjust incarceration.” 

, 135 (1982).

        In Murray v. Carrier, the Court limited the availability of the “miscarriage of justice” exception

to “extraordinary case[s], where a constitutional violation has probably resulted in the conviction of

one who is actually innocent.” 

, 496 (1986); see also Schlup, 513 U.S. at 321 (stating that

Carrier “explicitly tied the miscarriage of justice exception to the petitioner’s innocence”). Though

the Court has never expressly held that a petitioner may qualify for habeas relief based solely on a

showing of actual innocence, see Herrera v. Collins, 

, 400–01 (1993),34 it has recognized


        34
          The Court has assumed that “in a capital case a truly persuasive demonstration of ‘actual
innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant
federal habeas relief.” Herrera, 506 U.S. at 417. However, it has never explicitly recognized the
existence of a freestanding actual innocence claim. But see In re Davis, 

, 1 (2009) (Order)

                                                      41
that, in rare cases, an assertion of innocence may allow a petitioner to have his accompanying

constitutional claims heard despite a procedural bar. Schlup, 513 U.S. at 315; Herrera, 506 U.S. at 404.

As the Court has described it, such an assertion is “‘not itself a constitutional claim, but instead a

gateway through which a habeas petitioner must pass to have his otherwise barred constitutional

claim considered on the merits.’” Schlup, 513 U.S. at 315 (quoting Herrera, 506 U.S. at 404).

        Accordingly, a petitioner seeking access to a federal habeas court in the face of a procedural

obstacle must advance both a legitimate constitutional claim and a credible and compelling claim of

actual innocence. It is the combination of the two claims—that the petitioner is likely innocent and

that his conviction was likely the result of nonharmless constitutional error—that permits a habeas

court to review the petition notwithstanding procedural obstacles in order to avoid a miscarriage of

justice. See id. at 316. A claim of actual innocence under Schlup is therefore procedural, not

substantive. Id. at 315. The petitioner raising such a claim does not seek to have his conviction

vacated on grounds of innocence; rather, he seeks to create sufficient doubt about his guilt that the

habeas court will permit him to pursue his accompanying constitutional claims notwithstanding an

otherwise applicable procedural bar. See id. at 316.

        For this reason, the Supreme Court in Schlup observed that a petitioner seeking passage

through the gateway has “less of a burden” than a petitioner advancing a freestanding, substantive

claim of innocence. Id. As the Court explained, in the latter case, “the evidence of innocence would

have . . . to be strong enough to make [the petitioner’s] execution ‘constitutionally intolerable’ even if




(transferring habeas petition to district court for determination of whether petitioner on death row
could present evidence that “clearly establishes [his] innocence”).



                                                    42
his conviction was the product of a fair trial.” Id.35 For the gateway petitioner, in contrast, “the

evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution

would be a miscarriage of justice unless his conviction was the product of a fair trial.” Id. Accordingly,

to present a successful gateway claim of actual innocence a petitioner must present “evidence of

innocence so strong that a court cannot have confidence in the outcome of the trial unless the court

is also satisfied that the trial was free of nonharmless constitutional error.” Id.

        To satisfy the Schlup standard, a claim of actual innocence must be both “credible” and

“compelling.” See House, 547 U.S. at 521, 538. For the claim to be “credible,” it must be supported

with “with new reliable evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at trial.” Schlup, 513 U.S.

at 324; see also House, 547 U.S. at 537. For the claim to be “compelling,” the petitioner must

demonstrate that “more likely than not, in light of the new evidence, no reasonable juror would find

him guilty beyond a reasonable doubt—or to remove the double negative, that more likely than not

any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538.

        This standard, it must be said, is somewhat cryptic. See Schlup, 513 U.S. at 339 (Rehnquist,

C.J., dissenting) (deriding the standard as a “classic mixing of apples and oranges”). The Court has

offered some clarity, however, by contrasting the gateway standard from others more familiar. Thus,

“[t]he petitioner [raising a gateway innocence claim] . . . is required to make a stronger showing than

that needed to establish prejudice. At the same time, the showing of ‘more likely than not’ imposes a



         Though Schlup involved a capital crime, the Supreme Court made clear in Calderon v.
        35

Thompson, that the gateway standard applies to calms of actual innocence of any crime. See 

, 560–66 (1998) (applying Schlup standard to a claim of actual innocence of noncapital rape
conviction).



                                                    43
lower burden of proof than the ‘clear and convincing’ standard required under Sawyer [v. Whitley, 

, 336 (1992), which applies to claims of actual innocence of the death penalty].” Id. at 327

(internal citations omitted).36

        The Court has also stressed that the gateway standard is “by no means equivalent to the

standard of Jackson v. Virginia, 

 (1979), that governs review of claims of insufficient

evidence.” Schlup, 513 U.S. at 330 (parallel citations omitted). Under Jackson, “the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at

319 (emphasis in original). Whereas, “[u]nder Jackson, the use of the word ‘could’ focuses the inquiry

on the power of the trier of fact to reach its conclusion,” and its ability to do so, the use of the word




        36
          The Schlup Court expressly rejected the more exacting Sawyer standard, which requires a
petitioner to show “‘by clear and convincing evidence that, but for a constitutional error, no
reasonable juror would have found the petitioner eligible for the death penalty.’” Schlup, 513 U.S.
326–27 (quoting Sawyer, 505 U.S. at 336).

         It bears noting that, with respect to both second and successive petitions and the availability
of evidentiary hearings, Congress rejected the Schlup standard and reverted to the Sawyer standard
when it enacted § 2244(b)(2)(B) and § 2254(e)(2). See 28 U.S.C. § 2244(b)(2)(B) (“A claim presented
in a second or successive habeas corpus application under section 2254 that was not presented in a
prior application shall be dismissed unless . . . the facts underlying the claim, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence
that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of
the underlying offense.”); id. § 2254(e)(2) (“If the applicant has failed to develop the factual basis of
a claim in State court proceedings, the court shall not hold an evidentiary hearing unless the
applicant shows that — . . . (B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.”).

          The Supreme Court has made clear, however, that the Schlup standard remains in effect for
first federal habeas petitions, like Rivas’s. See House, 547 U.S. at 539 (“Neither [§ 2244(b)(2)(B)(ii) nor
§ 2254(e)(2)] addresses the type of petition at issue here—a first federal habeas petition seeking
consideration of defaulted claims based on a showing of actual innocence.”).

                                                    44
“would” in the Schlup standard “focuses the inquiry on the likely behavior of the trier of fact.” Schlup,

513 U.S. at 330 (emphases added).

        Moreover, the Schlup inquiry differs from Jackson in the mix of evidence that the reviewing

court may consider, as well as its vantage point. A court reviewing the sufficiency of the evidence

supporting a conviction is limited to considering the evidence actually presented at trial, and must

view that evidence in the light most favorable to the prosecution. A court reviewing a gateway claim

of actual innocence is not so constrained:

                Because a Schlup claim involves evidence the trial jury did not have
                before it, the inquiry requires the federal court to assess how reasonable
                jurors would react to the overall, newly supplemented record. If new
                evidence so requires, this may include consideration of the credibility of
                the witnesses to be presented at trial.

House, 547 U.S. at 538–39 (internal citations and quotation marks omitted). The standard therefore

requires reviewing courts to “consider all the evidence, old and new, incriminating and exculpatory,”

and, viewing the record as a whole, to “make a probabilistic determination about what reasonable,

properly instructed jurors would do.” Id. at 538 (internal citations omitted).

        Although the Schlup standard is “demanding and permits review only in the extraordinary

case,” the Court has emphasized that the “standard does not require absolute certainty about the

petitioner’s guilt or innocence.” Id. Indeed, as demonstrated in House, it may be enough for the

petitioner to introduce credible new evidence that thoroughly undermines the evidence supporting

the jury’s verdict. Id. at 553–54.

        In House, the petitioner challenged his conviction for the murder of Carolyn Muncey, an

acquaintance who lived near him in rural Tennessee. As in this case, the evidence against House was

largely circumstantial, but not insignificant. The victim’s daughter testified that, on the night of the

murder, her mother was lured out of the house by a man with a “deep voice,” like House’s. Id. at


                                                   45
523–24. A witness who participated in the search for Muncey’s body stated that he saw House

emerge from an embankment near where Muncey’s body was found, wiping his hands on a rag. Id.

at 524–25. Thereafter, when House was questioned by police, he told them that he had been with his

girlfriend throughout the evening of the murder, but his girlfriend later revealed that House had in

fact left her trailer to go for a walk at about 10:30 or 10:45 in the evening—during the period of time

that the county medical examiner had determined Muncey likely died. Id. at 526–27. According to

the girlfriend, when House returned to the trailer, he was “hot and panting, missing his shirt and his

shoes.” Id. When police interviewed House, they noticed that he had scratches on his arms and legs,

as well as a bruise on his right ring finger. Finally, testing by the Federal Bureau of Investigation

revealed human blood of Muncey’s type on the pants House had been wearing the night of the

murder and semen on Muncey’s nightgown that was consistent with House’s blood type. Id. at

528–29. Despite this and other evidence suggesting that House was in fact guilty, the Supreme Court

held that he had succeeded in making a compelling showing of actual innocence because he had

produced expert testimony that “called into question” the “central forensic proof connecting [him]

to the crime,” namely, the blood and semen analyses, id. at 554, and had produced evidence in the

form of new witness testimony that Muncey’s husband had confessed to killing her. Id. at 548–53.

        Applying the Schlup standard—and guided by Supreme Court’s application of that standard

in House—we conclude that it is more likely than not, in light of the credible new evidence Rivas has

presented in support of his habeas petition, that any reasonable juror would have had a reasonable

doubt about his guilt.




                                                   46
        2.      Rivas’s Claim of Actual Innocence

        “Because the determination as to whether no reasonable juror would find a petitioner guilty

beyond a reasonable doubt is a mixed question of law and fact, we review [a] district court’s ultimate

finding of actual innocence de novo.” Doe, 391 F.3d at 163.

        At bottom, Rivas’s claim of actual innocence is simple, but compelling: Hill died on

Saturday, March 27, 1987, at a time when Rivas had an unchallenged alibi. What makes the claim

“credible,” as Schlup defines that term, is that it is based on new evidence—that is, evidence not

heard by the jury—in the form of the essentially unchallenged testimony of a respected forensic

pathologist, set against the word of a disgraced medical examiner who testified for the District

Attorney while under investigation for potentially criminal misconduct that led, eight months later,

to his resigning his office in part to avoid prosecution by the same office.

         Without doubt, therefore, the centerpiece of Rivas’s actual-innocence claim is the affidavit

and testimony provided by Wecht. Wecht’s curriculum vitae runs nineteen pages. A Fellow and past

president of the American College of Legal Medicine and the American Academy of Forensic

Sciences, at the time he submitted his affidavit, Wecht served as the Allegheny County Coroner and

had appointments as a Clinical Professor at the University of Pittsburgh Schools of Medicine,

Dental Health, and Public Health, and as an Adjunct Professor at the Duquesne University School

of Law. He is the author of numerous books and articles and was the editor of a leading treatise in

the field, Forensic Sciences. He estimates that he has testified as an expert on approximately 1,000

occasions, including criminal and civil matters. Remand Hearing Tr. at 16.37


        37
          We are aware that Wecht has also encountered some controversy over the course of his
career. However, the State never questioned Wecht’s credibility or expertise in the remand hearing
ordered by Rivas III, despite the fact that our previous summary order specifically recommended that
the District Court “examine the likely credibility of the affiants and other witnesses at Rivas’s trial,

                                                   47
        We do not here vouch for Wecht’s credibility and expertise, impressive as his credentials

may be. However, we do take note of the remarkable—and perhaps telling—absence of any serious

challenge to his credibility or expertise by the State at the evidentiary hearing before the magistrate

judge on remand.38 The State did not challenge Wecht as an expert under Rule 702 of the Federal

Rules of Evidence and did not call its own expert (or even Mitchell himself) to offer competing

testimony. Therefore, as a reviewing court, we have before us only Wecht’s essentially unchallenged

testimony, which establishes that it is nearly impossible for Hill to have died on Friday night or at

any time prior to mid-morning on Saturday, March 28, 1987.

        Importantly, the District Court did not reject Wecht’s testimony. Rather, the magistrate

judge found the testimony to be insufficiently persuasive because Wecht was “unable to state with

absolute certainty that [Hill] could not have died late Friday night into the early morning hours of

Saturday, March 2[8], 1987.” Rivas III, 

 at *15 (emphasis added). This is both a

clearly erroneous characterization of Wecht’s testimony as a matter of fact, and an erroneous

application of the Schlup gateway standard as a matter of law. Though Wecht conceded that it was

not impossible for Hill to have died as early as 9:30 a.m. on Saturday, he did not agree that she could



and the relative strength of the State’s case against Rivas in light of any credibility determinations
that the District Court sees fit to make,” Rivas III, 294 F. App’x at 679. There is no basis, therefore,
in the record developed in the District Court, to discount Wecht’s testimony.
        38
          The only challenge the State made to Wecht’s testimony was its unsupported assertion that
his opinion was based only on second-hand information provided to him by Rivas’s lawyers. In fact,
Wecht stated, both in his affidavit and in the evidentiary hearing before the magistrate judge, that his
conclusions were based on an examination of the autopsy file and a review of Mitchell’s trial
testimony.

        Thus, the record is clear that Wecht testified not only based on his own experience and
expertise, but also with full awareness of the factors that led Mitchell to conclude that Hill died on
Friday, March 27. As he stated on cross-examination, “the science does not change because some
other things of a nonscientific nature come into play.” Remand Hearing Tr. at 58.

                                                    48
have died any earlier. He further clarified that he was “allowing for possibilities on a bell-shaped

curve,” meaning it was most likely that she died early Sunday morning and much less likely that she

could have died at any time before 3:30 in the afternoon on Saturday. Remand Hearing Tr. at 64.

Finally, as discussed above, when asked whether it would be impossible for Hill to have died as early

as 2:30 a.m. on Saturday morning, Wecht responded:

                I am always very hesitant to use words like absolute and impossible, in
                the realm of human biology, . . . but I’ll answer with reasonable medical
                probability or reasonable medical certainty, I do not believe that Ms.
                Hill could have been killed as far back as 2:30 a.m. on Saturday
                morning, August 28, that is after midnight on Friday, the 27th into the
                morning hours of Saturday, the 28th, with reasonable medical
                probability.

Id. at 64–65. Wecht can hardly be expected to have stated his opinion with any more certainty.

“Absolute certainty” cannot be the standard by which to evaluate the testimony of a forensic

witness; it is not possible for anyone who was not actually present at the time of death and it is

certainly not required by law. Indeed, in House, the Supreme Court explicitly stated that “the Schlup

standard does not require absolute certainty about the petitioner’s guilt or innocence.” 547 U.S. at 538

(emphasis added).

        The appropriate question for the District Court on remand was not whether Wecht could

conclusively and definitively establish Rivas’s innocence, but whether, in light of Wecht’s testimony

and the other new evidence Rivas produced (including the Lazarski affidavit and the affidavit of the

unnamed neighbor who heard a car speed away from Hill’s apartment on Saturday night), a

reasonable juror considering the entire mix of evidence in the case would more likely vote to acquit

or to convict. Undertaking this inquiry ourselves following a careful review of the entire record in

this case, we conclude that it is more likely than not that a reasonable juror, considering all the

evidence, old and new, would vote to acquit Rivas of the murder.


                                                     49
        We concede that the circumstantial evidence linking Rivas to the crime is not trivial. He was

apparently enamored of Hill and seemed unwilling to accept that their relationship was over. Two

witnesses placed him near Hill’s house at 11:00 p.m. on Friday night. Trial Tr. at 533–34, 936–37.39

He acted strangely when questioned by police and seemed to have no reaction when told that Hill

had died. Id. at 246–47. An apparent “shrine,” which included a photograph of Hill, was found in his

closet. Id. at 270–74, 316. Finally, a witness testified that Rivas uttered words that a jury could

interpret to be incriminatory when, several weeks after Hill’s death, he was heard to drunkenly

mutter to himself, “Valerie, Valerie, I didn’t mean to do it.” Id. at 817.40

        Against this, the nonscientific evidence tending to exonerate Rivas is significant, but likely not

compelling enough to satisfy the Schlup standard. We do not regard the alleged confession of Patsy

Barricella as particularly credible and, inasmuch as it was presented at Rivas’s trial, the jury has

already rejected it. The evidence that Hill was involved in an intimate relationship with a man other

than Rivas around the time of her murder, that she had lodged a complaint against a coworker not

long before her death, and that one of her neighbors had been arrested for burglary and was known

to peer through windows, might suggest that the police failed to pursue other leads in the

investigation, but does not compellingly point to Rivas’s innocence. The evidence, taken together,

raises doubts about Rivas’s guilt, but it does not, in isolation, so undermine the State’s circumstantial

evidence as to satisfy the Schlup standard.




        39
          One of these witnesses, it bears noting, appears to have been the sister of the individual
who had previously been arrested for burglarizing Hill’s apartment and was questioned by police in
their investigation of Hill’s murder. See note 23, ante.
        40
           Despite the fact that the Hill murder was a well known “cold case” in Syracuse for six
years, this witness told nobody but his girlfriend what he had heard, and the girlfriend came forward
only after Rivas was indicted in November 1992. See Trial Tr. 828–29.

                                                    50
        Ultimately, however, it does not matter how much indirect, circumstantial evidence the State

can amass to suggest that Rivas killed Hill on Friday night, if she in fact died on Saturday night—at a

time when Rivas had an alibi that the District Attorney himself characterized as “complete.” Trial

Tr. at 55. Therefore, the question turns almost entirely on the relative credibility of the prosecution’s

expert, Mitchell, and Rivas’s expert, Wecht. In this regard, we stress once more that the State,

despite having the opportunity to challenge Wecht’s testimony at the evidentiary hearing, or to call

its own expert to support Mitchell’s conclusions, failed to raise any serious question about Wecht’s

qualifications or conclusions. We therefore are left to weigh the unchallenged testimony of a

renowned forensic pathologist—who concluded “to a reasonable degree of medical certainty” that

Hill could not have died on Friday—against the testimony of a disgraced and allegedly beholden

medical examiner, who initially told police that Hill died on Saturday evening, later told the grand

jury that it was on the “outside edge of possibility” that she died on Friday evening, and finally

testified, without reference to any degree of medical certainty, that it was “more likely” that she died

on Friday night.

        Although Mitchell pointed to extrinsic factors that support his conclusion that Hill died on

Friday night—primarily that she was not heard from or seen after Friday night, despite having made

plans to visit a friend outside Albany—the Lazarski affidavit and the police report memorializing the

interview with the unnamed neighbor each offer indirect support to Wecht’s conclusion that the

murder most likely occurred late Saturday night. However, as Wecht testified at the remand hearing,

his conclusions are based primarily on science, and “the science does not change because some

other things of a nonscientific nature come into play.” Remand Hearing Tr. at 58.

        Finally, though we do not suggest that Mitchell intentionally lied on the stand or that District

Attorney Fitzpatrick suborned perjury, we think a reasonable juror would discredit Mitchell’s


                                                   51
testimony upon learning that he had been subject to numerous investigations for misconduct and

official malfeasance and was under investigation for potentially criminal misconduct at the very

moment that he was providing testimony in the criminal trial. In short, based on the record before

us, any reasonable juror would almost certainly credit Wecht over Mitchell and would therefore,

more likely than not, harbor a reasonable doubt about Rivas’s guilt.

        To be sure, this is a close case. Indeed, we would not expect a lesser showing of actual

innocence to satisfy the Schlup standard. After all, we cannot be sure that Wecht’s testimony would

stand up against that of another respected pathologist, because the State did not challenge him. And,

even assuming, as we must, that Wecht’s testimony was credible, there remains some troubling

circumstantial evidence pointing to Rivas. But it was not Rivas’s burden to prove his innocence

beyond a reasonable doubt, and we are not called upon in this case to determine once and for all

who murdered Valerie Hill. Rather, the issue before us is solely whether Rivas has, through credible

new evidence, cast sufficient doubt upon his guilt that we “cannot have confidence in the outcome

of [his] trial” unless we can be assured that “the trial was free of nonharmless constitutional error.”

Schlup, 513 U.S. at 315.

        We conclude that he has, largely because the record before us compares favorably to that

presented in House. Like House, Rivas faces considerable circumstantial evidence suggesting he had

an opportunity, and perhaps a motive, to commit the murder with which he was charged. But, again

like House, he has produced highly persuasive—and, in Rivas’s case, largely unchallenged— expert

testimony, which casts considerable doubt on the “central forensic proof” connecting him to the

crime. Both men also produced evidence—concededly weaker in Rivas’s case—suggesting that




                                                   52
another man may have been the killer.41 On the whole, comparing the two cases, we believe Rivas’s

showing is at least as strong as that which gained House entry through the Schlup gateway.

        Accordingly, following the guidance of the Supreme Court, we conclude that “although the

issue is close . . . this is the rare case where—had the jury heard all the conflicting testimony—it is

more likely than not that no reasonable juror viewing the record as a whole would lack reasonable

doubt.” House, 547 U.S. at 554.

        3.      A Credible and Compelling Claim of Actual Innocence Provides Equitable
                Relief from AEDPA’s Limitations Period

        Although the Supreme Court has established that a credible and compelling claim of actual

innocence may provide a “gateway” around other species of procedural default, it has not yet

considered whether such a claim may excuse a filing that is untimely under § 2244(d)(1). As we

explained in Doe v. Menefee, the “doctrine of actual innocence was developed to mitigate the

harshness of the judicial limitations placed on a petitioner’s ability to file successive or otherwise

procedurally defaulted habeas petitions in the federal courts.” 391 F.3d at 160 (emphasis added).

These “judicial limitations” were later codified in AEDPA, as was a variation of the actual innocence

exception. See 28 U.S.C. §§ 2254(b)(2), 2244(b)(2)(B). However, because there was no statute of

limitations governing the filing of habeas-corpus petitions prior to AEDPA, there was likewise no

occasion to apply the actual innocence standard to excuse untimely filed petitions. Accordingly, the

question presented in this case is whether the judicially created Schlup gateway standard applies in



        41
           Although we do not find the evidence suggesting that Patsy Baricella may have been Hill’s
killer to be especially persuasive, we note that the testimony in House pointing to another killer was
specifically found to be not credible by the District Court presiding over House’s evidentiary
hearing, which noted that it was “not impressed with the allegations of individuals who wait over ten
years to come forward.” See House, 547 U.S. at 557–58 (Roberts, C.J., concurring in the judgment in
part and dissenting in part).

                                                     53
this slightly different context to provide an equitable exception to AEDPA’s legislatively imposed

limitations period, 28 U.S.C. § 2244(d)(1).42

        As stated at the outset, § 2244(d)(1) provides that “[a] 1-year period of limitation shall apply

to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a

State court.” 28 U.S.C. § 2244(d)(1); see note 1, ante. We have suggested in passing that “[a] claim of

actual innocence could provide a basis for excusing [a] late filing.” Friedman v. Rehal, 

, 152

(2d Cir. 2010) (emphasis added). However, we have thus far avoided deciding whether it does, opting

instead to wait for a case in which such a determination actually matters—that is, a case, like this

one, in which the petitioner has satisfied the Schlup burden. See Doe v. Menefee, 

 (2d Cir.

2004); Whitley v. Senkowski, 

 (2d Cir. 2003); Lucidore v. N.Y. State Div. of Parole, 

 (2d Cir. 2000).

        A number of our sister circuits have examined this issue and reached differing conclusions.

Compare Lee v. Lampert, 

, 934 (9th Cir. 2011) (en banc) (“Lee II”) (holding that a



        42
            Though some courts have framed the question as whether AEDPA allows for equitable
tolling of the limitations period in cases where the petitioner has advanced a compelling claim of
actual innocence, we believe it is more accurate to describe the issue as whether an equitable exception
to § 2244(d)(1) exists in such cases. See Lee v. Lampert, 

, 932 n.5 (9th Cir. 2011) (en banc)
(“Lee II”) (“The more accurate characterization is ‘equitable exception,’ because equitable tolling
involves different theoretical underpinnings.”). Equitable tolling, after all, requires a showing that
“some extraordinary circumstance stood in [the petitioner’s] way and prevented timely filing.”
Holland v. Florida, 

, 2662 (2010) (internal quotation marks omitted). Although it may
rightly be considered an extraordinary circumstance, it cannot be said that a prisoner’s actual
innocence prevents him from timely filing. Furthermore, a petitioner seeking to benefit from equitable
tolling must show that he “acted with reasonable diligence throughout the period he seeks to toll.”
Doe, 391 F.3d at 159. Such a due-diligence requirement is incompatible with a workable actual
innocence exception. Inasmuch as the exception was designed to provide a gateway around
procedural defaults that would otherwise require a showing of cause and prejudice, it is evident that
due diligence is not necessary to support a gateway claim of actual innocence. See, e.g., Perkins v.
McQuiggin, 

, 672–76 (6th Cir. 2012); Lee II, 653 F.3d at 934; San Martin v. McNeil, 

, 1267–68 (11th Cir. 2011); Lopez v. Trani, 

, 1230–31 (10th Cir. 2010).

                                                    54
compelling claim of actual innocence constitutes an equitable exception to AEDPA’s limitations

period); San Martin v. McNeil, 

, 1267–68 (11th Cir. 2011) (same); Lopez v. Trani, 

, 1230–31 (10th Cir. 2010) (same); Souter v. Jones, 

, 602 (6th Cir. 2006) (same);

with Escamilla v. Jungwirth, 

, 871–72 (7th Cir. 2005) (holding that no such exception

exists); Cousin v. Lensing, 

, 849 (5th Cir. 2002) (same); David v. Hall, 

, 347

(1st Cir. 2003) (suggesting the same, in dicta).43 We find more persuasive the reasoning expressed in

the cases holding that an equitable exception to AEDPA’s limitations period exists for compelling

claims of actual innocence. We therefore join the Sixth, Ninth, Tenth, and Eleventh Circuits in

concluding that the Schlup actual-innocence gateway extends to claims otherwise barred by §

2244(d)(1).

        In reaching this conclusion, we find it relevant that no court has settled on the contrary

conclusion following the Supreme Court’s decision on a related question in Holland v. Florida, 130 S.

Ct. 2549 (2010).44 In Holland, the Court concluded that AEDPA’s limitations period “is subject to

equitable tolling in appropriate cases.” Id. at 2560. The Court reasoned that, because § 2244(d) “is

not jurisdictional[,] [i]t does not set forth an inflexible rule requiring dismissal whenever its clock has


        43
          In Riva v. Ficco, 

 (1st Cir. 2010), the First Circuit appeared to retreat from the
position it espoused in David v. Hall, suggesting that the earlier case merely “express[ed] skepticism”
about whether a credible actual-innocence claim may excuse an untimely filing, and remanded the
question for further consideration in the district court. See id. at 44 n.4.

        The Eighth Circuit has also considered this question, adopting a kind of middle ground
whereby an actual-innocence claim may be treated as an “extraordinary circumstance” bearing on the
general issue of equitable tolling. See Flanders v. Graves, 

, 976–78 (8th Cir. 2002).

         In Lee v. Lampert, 

 (9th Cir. 2010) (“Lee I”), a panel of the Ninth Circuit
        44

concluded that, notwithstanding the Supreme Court’s guidance in Holland (which was decided a
mere three weeks before Lee I was filed), a claim of actual innocence does not provide an exception
to AEDPA’s limitations period. However, the panel’s decision was subsequently reversed by the en
banc Ninth Circuit. See Lee II, 653 F.3d at 932.

                                                    55
run.” Id. (internal citation and quotation marks omitted). Rather, in recognition of the fact that

“equitable principles have traditionally governed the substantive law of habeas corpus,” the

limitations period is “subject to a rebuttable presumption in favor of equitable tolling,” id. (internal

quotation marks omitted)—a presumption that cannot be rebutted “absent the clearest command”

of Congress. Id. at 2560–61. Because the language of § 2244(d) reads like a “run-of-the-mill” statute

of limitations, and is not “unusually emphatic”—and because equitable tolling is not inconsistent

with AEDPA’s basic purposes—the Supreme Court concluded that Congress had not rebutted the

presumption that equitable tolling would continue to apply after AEDPA’s enactment. Id. at

2561–62.

        Holland demonstrates that traditional principles of equity continue to have a place in the

review of habeas petitions following the enactment of AEDPA. The only question for us, therefore,

is whether there is a meaningful difference between equitable tolling, as described in Holland, and the

equitable exception from which Rivas seeks to benefit in this case. We conclude that there is not.

        The reasoning of Holland is not limited to equitable tolling. Rather, the Court emphasized

more generally that “we will ‘not construe a statute to displace courts’ traditional equitable authority

absent the clearest command.’” Id. at 2560 (emphasis added) (quoting Miller v. French, 

,

340 (2000) (other internal quotation marks omitted)). The authority to carve out limited exceptions

to nonjurisdictional statutes of limitations where compelled by the interests of justice has long been

recognized to be within the traditional equitable power of the courts. See, e.g., Burnett v. New York

Cent. R. Co., 

, 428 (1965) (observing that the “policy of repose” inherent in statutes of

limitations “is frequently outweighed . . . where the interests of justice require vindication of the

plaintiff’s rights”).




                                                     56
        The actual-innocence gateway is also firmly grounded in the courts’ traditional equitable

authority—specifically “in the ‘equitable discretion’ of habeas courts to see that federal

constitutional errors do not result in the incarceration of innocent persons.” Herrera, 506 U.S. at 404.

As the Supreme Court has observed, “concern about the injustice that results from the conviction of

an innocent person has long been at the core of our criminal justice system,” reflecting “a

fundamental value determination of our society that it is far worse to convict an innocent man than

to let a guilty man go free.” Schlup, 513 U.S. at 325. Motivated by this concern, the Court recognized

over a quarter-century ago an equitable exception to procedural rules intended to limit habeas relief

in “extraordinary case[s], where a constitutional violation has probably resulted in the conviction of

one who is actually innocent.” Murray v. Carrier, 

, 496 (1986).

        This fundamental principle was well entrenched by the time Congress enacted AEDPA in

1996. See, e.g., Schlup, 513 U.S. at 319–23; Sawyer, 505 U.S. at 339; Kuhlmann v. Wilson, 

,

442 (1986); Smith v. Murray, 

, 537 (1986); Carrier, 477 U.S. at 496. To be sure, actual

innocence had not been recognized as an exception to a federal statute of limitations prior to

AEDPA, because no such limitation period existed before the enactment of § 2244(d) as part of

AEDPA. However, many states enforced their own statutes of limitations in their collateral review

procedures during this time and the Supreme Court had held that a procedural default based on a

failure to timely file for post-conviction relief in state court could be excused if the “failure to

consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 

, 750 (1991) (internal quotation marks omitted). It follows, therefore, that the equitable authority

of the courts to excuse an untimely filing where a petitioner makes a compelling showing of actual

innocence was well established before Congress enacted AEDPA. We will relinquish that authority

only if Congress has clearly commanded it.


                                                    57
        We are not convinced that any such clear command can be derived from AEDPA’s statutory

text. It is true that AEDPA expressly refers to actual innocence in its successive-petition provision,

which allows a petitioner to proceed with a successive petition only if he can show “by clear and

convincing evidence that, but for constitutional error, no reasonable factfinder would have found

the applicant guilty of the underlying offense.” See 28 U.S.C. §§ 2244(b)(2)(B)(ii).45 This standard, of

course, is more exacting than the Supreme Court’s Schlup gateway standard, which allows a

petitioner’s first habeas petition to be adjudicated on the merits if it is “more likely than not” that no

reasonable juror would find proof of guilt beyond a reasonable doubt. However, the fact that

Congress adopted a more stringent standard to govern successive petitions does not mean that it

clearly intended to prevent application of the preexisting Schlup standard to untimely first petitions.

As Judge Lewis Kaplan has observed, “[i]t is difficult to imagine that a Congress that explicitly

allowed maintenance of a second or successive petition where the applicant makes out a strong claim



        45
             In pertinent part, § 2244(b)(2) provides that:

                   A claim presented in a second or successive habeas corpus application
                   under section 2254 that was not presented in a prior application shall be
                   dismissed unless . . . (B) . . . (ii) the facts underlying the claim, if proven
                   and viewed in light of the evidence as a whole, would be sufficient to
                   establish by clear and convincing evidence that, but for constitutional
                   error, no reasonable factfinder would have found the applicant guilty of
                   the underlying offense.

       A similar exception exists to AEDPA’s evidentiary-hearing provision, 28 U.S.C. § 2254(e)(2),
which provides as follows:

                   If the applicant has failed to develop the factual basis of a claim in State
                   court proceedings, the court shall not hold an evidentiary hearing on the
                   claim unless the applicant shows that . . . (B) the facts underlying the
                   claim would be sufficient to establish by clear and convincing evidence
                   that but for constitutional error, no reasonable factfinder would have
                   found the applicant guilty of the underlying offense.

                                                         58
of actual innocence implicitly intended to foreclose as untimely an initial petition brought by the

individual with a comparable claim.” Garcia v. Portuondo, 

, 461 (S.D.N.Y. 2004); cf.

Lonchar v. Thomas, 

, 324 (1996) (“Dismissal of a first federal habeas petition is a

particularly serious matter.” (emphasis in the original)). Indeed, in House, the Supreme Court

explicitly held that the “clear and convincing evidence” standard of review found in

§ 2244(e)(2)(B)(ii) and in § 2254(e)(2)—which sets the threshold for obtaining an evidentiary hearing

on a claim that was not developed in state court—is inapplicable to “a first federal habeas petition

seeking consideration of defaulted claims based on a showing of actual innocence.” House, 547 U.S.

at 539. We therefore conclude that §§ 2244(e)(2)(B)(ii) and 2254(e)(20 represent a Congressional

intent to increase the burden of proving actual innocence in successive petitions, but not to eliminate

or disturb the preexisting Schlup standard for first petitions. See Lee II, 653 F.3d at 937; Souter, 395

F.3d at 598–99.

        Those of our sister circuits that have concluded that § 2244(d) does not admit of any actual-

innocence exception have pointed to the fact that, in subsections (B), (C), and (D) of § 2254(d)(1),

“the statute establishes three ‘very specific exceptions,’” Lee I, 610 F.3d at 1127, rev’d Lee II, 

 (quoting David, 318 F.3d at 343), none of which mentions actual innocence. Therefore, these

courts have concluded, the doctrine of expressio unius est exclusio alterius (express mention of one thing

excludes all others) dictates that Congress could not have intended for courts to apply an additional

actual-innocence exception to the limitations period. In our view, these decisions rest on an error of

statutory construction, which the Supreme Court itself identified in Holland. There, the Court

explained that the events described in §§ 2244(d)(1)(B)–2244(d)(1)(D) are not “exceptions to

[AEDPA’s] basic time limits,” but rather, alternative “events that trigger its running.” 130 S. Ct. at




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2561 (first emphasis added). In other words, there is no express mention, supportive or dismissive,

of exceptions to the limitations period in AEDPA’s statutory text.

        Accordingly, absent a clear congressional command to the contrary, we conclude that the

preexisting equitable authority of federal courts to hear barred claims if they are accompanied by a

compelling showing of actual innocence survives the enactment of AEDPA and applies to claims

otherwise barred by its statute of limitations, § 2244(d)(1).

        Moreover, we conclude that the recognition of an actual-innocence exception to § 2244(d) is

consistent with AEDPA’s basic purposes. As the Supreme Court explained in Holland,

                We recognize that AEDPA seeks to eliminate delays in the federal
                habeas review process. But AEDPA seeks to do so without
                undermining basic habeas corpus principles and while seeking to
                harmonize the new statute with prior law, under which a petition’s
                timeliness was always determined under equitable principles. When
                Congress codified new rules governing this previously judicially
                managed area of law, it did so without losing sight of the fact that the
                ‘writ of habeas corpus plays a vital role in protecting constitutional
                rights.’ It did not seek to end every possible delay at all costs.

 130 S. Ct. at 2562 (quoting Slack v. McDaniel, 

, 483 (2000)) (internal citations omitted);

 cf. Calderon v. Thompson, 

, 558 (1998) (“The miscarriage of justice standard is altogether

 consistent . . . with AEDPA’s central concern that the merits of concluded criminal proceedings

 not be revisited in the absence of a strong showing of actual innocence.”).

         Finally, we agree with the Court of Appeals for the Third Circuit that, “[w]ere no other

 avenue of judicial review available for a party who claims that s/he is factually or legally innocent

 . . . we would be faced with a thorny constitutional issue.” In re Dorsainvil, 

, 248 (3d Cir.

 1997) (internal quotation marks omitted). As we observed in Triestman v. United States, a case

 addressing a federal prisoner’s collateral appeal, “serious Eighth Amendment and due process

 questions would arise with respect to [§ 2244(d) of] the AEDPA” if it were read to deny collateral


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review to a prisoner who is actually innocent. 

, 378–79 (2d Cir. 1997); see also In re

Davis, 

, 1 (2009) (per curiam) (Stevens, J., concurring) (citing Triestman’s discussion of

“serious constitutional concerns that would arise if AEDPA were interpreted to bar judicial review

of certain actual innocence claims.”); Souter v. Jones, 

, 601 (6th Cir. 2005) (concluding

that “constitutional concerns counsel in favor of upholding equitable tolling based on a credible

claim of actual innocence”); Miller v. Marr, 

, 978 (10th Cir. 1998) (noting that a claim of

actual innocence may be among the “circumstances where the limitation period at least raises

serious constitutional question and possibly renders the habeas remedy inadequate and

ineffective”). The Supreme Court’s gateway standard allows courts to examine compelling claims of

actual innocence while remaining within AEDPA’s framework, without necessitating the more

delicate task of determining whether § 2244(d) itself violates the Constitution when applied to deny

review to a first-time petitioner raising a credible and compelling claim of actual innocence along

with claims of constitutional error.

        For the foregoing reasons, we join the growing chorus of appellate courts to recognize, in

Holland’s wake, an equitable exception to AEDPA’s limitation period in extraordinary cases like this

one, in which the petitioner has made a compelling showing of his actual innocence under the

Schlup gateway standard.

                                             CONCLUSION

        To summarize, we conclude that:

                (1) Rivas’s petition was not timely under 28 U.S.C. § 2244(d)(1); and

                (2) that he has not shown the extraordinary circumstances and reasonable diligence

required to qualify for equitable tolling.




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         However,

                 (3) because Rivas has produced credible and compelling—and essentially

 unchallenged—expert testimony which calls into serious doubt the central forensic evidence linking

 him to the crime and persuasively suggests that the victim died at a time when Rivas had an

 unchallenged alibi, we conclude that this is the exceptional case where a reasonable juror, apprised

 of all the evidence in the record, would more likely than not vote to acquit.

         Having made such a showing,

                 (4) Rivas is entitled to an equitable exception to AEDPA’s limitation period.

         Accordingly, the judgment of the District Court dismissing Rivas’s claims as time-barred is

 REVERSED.

         We emphasize that we have not determined that Rivas is in fact innocent of Hill’s murder.

 Rather, we have found that he has produced sufficient evidence of his innocence to undermine

 confidence in the justice of his continued incarceration unless we can also be satisfied that his trial

 was free of nonharmless constitutional error. See Schlup, 513 U.S. at 315. We therefore REMAND

 the cause to the District Court for full consideration of Rivas’s underlying constitutional claims,

 which have heretofore not been addressed. See § 2254 Petition at i–ii.46 Inasmuch as Rivas has not



        46
          The Supreme Court has recently held that, “if a claim has been adjudicated on the merits
by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the
record that was before the state court.” Cullen v. Pinholster, 

, 1400 (2011). We leave it
to the District Court to determine, in the first instance, whether any of Rivas’s substantive claims
were not decided on the merits by the state court and, if not, whether an evidentiary hearing is
required.

         In view of the very capable representation provided to Rivas in his first remand hearing, and
during his § 440.10 proceedings in state court, we encourage the District Court to consider
reappointing Kimberly Zimmer or Sally Wasserman, or both, to assist Rivas going forward. We note
as well the important role attorney Sidney Manes has played in this case, and trust that whoever
represents Rivas will benefit from his continuing involvement.
                                                    62
advanced a freestanding substantive claim of actual innocence, the issue of his actual innocence or

guilt is no longer relevant to the adjudication of his habeas petition, except insofar as it relates to

prejudice.

        Should the District Court determine that this matter must yet again be referred to a

magistrate judge, we instruct that it not be reassigned to Magistrate Judge Peebles. We cast no

aspersions on the performance of Magistrate Judge Peebles in this case and have no reason to

doubt his impartiality. (Indeed, Rivas has not sought to have him disqualified.) However, as noted

above, see note 24, ante, Magistrate Judge Peebles previously disclosed that he had served with

Fitzpatrick in the Onondaga County District Attorney’s Office and had asked Fitzpatrick to be the

godfather of his daughter. Rivas alleges that Fitzpatrick deliberately withheld exculpatory

information from him and suggests improper collusion between Fitzpatrick and the medical

examiner, Mitchell. Though we do not comment on, let alone endorse, the merits of these claims,

in order to avoid any appearance of impropriety we think the interests of justice require that this

matter be adjudicated by judges without close personal and professional ties to the prosecutor. We

therefore direct that, if the assistance of a magistrate judge is indeed required, the matter should be

referred to a magistrate judge who does not have a personal or professional relationship with

Fitzpatrick or the Office of the District Attorney of Onondaga County.

        Finally, we direct that jurisdiction be returned to this Court upon a letter request from any

party following a decision on the merits of Rivas’s constitutional claims. Upon such a restoration of

jurisdiction, the matter is to be referred to this panel.

        Hector Rivas has been incarcerated for the murder of Valerie Hill for nearly twenty years.

Though we express no view on the merits of his substantive constitutional claims, in light of our

holding that we cannot have confidence in Rivas’s continued incarceration unless we are assured


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that he was convicted after a fair trial, we urge the District Court to take whatever steps needed, in

the exercise of its discretion, to facilitate a full, fair, and speedy adjudication of the merits of his

petition.




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