[PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 10-13595                 FEB 29, 2012
                       ________________________            JOHN LEY
                                                            CLERK
                 D.C. Docket No. 3:07-cv-00347-RV-EMT



ROGER ALLEN ROZZELLE,

                                                         Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                        Respondent-Appellee.

                      ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                           (February 29, 2012)



Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:

      Roger Allen Rozzelle appeals the district court’s denial of his untimely 28

U.S.C. § 2254 petition challenging his Florida second-degree murder conviction.

After review and oral argument, we affirm.

                                I. BACKGROUND

      An information charged Petitioner Rozzelle with one count of second-

degree murder, in violation of Florida Statutes § 782.04(2). This appeal centers

around the “depraved mind” mens rea in § 782.04(2), which defines second-degree

murder as “[t]he unlawful killing of a human being, when perpetrated by any act

imminently dangerous to another and evincing a depraved mind regardless of

human life, although without any premeditated design to effect the death of any

particular individual.” Fla. Stat. § 782.04(2). In a 1999 trial, a jury convicted

Rozzelle of second-degree murder. We review the abundant trial evidence

establishing that Rozzelle brutally beat and killed the victim, Greg Leier.

A. 1999 Trial and Conviction

      On July 17, 1998, Petitioner Rozzelle and his girlfriend, Andrea Barnes,

checked into room 225 of a motel in Fort Walton Beach, Florida. At the motel,

they met the victim, Greg Leier, who was staying next door in room 226. Leier

had arrived several days earlier and had lent his car and credit cards to Tracey

                                       2
Feagin, who was staying at a nearby motel with her boyfriend, Corey Cox.

       At 5:00 p.m., Petitioner Rozzelle went to a bar to meet his brother, Anthony

Rozzelle. Barnes stayed behind at the motel. Petitioner’s brother Anthony

testified that Petitioner stayed with him at the bar until 6:00 p.m., when Petitioner

left to check on Barnes. Around 6:00 p.m., Petitioner Rozzelle returned to the

motel, where he saw Leier and Barnes in what Petitioner believed to be a sexual

encounter.1 Petitioner claimed that he “[k]nocked them out.”

       Petitioner Rozzelle returned to the bar and told his brother Anthony that

Petitioner had “caught” Barnes with Leier, “cold-cocked” both of them,

“[k]nocked them out,” and dragged Barnes to his room and locked the door.

Anthony testified that Petitioner was “[n]ot excited” when he described these

events. The brothers stayed at the bar until about 9:00 p.m. Anthony drove

Petitioner part of the way back to the motel, then “let him have his car and go on

his way.” Anthony told Petitioner to go back to the motel and go to sleep and

“don’t get in trouble and don’t go to jail.”

       Around 9:00 p.m., Rozzelle returned to the motel and observed Leier and

Barnes standing together on the motel balcony. Rozzelle then beat Leier and



       1
        The record does not clearly show where Leier and Barnes were when Rozzelle first saw
them together after he returned to the motel around 6:00 p.m.

                                           3
Barnes again. Leier died from his injuries that night.

      That same evening, witnesses Adley Boudreaux and Dawn Cortie were

staying in room 221. Both Boudreaux and Cortie testified that around 8:00 or 8:30

p.m., they were at the motel pool and saw Petitioner Rozzelle drive up, get out of

his car quickly, run up the stairs, and beat on the door to room 226, demanding to

be let in. At some point, Boudreaux left the pool and returned to room 221. On

his way, he saw Petitioner Rozzelle enter room 226. Then Boudreaux heard a

female voice “hollering, something about, stop, stop, you know. Don’t do that.

Leave him alone.” Boudreaux went into his room.

      Motel employee Harish Chauhan testified that the occupant of room 226

phoned the motel front desk asking for security. Minutes later, Chauhan left the

motel office and observed Leier, whose face was covered with blood, walking

down the stairs. Leier asked Chauhan to call the police. Chauhan returned to the

motel office and asked another motel employee to call the police.

      At 9:26 p.m., police officer John Burritt responded to the call of battery-

already-occurred. He arrived at the motel at 9:28 p.m. As he stepped out of the

patrol car, Officer Burritt heard a voice say, “I’m over here.” The victim Leier

approached Officer Burritt from the shadows of the ground floor of the motel.

Burritt described Leier as having suffered a brutal beating. Leier was “staggering

                                       4
and hunched over,” had “blood pouring out of his mouth” and his head “almost

looked twice the size of a normal human being” due to “massive swelling.”

Burritt testified, “I was shocked because I’d never seen anybody beaten so badly

in my life.” Burritt explained that “[y]ou could tell he was in severe pain and he

was having difficulty breathing and having difficulty talking.” Leier told Officer

Burritt that the person who beat him was upstairs and brought Burritt to room 225.

Leier said, “he’s in there.” Officer Burritt sent Leier to room 226 and knocked on

the door to room 225. Petitioner Rozzelle answered. Officer Burritt saw Barnes

in the room, and she was bleeding.

      Officer Mary Blythe Williams arrived at the motel shortly after Officer

Burritt. Officer Williams testified that Barnes “had blood all over her face, around

her nose.” According to Officer Williams, Barnes’s “teeth had been knocked out

to just below the gumline” so that “[t]here was just a little tiny bit of white

showing up underneath her gumline.”

      Officer Burritt arrested Petitioner Rozzelle at the motel. Burritt testified

that as he and Rozzelle walked past Leier’s room, Rozzelle looked in and stated,

“that’s right, you motherfucker, I kicked your ass, I caught you fucking my old

lady, I kicked your ass.” Officer Williams also heard Rozzelle make this

statement. Officer Burritt put Rozzelle in the back of Burritt’s patrol car and

                                        5
transported Rozzelle to the police station. Officer Burritt testified that, during the

trip, Rozzelle stated, “I caught that guy fucking my old lady and I beat the hell out

of him. I’m from the old school and he had it coming.”

      At the police station, Petitioner Rozzelle made a taped statement that was

introduced at trial. In the statement, Rozzelle said, “I love this woman,” and he

“whupped [Leier’s] ass” after seeing Leier and Barnes together after returning

from the bar the second time and “didn’t have no second thoughts about it.”

Rozzelle continued:

      You’re lucky this [foot] wouldn’t fit up his ass or it would have been
      there, too. That’s all I can say. The guy got — he deserved an ass
      whupping, and I put one on him and I don’t feel sorry about it. The only
      thing that I didn’t do to that motherfucker is throw him off the balcony,
      and if I had probably thought about it, I would have done that, too.

In his taped statement, Rozzelle stated that he had used only his fists to beat Leier.

Rozzelle struck Leier with “[a] couple of good left hooks . . . probably three or

four . . . [and a] couple of right crosses, too.”

      Rozzelle also indicated that, during or shortly after he beat Leier, Barnes

went into her room and locked the door, and Rozzelle had to go downstairs to the

motel office to get another key. The police “were there pretty quick,” about “two

or three minutes” after Rozzelle went to the motel office.

       Emergency Medical Technician (“EMT”) Brian Hughes treated the victim

                                         6
Leier at the motel. Hughes testified that Leier stated that he was hit with a fist and

indicated that he was not hit with any other objects. Hughes testified that Leier

lost consciousness at the motel.

      Around 10:00 p.m., Leier arrived at the hospital. Dr. Carl Glidden, who

treated Leier, testified that Leier was unconscious and neurologically unresponsive

upon Leier’s arrival at the emergency room. Dr. Glidden explained that Leier’s

brain “was more or less like jello at that time, no form or function to it.” Dr.

Glidden opined that Leier’s injuries “could be consistent” with a beating from a

person’s fists.

      Dr. Bruce Witkind, a neurosurgeon, testified that Leier was brain dead when

Dr. Witkind examined Leier at the hospital. According to Dr. Witkind, a CT scan

showed massive bleeding on the left side of Leier’s brain and under his skull, and

these injuries were consistent with a beating from a man’s fists.

      Dr. Michael Berkland, the Associate Medical Examiner, performed Leier’s

autopsy. Dr. Berkland testified that Leier’s injuries included bruises around the

eyes, face and mouth, and on the scalp, chest, both arms and back. Leier’s internal

injuries included deep bruises extending to the muscle tissue. Leier’s blood

alcohol level was approximately 0.40. Dr. Berkland stated that Leier’s injuries

were consistent with a beating from a man’s fists but acknowledged that some of

                                        7
Leier’s injuries could have been caused by something else, for example, falling

against a hard surface.

      At trial, Petitioner Rozzelle’s defense was that, several minutes after he beat

Leier the second time, Corey Cox, who had visited the motel with Feagin on a

different day but did not know Leier, entered the motel room and administered the

final and fatal blows to Leier. Defense counsel argued to the jury that there was a

reasonable doubt as to whether Rozzelle was the person responsible for Leier’s

death. In his closing argument, defense counsel noted that, after Leier was beaten,

Rozzelle’s knuckles were uninjured except for one small scratch and police found

no blood on the shoes and shirt Rozzelle was wearing. Defense counsel also

argued that Leier’s statement, that Rozzelle beat him, was unreliable because Leier

was extremely intoxicated and his brain was injured by the beating. Defense

counsel attributed Rozzelle’s incriminating statements after the beating to

Rozzelle’s anger. Rozzelle did not testify at trial.

      The prosecution argued to the jury that Rozzelle administered the fatal

beating and that Rozzelle should be convicted of second-degree murder and not

manslaughter. The prosecution did not refer to heat of passion or excusable

homicide in its closing argument.

      At the close of the prosecution’s case, Rozzelle’s counsel moved for a

                                        8
judgment of acquittal on the ground that the State had not shown a prima facie

case that Rozzelle’s acts actually caused Leier’s death and that the State had

shown only a battery.2 The Florida trial court denied Rozzelle’s motion.

      The Florida trial court instructed the jury not only about second-degree

murder, but also about the lesser included crime of manslaughter and about

“excusable” homicide. There were no objections to the following instructions.

      As to second-degree murder, the Florida trial court instructed the jury that

the State must prove these three elements beyond a reasonable doubt in order for

the jury to convict Rozzelle of second-degree murder: (1) “Greg Leier is dead”; (2)

“the death was caused by the criminal act of Roger Allen Rozzelle”; and (3) “there

was an unlawful killing of Greg Leier by an act imminently dangerous to another

and demonstrating a depraved mind without regard to human life.” See Fla. Stat.

§ 782.04(2).

      The Florida trial court then instructed that if second-degree murder was not

proved, the jury would decide if Rozzelle was guilty of the lesser included crime

      2
        Rozzelle’s counsel’s argument on Rozzelle’s motion for a judgment of acquittal was:
      Your Honor, at this time the defendant would make a motion for directed verdict of
      acquittal. I would state that the state has failed to prove a prima faci[e] case against
      the defendant. At best they’ve shown that the defendant has committed battery, but
      they have not shown that he committed the acts that actually resulted in Mr. Leier’s
      death. For that reason, Your Honor, we would ask that the court direct a verdict of
      not guilty.


                                           9
of manslaughter. In this event, the court instructed that the State must prove these

two elements in order for the jury to convict Rozzelle of manslaughter: (1) “Greg

Leier is dead”; and (2) “Roger Rozzelle intentionally caused the death of Greg

Leier, or Roger Allen Rozzelle intentionally procured the death of Greg Leier, or

. . . the death of Greg Leier was caused by the culpable negligence of Roger Allen

Rozzelle.” See Fla. Stat. § 782.07(1).3

       As to “excusable” homicide, the Florida trial court instructed that “[t]he

killing of a human being is excusable . . . . [w]hen the killing occurs by accident

and misfortune in the heat of passion upon any sudden and sufficient

provocation.” See Fla. Stat. § 782.03.4

       The jury convicted Rozzelle of second-degree murder. The Florida trial

court imposed a sentence of life imprisonment.5

B. Direct Appeal

       3
        Florida Statutes § 782.07(1) provides that “[t]he killing of a human being by the act,
procurement, or culpable negligence of another, without lawful justification . . . and in cases in
which such killing shall not be excusable homicide or murder . . . is manslaughter.”
       4
         Florida Statutes § 782.03 provides:
       Homicide is excusable when committed by accident and misfortune in doing any
       lawful act by lawful means with usual ordinary caution, and without any unlawful
       intent, or by accident and misfortune in the heat of passion, upon any sudden and
       sufficient provocation, or upon a sudden combat, without any dangerous weapon
       being used and not done in a cruel or unusual manner.
       5
         Rozzelle had prior Alabama convictions for burglary, sexual assault and sale of
controlled substances.

                                              10
      On direct appeal, Petitioner Rozzelle claimed that the evidence was

insufficient to convict him of second-degree murder. In particular, Rozzelle

argued that the evidence showed that he acted in the heat of passion and therefore

he lacked the “depraved mind” intent required for second-degree murder.

Rozzelle argued that although the jury was instructed on “excusable” homicide

based on heat of passion, “[t]hat instruction goes toward passion which completely

negates the killing, making it lawful.” Rozzelle argued that the issue on appeal

was “a somewhat lesser form of ‘heat of passion’ — one which negates the

depraved mind element of second degree [sic], reducing the offense to

manslaughter.”

      The State responded that Rozzelle waived this manslaughter defense

because his trial counsel did not specifically raise the issue of heat of passion in

Rozzelle’s motion for judgment of acquittal. The State explained that Rozzelle’s

“argument on appeal, that the evidence showed as a matter of law that the killing

was heat-of-passion manslaughter, was not even suggested by counsel below, who

argued only [in Rozzelle’s motion for judgment of acquittal] that the State failed to

prove a prima facie case.” In addition, the State argued that there was ample

evidence at trial to show that Rozzelle killed Leier “by an act imminently

dangerous and evincing a depraved mind.”

                                        11
        On December 15, 2000, Florida’s First District Court of Appeal affirmed

Rozzelle’s second-degree murder conviction and life sentence without opinion.

Rozzelle v. State, 

 (Fla. 1st DCA 2000) (mem.).6

C. Rule 3.850 Motion in 2001–2003

        On June 8, 2001, in Florida circuit court, Petitioner Rozzelle filed a pro se

motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.

Rozzelle’s 3.850 motion claimed that trial counsel was ineffective for not

including in Rozzelle’s motion for judgment of acquittal “the fact that the state

failed to prove deprived [sic] mind” and thereby failing to preserve this issue for

appeal.7 The State responded that Rozzelle’s trial counsel was not ineffective for

numerous reasons, including there was “ample evidence” at trial showing Rozzelle

acted with a depraved mind and was properly convicted of second-degree murder.

        After appointing 3.850 counsel for Rozzelle, the Florida circuit court held

an evidentiary hearing. Rozzelle’s trial counsel testified, inter alia, that he did not

argue in his motion for judgment of acquittal that the evidence was insufficient to



        6
         After his direct appeal, Petitioner Rozzelle did not file a petition for a writ of certiorari
in the U.S. Supreme Court.
        7
        Rozzelle’s 3.850 motion also claimed that (1) trial counsel was ineffective for not
moving to suppress Rozzelle’s statement to police; (2) Rozzelle’s waiver of his right to testify
was involuntary; and (3) trial counsel was ineffective for failing to object to the prosecutor’s
comments in closing argument.

                                                12
show that Rozzelle acted with a “depraved mind” because “[t]here was plenty of

evidence that a jury . . . could use to make a finding of that.” Although Rozzelle

did not testify at trial, he testified at the 3.850 hearing that he caught Leier and

Barnes together twice, first at 6:00 p.m. and second at 9:00 p.m., and the second

encounter is when he observed Leier “embrace[]” Barnes, saw that “[s]he had on a

T-shirt with nothing on underneath” and “went off.”

       On February 20, 2002, the Florida circuit court denied Rozzelle’s 3.850

motion. The circuit court explained that Rozzelle’s allegations that his trial

counsel was ineffective for failing to raise the “depraved mind” element in

Rozzelle’s motion for judgment of acquittal were “definitely and certainly without

merit.” The circuit court continued, “Such a motion would have been obviously

denied . . . based on the ample evidence of such intent.”

       On August 8, 2003, Florida’s First District Court of Appeal affirmed the

circuit court’s denial of Rozzelle’s 3.850 motion. Rozzelle v. State, 

 (Fla. 1st DCA 2003) (mem.).8

D. State Habeas Petition in 2006

       8
        On January 24, 2005, Petitioner Rozzelle signed and gave to prison authorities a motion,
under Florida Rule of Criminal Procedure 3.800, raising a state-law claim that his Criminal
Punishment Code scoresheet was incorrectly calculated. The motion was filed on January 26,
2005. The state trial court denied Rozzelle’s 3.800 motion, and Florida’s First District Court of
Appeal affirmed on June 14, 2005. Rozzelle v. State, 

 (Fla. 1st DCA 2005)
(mem.).

                                            13
      Almost three years later, Petitioner Rozzelle filed a petition for a writ of

habeas corpus in the Florida circuit court. In this March 28, 2006 petition,

Rozzelle claimed that the prosecutor “knowingly presented false or purjured

testimony” at trial, specifically Officer Mary Blythe Williams’s testimony

regarding Andrea Barnes’s physical condition at the motel after the beating.

Williams testified that Barnes’s teeth were knocked out, but Rozzelle’s state

habeas petition alleged that his evidence showed Barnes still had her teeth. This

time, Rozzelle did not raise an ineffective-trial-counsel claim.

      On April 11, 2006, the Florida circuit court dismissed Rozzelle’s habeas

petition. The circuit court concluded that “[t]he remedy of habeas corpus is not

available to obtain the kind of collateral postconviction relief available by a

motion under Fla. R. Crim. P. 3.850 in the sentencing court.” See Baker v. State,

, 1238–46 (Fla. 2004) (holding that, for non-capital defendants,

state habeas petitions raising claims that may be raised by 3.850 motion are

unauthorized). Further, the Florida circuit court concluded that the time period for

Rozzelle’s filing a 3.850 motion had long since expired.

      On July 27, 2007, Florida’s First District Court of Appeal affirmed the

circuit court’s dismissal of Rozzelle’s state habeas petition. Rozzelle v.

McDonough, 

 (Fla. 1st DCA 2007) (mem.).

                                        14
D. Federal § 2254 Petition

       On September 5, 2007, Petitioner Rozzelle, pro se, filed this, his first,

§ 2254 petition and a supporting memorandum shortly thereafter (hereinafter the

“§ 2254 petition”).9 Rozzelle’s § 2254 petition raised multiple claims, including

ineffective assistance of trial counsel as to specific matters.10 Rozzelle requested

that the district court “[r]elease [him] from incarceration, new trial, or remand to

state court with instructions to reduce [his] conviction from second degree murder

to manslaughter, or any relief this court deems appropriate.”

       In its answer, the State raised multiple procedural defenses, including

Rozzelle’s failure to satisfy the one-year limitation period in 28 U.S.C. § 2244(d),

established by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), and his failure to exhaust his state court remedies as to claims raised

in his § 2254 petition. See 28 U.S.C. § 2254(b)(1)(A).


       9
         Rozzelle’s § 2254 petition itself consisted of a seven-page form petition with an
attached statement of issues. In the district court, Rozzelle’s supporting memorandum was
considered as part of his § 2254 petition, and no objection was made.
       10
          As explained later, we ultimately do not reach the merits of Rozzelle’s § 2254 claims.
For completeness, however, Rozzelle’s § 2254 petition alleges that: (1) trial counsel was
ineffective by failing to interview or depose certain witnesses, failing to call certain witnesses,
and failing to “familiarize himself with the law and facts of the case”; (2) the prosecutor
knowingly put false evidence before the jury, specifically, Adley Boudreaux’s testimony; (3) the
prosecutor, while arguing against Rozzelle’s motion for a mistrial, falsely stated that Dr. Carl
Glidden would testify concerning Andrea Barnes’s injuries; and (4) Officer Mary Blythe
Williams’s testimony about Barnes’s injuries was false or perjured.

                                              15
      Apparently recognizing that his § 2254 petition was three years too late,

Rozzelle claims in his § 2254 petition that new reliable evidence shows that he is

actually innocent of second-degree murder and that his showing of “actual

innocence” excuses his failure to exhaust state court remedies and to timely file

his first federal habeas petition.

      The evidence, which Rozzelle alleges is “new,” primarily includes

statements by witnesses and Rozzelle himself to law enforcement

officers—Officer Burritt, Officer Williams, Detective Thomas Matz and Detective

Joseph Michael—which they included in their written police reports back in 1998

but which his trial counsel did not introduce at trial. Rozzelle contends these

statements show that (1) he caught Leier and Barnes twice in an intimate

encounter and thus beat Leier in the heat of passion; (2) he beat Leier with only

his fists; and (3) the beating lasted “only seconds” and was not extended. Rozzelle

also submitted Barnes’s medical records and a police report addendum

documenting Barnes’s injuries, which Rozzelle claims contradict Officer

Williams’s testimony that Barnes’s teeth were knocked out. Rozzelle claims that

this “new” evidence shows he acted with a lower degree of intent than suggested

by the trial evidence and, therefore, if the “new” evidence were introduced, no

reasonable juror would have found that he acted with a “depraved mind” and

                                       16
convicted him of second-degree murder. Rozzelle contends the “new” evidence

supports only the lesser included crime of manslaughter.

        The State responded, inter alia, that (1) Rozzelle had failed to present any

“new reliable evidence,” as required by Schlup v. Delo, 

, 324, 115 S.

Ct. 851, 865 (1995), and (2) in any event, Rozzelle had not demonstrated his

“actual innocence” but was asserting only legal insufficiency of the trial evidence.

E. Magistrate Judge’s Report and Recommendation

       The magistrate judge’s report and recommendation (“the report”) concluded

Rozzelle’s § 2254 petition was untimely because Rozzelle did not file his petition

within one year of the date his conviction became final. Indeed, in this appeal

Rozzelle concedes that “[h]e seeks the actual innocence exception because his

petition was untimely.” See 28 U.S.C. § 2244(d)(1)(A), (D).11

       11
           The magistrate judge properly calculated why Rozzelle’s § 2254 petition was not timely
filed. Specifically, the magistrate judge found that Rozzelle’s Florida conviction became final
for purposes of 28 U.S.C. § 2244(d)(1)(A) on March 15, 2001, upon expiration of the 90-day
period for seeking a writ of certiorari by the U.S. Supreme Court on direct appeal. The
magistrate judge further found that Rozzelle’s Florida 3.850 motion, filed on June 7, 2001, (after
83 days of the limitations period had run) tolled the § 2244(d)(1) limitation period until August
26, 2003, when Florida’s First District Court of Appeal affirmed the Florida circuit court’s denial
of Rozzelle’s 3.850 motion. See 28 U.S.C. § 2244(d)(2) (providing for tolling during pendency
of state post-conviction review). As a result, the § 2244(d)(1) statute of limitations ran 282 days
later, on June 4, 2004, more than three years before Rozzelle filed his § 2254 petition.
         The magistrate judge also found that the factual predicates of all the evidence Rozzelle
referenced in his § 2254 petition “could have been discovered through the exercise of due
diligence” before the conclusion of Rozzelle’s trial, and thus the one-year time period did not
begin running at the time Rozzelle discovered the alleged “new” evidence. 28 U.S.C.
§ 2244(d)(1)(D).

                                             17
      The report noted that Rozzelle could bring his time-barred § 2254 petition

only if “new reliable evidence,” not presented at trial, showed he was “actual[ly]

innocent” and no reasonable juror would have convicted him in light of this new

evidence. The report concluded that Rozzelle’s evidence was not “new” because

the factual predicate for Rozzelle’s claims is “based upon facts included in law

enforcement reports, witness statements provided to law enforcement, reports of a

medical expert who testified at trial, pre-trial depositions, and the trial record.”

The report also concluded that in any event most of Rozzelle’s evidence “was

cumulative of evidence presented to the jury at trial,” which “overwhelming[ly]”

supported the jury’s verdict. Though Barnes’s medical records were “new,” the

report found that Rozzelle had not demonstrated that those records “would have

been favorable to the defense or likely would have resulted in a different verdict.”

F. District Court’s Order

      After reviewing Petitioner Rozzelle’s objections to the report, the district

court “agree[d] with the overall conclusion reached in the [r]eport, but for

different reasons.” The district court acknowledged that Rozzelle’s evidence was

not “new” and was “substantively the same as other heat of passion evidence that

was admitted at trial.” The district court also concluded that Rozzelle had not

diligently pursued his actual innocence claim because he “knew of his actual

                                        18
innocence claim . . . certainly no later than March 2000 when he raised the claim

on his direct appeal.”

       The district court, however, did not resolve whether Rozzelle had made the

required “actual innocence” showing based on “new reliable evidence.” Rather,

the district court framed the “pertinent question” as whether a gateway actual

innocence exception exists to AEDPA’s statute of limitations due to the

Suspension Clause. See U.S. Const. art. 1, § 9, cl. 2 (“The Privilege of the Writ of

Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or

Invasion the public Safety may require it.”).12 Concluding that no such exception

exists, the district court dismissed Rozzelle’s § 2254 petition as untimely.

                    II. STANDARD AND SCOPE OF REVIEW

       Rozzelle’s § 2254 petition and appeal are governed by AEDPA. See Payne

v. Allen, 

, 1312 (11th Cir. 2008). This Court reviews de novo the

district court’s dismissal of a § 2254 habeas petition. Arthur v. Allen, 

, 1243 (11th Cir.), modified, 

 (2006).

       The district court issued a certificate of appealability as to “whether there is

an ‘actual innocence’ exception that will equitably toll the AEDPA statute of


       12
         The district court characterized Rozzelle’s actual innocence as “arguable” and assumed
without deciding that Rozzelle had made an actual innocence showing in order to reach the
question of whether the Suspension Clause nonetheless permitted Rozzelle’s untimely petition.

                                            19
limitations period, and, if so, whether that exception should be available to a

petitioner who has failed to pursue his innocence claim diligently.” Necessarily

subsumed within this question is the threshold issue of whether the petitioner has

demonstrated his actual innocence in the first place. Cf. Lawrence v. Florida, 

, 1225–26 (11th Cir. 2005), aff’d, 

, 

 (2007)

(finding questions of applicability of state-impediment and equitable-tolling

exceptions to AEDPA statute of limitations were subsumed within certificate of

appealability on issue of whether petitioner’s § 2254 petition was barred by the

AEDPA statute of limitations).

      Our inquiry also takes into account the fact that Rozzelle, as appellant,

contends that “the district court erred as a matter of law in classifying this case as

controlled by the equitable tolling standard” and “injecting a diligence hurdle into

Rozzelle’s path.” Rozzelle’s appellate brief emphasizes that he “does not seek to

toll the limitations period” but “seeks the actual innocence exception because his

petition was untimely.” Rozzelle stresses that “[t]he difference between actual

innocence and equitable tolling is central to this case.” Similarly, in its brief, the

State agrees that equitable tolling is an inappropriate doctrine to determine

whether actual innocence provides an exception to AEDPA’s one-year statute of

limitations. Rather, the State argues that there is no actual innocence exception,

                                        20
constitutionally required or otherwise, to AEDPA’s limitation period.

       Accordingly, our inquiry here is first focused on whether Rozzelle has made

a sufficient showing of “actual innocence,” and, only if so, whether the

Suspension Clause requires a constitutional exception to AEDPA’s one-year

limitation period for actually innocent petitioners. See, e.g., Johnson v. Fla. Dep’t

of Corr., 

, 1333 (11th Cir. 2008) (“This Court has held that before

addressing this difficult constitutional question, we should first consider whether

the petitioner can show actual innocence.”); Arthur, 452 F.3d at 1244 (“We have

held that . . . where the § 2244(d)(1) limitation period has expired and the

petitioner is claiming actual innocence, we must first consider whether the

petitioner can show actual innocence before we address whether an exception to

the limitation period is required by the Suspension Clause of the United States

Constitution.”); see also Sibley v. Culliver, 

, 1205 (11th Cir. 2004)

(same); Wyzykowski v. Dep’t of Corr., 

, 1218 (11th Cir. 2000)

(same).13 We start with AEDPA and what constitutes actual innocence.


       13
          In the district court, the State argued that Rozzelle had not shown actual innocence, and
the State need not have cross appealed the dismissal of Rozzelle’s § 2254 petition to argue that
Rozzelle has not demonstrated his actual innocence. See Lucas v. W.W. Grainger, Inc., 

, 1256 (11th Cir. 2001) (“[W]e may affirm [the district court’s] judgment on any ground that
finds support in the record.” (internal quotation marks omitted)); Campbell v. Wainwright, 

, 704 (11th Cir. 1984) (“[A] party may raise any argument in support of a
judgment . . . .”).

                                             21
                                   III. DISCUSSION

A. AEDPA’s Statute of Limitations

         AEDPA contains a one-year statute of limitations in which a prisoner

convicted of a state crime may file a federal habeas petition. 28 U.S.C.

§ 2244(d)(1). Petitioner Rozzelle concedes that his § 2254 habeas petition was not

timely filed in 2007 but claims that an actual innocence exception to AEDPA’s

time-bar exists and argues that he has made a sufficient showing of actual

innocence in order for his § 2254 petition to proceed.

         Our cases refer to an “actual innocence” claim in at least three different

types of habeas cases. In the first type, a petitioner’s actual innocence is itself the

constitutional basis of the habeas petition. See Herrera v. Collins, 

,

400, 

, 860 (1993) (holding that no federal habeas relief is available

for freestanding, non-capital claims of actual innocence); Jordan v. Sec’y, Dep’t of

Corr., 

, 1356 (11th Cir. 2007) (same). This is not Rozzelle’s type of

claim.

         In the other two types of actual innocence claims, the petitioner’s assertion

of innocence is not itself a freestanding claim, but merely serves as a “gateway” to

get the federal court to consider claims that the federal court would otherwise be

barred from hearing. “To successfully plead actual innocence, a petitioner must

                                          22
show that his conviction resulted from ‘a constitutional violation.’” Johnson, 513

F.3d at 1334 (quoting Schlup v. Delo, 

, 327, 

, 867

(1995)).

      In the second type, a petitioner’s actual innocence serves as a gateway to

consideration of constitutional claims procedurally defaulted in state court, such as

failure to exhaust state remedies, failure to satisfy state filing requirements, et

cetera. See Johnson v. Alabama, 

, 1171 (11th Cir. 2001)

(explaining that claim of actual innocence must be supported by “reliable evidence

not presented at trial” (internal quotation mark omitted)); see also Schlup, 513

U.S. at 324, 115 S. Ct. at 865 (holding that for habeas court to consider

procedurally barred constitutional claims, petitioner must present “new reliable

evidence” of actual innocence). To bypass such a procedural bar, a petitioner

must show either (1) cause and prejudice or (2) a miscarriage of justice, or “actual

innocence.” Schlup, 513 U.S. at 314–15, 115 S. Ct. at 860–61. The actual

innocence exception to the procedural bar is not meant to remedy ordinary errors

in criminal judgments but is narrowly reserved for only “fundamental

miscarriage[s] of justice.” Id. at 315, 115 S. Ct. at 861. To overcome procedural

default through a showing of actual innocence, the petitioner must present


                                        23
“reliable evidence . . . not presented at trial” such that “it is more likely than not

that no reasonable juror would have convicted him of the underlying offense.”

Johnson, 256 F.3d at 1171 (quoting Schlup, 513 U.S. at 324, 327, 115 S. Ct. at

865, 867 (internal quotation mark omitted)). This type of actual innocence claim

is not Rozzelle’s claim either.

      In the third situation, a habeas petitioner claims his actual innocence should

serve as a gateway to consideration of constitutional claims time-barred under

AEDPA’s one-year limitation period. See 28 U.S.C. § 2244(d); Johnson, 513 F.3d

at 1333–34; Arthur, 452 F.3d at 1244–46. This is Rozzelle’s type of claim.

Because the standards for actual innocence in cases of procedural default and

untimely federal habeas petitions derive from the Supreme Court’s decision in

Schlup, we have at times conflated these two case types. See Arthur, 452 F.3d at

1245 (applying the concept of the actual innocence exception to “procedural bar”

to the Arthur case involving an AEDPA-time-barred § 2254 petition). Therefore,

like the actual innocence exception for procedural default, the alleged exception

for AEDPA untimeliness would require the petitioner (1) to present “new reliable

evidence . . . that was not presented at trial,” Arthur, 452 F.3d at 1245 (quoting

Schlup, 513 U.S. at 324, 115 S. Ct. at 865), and (2) to show “that it is more likely


                                         24
than not that no reasonable juror would have found petitioner guilty beyond a

reasonable doubt” in light of the new evidence. Johnson, 513 F.3d at 1334

(quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867); see also House v. Bell, 

, 538, 

, 2077 (2006).

       Further, as noted above, an AEDPA-time-barred petitioner must make a

threshold showing of actual innocence before we will tackle whether the

Suspension Clause requires an actual innocence exception to AEDPA’s one-year

filing window. Arthur, 452 F.3d at 1244. This Court has never decided that

constitutional question because no petitioner has yet demonstrated his actual

innocence. Johnson, 513 F.3d at 1333; see House, 547 U.S. at 538, 126 S. Ct. at

2077 (“[T]he Schlup standard is demanding and permits review only in the

extraordinary case.” (internal quotation marks omitted)).14 Our decisions,

       14
            One circuit court has concluded that the Suspension Clause requires no such exception.
See David v. Hall, 

, 347 (1st Cir. 2003) (explaining that AEDPA’s one-year statute
of limitations “is not even arguably unconstitutional” as applied to petitioner who “had ample
time . . . in which to bring his claim within the statutory deadline”). Three circuit courts have
held that an actual innocence claim provides a basis for equitable tolling of AEDPA’s one-year
limitation period and entitles a petitioner to consideration of time-barred constitutional claims.
See Lee v. Lampert, 

, 932 (9th Cir. 2011) (en banc); Lopez v. Trani, 

,
1230–31 (10th Cir. 2010); Souter v. Jones, 

, 602 (6th Cir. 2005).
         This Court has generally framed the AEDPA-actual-innocence question not as an
equitable tolling issue, which has a due diligence component, but as whether the Suspension
Clause necessitates a constitutional exception to AEDPA’s one-year time-bar where a habeas
petitioner has shown actual innocence. Johnson, 513 F.3d at 1333; Arthur, 452 F.3d at 1244.
But cf. Melson v. Allen, 

, 1004 (11th Cir. 2008) (explaining that § 2254 petitioner


                                             25
however, show that if such an exception exists, it exists only for actually innocent

petitioners.

       Likewise, we do not reach the Suspension Clause question because (1)

Rozzelle fails to state a cognizable “actual innocence” claim, and (2) alternatively,

Rozzelle has not made a sufficient evidentiary showing of actual innocence. We

explain why.

B. Cognizable “Actual Innocence” Claims

       For starters, Petitioner Rozzelle’s “actual innocence” claim is not the usual

kind. Rozzelle does not claim that he is actually innocent of all crimes related to

Greg Leier’s beating and death. See Sawyer v. Whitley, 

, 340, 112 S.

Ct. 2514, 2519 (1992) (“A prototypical example of ‘actual innocence’ in a

colloquial sense is the case where the State has convicted the wrong person of the

crime.”). Rozzelle does not even claim that he is actually innocent of a crime of

homicide. Rather, Rozzelle primarily claims that he is actually innocent of

second-degree murder and guilty of only manslaughter because “new” evidence

“failed to show that the AEDPA’s one-year statute of limitations should be equitably tolled based
on . . . his claims of actual innocence”) vacated on other grounds, 

 (2010). In this
regard, although Rozzelle cites San Martin v. McNeil, 

 (11th Cir. 2011), the basis
of the equitable tolling claim in San Martin was not the petitioner’s actual innocence, but his
alleged lack of notice as to the date that the Supreme Court denied his petition for a writ of
certiorari on direct appeal of his convictions and sentence. Id. at 1268.


                                             26
shows he lacked a “depraved mind” and killed Leier only in the heat of passion.

Rozzelle argues that this latter type of mens rea, allegedly shown by his “new”

evidence, is legally sufficient to support only a conviction for manslaughter, a

lesser included offense of murder in Florida. See Febre v. State, 

,

369 (Fla. 1947).15

       Neither the Supreme Court nor this Court has squarely considered, or held,

whether a claim of this nature can satisfy Schlup’s “actual innocence”

requirement. But in dicta, we have strongly suggested it cannot. For example,

following Supreme Court pronouncements, we have stated that “‘[a]ctual

innocence’ means factual innocence, not mere legal insufficiency.” Johnson, 513

F.3d at 1334 (quoting Bousley v. United States, 

, 623, 

, 1611 (1998)); see also Gonzalez v. Sec’y for Dep’t of Corr., 

,

1274 (11th Cir. 2004) (en banc) (“Actual factual innocence is required; legal

innocence is not enough.”); Johnson, 256 F.3d at 1171 (“This exception is

       15
           We recognize that Rozzelle alternatively argues, passim, that he is not guilty of
homicide at all because Leier’s death was not caused by Rozzelle’s admitted beating of Leier, but
was caused by another person inflicting the fatal blow or by an intervening event, such as Leier’s
falling down the motel stairs due to intoxication. There is so little, if any, “new reliable” support
for either defense theory in the supplemented record that we summarily reject this claim without
discussion. In addition, we note that Rozzelle does not appear to claim that his homicide was
“excusable” and wholly lawful under Florida Statutes § 782.03; to the extent Rozzelle does, we
summarily reject that claim too for lack of “new reliable” evidence.


                                              27
exceedingly narrow in scope, as it concerns a petitioner’s ‘actual’ innocence rather

than his ‘legal’ innocence.”).16

       Notably, we recently reaffirmed this important factual/legal distinction,

albeit in the context of a federal prisoner’s claim of actual innocence of his

sentence. See McKay v. United States, 

 (11th Cir. 2011).

Specifically, in McKay, a § 2255 petitioner claimed that he was actually innocent

of his career-offender sentence because his prior conviction for carrying a

concealed weapon should not have been classified as a predicate “crime of

violence” under the sentencing guidelines. Id. at 1199. McKay had procedurally

defaulted this claim in federal court by failing to object at sentencing and on direct

appeal. Id. at 1193. In McKay, we did not reach the issue of “whether the actual

innocence exception extends to the noncapital sentencing context.” Id. at 1198.

Rather, “[e]ven assuming that this exception does extend beyond the capital


       16
          In Johnson v. Alabama, petitioner Johnson participated in a two-man home invasion
and was convicted of capital murder of an occupant of the home. 256 F.3d at 1165–66. In his
procedurally defaulted § 2254 petition, Johnson did not present any new evidence. Id. at 1172.
He claimed only that “there was insufficient evidence [at trial] of his specific intent to kill” and
therefore, he was innocent of capital murder and guilty of only felony murder, a lesser included
offense. See id. at 1169, 1181–82. This Court affirmed the district court’s dismissal of
Johnson’s § 2254 petition because Johnson “base[d] his objection on a new theory of defense,
not newly-discovered evidence.” Id. at 1172. Unlike Johnson, Rozzelle bases his petition on
purportedly “new” evidence. Accordingly, here we must consider whether a new theory of
defense based on new reliable evidence is a cognizable actual innocence claim.


                                               28
sentencing context,” we explained that “it still does not apply to McKay because

his claim is one of legal, rather than factual, innocence and thus fails to fall within

the actual innocence exception’s purview.”17 Id. (emphasis added).

       Similarly, other circuit courts of appeals have endorsed the view that actual

innocence must be “factual” and not mere “legal” innocence. See Jaramillo v.

Stewart, 

, 882 (9th Cir. 2003); Ellis v. Hargett, 

, 1186

n.1 (10th Cir. 2002); Finley v. Johnson, 

, 221 (5th Cir. 2001); Britz v.

Cowan, 

, 1103 (7th Cir. 1999); Jones v. Delo, 

, 883 (8th

Cir. 1995). While all of these cases involve procedural default and not AEDPA’s

statute of limitations, their discussion of what constitutes factual versus legal

innocence is informative, especially since the circuits diverge to some extent.

       For example, circuit courts differ on whether a complete affirmative defense

to a crime—such as insanity or self-defense—shows factual or only legal

innocence. The Tenth Circuit, in Ellis v. Hargett, held that the requirement of

“factual” versus “legal” innocence renders claims of actual innocence based on

affirmative defenses insufficient under Schlup. 302 F.3d at 1186 n.1. In Ellis,


       17
           McKay acknowledged that “a movant’s procedural default is excused if he can show
that he is actually innocent either of the crime of conviction or, in the capital sentencing context,
of the sentence itself.” 657 F.3d at 1196.


                                               29
petitioner Ellis claimed that he was actually innocent of first-degree murder and

shooting with intent to kill because new evidence showed he acted in self-defense

or heat of passion. Id. at 1185–86. The Tenth Circuit rejected Ellis’s actual

innocence claim, explaining that Ellis did not claim that he was “factually

innocent of shooting” the victim but “that he is legally innocent because his

conduct is justified or mitigated by the doctrines of self-defense or heat of

passion.” Id. at 1186 n.1; see Beavers v. Saffle, 

, 923 (10th Cir.

2000) (“The exception is intended for those rare situations where the State has

convicted the wrong person of the crime . . . .” (internal quotation marks omitted)).

      In Finley v. Johnson, the Fifth Circuit concluded that a showing of facts

establishing an affirmative defense that would result in the defendant’s acquittal

constituted a sufficient showing of actual innocence to allow a petitioner to

proceed with a procedurally defaulted constitutional claim. 243 F.3d at 221.

Petitioner Finley claimed that new undisputed evidence showed he was actually

innocent of the Texas crime of aggravated kidnapping because he believed his acts

were “immediately necessary to avoid imminent harm” to the victim’s wife and

daughter. Id. at 220. Necessity is a complete defense to criminal conduct in

Texas. Tex. Penal Code Ann. § 9.22; see Finley, 243 F.3d at 220 n.6. The Fifth


                                       30
Circuit observed that “Finley has pointed to new evidence which is both

undisputed and highly probative of his affirmative defense of necessity.” Id. at

221. Noting that an actual innocence claim is “a factual matter,” id. at 220, the

Fifth Circuit concluded that “a showing of facts which are highly probative of an

affirmative defense which if accepted by a jury would result in the defendant’s

acquittal constitutes a sufficient showing of ‘actual innocence . . . .’” Id. at 221

(emphasis added).

      The Ninth Circuit’s Jaramillo v. Stewart also involved a complete

affirmative defense to criminal conduct. In his procedurally barred § 2254

petition, Jaramillo claimed he was actually innocent of the Arizona crime of first-

degree murder because new evidence showed he acted in self-defense, which

rendered his conduct noncriminal. 340 F.3d at 879, 883. The Ninth Circuit

explained that “‘actual innocence’ means factual innocence, not mere legal

insufficiency,” id. at 882 (quoting Bousley, 523 U.S. at 623, 118 S. Ct. at 1611),

but concluded that petitioner Jaramillo’s claim of justification pursuant to self-

defense “corresponds with Schlup’s actual innocence requirement,” id. at 883.

“Under Arizona law in effect at the time of the offense charged, justification was

an affirmative defense rendering [Jaramillo’s] conduct noncriminal.” Id.


                                        31
      Likewise, the Seventh Circuit has held that a complete defense of insanity

renders a petitioner “factually” rather than “legally” innocent of capital murder. In

Britz v. Cowan, the Seventh Circuit rejected the State of Illinois’s argument that

“actual innocence” requires a defaulted habeas petitioner to show that he “didn’t

kill his victim.” 192 F.3d at 1103. Accordingly, petitioner Britz’s claim that he

was insane at the time of the murder, for which he was convicted and sentenced to

death, was a cognizable actual innocence claim under Schlup. However, the

Seventh Circuit ultimately held that “Britz’s chances of proving insanity, even if

the experts had been allowed to testify, were vanishingly small, and so the ‘actual

innocence’ defense to waiver fails.” Id. (citation omitted).

      In another capital case, the Eighth Circuit went farther and held that a

defaulted petitioner’s claim of innocence is “actual” and not “legal” when the

claim negates an essential element of a capital conviction. See Jones, 56 F.3d at

883. In Jones v. Delo, petitioner Jones, who was convicted of capital murder,

submitted new evidence showing that, at the time he killed his girlfriend, he was

incapable of “deliberation,” an element of capital murder. Id. at 882. With new

evidence of Jones’s mental aptitude and organic brain disease, medical experts

testified that Jones was “incapable of deliberation at the time of the killing.” Id.


                                        32
Given Jones’s “alleged incapacity to form the predicate deliberative intent,” the

Eighth Circuit rejected Missouri’s argument that an inability to deliberate is a

claim of legal innocence and explained that “one is . . . actually innocent if the

State has the ‘right’ person but he is not guilty of the crime with which he is

charged.” Id. at 883. Accordingly, if Jones could negate his ability to deliberate,

“an essential element of the crime for which he was convicted,” then his claim

would not be “one of mere legal innocence.” Id. Ultimately, the Eighth Circuit

concluded that Jones had made an insufficient evidentiary showing to bypass his

procedural default or even to obtain a remand for an evidentiary hearing.18 Id. at

883–84.

       Today, we need not decide whether Schlup permits a claim of actual

innocence based on “new reliable” evidence of a complete affirmative defense that

renders the conduct of conviction wholly noncriminal and requires acquittal. See

Jaramillo, 340 F.3d at 883; Finley, 243 F.3d at 221; Britz, 192 F.3d at 1103. Nor

need we address essential elements of capital crimes. Rather, we decide only that



       18
          In Jones, the petitioner did not make a sufficient evidentiary showing of lack of
capacity to deliberate, and there was no discussion of whether the negation of “deliberation”
under Missouri law would render the petitioner not guilty of all homicide crimes or just capital
murder.


                                             33
the narrow and extraordinary nature of Schlup’s actual innocence “gateway” does

not extend to petitioners, like Rozzelle, who did the killing and whose alleged

“actual innocence” of a non-capital homicide conviction is premised on being

guilty of only a lesser degree of homicide. For several reasons, we conclude that,

in these circumstances, Petitioner Rozzelle fails to state a cognizable actual

innocence claim under Schlup.

      First, the Supreme Court and this Court repeatedly have emphasized that

circumstances meriting the consideration of procedurally defaulted or barred

constitutional claims are “extremely rare” and apply only in the “extraordinary

case.” Schlup, 513 U.S. at 324, 115 S. Ct. at 865 (“[A] substantial claim that

constitutional error has caused the conviction of an innocent person is extremely

rare.”); see House, 547 U.S. at 538, 126 S. Ct. at 2077; Johnson, 256 F.3d at 1171

(characterizing the actual innocence exception as “exceedingly narrow in scope”).

Indeed, the “very reason the miscarriage of justice exception was linked to a

movant’s actual innocence was to ensure” that the exception would remain

“narrow,” McKay, 657 F.3d at 1198, and apply only where “the individual

interest in justice” outweighs “the societal interests in finality, comity [for state

court judgments], and conservation of scarce judicial resources,” Schlup, 

at 324, 115 S. Ct. at 865. As we explained in McKay, the Supreme Court has

cautioned the lower courts to “exercise restraint when determining whether to

expand the exceptions to the procedural default rule.” McKay, 657 F.3d at 1198;

see Dretke v. Haley, 

, 395, 

, 1853 (2004) (explaining

that expanding exceptions to procedural default rule “would have the unhappy

effect of prolonging the pendency of federal habeas applications as each new

exception is tested in the courts of appeals”).

      Allowing claims of actual innocence to be brought whenever a habeas

petitioner argues that he was convicted of an erroneous degree of crime, as in this

case, would substantially expand the scope of the actual innocence exception.

Almost all crimes with degrees could face similar challenges. Run-of-the-mill

offense degree determinations are better assessed in the first instance by trial

courts, juries and state appellate courts. Opening federal habeas review to

petitions involving degrees of non-capital state crimes could “so broaden the

inquiry as to make it anything but a ‘narrow’ exception to the principle of finality

that [the Supreme Court] ha[s] previously described it to be.” Sawyer, 505 U.S. at

345, 112 S. Ct at 2522. Importantly, broadening this inquiry further affects the

federal-state balance and the very nature of habeas review, as it broadens the


                                        35
question from whether the petitioner is completely innocent to whether the jury

convicted the petitioner of the accurate degree of state crime, a significantly more

intrusive manner of review. Cf. Calderon v. Thompson, 

, 555, 118 S.

Ct. 1489, 1501 (1998) (“Finality serves as well to preserve the federal balance.”).19

       Second, the Supreme Court’s categorical language in actual innocence cases

does not suggest that it is narrowly slicing the various degrees of wrongdoing.

See Schlup, 513 U.S. at 324, 115 S. Ct. at 865 (“[E]xperience has taught us that a

substantial claim that constitutional error has caused the conviction of an innocent

person is extremely rare.”); cf. Murray v. Carrier, 

, 496, 

, 2649 (1986) (“[W]e think that in an extraordinary case, where a

constitutional violation has probably resulted in the conviction of one who is

actually innocent, a federal habeas court may grant the writ even in the absence of

a showing of cause for the procedural default.”). In Rozzelle’s core cases on

“actual innocence,” Schlup and House, both petitioners disclaimed any

involvement with the crime. See House, 547 U.S. at 554, 126 S. Ct. at 2086 (“Yet

the central forensic proof connecting [the petitioner] to the crime—the blood and


       19
          This Court’s repeated reluctance to reach the question of whether the Suspension
Clause requires an exception to AEDPA’s one-year statute of limitations for actually innocent
petitioners also evinces our restraint in this regard. See Johnson, 513 F.3d at 1333.


                                            36
the semen—has been called into question, and [the petitioner] has put forward

substantial evidence pointing to a different suspect.”);20 Schlup, 513 U.S. at 331,

115 S. Ct. at 869 (“Schlup’s evidence includes the sworn statements of several

eyewitnesses that Schlup was not involved in the crime.”).

       Third, the nature of Schlup’s evidentiary inquiry also supports this

conclusion. As the Supreme Court explained in Schlup and House, overcoming

the bar to defaulted constitutional claims requires a showing of “new reliable

evidence . . . not presented at trial.” House, 547 U.S. at 537, 126 S. Ct. at 2077

(quoting Schlup, 513 U.S. at 324, 115 S. Ct. at 865). This “new” evidence must

do more than counterbalance the evidence that sustained the petitioner’s

conviction. See Sibley, 377 F.3d at 1207 (concluding that even if new evidence

showed that the murder victim was the aggressor, “a reasonable juror could still

quite possibly have concluded that [petitioner] acted with murderous intent, rather

than out of self-defense”). The new evidence must be so significant and reliable

that, considered with the trial record as a whole, it “undermine[s] confidence in the

result of the trial” such that “it is more likely than not that no reasonable juror


       20
         House involved new DNA evidence showing that semen in the raped victim’s
nightgown came from her husband, not from the petitioner-defendant House, as well as other
new testimony and blood evidence. 547 U.S. at 540–47, 126 S. Ct. at 2078–83.


                                           37
would have found petitioner guilty beyond a reasonable doubt.” House, 547 U.S.

at 537, 126 S. Ct. at 2077 (internal quotation marks omitted). Evidence that would

at best substitute one criminal homicide conviction for another homicide

conviction is ordinarily not of this caliber.

      “Actual innocence,” whatever its outer boundaries, does not discern

“extremely rare,” “extraordinary” “miscarriages of justice” in shades of gray.

Schlup, 513 U.S. at 321, 115 S. Ct. at 864. Rozzelle’s individual interest in

reducing his second-degree murder conviction to a lesser included homicide

conviction does not make AEDPA unconstitutional nor does it outweigh the

“societal interests in finality, comity, and conservation of scarce judicial

resources” that AEDPA’s one-year limitation period protects. Id. at 324, 115 S.

Ct. at 865 (“[T]he fundamental miscarriage of justice exception seeks to balance

the societal interests in finality, comity, and conservation of scarce judicial

resources with the individual interest in justice that arises in the extraordinary

case.”); Day v. Crosby, 

, 1194 (11th Cir. 2004) (per curiam)

(affirming dismissal of § 2254 petition as untimely and stating that Congress

enacted AEDPA to “promote comity, finality, and federalism, and Congress

enacted the AEDPA statute of limitations as the principal tool to serve the well-


                                        38
recognized interest in the finality of state court judgments.” (internal quotation

marks and alteration omitted)).

C. Rozzelle’s Evidence Is Insufficient to Show Actual Innocence

      Even if Petitioner Rozzelle’s claim of actual innocence were cognizable, his

claim still fails because his “new” evidence is largely cumulative of what the jury

heard, and he has not made a sufficient showing that it is more likely than not that

no reasonable juror would have convicted him of second-degree murder.

      To support a claim of actual innocence, a time-barred § 2254 petitioner must

present “new reliable evidence” such that it is more likely than not that “no

reasonable juror would have convicted him in light of the new evidence.” Schlup,

513 U.S. at 324, 327, 115 S. Ct. at 865, 867 (citing “exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence” as

examples of “new reliable evidence”). “[T]he habeas court’s analysis is not

limited to such evidence.” House, 547 U.S. at 537, 126 S. Ct. at 2077. Rather,

“the habeas court must consider all the evidence, old and new, incriminating and

exculpatory, without regard to whether it would necessarily be admitted under

rules of admissibility that would govern at trial.” Id. at 538, 126 S.Ct. at 2077

(internal quotation marks omitted). In addition, we “may consider how the timing


                                       39
of the [evidentiary] submission and the likely credibility of the affiants bear on the

probable reliability of that evidence.” Melson v. Allen, 

, 1002 (11th

Cir. 2008) (quoting House, 547 U.S. at 537, 126 S. Ct. at 2077), vacated on other

grounds, 

 (2010).

      As we noted above, Petitioner Rozzelle’s “new” evidence consists of

statements in police reports and records purportedly showing that he killed Greg

Leier with a short series of punches only after catching him twice with Barnes in

intimate encounters. The evidence Rozzelle presents consists of (1) Leier’s

statement to Officer Burritt that he “got caught with a woman”; (2) Andrea

Barnes’s statement to Officer Williams that Rozzelle “caught” her with Leier and

her statement to Detective Matz that after returning from visiting his brother

Rozzelle “became crazy”; (3) Rozzelle’s testimony, from his Florida 3.850

hearing, stating that he would not have beaten Leier had Leier not “been caught

twice in sexual encounters” with Barnes; (4) witness Adley Boudreaux’s written

statement that, after seeing Rozzelle enter the motel room and hearing a female

yelling “stop, stop, leave him alone,” he saw Rozzelle enter the motel office,

which Rozzelle argues shows any beating was not extended and occurred before

Rozzelle went to the motel office; (5) motel employee Wesley Rosnick’s written


                                       40
statement that Rozzelle asked for an extra key to his own room around the same

time motel employee Harish Chauhan reported that Leier was bleeding; (6)

Rozzelle and Leier’s statements to police that Rozzelle used only his hands or fists

to beat Leier; (7) Barnes’s medical records, which do not indicate that Rozzelle

knocked out any of Barnes’s teeth; and (8) a police report addendum documenting

Barnes’s injuries, which also does not indicate that Rozzelle knocked out any of

Barnes’s teeth.21

       The jury, which convicted Petitioner Rozzelle of second-degree murder,

heard the substance of virtually all of this evidence. Both Petitioner Rozzelle’s

own statements to police and his brother Anthony’s trial testimony showed that

Rozzelle beat Leier after discovering Leier and Barnes in an intimate encounter.

       21
           Because Rozzelle’s “new” evidence fails in any event, we need not reach the issue of
whether Rozzelle’s evidence that was available at trial but was simply not presented should be
considered “new” under Schlup. Compare Goldblum v. Klem, 

, 226 n.14 (3d Cir.
2007) (“Evidence is not ‘new’ if it was available at trial, but a petitioner merely chose not to
present it to the jury.” (internal quotation marks omitted)), and Amrine v. Bowersox, 

, 1230 (8th Cir. 1997) (“The evidence is new only if it was not available at trial and could
not have been discovered earlier through the exercise of due diligence.”), with Houck v.
Stickman, 

, 94 (3d Cir. 2010) (“[E]vidence . . . not discovered for use at trial because
trial counsel was ineffective . . . may be regarded as new provided that it is the very evidence that
the petitioner claims demonstrates his innocence.”), and Gomez v. Jaimet, 

, 679–80
(7th Cir. 2003) (“Particularly in a case where the underlying constitutional violation claimed is
the ineffective assistance of counsel premised on a failure to present evidence, a requirement that
new evidence be unknown to the defense at the time of trial would operate as a roadblock to the
actual innocence gateway. Here, the very premise of the ineffectiveness claim is that the trial
counsel knew of yet failed to present evidence that Gomez is alleging proves his innocence.”).


                                              41
Anthony testified that Rozzelle had “caught” Barnes with Leier after returning to

the motel the first time, “cold-cocked” both of them and “[k]nocked them out.”

The jury heard Officer Burritt’s testimony that Rozzelle stated, two or three times,

“I caught that guy fucking my old lady and I beat the hell out of him. I’m from the

old school and he had it coming.” The jury heard Petitioner Rozzelle’s taped

statement, in which he said, “I love this woman,” and he “whupped [Leier’s] ass”

after seeing Leier and Barnes together upon returning from the bar the second

time. Thus, Rozzelle’s so-called “new” evidence—Leier’s statement that he “got

caught with a woman,” Barnes’s statements to police that Rozzelle “caught” her

with Leier and “became crazy,” and Rozzelle’s post-conviction testimony—adds

nothing to the accounts the jury already heard at trial.

      The jury also heard the substance of Boudreaux’s and Rosnick’s written

statements, which indicate that the beating necessarily occurred before Rozzelle

went to the motel office for another room key. At trial, Boudreaux himself

testified that he saw Rozzelle beat on the door, saw Rozzelle enter, heard a female

yelling “stop, stop . . . [l]eave him alone,” and subsequently saw Rozzelle enter the




                                        42
motel office.22 Petitioner Rozzelle’s own statements to police, admitted at trial,

and Chauhan’s trial testimony indicate any beating was over before Rozzelle went

to the motel office. Petitioner Rozzelle told police that the police arrived “pretty

quick,” “probably two or three minutes after” he went to the motel office to get

another room key (after Barnes locked herself in the room). Chauhan testified that

only minutes after Leier phoned the front desk asking for security, which was

around the same time Rozzelle was in the office getting another room key,

Chauhan saw Leier, his face covered with blood, walking down the motel stairs.

Whatever happened that night, the jury heard trial evidence that the beating was

before Rozzelle went to the motel office.

       The jury also heard ample testimony that Petitioner Rozzelle beat Leier

using only his fists. In Rozzelle’s taped statement, played for the jury, Rozzelle

affirmed in response to police questioning that he did not use any weapons to beat

Leier and did not pick up any objects and hit Leier with them. Rozzelle stated that

he struck Leier only with “[a] couple of good left hooks” and “[a] couple of right



       22
          We recognize that Boudreaux also testified, however, that he was not sure in which
order it happened because too much time had passed and admitted Rozzelle’s entering the motel
office may have been prior to his getting into the room or after. Nonetheless, Boudreaux did say
the entering and yelling was before Rozzelle went to the motel office.


                                            43
crosses, too.” EMT Brian Hughes, who treated Leier at the motel, testified at trial

that before Leier lost consciousness, he stated that he was hit with a fist. Hughes

testified that he asked Leier if he was hit with any other objects, and Leier said no.

Dr. Michael Berkland testified that Leier’s injuries were consistent with a beating

from a man’s fists, and Dr. Carl Glidden testified that Leier’s injuries “could be

consistent” with a beating from a person’s fists. Rozzelle’s and Leier’s additional

statements that Rozzelle beat Leier using only his fists are cumulative of this trial

evidence.

      Barnes’s medical records and a police report addendum do show that

Rozzelle did not knock out Barnes’s upper teeth, contrary to Officer Williams’s

trial testimony. However, a photo of Barnes introduced at trial to prove her

injuries clearly shows her upper teeth, which already contradicts Officer

Williams’s testimony.

      In any event, these “new” additions, considered with “all the evidence, old

and new,” House, 547 U.S. at 538, 126 S. Ct. at 2077 (internal quotation marks

omitted), do not demonstrate that “it is more likely than not that no reasonable

juror would have found [the] petitioner guilty beyond a reasonable doubt” of

second-degree murder, id. at 537, 126 S. Ct. at 2077. On the contrary, Rozzelle’s


                                        44
“new” evidence lends further support to the jury’s finding that Rozzelle acted with

a “depraved mind.”

      As we noted above, a conviction for second-degree murder in Florida

requires that the defendant kill “by any act imminently dangerous to another and

evincing a depraved mind regardless of human life, although without any

premeditated design.” Fla. Stat. § 782.04(2). The Florida Supreme Court has

defined an “act imminently dangerous to another and evincing a depraved mind”

as “an act or series of acts that: (1) a person of ordinary judgment would know is

reasonably certain to kill or do serious bodily injury to another, and (2) is done

from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act

itself indicates an indifference to human life.” State v. Montgomery, 

, 255–56 (Fla. 2010) (quoting Bellamy v. State, 

, 683 (Fla. 2d

DCA 2008)). “[I]ntent or state of mind is a jury question that, in most instances,

cannot be ascertained by direct evidence . . . .” State v. Stenza, 

,

171 (Fla. 2d DCA 1984).

      To the extent Barnes’s injuries are even probative of Rozzelle’s state of

mind as to Leier’s murder, Barnes’s medical records only support the

prosecution’s case that Rozzelle killed Leier with “an evil intent” and with


                                         45
“indifference to human life.” Montgomery, 39 So. 3d at 256. Barnes’s medical

records document a litany of injuries Rozzelle inflicted on Barnes, including a

fractured left clavicle, loose teeth, a split lip, and numerous bruises to her upper

torso. Officer Williams’s trial testimony might have been inaccurate about

Barnes’s teeth, but this “new” evidence Rozzelle introduces was more damaging

than it was helpful to his heat of passion argument.

      The balance of the evidence is no more favorable to Rozzelle’s heat of

passion claim. Petitioner Rozzelle’s brother Anthony testified at trial that

Rozzelle was “[n]ot excited” when he described catching Barnes and Leier

together after returning to the bar from the motel. See Douglas v. State, 

 887, 890 (Fla. 4th DCA 1995) (explaining that a person who kills in the heat of

passion is “intoxicated by his passion” and in a “condition of frenzy and

distraction” (quoting Disney v. State, 

, 601 (Fla. 1916))). More

importantly, Petitioner Rozzelle’s taped, post-arrest statement did not evoke the

“blind and unreasoning fury” characteristic of a heat of passion killing. Id.

(quoting Disney, 73 So. at 601). Rather, Rozzelle provided a calculated

explanation for why he beat Leier. Rozzelle was not overcome by rage; he beat

Leier because Rozzelle was “from the old school” and Leier “deserved an ass


                                        46
whupping” and “had it coming.” After he was arrested and brought to the police

station, Rozzelle told police that he would have beaten Leier even more badly had

he “thought about it”:

      You’re lucky this [foot] wouldn’t fit up his ass or it would have been
      there, too . . . . I don’t feel sorry about it. The only thing that I didn’t do
      to that motherfucker is throw him off the balcony, and if I had probably
      thought about it, I would have done that, too.

Given that Rozzelle beat Leier not once but at two different times separated by

several hours, and given Rozzelle’s cavalier, mean-spirited and unapologetic

attitude toward his brutal attack, the jury was entitled to conclude from the

evidence that Rozzelle acted with a depraved mind and not in the heat of passion.

      “New” evidence purportedly showing that Rozzelle’s beating of Leier was

not a “prolonged assault” also does not show that Rozzelle did not kill Leier with a

“depraved mind.” Rozzelle argues that he lacked a “depraved mind” because

Boudreaux’s and Rosnick’s unadmitted statements show his beating of Leier

lasted “only seconds.” But these statements show no such thing. In his written

statement, Boudreaux indicated that Rozzelle entered the motel room and that

Boudreaux heard a woman “yelling stop, stop, leave him alone” before he saw

Rozzelle go to the motel office. Rosnick’s statement noted that “[a]t about the




                                         47
time [Rozzelle] was leaving [the motel office] or a few seconds afterwards [Leier]

called the office asking for security” and Chauhan observed Leier bleeding.

Nothing Boudreaux or Rosnick stated indicates how long Rozzelle’s second

beating lasted.

      Moreover, the allegedly brief duration of Rozzelle’s second assault does not

show that he lacked a “depraved mind” given the vicious and severe nature of the

second assault. Leier’s horrific injuries provide ample evidence of Rozzelle’s

depravity, the duration of the beating notwithstanding. See Beasley v. State, 

, 660–61 (Fla. 2000) (showing that severity of a murder victim’s

injuries is probative of killer’s mens rea). Indeed, when Officer Burritt arrived at

the motel, Leier had “blood pouring out of his mouth” and “was having difficulty

breathing and talking.” Burritt explained that Leier’s head “almost looked twice

the size of a normal human being” due to “massive swelling.” Burritt had “never

seen anybody beaten so badly in [his] life.” Dr. Glidden testified that upon Leier’s

arrival at the hospital, Leier’s brain “was more or less like jello at that time, no

form or function to it.” Dr. Witkind testified that Leier had massive bleeding in

his brain and under his skull. Dr. Berkland testified that Leier’s injuries included

bruises around the eyes, face and mouth, and on the scalp, chest, both arms, and


                                        48
deep bruises extending to the muscle tissue. The extreme trauma Rozzelle so

rapidly inflicted on Leier is itself compelling evidence of Rozzelle’s depraved

mind.

        In sum, the jury already heard evidence that Petitioner Rozzelle killed Leier

only after discovering Leier and Barnes in sexual encounters. Yet Rozzelle’s own

statements, his brother’s testimony, the extent of Leier’s injuries and other trial

evidence would more than entitle a jury to conclude that Leier’s homicide was

second-degree murder beyond a reasonable doubt. See Forehand v. State, 

, 244 (Fla. 1936) (explaining that a fact pattern may support jury findings of

either depraved mind or heat of passion). At a minimum, the evidence, old and

“new” together, does not show that “it is more likely than not that no reasonable

juror would have convicted” Rozzelle of second-degree murder. Johnson, 256

F.3d at 1171 (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867).

                                 IV. CONCLUSION

        For all of these reasons, we affirm the district court’s denial of Rozzelle’s

time-barred §2254 petition.

        AFFIRMED.




                                         49