FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT SEPTEMBER 11, 2000

THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________ No. 98-4971

________________________ D. C. Docket No. 97-08535-CV-WDF MICHEAL WYZYKOWSKI, Petitioner-Appellant,

versus DEPARTMENT OF CORRECTIONS, Harry K. Singletary, ATTORNEY GENERAL, Robert Butterworth, Respondents-Appellees.

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

_________________________ (September 11, 2000) Before ANDERSON, Chief Judge, DUBINA and SMITH *, Circuit Judges. ANDERSON, Chief Judge:

_______________________

* Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by designation. Micheal Wyzykowski appeals the district court's denial of his petition for a writof habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, we

vacate and remand.

I. BACKGROUND In 1992 Wyzykowski was charged with the first degree murder of Fred Butterworth and the attempted burglary of shoes from the victim’s dwelling. After pleading guilty to second degree murder in15th Judicial Circuit Court, Palm Beach County, Florida, pursuant to a negotiate d plea agreement, Wyzykowski was convicted and sentenced to twenty-three years impris onment. Wyzykowski did not file a direct appeal or pursue state collateral relief. In July 1997, Wyzykowski filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He claimed th at he was denied his Sixth Amendment right to effective assistance of counsel. In particular, he claimed that his counsel failed to investigate the case properly befo re advising him to plead guilty to second degree murder. In addition, Wyzykowski claimed that he was actually innocent of second degree murder because the victim actua lly started the fight with him; of first degree premeditated murder because he wa s too intoxicated to form the requisite intent and again because the victim starte d the fight; of first degree felony-murder because he was not guilty of attempted burglary; and of attempted burglary because the shoes he allegedly attemp ted to burgle were actually hi s own shoes, he lacked the capacity due to intoxication to form the requi site specific intent for burglary, and thereis no evidence that he entered the dwelling to commit a crime. The new evidence for these claims is Wyzykowski’ s detailed statements regarding the events that led to

Butterworth’s death. Wyzykowski explained that he pleaded guilty at the tearful urging of his appointed defense counsel, who indicated, on the eve of trial, that she was not prepared to try the case and that she woul d withdraw if he did not change his plea. Wyzykowski also contended that his counsel informed him that it made no difference that Buttersworth attempted to take his shoes, that “the indictment nullified all defenses,” and that if he proceeded to trial he would surely be found guilty and, even if the State did not seek the death penalty , the judge would still sentence him to death.

He claimed that had he had effective assistance of counsel he would have been able to prove that he was innocent of the crimes with which he was charged and the crime to which he pleaded guilty. On August 25, 1997, the magistrate judge issued the usual show cause order, ordering a response to Wyzykowski’s petition. The State responded, asserting that the claim was time-barred. However, the State di d not file the record of the state court proceedings. See Rule 5, Rules Governing § 2254 Cases. On April 21, 1998, a magistrate judge issued a report, noting inpassing that petitioner failed to exhaust his claims in state court, but recommending that the petition be dismissed for failure to comply with the one-year limitation period for habeas corpus petitions enacted by theAntiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104- 132, codified as amended at 28 U.S.C. § 2244( d). On May 28, 1998, the district court dismissed the petition as time-barred. On July 6, 1998, the district court gr anted a certificate of appealability on the following issue:

Whether the Antiterrorism and Eff ective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, c odified as amended at 29 U.S.C. § 2244(d), as applied to Petitioner is an unconstitutional suspension of the Writ of Habeas Corpus in violation of the United States Constitution Article I, Section 9, clause 2. Accordingly, Wyzykowski appeals on this issue.

II. DISCUSSION

We review the district court’s di smissal of Wyzykowski’s petition de novo because this issue is solely one of law. See Sandvik v. United States , 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam ). Wyzykowski concedes that his federal habeas corpus petition was not filed within the one-year limitation period esta blished by AEDPA, but argues that this limitation period constitutes an unconstitutional suspension of habeas relief or that an “actual innocence” exception to the one-year limitation period must be read into the statute to avoid rendering the habeas remedy “inadequate and ineffective” and violating the Suspension Clause of the Constitution. The Suspension Clause provides: “The Pri vilege of the Writ of Habeas Corpusshall not be suspended, unless when inCases of Rebellion or Invasion the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Despite this constitutional restriction, the “judgments about the pr oper scope of the writ are ‘normally for Congress to make.’” Felker v. Turpin , 518 U.S. 651, 664, 116 S.Ct. 2333, 2340 (1996) (quoting Lonchar v. Thomas , 517 U.S. 314, 323, 116 S.Ct. 1293, 1298 (1996)). In Swain v. Pressley , 430 U.S. 372, 97 S.Ct. 1224 (1996), the Supreme Court held that “the substitution of a collateral remedy wh ich is neither inadequate nor ineffective to test the legality of a person’s detenti on does not constitute a suspension of the writ of habeas corpus.” Id. at 381, 116 S.Ct. at 1230. We thus consider whether § 2244(d)’s limitation period renders the remedy in adequate or ineffective to test the legality of a person’s detention.

The “substitution” at issue here is of collateral relief with a one-year limitation period for collateral relief without a limitati on period. In particular, § 2244(d)(1) now provides: A 1-year period of limitation shall apply to any application for writ of habeas corpus by 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 of direct review or the expiration of the time for seeking such review; (B) the date on which the impedi ment of 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 initially1 We note that in Lonchar v. Thomas , 517 U.S. 314, 116 S.Ct. 1293 (1996), the Supreme Court vacated a decision of this Court which dismissed a first habeas petition for “special ad hoc ‘equitable’ reasons not encompassed within the framework of Rule 9,” in particular, that petitioner had waited almost six years, and until the last minute, to file a federal habeas petition. Id. at 322, 116 S.Ct. at 1298. The Supreme Court held that such a petition is governed by the Habeas Corpus Rules, not by generalized equitable considerations. See id. at 332, 116 S.Ct. at 1303. Thus, it is clear that Rule 9, rather than any equitable doctrine, provided the only form of “time limitation” for first federal habeas petitions prior to the enactment of AEDPA. 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 disc overed through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Prior to the addition of this limitation period, the only time limitation was provided by Rule 9(a), Ru les Governing § 2254 Cases, which permits dismissing a § 2254 habeas petition “if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner show s that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.” 1 Section 2244(d)(1), in contrast, provides for a one-year limitation period and doe s not require a showing that the state was prejudiced. However, it does resemb le Rule 9 by not beginning the one-year period until the “factual predicate of the cl aim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). In addition, in the event of illegal state ac tion preventing the petitioner from filing, the2 This is consistent with what our sister circuits have held. See Smith v. McGinnis , 208 F.3d 13, 17 (2d Cir. 2000) (stating that the limitation period for filing habeas petitions may be equitable tolled in extraordinary circumstances); Miller v. New Jersey Dep’t of Corrections , 145 F.3d 616, 618 (3d Cir. 1998) (holding that § 2244(d)’s limitation period can be equitably tolled in extraordinary circumstances); Harris v. Hutchinson , 209 F.3d 325, 329-30 (4th Cir. 2000) (concluding that § 2244(d) is subject to equitabl e tolling, at least in principle); Davis v. Johnson , 158 F.3d 806, 811 (5th Cir. 1998) (holding that § 2244(d)’s limitation period can be equitably tolled in “rare and exceptional circumstances”), cert. denied , 526 U.S. 1074, 119 S.Ct. 1474 (1999); Calderon v. United States Dist. Ct. , 163 F.3d 530, 541 (9th Cir. 1998) (en banc ) (“[Section] 2244(d)(1) can be tolled if extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.”) (internal quotation marks omitted), cert. denied , 526 U.S. 1060, 119 S.Ct. 1377 (1999); Miller v. Marr , 141 F.3d 976, 978 (10th Cir.) (“It must be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable tolling.”), cert. denied , 525 U.S. 891, 119 S.Ct. 210 (1998). limitation period does not begin until after th e state impediment is removed. See 28 U.S.C. § 2244(d)(1)(B). Also in the event that the Supreme Court newly recognizes a constitutional right and makes it retroac tively applicable to cases on collateral review, the limitation provision permits fili ng a petition asserting such a right for a year after the initial rec ognition of the right. See 28 U.S.C. § 2244(d)(1)(C). Moreover, “[section 2244] pe rmits equitable tolling ‘when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable with diligence.’” Steed v. Head , – F.3d –, –, 2000 WL 1028509 at * 2 (11th Cir. 2000) (quoting Sandvik v. United States , 177 F.3d 1269, 1271 (11th Cir. 1999) (per curiam )). 2 Every court which has a ddressed the issue–i.e. , whether, as a general matter, § 2244(d) constitutes an unconstitutional suspen sion of the writ–has concluded that it3 See Lucidore v. New York State Division of Parole , 209 F.3d 107, 113 (2d Cir. 2000) (rejecting facial challenge to AEDPA’s statute of limitation because it leaves petitioners with some reasonable opportunity to have their claims heard on the merits and, therefore, “the limitations period does not render the habeas remedy ‘inadequate or ineffective to test the legality of detention,’ and therefore does not per se constitute an unconstitutional suspension of the writ.”), petition for cert. filed , 69 U.S.L.W. 2086 (Jul. 5, 2000); Miller v. Marr , 141 F.3d 976, 978 (10th Cir.) (holding that, where petitioner doe s not contend he is actually innocent, the limitation period does not render the habeas remedy inadequate and ineffective), cert. denied , 525 U.S. 891, 119 S.Ct. 210 (1998); Molo v. Johnson , 207 F.3d 773, 775 (5th Cir. 2000) (per curiam) (“The 1-year limitations period of the AEDPA does not violate the Suspension Clause unless it renders the habeas remedy inadequate or ineffective to test the legality of detention. Molo [who failed to show factual innocence] ha s not shown how the limitations period made the habeas remedy inadequate or ineffective for him, since nothing prevented him from filing a petition before the limitations period expired.”) (internal quotation marks and footnote omitted); Turner v. Johnson , 177 F.3d 390, 392-393 (5th Cir.) (per curiam) (“Turner cannot show that the limitations period has rendered his habeas remedy inadequate or ineffective. We therefore reject Turner’s claim that § 2244 is unconstitutional.”), cert. denied , 120 S.Ct. 504 (1999); Davis v. Bumgarner , 201 F.3d 435 (Table), 1999 WL 1032617 (4th Cir. 1999) (per curiam ) (unpublished disposition) (“[T]he limitations period for § 2254 petitions in 28 U.S.C.A. § 2244(d) (West Supp. 1999) does not violate the Suspension Clause of the Constitution.”); Hampton v. Madding , -- F.3d -- (Table), 2000 WL 800724 (9th Cir. 2000) (mem.) (unpublished disposition) (rejecting argument that §2244(d) violates the Suspension Clause where petitioner has not made a showing of actual innocence); Thomas v. Straub , 10 F.Supp.2d 834 (E.D.Mich. 1998) (rejecting Suspension Clause challenge to limitation period where petitioner does not fit within the actual innocence exception, if such an exception exists); cf. Weaver v. United States , 195 F.3d 123, 123 (2d Cir. 1999) (“We hold that the application of the limitations period in 28 U.S.C. § 2255 to dismiss a first motion for relief under § 2255 does not per se violate the Suspension Clause of the federal Constitution”), cert. denied , 120 S.Ct. 1733 (2000). does not. 3 The Supreme Court has not directly addressed the issue in the context of a first federal habeas corpus petition. However, in Felker v. Turpin , 518 U.S. 651, 116 S.Ct. 2333 (1996) , the Court held that AEDPA’s restrictions on successive petitions “do not amount to a ‘suspension’ of the writ.” Id. at 664, 116 S.Ct. at 2340. In so holding, the Court noted that restri ctions on the scope of the writ, like the doctrine of abuse of the writ, are “‘ a complex and evolvi ng body of equitable principles informed and controlled by historical usage, statutory developments, andjudicial decisions.’” Id. (quoting McCleskey v. Zant , 499 U.S. 467, 489, 111 S.Ct. 1454, 1467 (1991)). The Court held that “j udgments about the proper scope of the writ are ‘normally for Congress to make.’” Id. (quoting Lonchar , 517 U.S. at 323, 116 S.Ct. at 1298). In light of the above mentioned excep tions to the one-year limitations period, and in light of the foregoing precedent, we readily conclude that, as a general matter, the § 2244(d) limitation period does not rende r the collateral relief ineffective or inadequate to test the legality of detenti on, and therefore is not an unconstitutional suspension of the writ of habeas corpus. Having concluded that §2244(d) does not per seconstitute an unconstitutional suspension, we turn to Wyzykowski’ s argument that the limitation period unconstitutionally suspends habeas relief where the petitioner shows actual innocence and, therefore, an actual innocence exception must be read into the provision. In other words, absent an exception for actua l innocence, he contends, § 2244(d) works an unconstitutional suspension of the writ of habeas corpus when applied to him. Wyzykowski claims that he is actually i nnocent of second degree murder, the crime to which he pleaded guilty, and of firs t degree murder and burglary, the crimes initially charged but dropped pursuant to the plea agreement. He contends his new evidence, in particular his own testimony, establishes that he was actually innocent of

these crimes.4 See Schlup v. Delo , 513 U.S. 298, 325, 115 S.Ct. 851, 866 (1995) (“Indeed, concern about the injustice that results from the conviction of an innocent person has long been at the core of our criminal justice system.”).

5 See “Confronting the New Challenges of Scientific Evidence: DNA Evidence and the Criminal Defense,” 108 Harv.L.Rev. 1557, 1571-82 (1995) (discussing use of DNA evidence in the post-conviction context); Cynthia Bryant, “When One Man’s DNA Is Another Man’s Exonerating Evidence,” 33 Colum. J. L. & Soc. Probs. 113, 117-34 (2000) (discussing DNA evidence and its use in postconviction claims of actual innocence, and noting that “[p]ostconviction DNA testing has resulted in the release of sixty-five inmates from prison”); Jim Dwyer et al. , Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000) (detailing ten cases of convicted defendants ultimately released due to discovery of evidence of their actual innocence).

6 See, e.g., Lucidore , 209 F.3d at 113 (holding that because petitioner failed to demonstrate actual innocence, the question of whether the Constitution requires an “actual innocence” exception to AEDPA’s statute of limitations need not be reached); see also Miller , 141 F.3d at 978 (holding that, where petitioner does not contend he is actually innocent, the limitation period does not render the habeas remedy inadequate and ineffective, but noting that there may be circumstances–for example a constitutional violation has resulted in the conviction of one who is Wyzykowski’s argument raises a troubling and difficult constitutional question. Where the petitioner can show actual inno cence and § 2244(d)’s limitation period has expired, does the bar to filing a first federal petition constitute an unconstitutional suspension of the writ of hab eas corpus? The question raises concerns because of the inherent injustice that results from the conviction of an innocent person, 4 and the technological advances that can provi de compelling evidence of a person’s

innocence. 5 The courts faced with Suspension Clause challenges to § 2244(d) have been able to avoid deciding the difficult constitutional issue of whether the clause requires an exception to §2244(d) for actual innocence because the petitioners were unable to make a showing of actual innocence. See Lucidore v. New York State

Division of Parole , 209 F.3d 107 (2d Cir. 2000). 6actually innocent–where the limitation period “at least raises serious constitutional questions and possibly renders the habeas remedy inadequate and ineffective”); Molo , 207 F.3d at 775 (“Without deciding whether proof of factual i nnocence would toll the limitations period, we find that Molo does not show that he was factually innocent.”); Thomas , 10 F.Supp.2d at 834 (E.D.Mich. 1998) (rejecting Suspension Clause challenge to limitation period where petitioner does not fit within the actual innocence exception, if such an exception exists); Rodriguez v. Arguz , 990 F.Supp. 275, 283 (S.D.N.Y.) (“[A]t least where no claim of actual or legal innocence has been raised, as long as the procedural limits on habeas leave petitioners with some reasonable opportunity to have their claims heard on the merits, the limits do not render habeas inadequate or ineffective to test the legality of detention and, therefore, do not constitute a suspension of the writ in violation of Article I of the United States Constitution.”), aff’d , 161 F.3d 763 (2d Cir. 1998) (per curiam) (affirming “for substantially the reasons stated by the district court”); accord Rashid v. Kuhlmann , 991 F.Supp. 254, 260 n. 3 (S.D.N.Y. 1998). In the instant case, neither the magistrate judge nor the district court addressed Wyzykowski’s claims of actual innocence. We agree with the Second Circuit that the factual issue of whether the petitioner can make a showing of actual innocence should be first addressed, befo re addressing the constitutional issue of whether the Suspension Clause requires such an excepti on for actual innocence. “‘If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pa ss on questions of constitutionality . . . unless such adjudication is unavoidable.’” New York City Tran sit. Auth. v. Beazer , 440 U.S. 582, 99 S.Ct. 1355, 1364 (1979) (quoting Spector Motor Service, Inc. v. McLaughlin , 323 U.S. 101, 105, 65 S.Ct. 152, 154 (1944)). For example, “‘constitutional issues affecting legislation will not be determined . . . at the instan ce of one who fails to show that he is injured by th e statute’s operation.’” Id. at 583 n. 22, 99 S.Ct. at 1364 n. 22 (quoting Rescue Army v. Municipal Court , 331 U.S. 549, 568-69, 67 S.Ct. 1409, 1419-20 (1947)); see Ashwander v. Tennessee Valley Auth. , 297 U.S. 288, 347, 567 Accordingly, we make no ruling on issues relating to the effect of the guilty plea. See Bousley v. United States , 523 U.S. 614, 623-24, 118 S.Ct. 1604, 1611-12 (1998).

8 We note that Wyzykowski did not file a direct appeal or any collateral challenge in state court. In the district court, the State raised the issue of Wyzykowski’s failure to exhaust his claims. However, the State asserted that it would be futile for Wyzykowski to present his claims in state court because of the two-year statute of limitations in Fla .R. Crim. P. 3.850(b). For the first time at oral argument before this panel, the State suggested that there may be an exception to the two-year statute of limitations in the Ru le 3.850(b) in the case of actual innocence. The State suggested that a dismissal without prejudi ce for lack of exhaustion might be appropriate, whereby the state court rather than the federal court would address the factual issue of actual innocence in the first instance. Again, we decline to address issues relating to exhaustion, preferring that they be addressed in the first instance by the district court if appropriate. S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). For several reasons, we decline to address the factual issue whether Wyzykowski can make a showing of actual innocence, preferring that the district court do so in the first instance. First, as notedabove, the State did not file in the district

court the record of the stat e court proceedings, and thus there is a complete absence in the record on appeal concerning whether Wyzykowski could make a showing of actual innocence. Although it is represente d to us that Wyzykowski entered a guilty plea, we do not have the bene fit of any record evidence with respect thereto; for example, we do not have access to the plea colloquy. 7 Second, in any event, such

factual determinations are best made in the first instance by the district court. Indeed, if on remand, the district court determin es that Wyzykowski has made a showing of actual innocence, we would prefer to have the benefit of the district court’s legal analysis of the difficult Suspension Clause issue before tackling same ourselves. Accordingly, we remand to the district court. 8III. CONCLUSION For the foregoing reasons, we vacate the dismissal and remand to the district court for further proceedings not inconsistent with this opinion.

VACATED and REMANDED.DUBINA, Circuit Judge, concurring specially: I concur in Chief Judge Anderson’s well -reasoned opinion for the court. I write specially simply to point out that on re mand, I doubt the petitioner will be able to present sufficient evidence to demons trate “actual innocence.” Based on my experiences as a former trial judge, I find petitioner’s conclusory a llegations of “actual innocence” to be totally inconsistent with wh at occurs at a guilty plea. Moreover, it is troubling to me that petiti oner waited over five years afte r his conviction to file his federal habeas petition. This delay is inconsistent with a claim of actual innocence. Nevertheless, I agree withChief Judge Anderson that this record is not developed sufficiently for us to make these factual findings in the first instance. That

is a function of the district court.