2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

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UNIT ED STA TES C OURT OF AP PEA LS F OR TH E TH IRD CIR CU IT

No. 00-5150

FRANK HUBB ARD,

Appellant

v.
STEVEN PINCHAK; THE ATTORNEY GENERAL OF THE STATE OF NEW JERS EY; P ETER VERNI ERO

On Appeal from the United St ates Distri ct Court f

or the Dis tri ct of New Je rse y (D.C. Civi l No. 97-cv- 03717) Distric t Judg e: Ho n. Jero me B . Sima ndle

Argued May 5, 2004

Before: SLOVITER and FUENTE S, Circu it Judges , and PO LL AK , Distri ct

Judge *
(Fil ed: August 5, 2004) Mary Gibbons (Argued) Toms River, New Jersey 08757
Attorney for Appellant

Peter C. Harvey Attorney General of New Jersey Trenton, New Jersey 08625

Linda K. Daniels on (Argued) Deputy Att orney

General Of Counsel and on Brief Divisi on of CriminalJusti ce Appellat e Bureau Trenton, New Jersey 08625
Attorney s for Appell ees

OPINI ON OF THE COURT

SL OV ITE R, Circu it Judge

.
Petitioner

Frank M. Hubbard seeks

a writ of habeas c orpus pursuant to 28 U.S .C. § 2254. He procedural ly default ed his claim s in the s tate courts. He seek s to
ove rc ome the proce dural def ault by asserting his “act

ual innoc ence,” Bousley

v. Un ite d S tate s , 523 U.S. 614, 623 (1998); Sch lup v . Delo , 513 U.S. 298, 327 (1995), a claim that the Distric t Co urt
re jecte d. We must therefor e examine the scope and c onto urs o f the cl aim of actua l innocence as a gatewayto consi derati on of th e merits o f petition er’s ha beas cla i m notw ithstand ing the proc edur al default. * Hon. Louis H. Poll ak, Seni or Judge, Unit ed State s District Court for the East ern District

of Pennsy lvania , sitting by designation.2 FACTS

On June 22, 1981 in Camden, New Je rse y, David O’Neal 1 w as ki lle d b y a gunshotwound to the face. Ther eafter , the State of New Jersey indicte d H ub bard on six felon y counts , including m urder,
ro bb er y, cons piracy to c om mit r obb er y, and fi re arms violations. Hubbard pled not guilty to all counts. Also charged as defe ndan ts were John Mo nroe, who entere d a g ui lty p le a in excha nge fo r a thir ty -y earsentence , and Stanley Ban k s, wh o w as a fu gitive a t the time of trial.

Monroe testified at t r ial to the details of the cr imes pursua n t to a ple a agreementwith the prosecu tor. He stated t hathe, H ubb ard, an d B anks met a t hi s resi dence wh ere the y di scussed r obbing O’N eal, that he a ssumed Hubbard had a gun beca use h e obs erved a bulg e in Hub bard’s front, that Hubbard s howed hi m
a gold watch t o sellto O’Neal, and that, at Hub bard’s direction, Banks drove t o O’Neal’s. Wh en they arr i ved, H ubbard hand ed O ’Ne al the g old wa tch, pu lled his revolver and, when O’Neal reached for his
own gun, Hu bbar d sho t O’N eal in h is face. Hub bard and Ban ks retu rned to their vehicl e and Monroe ran home.

Lore lie Truluck , Mon ro e’ s girl frien d , test ifie d that s he, Monroe, Hu bba rd, and B anks dro ve to O ’Neal’s place of resi dence in te ndi ng t o r ob h im, that the m en w ent into the res idence wh ile she remained i n the vehi cle and di d not witness anyt

hing related to their entry , but that she saw Hubbard and Banks run back to the vehi cle, and that H ubbard inst ructed
someone to dri ve an d wra pped the gu n in

a towel. Tru luck’s account was consi stent
w ith M on ro e’ s s ub se qu en t te sti m on y. Gary Hammon, the lone eyewitness who was not involved in the incident, al so test ifie d. Ha mm on live d “[r] ight acr oss fr om” O’Neal and althoughhe did not s ee the shooti ng its elf, he testifie d that there
were three p erpetr ator s invol ved, al l of whom he saw conve rsing with ea ch other, and tw o of

whom he saw knock on O’N eal’s doo r. Ham mo n testifie d that a ll the menwe re bla ck, and that there was a shorte r ma n who was “[f]ive foot something” and a tal ler manwh o w as “six foot som ethin g” o r “six foo t tw o.” T rial Tr. at 14- 15 (Ap r. 22, 1982). Hammon test ifie d that when O’Neal opened th e door, one o f the tw o m en sh ot him . A ll three men fled withou t entering O ’Neal’s resi dence. He did not get a good look at any of their faces.

The jury found Hubbard guilt

y of felony mu rder an d rob bery, and not g uilty of t he ha ndg un p os se ss io n c ha rg es . O n July 6, 1982, the stat e court s entenced Hub bard to li fe impris onment with a 25- year pa ro le i ne lig ib ilit y on the fel ony murdercharge, and a 20-year conc urre n t term o n the ro bber y count. 1 The v ictim’s name appears throu gho ut the re cord as eithe r “O ’Ne al” or “O’Neil. ” We will conform t o the District Court’s spelling and use “O’Neal” herei n.3

There was no testimony l inking any gun, putatively the murd er we apon , to Hub bard and n o fo rensic evidence linking him to the v ictim or the s cene of the crime. Hub bard had filed a B ill of A lib i Particulars before the grand jur y charged him in which he st at ed he wa s in A tlantic C ity, New Jersey on t

he night of

the crime, which took plac e in Camden, N ew Je rse y.

PROCEDURAL HI STORY

This matter has tr aveled up and dow n the st ate courts of New Jersey, an d it is unn ecess ary to reco unt t he full de tails he re

. We will li mit the facts to the p roc eedings nece ssary to de cide th is appeal from the Dist

rict Court’s order de nyi n g Hubbard’s pet iti on for a writ of habeas corpus. Hub ba rdfi le d two sepa rate petitions for

pos t- con vi ct io n r el ie f ( PCR) in the state cour ts – the firs t in August 1988, and the secon d in M ay 1994 . Both
were dismis sed as unt imely , andtherefore
were procedural ly

barred by

New Jersey state law . A ltho ugh the A ppella te Divisi on of

the New Jersey Superior C ourt agreedthat t

he clai ms raise d in Hub bard’s
secon d PC R p etition w ere tim e barre d, it nevertheless stat ed that it “c arefu ll y reviewedeach of the s even [claims] a nd [is] sati sfied t

hat the re is no basis to grant [Hubbard] rel ief. ” App.II at 209.

On July 28 , 1997, Hubbard fil ed a pro se petition forhab eas co rpus re lief in the Dis tric t Co urt, ra is in g se vencl ai ms that he had set forth in his se cond PC R petition. They

are: (1) th atth e i ndi ctme n t againsthi m wa s based on the perjurious t esti mony of the arresti ng d etectiv e be fo re the grand j ury ; (2) that his sent ence does not comp l ywith New Jersey sentencing crit eria; (3) that the tri al court

impr o perly deprived him o f his rig ht to
cross- examine one of the state’s witnesse s; (4) that the police violate d h is Fifth Amendment right to counsel byignori ng his re quest for

an attor ney during cust odial inter rogati on; (5) that the tri al court gave a prejudi cial suppl emental ju r y instruc ti on on the law of accomplices; (6) that the tri al cour t impro perl y adm itt e d certa i n photographs into evi dence; and (7) tha t his tri al counsel p r ovided ineff ecti v e assis tance.
App.I at 3.

The District Cou rt dismis sed two of the grounds r aised by Hubbard for subs tantiv e r easons and t hey ar e not at iss ue in this appeal. Th e District Cou rt deniedthe reque stedwrit of habeas corpus
on the five other cl aims because of Hub bard’s pro ced ura l default, st ating, “Petitioner

has n ot argu ed tha t he is innocent of the crim e for w hich the jury convict ed him,” App.I at 10, and4

concluded, “Not having shown cause for his proc edur al default b elow or actua l innocence of t

he crimes f

or which he was convict ed, Gro und s On e, Th ree, Fo ur, Six and Seven of peti tioner ’s habeas corpus petitio n a re n ot co gni zab le in t his c our t.” App.I at 11.

Hub bard then fi led a pro se motion of reconsi derati on o f the D istrict Court’s denialof habeas rel ief. In response to this motion, th e D istrict

Court held t

hat althoughthe moti on for recons ideration was timely

file d,
[Petition er ] does not raise anyfactua l or legalpoint overlooked

by this C ourt. Petitioner

challe nges this Cou rt’s s t atem ent tha t he di d not rais e actua l innoce nce as an issue in his pe tit ion, but offers no evidence that he did r ai se
su ch an issu e withou t proceduraldefault , andalso offers no evidence that he is actua llyi nnocent for

the charges he is p resen tly incar cerat ed for . M r

. Hubbard’ s petitio n wa s d eniedon [the fi ve rele va n t grounds] due to proce dural de fa ult, so even if he had d emonstrat ed some issue of actualinno cenc e here , it
wo uld not h ave c hang ed this Cou rt’s earlier den ial of h is applic ation. App .I at 26 (emph asis added ). We issued a certific a te of appe alability on the is sue “whe t her the Distri ct C ou rt p ro pe rly r ejecte d App ellant’s atte mpt to overc ome the proceduraldef

aul t o f cl ai ms #1, #3, #4, #6 and #7 by ass ert ing his ‘actua l innocenc e.’ ” Ap pe l l an t ’ s B r

. at 2. We have jurisdictio n to rev iew th e den ial o f the habe as w rit under 28 U.S.C. §§ 1291 & 2253.

DIS CUSS ION

I.

The S tate contends th at Hub bard’s alle gationof actualinnoc en ce is not prop erly befo re this co urt bec ause it appeared“[f]or

the first tim e in his motion for re consider ation of the [D]is tri ct [C]ou rt’s opinion.” A ppellee’s B r. at15. 2

Hub bard’s motion fo r
r econsider ationas well as his hab ea s petition wer e file d pro se . We have previously stated that a petitioner’s

2 At o ral argu men t the Sta te
conc eded , “Th e w hole iss ue of timing is an academic issue because in the first inst ance, t

here is no viable clai m of actualinnocence, ” and that if such a viable clai m were made even in a motion for recons ideration, in the int erest of just ice the Distr ict Court would have had to addres s it . Tape of Oral Argument (Ma y 5, 2004).5

failure to spe c ificall y articulate his cl aim as one of “actualinno cenc e” sh ould not preclu d e revie w of the merits o f h is cl aim. [The petiti o ner] clear ly

argued that the go vern men t c ould

n ot satisfy th e factua l prerequisi tes of a

. . . convict ion. When proper l y viewed t hrough the more forgivi ng lens use d t o constr ue pro se habeas petiti ons, we conclude that the clai m of “ actua l inn o cence” wa s prop erly befo re the D istrict Co urt.

UnitedS tates v. G arth , 188 F.3d 99, 108 (3d Cir. 199 9).

This case pres e nts a similar sit uation. Am ong the g rounds H ubbard rais ed in his habeas pet iti on wer e “ineffective trial cou nsel” w ho “d id nothing in [his] d efen se” and that the “w hole tri al was a m ockery.” Ap p.II at 5. In response to the Stat e’s cl aim of the proceduralbars, Hubbard s tat ed that “[f]eder al review is n ecessary to prev ent a fundamental miscarriag e of just ice, ” and that there was “a

reas on ab le p ro ba bi lity” that but for couns el’s unprofe ssio nal errors “the results of the proc eedings would have been differ ent. ” Supp. App. at 125, 127.

When viewed through a “m or e forgivi n g lens” that does not require petiti on ers to “speci fical ly arti culat e” cl ai ms of a ctua l inn oce nce , Ga rth , 188 F. 3d at 108, thi s language in the pro se petition and tra verse wa s sufficient to preser ve Hubbard’s act

ual innoc ence cl ai m. In fact , he pl ed not guilty , and he file d a Bill of

Alib i Particu lars plac ing h im in Atlant i c City

at the moment of the crime, which occurre d in Camde n. We therefore reje ct t he State ’s argument that Hub bard’s clai m of actual innocence is not properly before us.

II.

As the Sup re me Court rei terat ed this past te rm, a federa l court w ill ordin arily not en te rtain a p roced urally default ed consti tuti onal clai m in a petition fo r habeas corpus “[o]ut of respect f or fin ali ty, co mity, and the ord erl y administ rati on of j usti ce.” Dretke v. Haley , 124 S. C t. 184 7, 184 9 (20 04). T his is a refle ction o f th e rule that “ federal
cour ts will not disturb state cou rt judg men ts based on ad equate an d independe nt state law pro cedura l ground s.” Id. at 185 2; see Wainwright v. Sykes , 43 3 U. S. 72, 81 ( 1977). The principal exce ption to this gen eral rule precluding fe der al re vi ew of hab eas cl ai ms that have been procedur ally defau lt ed is for petiti oners who can sh ow “c ause and prejudi ce ” f

or the pr ocedural default or that a “miscar

riage of just ice” wil l occur absentrev iew

. Crist in v. Br ennan , 281 F .3d404 , 414 (3d Cir . 200 2). A n alle gationof “ actu al inn oce nce ,” if credibl e, is one su ch “miscar riage of just ice” that e nables cour ts t o hear the merits of the habeas claims.6

The petitioner i n Sch lup v . Delo , 513 U.S. 298 (1995) , the leadi n g case on the “actualinnocence” doctrine, had made both an assertion of constitutional e rror at tri al and a cl ai m of innocence. The Supreme Court st ated that becaus e of the assertion of const it utiona l error, his convict ion was not “entitled to t he sa m e degree of r esp ect a s on e. . . that is the productof an error

free tri al. ” Id. at 316. The Court continued,

Withou t any new evi dence of innocen ce , even t he exist ence of a conc ed edly meritorious cons tit utional violation i s not in itself suf f icie nt to est ablis h a miscarriage of just ice that woul d allow a h abeas co urt to reach the merits of a barredclai m. However, if a petitioner

. . . p res ents evidence o f innocence so strong that a c ourt ca nnot have c on fidence i n the out come of the tri al unless the court is also satis fied that the tri al w as free of nonharmless consti tuti onal error, the pe titioner sh ould be all ow ed to pass through th e gatewayand argue th e merits of his underly ing claims.

Id. Hubbard reli es on thi s precedent as the basis for us to “pass th ro ug h t he ga tew ay” to the mer it s o f h is habe as cl ai ms. As we explai ned in our deci sio n in Cristin , 281 F.3d at 412, a “fundamentalmiscarriage of just ice” will r emove the bar onclai ms that have been procedur ally default ed , a nd actualinnocence will sh ow such a fundamental mi scarriage of j usti ce.

Because the caus e and prejudi ce excepti on to the p roced ural ba r for default ed cl ai ms is its elf base d on equ i table con si der at io ns, th e Supr eme Co u rt has made clear that t he actual innocence excepti on to the unreviewab ility of proc edur ally def

aul te d cl ai ms should be applie d only

in the rar est of cas es. See Dretke , 124 S. Ct. at 1852. As i t expla ined in Dretke :
[I]t is pre cisely because the various excepti ons to the proce d ural default

doctrine
are ju dge -ma d e rules that
cour ts as their ste wards must exe rcis e rest raint , adding to orexpanding them only w h en ne ces sar

y. To hold otherw ise w ould be to license district co urts to riddle the cause a n d prejudi ce standar d with ad hoc excepti ons whenever they perce ive an error

to be “clear” or depart

ure from the rule s ex ped ient. Such an approach, not the r

ule of rest raint ado pted here , wo uld have the unhappy effectof prolongi ng the pendencyof fe d eral ha beas applic ations as each new excepti on is t ested in the7

courts of appeals.

Id. at 1853.

In Dretke , t he Court, a pply ing the restraint that it cautioned f

or the l ower courts, decli ned to dec ide the issue t hat had divided t

he courts of ap peals – whether to extend the actualinnocence except ion to pro cedural default of
cons titu tional claim s cha ll engin g
nonc ap italsenten cing e rror. Inste ad, it avoidedthe is sue byholding t hat “a fe d eral court fa ced with al legat ions of actualinnocence, whether of the sentence
or of the crime charged, must first address all non defa ulted c laims for co mp arable reli ef and o ther gr oun ds fo r caus e to
excuse the proce du ral d efault .” Id. at 18 52. We see no ground for avoi da nc e that wa s ava ilable to th e D istrict Co urt in this case. 3 It t

herefore met

head on, and rejec ted, Hubbard’s al legat ion of act ual innocence as a vehicl e to open the gateway

3 The Appellate Divisi on of the Ne w Je rsey Sup erior C ourt sta ted tha t in additi on to Hubbard’s PCR clai ms being procedural ly

barred, they

provided no basis f or rel ief. Hubbard’s counselurges us to consi der thi s ruling to be an “alt ernative ruling” that we can review des pite t he p roc edu ral d efa ult ru ling

. Appellant ’s Br. at 15 n. 11. At oral argument, Hubbard’s counselargued that the District

Court in this case fail ed first to consi der alt ernative grounds for reli ef urged by the res pondent, grounds that might obvi ate any

need to re ach the actualinnocence ques tion, citing Dretke , 124 S. C t. at 18 49. The re are s evera l reaso ns the state court’ s “alt ernative” ruling does not obviate the need t o reach the actual inno cenc e que stion. F irst, a state proc edur al bar f

unctio ns as a n ade quate and independent

stat e ground which pre clud es f

ede ral re view

. Harris v. Reed , 489 U.S . 255, 2 64 n .10 (1 989 ) (“a state court nee d not fear

reachi ng the meri ts of a fe der al cla im in an a ltern ative hol din g,” as “[b ]y its very defin ition, the a dequ ate and independent

stat e ground doctrine requ ires the federa l court to hon or a sta te holding t hat is a suffici ent basi s for the stat e court’ s judgment, even when the state cou rt also relie s on fed eral l aw .”). Second, i n Dretke the al ternative habeas clai m the Supreme Court r eferred to was an ine ffec tive ass istance of co unse l claim that had not been pr ocedural ly barred

. Should the petiti oner in Dretke have prevail ed on this habeas cl aim, t he actual innocence ques tion r egarding t he procedural ly

default ed clai ms could have been avoid ed. In th e instan t case, a ll habeas cl aims on appealhave been procedu rally defaulted. Third, H ubbard acknowledges that “the issue of proceduraldefault , vel non, li es outsi de the scope of

the certifi cate of appealab ility

issued here.” A ppellant’s Br. at 15 n .1 1. For

th es e r ea so ns , w e decli ne to vie w the stat e court’ s comment regardi ng the meri ts as a basis on whic h we can avoid the a ctualinnocence questi on.8

to review of hi s pr ocedural ly default ed claims. We conclude t

hatwe are requi red to do the s ame. 4

III.

A petition er w ho is a sserting his “actualinnocence of

the underlyi ng cr ime

. . . mus t show ‘it

is more l ikely

than not tha t no reasonabl e juror would have convict ed him in l ight of t he new
e vi dence’ present ed in his habea s petit ion .” Ca lder on v . T hom pson , 523 U.S. 538, 559 (1998) (quoti ng Schlup , 513 U.S. at 327). In Schl up , t he S upr eme Cou rt stat ed that

clai ms of actual innocence are rar ely

successf

ul be ca use t he nece ssary evid ence is una vailab le i n the v as t majority

of cases. 513 U.S. at 32 4. The Court explained that petitioner must support his all egations o f
cons titutional e rror w ith

new reli able evi dence – whetherit be exculpato ry
s cientific evidence , trust worthy eyewit nes s accounts, or cri tica l phy sical evidence – t hat was not prese nted a t trial.

Id. We mu st ther efore cons ider bo th whetherHubbard has prese nted “new relia ble evidence . . . not present ed at trial,” and, i f so, whether i t is mo re likely than not tha t no rea sona ble juro r wo uld have convi ct ed him in l ight of t he new evidence.

The only

evidence t

hatHu bbard asserts is “new” is what he t erms as “h is
own sworn testimony.” App ellant’s Br. at 18. Hubbard did include in his Bill of Alibi Particu lars, w hich h e file d as a matter of r eco rd b efo re in dictm ent, a stat ement that

place s him too far from the city wh ere the crime wa s com mitted to have parti cipat ed in it. Howe ver, Hub bard did not g ive this test imony during the t rial
ev en tho ugh he was avail able t o do so. Counsel does notsuggest t hatthis piece of evidence was ex cluded fro m the reco rd before the jury tha t con victe d H ubb ard . A defend ant’s own late-proffered t es t imony is no t “new” because i t was avail able at trial. Hub bard merely

chose not t o present it to the jur

y. That choice does not open th e g ate w ay.

In Glass v. Vaughn , 65 F.3d 13 (3d Cir. 1 9 95), petiti oner, who was convict ed of firs t degree murdernotw ithstand ing h is alibithat he was not even at the scene when the killing occu rred, so ugh t to
ove rc ome his proced ura l de fault o f his post traumatic str ess disorde r byclai ming actualinn ocen ce. Citing Schlup , w e rejec tedth e ac tu al innoc enc e cl ai m, concludi ng that pe titioner had not sh own that it i s more li kely

than not t

hat no rati onal juror

would have voted t o convict him in li ght of the evi dence that he we nt to the murde r scene arm ed and had earl ier beh ave d vi ol ently

to th e vi ct im. 4 We exercise pl enary review over the Dist rict Court’s l egal conclusion and
rev iew its fin din gs o f fa ct fo r clea r erro r. Cristin , 281 F.3d at

409.9

Hub bard ’s proffered testim ony fails to change o r clari fy t

he facts present ed at trial. At trialthe strongestevidence against Hub bard was the tes timony of Monroe and Truluck, his accom plices wh o we re there when O’ Neal was shot, and the evi dence of Ha mm on, alb eit not spec ific as to Hub bard’s iden tity. M r. Wil son , Hub bard’s uncle , testified a s a Sta te witness that Hubbard c alle d him three weeks af

terthe inc ident to tellhim he “was involved in a mur der trial t hat he didn’t commit.” Tr ial Tr . at 83 (Apr. 28, 1982). Hubbard’s trial c ounsel i nformed the tri al court

that he would not cal l “M r

. Wils on as a witness t o suppor t [Hubbard’s] alibidefens e.” Supp. App. at 11.

Hub bard called no witnesses. Hubba rd’s defense wa s prese nte d prima rilyby his trial counsel’s summation to the jury , w hich s tated, “O ur w hole posit ion througho ut this case is we weren ’t there, weren ’t th ere when it happened so
as a resu lt we can’t be guilt y. ” TrialTr. at 134 (A pr. 2 9, 19 82)

. He ref erred to severalother pieces o f evidence fr om which the j ur y coul d have infer red that Hub bard was not atthe scene of the crime, such as Hubbard’s deni al of the indic tment and any i nvolvem en t in t he crime, the he ig ht differe nce between Hubbard (who is 5’9”) and t

he perpetrator

who Ham mon test ifie d was 6’ or 6’2”, the lack of fingerprints, and the unexam ined hand prin t
on the st orm door of O’Neal’s house. In a
sworn s t atement s upporti ng his habeas petition, Hubbard essent ially al leges t he
sa me f acts, rais ing quest ions such a s “[W]hat part I took in t his cr ime? Was I at the scen e, arou nd th e cor ner? Wa s I in another ci ty ?” Ap p. II at

9. As thi s informat ion is not new, i t cannot qualif yas the kind of

new evidence cont emplatedby the Supreme Court, such a s “e xculpatory scientif ic evidence, trustworthy eyewit nes s accounts, or cri tica l phy sicalevi d enc e.” Schlup , 513 U.S. at 324.

Hub bard’s cou n sel attem pts to show Hubbard’s cl aim of actua l innoce nce is reli able becau se “[a]part from the test imonyof Monr oe and Truluck – rejec ted by

the jur y – t here is no evidence of his gui lt of t

he murder char ge. Given t he absence of any eviden ce in supp ort o f his guilt under a fel ony- murdertheory , the record is barren of an y incons istency w ith the actualinnocence clai m that he now ti mel yputs for

ward.” Appell ant’s Br. at 18. We find thi s argument unper suasive

.
There is no basis for Hubb ard’s stat ement that t

he jury rejec t ed the test imonyof Monroe and Truluck. Although t he ju ryacquitted Hubbard of the weapons ch ar ge – t es tif ied to by Mo nroe and Trulu ck – it c onv icted h im on the robbery and murde r charges, w hich w ere al so te sti fied t o by Monroe and Trul uck. To the ex tent tha t the jury co nvicti o n sugg ests any thin g, it sugg ests tha t it belie ved part and d isbeliev ed pa rt of the ir tes tim on y. Ho we ver, it is w holl y inapp ropria te for this court to g lean fr om the bare fact

of a part ial c on victio n that certain witnesses’ t esti mony is not to be belie ved. Furth er, the la ck o f fore nsic evidence linking Hubbard to the c ri me10

does no t bolst er the c redibi lit y of Hub bard’s clai m of innocen ce b ecau se it
was this sam e reco rd that th e ju ry
re vi eweden r out e t o co nvi ct in g hi m.

The “new” evidence H ub bard puts for th in all eging act

ual innoc ence i s nothing more than a r epackaging of t he
reco rd as prese nted at

tri al. Therefore he cannotlogically meet the mo re likely t han not “that

no rati onal juror would have voted to con vict” stan dar d. See Glass , 65 F.3 d at 17. To a ll ow Hubbard ’s own test imonyth at h e p ro ff

er s (s up po rte d b y n o
ne w ev id en ce ) to op en th e g ate w ay t o federalre vi ew of

cl ai ms thathave been procedur ally default ed under st ate l aw woul d set t

he bar for “a ctualinnocenc e ” claim ants so low that

virt ually ever y such cl aimantwo uld pas s thro ugh it. T hi s
wo uld stand in stark contra st to the caveat of the Supreme Court

to exerc ise r estr aint and requir e a “strong s how in g of actual in noc enc e,” and its o bserv ation th a t “[g]ive n the r arit y of suc h evid ence , in virtually ev er y c ase , the alle gation of actualinn oce nce h as be en su mm arily rejec ted.” Calderon , 523 U.S. at 558-59 (int ernal quo tati on marks and cit ation omitted). We thus con cl ude that Hub bard’s alle gation o f a ctualinnocence is in su ff ic ie ntto al lo w r evi ew of h is defaulted claims.
Having so decided, we a gree w ith the Distri c t Court’ s January 31, 2000 opinionthat “ [n]othaving shown cause for h is proceduraldefault below or ac tua l innocence of

the crimes for which he was convict ed, [the proc edur a lly default ed c laims] of petitioner’s hab eas corp u s

peti tio n are n ot co gni zab le in t his c our t.” App.I at 11. 5

5 Some of the language in the Distri ct Court’ s June 14, 2002 opinion regardi ng Hubbard’s moti on for reconsideration is troubling. The C ourt stat ed:

Petition er cha llenge s this Court’s s tate ment that

he did not r aise ac tual inno cenc e as an issue in his petition, but

offers no evidence that he did raise such an is sue without proceduraldefault , and also offer s no evidence that he is act ually innocent for the ch arges he is p resen tly incarcerated fo r. Mr. Hubbard’s pet iti on was denie d on [som e of h is clai ms] due to pr ocedural default , so even i f he had demonstrat ed some issue of actua l innoc ence here, it would not have changed this Court’s e arli er denia l of his appl icat ion.
App.I at 26. This seems t o be a clear misapprehens ion of the law, al though during or al argument

counsel for

the state urged this court to view it as a “poor choic e of words.” I f Hubbard had demonstrat ed some “iss ue of actual inno cenc e,” the D istrict Co urt w ould11 CONCLU SI ON

For the reasons s etfo rt

h abov e, we will affi rm the deci sion of t he Distr ict Co urt that it was forecl osed fr o m reviewing the proce durally defaulte d cl ai ms on the groundthat the al legat ion of actualinno cenc e is insuffi cient ly strong to
ove rc ome the “State’s inter es ts i n actual final ity

. . . .” Calderon , 523 U.S. at 557.

have been requi red to cons ider Hu bba rd’s hab eas app licatio n di ffe ren tly. However, this stat ement does not detrac t from the Dist

rict Court’s de nial of

the habeas p etition on the grou nd that there
wa s no “ cohe rent arg um ent as to his actual innoce nce.” A pp.I at 11. Furthe r, the D istrict Co urt gav e no in dicatio n in its opin ion d enying h abea s that it misapprehende d the “act ual innoc ence” law, and i n fact t

he Court dis cussed the gate wa y corre ctly at so me leng th. A pp.I at 8-11.