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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–126
_________________
GREG McQUIGGIN, WARDEN, PETITIONER
v.
FLOYD PERKINS
on writ of certiorari to the united states
court of appeals for the sixth circuit
[May 28, 2013]
Justice Ginsburg delivered the opinion of the
Court.
This case concerns the “actual
innocence” gateway to federal habeas review applied in
Schlup v.
Delo,
513 U.S.
298 (1995), and further explained in
House v.
Bell, 547 U.S. 518 (2006). In those cases, a convincing
showing of actual innocence enabled habeas petitioners to overcome
a procedural bar to consideration of the merits of their
constitutional claims. Here, the question arises in the context of
28 U. S. C. §2244(d)(1), the statute of limitations on federal
habeas petitions prescribed in the Antiterrorism and Effective
Death Penalty Act of 1996. Specifically, if the petitioner does not
file her federal habeas peti- tion, at the latest, within one year
of “the date on which the factual predicate of the claim or
claims presented could have been discovered through the exercise of
due diligence,” §2244(d)(1)(D), can the time bar be
overcome by a convincing showing that she committed no crime?
We hold that actual innocence, if proved, serves
as a gateway through which a petitioner may pass whether the
impediment is a procedural bar, as it was in
Schlup and
House, or, as in this case, expiration of the statute of
limitations. We caution, however, that tenable actual-innocence
gateway pleas are rare: “[A] petitioner does not meet the
threshold requirement unless he persuades the district court that,
in light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.”
Schlup, 513 U. S., at 329; see
House, 547 U. S., at
538 (emphasizing that the
Schlup standard is
“demanding” and seldom met). And in making an
assessment of the kind
Schlup envisioned, “the timing
of the [petition]” is a factor bearing on the
“reliability of th[e] evidence” purporting to show
actual innocence.
Schlup, 513 U. S., at 332.
In the instant case, the Sixth Circuit
acknowledged that habeas petitioner Perkins (respondent here) had
filed his petition after the statute of limitations ran out, and
had “failed to diligently pursue his rights.” Order in
No. 09–1875, (CA6, Feb. 24, 2010), p. 2 (Certificate of
Appealability). Nevertheless, the Court of Appeals reversed the
decision of the District Court denying Perkins’ petition, and
held that Perkins’ actual-innocence claim allowed him to
pursue his habeas petition as if it had been filed on time. 670
F.3d 665, 670 (2012). The appeals court ap-parently considered a
petitioner’s delay irrelevant to ap-praisal of an
actual-innocence claim. See
ibid.
We vacate the Court of Appeals’ judgment
and remand the case. Our opinion clarifies that a federal habeas
court, faced with an actual-innocence gateway claim, should count
unjustifiable delay on a habeas petitioner’s part, not as an
absolute barrier to relief, but as a factor in determining whether
actual innocence has been re- liably shown. See Brief for
Respondent 45 (habeas court “could . . . hold the
unjustified delay
against the petitioner when making
credibility findings as to whether the [actual-innocence] exception
has been met”).
I
A
On March 4, 1993, respondent Floyd Perkins
attended a party in Flint, Michigan, in the company of his friend,
Rodney Henderson, and an acquaintance, Damarr Jones. The three men
left the party together. Henderson was later discovered on a wooded
trail, murdered by stab wounds to his head.
Perkins was charged with the murder of
Henderson. At trial, Jones was the key witness for the prosecution.
He testified that Perkins alone committed the murder while Jones
looked on. App. 55.
Chauncey Vaughn, a friend of Perkins and
Henderson, testified that, prior to the murder, Perkins had told
him he would kill Henderson,
id., at 39, and that Perkins
later called Vaughn, confessing to his commission of the crime.
Id., at 36–38. A third witness, Torriano Player, also
a friend of both Perkins and Henderson, testified that Perkins told
him, had he known how Player felt about Henderson, he would not
have killed Henderson.
Id., at 74.
Perkins, testifying in his own defense, offered
a different account of the episode. He testified that he left
Hender-son and Jones to purchase cigarettes at a convenience store.
When he exited the store, Perkins related, Jones and Henderson were
gone.
Id., at 84. Perkins said that he then visited his
girlfriend.
Id., at 87. About an hour later, Perkins
recalled, he saw Jones standing under a streetlight with blood on
his pants, shoes, and plaid coat.
Id., at 90.
The jury convicted Perkins of first-degree
murder. He was sentenced to life in prison without the possibility
of parole on October 27, 1993. The Michigan Court of Appeals
affirmed Perkins’ conviction and sentence, and the Michigan
Supreme Court denied Perkins leave to appeal on January 31, 1997.
Perkins’ conviction became final on May 5, 1997.
B
Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 110Stat. 1214, a state prisoner
ordinarily has one year to file a federal petition for habeas
corpus, starting from “the date on which the judgment became
final by the conclusion of direct review or the ex-piration of the
time for seeking such review.” 28 U. S. C.
§2244(d)(1)(A). If the petition alleges newly discovered
evidence, however, the filing deadline is one year from “the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.” §2244(d)(1)(D).
Perkins filed his federal habeas corpus petition
on June 13, 2008, more than 11 years after his conviction became
final. He alleged,
inter alia, ineffective assistance on the
part of his trial attorney, depriving him of his Sixth Amendment
right to competent counsel. To overcome AEDPA’s time
limitations, Perkins asserted newly discovered evidence of actual
innocence. He relied on three affidavits, each pointing to Jones,
not Perkins, as Henderson’s murderer.
The first affidavit, dated January 30, 1997, was
submitted by Perkins’ sister, Ronda Hudson. Hudson stated
that she had heard from a third party, Louis Ford, that Jones
bragged about stabbing Henderson and had taken his clothes to the
cleaners after the murder. App. to Pet. for Cert. 54a–55a.
The second affidavit, dated March 16, 1999, was subscribed to by
Demond Louis, Chauncey Vaughn’s younger brother. Louis stated
that, on the night of the murder, Jones confessed to him that he
had just killed Henderson. Louis also described the clothes Jones
wore that night, bloodstained orange shoes and orange pants, and a
colorful shirt.
Id., at 50a–53a. The next day, Louis
added, he accompanied Jones, first to a dumpster where Jones
disposed of the bloodstained shoes, and then to the cleaners.
Finally, Perkins presented the July 16, 2002 affidavit of Linda
Fleming, an employee at Pro-Clean Cleaners in 1993. She stated
that, on or about March 4, 1993, a man matching Jones’s
description entered the shop and asked her whether bloodstains
could be removed from the pants and a shirt he brought in. The
pants were orange, she recalled, and heavily stained with blood, as
was the multicolored shirt left for cleaning along with the pants.
Id., at 48a–49a.
The District Court found the affidavits
insufficient to entitle Perkins to habeas relief. Characterizing
the affidavits as newly discovered evidence was
“dubious,” the District Court observed, in light of
what Perkins knew about the underlying facts at the time of trial.
Id., at 29a. But even assuming qualification of the
affidavits as evidence newly discovered, the District Court next
explained, “[Perkins’] petition [was] untimely under
§2244(d)(1)(D).”
Ibid. “[If] the statute of
limitations began to run as of the date of the latest of th[e]
affidavits, July 16, 2002,” the District Court noted, then
“absent tolling, [Perkins] had until July 16, 2003 in which
to file his habeas petition.”
Ibid. Perkins, however,
did not file until nearly five years later, on June 13, 2008.
Under Sixth Circuit precedent, the District
Court stated, “a habeas petitioner who demonstrates a
credible claim of actual innocence based on new evidence may, in
ex-ceptional circumstances, be entitled to equitable tolling of
habeas limitations.”
Id., at 30a
. But Perkins
had not established exceptional circumstances, the District Court
determined. In any event, the District Court observed, equitable
tolling requires diligence and Perkins “ha[d] failed utterly
to demonstrate the necessary diligence in exercising his
rights.”
Id., at 31a
. Alternatively, the
Dis-trict Court found that Perkins had failed to meet the strict
standard by which pleas of actual innocence are mea-sured: He had
not shown that, taking account of all the evidence, “it is
more likely than not that no reasonable juror would have convicted
him,” or even that the evidence was new.
Id., at
30a–31a
.
Perkins appealed the District Court’s
judgment. Al-though recognizing that AEDPA’s statute of
limitations had expired and that Perkins had not diligently pursued
his rights, the Sixth Circuit granted a certificate of
appealability limited to a single question: Is reasonable diligence
a precondition to relying on actual innocence as a gateway to
adjudication of a federal habeas petition on the merits?
Certificate of Appealability 2–3.
On consideration of the certified question, the
Court of Appeals reversed the District Court’s judgment.
Adhering to Circuit precedent,
Souter v.
Jones,
395 F.3d 577, 597–602 (2005), the Sixth Circuit held that
Perkins’ gateway actual-innocence allegations allowed him to
present his ineffective-assistance-of-counsel claim as if it were
filed on time. On remand, the Court of Appeals instructed,
“the [D]istrict [C]ourt [should] fully consider whether
Perkins assert[ed] a credible claim of actual innocence.” 670
F. 3d, at 676.
We granted certiorari to resolve a Circuit
conflict on whether AEDPA’s statute of limitations can be
overcome by a showing of actual innocence. 568 U. S. ___
(2012). Compare,
e.g., San Martin v.
McNeil, 633 F.3d
1257, 1267–1268 (CA11 2011) (“A court . . . may
consider an untimely §2254 petition if, by refusing to
consider the petition for untimeliness, the court thereby would
endorse a ‘fundamental miscarriage of justice’ because
it would require that an individual who is actually innocent remain
imprisoned.”), with,
e.g.,
Escamilla v.
Jungwirth,
426 F.3d 868, 871–872 (CA7 2005) (“Prisoners
claiming to be innocent, like those contending that other events
spoil the conviction, must meet the statutory requirement of timely
action.”). See also
Rivas v.
Fischer, 687 F.3d
514, 548 (CA2 2012) (collecting cases).
II
A
In
Holland v.
Florida, 560
U. S. ___ (2010), this Court addressed the circumstances in
which a federal habeas petitioner could invoke the doctrine of
“equitable tolling.”
Holland held that “a
[habeas] petitioner is entitled to equitable tolling only if he
shows (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented
timely filing.”
Id., at ___ (slip op., at 16–17)
(internal quotation marks omitted). As the courts below
comprehended, Perkins does not qualify for equitable tolling. In
possession of all three affidavits by July 2002, he waited nearly
six years to seek federal postconviction relief. “Such a
delay falls far short of demonstrating the . . . diligence”
required to entitle a petitioner to equitable tolling. App. to Pet.
for Cert. 31a (District Court opinion). See also Certificate of
Appealability 2.
Perkins, however, asserts not an excuse for
filing after the statute of limitations has run. Instead, he
maintains that a plea of actual innocence can overcome
AEDPA’s one-year statute of limitations. He thus seeks an
equi-table
exception to §2244(d)(1), not an extension
of the time statutorily prescribed. See
Rivas, 687
F. 3d, at 547, n. 42 (distinguishing from “equitable
tolling” a plea to override the statute of limitations when
actual innocence is shown).
Decisions of this Court support Perkins’
view of the significance of a convincing actual-innocence claim. We
have not resolved whether a prisoner may be entitled to habeas
relief based on a freestanding claim of actual innocence.
Herrera v.
Collins,
506 U.S.
390, 404–405 (1993). We have recognized, however, that a
prisoner “otherwise subject to defenses of abusive or
successive use of the writ [of habeas corpus] may have his federal
constitutional claim considered on the merits if he makes a proper
showing of actual innocence.”
Id., at 404 (citing
Sawyer v.
Whitley,
505 U.S.
333 (1992)). See also
Murray v.
Carrier,
477 U.S.
478, 496 (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 other words, a credible showing
of actual innocence may allow a prisoner to pursue his
constitu-tional claims (here, ineffective assistance of counsel) on
the merits notwithstanding the existence of a procedural bar to
relief. “This rule, or fundamental miscarriage of justice
exception, is grounded in the ‘equitable discretion’ of
habeas courts to see that federal constitutional errors do not
result in the incarceration of innocent persons.”
Herrera, 506 U. S., at 404
.
We have applied the miscarriage of justice
exception to overcome various procedural defaults. These include
“successive” petitions asserting previously rejected
claims, see
Kuhlmann v.
Wilson,
477 U.S.
436, 454 (1986) (plurality opinion), “abusive”
petitions asserting in a second petition claims that could have
been raised in a first petition, see
McCleskey v.
Zant,
499 U.S.
467, 494–495 (1991), failure to develop facts in state
court, see
Keeney v.
Tamayo-Reyes,
504 U.S.
1, 11–12 (1992), and failure to observe state procedural
rules, including filing deadlines, see
Coleman v.
Thompson,
501
U.S. 722, 750 (1991);
Carrier, 477 U. S., at
495–496.
The miscarriage of justice exception, our
decisions bear out, survived AEDPA’s passage. In
Calderon v.
Thompson,
523 U.S.
538 (1998), we applied the exception to hold that a federal
court may, consistent with AEDPA, recall its mandate in order to
revisit the merits of a decision.
Id., at 558 (“The
miscarriage of justice standard is altogether consistent . . . with
AEDPA’s central concern that the merits of concluded criminal
proceedings not be revisited in the absence of a strong showing of
actual innocence.”). In
Bousley v.
United
States,
523 U.S.
614, 622 (1998), we held, in the context of §2255, that
actual in-nocence may overcome a prisoner’s failure to raise
a constitutional objection on direct review. Most recently, in
House, we reiterated that a prisoner’s proof of actual
innocence may provide a gateway for federal habeas review of a
procedurally defaulted claim of constitutional error. 547
U. S., at 537–538.
These decisions “see[k] to balance the
societal interests in finality, comity, and conservation of scarce
judicial re-sources with the individual interest in justice that
arises in the extraordinary case.”
Schlup, 513
U. S., at 324. Sensitivity to the injustice of incarcerating
an innocent individual should not abate when the impediment is
AEDPA’s statute of limitations.
As just noted, see
supra, at 8, we have
held that the miscarriage of justice exception applies to state
procedural rules, including filing deadlines.
Coleman, 501
U. S., at 750. A federal court may invoke the miscarriage of
justice exception to justify consideration of claims defaulted in
state court under state timeliness rules. See
ibid. The
State’s reading of AEDPA’s time prescription would thus
accord greater force to a federal deadline than to a simi-larly
designed state deadline. It would be passing strange to interpret a
statute seeking to promote federalism and comity as requiring
stricter enforcement of federal procedural rules than procedural
rules established and enforced by the
States.
B
The State ties to §2244(d)’s text
its insistence that AEDPA’s statute of limitations precludes
courts from considering late-filed actual-innocence gateway claims.
“Section 2244(d)(1)(D),” the State contends,
“forecloses any argument that a habeas petitioner has
unlimited time to present new evidence in support of a
constitutional claim.” Brief for Petitioner 17. That is so,
the State maintains, because AEDPA prescribes a comprehensive
system for determining when its one-year limitations period begins
to run. “Included within that system,” the State
observes, “is a specific trigger for the precise circumstance
presented here: a constitutional claim based on new
evidence.”
Ibid. Section 2244(d)(1)(D) runs the clock
from “the date on which the factual predicate of the claim .
. . could have been discovered through the exercise of due
diligence.” In light of that provision, the State urges,
“there is no need for the courts to act in equity to provide
additional time for persons who allege actual innocence as a
gateway to their claims of constitutional error.”
Ibid. Perkins’ request for an equitable exception to
the statute of limitations, the State charges, would
“rende[r] superfluous this carefully scripted scheme.”
Id., at 18.
The State’s argument in this regard bears
blinders. AEDPA’s time limitations apply to the typical case
in which no allegation of actual innocence is made. The miscarriage
of justice exception, we underscore, applies to a severely confined
category: cases in which new evidence shows “it is more
likely than not that no reasonable ju- ror would have convicted
[the petitioner].”
Schlup, 513 U. S., at 329
(internal quotation marks omitted). Section 2244(d)(1)(D) is both
modestly more stringent (because it requires diligence) and
dramatically less stringent (because it requires no showing of
innocence). Many petitions that could not pass through the
actual-innocence gateway will be timely or not measured by
§2244(d)(1)(D)’s triggering provision. That provision,
in short, will hardly be rendered superfluous by recognition of the
miscarriage of justice exception.
The State further relies on provisions of AEDPA
other than §2244(d)(1)(D), namely, §§2244(b)(2)(B)
and 2254(e) (2), to urge that Congress knew how to incorporate the
miscarriage of justice exception when it was so minded. Section
2244(b)(2)(B), the State observes, provides that a petitioner whose
first federal habeas petition has already been adjudicated when new
evidence comes to light may file a second-or-successive petition
when, and only when, the facts underlying the new claim would
“es-tablish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.”
§2244(b)(2)(B)(ii). And §2254(e)(2), which generally bars
evidentiary hearings in federal habeas proceedings ini-tiated by
state prisoners, includes an exception for pris-oners who present
new evidence of their innocence. See §§2254(e)(2)(A)(ii),
(B) (permitting evidentiary hearings in federal court if “the
facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense”).
But Congress did not simply incorporate the
miscarriage of justice exception into §§2244(b)(2)(B) and
2254(e)(2). Rather, Congress constrained the application of the
exception. Prior to AEDPA’s enactment, a court could grant
relief on a second-or-successive petition, then known as an
“abusive” petition, if the petitioner could show that
“a fundamental miscarriage of justice would result from a
failure to entertain the claim.”
McCleskey, 499
U. S., at 495. Section 2244(b)(2)(B) limits the exception to
cases in which “the factual predicate for the claim could not
have been discovered previously through the exercise of due
diligence,” and the petitioner can establish that no
reasonable factfinder “would have found [her] guilty of the
underlying offense” by “clear and convincing
evidence.” Congress thus required second-or-successive habeas
petitioners attempting to benefit from the miscarriage of justice
exception to meet a higher level of proof (“clear and
convincing evidence”) and to satisfy a diligence requirement
that did not exist prior to AEDPA’s passage.
Likewise, petitioners asserting actual innocence
pre-AEDPA could obtain evidentiary hearings in federal court even
if they failed to develop facts in state court. See
Keeney,
504 U. S., at 12 (“A habeas petitioner’s failure
to develop a claim in state-court proceedings will be excused and a
hearing mandated if he can show that a fundamental miscarriage of
justice would result from failure to hold a federal evidentiary
hearing.”). Under AEDPA, a petitioner seeking an evidentiary
hearing must show diligence and, in addition, establish her actual
innocence by clear and convincing evidence.
§§2254(e)(2)(A)(ii), (B).
Sections 2244(b)(2)(B) and 2254(e)(2) thus
reflect Congress’ will to
modify the miscarriage of
justice exception with respect to second-or-successive petitions
and the hold-ing of evidentiary hearings in federal court. These
pro-visions do not demonstrate Congress’ intent to preclude
courts from applying the exception, unmodified, to “the type
of petition at issue here”—an untimely first federal
habeas petition alleging a gateway actual-innocence claim.
House, 547 U. S., at 539.[
1] The more rational inference to draw from
Congress’ incorporation of a modified version of the
miscarriage of justice exception in §§2244(b)(2)(B) and
2254(e)(2) is simply this: In a case not governed by those
provisions,
i.e., a first petition for federal habeas
relief, the miscarriage of justice exception survived AEDPA’s
passage intact and unrestricted.[
2]
Our reading of the statute is supported by the
Court’s opinion in
Holland. “[E]quitable
principles have traditionally governed the substantive law of
habeas corpus,”
Holland reminded, and affirmed that
“we will not construe a statute to displace courts’
traditional equitable authority absent the clearest command.”
560 U. S., at ___ (slip op., at 13) (internal quotation marks
omitted). The text of §2244(d)(1) contains no clear command
countering the courts’ equitable authority to invoke the
miscarriage of justice exception to overcome expiration of the
statute of limitations governing a first federal habeas petition.
As we observed in
Holland,
“AEDPA seeks to eliminate delays in
the federal habeas review process. But AEDPA seeks to do so without
undermining basic habeas corpus principles and while seeking to
harmonize the new statute with prior law . . . .
When Congress codified new rules governing this previously
judicially managed area of law, it did so without losing sight of
the fact that the writ of habeas corpus plays a vital role in
protecting constitutional rights.”
Id., at ___ (slip
op., at 16) (citations
and internal quotation marks omitted).[
3]
III
Having rejected the State’s argument
that §2244(d) (1)(D) precludes a court from entertaining an
un- timely first federal habeas petition raising a convincing claim
of actual innocence, we turn to the State’s further objection
to the Sixth Circuit’s opinion. Even if a habeas petitioner
asserting a credible claim of actual innocence may overcome
AEDPA’s statute of limitations, the State argues, the Court
of Appeals erred in finding that no threshold diligence requirement
at all applies to Perkins’ petition.
While formally distinct from its argument that
§2244(d)(1)(D)’s text forecloses a late-filed claim
alleging actual innocence, the State’s contention makes scant
sense. Section 2244(d)(1)(D) requires a habeas petitioner to file a
claim within one year of the time in which new evidence
“could have been discovered through the exercise of due
diligence.” It would be bizarre to hold that a habeas
petitioner who asserts a convincing claim of
actual innocence may overcome the statutory time bar
§2244(d)(1)(D) erects, yet simultaneously encounter a
court-fashioned diligence barrier to pursuit of her petition. See
670 F. 3d, at 673 (“Requiring reasonable diligence
effectively makes the concept of the actual innocence gateway
redundant, since petitioners . . . seek [an equitable
exception only] when they were not reasonably diligent in complying
with §2244(d)(1)(D).”).
While we reject the State’s argument that
habeas petitioners who assert convincing actual-innocence claims
must prove diligence to cross a federal court’s threshold, we
hold that the Sixth Circuit erred to the extent that it eliminated
timing as a factor relevant in evaluating the reliability of a
petitioner’s proof of innocence. To invoke the miscarriage of
justice exception to AEDPA’s statute of limitations, we
repeat, a petitioner “must show that it is more likely than
not that no reasonable juror would have convicted him in the light
of the new evidence.”
Schlup, 513 U. S., at 327.
Unexplained delay in presenting new evidence bears on the
determination whether the petitioner has made the requisite
showing. Perkins so acknowl-edges. See Brief for Respondent 52
(unjustified delay may figure in determining “whether a
petitioner has made a sufficient showing of innocence”). As
we stated in
Schlup, “[a] court may consider how the
timing of the submission and the likely credibility of [a
petitioner’s] affiants bear on the probable reliability of
. . . evidence [of actual innocence].” 513
U. S., at 332. See also
House, 547 U. S., at
537.
Considering a petitioner’s diligence, not
discretely, but as part of the assessment whether actual innocence
has been convincingly shown, attends to the State’s concern
that it will be prejudiced by a prisoner’s untoward delay in
proffering new evidence. The State fears that a prisoner might
“lie in wait and use stale evidence to collaterally
attack his conviction . . . when an
elderly witness has died and cannot appear at a hearing to rebut
new evidence.” Brief for Petitioner 25. The timing of such a
petition, however, should seriously undermine the credibility of
the actual-innocence claim. Moreover, the deceased witness’
prior testimony, which would have been subject to
cross-examination, could be introduced in the event of a new trial.
See
Crawford v.
Washington,
541 U.S.
36, 53–54 (2004) (recognizing exception to the
Confrontation Clause where witness is unavailable and the defendant
had a prior opportunity for cross-examination). And frivolous
petitions should occasion instant dismissal. See 28
U. S. C. §2254 Rule 4. Focusing on the merits of a
petitioner’s actual-innocence claim and taking account of
delay in that context, rather than treating timeliness as a
threshold inquiry, is tuned to the rationale underlying the
miscarriage of justice exception—
i.e., ensuring
“that federal constitutional errors do not result in the
incarceration of innocent persons.”
Herrera, 506
U. S., at 404.[
4]
IV
We now return to the case at hand. The
District Court proceeded properly in first determining that
Perkins’ claim was filed well beyond AEDPA’s
limitations period and that equitable tolling was unavailable to
Perkins because he could demonstrate neither exceptional
circumstances nor diligence. See
supra, at 5. The District
Court then found that Perkins’ alleged newly discovered
evidence,
i.e., the information contained in the three
affidavits, was “substantially available to [Perkins] at
trial.”
App. to Pet. for Cert. 31a. Moreover, the
proffered evidence, even if “new,” was hardly adequate
to show that, had it been presented at trial, no reasonable juror
would have convicted Perkins.
Id., at 30a–31a.
The Sixth Circuit granted a certificate of
appealability limited to the question whether reasonable diligence
is a precondition to reliance on actual innocence as a gateway to
adjudication of a federal habeas petition on the merits. We have
explained that untimeliness, although not an unyielding ground for
dismissal of a petition, does bear on the credibility of evidence
proffered to show actual innocence. On remand, the District
Court’s appraisal of Perkins’ petition as insufficient
to meet
Schlup’s actual-innocence standard should be
dispositive, absent cause, which we do not currently see, for the
Sixth Circuit to upset that evaluation. We stress once again that
the
Schlup standard is demanding. The gateway should open
only when a petition presents “evidence of innocence so
strong that a court cannot have confidence in the outcome of the
trial unless the court is also satisfied that the trial was free of
nonharmless constitutional error.” 513 U. S., at
316.
* * *
For the reasons stated, the judgment of the
Sixth Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.