D.N.J. Notes Split Re Whether Showing of Actual Innocence Is Grounds for Equitable Tolling of AEDPA's Statute of Limitations Period

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court vacated a judgment of the Eighth Circuit which held that a district court has no authority to stay a mixed petition to allow the petitioner to present his unexhausted claims to the state court and then to return to federal court. Id. at 277. Noting that "the filing of a petition for habeas corpus in federal court does not toll the statute of limitations," id. at 275, the Court observed that

"If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA's 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court."

Id. at 275.

The Rhines Court held that a district court has the authority to issue stays only where a stay would be compatible with AEDPA's purposes. Id. at 276. The Court determined that "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district court should stay, rather than dismiss, the mixed petition." Id. at 278.

In light of * * * Rhines * * *, this Court holds that the statute of limitations was not equitably tolled while Petitioner's first § 2254 petition was pending before this Court.

In his Traverse, Petitioner appears to argue that equitable tolling is warranted because he is actually innocent of the crime of attempted murder. He bases his claim of actual innocence on discovery exhibits provided by the state during his criminal trial which call into question the testimony of witness Thomas MacPhee. The Third Circuit has not yet determined whether a showing of actual innocence is grounds for equitable tolling, and the circuits are split. See Souter v. Jones, 395 F.3d 577, 599 (6th Cir.2005) ("equitable tolling of the one-year limitations period based on a credible showing of actual innocence is appropriate"); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (same); contra David v. Hall, 318 F.3d 343, 347 (1st Cir.2003); Flanders v. Graves, 299 F.3d 974 (8th Cir.2002).