E.D. Pa. Reviews Circuit Split Re Equitable Tolling of Habeas Petitions for Prisoners with Actual Innocence Claims

Per Ragan v. Horn, 2009 WL 323107 (E.D. Pa. Feb 10, 2009):

Ragan also argues that his claim of actual innocence forms a basis for a grant of equitable tolling. The Circuits are split on this issue.[FN6] The Circuits that have not yet ruled on the issue, including the Third Circuit, have deferred ruling on the issue until presented with a "proper case" (i.e., a case with a viable claim of actual innocence). See e.g., Knecht v. Shannon, 132 Fed.Appx. 407, 409 (3d Cir.2005) (not precedential) ("[U]nless we accept Knecht's argument that he is 'actually innocent,' and that equitable tolling is therefore warranted, we must affirm the dismissal of his petition as untimely."); Hussman v. Vaughn, 67 Fed. Appx. 667 (3d Cir.2003) (not precedential) (declining to address whether a claim of actual innocence could toll the statute of limitations where petitioner did not have a viable claim of actual innocence); See also Horning v. Lavan, 197 Fed. Appx. 90, 94 (3d Cir.2006) (not precedential) (indicating that even if it were to permit equitable tolling based on a viable claim of actual innocence, the petitioner would still have to show reasonable diligence in pursuing his actual innocence claim).[FN7] Therefore, I must determine if Ragan has a viable claim of actual innocence before ruling on the equitable tolling issue.

[FN6] See Souter v. Jones, 395 F.3d 577, 602 (6th Cir.2005) (holding that a petitioner who can demonstrate actual innocence "should be allowed to pass through the gateway and argue the merits of his underlying constitutional claims."); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir.2002) (holding that an actual innocence claim could justify equitable tolling where there was "some action or inaction on the part of the respondent that prevented him from discovering the relevant [exculpatory] facts in a timely fashion, or, at the very least, that a reasonably diligent petitioner could not have discovered these facts in time to file a petition within the period of limitations."); Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) ("Equitable tolling would be appropriate, for example, when a prisoner is actually innocent."). But see Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.2005) ("Prisoners claiming to be innocent, like those contending that other events spoil the conviction, must meet the statutory requirement of timely action."); David v. Hall, 318 F.3d 343, 347 (1st Cir.2003) (holding that petitioners "who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming"); Felder v. Johnson, 204 F.3d 168, 171 (5th Cir.2000) (holding that a claim of actual innocence would not constitute a "rare and exceptional" circumstance which would justify the equitable tolling of the limitations period).

[FN7] The Third Circuit is joined by the Second, Ninth, and Eleventh Circuits in reserving ruling on this issue until presented with a showing of actual innocence. See Whitley v. Senkowski, 317 F.3d 223 (2d Cir.2003) ("The constitutionality of the AEDPA's statute of limitations if applied to a claim of actual innocence is an open question today."); Majoy v. Roe, 296 F.3d 770, 776 (9th Cir.2002) (remanding to the district court to determine whether a claim of actual innocence as defined under Schlup had been established before addressing "what consequences such a finding has with respect to AEDPA's one-year statue of limitation"); Wyzykowski v. Dept. of Corrections, 226 F.3d 1213, 1218 (11th Cir.2000) ("[T]he factual issue of whether the petitioner can make a showing of actual innocence should be first addressed, before addressing the constitutional issue of whether the Suspension Clause requires such an exception for actual innocence.").


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