Nor does the undersigned find that Petitioner has met his burden of showing actual innocence, or that a fundamental miscarriage of justice will occur if this claim is not considered. Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"] (citing Murray v. Carrier, 477 U.S. at 496)); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995)). To prevail under an "actual innocence" theory, Petitioner must produce new evidence that was not available at trial to show his factual innocence.
Petitioner has failed to make a showing of a fundamental miscarriage of justice or actual innocence in his case. Wainwright v. Sykes,supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"] (citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995). Therefore, this claim for relief is procedurally barred from consideration by this Court, and should be dismissed.
Nor does the undersigned find that Petitioner has met his burden of showing actual innocence, or that a fundamental miscarriage of justice will occur if this issue is not considered. see Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraor dinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"] (citing Murray v. Carrier, 477 U.S. at 496)); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995)). To prevail under an "actual innocence" theory, Petitioner must produce new evidence that was not available at trial to show his factual innocence.
In any event, the fact that trial counsel may have made different decisions at trial does not show that a fundamental miscarriage of justice occurred. Rodriguez v. Young, supra Murray v. Carrier, supra; Bolender v. Singletary, 898 F. Supp. 876 (S.D.Fla. 1995). In conclusion, after a review of this record and the arguments presented to the Court with regard to issues A(1) and (2), the undersigned finds that Petitioner has failed to show either cause and prejudice or a fundamental miscarriage of justice.
Thus, his petition is procedurally barred from consideration by this court and should be dismissed. Murray, 477 U.S. at 495-96; see 28 U.S.C. 2254; Rodriguez v. Young, 906 F.2d 1153, 1159 (7th Cir. 1990) ("Neither cause without prejudice nor prejudice without cause gets a defaulted claim into Federal Court."); Wainwright v. Sykes, 433 U.S. 72 (1977); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F. Supp. 876, 881 (S.D. Fla. 1995). In the alternative, Petitioner must show a miscarriage of justice.
Under such circumstances, the alleged statement is not reliable evidence. See Sawyer v. Clarke, No. 2:16cv592, 2017 U.S. Dist. LEXIS 118953, at *19 (E.D. Va. June 27, 2017) ("[U]nsigned statement is unreliable and, therefore, to the extent that the statement includes details not testified to at trial, any such details do not justify an actual innocence finding"), adopted by 2017 U.S. Dist. LEXIS 118859, *2 (E.D. Va. July 28, 2017), appeal dismissed 2017 U.S. App. LEXIS 26142 (4th Cir. Dec. 21, 2017): see also Dukes v. Graham, No. 16-CV-0918, 2020 U.S. Dist. LEXIS 75414, at *24 (W.D.N.Y. Apr. 28, 2020) (unsworn affidavits "do not constitute the type of new, reliable evidence sufficient to establish that 'no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.'") (citing Schlup, 513 U.S. at 329); Bolender v. Singletary, 898 F. Supp. 876, 882 (S.D. Fla. 1995) (rejecting affidavits that "contain solely hearsay statements" as "not the reliable testimony that was contemplated by" Schlup). For these reasons, this last piece of "new evidence" is rejected.
Further, Petitioner has also failed to make any showing that a fundamental miscarriage of justice will occur if this claim is not considered. Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"] (citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D. Fla. 1995).
Further, Petitioner has also failed to make any showing that a fundamental miscarriage of justice will occur if this claim is not considered. Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"](citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995).
Further, Petitioner has also failed to make any showing that a fundamental miscarriage of justice will occur if these claims are not considered. Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"](citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995).
Further, Petitioner has also failed to make any showing that a fundamental miscarriage of justice will occur if these claims are not considered.Wainwright v. Sykes, supra; Murray v. Carrier, 477 U.S. 478 (1986); Rodriguez, 906 F.2d at 1159 [a fundamental miscarriage of justice occurs only in extraordinary cases, "where a constitutional violation has probably resulted in the conviction of one who is actually innocent"](citing Murray v. Carrier, 477 U.S. at 496); Sawyer v. Whitley, 505 U.S. 333, 348 (1992); Bolender v. Singletary, 898 F.Supp. 876, 881 (S.D.Fla. 1995).