Opinion
No. 1:07-cv-1242-SEB-TAB.
June 4, 2008
ENTRY
A scrivener's error exists in the Entry issued on June 3, 2008. The error is corrected pursuant to Rule 60(a) of the Federal Rules of Civil Procedure as follows: The word "not" is inserted between the words "does" and "make" in the third bulleted point in the last paragraph on page 4 of that Entry. That bulleted point, as now corrected, reads as follows:
! Kamau also states that it would be a fundamental miscarriage of justice for his claim not to be addressed, but he does not make a plausible case for his factual innocence. "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 624 (1998). A claim of actual innocence requires a petitioner to show (1) new reliable evidence not presented at trial establishing (2) that it is more likely than not that no reasonable juror would have convicted the petitioner in the light of the new evidence. House v. Bell, 547 U.S. 518, 537-38 (2006). Kamau has not "made an attempt to show actual innocence, as opposed to legal innocence, as required to support the finding of a fundamental miscarriage of justice." Spreitzer v. Schomig, 219 F.3d 639, 648-49 (7th Cir. 2000). He offers no new evidence whatsoever, and nothing in his arguments as to either of his claims suggest that it is more likely than not that no reasonable juror would have convicted him in the light of new evidence. His assertion of the Rule 404(b) claim in the face of his procedural default therefore lies outside the fundamental miscarriage of justice exception and is not a sufficient basis on which the court could reach the merits of this claim.