Opinion
Case No. 05-CV-70723-DT.
March 22, 2006
ORDER STAYING CASE AND DENYING WITHOUT PREJUDICE RESPONDENT'S MOTION TO DISMISS AND PETITIONER'S MOTION TO EXPAND THE RECORD
Petitioner Darion Y. Turner has filed an application for the writ of habeas corpus under 28 U.S.C. § 2254. Currently pending before the Court are Respondent's motion to dismiss the habeas petition and Petitioner's motion to expand the record.
Petitioner was convicted in 1993 of two counts of second-degree murder and one count of possession of a firearm during the commission of a felony. Respondent argues that Petitioner's claims are barred from substantive review by his failure to comply with the one-year statute of limitations. See 28 U.S.C. § 2244(d).
Petitioner, however, maintains his innocence, and a claim of actual innocence can be raised "to avoid a procedural bar to the consideration of the merits of [a petitioner's] constitutional claims." Schlup v. Delo, 513 U.S. 298, 326-27 (1995). Equitable tolling of the one-year habeas statute of limitations is appropriate when it is based on a credible showing of actual innocence. Souter v. Jones, 395 F.3d 577, 600-02 (6th Cir. 2005). "To establish actual innocence, `a petitioner must show that it is more likely than not that no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt.'" Id. at 590 (quoting Schlup, 513 U.S. at 327). "To be credible, such a claim requires [the] petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
The Supreme Court is expected to re-examine Schlup, as well as, Herrera v. Collins, 506 U.S. 390 (1993), later this year. See House v. Bell, No. 04-8990, petition for cert. granted, ___ U.S. ___, 125 S. Ct. 2991 (2005). The issues on which certiorari were granted in House v. Bell are:
1. Did the majority below err in applying this Court's decision in Schlup v. Delo to hold that Petitioner's compelling new evidence, though presenting at the very least a colorable claim of actual innocence, was as a matter of law insufficient to excuse his failure to present that evidence before the state courts — merely because he had failed to negate each and every item of circumstantial evidence that had been offered against him at the original trial?
2. What constitutes a "truly persuasive showing of actual innocence" pursuant to Herrera v. Collins sufficient to warrant freestanding habeas relief?House v. Bell, Pet. for a Writ of Certiorari, 2005 WL 1527632, at i (U.S. Mar. 3, 2005) (No. 04-8990).
The Supreme Court's decision in House v. Bell may assist this Court in resolving the issues in this case. Accordingly, this case is STAYED pending a decision in House v. Bell. Respondent's motion to dismiss [Doc. #8, Sept. 7, 2005] and Petitioner's motion to expand the record [Doc. #32, Sept. 26, 2005] are denied without prejudice to the parties' right to renew their motions following the Supreme Court's decision in House v. Bell.