Habeas corpus; 28 USC § 2244; Antiterrorism & Effective Death Penalty Act (AEDPA) time bar (§ 2244(d)); “Actual innocence” exception to the time bar; Whether petitioner offered new reliable evidence that more likely than not would have exonerated him; Schlup v Delo; Request for remand for an evidentiary hearing

[This appeal was from the ED-MI.] The court held that petitioner-Hubbard failed to show he was entitled to application of the “actual innocence” exception to the AEDPA’s one-year time limitation where he failed to offer new reliable evidence that exonerated him. Thus, it affirmed the district court’s denial of his habeas petition. Hubbard filed the petition over 20 years after he was convicted of first-degree murder. He sought relief under the AEDPA’s equitable actual innocence exception to the time bar. The district court dismissed his petition as untimely but certified his actual innocence claim for appeal. To support his claim, Hubbard had to show that “new reliable evidence” would make it “more likely than not” that a reasonable juror would not have convicted him. His new evidence consisted of a news article involving coerced confessions that named the officer who had questioned him; an affidavit of a fellow prisoner claiming to have seen another man shoot someone at the crime scene; affidavits from various witnesses naming the other man as the shooter based on the “word on the street”; a witness (C) who recanted his accusations and testimony as “coerced”; polygraph and FOIA evidence; and an affidavit claiming that C had admitted lying about Hubbard’s involvement in the murder. The court explained that to succeed under this theory, a petitioner must do more than just undermine the government’s case — “he must demonstrate that he factually did not commit the crime.” It held that a petitioner is required to “show the probability of his innocence, rather than merely impeach the State’s case. This means that a defendant must put forth some type of reliable evidence that is exonerative in nature.” The evidence does not have to “conclusively prove his exoneration to make the gateway showing, but it must, at minimum, go towards his innocence.” The court concluded that C’s recantation was not “reliable” where he had repeatedly changed his story. Further, it did not find the affidavits implicating another man to be reliable, noting that there was no corroborating evidence. It also determined that an evidentiary hearing would not help Hubbard’s claim and denied his request for remand for this purpose.