Habeas corpus; Whether petitioner satisfied the “gate-keeping” requirements of 28 USC § 2244(b)(2)(B); The “actual innocence” exception to the bar on successive petitions; Whether petitioner established actual innocence by clear & convincing evidence; § 2244(b)(2)(B)(ii); Case v Hatch (10th Cir); Clark v Warden; Timeliness under the Antiterrorism & Effective Death Penalty Act; § 2244(d)(1)(D); Equitable tolling; Denial of an evidentiary hearing

[This appeal was from the ED-MI.] The court held that petitioner-Houston failed to offer clear and convincing evidence that would convince a reasonable juror of his “actual innocence” to support a successive petition under § 2244(b)(2)(B). It further concluded that the district court properly dismissed his petition for failing to satisfy the requirements for equitable tolling. A jury convicted Houston of first-degree murder and firearm offenses. He filed this second habeas petition based on ineffective assistance of counsel. Claiming that he was innocent and that another man committed the crime, he offered four affidavits, including one from himself and one from an individual (M) he met in prison who identified the other man as the perpetrator. He claimed that his trial counsel failed to pursue the evidence. The district court found the affidavits unreliable and concluded Houston did not meet either prong of § 2244(b)(2)(B). It also determined that the petition was untimely and Houston did not satisfy the equitable tolling requirements. The court explained that the actual innocence exception is to be rarely applied and only in “extraordinary” cases. Under § 2244(b)(2)(B)(ii), the court must consider whether “‘but for constitutional error,’” there were sufficient facts to establish by clear and convincing evidence that no reasonable juror would have convicted petitioner. It noted that it has yet to define the facts necessary to satisfy § 2244(b)(2)(B)(ii) and the parties did not brief the issue. So it accepted their understanding of the rule, under Case: “petitioner’s new evidence must be ‘rooted in constitutional error[] occurring during trial.’” The court determined that only one of the affidavits was rooted in Houston’s constitutional claim. Even if it was accepted that had his attorney investigated, M would have been found, resulting in his testifying to the information in the affidavit at trial, the court declined to “assume that every reasonable juror would believe [M’s] testimony over the other” trial witnesses. The court noted that M signed his affidavit 12 “years after the crime occurred, only after he met Houston in prison, and while serving a life sentence.” The court also upheld the district court’s untimeliness ruling, rejecting Houston’s claim he was entitled to equitable tolling based on actual innocence. The affidavits he presented from others had “serious reliability problems” and his own affidavit failed “to meet the standard for equitable tolling, which” required him to show “‘that he factually did not commit the crime.’” Finally, he was not entitled to an evidentiary hearing “due to the unreliability of [his] evidence[.]” Affirmed.