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A prisoner’s claim that his sodomy conviction should be overturned because his underage male accuser had recanted has been rejected by the 2d U.S. Circuit Court of Appeals. Doe v. Menefee, 03-2432 In the latest in a series of decisions dealing with the statute of limitations for filing habeas petitions, a divided panel said that the alleged victim’s post-conviction testimony was “not reliable evidence” of the defendant’s “actual innocence.” In a decision by Judge Sonia Sotomayor, the panel also said that the facts of the case fell short of the threshold the circuit had set for deciding the issue of whether the one-year statute of limitations imposed by Congress for the filing of petitions for writs of habeas corpus can be tolled by a claim of actual innocence. The one-year limitations period set by Congress for habeas petitions in the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2244(d), is one of the most heavily litigated issues before the 2d Circuit. The petitioner, John Doe, pleaded guilty to one count of second-degree sodomy in New York state court in 1995, admitting to engaging in deviant sexual intercourse with a person under 14. Three years later, he was arrested on federal charges of conspiring to receive and possess child pornography over the Internet. He pleaded guilty in New York’s eastern district, and, because of his prior conviction, the judge imposed a five-level enhancement under the Federal Sentencing Guidelines. Doe was sentenced to five years in prison. Doe filed his petition for a writ of habeas corpus on Nov. 30, 2001, more than two years after the end of the limitations period. He produced an affidavit by his alleged victim, who was dubbed Edwin, in which he stated that Doe had never molested him, and that he had never told the Westchester County district attorney’s office that Doe had attempted sexual contact with him. Judge Charles Brieant of New York’s southern district refused to issue the writ in February 2002, saying that a claim of actual innocence is not a basis for tolling the statute of limitations period. Brieant noted “the clear intent of AEDPA to bring repose to state convictions in federal courts, whatever the social cost.” On appeal, the 2d Circuit stated that it “has not determined whether the Constitution requires an actual innocence exception” to the act’s limitations period, but that it would decide that issue where a credible showing of actual innocence “compels us to do so.” The court remanded the case to Brieant to consider whether Doe had indeed presented a credible case and to determine whether the petitioner had pursued his claim with “reasonable diligence.” On remand, Brieant held an evidentiary hearing that included testimony by Edwin. The judge concluded that, while Doe and other members of a “boy lovers” ring had socialized with Edwin, the latter “had not personally engaged in any sexual activity with Doe or any other man.” However, while Doe had established his innocence beyond a preponderance of the evidence and had pursued his claim with reasonable diligence, Brieant again stated that the AEDPA does not allow tolling for actual innocence. On appeal, Sotomayor and Judge Thomas Meskill ruled that the lower court’s “findings with respect to the credibility of Doe’s and Edwin’s hearing testimony were clearly erroneous.” In a 57-page opinion, Sotomayor said that the lower court had also “misapprehended the standard for determining actual innocence as it is delineated in governing Supreme Court case law.” The majority was left, she said, with the “definite and firm conviction” that the district court had erred in crediting the testimony at the hearing. Sotomayor said that the testimony contradicted Doe’s statements in proffer sessions with prosecutors held as a prelude to his cooperating with the government and contradicted both his own guilty plea and the statements he gave at the trial of other alleged members of the boy-lovers ring. The facts, Sotomayor said, were just not compelling enough to give the court the opportunity to consider whether actual innocence requires tolling of the limitations period. “Such a proper case will arise, of course, where a petitioner is able to make a credible showing of actual innocence based on new evidence, thereby demonstrating that equitably tolling the limitations period could prevent a miscarriage of justice,” she said. “Doe’s petition clearly does not present such a case.” Judge Rosemary Pooler penned a 21-page dissent. “This panel should not second guess the trial judge’s credibility findings where no compelling extrinsic or other evidence compels a different conclusion,” she wrote. “More importantly,” she said, “the majority glosses over the most unusual and disconcerting aspect of this case; here, the alleged victim of a violent sexual assault has come forward and testified that the crime never occurred.”

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