Hector RIVAS, Petitioner-Appellant, v. Brian FISCHER, Superintendent, Sing Sing Correctional Facility, Respondent-Appellee, 687 F.3d 514

JOSÉ A. CABRANES, Circuit Judge: The issue in this appeal is whether petitioner-appellant Hector Rivas — who is currently serving an indeterminate life sentence for the second-degree murder of his former girlfriend, Valerie Hill — should be permitted to present in federal court his claim that constitutional error at his criminal trial renders his current confinement unlawful. The merits of Rivas’s constitutional claims are not before us.

Rather, we address only whether his petition for a writ of habeas corpus under 28 U.S.C. § 2254 was timely filed, or, if untimely, whether he should nevertheless be permitted to pursue those claims in federal court under the circumstances here presented. When Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132,110 Stat. 1214 (1996), it imposed a one-year period of limitation on petitioners seeking federal collateral review of state convictions pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d).

The Supreme Court has recognized that a “credible” and “compelling” claim of actual innocence may provide a “gateway” through other procedural barriers to habeas relief, see Schlup v. Delo, 513 U.S. 298, 324, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (successive petitions); House v. Bell, 547 U.S. 518, 521-22, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (state procedural default), but it remains an open question both in the Supreme Court and in this Circuit whether such a claim may allow a petitioner to circumvent AEDPA’s limitation period. In the years since § 2244(

d) went into effect, we have heard several appeals from prisoners who have asserted that their claims of actual innocence should provide an equitable ground for allowing them to pursue habeas corpus relief notwithstanding their failure to timely file a petition. See, e.g., Doe v. Menefee, 391 F.3d 147 (2d Cir.2004); Whitley v. Senkowski 317 F.3d 223 (2d Cir.2003); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107 (2d Cir.2000).

We have thus far resisted deciding whether equity demands such an exception, explaining that we would only do so “in a proper case,” Whitley, 317 F.3d at 225, “where a petitioner is able to make a credible showing of actual innocence based on new evidence,” Doe, 391 F.3d at 174. In this case, which returns to us following a remand to the District Court for development of the record, see Rivas v. Fischer, 294 Fed.Appx. 677, 679 (2d Cir. 2008) (“Rivas II”), Rivas has raised a credible and compelling claim of actual innocence, as those concepts are understood in the relevant habeas jurisprudence.

His claim is based on new information not presented to the jury that dramatically undermines the central forensic evidence linking him to the crime of which he was convicted. In sum and substance, Rivas has shown, through the essentially unchallenged testimony of a respected forensic pathologist, that the victim was almost certainly killed at a time when Rivas had an uncontested alibi, and not earlier, as the prosecution had contended at his trial. We are not here called to determine whether Rivas is in fact innocent.

However, on the record before us, we “cannot have confidence in the outcome of [Rivas’s] trial” unless we can be assured that “the trial was free of nonharmless constitutional error.” Schlup, 513 U.S. at 315, 115 S.Ct. 851. Here presented with a “proper case,” we now conclude, as a matter of first impression in this Circuit, that a credible and compelling showing of actual innocence under the standard described by the Supreme Court in Schlup and House warrants an equitable exception to AEDPA’s limitation period, allowing the petitioner to have his otherwise time-barred claims heard by a federal court.

Because Rivas has made such a showing, we reverse the decision of the United States District Court for the Northern District of New York (Gary L. Sharpe, Judge) dismissing his petition for habeas relief and remand for full consideration of his underlying constitutional claims. BACKGROUND The following background is taken from the record of Rivas’s criminal trial, his state collateral proceeding, and the evidentiary hearing held by the District Court on remand. Although we refer in the margins to relevant newspaper articles, we do not rely on them in the disposition of this appeal. A.

The Murder of Valerie Hill At approximately 11:45 a.m. on Monday, March 30, 1987, Randall Hill (“Randall”) discovered the lifeless body of his twenty-eight-year-old daughter, Valerie Hill (“Hill”), on the living-room floor of her apartment on Hickok Avenue in Syracuse, New York. Transcript of the Trial of Hector Rivas (March 17, 1993) (“Trial Tr.”) at 103. Randall had last seen his daughter on Friday night, March 27, when the two met for dinner at a nearby restaurant. He later recalled that Hill seemed upset during their meeting and did not eat anything. Id. at 96-98.

During their conversation, Hill informed her father that she was planning to spend the weekend visiting a friend in the Albany area and would not return until Sunday evening. Id. at 99. Hill left the restaurant at approximately 8:15 p.m. on Friday. Id. at 97-98. The friend Hill planned to visit, Laura Adams, later testified that she called Hill “dozens of times” on Friday night and throughout the weekend, but never reached her, although she encountered at least one “busy” signal. Id. at 217-19, 221. Randall also had no success when he attempted to call Hill on Sunday night and again Monday morning. Id. at 99-100.

On Monday morning, Randall went to the hospital where Hill was employed as a pediatric nurse (and where Randall’s wife was then admitted as a patient) and discovered that Hill had not reported to work. Id. at 101, 103. Concerned, he drove to Hill’s apartment, where he found her car parked in the driveway. Randall let himself in through the unlocked side door and discovered Hill lying “face down on the carpet” in her living room. She was wearing a bathrobe, which was pulled “up around her shoulders,” and was otherwise naked. Id. at 100-03. The belt of the bathrobe was wrapped around her neck. Id. at 157.

Randall immediately called the police, as well as his son, David. Id. at 104. Arriving at the scene, police investigators found no signs of forced entry into Hill’s apartment, which was on the bottom floor of a two-family house. Id. at 107, 228-29. The apartment was “very neat,” and nothing appeared to be out of order. Id. at 228. A number of cigarettes of the brand Rivas smoked were found in an ashtray in Hill’s kitchen. Id. at 150-51, 638. Later testing revealed that fingerprints on the ashtray, as well as on a bottle of wine, belonged to Rivas. Id. at 591-93.

In addition to Rivas’s and Hill’s fingerprints, an unidentified set of prints was taken from the telephone. Id. at 588. Missing from the apartment was an airline ticket that Hill had collected from her travel agent on the afternoon of Friday, March 27. After learning from Randall and David that Hill had recently broken up with Rivas, police officers went to Rivas’s house in Cazenovia, a town about twenty miles southeast of Syracuse. Id. at 235. Rivas agreed to accompany the officers to the Syracuse police station. Sergeant John D.

Brennan later testified that Rivas appeared nervous, but was cooperative and did not inquire as to why he was being questioned. Id. at 237-28. At the police station, Rivas was taken to an interrogation room where police proceeded to question him for approximately twelve hours. Despite the fact that he was interrogated at length regarding his activities the weekend of Hill’s death, Rivas was never informed of his Miranda rights because, the police officers later insisted, he was not regarded as a suspect at that time. Trial Tr. at 239.

At approximately 5:30 p.m., after over two hours of questioning, police informed Rivas that Hill had been killed. According to Brennan, Rivas exhibited no discernible reaction upon hearing this news. Id. at 247. During the interview, Rivas told the police that he had last seen Hill four days earlier, on the evening of Thursday, March 26, 1987, when he had gone to her house and talked to her for half an hour. Id. at 240. He had also driven by Hill’s apartment at 2:00 p.m. the following day, Friday, March 27, and again approximately four hours later, at 6:00 p.m.

He claimed he did not linger on either occasion after discovering that Hill was not home. Id. at 240-41. Rivas said that he had spent most of Friday evening with friends at various bars in Syracuse and Cazenovia. See Trial Exh. 1. He stated that he was at Coleman’s Bar (“Coleman’s”) in Syracuse from about 6:00 to 11:00 p.m. He then went to Albert’s Bar (“Albert’s”) in Cazenovia and stayed there until 2:00 a.m., before returning to Syracuse to get breakfast at an all-night diner. He finally went home and fell asleep at 4:00 a.m.

Rivas claimed that he awoke at 11:30 a.m. on Saturday and returned to Albert’s to do some plumbing work. He remained for lunch and then went home to take care of some yard work. He then returned to Albert’s to watch Syracuse compete in the “Final Four” of the NCAA Men’s Basketball Tournament. He remained at Albert’s until approximately 8:00 p.m., whereupon he went to a party at a friend’s house until 4 a.m. on Sunday, March 29, before returning home to bed. As Rivas stated in the interview, many people saw him and spoke with him on Saturday night. Id.

While Rivas was being questioned at the station, other police officers put together an application for a warrant to search his residence. Attached to the application was an affidavit signed by Officer Timothy Phinney, attesting that there was probable cause to believe that several items would be found in Rivas’s home, including a key to Hill’s apartment and clothing soiled with blood, fecal matter, or other contaminants. See Motion to Vacate Sentence Pursuant to Criminal Procedure Law 440.10 (“Section 440.10 Mot.”) Exhs. 1 & 2. The affidavit also stated that the Onondaga County Medical Examiner, Dr.

Erik Mitchell, had preliminarily estimated the time of Hill’s death to be “sometime [between] [Saturday the 28th of March afternoon and [S]unday morning [the] 29th of March 1987.” Id. Exh. 2 In the basement of Rivas’s house, investigators discovered a damp jacket draped over a clothesline. Trial Tr. 274-75. Although a search of household trash was not expressly contemplated by the warrant, investigators also seized and reconstructed a torn-up note, which they found in a trash bag in Rivas’s kitchen. The note was from Hill to another former boyfriend, Bob Lucas, expressing her thanks for their time together.

See Trial Exh. 5. Finally, inside a bedroom closet, investigators observed what they described as a “shrine,” consisting of a large statue of the Virgin Mary surrounded by two small candles and a photograph of Hill. Trial Tr. at 270-74, 316. Although photographs were taken of the trash bag that contained the note, as well as other items in Rivas’s house, no photograph was taken of the “shrine.” See id. Despite a thorough investigation, neither Rivas nor anyone else was charged with, or even publicly identified as a suspect in, Hill’s murder, which remained a “cold case” for five years. B.

The Indictment of Hector Rivas In January 1992, William J. Fitzpatrick was sworn in as District Attorney of Onondaga County, having previously served in that office as an Assistant District Attorney.

According to his biography on the Onondaga County District Attorney’s website, when he was Chief Assistant District Attorney, “Fitzpatrick specialized in reopening cases that had previously been considered inactive and, with the cooperation of various police agencies in Onondaga County and the state of New York, he brought numerous killers to justice in cases that were thought to be un-winnable.” See “Meet the DA,” Office of the Onondaga District Attorney, www. ongovda.net/section/meet_the_da/ (last visited May 30, 2012).

On November 22, 1992, nearly six years after the murder of Valerie Hill, a grand jury indicted Rivas on charges of murder in the second degree and aggravated sexual abuse. It is not clear what, if any, new evidence might have come to light that would lead authorities to pursue, and the grand jury to indict, Rivas nearly six years after the murder. In its Bill of Particulars, responding to a defense request for the date when Rivas was first identified as a possible perpetrator of the crime, the prosecution stated, simply: “It is very difficult to respond to this request.

Defendant was indicted in November 1992.” See Rivas v. Fischer, No. 01-cv-1891, (N.D.N.Y. Sept. 18, 2009), ECF No. 55-2 at 56 (Answering Affidavit). Rivas contends that, sometime after becoming District Attorney, Fitzpatrick approached Mitchell, the medical examiner, and requested that he review Hill’s autopsy report with an eye toward expanding the time of death to include Friday, March 27, 1987, when Rivas’s alibi was not as strong.

According to Rivas, at the time this alleged request was made, Mitchell “was under criminal investigation by DA Fitzpatrick’s office, as well as by the Department of Health and the Department of Environmental Conservation” for varieties of misconduct, including improper disposal of waste and stealing and mishandling of body parts. Appellant’s Br. at 8. The State concedes that Mitchell was accused of various forms of misconduct as early as 1989, see Appellee’s Br. at 24, and does not dispute that he was under investigation by the State Department of Health at the time he testified against Rivas.

It is also undisputed that Mitchell resigned in November 1993, in part to avoid prosecution by the District Attorney’s Office. See Remand Hearing Tr. at 205. It is not clear from the record, however, at what point the District Attorney’s Office opened its criminal investigation into Mitchell’s conduct. Though Rivas’s state post-conviction attorneys submitted requests under New York’s Freedom of Information Law requesting information regarding the investigation, the County provided only one page (a press release) in response, maintaining that other materials were non-final agency records and attorney work product.

See Remand Hearing Tr. at 208. Rivas’s attorneys also persuaded a state Supreme Court justice to conduct an in camera review of the County’s investigation of Mitchell in 1998, but the judge determined that the documents would not be provided to Rivas. In any case, whether it was out of an “eager[ness] to please the prosecutor,” Appellant’s Br. at 5, as Rivas suggests, or based upon an independent reevaluation of the medical record, it does appear that sometime in 1992, Mitchell reconsidered his estimate of the time of death.

The grand jury’s indictment alleges that Rivas killed Hill “on or about” Friday, March 27, 1987. The State has identified no new evidence that came to light between March 1987 and November 1992 that led to the indictment. As far as the record reflects, therefore, the only thing that changed during that span of time was the medical examiner’s estimation of the time of death. C. The Trial of Hector Rivas Rivas was tried before a jury in March 1993, with now-deceased Onondaga County Court Judge J. Kevin Mulroy presiding. He was represented by Richard J. Calle, an attorney then practicing in Queens, New York.

Rivas, who had moved downstate, hired Calle because Calle happened to be representing him in a civil arbitration matter in the fall of 1992, around the time the District Attorney’s Office renewed its investigation of him in connection with Hill’s murder. See

Section 440.10 Hearing Tr. at 11. Calle did not work out of a formal business office and, on the occasions that he met with Rivas prior to Rivas’s incarceration, those meetings were typically held in Rivas’s sister’s apartment or at a local diner. 1. The People’s Direct Case The People’s case was almost entirely circumstantial. District Attorney FitzPatrick, who tried the case himself, presented Rivas as an obsessive, jilted lover who harassed Hill following their breakup and was pushed over the edge when he learned that Hill was planning to take a trip to the Bahamas alone. Trial Tr. at 1127-28.

As Fitzpatrick summarized: “Hector Rivas stalked this woman [for] two and a half months, and finally strangled her and killed her in a jealous rage on March the 27th of 1987.” Id. at 1069. Trial testimony and exhibits supported at least part of this theory. Friends of Hill testified that Rivas persisted in contacting Hill on a regular basis, even after she had made clear that she did not want to continue or revive their relationship. In addition, the prosecution introduced dozens of notes, cards, and letters that Rivas had written to Hill in the months between their breakup and her death. See id. at 1092-97.

Police investigators also testified regarding Rivas’s strange behavior when he was first questioned, including his lack of reaction when he was told that Hill had died. Id. at 247. Several witnesses testified regarding Rivas’s whereabouts on Friday, March 27, 1987, the alleged date of the murder. Taken together, the testimony of these witnesses suggested that there may have been a window of time during which Rivas could have gone to Hill’s house and strangled her while en route from Coleman’s in Syracuse to Albert’s in Cazenovia, about thirty minutes away.

Prosecution witnesses testified that Rivas left Coleman’s at around 9:00 or 9:30 p.m. and did not arrive at Albert’s until sometime between 11:00 p.m. and 12:30 a.m. Id. at 461-63, 439^40, 849. One witness, a clerk at a liquor store near Hill’s apartment, testified that he saw Rivas enter the store between 9:30 and 10:00 p.m. Id. at 496-99. Two witnesses testified that they observed Rivas smoking a cigarette in his car, which was parked outside Hill’s house, sometime between 11:00 p.m. and 12:00 a.m. that night — around the time that the prosecution theorized Hill was murdered. Id. at 533-34, 936-37.

Beyond making the case that Rivas had motive and the opportunity to murder Hill on Friday night, Fitzpatrick deftly turned Rivas’s alibi for Saturday against him. Through witness testimony and in his opening and summation, Fitzpatrick suggested that Rivas had contrived to be seen by many people at all hours of the day Saturday and into Sunday morning, so that he would have an alibi in the event that police focused on Saturday evening as the time of death. See, e.g., id. at 1084, 1124.

For example, Elizabeth Lewis, one of Hill’s friends, testified that Rivas sought her out at a party Saturday evening and remarked that “[fit’s too bad Valerie’s not feeling well, that she can’t be here tonight.” Id. at 780. The implication, according to the prosecution, was that Rivas wanted to plant the idea in Lewis’s mind that Hill was alive on Saturday evening, knowing that he was at that very moment cementing his alibi. See id. at 1124.

Similarly, Fitzpatrick emphasized a seemingly exculpatory item of evidence: a Stephen King novel that Hill had checked out from the Cazenovia Public Library, and which a witness had seen in the back seat of Hill’s car on Friday afternoon. See id. at 190-91. The book was returned to the library’s drop box sometime between Saturday afternoon and Sunday morning, suggesting that Hill (the most likely person to have returned it) was alive at least as late as Saturday afternoon.

But Fitzpatrick theorized that it was Rivas who returned the book, hoping that it would cause investigators to believe that Hill was not killed on Friday night, when his alibi was relatively weaker. Id. at 54-55, 1085. Finally, the People elicited testimony from Joe Fields, an acquaintance of Rivas, who encountered him at Albert’s bar approximately three weeks after the murder. Rivas had been drinking heavily and was crying over Hill’s death. According to Fields, at a moment when Rivas did not know that Fields was in earshot, he said to himself, “Valerie, Valerie, I didn’t mean to do it.” Id. at 817-18. 2.

The Medical Examiner’s Testimony No matter how much circumstantial evidence the prosecution could amass tending to link Rivas to the crime, however, it had no case unless it could prove that Hill died on Friday night. Fitzpatrick himself acknowledged that Rivas’s alibi was “complete — for Saturday night.” Id. at 55. Indeed, it was the People’s position that Rivas’s alibi was so strong on Saturday night precisely because he had concocted it, having murdered Hill the night before.

Therefore, the prosecution’s case rested almost entirely on the testimony of Mitchell, the medical examiner, to persuade the jury that Hill died on Friday night and not on Saturday as Mitchell had initially determined. Mitchell testified that, when he first observed Hill’s body on the afternoon of Monday, March 30, it “was in rigor,” and that by the time he performed an autopsy later that day, “[s]he was coming out of rigor.” Id. at 869, 872.

He cautioned that no medical examiner can pinpoint with certainty the time of a person’s death, id. at 886, but stated that, based on his observations of the body, there was nothing inconsistent with Hill having died on either the night of Saturday, March 28, or Friday, March 27. Id. at 888.

However, taking into account a number of external factors — namely, that Hill’s cat was seen outside on Saturday morning; that Hill had not been seen after Friday; that she never contacted the friend whom she intended to visit that weekend; that her car had apparently not been driven since Friday; and that she had not been in touch with her father despite the fact that his wife was gravely ill — Mitchell opined that “it’s more likely that she died Friday night, to possibly very early Saturday morning” than on Saturday night. Trial Tr. 889-90.

He also stated his opinion “within a reasonable degree of medical certainty” that Hill died as a result of being strangled. Id. at 891. Confronted on cross-examination with contemporaneous newspaper accounts that reported on his preliminary findings, Mitchell admitted that he “[q]uite possibly” had estimated at some point that Hill died late on Saturday night or early Sunday morning. Id. at 895-96. Mitchell also conceded that, when he testified before the grand jury in November 1992, he had stated that it was merely “on the outside edge of [] possibility” that Hill could have been murdered on Friday night.

Id. at 907. At trial, however, he insisted that he had never “tied [himself]” to a Saturday night estimate. Id. at 895. He stressed that the onset and relaxation of rigor mortis was highly variable and could be slowed, for example, by cold temperatures. Id. at 905-06. Although Mitchell thus acknowledged that in most cases rigor mortis relaxes within twenty-four to forty-eight hours (which would put Hill’s time of death somewhere between Saturday and Sunday afternoon), he suggested that the cool temperatures in Hill’s apartment could have retarded the process.

On redirect examination, Mitchell explained that, when he testified before the grand jury several months earlier, he had not reviewed “some of [his] notes and slides.” Id. at 915. Having had the opportunity to review the “slides” before trial, he noticed in them “some decomposition to the brain.” Id. This, he stated, “tends to push the [time] limits further out.” M 3.

Belated Disclosure of Exculpatory Evidence At the close of the People’s case, Fitzpatrick disclosed the existence of an August 1988 affidavit from one Joe Morgan, in which Morgan attested that an individual named Patsy Barricella had admitted to Morgan that he (Barricella) murdered Hill. Trial Tr. at 947-48.

Recognizing that this evidence was “exculpatory without a doubt,” id. at 984, the trial judge allowed Calle, Rivas’s attorney, to decide whether to adjourn and attempt to call Morgan or Barricella as witnesses, or instead to bring out the information contained in the affidavits by examining the Syracuse police officer who had interviewed Morgan. Calle opted to draw the information out of the police officer, Michael Ostuni. Id. at 987.

According to Ostuni, Morgan claimed that he had a conversation with his friend and neighbor Barricella in March 1988, at which time Barricella confessed to killing “the girl on Hickok Avenue.”

Section 440.10 Mot. Exh. 8. In addition, Barricella had, according to Morgan, driven by the crime scene several times as police were investigating Hill’s murder and was stopped by police as a result. (Indeed, a contemporaneous police report revealed that Barricella was stopped by police after driving by the crime scene repeatedly. See

Section 440.10 Mot. Exhs. 9 & 10.) However, on cross-examination by the District Attorney, Ostuni also testified that Morgan was a con artist and career criminal who had contacted the police from a county jail cell, demanding release as a quid pro quo for cooperation. Trial Tr. at 998-1000. Ostuni further testified that Barricella was known to be “mildly mentally retarded.” Id. at 1001. 4. Rivas’s Direct Case Beyond the testimony of Ostuni, Rivas’s direct case was underwhelming.

As Calle later testified, he did not appreciate at trial that the precise time of Hill’s death was important because he felt that Rivas had a strong alibi throughout the entire weekend. He therefore never considered calling an expert forensic pathologist to challenge Mitchell’s adjusted findings. See

Section 440.10 Hearing Tr. at 85, 87. He did attempt to establish that Hill was alive on Saturday by calling a prosecution witness, Hill’s upstairs neighbor, to read from an affidavit in which she had stated that she had seen Hill in them shared basement that morning. However, on cross-examination by Fitzpatrick, the witness readily conceded that she had been mistaken in her affidavit and had in fact seen Hill on Friday morning, not the following day. See Trial Tr. at 927-932.

Calle also attempted to establish Rivas’s alibi by calling a single witness who claimed to have seen Rivas at Albert’s in Cazenovia as early as 7:30 p.m. on Friday. Id. at 967. Finally, he called a witness who testified that Rivas was acting normally on Saturday night. Id. at 974. Rivas did not testify in his own defense, and claims that Calle never informed him of his right to do so.

Section 440.10 Hearing Tr. at 17-18. 5. Summations In his closing argument, Calle argued that the Hill murder had been solved backwards: The police and the District Attorney’s Office had decided at the outset that Rivas was the killer and then set out to find, or fabricate, the proof of the murder from there, ignoring other potential leads along the way. Trial Tr. at 1044.

With respect to the time of death, Calle argued that Mitchell had to stretch science beyond the breaking point to opine at trial that it was more likely that Hill had been killed on Friday than on Saturday, when Mitchell had previously testified before the grand jury that a Friday time of death was only “on the outside limits of possibility.” Id. at 1062. Calle did not explicitly challenge Mitchell’s credibility or suggest that he might be beholden to the District Attorney’s Office.

Indeed, Rivas claims that neither he nor Calle were aware of the investigations into Mitchell’s conduct at the time of the trial, despite their widespread publicity in the weeks leading up to it, apparently because they both then lived downstate. See § 2254 Petition at iv; Remand Hearing Tr. at 271-72. Fitzpatrick, in his summation, defended Mitchell’s estimates: [A]s [Dr. Mitchell] told the grand jury, rigor mortis, the stiffening of the body after death, normally begins to pass off within 24 to 48 hours.

If we were looking at a calendar, this would put the normal time of death or the normal median time of death sometime Saturday afternoon. Could it have been 16, 17, 18 hours earlier? Absolutely. Absolutely. Heating conditions refer, first of all, to 75 degrees. It wasn’t the temperature of the house. The temperature of the house was 62 degrees.... Basement underneath her, cold floor. And the nights as you might expect, in March of 1987 were cold as well. Trial Tr. at 1082-83.

Furthermore, Fitzpatrick argued, Mitchell had “had a chance to review autopsy sectional slides of the brain,” id., which tended to expand the range of possible times of death. This review, Fitzpatrick claimed, combined with the external indications Mitchell had identified, had led Mitchell to opine that it was most likely that Hill died on Friday, March 27. Summarizing the evidence against Rivas, Fitzpatrick theorized that Rivas had paid Hill a visit on Friday night after he left Coleman’s bar, and had brought over a bottle of rum and a bottle of wine in hopes that the two could mend their relationship.

When he discovered that Hill not only did not want to reunite with him, but was also planning a trip to the Bahamas alone, he flew into a rage and strangled her. Then, realizing he needed to cover up the crime, he got rid of the airline ticket (but left an ashtray full of his cigarettes), and, on the way to his car, took Hill’s library book from the back seat of her car, intending to return it the next day to make it appear as though Hill were still alive. He then crafted a tight alibi for the rest of the weekend. Id. at 1125-30.

The jury deliberated for eight hours over the course of one day, during which time it asked for farther instructions on the meaning of “reasonable doubt.” Id. at 1188. At approximately 10:45 p.m. on March 25, 1993, nearly six years to the day after Valerie Hill was killed, Hector Rivas was found guilty of second-degree murder. He was subsequently sentenced on May 12, 1993, to an indeterminate term of imprisonment of twenty-five years to life. D.

State Post-Conviction Proceedings Rivas, with the assistance of new counsel, appealed his conviction to the Appellate Division of the New York Supreme Court, claiming, inter alia, that certain papers seized from his home on March 30, 1987 — including the torn-up note from Hill to her former boyfriend — should have been suppressed; that police testimony regarding his statements and demeanor during his interrogation should have been excluded; that he was deprived of a fair trial by the belated disclosure of the Joe Morgan affidavit; and that the verdict was against the weight of the evidence.

On April 28, 1995, the Appellate Division issued a decision unanimously affirming Rivas’s conviction. People v. Rivas, 214 A.D.2d 996, 626 N.Y.S.2d 640 (4th Dep’t 1995). Although the Appellate Division held that the note should have been excluded, it concluded that admission of the evidence was harmless. Id. at 996, 626 N.Y.S.2d 640. The panel rejected the remainder of Rivas’s claims on appeal. Id. at 996-97, 626 N.Y.S.2d 640. Rivas’s application for leave to appeal to the New York Court of Appeals was denied on August 15,1995. People v. Rivas, 86 N.Y.2d 801, 632 N.Y.S.2d 514, 656 N.E.2d 613 (1995) (table).

Thereafter, with the assistance of yet another lawyer, Rivas filed a motion to vacate the judgment of conviction pursuant to N.Y. Criminal Procedure Law § 440.10, which provides the means of collateral attack on a criminal judgment in New York state courts. In that application, Rivas alleged that he had been the victim of a “concerted effort to convict that was severed from concerns over actual guilt very early on in this investigation and was orchestrated by the District Attorney himself, William J. Fitzpatrick, who personally prosecuted this case.” Affirmation of H. Mitchell Schuman in Support of

Section 440.10 Mot. at 3. Principal among Rivas’s allegations was that Mitchell, the medical examiner, had altered his original estimate of the time of Hill’s death in order to satisfy the District Attorney in hopes of avoiding prosecution for alleged criminal misconduct. Id. at 4-7. Rivas claimed not to have known about the investigation of Mitchell and his office until after the trial, when Mitchell was indeed forced to resign to avoid prosecution by Fitzpatrick’s office. Id. at 6.

Additionally, Rivas claimed to have discovered only after the trial that, despite Mitchell’s testimony that he had examined “slides” in coming to the conclusion that Hill most likely died on the night of Friday, March 27, 1987, and despite Fitzpatrick’s characterization of these slides in his summation as “autopsy sectional slides,” there were in fact no sectional slides of Hill’s brain in the medical examiner’s file. Id. at 6-7. Rivas also pointed to “new evidence,” in the form of an affidavit by Dr. Cyril H.

Wecht, an expert in forensic pathology, who attested that Mitchell’s calculations of the cause of death were “misguided,” and that, in his expert opinion, “based upon a reasonable degree of medical certainty, ... the length of time between the death of Valerie J. Hill and the time she was found was less than 48 hours, and more likely less than 36 hours.” Affirmation of Cyril H. Wecht in Support of

Section 440.10 Mot. (emphasis in original). In other words, according to Wecht, Hill most likely died between 3:30 p.m. on Saturday, March 28, and 3:30 a.m. on Sunday, March 29. In addition, Rivas alleged that a significant amount of exculpatory material was withheld from the defense at trial. Most saliently for our purposes, Rivas claimed that he never received an affidavit taken from one of Hill’s neighbors, Mary Lazarski, and a police report memorializing an interview with another unnamed neighbor.

In her affidavit, Lazarski attested that, late in the evening of March 28 or early in the morning of March 29, while she was watching “Saturday Night Live” on television, she heard through her open window “a loud shriek or scream [that] seemed to cut off.”

Section 440.10 Mot. Exh. 4. She stated that “[t]he voice was a woman’s voice and it sounded like someone was in trouble and not like anyone kidding around.” Id. Lazarski’s husband also signed an affidavit confirming that his wife woke him up and told him about the incident that night. Id. The unidentified neighbor told police that he heard a dog barking and a car speed away from the vicinity of Hill’s house at around 11:00 Saturday night. Id.

Beyond these documents, Rivas claimed that the prosecution failed to disclose: (1) a police report regarding an interview with a neighbor who had seen Hill intimately embracing a man other than Rivas a few days prior to her murder, and another interview stating that Hill had been involved in an intimate relationship with a man other than Rivas at the time of her death; (2) information that one of Hill’s neighbors had previously been arrested for burglary and was known to peer through windows in the neighborhood; (3) information that an employee at the hospital where Hill worked had been disciplined after Hill made a complaint against him; (4) information regarding a purported “sexual deviant” who was residing in Hill’s neighborhood; (5) the fact that one of the prosecution witnesses had a prior conviction; and (6) the affidavit stating that Patsy Barricella, not Rivas, had committed the crime.

Section 440.10 Mot. at 7-10. Finally, Rivas raised a claim of ineffective assistance of counsel, alleging that his trial attorney, Calle, had failed to apprise him of his right to testify in his own defense, and had failed to “investigate or challenge the false and misleading testimony given by the medical examiner at trial.” Mem. Law. Supp.

Section 440.10 Mot. at 34-40. On April 7, 2000, Acting Onondaga County Supreme Court Justice John J. Brunetti conducted an evidentiary hearing in connection with Rivas’s § 440.10 motion. At the close of the hearing, Justice Brunetti issued an oral ruling denying relief with respect to Rivas’s Brady claims and one portion of his ineffective-assistance claim, finding that Rivas had not borne his burden of persuasion on those points. See

Section 440:10 Tr. at 135-41. After taking the remaining issues under advisement and receiving post-hearing briefs from the parties, Justice Brunetti issued a written decision on September 8, 2000, denying relief on the remaining claims. See People v. Rivas, No. 92-2794 (N.Y.Sup.Ct. Sept. 8, 2000). E. Federal Habeas Proceedings 1. Initial Decision and Appeal On December 12, 2001, Rivas filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In it, he raised substantially the same claims that he had advanced before the state court in his § 440.10 motion.

Principally, he claimed that: (1) he was entitled to a new trial in light of newly discovered evidence of misconduct and false testimony by the medical examiner; (2) the prosecution failed to provide him with Brady material; and (3) his trial counsel was grossly ineffective. § 2254 Petition at i-ii. The District Court dismissed Rivas’s claims as time-barred under 28 U.S.C. § 2244(d). See Rivas v. Fischer, No. 01-cv-1891, ECF No. 21 (N.D.N.Y. Jan. 28, 2005) (“Rivas /”). By

summary order dated October 2, 2008, we vacated the judgment of the District Court, concluding that we were unable to review its determination that the petition was untimely because it had not developed a record as to whether a duly diligent person in Rivas’s circumstances would have been able to discover the factual predicates for his claims more than a year prior to his filing the petition.

We therefore remanded the cause to the District Court with instructions that it “make specific factual findings” regarding the timeliness of Rivas’s claims, noting that, in order to be timely, Rivas’s claims must not have been discoverable through the exercise of due diligence prior to May 8, 1999, one year prior to the actual filing of his petition (not including periods of time during which the statute of limitations was tolled). See Rivas II, 294 Fed.Appx. at 679.

In addition, we instructed that, should the District Court determine that the factual predicates for Rivas’s claims could have been discovered, with reasonable diligence, prior to May 8,1999, it “should then make specific findings as to whether Rivas has established a credible claim of actual innocence” under applicable Supreme Court and Second Circuit standards. Rivas II, 294 FedAppx. at 679.

We specifically stated that “the District Court may wish to examine the ‘likely credibility of the affiants,’ ” namely Wecht and Calle, and “the relative strength of the State’s case against Rivas in light of any credibility determinations that the District Court sees fit to make.” Id. 2. Proceedings on Remand Pursuant to our remand order, an evidentiary hearing was conducted by Magistrate Judge David Peebles on September 21 and 22, 2009.

The magistrate judge opened the hearing by expressing his view that, “although actual innocence is at play, the primary focus [of the hearing] is on the timeliness question” — that is, whether the “new evidence” upon which Rivas purported to base his claims was known, or could have been discovered through the exercise of due diligence, prior to May 8, 1999. Remand Hearing Tr. at 9. Much of the testimony at the hearing before the magistrate judge therefore focused on the efforts of Rivas and his attorneys to track down the information underlying his claims.

The Court did, however, hear testimony from Wecht, the forensic pathologist whose affidavit called into doubt Mitchell’s time-of-death estimate. Wecht testified that he had reviewed the medical examiner’s file, as well as the relevant trial testimony, and concluded “with a reasonable degree of medical certainty,” that “this death could not have occurred longer than 48 hours prior to the time that Mitchell examined the body on Monday, March 30 at 3:30 p.m.” Id. at 36.

Wecht arrived at this conclusion primarily because Mitchell had written in his scene investigation report that the body was in “full rigor” when he examined it and a body generally cannot remain in “full rigor” more than forty-eight hours after death. Id. at 33-34; see note 13, ante. Furthermore, Wecht noted that the autopsy report contained no reference to discoloration around the abdominal wall, which would generally be found in a body that has been lying face-down on the ground for longer than forty-eight hours. Id. at 34-35.

Wecht further testified that the reasons Mitchell had provided at trial for “push[ing] the time limits further out” were without scientific basis.

With respect to Mitchell’s claim that cool temperature conditions in Hill’s apartment could have delayed the onset and relaxation of rigor, Wecht testified that, though a colder environment may slow down the development of rigor mortis, the temperature in Hill’s apartment could not have been low enough to make a difference: Now if you have a particularly cold weather as you can have in Syracuse in the wintertime, that’s a different matter, a body found in your snowy mountains, but not a body, I don’t care if it’s 60 to 62 degrees or 70 degrees, not going to make any difference.

You’re not going to have a body in full rigor 48 hours after the person has died. You’re just not going to have that. Id. at 34. With respect to Mitchell’s claim that he had observed decomposition in Hill’s brain when he examined “slides” in his file, Wecht testified that such decomposition could not be observed in photographic slides, but only in sectional slides, containing actual brain tissue.

Inasmuch as there were no sectional slides in the medical examiner’s file, and inasmuch as the neuropathologist who in fact examined Hill’s brain had found no evidence of external decomposition, Wecht opined that Mitchell’s trial testimony in this regard was unfounded. See Remand Hearing Tr. 27-28, 31. Overall, Wecht found Mitchell’s explanation for expanding the possible time of death to include Friday to be unsound, and perhaps improper.

He stressed that “any forensic pathologist in the world” would agree that an estimation of time of death is more reliable if made at the time of the autopsy, and stated that Mitchell’s claim that he could “come back in six years later and say that now I have a new estimate” was, at best, “a misrepresentation.” Id. at 37-88. On cross-examination, Wecht allowed that it was possible that Hill could have died as early as 9:30 a.m. on Saturday, March 29.

The attorney for the State then asked if it would have been “impossible for Hill to have died at 2:30 a.m. on Saturday morning,” to which Wecht offered the following response: You know, I am always very hesitant to use words like absolute and impossible ... but I’ll answer with reasonable medical probability or reasonable medical certainty, I do not believe that Ms. Hill could have been killed as far back as 2:30 a.m. on Saturday morning, August 28th, that is after midnight on Friday, the 27th into the morning hours of Saturday, the 28th. Id. at 64-65.

Notably, the State did not challenge Wecht’s credibility or expertise as a forensic pathologist or offer any expert testimony of its own. After the hearing, and upon receiving briefs from the parties, the magistrate judge issued a Report and Recommendation recommending that the petition again be dismissed as untimely. See Rivas v. Fischer, No. 01-cv-1891, 2010 WL 1257938 (N.D.N.Y. Jan. 8, 2010) (“Rivas III”).

He found that Rivas had “established neither that he did not and could not have discovered the evidence serving as the factual predicate for his claims, through the exercise of due diligence, more than one year before his petition was filed, excluding any intervening tolling periods, nor a colorable claim of actual innocence[.]” Id. at *1.

With respect to timeliness, the magistrate judge concluded that the investigation into Mitchell’s misconduct as medical examiner was public knowledge at the time of the trial and therefore could have been discovered well in advance of May 8, 1999, the latest date on which Rivas’s § 2254 petition could have been timely filed. Id. at *10-11.° Regarding Wecht’s June 9, 1999, affidavit casting doubt on Mitchell’s testimony, the magistrate judge concluded that it was not in fact “new evidence,” but instead was “nothing more than a conflicting opinion to that of Dr.

Mitchell regarding the time of the victim’s death.” Id. at *11. The magistrate judge did not make any finding regarding when a duly diligent person would have discovered the factual predicates for Rivas’s Brady claims, concluding instead that Rivas had failed to establish that the material in question was actually withheld from the defense. Id. at *13-14. As a result of an apparent oversight, the magistrate judge did not address Rivas’s claim of ineffective assistance of trial counsel.

With respect to actual innocence, the magistrate judge concluded, without elaboration or citation to the record, that the new evidence Rivas proffered “could [not] properly be characterized as the type of highly reliable evidence upon which a claim of actual innocence could be predicated.” Id. at *15 n. 23.

Addressing the affidavit and testimony of Wecht, which he deemed the “centerpiece of petitioner’s actual innocence claim,” the magistrate judge noted that Wecht had “conceded on cross-examination that Hill’s death could have occurred as early as four to six hours prior to [3:30 p.m. on Saturday, March 28, 1987] ... and he was unable to state with absolute certainty that she could not have died late Friday night into the early morning hours of Saturday, March 2[8], 1987.” Id. at *15 (emphasis added).

Therefore, in the magistrate judge’s view, Wecht had not absolutely ruled out the possibility that Mitchell was correct in estimating the time of death at Friday, March 27, 1987. Importantly, the magistrate judge did not make any adverse credibility finding with respect to Wecht’s affidavit and testimony. Rather, in light of what he deemed to be “overwhelming” evidence of Rivas’s guilt, the magistrate judge concluded that “Dr.

Wecht’s testimony does not rise to a level sufficient to permit the conclusion that no reasonable juror could have found guilt beyond a reasonable doubt had the additional evidence been considered.” Id. at *16. Rivas filed timely objections to the Report and Recommendation. After further briefing from both sides, Judge Sharpe, upon de novo review, adopted the magistrate judge’s Report and Recommendation and dismissed the petition without reaching the merits. See Rivas v. Fischer, No. 01-cv-1891, 2010 WL 1257935 (N.D.N.Y. Mar. 26, 2010) (“Rivas IV”).

The District Court granted a certificate of appealability “limited to the issue of when petitioner discovered the new evidence that serves as a factual predicate for some of his claims, and whether it could have been discovered earlier through the exercise of due diligence.” See id. at *5 (granting certificate of appealability as articulated by Magistrate Judge Peebles in Rivas III, 2010 WL 1257938 at *17). This appeal followed and was assigned to the original panel, pursuant to the instructions in our prior

summary order. See Rivas II, 294 Fed. Appx. at 680 (invoking the remand procedure outlined in United States v. Jacobson, 15 F.3d 19, 21-22 (2d Cir.1994)). DISCUSSION The merits of Rivas’s habeas petition are not at issue in this appeal. Rather, our concern is only with whether the petition was timely filed and, if the petition was untimely, whether Rivas’s delay in filing it should be excused.

Among the reforms instituted by Congress in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) is a one-year statute of limitations, 28 U.S.C. § 2244(d)(1), which runs from the latest of a number of triggering events, including “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” id. § 2244(d)(1)(A), and “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” id. § 2244(d)(1)(D). See note 1, ante.

Petitioners, like Rivas, whose convictions became final before the enactment of AEDPA on April 24, 1996, are entitled to a one-year “grace period,” meaning that their petitions would not be barred if filed on or before April 24, 1997. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998). Rivas does not dispute that his federal habeas petition, filed December 12, 2001, would be untimely under § 2244(d)(1)(A), but argues here (as he did before the District Court) that it should nevertheless be considered timely under § 2244(d)(1)(

D) because it is predicated on new evidence which could not have been discovered more than a year prior to his filing (excluding the period during which his state post-conviction motion was pending). He also argues that, even if the petition was not timely filed under § 2244(d)(1)(D), he should benefit from equitable tolling, because it was only due to ineffective assistance rendered by his trial and initial post-conviction counsel that he failed to file sooner.

Finally, he argues that the merits of his petition should be considered irrespective of the statute of limitations because he has made a compelling showing of actual innocence. The District Court rejected each of these arguments and dismissed the petition as untimely. We consider the District Court’s treatment of each issue in turn, reviewing its factual findings for clear error and its legal determinations de novo. See Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009). A. Timeliness Under § 2244(d)(1)(

D) Although Rivas raises six claims in his habeas petition, the claims that are allegedly predicated on new evidence fall into three categories: (1) the claims relating to the alleged misconduct and false testimony of the medical examiner, Mitchell; (2) the Brady claims; and (3) the ineffective-assistance-of-counsel claims. We have previously explained that, in order for Rivas’s petition to be deemed timely under § 2244(d)(1)(D), he must show that the factual predicates for these claims could not have been discovered through the exercise of due diligence before May 8, 1999. See Rivas II, 294 Fed.Appx. at 678.

We arrived at this date by working backward from the date on which Rivas in fact filed his petition: Three hundred days of the one-year limitations period elapsed between the final denial of Rivas’s state post-conviction motion (February 15, 2001) and the date on which he filed his federal habeas petition (December 12, 2001). From July 12, 1999 until February 15, 2001— the period during which Rivas’s state post-conviction motion was pending in state court — the limitations period was tolled.

Counting back sixty-five days from the date when Rivas filed his state post-conviction petition (July 12, 1999) yields May 8,1999. Id. at 678. Accordingly, if the “newly discovered” evidence on which Rivas’s claims are predicated could in fact have been discovered prior to May 8, 1999, then the petition, filed December 12, 2001, is untimely under § 2244(d)(1)(D).

The determination of the date on which the factual predicate for a habeas claim is first discoverable is a “fact-specific” inquiry which requires a district court to analyze the factual bases of each claim and to determine when the facts underlying the claim were known, or could with due diligence have been discovered. See Wims v. United States, 225 F.3d 186, 190 (2d Cir.2000) (addressing the parallel requirement in the statute governing habeas petitions challenging federal convictions, 28 U.S.C. § 2255(f)(4)).

Because the inquiry into when a factual predicate could have been discovered with due diligence is, by definition, a question of fact, we review the District Court’s determination for clear error. See Wilson v. Beard, 426 F.3d 653, 660 (3d Cir.2005) (“The ultimate question whether a petitioner exercised due diligence is one of fact which we will set aside only if it is clearly erroneous[.]”); see generally Drake, 553 F.3d at 239. Congress did not provide a definition of the term “factual predicate,” as used in § 2244(d)(1)(D); nor have we previously had occasion to offer one.

Those courts that have given meaning to the term agree that a factual predicate consists only of the “vital facts” underlying the claim. McAleese v. Brennan, 483 F.3d 206, 214 (3d Cir.2007); see also Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir.1998). We agree.

The facts vital to a habeas claim are those without which the claim would necessarily be dismissed under Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (requiring a district judge to dismiss a petition “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief’) or Rule 12(b)(6) of the Federal Rules of Civil Procedure (allowing for dismissal of a civil complaint where the plaintiff has “fail[ed] to state a claim upon which relief can be granted”).

Accordingly, if new information is discovered that merely supports or strengthens a claim that could have been properly stated without the discovery, that information is not a “factual predicate” for purposes of triggering the statute of limitations under § 2244(d)(1)(D). See McAleese, 483 F.3d at 214 (observing that the petitioner had “confused the facts that make up his claims with evidence that might support his claims”); Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005) (“Section 2244(d)(1)(

D) does not restart the time when corroborating evidence becomes available; if it did, then the statute of limitations would fail in its purpose to bring finality to criminal judgments, for any prisoner could reopen the judgment by locating any additional fact.”); Flanagan, 154 F.3d at 199 (noting that petitioner “is confusing his knowledge of the factual predicate of his claim with the time permitted for gathering evidence in support of that claim”). Furthermore, it should go without saying that a factual predicate must consist of facts.

Conclusions drawn from preexisting facts, even if the conclusions are themselves new, are not factual predicates for a claim.

Applying this definition, we conclude that the District Court (adopting the Report and Recommendation of Magistrate Judge Peebles) did not clearly err in concluding that Rivas had “failed to prove that the factual predicate for any of the grounds asserted in his amended petition could not have been discovered by him through due diligence before May 8,1999.” Rivas III, 2010 WL 1257938 at *16; see Rivas IV, 2010 WL 1257935, at *5 (adopting the magistrate judge’s Report and Recommendation in full). We address each ground below. 1.

Factual Predicate Supporting Claims of Misconduct and False Testimony by Mitchell In his Amended Petition, Rivas claims that “newly discovered evidence regarding the conduct of the autopsy, the medical examiner’s false evidence and the medical examiner’s prior bad acts, warrant the grant of habeas relief.” Am. § 2254 Petition at iv.

The purportedly new evidence supporting this claim is: (1) evidence that Mitchell was under investigation for professional misconduct at the time of the criminal trial; (2) evidence that Mitchell falsely testified that he had examined “slides” of the victim’s brain to determine her time of death, when in fact there were no such slides; and (3) evidence in the form of Wecht’s affidavit and hearing testimony demonstrating that Mitchell’s trial testimony ignored generally accepted scientific principles and arrived at a time-of-death estimate that was highly implausible.

We agree with the District Court that the Mitchell investigation was discoverable prior to May 8, 1999. Indeed, in his § 440.10 Motion in state court, Rivas specifically cited newspaper coverage of the investigation predating his trial. As the magistrate judge observed, “[t]he publicity regarding that investigation belies any claim that Rivas and his counsel could not have learned of the investigation at or prior to the time of trial through the exercise of due diligence.” Rivas III, 2010 WL 1257938, at *10.

The evidence supporting Rivas’s claim that Mitchell lied when he testified that he adjusted his time-of-death estimate based in part on an analysis of autopsy sectional slides in the medical examiner’s file was also discoverable prior to May 8,1999.

On February 5, 1998, at Rivas’s request, the Onondaga County Court ordered the Medical Examiner’s Office to provide Rivas’s counsel with the records of its investigation into Hill’s death, including copies of “all slides prepared by the Medical Examiner’s Office of any organs or parts of organs of the deceased ... or slides of any nature prepared in reference to Hill, including microscopic slides.” Am. § 2254 Petition Exh. B at 3. A copy of the medical examiner’s file was turned over on March 24, 1998. It included the report of Dr.

George Collins, who had examined Hill’s brain shortly after her body was found and identified no abnormal postmortem decomposition. See id. Exh. C at 1, 3. It did not include any sectional slides. Thus, as of March 24, 1998, the factual predicate for the claim involving Mitchell’s alleged false testimony regarding so-called “brain slides” was discoverable with due diligence. Indeed, Rivas himself stated in a letter to one of his attorneys dated April 23, 1998, that he “truly wasn’t surprised to learn that the [file] didn’t have any brain slides,” confirming that he was aware of this fact prior to May 8, 1999.

See Rivas III, 2010 WL 1257938, at *12 (quoting April 23, 1998, letter of Hector Rivas to Attorney Sidney Manes). Finally, Wecht’s affidavit, though seriously detrimental to the State’s case, is not a “factual predicate” as we have defined that term. Rather, it is a conclusion based on facts that were known to Rivas or discoverable by him or his counsel at the time of his trial. Wecht himself stated in the affidavit that his conclusions were based upon a review of the medical examiner’s file and the transcript of Rivas’s criminal trial, in particular Mitchell’s testimony.

The information upon which Wecht relied in forming his conclusion is the factual predicate for this claim. This information was discoverable (and discovered) by March 24, 1998, at the latest, when the medical examiner’s file was turned over to Rivas. Moreover, even if the clock had started running on the date Wecht offered his conclusions, it is undisputed that these conclusions were initially offered in a confidential report to Rivas’s counsel on September 10, 1998, fully eight months prior to the critical date of May 8,1999. 2.

Factual Predicate Supporting Brady Claims Rivas contends that he was unable to establish his Brady claims until he succeeded in reconstructing his case file, the original of which was apparently lost at some point after his trial. Rivas’s efforts resulted in the Syracuse Corporation Counsel producing two batches of documents in response to requests under New York’s Freedom of Information Law. The first was received in September 1998 (with some additional material provided two months later) and the second in September 1999. See Rivas III, 2010 WL 1257938, at *7.

However, because Rivas only produced the September 1999 batch at the evidentiary hearing on remand, the magistrate judge was “unable to ascertain the extent to which the later produced materials duplicate those received earlier, and in particular whether the alleged Brady materials were among the three hundred eighty seven pages provided in September [and November] 1998, prior to the critical date.” Rivas III, 2010 WL 1257938 at *7.

It would have been preferable for the District Court to order Rivas to submit the September 1998 disclosure so that it could be determined whether the alleged Brady materials were contained therein. However, it was Rivas’s burden (at that time, with the assistance of counsel) to prove that he could not have discovered the factual predicate for his Brady claims prior to May 8, 1999. We agree with the District Court that Rivas did not sustain his burden on this score. 3.

Factual Predicate Supporting Ineffective Assistance of Counsel Claim In his amended petition, Rivas raises four claims of ineffective assistance of counsel, all tied to Calle’s performance at or before trial.

Specifically, Rivas claims that Calle: (1) failed to advise him of his right to testify at trial; (2) failed to request a pretrial Sandoval ruling; (3) failed to cross-examine adequately one of the prosecution’s witnesses; and (4) failed to indicate on the trial record that certain evidence (namely, the letter from Hill to her ex-boyfriend), which the prosecution claimed was discovered at Rivas’s home, was in fact discovered at Hill’s home. See Am. § 2254 Petition at ¶ 12.E. All of these allegations concern errors made prior to or during Rivas’s trial in March 1993.

Thus, the factual predicates for these claims arose well in advance of May 9, 1999. To the extent Rivas claims that his failure to timely raise his claims of ineffective assistance of trial counsel was due to the ineffectiveness of his post-conviction counsel, that argument is relevant to the issue of equitable tolling (addressed below), not to the timeliness of the claim itself. For these reasons, we conclude, like the District Court, that all of Rivas’s claims are untimely under 28 U.S.C. § 2244(d)(1)(D).

We proceed to examine whether, despite his failure to timely file his petition, Rivas should benefit from equitable tolling of, or an equitable exception to, the statute of limitations. B. Equitable Tolling Rivas contends that, even if his petition was untimely under the strict operation of 28 U.S.C. § 2244(d)(1), the statute of limitations ought to be equitably tolled. The Supreme Court has confirmed that AEDPA’s statute of limitations is not jurisdictional and “does not set forth ‘an inflexible rule requiring dismissal whenever’ its ‘clock has run.’ ” Holland v.

Florida, - U.S. -, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (quoting Day v. McDonough, 547 U.S. 198, 205, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006)). Rather, the limitations period in § 2241(d) “is subject to equitable tolling in appropriate cases”' — ■ specifically, where the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Id. at 2560, 2562; see also Doe v.

Menefee, 391 F.3d 147, 175 (2d Cir.2004) (“To qualify for [equitable tolling], the petitioner must establish that extraordinary circumstances prevented him from filing his petition on time, and that he acted with reasonable diligence throughout the period he seeks to toll.” (internal quotation marks omitted)). Whether a circumstance is extraordinary depends not on “how unusual the circumstance alleged to warrant tolling is among the universe of prisoners, but rather how severe an obstacle it is for the petitioner endeavoring to comply with AEDPA’s limitations period.” Diaz v.

Kelly, 515 F.3d 149, 154 (2d Cir. 2008). “On an appeal from a district court’s denial of equitable tolling, we review findings of fact for clear error and the application of legal standards de novo.” Harper v. Ercole, 648 F.3d 132, 136 (2d Cir .2011). The “extraordinary circumstances” that Rivas points to in this case are: (1) the failure of his state post-conviction counsel, Mitchell Schuman, to file the § 440.10 motion sooner; and (2) the lack of cooperation he received from his trial counsel, Calle, who possessed information essential to Rivas’s habeas claims.

We conclude that neither circumstance warrants equitable tolling of the limitations period. Because a lawyer is the agent of his client, the client generally “must ‘bear the risk of attorney error.’ ” Holland, 130 S.Ct. at 2563 (quoting Coleman v. Thompson, 501 U.S. 722, 752-53, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). Therefore, “a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable tolling.” Id. at 2564 (internal citations and quotation marks omitted).

Rather, in order to rise to the level necessary to constitute an “extraordinary circumstance,” for purposes of tolling § 2254’s limitation period, attorney negligence must be so egregious as to amount to an effective abandonment of the attorney-client relationship. See id. at 2564-65 (“extraordinary circumstances” found where counsel ignored letters of client emphasizing the importance of filing on time); Dillon v. Conway, 642 F.3d 358, 363-64 (2d Cir.2011) (same); cf. Maples v.

Thomas, — U.S.-, 132 S.Ct. 912, 923, 181 L.Ed.2d 807 (2012) (emphasizing, in context of showing cause for a procedural default, “the essential difference between a claim of attorney error, however egregious, and a claim that an attorney had essentially abandoned his client”). Under this standard, we cannot conclude that Schuman’s conduct in failing to file the § 440.10 motion sooner was so outrageous or incompetent as to amount to an abandonment of the attorney-client relationship.

In this case, unlike those in which we have found attorney incompetence to be “extraordinary,” there is no indication that Schuman ignored or contravened Rivas’s express instructions by delaying in filing the § 440.10 motion. Rather, Schuman’s conduct appears to be a garden variety case of neglect. Calle’s conduct, on the other hand, presents a closer call. Rivas alleges that Calle essentially disappeared following his trial in 1993, could not be located until sometime in 1999, and even then initially refused to cooperate with his post-conviction counsel.

These circumstances, if true, would certainly suggest that Calle abandoned Rivas and perhaps stood in the way of Rivas timely filing his petition. However, even if Calle’s disappearance constitutes the requisite “extraordinary eircumstance[ ],” Rivas must still establish that he acted diligently to find Calle throughout the time he seeks to have tolled. Doe, 391 F.3d at 175. In this regard, the magistrate judge found that the efforts of Rivas and his attorneys in tracking down Calle were “both extremely modest and ultimately successful.” Rivas III, 2010 WL 1257938 at *8.

Although Rivas’s post-conviction counsel were unable initially to find Calle through New York’s Office of Court Administration because he had been suspended from the bar, Rivas’s sister was able to find him within a month after she was asked to do so. Id. Furthermore, even after Rivas obtained the affidavit from Calle, he allowed an additional 300 days to elapse between the close of the § 440.10 proceeding and the filing of his habeas petition, without any apparent impediment standing in the way of his timely filing.

We therefore cannot conclude that the District Court clearly erred in determining that Rivas failed to act “with reasonable diligence ... during the time he seeks to have tolled.” Doe, 391 F.3d at 175. Accordingly, we decline to equitably toll the limitations period. C. Actual Innocence Having concluded that Rivas’s petition was untimely and that he does not qualify for equitable tolling, we come at last to the question of actual innocence. Following the Supreme Court’s decision in Schlup v.

Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), we have held that a habeas petitioner “may use his claim of actual innocence as a ‘gateway,’ or a means of excusing his procedural default, that enables him to obtain review of his constitutional challenges to his conviction.” Doe, 391 F.3d at 161. However, we have not yet decided whether a gateway claim of actual innocence may also excuse an untimely filing under AEDPA’s limitation period — a question that has divided our sister courts of appeal. See Lee v. Lampert, 653 F.3d 929, 932 (9th Cir.2011) (en banc) (noting circuit split).

In prior cases, we have declined to address the question, reasoning that we should only decide whether such an exception is required in a case in which it could make a difference — that is, a case in which the petitioner can actually make a credible and compelling showing of actual innocence. See Doe, 391 F.3d 147; Whitley v. Senkowski, 317 F.3d 223 (2d Cir.2003); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107 (2d Cir.2000). In this case, we conclude that Rivas has indeed presented a credible and compelling claim of actual innocence. We therefore proceed to address the gateway question.

As explained below, we hold that a petitioner who satisfies the Supreme Court’s actual-innocence standard may pass through the Schlup gateway and have his substantive claims heard on the merits, notwithstanding an otherwise unexcused delay in filing his habeas petition. 1. The Schlup Gateway Standard As the Supreme Court has repeatedly recognized, “habeas corpus is, at its core, an equitable remedy.” Schlup, 513 U.S. at 319, 115 S.Ct. 851 (citing cases); see also Gomez v. U.S. Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam); Fay v.

Noia, 372 U.S. 391, 438, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). For this reason, the Court has long instructed that statutes and rules governing habeas petitions must be applied with an eye toward “the ends of justice.” Sanders v. United States, 373 U.S. 1, 12, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) (holding that a district judge may decline to entertain a successive § 2255 petition “only if he is satisfied that the ends of justice will not be served by inquiring into the merits” (internal quotation marks omitted)). As the Court stated in Engle v.

Isaac, in “appropriate cases,” the principles of comity and finality that underlie federal habeas corpus review “must yield to the imperative of correcting a fundamentally unjust incarceration.” 456 U.S. 107, 135, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). In Murray v.

Carrier, the Court limited the availability of the “miscarriage of justice” exception to “extraordinary case[s], where a constitutional violation has probably resulted in the conviction of one who is actually innocent.” 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); see also Schlup, 513 U.S. at 321, 115 S.Ct. 851 (stating that Carrier “explicitly tied the miscarriage of justice exception to the petitioner’s innocence”). Though the Court has never expressly held that a petitioner may qualify for habeas relief based solely on a showing of actual innocence, see Herrera v.

Collins, 506 U.S. 390, 400-01, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), it has recognized that, in rare cases, an assertion of innocence may allow a petitioner to have his accompanying constitutional claims heard despite a procedural bar. Schlup, 513 U.S. at 315, 115 S.Ct. 851; Herrera, 506 U.S. at 404, 113 S.Ct. 853.

As the Court has described it, such an assertion is “‘not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.’ ” Schlup, 513 U.S. at 315, 115 S.Ct. 851 (quoting Herrera, 506 U.S. at 404, 113 S.Ct. 853). Accordingly, a petitioner seeking access to a federal habeas court in the face of a procedural obstacle must advance both a legitimate constitutional claim and a credible and compelling claim of actual innocence.

It is the combination of the two claims — that the petitioner is likely innocent and that his conviction was likely the result of nonharmless constitutional error — that permits a habeas court to review the petition notwithstanding procedural obstacles in order to avoid a miscarriage of justice. See id. at 316, 115 S.Ct. 851. A claim of actual innocence under Schlup is therefore procedural, not substantive. Id. at 315, 115 S.Ct. 851.

The petitioner raising such a claim does not seek to have his conviction vacated on grounds of innocence; rather, he seeks to create sufficient doubt about his guilt that the habeas court will permit him to pursue his accompanying constitutional claims notwithstanding an otherwise applicable procedural bar. See id. at 316, 115 S.Ct. 851. For this reason, the Supreme Court in Schlup observed that a petitioner seeking passage through the gateway has “less of a burden” than a petitioner advancing a freestanding, substantive claim of innocence. Id.

As the Court explained, in the latter case, “the evidence of innocence would have ... to be strong enough to make [the petitioner’s] execution ‘constitutionally intolerable’ even ijfhis conviction was the product of a fair trial.” M For the gateway petitioner, in contrast, “the evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.” Id.

Accordingly, to present a successful gateway claim of actual innocence a petitioner must present “evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.” Id. To satisfy the Schlup standard, a claim of actual innocence must be both “credible” and “compelling.” See House, 547 U.S. at 521, 538, 126 S.Ct. 2064.

For the claim to be “credible,” it must be supported by “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, 115 S.Ct. 851; see also House, 547 U.S. at 537, 126 S.Ct. 2064.

For the claim to be “compelling,” the petitioner must demonstrate that “more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a reasonable doubt — or to remove the double negative, that more likely than not any reasonable juror would have reasonable doubt.” House, 547 U.S. at 538, 126 S.Ct. 2064. This standard, it must be said, is somewhat cryptic. See Schlup, 513 U.S. at 339, 115 S.Ct. 851 (Rehnquist, C.J., dissenting) (deriding the standard as a “classic mixing of apples and oranges”).

The Court has offered some clarity, however, by contrasting the gateway standard from others more familiar. Thus, “[t]he petitioner [raising a gateway innocence claim] ... is required to make a stronger showing than that needed to establish prejudice. At the same time, the showing of ‘more likely than not’ imposes a lower burden of proof than the ‘clear and convincing’ standard required under Sawyer [v. Whitley, 505 U.S. 333, 336, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), which applies to claims of actual innocence of the death penalty].” Id. at 327, 115 S.Ct. 851 (internal citations omitted).

The Court has also stressed that the gateway standard is “by no means equivalent to the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that governs review of claims of insufficient evidence.” Schlup, 513 U.S. at 330, 115 S.Ct. 851 (parallel citations omitted). Under Jackson, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original).

Whereas, “[ujnder Jackson, the use of the word ‘could’ focuses the inquiry on the power of the trier of fact to reach its conclusion,” the use of the word “would” in the Schlup standard “focuses the inquiry on the likely behavior of the trier of fact.” Schlup, 513 U.S. at 330, 115 S.Ct. 851 (emphases added). Moreover, the Schlup inquiry differs from Jackson in the mix of evidence that the reviewing court may consider, as well as its vantage point.

A court reviewing the sufficiency of the evidence supporting a conviction is limited to considering the evidence actually presented at trial, and must view that evidence in the light most favorable to the prosecution. A court reviewing a gateway claim of actual innocence is not so constrained: Because a Schlup claim involves evidence the trial jury did not have before it, the inquiry requires the federal court to assess how reasonable jurors would react to the overall, newly supplemented record.

If new evidence so requires, this may include consideration of the credibility of the witnesses to be presented at trial. House, 547 U.S. at 538-39, 126 S.Ct. 2064 (internal citations and quotation marks omitted). The standard therefore requires reviewing courts to “consider all the evidence, old and new, incriminating and exculpatory,” and, viewing the record as a whole, to “make a probabilistic determination about what reasonable, properly instructed jurors would do.” Id. at 538, 126 S.Ct. 2064 (internal citations omitted).

Although the Schlup standard is “demanding and permits review only in the extraordinary case,” the Court has emphasized that the “standard does not require absolute certainty about the petitioner’s guilt or innocence.” Id. Indeed, as demonstrated in House, it may be enough for the petitioner to introduce credible new evidence that thoroughly undermines the evidence supporting the jury’s verdict. Id. at 553-54, 126 S.Ct. 2064. In House, the petitioner challenged his conviction for the murder of Carolyn Muncey, an acquaintance who lived near him in rural Tennessee.

As in this case, the evidence against House was largely circumstantial, but not insignificant. The victim’s daughter testified that, on the night of the murder, her mother was lured out of the house by a man with a “deep voice,” like House’s. Id. at 523-24, 126 S.Ct. 2064. A witness who participated in the search for Muncey’s body stated that he saw House emerge from an embankment near where Muncey’s body was found, wiping his hands on a rag. Id. at 524-25, 126 S.Ct. 2064.

Thereafter, when House was questioned by police, he told them that he had been with his girlfriend throughout the evening of the murder, but his girlfriend later revealed that House had in fact left her trailer to go for a walk at about 10:30 or 10:45 in the evening — during the period of time that the county medical examiner had determined Muncey likely died. Id. at 526-27, 126 S.Ct. 2064. According to the girlfriend, when House returned to the trailer, he was “hot and panting, missing his shirt and his shoes.” Id.

When police interviewed House, they noticed that he had scratches on his arms and legs, as well as a bruise on his right ring finger. Finally, testing by the Federal Bureau of Investigation revealed human blood of Muncey’s type on the pants House had been wearing the night of the murder and semen on Muneey’s nightgown that was consistent with House’s blood type. Id. at 528-29, 126 S.Ct. 2064.

Despite this and other evidence suggesting that House was in fact guilty, the Supreme Court held that he had succeeded in making a compelling showing of actual innocence because he had produced expert testimony that “called into question” the “central forensic proof connecting [him] to the crime,” namely, the blood and semen analyses, id. at 554, 126 S.Ct. 2064, and had produced evidence in the form of new witness testimony that Muncey’s husband had confessed to killing her. Id. at 548-53, 126 S.Ct. 2064.

Applying the Schlup standard — and guided by Supreme Court’s application of that standard in House — we conclude that it is more likely than not, in light of the credible new evidence Rivas has presented in support of his habeas petition, that any reasonable juror would have had a reasonable doubt about his guilt. 2. Rivas’s Claim of Actual Innocence “Because the determination as to whether no reasonable juror would find a petitioner guilty beyond a reasonable doubt is a mixed question of law and fact, we review [a] district court’s ultimate finding [relating to] actual innocence de novo.” Doe, 391 F.3d at 163.

At bottom, Rivas’s claim of actual innocence is simple, but compelling: Hill died on Saturday, March 27, 1987, at a time when Rivas had an unchallenged alibi. What makes the claim “credible,” as Schlup defines that term, is that it is based on new evidence — that is, evidence not heard b

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