                                                                   [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                       ------------------------------------------- U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                    No. 07-14374                          Aug. 21, 2008
                              Non-Argument Calendar                   THOMAS K. KAHN
                      --------------------------------------------          CLERK

                   D.C. Docket No. 06-00571-CV-BE-NE

CHARLES LAWHON JUSTO, JR.,

                                                       Petitioner-Appellant,

                                        versus

GRANTT CULLIVER,
ATTORNEY GENERAL OF THE STATE
OF ALABAMA,

                                                       Respondents-Appellees.


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                 Appeal from the United States District Court
                     for the Northern District of Alabama
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                                (August 21, 2008)

Before EDMONDSON, Chief Judge, MARCUS and WILSON, Circuit Judges.
PER CURIAM:

      Charles Lawhon Justo, Jr., an Alabama state prisoner proceeding pro se,

appeals the district court’s dismissal of his petition for writ of habeas corpus, 28

U.S.C. § 2254, as untimely. No reversible error has been shown; we affirm.

      Justo filed the instant petition challenging the constitutional validity of a

1988 state conviction for theft in the second degree no earlier than March 2006.

Justo pleaded guilty to the charge, was sentenced to two years in prison and filed

no appeal. Some sixteen years later, in September 2004, Justo sought post-

conviction relief under Alabama Rule of Criminal Procedure 32, claiming that the

conviction was void because he never was indicted. After the state filed a copy of

the indictment, Justo’s Rule 32 argument that the trial court had no jurisdiction to

enter judgment and sentence him was rejected by the state circuit court. Justo filed

a Motion to Alter, Amend, or Vacate Judgment in which he challenged the

authenticity of the indictment based on, among other things, the lack of a grand

jury foreman’s signature; he appealed the denial of his Rule 32 petition based on

the trial court’s failure to hold an evidentiary hearing and on issues about whether

an indictment had been returned against him. The Alabama Court of Criminal

Appeals determined the indictment against Justo was valid under state law: Justo’s

claims “either lacked merit or were precluded from review.” An application for

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rehearing was denied; the Alabama Supreme Court denied a petition for writ of

certiorari. Justo presently is serving a separate sentence of life without the

possibility of parole.*

       The district court concluded that Justo’s habeas petition was time-barred

under 28 U.S.C. § 2244(d)(1): Justo’s federal habeas petition was filed almost ten

years after enactment of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). See Moore v. Campbell, 344 F.3d 1313, 1319 (11th Cir. 2003)

(petitioner whose conviction became final before AEDPA enacted has one year

from after AEDPA’S effective date to file federal habeas petition). The state post-

conviction challenge was filed long after the AEDPA period expired; it could not

serve to toll section 2244(d)’s statute of limitations. The district court also

concluded that binding authority of this court rendered meritless Justo’s argument

that the absence of a foreperson’s signature on the Alabama indictment deprived

the state court of jurisdiction. See Franklin v. Hightower, 215 F.3d 1196 (11th Cir.

2000). Because the claimed indictment deficiency was not jurisdictional under



   *
     Justo was sentenced to a two-year term of imprisonment on the 1988 theft conviction. That
sentence was served fully long before he filed the instant habeas petition. We limit our review in
this appeal to the issue raised in the COA; because we conclude that the habeas petition was
dismissed properly, we do not reach the issue of whether Justo is “in custody” for purposes of
seeking habeas relief on the 1988 conviction if that conviction was used to enhance to a life sentence
the term imposed on a 1989 conviction for rape.

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Alabama law, it was subject to Alabama’s one-year limitation period and the one-

year period mandated by section 2244(d)(1).

      The district court granted a COA on this limited issue:

             Whether in 1988 the lack of a signature by the grand jury
             foreperson renders an Alabama state indictment so
             defective that the state court lacked jurisdiction to
             adjudicate a conviction, so that the petitioner today is
             actually innocent of the conviction for purposes of
             avoiding application of the time bar at 28 U.S.C. §
             2244(d).

      The gravamen of Justo’s actual innocence claim is that the asserted

jurisdictional error -- the absence of the grand jury foreperson’s signature on the

Alabama theft indictment -- rendered the indictment so defective that the state

court was without jurisdiction to adjudicate him guilty notwithstanding his guilty

plea. In the light of that claimed jurisdictional infirmity, Justo argues that

application of AEDPA’s time bar would amount to an unconstitutional violation of

the Suspension Clause of the Constitution, Article I § 9, cl. 2.

      We have never held that an “actual innocence” exception exists to

AEDPA’s one-year statute of limitations. But assuming arguendo that, in an

appropriate case, such an exception might apply, see Arthur v. Allen, 452 F.3d

1234, 1244, modified on reh’g, 459 F.3d1234 (11th Cir. 2006) (“where the § 2244

(d)(1) limitation period has expired and the petitioner is claiming actual

                                           4
innocence, we must first consider whether the petitioner can show actual

innocence before we address whether an exception to the limitation period is

required by the Suspension Clause”); Sibley v. Culliver, 377 F.3d 1196, 1205-06

(11th Cir. 2004) (because petitioner made insufficient showing of actual innocence,

court declined to determine whether application of AEDPA limitations period

would be unconstitutional under Suspension Clause when petitioner asserts claim

of actual innocence), this case is no appropriate case: Justo fails to make a

showing of actual innocence.

      Justo supports his actual innocence claim with no “new reliable evidence --

whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence -- that was not presented at trial.” Schlup v. Delo, 115

S.Ct. 851, 865 (1995). Instead, Justo rests his actual innocence claim exclusively

on the indictment deficiency. As we have noted, this defect did not affect the

court’s subject-matter jurisdiction, see Franklin, 215 F.3d at 1199, and raises no

reasonable doubt about Justo’s commission of the theft offense to which he

pleaded guilty. For purposes of the “actual innocence” exception to a procedural

bar, the petitioner must show “factual innocence, not mere legal insufficiency.”

Bousley v. United States, 118 S.Ct. 1604, 1611(1998).




                                          5
      Justo fails to show actual innocence to the offense to which he pleaded

guilty. No error has been shown in the dismissal of Justo’s habeas petition as

time-barred.

      AFFIRMED.




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