                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            JULY 2, 2009
                             No. 08-16041                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                  D. C. Docket No. 08-00514-CV-MHS-1

CEDRIC CLARITT,



                                                          Petitioner-Appellant,

                                  versus

RALPH KEMP,
JAMES E. DONALD,


                                                       Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                               (July 2, 2009)

Before BIRCH, BLACK and HULL, Circuit Judges.

PER CURIAM:
      Cedric Claritt, a Georgia state prisoner proceeding pro se, appeals the denial

in part and dismissal in part of his habeas corpus petition, 28 U.S.C. § 2254. A

jury convicted Claritt of robbing a liquor store. At trial, evidence showed that two

men, one wearing a mask, robbed a liquor store and took vodka bottles. Police

found the mask and stolen vodka bottles in Claritt’s car. Claritt claimed ineffective

assistance of counsel in his § 2254 petition, but the district court found the claim

was procedurally defaulted and Claritt had not made a sufficient showing of actual

innocence to excuse the procedural default. The district court granted a certificate

of appealability (COA) as to whether Claritt has made a sufficient showing of

actual innocence to overcome the procedural default of his ineffective-assistance-

of-counsel claim.

      Claritt argues he made a sufficient showing of actual innocence because he

has affidavits indicating he stayed with friends the night of the robbery. He

contends the evidence that police seized from his truck did not connect him to the

crime because his fingerprints were not on the stolen vodka bottles nor was his

DNA on the mask that one of the robbers had used. Claritt asserts his expert

witness on reverse projection photogrammetry examined a photograph of the

robber and found a height difference between him and the robber. He also

contends he was employed before his arrest, he had never been in trouble before,



                                           2
and the district attorney improperly characterized him as a “drug-dealing thug.”

Further, Claritt argues that no reasonable jury could have convicted him if it had

known he had a tattoo on his arm because a photograph of the robber did not show

a tattoo. He claims the tattoo evidence establishes his innocence, and he has shown

a fundamental miscarriage of justice sufficient to overcome the procedural default

of his ineffective-assistance-of-counsel claim. Additionally, in his reply brief, he

asserts various problems with his state habeas corpus proceeding.

         In reviewing a denial of a petition for a writ of habeas corpus, we examine

the factual findings for clear error and legal conclusions de novo. Breedlove v.

Moore, 279 F.3d 952, 958 (11th Cir. 2002). “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998). We limit our review of an unsuccessful habeas petition to the issues

specified in the COA. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.

1998).

         A petitioner may receive consideration on the merits of a procedurally

defaulted claim if he can establish that a fundamental miscarriage of justice

otherwise would result. Schlup v. Delo, 115 S. Ct. 851, 860-61 (1995). In order to

establish a miscarriage of justice based on actual innocence, a petitioner must



                                            3
support allegations of constitutional error “with new reliable evidence—whether it

be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial,” which establishes that “it is

more likely than not that no reasonable juror would have found [the] petitioner

guilty beyond a reasonable doubt.” Id. at 865, 867. The exception is “exceedingly

narrow in scope” because it requires proof of actual innocence, not just legal

innocence. Johnson v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001). Newly

discovered evidence consisting of affidavits, especially affidavits containing

hearsay, are suspect. Herrera v. Collins, 113 S. Ct. 853, 869 (1993).

      In this case, the district court did not err in finding that Claritt failed to make

a showing of actual innocence sufficient to overcome the procedural default of his

ineffective-assistance-of-counsel claim. First, the affidavits Claritt presented were

suspect and insufficient to show he was actually innocent because (1) the hearsay

statement by Antoine Brockington that his cell mate had confessed to robbing a

store but an innocent man was convicted of the crime lacks critical details, and

(2) the affidavit from Teal Parker stating that Claritt was alone with him the night

of the robbery is inconsistent with Claritt’s statements to police that he was with a

group of people that night. See Herrera, 113 S. Ct. at 869. Second, the absence of

fingerprints and DNA evidence came out at trial, so this is not new evidence.



                                            4
Schlup, 115 S. Ct. at 865. Third, the allegedly improper characterization of Claritt

as a drug dealer and evidence that he was employed at the time of the robbery do

not reflect on his actual innocence because holding a job and engaging in criminal

activity are not mutually exclusive activities. See Johnson, 256 F.3d at 1171.

       Finally, the evidence based on the surveillance video of the robbery—that

the robber could have been a few inches taller than Claritt or that the robber may

not have had a tattoo on his forearm—is not new evidence. The video was

admitted at trial and played for the jury and several still images from the video

were submitted by the state. Claritt had access at his original trial to the videotape

from which all the robbery photographs came, so he has only provided new

interpretations of existing evidence. For these reasons, we find that Claritt has not

made a sufficient showing of actual innocence to overcome the procedural default

of his ineffective-assistance-of-counsel claim.1

       AFFIRMED.




       1
         We do not consider Claritt’s arguments about his state habeas proceeding because they
exceed the scope of the COA. See Murray, 145 at 1251.

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