226 F.3d 1213 (11th Cir. 2000)
Micheal WYZYKOWSKI, Petitioner-Appellant,v.DEPARTMENT OF CORRECTIONS, Harry K. Singletary, Attorney General, Robert Butterworth, Respondents-Appellees.
No. 98-4971.
United States Court of Appeals,Eleventh Circuit.
September 11, 2000.September 21, 2000.

Appeal from the United States District Court for the Southern District of  Florida.(No. 97-08585-CV-WDF), Wilkie D. Ferguson, Jr., Judge.
Before ANDERSON, Chief Judge, and DUBINA and SMITH*, Circuit Judges.
ANDERSON, Chief Judge:


1
Micheal Wyzykowski appeals the district court's denial of his petition for a  writ of habeas corpus pursuant to 28 U.S.C.  2254. For the reasons stated  below, we vacate and remand.

I. BACKGROUND

2
In 1992 Wyzykowski was charged with the first degree murder of Fred Butterworth  and the attempted burglary of shoes from the victim's dwelling. After pleading  guilty to second degree murder in 15th Judicial Circuit Court, Palm Beach  County, Florida, pursuant to a negotiated plea agreement, Wyzykowski was  convicted and sentenced to twenty-three years imprisonment. Wyzykowski did not  file a direct appeal or pursue state collateral relief.


3
In July 1997, Wyzykowski filed a pro se petition for a writ of habeas corpus  pursuant to 28 U.S.C.  2254. He claimed that he was denied his Sixth Amendment  right to effective assistance of counsel. In particular, he claimed that his  counsel failed to investigate the case properly before advising him to plead  guilty to second degree murder. In addition, Wyzykowski claimed that he was  actually innocent of second degree murder because the victim actually started  the fight with him; of first degree premeditated murder because he was too  intoxicated to form the requisite intent and again because the victim started  the fight; of first degree felony-murder because he was not guilty of attempted  burglary; and of attempted burglary because the shoes he allegedly attempted to  burgle were actually his own shoes, he lacked the capacity due to intoxication  to form the requisite specific intent for burglary, and there is no evidence  that he entered the dwelling to commit a crime. The new evidence for these  claims is Wyzykowski's detailed statements regarding the events that led to  Butterworth's death.


4
Wyzykowski explained that he pleaded guilty at the tearful urging of his  appointed defense counsel, who indicated, on the eve of trial, that she was not  prepared to try the case and that she would withdraw if he did not change his  plea. Wyzykowski also contended that his counsel informed him that it made no  difference that Buttersworth attempted to take his shoes, that "the indictment  nullified all defenses," and that if he proceeded to trial he would surely be  found guilty and, even if the State did not seek the death penalty, the judge  would still sentence him to death. He claimed that had he had effective  assistance of counsel he would have been able to prove that he was innocent of  the crimes with which he was charged and the crime to which he pleaded guilty.


5
On August 25, 1997, the magistrate judge issued the usual show cause order,  ordering a response to Wyzykowski's petition. The State responded, asserting  that the claim was time-barred. However, the State did not file the record of  the state court proceedings. See Rule 5, Rules Governing  2254 Cases. On April  21, 1998, a magistrate judge issued a report, noting in passing that petitioner  failed to exhaust his claims in state court, but recommending that the petition  be dismissed for failure to comply with the one-year limitation period for  habeas corpus petitions enacted by the Antiterrorism and Effective Death Penalty  Act of 1996 ("AEDPA"), Pub.L. No. 104-132, codified as amended at 28 U.S.C.   2244(d). On May 28, 1998, the district court dismissed the petition as  time-barred.


6
On July 6, 1998, the district court granted a certificate of appealability on  the following issue:


7
Whether the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No.  104- 132, 110 Stat. 1214, codified as amended at 28 U.S.C.  2244(d), as  applied to Petitioner is an unconstitutional suspension of the Writ of Habeas  Corpus in violation of the United States Constitution Article I, Section 9,  clause 2.


8
Accordingly, Wyzykowski appeals on this issue.

II. DISCUSSION

9
We review the district court's dismissal of Wyzykowski's petition de novo  because this issue is solely one of law. See Sandvik v.. United States, 177 F.3d  1269, 1271 (11th Cir.1999) (per curiam ).


10
Wyzykowski concedes that his federal habeas corpus petition was not filed within  the one-year limitation period established by AEDPA, but argues that this  limitation period constitutes an unconstitutional suspension of habeas relief or  that an "actual innocence" exception to the one-year limitation period must be  read into the statute to avoid rendering the habeas remedy "inadequate and  ineffective" and violating the Suspension Clause of the Constitution.


11
The Suspension Clause provides: "The Privilege of the Writ of Habeas Corpus  shall not be suspended, unless when in Cases of Rebellion or Invasion the public  Safety may require it." U.S. Const. art. I,  9, cl. 2. Despite this  constitutional restriction, the "judgments about the proper scope of the writ  are 'normally for Congress to make.' " Felker v. Turpin, 518 U.S. 651, 664, 116  S.Ct. 2333, 2340, 135 L.Ed.2d 827 (1996) (quoting Lonchar v. Thomas, 517 U.S.  314, 323, 116 S.Ct. 1293, 1298, 134 L.Ed.2d 440 (1996)). In Swain v. Pressley,  430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), the Supreme Court held that  "the substitution of a collateral remedy which is neither inadequate nor  ineffective to test the legality of a person's detention does not constitute a  suspension of the writ of habeas corpus." Id. at 381, 116 S.Ct. at 1230. We thus  consider whether  2244(d)'s limitation period renders the remedy inadequate or  ineffective to test the legality of a person's detention.


12
The "substitution" at issue here is of collateral relief with a one-year  limitation period for collateral relief without a limitation period. In  particular,  2244(d)(1) now provides:


13
A 1-year period of limitation shall apply to any application for writ of  habeas corpus by person in custody pursuant to the judgment of a State court.  The limitation period shall run from the latest of -


14
(A) the date on which the judgment became final by the conclusion of direct  review or the expiration of the time for seeking such review;


15
(B) the date on which the impediment of filing an application created by State  action in violation of the Constitution or laws of the United States is  removed, if the applicant was prevented from filing by such State action;


16
(C) the date on which the constitutional right asserted was initially  recognized by the Supreme Court, if the right has been newly recognized by the  Supreme Court and made retroactively applicable to cases on collateral review;  or


17
(D) the date on which the factual predicate of the claim or claims presented  could have been discovered through the exercise of due diligence.


18
28 U.S.C.  2244(d)(1). Prior to the addition of this limitation period, the  only time limitation was provided by Rule 9(a), Rules Governing  2254 Cases,  which permits dismissing a  2254 habeas petition "if it appears that the state  of which the respondent is an officer has been prejudiced in its ability to  respond to the petition by delay in its filing unless the petitioner shows that  it is based on grounds of which he could not have had knowledge by the exercise  of reasonable diligence before the circumstances prejudicial to the state  occurred."1 Section 2244(d)(1), in contrast, provides for a one-year limitation  period and does not require a showing that the state was prejudiced. However, it  does resemble Rule 9 by not beginning the one-year period until the "factual  predicate of the claim or claims presented could have been discovered through  the exercise of due diligence." 28 U.S.C.  2244(d)(1)(D). In addition, in the  event of illegal state action preventing the petitioner from filing, the  limitation period does not begin until after the state impediment is removed.  See 28 U.S.C.  2244(d)(1)(B). Also in the event that the Supreme Court newly  recognizes a constitutional right and makes it retroactively applicable to cases  on collateral review, the limitation provision permits filing a petition  asserting such a right for a year after the initial recognition of the right.  See 28 U.S.C.  2244(d)(1)(C). Moreover, "[section 2244] permits equitable  tolling 'when a movant untimely files because of extraordinary circumstances  that are both beyond his control and unavoidable with diligence.' " Steed v.  Head, 219 F.3d 1298, 1300 (11th Cir.2000)(quoting Sandvik v. United States, 177  F.3d 1269, 1271 (11th Cir.1999) (per curiam )).2


19
Every court which has addressed the issue-i.e., whether, as a general matter,   2244(d) constitutes an unconstitutional suspension of the writ-has concluded  that it does not.3 The Supreme Court has not directly addressed the issue in the  context of a first federal habeas corpus petition. However, in Felker v. Turpin,  518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996), the Court held that  AEDPA's restrictions on successive petitions "do not amount to a 'suspension' of  the writ." Id. at 664, 116 S.Ct. at 2340. In so holding, the Court noted that  restrictions on the scope of the writ, like the doctrine of abuse of the writ,  are " 'a complex and evolving body of equitable principles informed and  controlled by historical usage, statutory developments, and judicial decisions.'  " Id. (quoting McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454, 1467, 113  L.Ed.2d 517 (1991)). The Court held that "judgments about the proper scope of  the writ are 'normally for Congress to make.' "' Id. (quoting Lonchar, 517 U.S.  at 323, 116 S.Ct. at 1298).


20
In light of the above mentioned exceptions to the one-year limitations period,  and in light of the foregoing precedent, we readily conclude that, as a general  matter, the  2244(d) limitation period does not render the collateral relief  ineffective or inadequate to test the legality of detention, and therefore is  not an unconstitutional suspension of the writ of habeas corpus.


21
Having concluded that  2244(d) does not per se constitute an unconstitutional  suspension, we turn to Wyzykowski's argument that the limitation period  unconstitutionally suspends habeas relief where the petitioner shows actual  innocence and, therefore, an actual innocence exception must be read into the  provision. In other words, absent an exception for actual innocence, he  contends,  2244(d) works an unconstitutional suspension of the writ of habeas  corpus when applied to him. Wyzykowski claims that he is actually innocent of  second degree murder, the crime to which he pleaded guilty, and of first degree  murder and burglary, the crimes initially charged but dropped pursuant to the  plea agreement. He contends his new evidence, in particular his own testimony,  establishes that he was actually innocent of these crimes.


22
Wyzykowski's argument raises a troubling and difficult constitutional question.  Where the petitioner can show actual innocence and  2244(d)'s limitation period  has expired, does the bar to filing a first federal petition constitute an  unconstitutional suspension of the writ of habeas corpus? The question raises  concerns because of the inherent injustice that results from the conviction of  an innocent person,4 and the technological advances that can provide compelling  evidence of a person's innocence.5 The courts faced with Suspension Clause  challenges to  2244(d) have been able to avoid deciding the difficult  constitutional issue of whether the clause requires an exception to  2244(d)  for actual innocence because the petitioners were unable to make a showing of  actual innocence. See Lucidore v. New York State Division of Parole, 209 F.3d  107 (2d Cir.2000).6


23
In the instant case, neither the magistrate judge nor the district court  addressed Wyzykowski's claims of actual innocence. We agree with the Second  Circuit that the factual issue of whether the petitioner can make a showing of  actual innocence should be first addressed, before addressing the constitutional  issue of whether the Suspension Clause requires such an exception for actual  innocence. " 'If there is one doctrine more deeply rooted than any other in the  process of constitutional adjudication, it is that we ought not to pass on  questions of constitutionality ... unless such adjudication is unavoidable.' "  New York City Transit. Auth. v. Beazer, 440 U.S. 568, 582, 99 S.Ct. 1355, 1364,  59 L.Ed.2d 587 (1979) (quoting Spector Motor Service v. McLaughlin, 323 U.S.  101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (1944)). For example, "  'constitutional issues affecting legislation will not be determined ... at the  instance of one who fails to show that he is injured by the statute's  operation." ' Id. at 583 n. 22, 99 S.Ct. at 1364 n. 22 (quoting Rescue Army v.  Municipal Court, 331 U.S. 549, 568- 69, 67 S.Ct. 1409, 1419-20, 91 L.Ed. 1666  (1947)); see Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347, 56 S.Ct.  466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).


24
For several reasons, we decline to address the factual issue whether Wyzykowski  can make a showing of actual innocence, preferring that the district court do so  in the first instance. First, as noted above, the State did not file in the  district court the record of the state court proceedings, and thus there is a  complete absence in the record on appeal concerning whether Wyzykowski could  make a showing of actual innocence. Although it is represented to us that  Wyzykowski entered a guilty plea, we do not have the benefit of any record  evidence with respect thereto; for example, we do not have access to the plea  colloquy.7 Second, in any event, such factual determinations are best made in  the first instance by the district court. Indeed, if on remand, the district  court determines that Wyzykowski has made a showing of actual innocence, we  would prefer to have the benefit of the district court's legal analysis of the  difficult Suspension Clause issue before tackling same ourselves. Accordingly,  we remand to the district court.8

III. CONCLUSION

25
For the foregoing reasons, we vacate the dismissal and remand to the district  court for further proceedings not inconsistent with this opinion.


26
VACATED and REMANDED.



NOTES:


*
 Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting  by designation.


1
 We note that in Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440  (1996), the Supreme Court vacated a decision of this Court which dismissed a  first habeas petition for "special ad hoc 'equitable' reasons not encompassed  within the framework of Rule 9," in particular, that petitioner had waited  almost six years, and until the last minute, to file a federal habeas petition.  Id. at 322, 116 S.Ct. at 1298. The Supreme Court held that such a petition is  governed by the Habeas Corpus Rules, not by generalized equitable  considerations. See id. at 332, 116 S.Ct. at 1303. Thus, it is clear that Rule  9, rather than any equitable doctrine, provided the only form of "time  limitation" for first federal habeas petitions prior to the enactment of AEDPA.


2
 This is consistent with what our sister circuits have held. See Smith v.  McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (stating that the limitation period for  filing habeas petitions may be equitable tolled in extraordinary circumstances);  Miller v. New Jersey Dep't of Corrections, 145 F.3d 616, 618 (3d Cir.1998)  (holding that  2244(d)'s limitation period can be equitably tolled in  extraordinary circumstances); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th  Cir.2000) (concluding that  2244(d) is subject to equitable tolling, at least  in principle); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir.1998) (holding that   2244(d)'s limitation period can be equitably tolled in "rare and exceptional  circumstances"), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474, 143 L.Ed.2d 558  (1999); Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir.1998)  (en banc ) ("[Section] 2244(d)(1) can be tolled if extraordinary circumstances  beyond a prisoner's control make it impossible to file a petition on time.")  (internal quotation marks omitted), cert. denied, 526 U.S. 1060, 119 S.Ct. 1377,  143 L.Ed.2d 535 (1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) ("It must  be remembered that  2244(d) is not jurisdictional and as a limitation may be  subject to equitable tolling."), cert. denied, 525 U.S. 891, 119 S.Ct. 210, 142  L.Ed.2d 173 (1998).


3
 See Lucidore v. New York State Division of Parole, 209 F.3d 107, 113 (2d  Cir.2000) (rejecting facial challenge to AEDPA's statute of limitation because  it leaves petitioners with some reasonable opportunity to have their claims  heard on the merits and, therefore, "the limitations period does not render the  habeas remedy 'inadequate or ineffective to test the legality of detention,' and  therefore does not per se constitute an unconstitutional suspension of the  writ."), petition for cert. filed, 69 U.S.L.W. 3086 (Jul. 5, 2000); Miller v.  Marr, 141 F.3d 976, 978 (10th Cir.) (holding that, where petitioner does not  contend he is actually innocent, the limitation period does not render the  habeas remedy inadequate and ineffective), cert. denied, 525 U.S. 891, 119 S.Ct.  210, 142 L.Ed.2d 173 (1998); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000)  (per curiam ) ("The 1-year limitations period of the AEDPA does not violate the  Suspension Clause unless it renders the habeas remedy inadequate or ineffective  to test the legality of detention. Molo [who failed to show factual innocence]  has not shown how the limitations period made the habeas remedy inadequate or  ineffective for him, since nothing prevented him from filing a petition before  the limitations period expired.") (internal quotation marks and footnote  omitted); Turner v. Johnson, 177 F.3d 390, 392-393 (5th Cir.) (per curiam )  ("Turner cannot show that the limitations period has rendered his habeas remedy  inadequate or ineffective. We therefore reject Turner's claim that  2244 is  unconstitutional."), cert. denied, --- U.S. ----, 120 S.Ct. 504, 145 L.Ed.2d 389  (1999); Davis v. Bumgarner, 201 F.3d 435 (Table) (4th Cir.1999) (per curiam )  (unpublished disposition) ("[T]he limitations period for  2254 petitions in 28  U.S.C.A.  2244(d) (West Supp.1999) does not violate the Suspension Clause of  the Constitution."); Hampton v. Madding, --- F.3d ---- (Table), No. 99-17168  (9th Cir. June 21, 2000) (mem.) (unpublished disposition) (rejecting argument  that  2244(d) violates the Suspension Clause where petitioner has not made a  showing of actual innocence); Thomas v. Straub, 10 F.Supp.2d 834 (E.D.Mich.1998)  (rejecting Suspension Clause challenge to limitation period where petitioner  does not fit within the actual innocence exception, if such an exception  exists); cf. Weaver v. United States, 195 F.3d 123, 123 (2d Cir.1999) ("We hold  that the application of the limitations period in 28 U.S.C.  2255 to dismiss a  first motion for relief under  2255 does not per se violate the Suspension  Clause of the federal Constitution"), cert. denied, --- U.S. ----, 120 S.Ct.  1733, 146 L.Ed.2d 653 (2000).


4
 See Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 866, 130 L.Ed.2d 808  (1995) ("Indeed, concern about the injustice that results from the conviction of  an innocent person has long been at the core of our criminal justice system.").


5
 See "Confronting the New Challenges of Scientific Evidence: DNA Evidence and the  Criminal Defense," 108 Harv.L.Rev. 1557, 1571-82 (1995) (discussing use of DNA  evidence in the post-conviction context); Cynthia Bryant, "When One Man's DNA Is  Another Man's Exonerating Evidence," 33 Colum. J.L. & Soc. Probs. 113, 117-34  (2000) (discussing DNA evidence and its use in postconviction claims of actual  innocence, and noting that "[p]ostconviction DNA testing has resulted in the  release of sixty-five inmates from prison"); Jim Dwyer et al., Actual Innocence:  Five Days to Execution and Other Dispatches from the Wrongly Convicted (2000)  (detailing ten cases of convicted defendants ultimately released due to  discovery of evidence of their actual innocence).


6
 See, e.g., Lucidore, 209 F.3d at 113 (holding that because petitioner failed to  demonstrate actual innocence, the question of whether the Constitution requires  an "actual innocence" exception to AEDPA's statute of limitations need not be  reached); see also Miller, 141 F.3d at 978 (holding that, where petitioner does  not contend he is actually innocent, the limitation period does not render the  habeas remedy inadequate and ineffective, but noting that there may be  circumstances-for example a constitutional violation has resulted in the  conviction of one who is actually innocent-where the limitation period "at least  raises serious constitutional questions and possibly renders the habeas remedy  inadequate and ineffective"); Molo, 207 F.3d at 775 ("Without deciding whether  proof of factual innocence would toll the limitations period, we find that Molo  does not show that he was factually innocent."); Thomas, 10 F.Supp.2d at 834  (E.D.Mich.1998) (rejecting Suspension Clause challenge to limitation period  where petitioner does not fit within the actual innocence exception, if such an  exception exists); Rodriguez v. Artuz, 990 F.Supp. 275, 283 (S.D.N.Y.) ("[A]t  least where no claim of actual or legal innocence has been raised, as long as  the procedural limits on habeas leave petitioners with some reasonable  opportunity to have their claims heard on the merits, the limits do not render  habeas inadequate or ineffective to test the legality of detention and,  therefore, do not constitute a suspension of the writ in violation of Article I  of the United States Constitution."), aff'd, 161 F.3d 763 (2d Cir.1998) (per  curiam ) (affirming "for substantially the reasons stated by the district  court"); accord Rashid v. Khulmann, 991 F.Supp. 254, 260 n. 3 (S.D.N.Y.1998).


7
 Accordingly, we make no ruling on issues relating to the effect of the guilty  plea. See Bousley v. United States, 523 U.S. 614, 623-24, 118 S.Ct. 1604,  1611-12, 140 L.Ed.2d 828 (1998).


8
 We note that Wyzykowski did not file a direct appeal or any collateral challenge  in state court. In the district court, the State raised the issue of  Wyzykowski's failure to exhaust his claims. However, the State asserted that it  would be futile for Wyzykowski to present his claims in state court because of  the two-year statute of limitations in Fla.R.Crim. P. 3.850(b). For the first  time at oral argument before this panel, the State suggested that there may be  an exception to the two-year statute of limitations in the Rule 3.850(b) in the  case of actual innocence. The State suggested that a dismissal without prejudice  for lack of exhaustion might be appropriate, whereby the state court rather than  the federal court would address the factual issue of actual innocence in the  first instance. Again, we decline to address issues relating to exhaustion,  preferring that they be addressed in the first instance by the district court if  appropriate.


DUBINA, Circuit Judge, concurring specially:

27
I concur in Chief Judge Anderson's well-reasoned opinion for the court. I write  specially simply to point out that on remand, I doubt the petitioner will be  able to present sufficient evidence to demonstrate "actual innocence." Based on  my experiences as a former trial judge, I find petitioner's conclusory  allegations of "actual innocence" to be totally inconsistent with what occurs at  a guilty plea. Moreover, it is troubling to me that petitioner waited over five  years after his conviction to file his federal habeas petition. This delay is  inconsistent with a claim of actual innocence.


28
Nevertheless, I agree with Chief Judge Anderson that this record is not  developed sufficiently for us to make these factual findings in the first  instance. That is a function of the district court

