                                                            [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 07-11474                    April 3, 2008
                           Non-Argument Calendar             THOMAS K. KAHN
                         ________________________                CLERK


                   D. C. Docket No. 04-02899-CV-LSC-NE

ROBERT EARL RAY, JR.,

                                                            Petitioner-Appellant,

                                    versus

BILLY MITCHEM, Warden,
ATTORNEY GENERAL OF ALABAMA,

                                                         Respondents-Appellees.

                         ________________________

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

                                (April 3, 2008)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Robert Earl Ray, Jr., a pro se Alabama prisoner previously convicted of first

degree robbery and murder whose parole was revoked after he was arrested for
domestic violence, appeals the district court’s denial of his federal habeas petition,

filed pursuant to 28 U.S.C. § 2254, in which he alleged, among other things, that

he was actually innocent of violating his parole. The district court found that the

petition was procedurally barred because it was filed beyond the statutory

limitations period, and, as to Ray’s actual-innocence claim, he did not make the

requisite showing of actual innocence to overcome the procedural bar.                         After

careful review, we affirm the denial of habeas relief.1

       We granted a certificate of appealability (“COA”) on the following issues:

               (1) Whether        the district court properly determined that
                   appellant’s    28 U.S.C. § 2254 petition challenging his parole
                   revocation      was time-barred, where it is unclear which
                   subsection      of § 2244(d)(1) applies to parole-revocation
                   hearings;

               (2) If so, whether the district court erred in concluding that
                  appellant failed to make the requisite showing of actual
                  innocence in an attempt to overcome the time-bar,
                  Wyzykowski v. Dep’t of Corr., 266 F.3d 1213, 1219 (11th
                  Cir. 2000);

               (3) If the answer to question two is yes, whether the district
                  court abused its discretion by failing to conduct an
                  evidentiary hearing on appellant’s actual innocence claim.




       1
            We DENY AS MOOT Ray’s “Motion for Failure to Comply and per se Objections to
Appellee’s Request for an Extension of Time and Motion for Declaratory Judgment.” The Appellees
have not filed a brief in the instant matter. Moreover, the Appellees have not sought or been granted
an extension of time in which to do so in this Court.

                                             2
      On appeal, Ray first challenges the district court’s interpretation of the one-

year limitations period established in the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). Ray says that his petition was filed within the statutory

time frame because although his parole was revoked October 23, 2001, the

domestic abuse charge underlying the revocation of his parole was not dismissed

until November 16, 2001.       Thus, according to Ray’s calculus, his state court

petition, filed on November 12, 2002, was timely.

      We review the district court’s interpretation and application of a statute of

limitations de novo. Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000).

The AEDPA establishes a one-year statute of limitations for applications for writs

of habeas corpus filed by prisoners “in custody pursuant to the judgment of a State

court.” 28 U.S.C. § 2244(d)(1). The period of limitation begins to run from the

latest of: “(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; . . . (D) the date

on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” Id.

      The limitations period will be tolled for the “time during which a properly

filed application for State post-conviction or other collateral review with respect to

the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). However,



                                          3
we have held that “a state court petition . . . that is filed following the expiration of

the federal limitations period cannot toll that period because there is no period

remaining to be tolled.” Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001)

(quotation omitted).

       Alabama does not have a direct appeal procedure through which the Parole

Board’s decision to revoke parole can be challenged.          See Gholston v. Bd. of

Pardons & Paroles, 627 So.2d 945, 947 (Ala. Civ. App. 1993). Instead, a prisoner

must challenge his parole revocation by filing a petition for writ of certiorari in the

state trial court. Id.

       Recently, in Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008), we

held that subsection (D), not subsection (A), of 28 U.S.C. § 2244(d)(1), is the

applicable subsection for cases of habeas petitioners who are in custody pursuant

to a parole revocation. In that case, we held that where Georgia did not have a

procedure to directly challenge the revocation of parole, the factual predicate for

Brown’s habeas claim existed at the time his parole was revoked, and, therefore,

the AEDPA’s one-year limitations period began running from that time. Id. at

1307-08. Additionally, Brown’s letters to the Board of Paroles seeking the

reconsideration of its decision did not toll the running of the statute, as the

revocation was the final action by the Board. Id. at 1308. We also noted that “a



                                           4
properly filed state mandamus petition would probably toll the limitations period

pursuant to 28 U.S.C. § 2244(d)(2).” Id. at 1308 n.2. Finally, we have held that

we “may affirm the district court on any ground that finds support in the record.”

Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004) (citation omitted).

      Here, although it erred by relying on subsection (A) of 28 U.S.C.

§ 2244(d)(1), rather than subsection (D), the district court properly concluded that

Ray’s petition was untimely. Ray’s parole was revoked on October 23, 2001, and,

since Alabama, like Georgia, does not have a direct appeal procedure through

which Ray could challenge the decision of the Parole Board, the decision became

final on that date, but Ray did not file his federal habeas petition until October 1,

2004. Even assuming that Ray’s state petition for writ of certiorari would have

tolled the limitations period if timely filed, it was not filed until November 12,

2002, and there was no time left to be tolled on that date.

      We likewise are unpersuaded by Ray’s claim that the district court erred in

deciding his actual-innocence claim. Ray says that the new evidence he submitted

-- the evidence included an affidavit from a man claiming responsibility for the

domestic abuse incident, an affidavit from a woman claiming the victim told her

that she had “made up” the fact that Ray had beaten her, and a letter purportedly




                                           5
from the victim -- satisfied his burden to show actual innocence, meaning that no

reasonable factfinder could have found him guilty of the domestic abuse crime.2

       We review a district court’s denial of a habeas petition under 28 U.S.C.

§ 2254 de novo. Maharaj v. Sec’y for Dep’t of Corr., 304 F.3d 1345, 1348 (11th

Cir. 2002). To avoid a procedural bar, a habeas petitioner asserting actual

innocence must show that his conviction “probably resulted” from “a constitutional

violation.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The petitioner can meet this

standard by presenting new evidence that shows “that it is more likely than not that

no reasonable juror would have found petitioner guilty beyond a reasonable

doubt.”    Id. at 327.      The “reasonable doubt” standard should be based on the

district court’s “probabilistic determination about what reasonable, properly

instructed jurors would do.” Id. at 329.

       An actual innocence claim must be supported “with new reliable evidence -

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

critical physical evidence - that was not presented at trial.” Id. at 324. To meet the

“threshold showing of innocence” in order to justify “a review of the merits of the

       2
         We have not decided whether a showing of actual innocence is an exception to the one-
year statute of limitations in AEDPA. Wyzykowski, 226 F.3d at 1219. However, we have held that
before addressing the difficult constitutional question of whether the limitations period constitutes
a violation of the Suspension Clause if the petitioner can show actual innocence, we should first
consider whether the petitioner can show actual innocence. Id. at 1218. Thus, we now proceed to
the actual innocence inquiry.


                                                 6
constitutional claims,” the new evidence must raise “sufficient doubt about [the

petitioner’s] guilt to undermine confidence in the result of the trial.” Id. at 317.

“‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.”

Bousley v. United States, 523 U.S. 614, 623 (1998).

      In Arthur v. Allen, 452 F.3d 1234, 1244-45 (11th Cir.), modified, 459 F.3d

1310 (2006), cert. denied, 127 S. Ct. 2033 (2007), the petitioner submitted the

affidavits of two witnesses who stated that the petitioner was in their store at the

time the murder he was convicted of was being committed.            The state later

submitted affidavits by the same witnesses who later said that they could not

remember exactly what day the petitioner had visited the store. Id. at 1245. We

held that the there was insufficient evidence of actual innocence because: (1) the

doubt created by the affidavits does not “undermine[] confidence in the result of

[petitioner’s] trial”; (2) 11th-hour exculpatory affidavits are suspect, especially

when “certain important details of the affidavits were subsequently disavowed by

the affiants themselves”; and (3) the affiants’ “revised testimony would [have], at

best, attack[ed] the credibility of [another witness], whose own statements were

corroborated.” Id. at 1246; see also Sibley v. Culliver, 377 F.3d 1196, 1206-07

(11th Cir. 2004) (holding that there was insufficient evidence of actual innocence




                                         7
where the petitioner presented only “generalized evidence concerning the victim’s

character,” and failed to “present[] any actual evidence,” such as affidavits).

       Pursuant to Schlup and our decisions in Arthur and Sibley, we readily

conclude that Ray did not present sufficient new evidence to raise the requisite

doubt about his guilt and undermine confidence in the result. The new evidence

Ray submitted was of questionable worth, consisting of 11th-hour exculpatory

affidavits that proffered two different theories of what really happened to the

victim and a letter purportedly from the victim in which the author does not

specifically mention the allegations of domestic abuse. On this record, Ray failed

to meet his burden to show actual innocence, sufficient to overcome the AEDPA’s

limitations period.3

       AFFIRMED.




       3
           Because the district court did not err in concluding that Ray failed to make the requisite
showing of actual innocence in an attempt to overcome the time-bar, we do not need to address the
last issue designated in the COA concerning whether the district court abused its discretion by
failing to conduct an evidentiary hearing on appellant’s actual innocence claim.

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