                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            October 20, 2005
                             FOR THE TENTH CIRCUIT
                                                                             Clerk of Court

    TRUMAN WYLEY PETTIT, JR.,

                 Petitioner-Appellant,
                                                            No. 04-7044
     v.                                               (D.C. No. CV-03-209-P)
                                                            (E.D. Okla.)
    WARDEN ADDISON,

                 Respondent-Appellee.


                              ORDER AND JUDGMENT            *




Before EBEL , HARTZ , and McCONNELL , Circuit Judges.



          After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

          Appellant Truman Pettit, Jr., appeals from a district court order that

dismissed his 28 U.S.C. § 2254 petition for a writ of habeas corpus as untimely.



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Because Pettit’s habeas petition was premised on actual innocence, without an

independent constitutional claim, we affirm without reaching the timeliness issue.

                                       B ACKGROUND

       In 1998, Petitt, who was represented by counsel, pleaded no contest to a

charge of first degree rape.   1
                                   He was convicted and sentenced to thirty-five years.

Pettit did not seek to withdraw his plea in order to appeal.

       In 2002, Petitt, with the assistance of counsel, sought post-conviction relief

in state court because the victim, Pettit’s daughter (hereinafter, “T.A.”), had

recanted. Pettit explained that he had pleaded no contest to spare T.A. “the

emotional burden of testifying at a jury trial.” R., Tab 9 at 18. In support of

Pettit’s post-conviction efforts, T.A. executed an affidavit stating: “the

Defendant . . . has never sexually abused me in any way”; “the acts complained of

in the Felony Information herein did not occur”; and “I was coerced into making

false allegations against the Defendant by my mother.”       Id. at Ex. 2. Following




1
        In Oklahoma, a plea of no contest admits the facts pleaded in the
information, but may not be used against the defendant in a related civil suit.     See
Morgan v. State , 744 P.2d 1280, 1281 (Okla. Crim. App. 1987) (stating that “a
plea of nolo contendere has the same legal effect as a guilty plea except that it
may not be used against the defendant as an admission in any civil suit based on
the act upon which the criminal prosecution is based”);      Lozoya v. State , 932 P.2d
22, 30 (Okla. Crim. App. 1996) (stating that a guilty plea “admits the facts
pleaded in the information”).

                                             -2-
an evidentiary hearing in which T.A. testified,    2
                                                       the court denied relief on the basis

that T.A.’s recantation was not credible and a detective’s report from 1998

indicated that Pettit admitted having had sexual contact with T.A. on prior

occasions.

          Pettit appealed to the Oklahoma Court of Criminal Appeals (OCCA). The

OCCA examined various aspects of T.A.’s testimony during the trial court’s

evidentiary hearing. First, the OCCA reviewed T.A.’s account of her mother’s

motivation for having Pettit falsely accused:

                 My mother believed that if I could say that[,] then we would be
          able to get out of the marriage because my father liked to drink at the
          time. And he—he had—had a bad attitude and my Mom was
          pregnant by another man. And she believed that she could get out of
          telling him that [information].

R., Tab 9, Ex. F at 3 (quotation marks omitted) (second alteration in original).

Next, the OCCA summarized when and how T.A. realized she had falsely accused

Pettit:

                   [T.A.] said it was in November of 2001 that she made her first
          disclosure that she “didn’t think it happened.” She first told her
          paternal grandmother, and her grandmother placed [T.A.] in
          counseling. After three or four months of being in counseling, [T.A.]
          told her counselors that she “didn’t think it happened.” Asked to
          explain[ ] what she meant by her repeated assertion that she “didn’t
          think it happened,” [T.A.] said, “I blocked most of it out,” but
          asserted that “I’ve talked about it enough to know—where I think I
          . . . finally have memory enough to know what happened. And I’ve


2
          A transcript of the hearing is not in the record before this court.

                                             -3-
      talked to my mother about it, alone with her. And—she—she keeps
      telling me not to tell anybody what happened.”

Id. (internal record citations omitted). The OCCA also included an exchange

between T.A. and the district attorney which highlighted T.A.’s uncertainty:

      Q      And couldn’t it be that you, since you’ve blocked this out, that
             you now have planted this back in your mind that it never
             really happened?
      A      No.
      Q      Why do you have doubts?
      A      Because I love my mother.
      Q      And you love your dad?
      A      Yes.
      Q      Doesn’t that give you doubts about both of them?
      A      Yes.
      Q      And one of them, either your mother or your dad, did
             something bad to you, didn’t they?
      A      Yes.
      Q      I mean either your father molested you or your mother told you
             to say he did?
      A      Yes.
      Q      And no matter what happened neither one of them, whoever
             was at fault, whether it was your dad or your mom, they
             shouldn’t have done that to you, should they?
      A      No.
      Q      But you are not entirely certain which it is, are you?
      A      I’m pretty sure it was my mom.
      Q      But you are not entirely certain, are you?
      A      No.

Id. at 4. In March 2003, the OCCA affirmed, simply concluding that the trial

court did not abuse its discretion in denying post-conviction relief.

      On April 16, 2003, Pettit petitioned the federal district court pro se for

habeas relief. The district court granted the warden’s motion to dismiss, ruling


                                         -4-
that Pettit’s habeas petition was untimely filed more than one year after the date

that his conviction became final on September 7, 1998. The district court

declined to run the limitations period from Pettit’s discovery of T.A.’s

recantation, reasoning that Pettit had not been diligent, as “the victim’s

truthfulness could have been questioned before [Pettit] entered his plea.” R., Tab

11 at 3.

       Pettit filed a motion for rehearing and a notice of intent to appeal. The

district court declined to issue a certificate of appealability (COA) and denied

rehearing. This court granted Pettit a COA on two issues: (1) whether 28 U.S.C.

§ 2244(d)(1)’s one-year statute of limitations ran from Pettit’s discovery of T.A.’s

recantation; and if so, (2) whether the petition states a claim for relief. Because

the second issue is dispositive here, we need not reach the more difficult issue of

whether the limitations period should have been calculated from the date on

which the “factual predicate” of Pettit’s actual innocence claim “could have been

discovered through the exercise of due diligence,”   id. § 2244(d)(1)(D).

                                      D ISCUSSION

       In Herrera v. Collins , 506 U.S. 390, 400 (1993), the Supreme Court

explained:

              Claims of actual innocence based on newly discovered
       evidence have never been held to state a ground for federal habeas
       relief absent an independent constitutional violation occurring in the
       underlying state criminal proceeding. . . . This rule is grounded in

                                           -5-
       the principle that federal habeas courts sit to ensure that individuals
       are not imprisoned in violation of the Constitution—not to correct
       errors of fact. [3]

Pettit admits that his actual innocence claim has no independent constitutional

component. Nevertheless, he points out that in           Herrera , the Court did not entirely

close the door to freestanding claims of actual innocence. The Court assumed, for

argument’s sake, “that in a capital case a truly persuasive demonstration of ‘actual

innocence’ made after trial would render the execution of a defendant

unconstitutional, and warrant federal habeas relief if there were no state avenue

open to process such a claim.”     Id. at 417.   4
                                                      But as Pettit did not receive a death

sentence, Herrera ’s exception does not apply.           See Milone v. Camp , 22 F.3d 693,

700 (7th Cir. 1994).   But see White v. Keane , 51 F. Supp.2d 495, 504 (S.D.N.Y.

1999) (suggesting that a liberal reading of          Herrera extends the exception to




3
      Although actual innocence is not itself a recognized constitutional claim, it
can serve as a “gateway” through which a habeas petitioner may advance an
otherwise procedurally barred constitutional claim. Herrera , 506 U.S. at 404; see
also Schlup v. Delo , 513 U.S. 298, 315 (1995).
4
       Although it is possible to interpret this court’s opinion in Sellers v. Ward,
135 F.3d 1333, 1339 (10th Cir. 1998), a capital case, as barring freestanding
claims of actual innocence “no matter how convincing the evidence,” this court
has applied Herrera’s assumed exception in capital cases before and after Sellers,
see, e.g., Stafford v. Saffle, 34 F.3d 1557, 1561 (10th Cir. 1994); Clayton v.
Gibson, 199 F.3d 1162, 1180 (10th Cir. 1999).

                                              -6-
non-capital cases).   5
                          Furthermore, Herrera indicates that a freestanding actual

innocence claim is not cognizable at all in habeas when a state avenue for relief is

open, such as executive clemency. 506 U.S. at 417;              see also id. at 427

(O’Connor, Kennedy, JJ., concurring);          id. at 428 (Scalia, Thomas, JJ.,

concurring); see, e.g. , Royal v. Taylor , 188 F.3d 239, 243 (4th Cir. 1999);         Lucas

v. Johnson , 132 F.3d 1069, 1075 (5th Cir. 1998). Pettit disputes the legal effect,

but not the availability, of such an avenue.         6
                                                         And even if Herrera could be read as

allowing the assertion of a freestanding actual innocence claim in a non-capital

habeas case where executive clemency remains unexhausted, Pettit has not cleared

the “extraordinarily high” hurdle necessary to succeed, 506 U.S. at 417. T.A.’s

recantation is not truly persuasive given (1) her less-than-certain state court

testimony and (2) Pettit’s admission of culpability by way of his no contest plea.




5
       Herrera suggests in two places that a truly persuasive demonstration of
actual innocence might merit habeas relief in a non-capital case. First, the Court
found “elemental appeal” in the proposition that “the Constitution prohibits the
imprisonment of one who is innocent,” 506 U.S. at 398. Second, the Court
commented that “[i]t would be a rather strange jurisprudence” that would vacate a
death sentence because of actual innocence, only to leave the innocent petitioner
imprisoned for life, id. at 405.
6
    See Okla. Const. art. VI, § 10 (giving the governor power to grant
commutations and pardons for all offenses except impeachment).

                                               -7-
See Herrera , 506 U.S. at 418 (stating that actual innocence evidence “must be

considered in light of the proof of petitioner’s guilt at trial”).

      The judgment of the district court is affirmed.    7



                                                        Entered for the Court


                                                        David M. Ebel
                                                        Circuit Judge




7
      Appellant’s motion for leave to proceed in forma pauperis is granted.

                                           -8-
