                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0599n.06

                                                 No. 09-5362
                                                                                                    FILED
                                                                                                Sep 09, 2010
                              UNITED STATES COURT OF APPEALS                             LEONARD GREEN, Clerk
                                   FOR THE SIXTH CIRCUIT

JEFFREY ALAN CASEY,

        Petitioner-Appellant,

v.                                                           ON APPEAL FROM THE UNITED
                                                             STATES DISTRICT COURT FOR THE
STATE OF TENNESSEE                                           MIDDLE DISTRICT OF TENNESSEE

        Respondent-Appellee.
                                                     /

Before: COLE and CLAY, Circuit Judges; and KATZ, District Judge.*

        KATZ, District Judge. Petitioner, Jeffrey Casey, appeals from the district court’s denial

of his petition for habeas corpus relief. Casey was convicted by a Tennessee jury of two counts of

first-degree murder in 1984 and sentenced to two concurrent life sentences. After losing his direct

appeal and filing several unsuccessful petitions for post-conviction relief in state court, Casey filed

this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in 2006. After holding an

evidentiary hearing, the district court denied the petition as untimely under 28 U.S.C. § 2244(d)(1),

finding that Casey was not entitled to equitable tolling on the ground of “actual innocence.” We

AFFIRM.

        Admitting that his petition is otherwise untimely, Casey seeks equitable tolling of the §

2244(d)(1) limitations period on the ground of “actual innocence.” As this circuit has held,

“equitable tolling of the one-year limitations period based on a credible showing of actual innocence

        *
          The Honorable David A. Katz, United States District Judge for the Northern District of Ohio, sitting by
designation.
is appropriate.” Souter v. Jones, 395 F.3d 577, 599 (6th Cir. 2005). But “actual innocence means

factual innocence, not mere legal insufficiency.” Souter, 395 F.3d at 590 (quoting Bousley v. United

States, 523 U.S. 614, 623 (1998)). It is the petitioner who bears the burden of making this showing,

McClendon v. Sherman, 329 F.3d 490, 494 (6th Cir. 2003), which requires the petitioner to present

“new evidence of innocence,” and not merely “new evidence” of a constitutional violation. Schlup

v. Delo, 513 U.S. 298, 316 (1995).

        In this case, Casey complains of several defects in the hearing he received before the juvenile

court that transferred him to be tried as an adult on the murder charges, as well as the juvenile court’s

resulting order. Specifically, Casey contends that the juvenile court failed to find, as required by

Tenn. Code Ann. § 37-234(a)(4) (1983), that there were “reasonable grounds” to believe that Casey

was “not committable to an institution for the mentally ill” and that “[t]he interests of the community

require that the child be put under legal restraint or discipline” prior to ordering him transferred for

trial as an adult. Casey also contends that the juvenile court erred in finding that he had waived his

statutory right under Tenn. Code Ann. § 27-234(3) (1983) to three days prior notice of the transfer

hearing. In Casey’s view, these errors amount to a violation of federal due process under Kent v.

United States, 383 U.S. 541, 562 (1966), which held that a juvenile transfer hearing “must measure

up to the essentials of due process and fair treatment.” Casey further claims that his lawyer at the

juvenile court hearing did not provide him with effective assistance of counsel. Citing the transcript

of the juvenile court hearing as “new evidence,” Casey argues that the invalid transfer order deprived

him of due process and defeated the jurisdiction of the circuit court that tried him for murder as an

adult, thus rendering his conviction void.




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        But Casey’s attack on the adequacy of the juvenile court proceedings is simply not the sort

of claim contemplated by the “actual innocence” exception as justifying equitable tolling. Even if

Casey is correct that the juvenile court’s invalid transfer order entirely deprived the circuit court of

jurisdiction to try him as an adult, the “new evidence” he adduces in support of that claim in no way

indicates his factual innocence of the crime charged or his lack of competence to stand trial for that

charge, bearing instead only on the legal sufficiency of the transfer proceedings. Regardless of

whether the constitutional errors claimed by Casey are characterized as “procedural” or

“jurisdictional” in nature, they do not implicate the “concern about the injustice that results from the

conviction of an innocent person,” Schlup, 513 U.S. at 325, that underlies “actual innocence” tolling.

        Therefore, we AFFIRM the judgment of the district court denying the petition.




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