08-0839-pr
Brockington v. Marshal

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 3 rd day of May, two thousand ten.

PRESENT:         REENA RAGGI,
                 PETER W. HALL,
                                 Circuit Judges.*
-------------------------------------------------------
TODDRICK BROCKINGTON,

                          Petitioner-Appellant,

                     v.                                                       No. 08-0839-pr

LUIS MARSHAL, Superintendent,

                         Respondent-Appellee.
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APPEARING FOR APPELLANT:                          ROBIN C. SMITH, Brooklyn, New York.

APPEARING FOR APPELLEE:                           KELLY CHRISTINE WOLFORD, Assistant
                                                  District Attorney, for Michael C. Green, District
                                                  Attorney of Monroe County, Rochester, New
                                                  York.


          *
         The Honorable Rosemary S. Pooler, who was a member of this panel, has removed
herself from hearing and consideration of this appeal. The remaining two panel members,
who agree on the disposition, decide this appeal pursuant to Local Rule 0.14(b).
       Appeal from the United States District Court for the Western District of New York

(William M. Skretny, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on January 23, 2008, is VACATED and the case is

REMANDED for further proceedings consistent with this decision.

       Toddrick Brockington, currently serving a prison sentence of twenty-five years to life

on his 1992 New York convictions for felony murder, first degree robbery, and second

degree manslaughter, appeals from the denial of his petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. We review the district court’s denial of the writ de novo. See

Doe v. Menefee, 391 F.3d 147, 163 (2d Cir. 2004). In doing so, we assume familiarity with

the facts and procedural history, which we reference only as necessary to explain our ruling.

       The district court correctly concluded that Brockington’s 2007 petition was filed more

than a decade after the “grace period” of the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, see Ross v. Artuz, 150 F.3d 97,

103 (2d Cir. 1998) (allowing defendants convicted before AEDPA to file habeas petitions

by April 24, 1997), and Brockington’s 1996 receipt of a medical examiner’s “case narrative”

containing what he characterized as newly discovered evidence casting doubt on his

conviction, see 28 U.S.C. § 2244(d)(1)(D).

       Nevertheless, on March 3, 2009, this court issued a certificate of appealability with

respect to two issues: “(1) whether petitioner asserted an actual innocence claim in the

proceedings below, and, if so, (2) whether petitioner’s assertion of actual innocence requires

tolling of the applicable statute of limitations in this case.” Order Granting Certificate of

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Appealability, Brockington v. Marshal, No. 08-0839-pr (2d Cir. Mar. 3, 2009).

       We have not yet decided whether the Constitution requires tolling of AEDPA’s

limitations period in a case of actual innocence. See Doe v. Menefee, 391 F.3d at 161.

Accordingly, we have instructed district courts presented with untimely habeas petitions

raising claims of actual innocence to determine, “in each case, whether the petitioner has

presented a credible claim of actual innocence before ruling on the legal issues of whether

such a showing provides a basis for equitable tolling and whether the petitioner must also

demonstrate that he or she pursued his or her claim with reasonable diligence.” Id. Where

a district court fails to conduct the required inquiry, we will remand so that it may do so in

the first instance. See Whitley v. Senkowski, 317 F.3d 223, 226 (2003).

       Construing Brockington’s pro se petition liberally, see Roldan v. Racette, 984 F.2d

85, 87 (2d Cir. 1993), we conclude that he asserted a claim of actual innocence. In

completing the form that constitutes his petition, Brockington made no express declaration

of innocence.1 Nevertheless, he attached two state court decisions denying post-conviction

relief, each noting his claim that the case narrative supported his defense that the robbery

never occurred and that he was innocent. See People v. Brockington, No. 91-0321, slip op.

at 3 (N.Y. Sup. Ct. Feb. 27, 2006) (“[D]efendant contends that . . . he is innocent of the

crimes of which he stands convicted.”); People v. Brockington, No. 91-0321, slip op. at 8

(N.Y. Sup. Ct. Dec. 22, 2003) (“[I]t is defendant’s contention that the Case Narrative proves

that no robbery occurred . . . .”). Finally, in response to the district court’s May 7, 2007 order


       1
         While the form offers pro se petitioners a list of “most frequently raised grounds for
relief,” actual innocence is not among the grounds included.

                                                3
to show cause why the petition should not be dismissed as time-barred, Brockington

submitted a memorandum noting that he had claimed actual innocence in his state court

petition for post-conviction relief pursuant to New York Criminal Procedure Law § 440.10.

This record is sufficient, though barely so, to have signaled to the district court that

Brockington intended his “newly discovered” evidence to support a claim of actual

innocence.

       Accordingly, without expressing any view as to the merits of Brockington’s putative

claim of actual innocence, we remand to permit the district court to conduct the following

sequential inquiry:

       (1) Did [Brockington] pursue his actual innocence claim with reasonable
       diligence? (2) If [he] did not pursue the claim with reasonable diligence, must
       an actual innocence claim be pursued with reasonable diligence in order to
       raise the issue of whether the United States Constitution requires an “actual
       innocence” exception to the AEDPA statute of limitations? (3) If [he] did
       pursue the claim with reasonable diligence or if reasonable diligence is
       unnecessary, does [he] make a credible claim of actual innocence? (4) If [he]
       does make a credible claim of actual innocence, does the United States
       Constitution require an “actual innocence” exception to the AEDPA statute of
       limitations on federal habeas petitions?

Whitley v. Senkowski, 317 F.3d at 225-26.

       For the reasons explained, the judgment of the district court is VACATED and the

case REMANDED for further proceedings consistent with this ruling.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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