                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2004

Hubbard v. Pinchak
Precedential or Non-Precedential: Precedential

Docket No. 00-5150




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"Hubbard v. Pinchak" (2004). 2004 Decisions. Paper 379.
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                     PRECEDENTIAL

   UNITED STATES COURT OF                  Mary Gibbons      (Argued)
APPEALS FOR THE THIRD CIRCUIT              Toms River, New Jersey 08757

                                                  Attorney for Appellant

              No. 00-5150                  Peter C. Harvey
                                                  Attorney General of New Jersey
                                           Trenton, New Jersey 08625

          FRANK HUBBARD,                   Linda K. Danielson (Argued)
                     Appellant                    Deputy Attorney General
                                                  Of Counsel and on Brief
                    v.                     Division of Criminal Justice
                                           Appellate Bureau
STEVEN PINCHAK; THE ATTORNEY               Trenton, New Jersey 08625
 GENERAL OF THE STATE OF NEW
   JERSEY; PETER VERNIERO                         Attorneys for Appellees


                                                 OPINION OF THE COURT
    On Appeal from the United States
  District Court for the District of New
                  Jersey                   SLOVITER, Circuit Judge.
      (D.C. Civil No. 97-cv-03717)
District Judge: Hon. Jerome B. Simandle            Petitioner Frank M. Hubbard seeks
                                           a writ of habeas corpus pursuant to 28
                                           U.S.C. § 2254. He procedurally defaulted
          Argued May 5, 2004               his claims in the state courts. He seeks to
                                           overcome the procedural default by
 Before: SLOVITER and FUENTES,             asserting his “actual innocence,” Bousley
 Circuit Judges, and POLLAK, District      v. United States, 523 U.S. 614, 623
                 Judge*                    (1998); Schlup v. Delo, 513 U.S. 298, 327
                                           (1995), a claim that the District Court
         (Filed: August 5, 2004)           rejected. We must therefore examine the
                                           scope and contours of the claim of actual
                                           innocence as a gateway to consideration of
   *
        Hon. Louis H. Pollak, Senior       the merits of petitioner’s habeas claim
Judge, United States District Court for    notwithstanding the procedural default.
the Eastern District of Pennsylvania,
sitting by designation.
                  FACTS                            girlfriend, testified that she, Monroe,
                                                   Hubbard, and Banks drove to O’Neal’s
        On June 22, 1981 in Camden, New            place of residence intending to rob him,
Jersey, David O’Neal 1 was killed by a             that the men went into the residence while
gunshot wound to the face. Thereafter, the         she remained in the vehicle and did not
State of New Jersey indicted Hubbard on            witness anything related to their entry, but
six felony counts, including murder,               that she saw Hubbard and Banks run back
robbery, conspiracy to commit robbery,             to the vehicle, and that Hubbard instructed
and firearms violations. Hubbard pled not          someone to drive and wrapped the gun in
guilty to all counts. Also charged as              a towel. Truluck’s account was consistent
defendants were John Monroe, who                   with Monroe’s subsequent testimony.
entered a guilty plea in exchange for a
thirty-year sentence, and Stanley Banks,                   Gary Hammon, the lone eyewitness
who was a fugitive at the time of trial.           who was not involved in the incident, also
                                                   testified. Hammon lived “[r]ight across
       Monroe testified at trial to the            from” O’Neal and although he did not see
details of the crimes pursuant to a plea           the shooting itself, he testified that there
agreement with the prosecutor. He stated           were three perpetrators involved, all of
that he, Hubbard, and Banks met at his             whom he saw conversing with each other,
residence where they discussed robbing             and two of whom he saw knock on
O’Neal, that he assumed Hubbard had a              O’Neal’s door. Hammon testified that all
gun because he observed a bulge in                 the men were black, and that there was a
Hubbard’s front, that Hubbard showed him           shorter man who was “[f]ive foot
a gold watch to sell to O’Neal, and that, at       something” and a taller man who was “six
Hubbard’s direction, Banks drove to                foot something” or “six foot two.” Trial
O’Neal’s. When they arrived, Hubbard               Tr. at 14-15 (Apr. 22, 1982). Hammon
handed O’Neal the gold watch, pulled his           testified that when O’Neal opened the
revolver and, when O’Neal reached for his          door, one of the two men shot him. All
own gun, Hubbard shot O’Neal in his face.          three men fled without entering O’Neal’s
Hubbard and Banks returned to their                residence. He did not get a good look at
vehicle and Monroe ran home.                       any of their faces.

       Lore lie    Truluck ,    Mon roe ’s                The jury found Hubbard guilty of
                                                   felony murder and robbery, and not guilty
                                                   of the handgun possession charges. On
   1                                               July 6, 1982, the state court sentenced
       The victim’s name appears
                                                   Hubbard to life imprisonment with a 25-
throughout the record as either “O’Neal”
                                                   year parole ineligibility on the felony
or “O’Neil.” We will conform to the
                                                   murder charge, and a 20-year concurrent
District Court’s spelling and use
                                                   term on the robbery count.
“O’Neal” herein.

                                               2
       There was no testimony linking any                   (1) that the indictment
gun, putatively the murder weapon, to                       against him was based on
Hubbard and no forensic evidence linking                    the perjurious testimony of
him to the victim or the scene of the crime.                the arresting detectiv e
Hubbard had filed a Bill of Alibi                           before the grand jury; (2)
Particulars before the grand jury charged                   that his sentence does not
him in which he stated he was in Atlantic                   comply with New Jersey
City, New Jersey on the night of the crime,                 sentencing criteria; (3) that
which took place in Camden, New Jersey.                     the trial court improperly
                                                            deprived him of his right to
      PROCEDURAL HISTORY                                    cross-examine one of the
                                                            state’s witnesses; (4) that
        This matter has traveled up and                     the police violated his Fifth
down the state courts of New Jersey, and it                 Amendment right to counsel
is unnecessary to recount the full details                  by ignoring his request for
here. We will limit the facts to the                        an attorney during custodial
proceedings necessary to decide this                        interrogation; (5) that the
appeal from the District Court’s order                      trial court gave a prejudicial
denying Hubbard’s petition for a writ of                    supplemental             jury
habeas corpus. Hubbard filed two separate                   instruction on the law of
petitions for post-conviction relief (PCR)                  accomplices; (6) that the
in the state courts – the first in August                   trial court impro perly
1988, and the second in May 1994. Both                      admitted           certain
were dismissed as untimely, and therefore                   photographs into evidence;
were procedurally barred by New Jersey                      and (7) that his trial counsel
state law.       Although the Appellate                     provided ineff ective
Division of the New Jersey Superior Court                   assistance.
agreed that the claims raised in Hubbard’s
second PCR petition were time barred, it             App.I at 3.
nevertheless stated that it “carefully
reviewed each of the seven [claims] and                     The District Court dismissed two of
[is] satisfied that there is no basis to grant       the grounds raised by Hubbard for
[Hubbard] relief.” App.II at 209.                    substantive reasons and they are not at
                                                     issue in this appeal. The District Court
       On July 28, 1997, Hubbard filed a             denied the requested writ of habeas corpus
pro se petition for habeas corpus relief in          on the five other claims because of
the District Court, raising seven claims             Hubbard’s procedural default, stating,
that he had set forth in his second PCR              “Petitioner has not argued that he is
petition. They are:                                  innocent of the crime for which the jury
                                                     convicted him,” App.I at 10, and

                                                 3
concluded, “Not having shown cause for             App.I at 26 (emphasis added).
his procedural default below or actual                    We issued a certificate of
innocence of the crimes for which he was           appealability on the issue “whether the
convicted, Grounds One, Three, Four, Six           Distr ic t C ou rt p ro pe rly r ejecte d
and Seven of petitioner’s habeas corpus            Appellant’s attempt to overcome the
petition are not cognizable in this court.”        procedural default of claims #1, #3, #4, #6
App.I at 11.                                       and #7 by asserting his ‘actual
                                                   innocence.’” Appellant’s Br. at 2. We
       Hubbard then filed a pro se motion          have jurisdiction to review the denial of
of reconsideration of the District Court’s         the habeas writ under 28 U.S.C. §§ 1291 &
denial of habeas relief. In response to this       2253.
motion, the District Court held that
although the motion for reconsideration                         DISCUSSION
was timely filed,
                                                                        I.
       [Petitioner] does not raise
       any factual or legal point                         The State contends that Hubbard’s
       overlooked by this Court.                   allegation of actual innocence is not
       Petitioner challenges this                  properly before this court because it
       Court’s statement that he                   appeared “[f]or the first time in his motion
       d id n o t r a i se a c t u al              for reconsideration of the [D]istrict
       innocence as an issue in his                [C]ourt’s opinion.” Appellee’s Br. at 15.2
       petition, but offers no
       evidence that he did raise                         Hubbard’s          motion      for
       such an issue without                       reconsideration as well as his habeas
       procedural default, and also                petition were filed pro se. We have
       offers no evidence that he is               previously stated that a petitioner’s
       actually innocent for the
       charges he is presently
       incarcerated for.        Mr.
       Hubbard’s petition was                         2
                                                           At oral argument the State
       denied on [the five relevant
                                                   conceded, “The whole issue of timing is
       grounds] due to procedural
                                                   an academic issue because in the first
       default, so even if he had
                                                   instance, there is no viable claim of
       demonstrated some issue of
                                                   actual innocence,” and that if such a
       actual innocence here, it
                                                   viable claim were made even in a motion
       would not have changed this
                                                   for reconsideration, in the interest of
       Court’s earlier denial of his
                                                   justice the District Court would have had
       application.
                                                   to address it. Tape of Oral Argument
                                                   (May 5, 2004).

                                               4
       failure to specifically                     F.3d at 108, this language in the pro se
       articulate his claim as one of              petition and traverse was sufficient to
       “actual innocence” should                   preserve Hubbard’s actual innocence
       not preclude review of the                  claim. In fact, he pled not guilty, and he
       merits of his claim. [The                   filed a Bill of Alibi Particulars placing him
       petitioner] clearly argued                  in Atlantic City at the moment of the
       that the government could                   crime, which occurred in Camden. We
       not satisfy the factual                     therefore reject the State’s argument that
       prerequisites of a . . .                    Hubbard’s claim of actual innocence is not
       conviction. When properly                   properly before us.
       viewed through the more
       forgiving lens used to                                           II.
       construe pro se habeas
       petitions, we conclude that                         As the Supreme Court reiterated
       t h e claim of “actual                      this past term, a federal court will
       innocence” was properly                     ordinarily not entertain a procedurally
       before the District Court.                  defaulted constitutional claim in a petition
                                                   for habeas corpus “[o]ut of respect for
United States v. Garth, 188 F.3d 99, 108           fin ality, comity, and the orderly
(3d Cir. 1999).                                    administration of justice.” Dretke v.
                                                   Haley, 124 S. Ct. 1847, 1849 (2004). This
        This case presents a similar               is a reflection of the rule that “federal
situation. Among the grounds Hubbard               courts will not disturb state court
raised in his habeas petition were                 judgments based on adequate and
“ineffective trial counsel” who “did               independent state law pro cedura l
nothing in [his] defense” and that the             grounds.” Id. at 1852; see Wainwright v.
“whole trial was a mockery.” App.II at 5.          Sykes, 433 U.S. 72, 81 (1977). The
In response to the State’s claim of the            principal exception to this general rule
procedural bars, Hubbard stated that               precluding federal review of habeas claims
“[f]ederal review is necessary to prevent a        that have been procedurally defaulted is
fundamental miscarriage of justice,” and           for petitioners who can show “cause and
that there was “a reasonable probability”          prejudice” for the procedural default or
that but for counsel’s unprofessional errors       that a “miscarriage of justice” will occur
“the results of the proceedings would have         absent review. Cristin v. Brennan, 281
been different.” Supp. App. at 125, 127.           F.3d 404, 414 (3d Cir. 2002).            An
                                                   allegation of “actual innocence,” if
       When viewed through a “more                 credible, is one such “miscarriage of
forgiving lens” that does not require              justice” that enables courts to hear the
petitioners to “specifically articulate”           merits of the habeas claims.
claims of actual innocence, Garth, 188

                                               5
       The petitioner in Schlup v. Delo,           F.3d at 412, a “fundamental miscarriage of
513 U.S. 298 (1995), the leading case on           justice” will remove the bar on claims that
the “actual innocence” doctrine, had made          have been procedurally defaulted, and
both an assertion of constitutional error at       actual innocence will show such a
trial and a claim of innocence. The                fundamental miscarriage of justice.
Supreme Court stated that because of the
assertion of constitutional error, his                    Because the cause and prejudice
conviction was not “entitled to the same           exception to the procedural bar for
degree of respect as one. . . that is the          defaulted claims is itself based on
product of an error free trial.” Id. at 316.       equitable considerations, the Supreme
The Court continued,                               Court has made clear that the actual
                                                   innocence exception to the unreviewability
       Without any new evidence                    of procedurally defaulted claims should be
       of innocence, even the                      applied only in the rarest of cases. See
       existence of a concededly                   Dretke, 124 S. Ct. at 1852. As it explained
       meritorious constitutional                  in Dretke:
       violation is not in itself
       sufficient to establish a                          [I]t is precisely because the
       miscarriage of justice that                        various exceptions to the
       would allow a habeas court                         procedural default doctrine
       to reach the merits of a                           are judge-made rules that
       barred claim. However, if a                        courts as their stewards
       petitioner . . . presents                          must exercise restraint,
       evidence of innocence so                           adding to or expanding them
       strong that a court cannot                         only when necessary. To
       have confidence in the                             hold otherwise would be to
       outcome of the trial unless                        license district courts to
       the court is also satisfied                        riddle the cause and
       that the trial was free of                         prejudice standard with ad
       nonharmless constitutional                         hoc exceptions whenever
       error, the petitioner should                       they perceive an error to be
       be allowed to pass through                         “clear” or departure from
       the gateway and argue the                          the rules expedient. Such an
       merits of his underlying                           approach, not the rule of
       claims.                                            restraint adopted here,
                                                          would have the unhappy
Id. Hubbard relies on this precedent as the               effect of prolonging the
basis for us to “pass through the gateway”                pendency of federal habeas
to the merits of his habeas claims. As we                 applications as each new
explained in our decision in Cristin, 281                 exception is tested in the

                                               6
       courts of appeals.                          rejected, Hubbard’s allegation of actual
                                                   innocence as a vehicle to open the gateway
Id. at 1853.

        In Dretke, the Court, applying the
                                                           There are several reasons the state
restraint that it cautioned for the lower
                                                   court’s “alternative” ruling does not
courts, declined to decide the issue that
                                                   obviate the need to reach the actual
had divided the courts of appeals –
                                                   innocence question. First, a state
whether to extend the actual innocence
                                                   procedural bar functions as an adequate
exception to procedural default of
                                                   and independent state ground which
cons titut i o n a l claim s cha llengin g
                                                   precludes federal review. Harris v. Reed,
noncapital sentencing error. Instead, it
                                                   489 U.S. 255, 264 n.10 (1989) (“a state
avoided the issue by holding that “a
                                                   court need not fear reaching the merits of
federal court faced with allegations of
                                                   a federal claim in an alternative holding,”
actual innocence, whether of the sentence
                                                   as “[b]y its very definition, the adequate
or of the crime charged, must first address
                                                   and independent state ground doctrine
all nondefaulted claims for comparable
                                                   requires the federal court to honor a state
relief and other grounds for cause to
                                                   holding that is a sufficient basis for the
excuse the procedural default.” Id. at
                                                   state court’s judgment, even when the
1852. We see no ground for avoidance
                                                   state court also relies on federal law.”).
that was available to the District Court in
                                                   Second, in Dretke the alternative habeas
this case.3 It therefore met head on, and
                                                   claim the Supreme Court referred to was
                                                   an ineffective assistance of counsel claim
                                                   that had not been procedurally barred.
   3
       The Appellate Division of the               Should the petitioner in Dretke have
New Jersey Superior Court stated that in           prevailed on this habeas claim, the actual
addition to Hubbard’s PCR claims being             innocence question regarding the
procedurally barred, they provided no              procedurally defaulted claims could have
basis for relief. Hubbard’s counsel urges          been avoided. In the instant case, all
us to consider this ruling to be an                habeas claims on appeal have been
“alternative ruling” that we can review            procedurally defaulted. Third, Hubbard
despite the procedural default ruling.             acknowledges that “the issue of
Appellant’s Br. at 15 n.11. At oral                procedural default, vel non, lies outside
argument, Hubbard’s counsel argued that            the scope of the certificate of
the District Court in this case failed first       appealability issued here.” Appellant’s
to consider alternative grounds for relief         Br. at 15 n.11. For these reasons, we
urged by the respondent, grounds that              decline to view the state court’s comment
might obviate any need to reach the                regarding the merits as a basis on which
actual innocence question, citing Dretke,          we can avoid the actual innocence
124 S. Ct. at 1849.                                question.

                                               7
to review of his procedurally defaulted            trial,” and, if so, whether it is more likely
claims. We conclude that we are required           than not that no reasonable juror would
to do the same.4                                   have convicted him in light of the new
                                                   evidence.
                    III.
                                                           The only evidence that Hubbard
        A petitioner who is asserting his          asserts is “new” is what he terms as “his
“actual innocence of the underlying crime          own sworn testimony.” Appellant’s Br. at
. . . must show ‘it is more likely than not        18. Hubbard did include in his Bill of
that no reasonable juror would have                Alibi Particulars, which he filed as a
convicted him in light of the new                  matter of record before indictment, a
evidence’ presented in his habeas                  statement that places him too far from the
petition.” Calderon v. Thompson, 523               city where the crime was committed to
U.S. 538, 559 (1998) (quoting Schlup, 513          have participated in it. However, Hubbard
U.S. at 327). In Schlup, the Supreme               did not give this testimony during the trial
Court stated that claims of actual                 even though he was available to do so.
innocence are rarely successful because            Counsel does not suggest that this piece of
the necessary evidence is unavailable in           evidence was excluded from the record
the vast majority of cases. 513 U.S. at            before the jury that convicted Hubbard. A
324. The Court explained that petitioner           defendant’s own late-proffered testimony
must support his allegations of                    is not “new” because it was available at
constitutional error with                          trial. Hubbard merely chose not to present
                                                   it to the jury. That choice does not open
       new reliable evidence –                     the gateway.
       whether it be exculpatory
       scientific evidence,                                In Glass v. Vaughn, 65 F.3d 13 (3d
       t r u s tw orthy eyew itness                Cir. 1995), petitioner, who was convicted
       accounts, or critical physical              of first degree murder notwithstanding his
       evidence – that was not                     alibi that he was not even at the scene
       presented at trial.                         when the killing occurred, sought to
                                                   overcome his procedural default of his
Id. We must therefore consider both                post traumatic stress disorder by claiming
whether Hubbard has presented “new                 actual innocence. Citing Schlup, we
reliable evidence . . . not presented at           rejected the actual innocence claim,
                                                   concluding that petitioner had not shown
                                                   that it is more likely than not that no
   4                                               rational juror would have voted to convict
       We exercise plenary review over
                                                   him in light of the evidence that he went to
the District Court’s legal conclusion and
                                                   the murder scene armed and had earlier
review its findings of fact for clear error.
                                                   behaved violently to the victim.
Cristin, 281 F.3d at 409.

                                               8
        Hubbard’s proffered testimony fails          “[W]hat part I took in this crime? Was I at
to change or clarify the facts presented at          the scene, around the corner? Was I in
trial. At trial the strongest evidence against       another city?” App.II at 9. As this
Hubbard was the testimony of Monroe and              information is not new, it cannot qualify as
Truluck, his accomplices who were there              the kind of new evidence contemplated by
when O’Neal was shot, and the evidence               the Supreme Court, such as “exculpatory
of Hammon, albeit not specific as to                 scientific evidence, trustworthy eyewitness
Hubbard’s identity.             Mr. Wilson,          accounts, or critical physical evidence.”
Hubbard’s uncle, testified as a State                Schlup, 513 U.S. at 324.
witness that Hubbard called him three
weeks after the incident to tell him he                      Hubbard’s counsel attempts to
“was involved in a murder trial that he              show Hubbard’s claim of actual innocence
didn’t commit.” Trial Tr. at 83 (Apr. 28,            is reliable because “[a]part from the
1982). Hubbard’s trial counsel informed              testimony of Monroe and Truluck –
the trial court that he would not call “Mr.          rejected by the jury – there is no evidence
Wilson as a witness to support                       of his guilt of the murder charge. Given
[Hubbard’s] alibi defense.” Supp. App. at            the absence of any evidence in support of
11.                                                  his guilt under a felony-murder theory, the
                                                     record is barren of any inconsistency with
        Hubbard called no witnesses.                 the actual innocence claim that he now
Hubbard’s defense wa s prese nted                    timely puts forward.” Appellant’s Br. at
primarily by his trial counsel’s summation           18. We find this argument unpersuasive.
to the jury, which stated, “Our whole
position throughout this case is we weren’t                 There is no basis for Hubbard’s
there, weren’t there when it happened so             statement that the jury rejected the
as a result we can’t be guilty.” Trial Tr. at        testimony of Monroe and Truluck.
134 (Apr. 29, 1982). He referred to                  Although the jury acquitted Hubbard of the
several other pieces of evidence from                weapons charge – testified to by Monroe
which the jury could have inferred that              and Truluck – it convicted him on the
Hubbard was not at the scene of the crime,           robbery and murder charges, which were
such as Hubbard’s denial of the indictment           also testified to by Monroe and Truluck.
and any involvement in the crime, the                To the extent that the jury conviction
height difference between Hubbard (who               suggests anything, it suggests that it
is 5’9”) and the perpetrator who Hammon              believed part and disbelieved part of their
testified was 6’ or 6’2”, the lack of                testimony.      However, it is wholly
fingerprints, and the unexamined handprint           inappropriate for this court to glean from
on the storm door of O’Neal’s house. In a            the bare fact of a partial conviction that
sworn statement supporting his habeas                certain witnesses’ testimony is not to be
petition, Hubbard essentially alleges the            believed. Further, the lack of forensic
same facts, raising questions such as                evidence linking Hubbard to the crime

                                                 9
does not bolster the credibility of                claims] of petitioner’s habeas corpus
Hubbard’s claim of innocence because it            petition are not cognizable in this court.”
was this same record that the jury                 App.I at 11.5
reviewed en route to convicting him.

        The “new” evidence Hubbard puts               5
                                                           Some of the language in the
forth in alleging actual innocence is
                                                   District Court’s June 14, 2002 opinion
nothing more than a repackaging of the
                                                   regarding Hubbard’s motion for
record as presented at trial. Therefore he
                                                   reconsideration is troubling. The Court
cannot logically meet the more likely than
                                                   stated:
not “that no rational juror would have
voted to convict” standard. See Glass, 65
                                                          Petitioner challenges this
F.3d at 17. To allow Hubbard’s own
                                                          Court’s statement that he
testimony that he proffers (supported by no
                                                          did not raise actual
new evidence) to open the gateway to
                                                          innocence as an issue in his
federal review of claims that have been
                                                          petition, but offers no
procedurally defaulted under state law
                                                          evidence that he did raise
would set the bar for “actual innocence”
                                                          such an issue without
claimants so low that virtually every such
                                                          procedural default, and
claimant would pass through it. This
                                                          also offers no evidence that
would stand in stark contrast to the caveat
                                                          he is actually innocent for
of the Supreme Court to exercise restraint
                                                          the charges he is presently
and require a “strong showing of actual
                                                          incarcerated for. Mr.
innocence,” and its observation that
                                                          Hubbard’s petition was
“[g]iven the rarity of such evidence, in
                                                          denied on [some of his
virtually every case, the allegation of
                                                          claims] due to procedural
actual innocence has been summarily
                                                          default, so even if he had
rejected.” Calderon, 523 U.S. at 558-59
                                                          demonstrated some issue of
(internal quotation marks and citation
                                                          actual innocence here, it
omitted).     We thus conclude that
                                                          would not have changed
Hubbard’s allegation of actual innocence
                                                          this Court’s earlier denial
is insufficient to allow review of his
                                                          of his application.
defaulted claims.
                                                   App.I at 26. This seems to be a clear
      Having so decided, we agree with
                                                   misapprehension of the law, although
the District Court’s January 31, 2000
                                                   during oral argument counsel for the
opinion that “[n]ot having shown cause for
                                                   state urged this court to view it as a
his procedural default below or actual
                                                   “poor choice of words.” If Hubbard had
innocence of the crimes for which he was
                                                   demonstrated some “issue of actual
convicted, [the procedurally defaulted
                                                   innocence,” the District Court would

                                              10
             CONCLUSION

        For the reasons set forth above, we
will affirm the decision of the District
Court that it was foreclosed from
reviewing the procedurally defaulted
claims on the ground that the allegation of
actual innocence is insufficiently strong to
overcome the “State’s interests in actual
finality . . . .” Calderon, 523 U.S. at 557.




have been required to consider
Hubbard’s habeas application differently.
However, this statement does not detract
from the District Court’s denial of the
habeas petition on the ground that there
was no “coherent argument as to his
actual innocence.” App.I at 11. Further,
the District Court gave no indication in
its opinion denying habeas that it
misapprehended the “actual innocence”
law, and in fact the Court discussed the
gateway correctly at some length. App.I
at 8-11.

                                               11
