                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                                                     FILED
                                No. 04-13566
                                                            U.S. COURT OF APPEALS
                            Non-Argument Calendar             ELEVENTH CIRCUIT
                          ________________________                June 22, 2005
                                                               THOMAS K. KAHN
                      D. C. Docket No. 03-02913-CV-J-S             CLERK


AARON LAMONT JOHNSON,

                                                              Petitioner-Appellant,

     versus

RALPH HOOKS,
Warden,
ATTORNEY GENERAL OF ALABAMA,

                                                          Respondents-Appellees.


                          ________________________

                  Appeal from the United States District Court
                     for the Northern District of Alabama
                        _________________________
                               (June 22, 2005)


Before TJOFLAT, ANDERSON and WILSON, Circuit Judges.

PER CURIAM:

     Petitioner is an Alabama prison inmate serving a life sentence for capital
murder. The district court denied his application for a writ of habeas corpus, 28

U.S.C. § 2254, as time barred. He now appeals. We granted a certificate of

appealability on two issues:

      (1) Whether the district court properly found that [petitioner] did not
      make a sufficient showing of actual innocence to potentially overcome
      the untimeliness of his federal habeas corpus petition based on the
      limited record before it?

      (2) If not, whether the application of 28 U.S.C. § 2244's one-year
      statute of limitations constitutes an unconstitutional suspension of the
      writ of habeas corpus? See Wyzykowski v. Department of
      Corrections, 226 F. 3d 1213, 1218-19 (11th Cir. 2000).

      A federal court reviewing a § 2254 petition must give a level of deference to

a state court’s findings of fact. Specifically:

      In a proceeding instituted by an application for a writ of habeas corpus
      by a person in custody pursuant to the judgment of a State court, a
      determination of a factual issue made by a State court shall be
      presumed to be correct. The applicant shall have the burden of
      rebutting the presumption of correctness by clear and convincing
      evidence.

28 U.S.C. § 2254(e)(1).

      Prisoners have a one-year limitation period to file a § 2254 habeas petition.

28 U.S.C. § 2244(d). In Wyzykowski, we held that the § 2244(d)’s one-year

statute of limitations was not an unconstitutional suspension of the writ of habeas

corpus. We noted a “troubling and difficult constitutional question,” however,

when a petitioner can show actual innocence and the statute of limitations has

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expired. Wyzykowski, 226 F.3d at 1218. We held that the petitioner must make

the actual-innocence showing before the court will address the constitutional issue.

Id. We vacated the district court’s decision because there was “a complete absence

in the record on appeal concerning . . . a showing of actual innocence.” Id. at

1219. In particular, although Wyzykowski had apparently pled guilty, we did not

have access to his plea colloquy. Id. Moreover, the district court never addressed

Wyzykowski’s claims of actual innocence. Id. at 1218.

      To make a showing of actual innocence, the petitioner must establish that a

constitutional violation has probably resulted in the conviction of one who is

actually innocent.” Sibley v. Culliver, 377 F.3d 1196, 1205 (11th Cir. 2004). “To

meet this standard, a petitioner must demonstrate that it is more likely than not that

no reasonable juror would have convicted him of the underlying offense.” Johnson

v. Alabama, 256 F.3d 1156, 1171 (11th Cir. 2001) (quotations omitted); see also

Sibley, 377 F.3d at 1205. To accomplish this, the petitioner must offer reliable

evidence that was not presented at trial. Johnson, 256 F.3d at 1171.

      Here, the record before the district court was sufficient to enable the court to

conclude that petitioner failed to meet the “actual innocence” exception. Included

in the record were the state appellate court’s opinion, the affidavits from the

additional witnesses, the reports, and the recorded statements that were submitted



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with petitioner’s traverse. We give deference to the facts set out in the state

appellate court’s opinion and presume them to be correct because petitioner

Johnson failed to prove them incorrect by clear and convincing evidence. 28

U.S.C. § 2254(e)(1). In the light of the state appellate court’s summary of the

testimony, the district court considered the new evidence petitioner offered to

establish his innocence and found that such evidence would have been repetitive

and conflicting. We agree. And, since we conclude that the district court properly

found that petitioner failed to meet the “actual innocence” exception, we need not

address the second issue the certificate of appealability presents, i.e., whether the §

2244(d) statute of limitations is constitutional as applied to someone who is

actually innocent.

      AFFIRMED.




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