                                                                                     [PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT                           FILED
                                                                        U.S. COURT OF APPEALS
                                 ________________________                 ELEVENTH CIRCUIT
                                                                          SEPTEMBER 11, 2000
                                                                           THOMAS K. KAHN
                                        No. 98-4971                             CLERK
                                 ________________________

                            D. C. Docket No. 97-08535-CV-WDF

MICHEAL WYZYKOWSKI,

                                                                           Petitioner-Appellant,

                                               versus

DEPARTMENT OF CORRECTIONS, Harry K. Singletary,
ATTORNEY GENERAL, Robert Butterworth,

                                                                       Respondents-Appellees.

                                 ________________________

                         Appeal from the United States District Court
                             for the Southern District of Florida
                               _________________________
                                    (September 11, 2000)

Before ANDERSON, Chief Judge, DUBINA and SMITH*, Circuit Judges.

ANDERSON, Chief Judge:

_______________________
*
    Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by designation.
         Micheal Wyzykowski appeals the district court's denial of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, we

vacate and remand.

                                 I.   BACKGROUND

      In 1992 Wyzykowski was charged with the first degree murder of Fred

Butterworth and the attempted burglary of shoes from the victim’s dwelling. After

pleading guilty to second degree murder in 15th Judicial Circuit Court, Palm Beach

County, Florida, pursuant to a negotiated plea agreement, Wyzykowski was convicted

and sentenced to twenty-three years imprisonment. Wyzykowski did not file a direct

appeal or pursue state collateral relief.

      In July 1997, Wyzykowski filed a pro se petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. He claimed that he was denied his Sixth Amendment

right to effective assistance of counsel. In particular, he claimed that his counsel

failed to investigate the case properly before advising him to plead guilty to second

degree murder. In addition, Wyzykowski claimed that he was actually innocent of

second degree murder because the victim actually started the fight with him; of first

degree premeditated murder because he was too intoxicated to form the requisite

intent and again because the victim started the fight; of first degree felony-murder

because he was not guilty of attempted burglary; and of attempted burglary because

the shoes he allegedly attempted to burgle were actually his own shoes, he lacked the

capacity due to intoxication to form the requisite specific intent for burglary, and there
is no evidence that he entered the dwelling to commit a crime. The new evidence for

these claims is Wyzykowski’s detailed statements regarding the events that led to

Butterworth’s death.

      Wyzykowski explained that he pleaded guilty at the tearful urging of his

appointed defense counsel, who indicated, on the eve of trial, that she was not

prepared to try the case and that she would withdraw if he did not change his plea.

Wyzykowski also contended that his counsel informed him that it made no difference

that Buttersworth attempted to take his shoes, that “the indictment nullified all

defenses,” and that if he proceeded to trial he would surely be found guilty and, even

if the State did not seek the death penalty, the judge would still sentence him to death.

He claimed that had he had effective assistance of counsel he would have been able

to prove that he was innocent of the crimes with which he was charged and the crime

to which he pleaded guilty.

      On August 25, 1997, the magistrate judge issued the usual show cause order,

ordering a response to Wyzykowski’s petition. The State responded, asserting that the

claim was time-barred. However, the State did not file the record of the state court

proceedings. See Rule 5, Rules Governing § 2254 Cases. On April 21, 1998, a

magistrate judge issued a report, noting in passing that petitioner failed to exhaust his

claims in state court, but recommending that the petition be dismissed for failure to

comply with the one-year limitation period for habeas corpus petitions enacted by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-

132, codified as amended at 28 U.S.C. § 2244(d). On May 28, 1998, the district court

dismissed the petition as time-barred.

      On July 6, 1998, the district court granted a certificate of appealability on the

following issue:

      Whether the Antiterrorism and Effective Death Penalty Act of 1996,
      Pub. L. No. 104-132, 110 Stat. 1214, codified as amended at 29 U.S.C.
      § 2244(d), as applied to Petitioner is an unconstitutional suspension of
      the Writ of Habeas Corpus in violation of the United States Constitution
      Article I, Section 9, clause 2.

Accordingly, Wyzykowski appeals on this issue.

                                 II.   DISCUSSION

      We review the district court’s dismissal of Wyzykowski’s petition de novo

because this issue is solely one of law. See Sandvik v. United States, 177 F.3d 1269,

1271 (11th Cir. 1999) (per curiam).

      Wyzykowski concedes that his federal habeas corpus petition was not filed

within the one-year limitation period established by AEDPA, but argues that this

limitation period constitutes an unconstitutional suspension of habeas relief or that an

“actual innocence” exception to the one-year limitation period must be read into the

statute to avoid rendering the habeas remedy “inadequate and ineffective” and

violating the Suspension Clause of the Constitution.

      The Suspension Clause provides: “The Privilege of the Writ of Habeas Corpus
shall not be suspended, unless when in Cases of Rebellion or Invasion the public

Safety may require it.” U.S. Const. art. I, § 9, cl. 2. Despite this constitutional

restriction, the “judgments about the proper scope of the writ are ‘normally for

Congress to make.’” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340

(1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323, 116 S.Ct. 1293, 1298 (1996)).

In Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224 (1996), the Supreme Court held

that “the substitution of a collateral remedy which is neither inadequate nor ineffective

to test the legality of a person’s detention does not constitute a suspension of the writ

of habeas corpus.” Id. at 381, 116 S.Ct. at 1230. We thus consider whether §

2244(d)’s limitation period renders the remedy inadequate or ineffective to test the

legality of a person’s detention.

      The “substitution” at issue here is of collateral relief with a one-year limitation

period for collateral relief without a limitation period. In particular, § 2244(d)(1) now

provides:

      A 1-year period of limitation shall apply to any application for writ of
      habeas corpus by person in custody pursuant to the judgment of a State
      court. The limitation period shall run from the latest of–
             (A) the date on which the judgment became final by the
             conclusion of direct review or the expiration of the time for
             seeking such review;
             (B) the date on which the impediment of filing an application
             created by State action in violation of the Constitution or laws of
             the United States is removed, if the applicant was prevented from
             filing by such State action;
             (C) the date on which the constitutional right asserted was initially
               recognized by the Supreme Court, if the right has been newly
               recognized by the Supreme Court and made retroactively
               applicable to cases on collateral review; or
               (D) the date on which the factual predicate of the claim or claims
               presented could have been discovered through the exercise of due
               diligence.

28 U.S.C. § 2244(d)(1). Prior to the addition of this limitation period, the only time

limitation was provided by Rule 9(a), Rules Governing § 2254 Cases, which permits

dismissing a § 2254 habeas petition “if it appears that the state of which the

respondent is an officer has been prejudiced in its ability to respond to the petition by

delay in its filing unless the petitioner shows that it is based on grounds of which he

could not have had knowledge by the exercise of reasonable diligence before the

circumstances prejudicial to the state occurred.”1 Section 2244(d)(1), in contrast,

provides for a one-year limitation period and does not require a showing that the state

was prejudiced. However, it does resemble Rule 9 by not beginning the one-year

period until the “factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). In

addition, in the event of illegal state action preventing the petitioner from filing, the



   1
      We note that in Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293 (1996), the Supreme
Court vacated a decision of this Court which dismissed a first habeas petition for “special ad hoc
‘equitable’ reasons not encompassed within the framework of Rule 9,” in particular, that
petitioner had waited almost six years, and until the last minute, to file a federal habeas petition.
Id. at 322, 116 S.Ct. at 1298. The Supreme Court held that such a petition is governed by the
Habeas Corpus Rules, not by generalized equitable considerations. See id. at 332, 116 S.Ct. at
1303. Thus, it is clear that Rule 9, rather than any equitable doctrine, provided the only form of
“time limitation” for first federal habeas petitions prior to the enactment of AEDPA.
limitation period does not begin until after the state impediment is removed. See 28

U.S.C. § 2244(d)(1)(B). Also in the event that the Supreme Court newly recognizes

a constitutional right and makes it retroactively applicable to cases on collateral

review, the limitation provision permits filing a petition asserting such a right for a

year after the initial recognition of the right. See 28 U.S.C. § 2244(d)(1)(C).

Moreover, “[section 2244] permits equitable tolling ‘when a movant untimely files

because of extraordinary circumstances that are both beyond his control and

unavoidable with diligence.’” Steed v. Head, – F.3d –, –, 2000 WL 1028509 at * 2

(11th Cir. 2000) (quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.

1999) (per curiam)).2

       Every court which has addressed the issue–i.e., whether, as a general matter, §

2244(d) constitutes an unconstitutional suspension of the writ–has concluded that it




   2
      This is consistent with what our sister circuits have held. See Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000) (stating that the limitation period for filing habeas petitions may be
equitable tolled in extraordinary circumstances); Miller v. New Jersey Dep’t of Corrections, 145
F.3d 616, 618 (3d Cir. 1998) (holding that § 2244(d)’s limitation period can be equitably tolled
in extraordinary circumstances); Harris v. Hutchinson, 209 F.3d 325, 329-30 (4th Cir. 2000)
(concluding that § 2244(d) is subject to equitable tolling, at least in principle); Davis v. Johnson,
158 F.3d 806, 811 (5th Cir. 1998) (holding that § 2244(d)’s limitation period can be equitably
tolled in “rare and exceptional circumstances”), cert. denied, 526 U.S. 1074, 119 S.Ct. 1474
(1999); Calderon v. United States Dist. Ct., 163 F.3d 530, 541 (9th Cir. 1998) (en banc)
(“[Section] 2244(d)(1) can be tolled if extraordinary circumstances beyond a prisoner’s control
make it impossible to file a petition on time.”) (internal quotation marks omitted), cert. denied,
526 U.S. 1060, 119 S.Ct. 1377 (1999); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.) (“It must
be remembered that § 2244(d) is not jurisdictional and as a limitation may be subject to equitable
tolling.”), cert. denied, 525 U.S. 891, 119 S.Ct. 210 (1998).
does not.3 The Supreme Court has not directly addressed the issue in the context of

a first federal habeas corpus petition. However, in Felker v. Turpin, 518 U.S. 651,

116 S.Ct. 2333 (1996), the Court held that AEDPA’s restrictions on successive

petitions “do not amount to a ‘suspension’ of the writ.” Id. at 664, 116 S.Ct. at 2340.

In so holding, the Court noted that restrictions on the scope of the writ, like the

doctrine of abuse of the writ, are “‘a complex and evolving body of equitable

principles informed and controlled by historical usage, statutory developments, and



   3
      See Lucidore v. New York State Division of Parole, 209 F.3d 107, 113 (2d Cir. 2000)
(rejecting facial challenge to AEDPA’s statute of limitation because it leaves petitioners with
some reasonable opportunity to have their claims heard on the merits and, therefore, “the
limitations period does not render the habeas remedy ‘inadequate or ineffective to test the
legality of detention,’ and therefore does not per se constitute an unconstitutional suspension of
the writ.”), petition for cert. filed, 69 U.S.L.W. 2086 (Jul. 5, 2000); Miller v. Marr, 141 F.3d 976,
978 (10th Cir.) (holding that, where petitioner does not contend he is actually innocent, the
limitation period does not render the habeas remedy inadequate and ineffective), cert. denied,
525 U.S. 891, 119 S.Ct. 210 (1998); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per
curiam) (“The 1-year limitations period of the AEDPA does not violate the Suspension Clause
unless it renders the habeas remedy inadequate or ineffective to test the legality of detention.
Molo [who failed to show factual innocence] has not shown how the limitations period made the
habeas remedy inadequate or ineffective for him, since nothing prevented him from filing a
petition before the limitations period expired.”) (internal quotation marks and footnote omitted);
Turner v. Johnson, 177 F.3d 390, 392-393 (5th Cir.) (per curiam) (“Turner cannot show that the
limitations period has rendered his habeas remedy inadequate or ineffective. We therefore reject
Turner’s claim that § 2244 is unconstitutional.”), cert. denied, 120 S.Ct. 504 (1999); Davis v.
Bumgarner, 201 F.3d 435 (Table), 1999 WL 1032617 (4th Cir. 1999) (per curiam) (unpublished
disposition) (“[T]he limitations period for § 2254 petitions in 28 U.S.C.A. § 2244(d) (West Supp.
1999) does not violate the Suspension Clause of the Constitution.”); Hampton v. Madding, --
F.3d -- (Table), 2000 WL 800724 (9th Cir. 2000) (mem.) (unpublished disposition) (rejecting
argument that §2244(d) violates the Suspension Clause where petitioner has not made a showing
of actual innocence); Thomas v. Straub, 10 F.Supp.2d 834 (E.D.Mich. 1998) (rejecting
Suspension Clause challenge to limitation period where petitioner does not fit within the actual
innocence exception, if such an exception exists); cf. Weaver v. United States, 195 F.3d 123, 123
(2d Cir. 1999) (“We hold that the application of the limitations period in 28 U.S.C. § 2255 to
dismiss a first motion for relief under § 2255 does not per se violate the Suspension Clause of the
federal Constitution”), cert. denied, 120 S.Ct. 1733 (2000).
judicial decisions.’” Id. (quoting McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct.

1454, 1467 (1991)). The Court held that “judgments about the proper scope of the

writ are ‘normally for Congress to make.’” Id. (quoting Lonchar, 517 U.S. at 323, 116

S.Ct. at 1298).

      In light of the above mentioned exceptions to the one-year limitations period,

and in light of the foregoing precedent, we readily conclude that, as a general matter,

the § 2244(d) limitation period does not render the collateral relief ineffective or

inadequate to test the legality of detention, and therefore is not an unconstitutional

suspension of the writ of habeas corpus.

      Having concluded that §2244(d) does not per se constitute an unconstitutional

suspension, we turn to Wyzykowski’s argument that the limitation period

unconstitutionally suspends habeas relief where the petitioner shows actual innocence

and, therefore, an actual innocence exception must be read into the provision.      In

other words, absent an exception for actual innocence, he contends, § 2244(d) works

an unconstitutional suspension of the writ of habeas corpus when applied to him.

Wyzykowski claims that he is actually innocent of second degree murder, the crime

to which he pleaded guilty, and of first degree murder and burglary, the crimes

initially charged but dropped pursuant to the plea agreement. He contends his new

evidence, in particular his own testimony, establishes that he was actually innocent of

these crimes.
       Wyzykowski’s argument raises a troubling and difficult constitutional question.

Where the petitioner can show actual innocence and § 2244(d)’s limitation period has

expired, does the bar to filing a first federal petition constitute an unconstitutional

suspension of the writ of habeas corpus? The question raises concerns because of the

inherent injustice that results from the conviction of an innocent person,4 and the

technological advances that can provide compelling evidence of a person’s

innocence.5 The courts faced with Suspension Clause challenges to § 2244(d) have

been able to avoid deciding the difficult constitutional issue of whether the clause

requires an exception to §2244(d) for actual innocence because the petitioners were

unable to make a showing of actual innocence. See Lucidore v. New York State

Division of Parole, 209 F.3d 107 (2d Cir. 2000).6

   4
     See Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 866 (1995) (“Indeed, concern about
the injustice that results from the conviction of an innocent person has long been at the core of
our criminal justice system.”).
   5
     See “Confronting the New Challenges of Scientific Evidence: DNA Evidence and the
Criminal Defense,” 108 Harv.L.Rev. 1557, 1571-82 (1995) (discussing use of DNA evidence in
the post-conviction context); Cynthia Bryant, “When One Man’s DNA Is Another Man’s
Exonerating Evidence,” 33 Colum. J. L. & Soc. Probs. 113, 117-34 (2000) (discussing DNA
evidence and its use in postconviction claims of actual innocence, and noting that
“[p]ostconviction DNA testing has resulted in the release of sixty-five inmates from prison”);
Jim Dwyer et al., Actual Innocence: Five Days to Execution and Other Dispatches from the
Wrongly Convicted (2000) (detailing ten cases of convicted defendants ultimately released due
to discovery of evidence of their actual innocence).
   6
     See, e.g., Lucidore, 209 F.3d at 113 (holding that because petitioner failed to demonstrate
actual innocence, the question of whether the Constitution requires an “actual innocence”
exception to AEDPA’s statute of limitations need not be reached); see also Miller, 141 F.3d at
978 (holding that, where petitioner does not contend he is actually innocent, the limitation period
does not render the habeas remedy inadequate and ineffective, but noting that there may be
circumstances–for example a constitutional violation has resulted in the conviction of one who is
       In the instant case, neither the magistrate judge nor the district court addressed

Wyzykowski’s claims of actual innocence. We agree with the Second Circuit that the

factual issue of whether the petitioner can make a showing of actual innocence should

be first addressed, before addressing the constitutional issue of whether the

Suspension Clause requires such an exception for actual innocence. “‘If there is one

doctrine more deeply rooted than any other in the process of constitutional

adjudication, it is that we ought not to pass on questions of constitutionality . . . unless

such adjudication is unavoidable.’” New York City Transit. Auth. v. Beazer, 440 U.S.

582, 99 S.Ct. 1355, 1364 (1979) (quoting Spector Motor Service, Inc. v. McLaughlin,

323 U.S. 101, 105, 65 S.Ct. 152, 154 (1944)). For example, “‘constitutional issues

affecting legislation will not be determined . . . at the instance of one who fails to

show that he is injured by the statute’s operation.’” Id. at 583 n. 22, 99 S.Ct. at 1364

n. 22 (quoting Rescue Army v. Municipal Court, 331 U.S. 549, 568-69, 67 S.Ct. 1409,

1419-20 (1947)); see Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 347, 56


actually innocent–where the limitation period “at least raises serious constitutional questions and
possibly renders the habeas remedy inadequate and ineffective”); Molo, 207 F.3d at 775
(“Without deciding whether proof of factual innocence would toll the limitations period, we find
that Molo does not show that he was factually innocent.”); Thomas, 10 F.Supp.2d at 834
(E.D.Mich. 1998) (rejecting Suspension Clause challenge to limitation period where petitioner
does not fit within the actual innocence exception, if such an exception exists); Rodriguez v.
Arguz, 990 F.Supp. 275, 283 (S.D.N.Y.) (“[A]t least where no claim of actual or legal innocence
has been raised, as long as the procedural limits on habeas leave petitioners with some
reasonable opportunity to have their claims heard on the merits, the limits do not render habeas
inadequate or ineffective to test the legality of detention and, therefore, do not constitute a
suspension of the writ in violation of Article I of the United States Constitution.”), aff’d, 161
F.3d 763 (2d Cir. 1998) (per curiam) (affirming “for substantially the reasons stated by the
district court”); accord Rashid v. Kuhlmann, 991 F.Supp. 254, 260 n. 3 (S.D.N.Y. 1998).
S.Ct. 466, 482, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).

       For several reasons, we decline to address the factual issue whether

Wyzykowski can make a showing of actual innocence, preferring that the district court

do so in the first instance. First, as noted above, the State did not file in the district

court the record of the state court proceedings, and thus there is a complete absence

in the record on appeal concerning whether Wyzykowski could make a showing of

actual innocence. Although it is represented to us that Wyzykowski entered a guilty

plea, we do not have the benefit of any record evidence with respect thereto; for

example, we do not have access to the plea colloquy.7 Second, in any event, such

factual determinations are best made in the first instance by the district court. Indeed,

if on remand, the district court determines that Wyzykowski has made a showing of

actual innocence, we would prefer to have the benefit of the district court’s legal

analysis of the difficult Suspension Clause issue before tackling same ourselves.

Accordingly, we remand to the district court.8

   7
    Accordingly, we make no ruling on issues relating to the effect of the guilty plea.
See Bousley v. United States, 523 U.S. 614, 623-24, 118 S.Ct. 1604, 1611-12 (1998).
   8
      We note that Wyzykowski did not file a direct appeal or any collateral challenge in state
court. In the district court, the State raised the issue of Wyzykowski’s failure to exhaust his
claims. However, the State asserted that it would be futile for Wyzykowski to present his claims
in state court because of the two-year statute of limitations in Fla .R. Crim. P. 3.850(b). For the
first time at oral argument before this panel, the State suggested that there may be an exception
to the two-year statute of limitations in the Rule 3.850(b) in the case of actual innocence. The
State suggested that a dismissal without prejudice for lack of exhaustion might be appropriate,
whereby the state court rather than the federal court would address the factual issue of actual
innocence in the first instance. Again, we decline to address issues relating to exhaustion,
preferring that they be addressed in the first instance by the district court if appropriate.
                               III.   CONCLUSION

      For the foregoing reasons, we vacate the dismissal and remand to the district

court for further proceedings not inconsistent with this opinion.

      VACATED and REMANDED.
DUBINA, Circuit Judge, concurring specially:

       I concur in Chief Judge Anderson’s well-reasoned opinion for the court. I write

specially simply to point out that on remand, I doubt the petitioner will be able to

present sufficient evidence to demonstrate “actual innocence.”            Based on my

experiences as a former trial judge, I find petitioner’s conclusory allegations of “actual

innocence” to be totally inconsistent with what occurs at a guilty plea. Moreover, it

is troubling to me that petitioner waited over five years after his conviction to file his

federal habeas petition. This delay is inconsistent with a claim of actual innocence.

       Nevertheless, I agree with Chief Judge Anderson that this record is not

developed sufficiently for us to make these factual findings in the first instance. That

is a function of the district court.
