                                  Micheal WYZYKOWSKI, Petitioner-Appellant,

                                                       v.

   DEPARTMENT OF CORRECTIONS, Harry K. Singletary, Attorney General, Robert Butterworth,
Respondents-Appellees.

                                                  No. 98-4971.

                                         United States Court of Appeals,

                                                Eleventh Circuit.

                                                 Sept. 11, 2000.

Appeal from the United States District Court for the Southern District of Florida.(No. 97-08585-CV-WDF),
Wilkie D. Ferguson, Jr., Judge.

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

        ANDERSON, Chief Judge:

        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



   *
    Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by designation.
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 28 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, 135 L.Ed.2d

827 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323, 116 S.Ct. 1293, 1298, 134 L.Ed.2d 440 (1996)).

In Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), 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 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, 219 F.3d 1298, 1300 (11th Cir.2000)(quoting Sandvik v. United States, 177 F.3d 1269, 1271 (11th



   1
    We note that in Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (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.
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 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.



   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, 143 L.Ed.2d 558 (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, 143 L.Ed.2d 535 (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, 142
L.Ed.2d 173 (1998).
   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. 3086 (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, 142 L.Ed.2d 173 (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, --- U.S. ----, 120 S.Ct. 504, 145 L.Ed.2d 389 (1999); Davis v.
Bumgarner, 201 F.3d 435 (Table) (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), No. 99-17168 (9th
Cir. June 21, 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, --- U.S. ----, 120 S.Ct. 1733, 146 L.Ed.2d 653 (2000).
Turpin, 518 U.S. 651, 116 S.Ct. 2333, 135 L.Ed.2d 827 (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 judicial decisions.' " Id. (quoting McCleskey v. Zant, 499 U.S. 467, 489, 111 S.Ct. 1454,

1467, 113 L.Ed.2d 517 (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



   4
    See Schlup v. Delo, 513 U.S. 298, 325, 115 S.Ct. 851, 866, 130 L.Ed.2d 808 (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.").
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

         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.



   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 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. Artuz, 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.
Khulmann, 991 F.Supp. 254, 260 n. 3 (S.D.N.Y.1998).
v. Beazer, 440 U.S. 568, 582, 99 S.Ct. 1355, 1364, 59 L.Ed.2d 587 (1979) (quoting Spector Motor Service

v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 154, 89 L.Ed. 101 (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, 91 L.Ed. 1666 (1947)); see Ashwander v. Tennessee Valley

Auth., 297 U.S. 288, 347, 56 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

                                               III. CONCLUSION

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

proceedings not inconsistent with this opinion.


   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, 140 L.Ed.2d 828 (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.
        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.
