Ruvalcaba

MEMORANDUM **

Agapito Valdivia Ruvalcaba appeals the district court’s denial of his petition for habeas corpus as untimely under 28 U.S.C. § 2244 (d)(1). We issued a certificate of appealability with respect to the following issues: (1) Is there an exception to AED-PA’s limitations period for claims of actual innocence? If so, what showing of actual innocence must a petitioner make when no 28 U.S.C. § 2254 petition has ever been filed? (2) Has Ruvalcaba raised an actual innocence claim by asserting both that he is actually innocent of the crime for which he was convicted and that, had counsel presented the defense Ruvalcaba urged, he would not have been convicted? (3) If there is no exception to AEDPA’s limitations period for actual innocence claims, is the lack of any such exception an unconstitutional suspension of the Writ? We need not reach the first and third issues, because we conclude that Ruvalcaba has not raised a claim of actual innocence.

In order to demonstrate actual innocence in a collateral proceeding, a petitioner must present “new reliable evidence that was not presented at trial” and “show that it is more likely than not that no reasonable juror would have…