21-2582-pr Jimenez v. Stanford

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term, 2022

Argued: April 27, 2023 Decided: March 12, 2024

Docket No. 21-2582-pr

RAFAEL JIMENEZ,

Petitioner-Appellant,

— v. —

TINA M. STANFORD, CHAIRPERSON OF THE NEW YORK STATE BOARD OF PAROLE,

Respondent-Appellee.*

B e f o r e:

CABRANES, LYNCH, and LOHIER, Circuit Judges.

Petitioner Rafael Jimenez appeals from a judgment of the United States

* The Clerk of Court is directed to amend the caption as set forth above. District Court for the Southern District of New York (Nathan, J.) denying his petition for a writ of habeas corpus. A New York jury found Jimenez guilty of murder after a trial in which the State’s case-in-chief relied on the testimony of two eyewitnesses. But two decades later, one eyewitness recanted and claimed that a police detective improperly influenced his identification. Two alibi witnesses also came forward. A State court denied post-conviction relief, and Jimenez petitioned for a writ of habeas corpus, claiming actual innocence and Brady violations. The district court found that Jimenez had cast enough doubt on his guilt to excuse his untimely petition, but ultimately denied relief on the merits. Jimenez argues on appeal that the district court erroneously deferred to the State court’s conclusions, held his actual innocence claim to an impossibly high standard, and contravened factual findings made following an evidentiary hearing. His arguments rely on two unsettled legal premises: that a freestanding claim of actual innocence is constitutionally cognizable and may be established by clear and convincing evidence, and that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) does not apply to claims of actual innocence. We assume without deciding that freestanding innocence claims are cognizable. We conclude, however, that AEDPA applies to such claims, and that the district court could not have granted habeas relief under the facts presented in this case because Jimenez’s newly discovered evidence does not satisfy the substantially higher standard of proof required to prove actual innocence. We further conclude that there is no merit to Jimenez’s Brady claim. We therefore AFFIRM the district court’s judgment denying habeas relief. Judge Cabranes concurs in the judgment in a separate opinion.

GLENN A. GARBER (Rebecca E. Freedman, on the brief), The Exoneration Initiative, New York, NY, for Petitioner- Appellant.

MATTHEW B. WHITE, Assistant District Attorney (David M. Cohn, Assistant District Attorney, on the brief), for Darcel D. Clark, District Attorney, Bronx County, Bronx, NY, for Respondent-Appellee.

2 Parvin D. Moyne and Andrew A. McWhorter, Akin Gump Strauss Hauer & Feld LLP, New York, NY; Juliana C. DeVries and Zara H. Shore, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Amici Curiae Centurion Ministries, The National Association of Criminal Defense Lawyers, The New York State Association of Criminal Defense Lawyers, The Center for Appellate Litigation, and The Legal Aid Society, in support of Petitioner-Appellant.

GERARD E. LYNCH, Circuit Judge:

This is a troubling case about a weakly supported thirty-year-old murder

conviction that may have condemned an innocent teenager to decades in prison.

It is troubling because, despite our considerable doubt regarding the petitioner’s

guilt, we are bound to conclude that he is not entitled to a writ of habeas corpus

based only on the contention that he is, in fact, innocent.

Petitioner-Appellant Rafael Jimenez appeals from a judgment entered on

September 15, 2021, in the United States District Court for the Southern District of

New York (Alison J. Nathan, J.), denying a writ of habeas corpus pursuant to

challenging his New York State conviction for second degree

murder in the 1992 shooting of Michael Brana. The prosecution’s case-in-chief

relied on identifications by two eyewitnesses to prove Jimenez’s guilt. Then,

3 almost twenty years after the trial, one eyewitness recanted his testimony and

claimed that the investigating detective had fed him misleading information that

improperly influenced his courtroom identification of Jimenez. Two alibi

witnesses, who had not testified at trial, also came forward. Jimenez sought relief

from his conviction, claiming that he is factually innocent and that a

Brady/witness tampering violation tainted the fairness of his trial.

Despite the thin remaining evidence of his guilt, a State court declined to

hold an evidentiary hearing and denied post-conviction relief on the ground that

Jimenez had not proven his innocence, in large part because the court did not

believe the recanting eyewitness or the alibi witnesses. People v. Jimenez (“Jimenez

I”), No. 7631/92,

, at *5-12 (N.Y. Sup. Ct. Feb. 13, 2015). Jimenez

next filed an untimely petition for a writ of habeas corpus. After a magistrate

judge held an evidentiary hearing at which Jimenez’s witnesses testified (the

“gateway innocence hearing”), the district court entered findings that partially

contravened the State court’s decision, concluding that Jimenez had presented a

sufficiently credible and compelling case of actual innocence to excuse the

untimeliness of the petition. Jimenez v. Lilley (“Jimenez II”), No.

16cv8545(AJN)(RWL),

, at *1 (S.D.N.Y. June 7, 2018).

But when the district court reached the merits of Jimenez’s claims, it

4 denied his petition for a writ of habeas corpus. Jimenez v. Stanford (“Jimenez III”),

, 764 (S.D.N.Y. 2021). It chiefly ruled that, although Jimenez’s

new exculpatory evidence was compelling enough to meet a high standard of

proof for the purpose of excusing a procedural default, the same body of

evidence did not meet the even higher standard required for freestanding claims

of actual innocence and to overcome the deference to State court decisions

mandated by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”),

(d).

.

Jimenez raises numerous objections on appeal. Most are addressed to the

extraordinarily high hurdles set before freestanding innocence claims, including

the central problem that to date no federal court has recognized the existence of

such a claim as a basis for granting the writ. He also argues that the deference

owed to State court decisions on the merits of habeas claims under AEDPA,

(d), does not apply to freestanding claims of actual innocence, and

that the newly surfaced evidence meets the heightened standard of proof

required to demonstrate his factual innocence.

We disagree. Although we assume arguendo that freestanding claims of

actual innocence are cognizable, and additionally assume that Jimenez can

overcome certain other contested threshold barriers, we hold that freestanding

5 actual innocence claims, even if cognizable, are evaluated under AEDPA’s

deferential standard, and that the standard of proof associated with such claims

exceeds the proof of innocence required to excuse a belated petition. Accordingly,

our analysis is constrained by AEDPA and the high standard applicable to

freestanding innocence claims.

Under these legal constraints and on the facts of this case, the district court

properly found that it could not grant Jimenez habeas relief. The evidence

incriminating Jimenez is not compelling. Yet the newly surfaced exculpatory

evidence, while troubling, is also subject to question. Even accounting for the

expanded record developed in the district court, Jimenez – despite casting

serious doubt on his guilt – has not carried the burden of proving his actual

innocence under the standards set by AEDPA and the Supreme Court. Finally,

like the district court, we find no merit in Jimenez’s sole remaining claim for

relief based on an alleged Brady violation at his trial.

We do not arrive lightly at these conclusions. We doubt that a reasonable

jury would convict Jimenez in a new trial if presented with all of the evidence

tending to prove his innocence. But doubt alone – even considerable doubt – is

not enough to authorize us to grant a writ of habeas corpus on a claim of actual

innocence. Therefore, on de novo review, we find no error in the district court’s

6 analysis, and AFFIRM the judgment denying Jimenez’s petition for a writ of

habeas corpus.

BACKGROUND

When assessing a claim of innocence for the purpose of considering

whether to overcome a procedural bar to a habeas petition, courts are obliged to

“consider all [record] evidence, old and new, incriminating and exculpatory,

without regard to whether it would necessarily be admitted under rules of

admissibility that would govern at trial.” House v. Bell,

(2006)

(internal quotation marks omitted), quoting Schlup v. Delo,

(1995). In addressing the merits of a habeas claim, the Supreme Court has held

that review under AEDPA,

(d)(1), “is limited to the record that

was before the state court that adjudicated the claim on the merits.” Cullen v.

Pinholster,

(2011).1 As a result, our summary of the factual record

on appeal is necessarily lengthy and requires a meticulous assessment of the

1 Jimenez argues that this restriction on the scope of evidence available for our review does not apply to an actual innocence claim. We address that contention below.

7 differing evidentiary materials derived from Jimenez’s original trial, the State

court post-trial record, and the record of the “gateway” federal court hearing.2

I. The Murder of Michael Brana

Michael Brana was shot outside his apartment building on June 25, 1992, in

front of his wife, Carmen Velazquez,3 and his friend and neighbor, Harry Ramos.

Brana was home at the time only because Velazquez had told him by telephone

that a group of men had harassed her earlier that day, including one man who

spat at her, when she left a neighborhood bodega with her minor stepdaughter.

Brana left work early, arrived home around 3:00 p.m., and then stood outside the

building with Ramos, who urged him not to fight the harassers because they

were dangerous. Velazquez joined them some time between 4:00 or 4:30 p.m.

Five men approached the trio at around 5:00 p.m. Accounts differ as to

what occurred next. At trial, Velazquez testified that a short man stepped

forward and taunted Brana in Spanish, and that she knew from his accent that he

2 Unless otherwise noted, the descriptions of underlying events in this section of the opinion are drawn from witness testimony and documentary evidence entered at Jimenez’s trial. 3 Velazquez’s surname is inconsistently spelled in the record, varying between that spelling and “Velasquez.” We use “Velazquez” for the sake of consistency, noting that Jimenez’s brief on appeal uses both spellings.

8 was from the Dominican Republic. She said the short man asked “if the guy

behind him was the guy that [Brana] was looking for,” and after Brana

responded that he was “not looking for anybody,” the short man stepped aside

and the man standing behind him fired three shots, killing Brana. App’x 251-52.

Velazquez was about eleven feet away and saw the shooter’s face for about thirty

seconds. She then fled indoors and called the police. She never heard the shooter

speak.

Ramos testified at trial to a slightly different sequence of events: that

almost as soon as the group of men approached, one of them punched Brana, and

when Brana moved to fight back, the assailant stepped aside and another man

standing behind him fired four shots.4 Ramos recognized the shooter as a man he

knew by the nickname “Monaguillo,” whom he had seen around the

neighborhood. He testified that, just before opening fire, Monaguillo said to

Brana in Spanish, “[H]ey cocksucker what is it that you want?”5 Id. at 340. The

4 As noted above, Velazquez testified that she had heard three shots. At trial, the medical examiner who had performed the autopsy confirmed that there had been four gunshot wounds in Brana’s body, including a bullet wound to the head. 5 In his recantation testimony at the gateway innocence hearing, Ramos departed from his trial testimony by claiming that he did not see all four shots because he hid under a tree during the shooting.

9 men then fled.

Importantly, Ramos testified at trial in Spanish through an interpreter, so

the jury heard only the English translation of what the shooter said to Brana.

When Ramos recanted almost two decades later, he attested that the shooter used

a particular Spanish word translated as “cocksucker” in English: the exclusively

Dominican slur “mamaguevo,” which Ramos insists would not be used by

Spanish-speakers of any other national origin. The significance of the shooter’s

word choice, especially as a means of identifying him or determining his

ethnicity, was never an issue at trial.

II. The Arrest of Rafael Jimenez

A. Eyewitness Descriptions

About a half hour after the shooting, New York police detective Floyd

Coor interviewed Velazquez in her apartment, in the presence of another

detective, Kenneth Thompson. The narrative portion of the police report, signed

by Detective Coor, recorded that she described the man who had harassed her

earlier that day as a five-foot, six- or seven-inch tall Dominican man, roughly 23

10 or 24 years old, with long black hair in a Jheri curls hairstyle,6 sporting a

mustache, wearing a white tank top and denim shorts, and driving a red sports

car. In the preset fields for entering a suspect’s description at the top of the form,

however, the report describes the shooter slightly differently: a Hispanic male,

aged 25 or 26, about five feet, nine inches in height, with a light mustache and

goatee, and wearing a white tank top and khaki shorts.7

The report does not clearly indicate whether the shooter and the harasser

were different men, or whether these were inconsistent descriptions of the same

person. As explained below, at trial, Velazquez insisted that she never saw the

man who harassed her and that the only physical description she gave to

Detective Coor was of the shooter. Detectives Coor and Thompson, however,

testified that she described two different people – the harasser and the shooter.

6 Jheri curls, also sometimes spelled in the record as “Geri curls,” and spelled as “Jerry curls” in the police report, is a distinctive hairstyle that was popular between the late 1970s and early 1990s. Because the style is named after its creator, Jheri Redding, we use the spelling “Jheri curls” in this opinion. See Karen Grigsby Bates, Comer Cottrell, Creator of the People’s Jheri Curl, Dies at 82, NPR (Oct. 11, 2014), https://perma.cc/532A-UXXX; see also Burns v. Mays, 598 U.S. ----,

, 1078 (2023) (Sotomayor, J., dissenting) (adopting the spelling “Jheri curls”). 7 The top half of the police report form was not offered into evidence at trial, but was used only to refresh the witnesses’ recollections on the stand.

11 B. Photographic Arrays

After the on-site interview, Velazquez went to a police precinct with

Detective Thompson, who showed her a photographic array consisting of

pictures of male Dominicans. The array did not include a photograph of Jimenez,

and Velazquez did not identify anyone. Detective Thompson interviewed Ramos

at a different precinct the next day, June 26, and recorded in a police report that

Ramos told him that the shooter was a male Dominican “known to [Ramos] as

‘MONAGUILLO,’” whose pre-shooting exchange of words with Brana suggested

to Ramos that the shooter had also been the man who had harassed Velazquez.

. Detective Thompson testified at trial that he did not ask Ramos for a

description of Monaguillo because Ramos already “knew the subject.”

.

Accounts of what happened next again differ. Detective Thompson’s

contemporaneous police report recorded that, after the interview, Ramos went

through a photographic array containing several hundred pictures and “picked

out a photo of a subject known to this dept. as RALF JIMENEZ.”8

. At the

8 At a pretrial hearing, Detective Thompson testified that the array that Velazquez looked at on June 25 was an entirely different set of photographs than the array reviewed by Ramos on June 26. The photograph of Jimenez was a black-and-white mugshot taken in March 1991. In that picture, he sports a mustache, goatee, and close-cropped hair – no Jheri curls. Additionally, Jimenez’s

12 gateway innocence hearing held over twenty years later, however, Ramos

testified that Detective Thompson showed him only two or three photographs,

and that he had refused to select one because Monaguillo was not among them,

even though police officers urged him to select a particular photograph and told

him that Brana’s wife had already selected it. Detective Thompson, testifying at

the same hearing, stated that he had no recollection of that day, but insisted that

he would never show a witness a limited selection of photographs or suggest that

the suspect was among them.

In any event, it is undisputed that on that same day, Detective Thompson

obtained an updated photograph of Jimenez,9 included it in a photographic array

with five other subjects, and showed the array to Velazquez, who positively

identified Jimenez. At a pretrial hearing, Detective Thompson testified that

Velazquez identified Jimenez “almost immediately.”

.

real name is not Rafael or Ralf Jimenez, but Alfredo Jimenez. Police records identified him by the name “Ralf” or “Rafael” because Jimenez, practicing the wisdom of teenagers, had previously given that name to police in an unsuccessful effort to throw them off from his drug dealing activities. 9 Jimenez’s features in the updated photograph, a mugshot taken in color and dated March 25, 1992, were not much different from the March 1991 black-and- white photograph; he had the same facial hair and close-cropped hair. There were no Jheri curls.

13 C. Lineup

Detective Thompson could not immediately locate Jimenez at his known

locations, so in September 1992, he prepared and circulated Jimenez’s March 1992

photograph on a “Wanted” poster. The poster described Jimenez as a Hispanic

male, aged seventeen, five-feet, eight-inches tall, with a medium complexion and

short, black, curly hair.

Jimenez, however, was never very far from where Detective Thompson

had been searching. He had been serving a probationary sentence for a prior

drug offense and semi-regularly reported to his probation officer between March

and November 1992 at a Bronx location close to both his own residence and the

scene of the shooting. His probation officer testified at trial that Jimenez came to

appointments on June 23 and June 30 – just before and after the murder – and

ultimately came to about ten meetings during the summer of 1992 (and missed

about seven meetings).

It was not until October 14, 1992, that Detective Thompson arrested

Jimenez several blocks from the crime scene. The next day, Jimenez was placed in

the third position of a six-man lineup at a police precinct. Ramos arrived with his

father and viewed the lineup at 7:12 p.m., but – according to Detective

14 Thompson’s police report – he was “unable to identify” Jimenez.

.

Detective Thompson testified at trial that Ramos “refused to make an

identification.”

. At a pretrial hearing, Detective Thompson went further

and expressed his belief that Ramos had refused to identify Jimenez only because

his father, speaking in Spanish, appeared to discourage Ramos from getting

involved. At the 2017 gateway innocence hearing, Ramos affirmed that he did not

pick anyone out of the lineup and that his father told him not to get involved, but

alleged that Detective Thompson pushed him to identify Jimenez by saying “it’s

number so and so.”

. Detective Thompson denied that allegation.

Velazquez next viewed the lineup at 7:16 p.m. and positively identified

Jimenez. The reliability of that identification, however, was arguably diminished

by an encounter Velazquez had on her way to the lineup. Brana’s sister, who had

copies of the Wanted poster with Jimenez’s face on them in the backseat of her

car, had driven Velazquez partway to the precinct. Velazquez saw the posters

and discussed them with her sister-in-law. At trial, Velazquez admitted that she

saw the Wanted poster just before viewing the lineup, but claimed that she

picked Jimenez out of the lineup shortly thereafter based only on her observation

of the shooter, not from the poster.

15 III. The Trial

Jimenez was principally charged with second degree murder in violation

of New York Penal Law § 125.25(2). In January 1993, his then attorney filed a

pretrial Notice of Alibi signaling his intent to call an alibi witness named

Raymond Rosario. That intention was never acted on, however. The possibility of

raising an alibi defense would not come up again until the pretrial hearing in

September 1994, when Jimenez’s new defense counsel explained that he “had

three alibi witnesses a long time ago,” but for “reasons uncertain to [him] at this

time,” he could not bring the witnesses to court.10 Id. at 170.

The trial lasted only four days.11 The State’s case-in-chief relied entirely on

eyewitness identification. Although the prosecutor’s opening statement to the

jury forecast only Velazquez as the State’s principal witness, eventually, as

described more fully below, both Velazquez and Ramos identified Jimenez from

10 Jimenez’s first attorney filed the Notice of Alibi on January 26, 1993. At some later point he obtained new counsel, Rudy Velez, who represented him at trial. 11 The State called six witnesses (Brana’s sister, the first police officer on the scene, Velazquez, Ramos, the medical examiner, and Detective Thompson), and the defense called two (Detective Coor and Jimenez’s probation officer). Jimenez did not testify.

16 the witness stand.12 The defense’s opening also previewed that, because “this case

is about mistaken identification,” it would primarily attack the reliability of

Velazquez’s identification. Id. at 210-11. Neither opening statement mentioned

Ramos.

A. Velazquez

Velazquez and Ramos testified on the second day of trial. Velazquez took

the stand first and, after delivering her account of the killing, identified Jimenez

as the shooter in the courtroom. When asked how she described the killer to

Detective Coor after the shooting, she testified that the killer was Dominican,

about 25 years old, and had black hair about three to four inches in length in “like

[Jh]eri curls.” Id. at 257. When asked to compare that description to Jimenez’s

appearance that day in the courtroom, she testified that he looked different than

he had on the day of the shooting because “[h]is hair is shorter,” id. at 262, but

said that she otherwise had no trouble recognizing him as the shooter.

On cross-examination, Velazquez denied that she gave two different

descriptions – one of the harasser and one of the killer – to Detective Coor right

12 Indeed, at the pretrial hearing, the prosecutor represented that the State’s case relied on Velazquez as the “one identifying witness.” Id. at 168 (emphasis added).

17 after the shooting. Rather, she testified that while she told Detective Coor about

the harassment, she “didn’t give him a description of the person who was

harassing [her],” id. at 270, and insisted that she never even saw the harasser. She

maintained instead that she only “described the killer,” id. at 276, including that

the killer had “long, black [Jh]eri curls,” id. at 282, and that he “was Dominican,”

id. at 293.13 She explained that she knew the killer was Dominican not from his

accent (because she did not hear him speak) but that she could “tell this [was] a

group of Dominicans” from the accent of the short man who first taunted Brana.

Id. at 295. Finally, she testified that she had also described the killer to Detective

Thompson, and that Detective Coor had not recorded on the police report every

detail of the shooter’s description that she had given to him because the top

portion of the report recorded the suspect as Hispanic (rather than Dominican)

and omitted the color of his skin and his “curly hair.” Id. at 328.

13 It is difficult to interpret from a cold record, but the trial transcript indicates that Velazquez’s demeanor on cross-examination was hesitant and less than confident. The transcript records that in response to defense counsel’s questioning about her post-shooting description, she frequently went silent or repeated that she told Detective Coor “a lot of things.” Id. at 267-68, 271, 274, 281, 290. Still, even though Velazquez’s testimony contradicted that of the detectives, her story remained internally consistent. She did not contradict herself; she consistently maintained that she never saw the harasser or told Detective Coor what he looked like, and that she had described only the killer.

18 Velazquez’s testimony conflicted with the testimonies of both detectives.

Detective Thompson, called by the prosecution, testified that Velazquez had

described two people, not one, in the post-shooting interview. And Detective

Coor, called by the defense, more expansively testified that when he first arrived

at the scene (before Detective Thompson), Velazquez gave him a description of

the harasser, not the shooter, and told him that the harasser was a different man

who sported long black Jheri curls, wore denim shorts (not khakis), and drove a

red sports car. Detective Coor further testified that when Detective Thompson

arrived later, it was he who took down Velazquez’s separate description of the

shooter – “a male Hispanic 25, 26,” wearing khakis, with no mention of curly hair,

which is the description appearing in the preset fields “on the top” of the police

report.14 Id. at 420. Detective Coor insisted that, based on what Velazquez told

him, the shooter was not the same person as the harasser, though she had said

that both were “male Dominican[s].” Id.

Velazquez’s description of the shooter, moreover, did not match the

description of Jimenez’s appearance around the time of shooting as captured in

14 Detective Coor testified that Detective Thompson took down that description and then distributed it to other police officers on the off chance that the shooter could be apprehended near the scene.

19 Jimenez’s mugshots, and as recounted by Jimenez’s probation officer at trial.

Neither the March 1991 nor March 1992 mugshots of Jimenez that had been in the

photographic arrays, nor the October 1992 mugshot taken at his booking, showed

him wearing anything but short, mostly straight, hair – not Jheri curls, or even

hair long enough to be styled into Jheri curls. Jimenez’s probation officer, who

had seen him regularly in face-to-face meetings during 1992, also testified that in

June 1992, Jimenez had short hair similar to how he looked in the courtroom, and

that he had never seen Jimenez with long Jheri curls (although he admitted that

his recollection of Jimenez’s appearance two years prior to the trial was vague).

B. Ramos

Ramos took the stand immediately after Velazquez and delivered brief,

wavering testimony through a translator.15 He testified to his recollection of the

shooting, including hearing the man he knew as Monaguillo call Brana the slur

translated in English as “cocksucker.” But he also testified that he had picked

15 Before Ramos took the stand and outside the presence of the jury, the prosecutor stated that Ramos had agreed to testify voluntarily and without a cooperation agreement even though he was, by the time of the trial, serving a prison sentence for an unrelated drug offense. Although there was no cooperation agreement, the prosecutor stated that he had informally promised that he would keep Ramos’s family safe by helping them move from the area.

20 suspect number four in the lineup (not Jimenez), then appeared to change his

mind, saying that he picked no one at all and, in fact, could not remember what

the shooter looked like. He initially resisted the prosecutor’s invitation to identify

Monaguillo in the courtroom, responding that it had been a “long time” since he

recognized him. Id. at 341. Later, after the prosecutor had reminded Ramos of his

prior identification at the precinct, the prosecutor asked Ramos whether he saw

“anyone in the courtroom that look[ed] like” the man who shot Brana, and

Ramos pointed to Jimenez. Id. at 345.

On cross and redirect examination, Ramos described the basis for his

identification: he was positive the shooter was Dominican,16 he recognized the

killer from having seen Monaguillo before, and he knew the shooter’s ethnicity

because he had known Monaguillo “for about a year or two.” Id. at 352. Asked

once more by the prosecutor if Monaguillo was in the courtroom – after the

prosecutor assured him that “nobody is going to hurt you” and “[y]ou swore to

tell the truth” – Ramos indicated Jimenez. Id. When defense counsel asked on

recross if Ramos would describe the shooter as having Jheri curls, Ramos did not

16 As further discussed below, Jimenez is Puerto Rican, not Dominican. Although both identifying witnesses testified that the shooter was Dominican, defense counsel did not introduce any evidence that Jimenez was not.

21 answer directly, instead responding that the shooter’s hair was “[n]ot too long.”

Id. at 354.

C. Closing and Verdict

The defense’s closing argument followed its previewed strategy of arguing

that Velazquez’s identification was unreliable, primarily pointing to the short

time she had to observe the shooter (thirty seconds), her distress and divided

attention, her arguably tainted lineup identification, and the contradiction

between her testimony and her “[t]otally inconsistent” prior statements to

Detective Coor. Id. at 475. Defense counsel mentioned Ramos only briefly,

arguing that Velazquez’s account was not corroborated by Ramos’s wavering,

noncredible identification.

The prosecutor, however, appeared to recognize that Velazquez’s

testimony was weaker than expected, because even while he argued that any

inconsistencies in the details of Velazquez’s testimony were attributable to her

trauma and to a possible mistake by Detective Coor, he acknowledged she was

“not the best witness in the world.” Id. at 598. He instead assured the jury that it

could rely on Ramos as a disinterested observer of the shooting, remarking that,

even though he had not expected Ramos to identify Jimenez because Ramos was

22 clearly afraid of Jimenez, Ramos had “summ[on]ed up the courage . . . [and]

finally did the right thing.” Id. at 598-99.

The jury deliberated for two days. It first asked for a readback of Ramos’s

description of the shooter, Velazquez’s testimony about the harasser, Detective

Thompson’s testimony, and all physical evidence, and then it briefly deadlocked.

After requesting another readback of Ramos’s testimony, the jury returned a

guilty verdict on October 4, 1994.

Jimenez was subsequently sentenced to an indeterminate term of 25 years

to life in prison. His conviction and sentence were affirmed on direct appeal.

People v. Jimenez,

(1st Dep’t 1996) (rejecting Jimenez’s

unpreserved objection to the admission of Velazquez’s lineup identification

based on her “fortuitous viewing” of the Wanted poster), leave to appeal denied,

(1996). In 2001, he unsuccessfully moved pro se to vacate the judgment

pursuant to New York Criminal Procedure Law § 440.10.

He did not try again for twelve years.

III. Newly Surfaced Evidence

A. Ramos’s Recantation

Nineteen years after Jimenez’s trial, Ramos recanted his testimony and

23 declared that he was “completely certain that the person incarcerated is

innocent.” App’x 68. That certainty was based on Jimenez’s ethnicity. In a

handwritten affidavit dated April 11, 2013,17 Ramos averred that he knew that the

killer, the man he recognized as Monaguillo, was Dominican because he heard

him utter the exclusively Dominican slur “mamaguevo” just before shooting

Brana. Following a chance encounter between Ramos’s wife and Jimenez’s sister

in 2010, Ramos learned that Jimenez was actually Puerto Rican, not Dominican.

That was when he realized that Jimenez was innocent, because “we Puerto

Ricans use cabrón” for the same slur, rather than “mamaguevo.” Id. at 67 (accent

added).

That distinction in dialect was crucial, Ramos alleged, because he identified

Jimenez in the courtroom at his trial only because Detective Thompson

improperly influenced him. Ramos alleged that Detective Thompson, who had

transported Ramos to the courthouse, misleadingly assured him that Jimenez

was Dominican just before he took the stand. Specifically, Ramos averred:

17 Ramos wrote his affidavit in Spanish. A typed English translation was entered into the record, but there is no indication of who made the translation. Additionally, the English translation of Ramos’s affidavit recorded 2012 as the year it was written, but Ramos’s handwritten, notarized statement in Spanish records the year as 2013.

24 [T]he black detective [Thompson] brought me to court to testified and the placed me in a small room and showed me a picture allegedly of the person who killed [Brana] when they showed me the picture I asked if he was Dominican o Boricua [Puerto Rican] and he told me that he was Dominican I asked him because I wanted to make sure that he was not Puerto Rican because I knew that the person who killed him was Dominican. And when he showed me the picture I was still uncertain that its why I asked the detective if he was Dominican o Puerto Rican when he said to me that he was Dominican I thought that they had him and I thought that he was the one who killed [Brana]. When I asked him again if he was Dominican and he said he was I trusted the detective and the wife because the wife said he was that’s what the detective said and I trusted him. When I was brought up to testify the detective told me not to look at anyone in the court when I was asked if he was there I then tried to look but I was still confused and had to point out the person that was there.

Id. at 67-68 (spelling and grammar retained).

At the gateway innocence hearing, Ramos further alleged that Detective

Thompson not only showed him a photograph of Jimenez, but told him that

Jimenez was the shooter, instructed him to point him out in the courtroom

“without looking at him,” and promised him “all manner of castles and

treasure.” Id. at 1044-45. Ramos maintained that he identified Jimenez at trial

only “because of the pressure” applied by Detective Thompson. Id. at 1047.

25 Detective Thompson, at the same hearing, testified that he could not recall any

such conversation with Ramos but denied that he would ever tell a witness that

another witness already identified the defendant; he furthermore insisted that at

the time, he did not understand any difference between Puerto Ricans and

Dominicans, and classified all Spanish-speakers as Hispanics.

B. Alibi Witnesses

In 2013 and 2014, two former friends of Jimenez, Amancio Delgado and

Danny Hernandez (the “Alibi Witnesses”), wrote affidavits swearing that on June

25, 1992, the day of the shooting, they had been with Jimenez all day on a street

corner about a mile from Brana’s apartment. That day was still memorable two

decades later because, Hernandez averred, a group of his friends including

Jimenez (nicknamed “Spaz”) were hanging out on their usual corner of

Townsend Avenue and Mt. Eden in the Bronx to celebrate Hernandez’s

eighteenth birthday. They were there from the early afternoon until about 10:00

or 11:00 p.m. After Jimenez’s arrest, Hernandez approached Jimenez’s attorney

and offered to testify, but he was never called.18 Hernandez never spoke with

18 The notes of Jimenez’s trial counsel, Velez, corroborate that Hernandez came forward with the alibi about celebrating his eighteenth birthday with Jimenez on the day of the murder. Velez even had a copy of Hernandez’s birth certificate. Yet

26 Jimenez again after his conviction.

Delgado similarly recounted that he regularly hung out with his friends on

that street corner, and he had been with Jimenez (also nicknamed “Tito”)

celebrating Hernandez’s birthday between noon and around 10:00 p.m. Delgado

asserted that he also met with Jimenez’s attorney after the arrest to discuss his

willingness to be a witness, but he, too, was never called, and he ultimately lost

contact with Jimenez over five years prior to writing his affidavit. Finally,

Delgado, who is Dominican, averred that there was no mistaking Jimenez as

anything but a “typical New York Puerto Rican” who “speaks Spanish with a

heavy Puerto Rican accent,” and that “mamaguevo” is a “word that only

Dominicans would say, and it’s not a word that [Jimenez] would be expected to

say, and [Delgado had] never heard him say it.” Id. at 60.

The Alibi Witnesses gave few additional details of relevance in their live

testimony at the gateway innocence hearing. Hernandez testified that Jimenez

Velez did not explain why he never called Hernandez, and Jimenez’s current counsel asserts that when he spoke with Velez, Velez could not remember the case or why he forwent an alibi defense. Since Jimenez does not claim that his conviction was tainted by ineffective assistance of his trial counsel, see Strickland v. Washington,

(1984), we do not speculate about what, if any, strategic reason his defense attorney may have had for deciding not to pursue an alibi defense.

27 had been with him most of the day, and in fact arrived at the corner before he

did, but admitted that they had each separately left a few times to buy beer and

marijuana and use the bathroom. Delgado, on the other hand, testified that

Jimenez never left his line of sight that day.

IV. State Court Decision

In 2014, Jimenez once more sought to vacate his conviction in State court

pursuant to New York Criminal Procedure Law § 440.10, submitting in support

Ramos’s affidavit, the affidavits of the Alibi Witnesses, and the affidavit and

expert report of a sociolinguist.19 Jimenez I,

, at *2. Jimenez

19 In her expert report and testimony at the 2017 gateway innocence hearing, the sociolinguist attested to reviewing Ramos’s affidavit and explained the ability of native Spanish-speakers to identify another speaker’s nationality by their dialect. Her testimony primarily corroborated Ramos’s contention that he could distinguish Spanish-speakers from the Dominican Republic from speakers from Puerto Rico by their use of a single word. However, her report had been rendered before she learned, from the State’s voir dire at the gateway innocence hearing, that Jimenez had “friends who were Dominican.” App’x 1085-86. She conceded that it was “possible” that a Spanish-speaker could borrow terms from other speakers with whom he associated.

. The parties debate the reliability of her expert conclusions. Like the magistrate judge who presided over the gateway innocence hearing, we view the sociolinguist’s contribution to the merits of this case as offering only minimal support to the fundamental issue of Jimenez’s actual innocence claim, as her testimony bears only on the believability of Ramos’s ability to distinguish between Spanish-speakers of different national origins by their manner of speech; it does not independently corroborate his (and Delgado’s) specific discussion of

28 claimed that he was actually innocent, and that Detective Thompson’s alleged

conversation with Ramos prior to his trial testimony constituted witness

tampering and violated the rule of Brady v. Maryland,

(1963), as

exculpatory evidence withheld from the defense. Jimenez I,

, at *1-

2.

The State court denied Jimenez’s motion without holding an evidentiary

hearing.

. New York State law recognizes freestanding claims of

actual innocence, but the State court, citing federal law, chiefly held that Jimenez

failed to make a prima facie case of innocence because Ramos’s recantation story

was “implausible,” and in any event insufficient to establish Jimenez’s innocence.

. The State court found it notable that Ramos’s affidavit was silent on the

“foundation for defendant’s initial identification,” which was that Ramos had

claimed that he knew Monaguillo before the shooting and that Jimenez was

Monaguillo.

. It also pointed to the fact that the jury heard both

eyewitnesses testify that each of them believed the shooter to be Dominican, but

the Dominican origin of the reported slur. Jimenez v. Lilley, No. 16cv8545(AJN)(JCF),

, at *13 (S.D.N.Y. Oct. 10, 2017). Because we assume that Ramos’s story is believable, we do not further address the sociolinguist’s opinion.

29 that Velazquez did not base her judgment of the killer’s national origin on

anything the shooter said because she claimed that she did not hear him speak at

all.

.

The State court further found that Ramos’s initial resistance to identifying

Jimenez in the courtroom did not indicate coercion, but merely demonstrated

that he had been a “hesitant, reluctant witness who was fearful to make an

in-court identification and only did so when reminded that nobody was going to

hurt him and that he swore to tell the truth.”

. The State court accordingly

rejected out of hand “the specious proposition that the two eyewitnesses, both of

whom were Puerto Rican, would never erroneously identify a fellow Puerto

Rican as Dominican.”

It reasoned in the alternative that, even if Ramos were

credible, his recantation still could not demonstrate that Jimenez’s innocence was

“highly probable” in light of Velazquez’s unequivocal in-court identification.

. Instead, Ramos’s recantation had merely “cast[] doubt” on Jimenez’s guilt,

because, “at most,” it was evidence in “direct conflict” with Velazquez’s

identification.

The State court also found that the Alibi Witnesses’ affidavits lacked

credibility because they claimed to remember their activities on a specific date

30 over two decades ago.

. But even overlooking credibility, the court

reasoned that the alibi, taken as true, still placed Jimenez within a mile of the

crime scene – close enough that the group could have “migrated the short

distance to the scene of the homicide.”

The State court also pointed to

Delgado’s affidavit in support of its inference that, contrary to any suggestion of

a sharp social separation between Dominicans and Puerto Ricans in the Bronx in

the early 1990s, Jimenez’s teenage group of friends included at least one

Dominican from whom he could have easily picked up a Dominican profanity.

Finally, the State court found there had been no Brady violation stemming

from Detective Thompson’s alleged statement to Ramos about Jimenez’s ethnicity

because that conversation was not material exculpatory evidence.

.

The State court’s judgment became final when Jimenez’s request for permission

to appeal the judgment was denied in November 2015.

V. Gateway Innocence Hearing

Jimenez filed a petition for a writ of habeas corpus a few days after

expiration of the one-year deadline to petition from a final judgment pursuant to

31

(d)(1). Jimenez v. Lilley (“Jimenez R&R”), No. 16cv8545(AJN)(JCF),

, at *1 (S.D.N.Y. Oct. 10, 2017). Accordingly, in June 2017,

Magistrate Judge James C. Francis held a two-day evidentiary hearing to

determine whether Jimenez’s untimeliness was excusable under the equitable

exception for gateway innocence as set forth in Schlup v. Delo,

(1995). Jimenez R&R,

, at *7-9. Ramos, the Alibi Witnesses,

Detective Thompson, Jimenez, and the sociolinguist testified.

.

As relevant here, Magistrate Judge Francis found that, even according the

factual conclusions of the State court a presumption of correctness as required by

AEDPA,

(e)(1), the detailed and cross-consistent testimonies of

Ramos and the Alibi Witnesses rebutted the State court’s credibility

determinations by clear and convincing evidence. Jimenez R&R,

,

at *10-13. He also found that Jimenez had established a compelling claim of

actual innocence in part because Velazquez’s description at trial contradicted the

police report recorded by Detective Coor and, “[m]ost importantly,” because her

description did not match Jimenez’s appearance, undermining the only

remaining inculpatory evidence linking Jimenez to the crime.

.

Moreover, even though Jimenez’s alibi did “not eliminate the possibility that Mr.

32 Jimenez committed the crime” because Hernandez admitted that they had

occasionally left the corner, Magistrate Judge Francis found the Alibi Witnesses’

story reliable and – unlike the State court – thought it unlikely that Jimenez could

have left his friends and walked a mile away to Brana’s building without

arousing their suspicion.

. Accordingly, because of “Ms. Velazquez’s

description that does not match Mr. Jimenez, Mr. Ramos’ dubious identification

and eventual recantation, Mr. Jimenez’s plausible alibi supported by two reliable

witnesses, and the weakness of the prosecution’s case,” Magistrate Judge Francis

recommended allowing Jimenez to “pass through the actual innocence gateway”

and avoid the untimeliness barrier to consideration of the merits.

.

The district court adopted that recommendation in full. Jimenez II,

, at *1. It stressed, however, that its gateway innocence findings did not

reflect its ultimate determination on the merits. See

. Shortly thereafter, in

July 2018, Jimenez was released from State prison on parole.

VI. The District Court Opinion

On September 15, 2021, the district court denied habeas relief on the merits

of Jimenez’s claims. Jimenez III, 560 F. Supp. 3d at 764. The court principally held

33 that, “considering the extraordinarily high showing that would be required for a

freestanding claim of actual innocence and the deference due a state court’s

merits adjudication under AEDPA,” it had to deny Jimenez’s actual innocence

claim because he merely “cast considerable doubt on his guilt,” but did not

affirmatively demonstrate “that he did not commit, or could not have committed”

the crime. Id. at 771-72 (emphasis in original) (internal quotation marks omitted),

first quoting House,

(2006); and then quoting Hyman v. Brown,

(2d Cir. 2019). That was so because there remained sufficient doubt

of Jimenez’s innocence, as the Alibi Witnesses did not rule out the possibility that

Jimenez had traveled unnoticed to the scene of the shooting, and Velazquez’s

identification was not wholly unreliable.

. The district court also found

no merit to Jimenez’s Brady/witness tampering claim based on Detective

Thompson’s allegedly misleading remarks to Ramos about Jimenez being

Dominican.

. This appeal followed.20

DISCUSSION

20 The district court issued a certificate of appealability on Jimenez’s freestanding actual innocence claim but declined to enter one as to his Brady/witness tampering claim. Jimenez III, 560 F. Supp. 3d at 774. This Court expanded the scope of this appeal to include that claim. Mot. Order, Jimenez v. Stanford, No. 21- 2582-pr (2d Cir. Mar. 8, 2022), ECF No. 51.

34 Jimenez maintains that he was wrongly convicted of a crime he did not

commit. Under AEDPA, however, federal courts may entertain his petition for a

writ of habeas corpus “only on the ground that he is in custody in violation of the

Constitution or laws . . . of the United States.”

(a). Jimenez raises

many arguments on appeal aimed at reviving his claim of actual innocence and

his Brady/witness tampering claim. For its part, the State rebuts those arguments,

and argues in the alternative that, at the threshold, Jimenez’s petition should be

dismissed as time-barred.

We decide only those issues necessary to our conclusion that the district

court’s decision to deny habeas relief from Jimenez’s State conviction on the

merits, which we review de novo, must be affirmed. Scrimo v. Lee,

(2d Cir. 2019). We also review the “district court’s ultimate finding [relating

to] actual innocence de novo.” Rivas v. Fischer,

(2d Cir. 2012)

(internal quotation marks omitted), quoting Doe v. Menefee,

(2d

Cir. 2004).

As a preliminary matter, however, we note that while we review the

district court’s decision without deference, our authority to grant Jimenez relief is

tightly circumscribed because § 2254(d) of AEDPA requires deference to the

35 judgment of the State court. AEDPA provides that a petition for habeas relief

from a State conviction “shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings” unless the State court’s

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States,”

(d)(1), or was “based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2). As we explain, little federal law on actual innocence has been

established, much less clearly established, so as to make this showing a

straightforward task. Yet we remain troubled in spite of AEDPA because the

newly surfaced evidence of Jimenez’s innocence, compared to Velazquez’s now-

uncorroborated identification, leaves us concerned that he may, in fact, be

innocent of the murder of which he stands convicted.

Nonetheless, our review of the record confirms that Jimenez has not

affirmatively demonstrated his innocence under any plausible set of assumptions

or standard of review. Even after Ramos’s recantation and Jimenez’s newly

introduced alibi, Velazquez’s identification remains as sufficiently incriminating

as it did almost thirty years ago. As a result, AEDPA deference or not, Jimenez

36 has not proven his innocence. Nor has he shown that a Brady violation occurred

at his trial. We must, therefore, deny habeas relief.

I. Freestanding Actual Innocence

The legal landscape of freestanding actual innocence is hostile territory for

a petitioner seeking relief from a state conviction. At least four barriers stand

between Jimenez and his claim for relief. The first is the open question of whether

a freestanding innocence claim is even cognizable at all under federal law,

especially in a noncapital case. The second barrier is the statute of limitations; the

State argues that our analysis ought to stop there because, it contends, the district

court erroneously reached the merits of Jimenez’s claims by finding that he had

sufficiently demonstrated his actual innocence to avoid that obstacle. The third

barrier is the “extraordinarily high” standard of proof that the petitioner must

meet to affirmatively establish innocence, assuming such a claim is cognizable.

Herrera v. Collins,

(1993). Finally, after all these hurdles are

surmounted, the fourth barrier is the deference owed under § 2254(d) of AEDPA

to the merits determinations of a state court when those determinations are not

unreasonable.

Jimenez must surmount each of these barriers to obtain relief on his

37 freestanding actual innocence claim. He cannot. Even assuming that a

freestanding innocence claim is cognizable, that Jimenez’s petition is not time-

barred, and that a habeas court may consider evidence entered at a federal

evidentiary hearing, we hold that a freestanding innocence claim requires a

higher standard of proof than the certainty required to establish gateway

innocence. We additionally hold that AEDPA deference constrains our power to

grant relief on the merits of such claims. Under those standards, Jimenez has

shown, at most, only a probability that a jury would not convict him again at a

new trial. That is not enough, under federal law and on the facts presented in this

record, to establish that Jimenez is entitled to habeas relief.

A. Cognizability

As a first step in assessing the ultimate merits of Jimenez’s petition, we

address his threshold argument that a freestanding claim of actual innocence is

cognizable under the Eighth and Fourteenth Amendments. To this day,

“[w]hether . . . a federal right [based on a claim of actual innocence] exists is an

open question.” Dist. Att’y's Off. for Third Jud. Dist. v. Osborne,

(2009). The Supreme Court has provided scant guidance on the cognizability of a

freestanding right to habeas corpus relief based on a claim of wrongful

38 conviction after a fair trial free of error. Neither it, nor we, nor any of our sister

circuits have recognized the existence of such a right or granted habeas relief

based on such a claim.21 In Herrera v. Collins, the Court merely assumed without

deciding that “in a capital case a truly persuasive demonstration of ‘actual

innocence’ made after trial would render the execution of a defendant

unconstitutional,” but concluded that the petitioner in that case had fallen “far

short” of making that demonstration.

(emphasis added).

More importantly, Herrera announced that the burden of proof for a

“threshold showing” of such a right “would necessarily be extraordinarily high.”

. Because we “assum[e], arguendo, that [an innocence right] exists” for

the purposes of this case, and further assume that its scope extends beyond a

21 Jimenez argues that the Supreme Court implicitly recognized a freestanding claim of innocence in In re Davis, in which the Court transferred a habeas petition in a capital case that had been directly filed in the Supreme Court under its original jurisdiction to the United States District Court for the Southern District of Georgia for factfinding on “whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.”

, 952 (2009). That case, however, never returned to the Supreme Court, see Davis v. Humphrey,

(2011), and in any event, the district court denied relief on the merits after applying AEDPA, see In re Davis, No. CV409-130,

, at *45-46, *61 (S.D. Ga. Aug. 24, 2010). Because we assume arguendo the cognizability of a freestanding innocence claim, we address In re Davis only insofar as it is relevant to Jimenez’s arguments on the appropriate standard of proof and the application of AEDPA to freestanding innocence claims.

39 right against execution, we follow the path endorsed by the Supreme Court and

other courts by bypassing “the difficult questions [recognizing] such a right

would pose,” and turn instead to “the high standard any claimant would have to

meet.” Osborne,

.

Before proceeding, however, it is worth at least noting why those questions

are so difficult. To the lay observer, it may seem intuitively obvious that the

continued incarceration of an innocent person must violate the Constitution.

Indeed, we have no quarrel with that abstract proposition. The most fundamental

problem in making that right the basis of habeas relief inheres in establishing

who decides, and by what standard of proof, that a convicted person is innocent.

How strong must the evidence of innocence be before a federal judge (or a panel

of federal judges) assumes the power to overrule the verdict of a state court and

jury, after a fair trial, that a defendant is guilty beyond a reasonable doubt, based

on evidence that is legally sufficient, if believed, to support the verdict? As

discussed more fully below, the facts of this case exemplify the difficulty of

answering those questions.

B. Gateway Innocence

40 We begin by assuming, without deciding, that Jimenez’s untimeliness has

been excused and thereby bypass the State’s alternative argument that his

petition is time-barred.22 That said, the distinction between the more established

standards of gateway innocence and the unsettled, hypothetical standards of

freestanding innocence hinted at in Herrera is central to our analysis of the merits.

Our discussion therefore starts with a necessary review of the strength of

Jimenez’s actual innocence claim under the threshold standards of gateway

innocence.

Gateway innocence is an equitable exception allowing avoidance of

AEDPA’s one-year limitations period,

(d)(1), on the ground that a

procedural limitation precluding a federal court from hearing the merits of a

potentially innocent prisoner’s habeas petition could result in a “fundamental

22 Federal courts may bypass procedural default on habeas review when the merits are “easily resolvable against the habeas petitioner.” Lambrix v. Singletary,

(1997). We see no reason why the same proposition does not apply to AEDPA’s statute of limitations where, as here, we more easily resolve the merits of an actual innocence claim against the petitioner. Id.; see also

(d) (providing that a federal court may not grant a writ of habeas corpus where a State court’s merits determinations are reasonable, but not requiring a determination of all procedural grounds before denying a habeas petition on the merits).

41 miscarriage of justice.”23 McQuiggin v. Perkins,

(2013); Schlup,

; see also Cosey v. Lilley,

(2d Cir. 2023).

Untimeliness can be excused in a “narrow class of ‘truly extraordinary’ cases” of

claims of actual innocence, Hyman,

, quoting Schlup,

(Rehnquist, J., dissenting), where such claims are supported by new evidence of

“factual innocence, not mere legal insufficiency,” Bousley v. United States,

(1998). Even if a petitioner overcomes this “demanding and rarely met”

standard, however, gateway innocence “cannot itself afford [the petitioner]

habeas relief from his state conviction. It can only open a gateway to federal

23 AEDPA requires filing a habeas corpus petition in federal court one year from the date on which a State court judgment denying post-conviction relief becomes final,

(d)(1)(A), or, if a petitioner raises newly discovered evidence, one year from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,”

§ 2244(d)(1)(D). See Jimenez R&R,

, at *6 (calculating that Jimenez’s petition was filed six days too late even assuming the latest possible date of diligent discovery). On appeal, Jimenez does not dispute that his habeas petition was untimely, instead relying on a showing of gateway innocence to excuse the untimeliness. The State argues that his petition was time- barred because the district court erroneously concluded that he met the gateway innocence exception. The State specifically contends that Ramos’s recantation, the statements of the Alibi Witnesses, and the sociolinguist’s expert opinion did not constitute newly discovered evidence. Because we assume arguendo that Jimenez has passed through the gateway, we do not address the State’s arguments except to the extent that they bear on our assessment of the merits of Jimenez’s actual innocence claim.

42 review” of an otherwise barred claim “that, if itself successful, could afford him

relief.” Hyman,

.

To reach the merits of such a claim, a habeas petitioner must make a

“sufficiently credible and compelling” claim of innocence.

; see also Rivas,

(“For the [innocence] claim to be ‘credible,’ it must be supported

by ‘new reliable evidence . . . that was not presented at trial.’”), quoting Schlup,

. The second prong is our starting point for the standard of

freestanding innocence.24 A compelling innocence claim must demonstrate that,

“more likely than not, in light of the new evidence, no reasonable juror would

find [the petitioner] guilty beyond a reasonable doubt.” House,

. To

make that determination, a habeas court must consider all record evidence, “old

and new.”25

If, after that exhaustive review, the petitioner’s evidence of

24 In a full analysis, we would be obliged to review the district court’s credibility assessment of live witness testimony “only for clear error.” Hyman,

. Because we assume that Ramos and the Alibi Witnesses are in fact credible, we do not address the State’s contentions that they are unworthy of belief. 25 The unrestricted scope of evidence available at the gateway innocence stage stands in contrast to the more limited scope of evidence available on federal review of the merits of any habeas claim, whether that claim is based on innocence or, more commonly, some other constitutional error. In general, under AEDPA, “evidence introduced in federal court has no bearing” on habeas review of claims that a state court has already decided on the merits. Cullen,

innocence is so compelling that the habeas court “cannot have confidence in the

outcome of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error,” the court may adjudicate the merits of

otherwise procedurally barred claims. Schlup,

.

That is no nominal demand. Courts have seldom found compelling claims

of gateway innocence since the Supreme Court in Schlup recognized the

exception, and Schlup itself only suggested that a new alibi witness and eyewitness

testimony incriminating a third-party suspect could be compelling evidence of

innocence.

. The Supreme Court in the end declined to decide whether

that standard had been met on the facts of that case. See

.

The only other examples of sufficiently compelling gateway innocence

claims were close cases. In House v. Bell, the Supreme Court found compelling

evidence of the petitioner’s innocence in new forensic DNA evidence, which

185. Jimenez contends that we are not bound by AEDPA deference on the merits of actual innocence claims at all, and further argues that such deference at least does not apply in his case because the State court failed to hold an evidentiary hearing. In yet another of the several assumptions we make in his favor, we assume without deciding that Jimenez is correct about the scope of evidence available on our de novo review of the district court’s decision because even the most expansive possible record does not change our conclusion that he has not affirmatively proven his actual innocence.

44 “called into question” the “central forensic proof connecting [him] to the crime,”

in combination with “substantial evidence” incriminating a third-party suspect

who had essentially confessed.

. Yet, House cautioned

that other inculpatory evidence “still support[ed] an inference of [the petitioner’s]

guilt.”

. House therefore concluded that, even though the petitioner

had “cast considerable doubt on his guilt . . . sufficient to satisfy Schlup’s gateway

standard,” it followed that his “close[]” satisfaction of that standard logically

“[fell] short of the threshold implied in Herrera.”

.

Similarly, in Rivas v. Fischer, we found compelling evidence of the

petitioner’s innocence in a new expert opinion that revised the victim’s time of

death to a period when he had an unchallenged alibi, as well as in unchallenged

testimony discrediting the originally incriminating medical examiner’s report.

. But Rivas again stressed that it was a “close case” and cautioned

that “we would not expect a lesser showing of actual innocence to satisfy the

Schlup standard.”

More recently, in Hyman v. Brown, we observed that Schlup, House, and

Rivas shared a common feature: new evidence “directly supported petitioner’s

factual innocence by indicating either that he did not commit, or could not have

45 committed, the crimes of conviction.”

(emphases in original).

Hyman reasoned that in each case, compelling evidence of innocence came

through a combination of eyewitness misidentification, testimony and forensic

evidence ruling out the petitioner’s ability to commit the crime, and evidence

strongly incriminating a third party.

. We concluded that the

petitioner had not met his burden in that case because even though the only

eyewitness to identify him as a participant in a large shootout (out of a total of

four eyewitnesses) had recanted her testimony, that alone did not affirmatively

demonstrate that the petitioner did not, or could not have, fired a gun when the

witness’s recantation was compared to the weight of the remaining incriminating

evidence (the other three eyewitnesses’ testimonies, ballistics evidence, and the

petitioner’s concession that he had been at the scene).

.

The State argues that Hyman forecloses the district court’s finding that

Jimenez made out a compelling claim of innocence because Velazquez’s credible

identification remains strongly incriminating. Velazquez’s identification,

however, is not nearly as strong as the remaining inculpatory evidence in Hyman.

Unlike Hyman, here there is no physical evidence, no other eyewitnesses (given

the recantation of Ramos), and no factual concessions by Jimenez linking him to

46 the time or place of the crime. There is only the uncorroborated accusation of a

single eyewitness, whose reliability had been vigorously contested through cross-

examination at trial. Velazquez’s description of the shooter’s appearance –

specifically the shooter’s distinctive Jheri curls – is at odds with Jimenez’s

appearance in 1992 and further undermines confidence in her reliability; indeed,

the prosecution itself acknowledged at trial that Velazquez was “not the best

witness in the world.” App’x 598. The weaker incriminating evidence in this

record distinguishes Hyman. The closeness of this case is sufficient to make us

prefer to simply assume arguendo that Jimenez demonstrated a sufficient

likelihood of innocence to satisfy Schlup’s “gateway” standard.

Yet that is not the end of our analysis. Although we assume that Jimenez

has met his threshold burden, he has, at most, made out only a “close case” of

gateway innocence. Rivas,

. As in House and Rivas, the remaining

inculpatory evidence is weak, and “it may be enough for the petitioner to

introduce credible new evidence that thoroughly undermines the evidence

supporting the jury’s verdict” in order to pass through the innocence gateway.

Rivas,

. But unlike in House and Rivas, Jimenez’s exculpatory

evidence is also weak, because neither Ramos’s recantation nor the Alibi

47 Witnesses’ testimony undermines, much less “thoroughly undermines,” Rivas,

(emphasis added), the independent basis for Velazquez’s

identification of Jimenez as the killer.

Jimenez’s exculpatory evidence is, in fact, the same type of evidence as

Velazquez’s testimony – witnesses swearing to what they saw, heard, did, and

thought. The resulting credibility contest, which may be compelling enough for

the purposes of gateway innocence given the dearth of physical evidence cutting

in either direction, does not surpass the heightened standard required on review

of the merits of a freestanding innocence claim.

C. Standard of Proof

Having assumed that Jimenez has passed through the actual innocence

gateway, what standard applies when, after opening the door, all that lies

beyond is the same claim of innocence? The Supreme Court struggled with that

question prior to AEDPA’s passage in 1996. In Herrera and its progeny, it decided

only that whatever the standard of proof, it is “extraordinarily high.” See Herrera,

. Indeed, no court has ever found it met.

Jimenez’s most potent argument on appeal is his effort to favorably

calibrate Herrera’s “extraordinarily high” standard of proof in freestanding

48 innocence claims.

That effort, however, is ultimately unavailing. The trio of

Supreme Court cases that form the backbone of what little federal law shapes the

appropriate standard of proof demonstrates that, despite Jimenez’s effort to

articulate the exact quantum of proof required to show that he is truly innocent,

he has not met his burden in this case.

Pre-AEDPA, Herrera vaguely described a cognizable actual innocence

claim as requiring a “truly persuasive demonstration” in light of “the very

disruptive effect that entertaining claims of actual innocence would have on the

need for finality in capital cases, and the enormous burden that having to retry

cases based on often stale evidence would place on the States.”

Schlup, which

followed Herrera, then described the difference between the proof required to

establish gateway innocence, as opposed to substantive innocence, by

illustration:

In Herrera . . . , the evidence of innocence would have had to be strong enough to make his execution “constitutionally intolerable” even if his conviction was the product of a fair trial. For Schlup, the evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.

Schlup,

(emphases in original). Accordingly, Schlup concluded, if

49 “there were no question about the fairness of the criminal trial, a Herrera-type

claim would have to fail unless the federal habeas court is itself convinced that

those new facts unquestionably establish [the petitioner’s] innocence.”

(emphasis added). Over ten years later, and long after AEDPA’s enactment, the

Supreme Court in House finally reasoned that the “sequence of the Court’s

decisions in Herrera and Schlup – first leaving unresolved the status of

freestanding claims and then establishing the gateway standard – implies at the

least that Herrera requires more convincing proof of innocence than Schlup.”

House,

.

Like Herrera, Schlup, and House, the district court did not put a name to the

standard of proof it applied to Jimenez’s actual innocence claim. It concluded

that cases following Herrera that had come close to recognizing a freestanding

innocence right did so only with respect to capital cases. Jimenez III, 560 F. Supp.

3d at 769. But the district court set that distinction aside and reasoned that, at

minimum, a habeas petitioner must supply an even greater quantum of proof of

his innocence than what is required to demonstrate gateway innocence. Id. On

that understanding, the district court concluded that Jimenez had not met that

threshold under the deference owed to the State court’s reasoning as required by

50 AEDPA. Id. at 770-72. Among other things, the court applied our analysis in

Hyman and reasoned that Jimenez ultimately had not shown that he did not do,

or could not have done, the crime because “[t]he inconsistencies in Velazquez’s

prior descriptions of the shooter . . . reduce the proper weight a juror might give

to her testimony but do not affirmatively show Jimenez’s innocence.” Id. at 772.

We agree with the district court, though we express no view of its

suggestion that a hypothetically lower standard of proof may be limited to actual

innocence claims in capital cases. See id. at 769-70. We affirm only that, as a

matter of law and as unequivocally set forth by the Supreme Court, the degree of

proof required to make out a freestanding claim of innocence (assuming that

such a claim is cognizable on habeas corpus even in a noncapital case) exceeds

the proof required to establish gateway innocence. See House,

.

Jimenez’s proof has not reached those heights. We need not identify the exact

degree of proof required because, as we have already described, the same body of

evidence that could, at most, only barely surmount the gateway innocence barrier

in this case logically “falls short” of the greater certainty demanded in

51 substantive innocence claims.26

.

Jimenez resists that conclusion. He raises three objections to the perceived

contradiction in the district court’s decision that, even though he prevailed at the

gateway innocence stage, he cannot do so at the merits stage.

He and his supporting amici curiae primarily argue that the district court’s

reliance on the Hyman criteria – holding Jimenez to the burden of proving that he

“did not commit, or could not have committed” the murder,

(emphases in original) – improperly imposed an onerous standard beyond what

Herrera demands by requiring him to affirmatively prove that it was impossible

that he had killed Brana.27 But, as Jimenez recognizes, Hyman did not require

26 It is not clear, in any event, that creating a label for the degree of proof would be much help. Suppose, for example, we ruled that a habeas petitioner must establish his factual innocence “beyond a reasonable doubt,” mirroring the standard by which the jury must be convinced of guilt in order to return a verdict against the defendant. That standard itself has proven extremely difficult to define in more concrete terms, see In re Winship,

(1970) (Harlan, J., concurring), and it is not clear that the usual jury instructions do much to guide jurors beyond impressing them with the weightiness of their responsibility and the importance of reaching a very high degree of certainty before voting to convict, see Victor v. Nebraska,

(1994) (“Although [the beyond a reasonable doubt] standard is an ancient and honored aspect of our criminal justice system, it defies easy explication.”). So too here. 27 Amici, five organizations consisting of criminal defense attorneys, point to compelling statistics highlighting the scale of wrongful convictions as demonstrated by an accelerating rate of exonerations in recent years. We do not

52 petitioners to prove that their guilt was impossible; and as our discussion of the

gateway innocence standard makes clear, Hyman described the type and effect of

proof capable of making out a compelling claim of innocence to a lower degree of

certainty. See

. Hyman is distinguishable at the gateway innocence

stage because Velazquez’s identification was, by contrast to the evidence of guilt

in that case, comparatively weak. But more than just comparatively weak

incriminating evidence is required on the merits, and by concluding that

“[e]vidence that merely cuts against the testimony of a state witness – even an

important state witness – is not enough” to affirmatively demonstrate factual

innocence under the heightened certainty required in a freestanding claim, the

district court did not inappropriately apply Hyman’s rubric or require Jimenez to

prove beyond any doubt that it was impossible for him to have killed Brana.

Jimenez III, 560 F. Supp. 3d at 772.

Jimenez next argues that he has met the standard required to affirmatively

dispute amici’s contention that imperfect criminal procedures may ensnare the actually innocent in some cases. Nor do we dispute that the frequency of such cases may be higher than our precedents presume. Our jurisprudence, however, presupposes that a freestanding innocence claim might one day exist under sufficiently persuasive circumstances, see Herrera,

, and neither Jimenez nor amici have demonstrated that those circumstances are present here.

53 prove his innocence because he has shown that it is likely that no reasonable

juror would convict him in light of Ramos’s recantation and the Alibi Witnesses’

testimonies. That metric, however, reflects the less demanding gateway standard,

which calls for an assessment of the probability that a rational jury would have

acquitted him in a hypothetical trial in a manner akin to prejudice or harmless

error standards in other constitutional claims.28 House,

. Such a

hypothetical second trial, moreover, is not easily assessed. One can, of course,

predict that a trial without Ramos (or with a fatally impeached Ramos) and with

the two Alibi Witnesses would present a difficult road for a prosecutor relying

solely on Velazquez’s testimony. But we return to the essential problem: how do

we weigh Velazquez’s testimony? Even assuming she is available to testify, a

witness who was believable when testifying a few years after the event will

necessarily find it harder to recall details thirty years later. An effort to cobble

28 Schlup stressed that the gateway standard is “by no means equivalent to the standard . . . that governs review of claims of insufficient evidence,”

(internal citation omitted), but also stated that a compelling claim of gateway innocence demands “a stronger showing than that needed to establish prejudice” in a claim for ineffective assistance of counsel.

. Due to that gradation in standards, in a subsequent appeal in Rivas, we reasoned that because we had previously found that the petitioner had made out a credible and compelling claim of gateway innocence, it followed that his trial counsel’s errors were also prejudicial under Strickland. Rivas v. Fischer,

(2d Cir. 2015).

54 together a hypothetical trial that weighs the credibility of Velazquez’s original

testimony, which none of us saw in person, against the putative future testimony

of the Alibi Witnesses (whom we have also not seen testify), is an inherently

problematic exercise. Herrera, Schlup, and House, by contrast, are clear that

demonstrating freestanding innocence calls for more than a sheer probability that

a new trial, proceeding under impossible real-world conditions, would likely end

in acquittal. House,

; see also Herrera,

(rejecting a

“probable innocence” standard that “would in effect require the State to retry

[the] petitioner . . . simply because of a belief that in light of petitioner’s

new-found evidence a jury might find him not guilty at a second trial”).

Jimenez and amici finally argue that a “clear and convincing evidence”

standard of proof satisfies Herrera’s calling and should have been applied by the

district court instead of its reliance on the Hyman criteria. “‘[C]lear and

convincing evidence’ . . . means something more than ‘preponderance of the

evidence,’ and something less than ‘beyond a reasonable doubt.’” United States v.

Chimurenga,

(2d Cir. 1985). The standard has also been more

precisely defined as “plac[ing] in the ultimate factfinder an abiding conviction

that the truth of [the] factual contentions are ‘highly probable.’” Colorado v. New

55 Mexico,

(1984); see also Addington v. Texas,

(1979)

(observing that “clear and convincing evidence” is an “intermediate standard” of

proof typically used in civil cases involving “quasi-criminal wrongdoing” and

that it is used to “protect particularly important individual interests”).

Jimenez and amici contend that Herrera logically requires habeas petitioners

to prove their innocence only to a degree of certainty one step greater than the

“preponderance of the evidence” standard applicable in habeas review of other

constitutional claims.29 We do not necessarily quarrel with that framing; it is clear

to us that if a habeas court could ever grant relief on a freestanding innocence

claim, such a claim would require at least clear and convincing evidence of actual

innocence. Beyond that proposition, however, there is little authority for

Jimenez’s argument that clear and convincing proof of actual innocence is

29 The premise of that argument is not self-evident. The Supreme Court has in some cases described gateway innocence as requiring a “convincing showing of actual innocence.” McQuiggin,

(emphasis added); see also Sawyer v. Whitley,

(1992) (requiring a showing of “clear and convincing evidence” that no reasonable juror would have found the petitioner eligible for the death penalty to reach a death-row petitioner’s defaulted claims). If the “compelling” prong of the gateway innocence test demands a degree of proof analogous to the “clear and convincing” standard of proof, any freestanding claim of actual innocence would necessarily demand even more certainty. See House,

.

56 enough.30 Nothing in the Herrera line of cases suggests that an intermediate

standard of proof meets its “extraordinarily high” standard. The closest the

Supreme Court has come to suggesting a standard for a (still, to that Court,

hypothetical) claim of actual innocence is that a federal habeas court must be

convinced that the new evidence “unquestionably establish[es]” the petitioner’s

innocence. Schlup,

. By how much, if at all, that exceeds “clear and

30 Jimenez and amici point to some district courts that have adopted a clear and convincing standard in freestanding actual innocence claims, in particular highlighting a formula adopted by the Georgia district court when it acted on the Supreme Court’s instruction in In re Davis to find facts on the petitioner’s innocence. See

. That court described a sliding scale designed to identify a sufficient burden of proof based on its assessment of the strength of the underlying guilty verdict, and then assigned a “clear and convincing” standard to the petitioner’s claim based on that scale. In re Davis, No. CV409-130,

, at *43-45 (S.D. Ga. Aug. 24, 2010). No binding authority has adopted that test, however, and we decline to do so here because we need not fine-tune the hypothetical standard announced in Herrera in order to resolve the merits of Jimenez’s innocence claim. District courts in this Circuit have also speculated about more precise formulations of Herrera’s heightened freestanding innocence standard. Similarly, however, no case has actually applied those standards to grant habeas relief. See, e.g., DiMattina v. United States,

(E.D.N.Y. 2013) (Weinstein, J.) (speculating that the petitioner’s burden being “set higher than the Schlup standard . . . may resemble the ‘shock the conscience’ threshold sometimes used to assess substantive due process claims”); Sacco v. Greene, No. 04 Civ. 2391 (CLB),

, at *4, *7 (S.D.N.Y. Jan. 30, 2007) (recognizing a freestanding claim of innocence and describing the standard of proof as “clear and convincing” without applying it to the petitioner’s claim).

57 convincing” evidence is difficult to say.

Examples further afield of wrongful conviction claims also cut against any

conclusion that clear and convincing evidence of innocence is sufficient to meet

the threshold implied in Herrera. See, e.g., Sawyer v. Whitley,

(1992) (contrasting innocence of the death penalty, which requires “clear and

convincing” proof of innocence to excuse a death-row petitioner’s defaulted

claim, with the “prototypical example of ‘actual innocence’ . . . where the State

has convicted the wrong person of the crime”). For instance, we have held that in

habeas petitions by civil immigration detainees, the government must justify a

civil immigration detention by clear and convincing evidence because “[t]he

Supreme Court has consistently held the Government to a [higher] standard of

proof . . . where liberty is at stake.” Velasco Lopez v. Decker,

(2d

Cir. 2020). But that is because the “necessary scope of [habeas] review and

resulting relief in part depends upon the [procedural] rigor of any earlier

proceeding,” and “the most searching review” is called for when detention

“occur[s] without the procedural protections required in courts of law.”

(emphasis added) (internal quotation marks omitted), quoting Boumediene v.

Bush,

(2008). Criminal adjudications, by contrast,

58 quintessentially require rigorous procedure, afford defendants maximum

procedural protections, and hold the State to prove guilt beyond a reasonable

doubt. See

; cf. Addington,

(explaining that “beyond

a reasonable doubt” applies in criminal cases to protect defendants “by standards

of proof designed to exclude as nearly as possible the likelihood of an erroneous

judgment”).

As a result, we cannot be sure that a clear and convincing standard of

proof is appropriate in light of the uniquely powerful competing interests

repeatedly emphasized by the Supreme Court. “The function of a standard of

proof . . . is to instruct the factfinder concerning the degree of confidence our

society thinks he should have in the correctness of factual conclusions for a

particular type of adjudication . . . [and] serves to allocate the risk of error

between the litigants and to indicate the relative importance attached to the

ultimate decision.” Addington,

(internal quotation marks and

citation omitted). While the truth of a habeas petitioner’s ultimate guilt or

innocence is undoubtedly of the highest importance, the Supreme Court has

repeatedly admonished that a state’s countervailing interests – the “need for

finality” and avoiding the onerous burden of retrying stale cases – are also

59 important because “in state criminal proceedings the trial is the paramount event

for determining the guilt or innocence of the defendant.” Herrera,

-

17 (emphasis added); see also Harrington v. Richter,

(2011)

(declaring that habeas review involves an “intru[sion] on state sovereignty to a

degree matched by few exercises of federal judicial authority”), quoting Harris v.

Reed,

(1989) (Kennedy, J., dissenting). Under those parameters

and our own struggle to envision a clear result in a hypothetical retrial of this

ambiguous case, we cannot – and do not – definitively say that proof of

innocence by clear and convincing evidence strikes a “fair balance” that

“allocate[s] the risk of error,” Addington,

, between a convicted

prisoner found guilty after a fair trial free of error, and the “special costs

[imposed] on our federal system” by exercising our habeas authority to

“override[] the States’ core power to enforce criminal law,” Shinn v. Ramirez,

(2022) (internal quotation marks omitted), quoting Engle v. Isaac,

(1982).

There may be a case that one day calls for such a definitive determination,

but this is not that case. That is because, even accepting Jimenez’s preferred

burden of proof for the sake of argument, he has not demonstrated his innocence

60 by clear and convincing evidence. Accordingly, we have no need to decide

whether petitioners’ evidentiary burden in freestanding innocence claims

requires clear and convincing evidence of actual innocence, or some higher

standard, such as proof beyond a reasonable doubt. See Herrera,

.

Indeed, this case perfectly illustrates how evidence of innocence can be

both “compelling” under Schlup, yet fall short of demonstrating substantive

innocence under Herrera. Ramos’s recantation is not a model of clarity. Nor is

Jimenez’s exculpatory evidence, taken as a whole, clear and convincing proof of

his innocence in light of the lingering uncertainty from Velazquez’s incriminating

identification. Faced with a body of evidence that generates uncertainty as

between guilt and innocence, we cannot conclude that Jimenez’s innocence has

been demonstrated to a “highly probable” degree. Colorado,

(emphasis added).

Ramos’s recantation, taken as true, is more confusing than strongly

probative of Jimenez’s innocence. Ramos now insists that he knew the shooter

was Dominican based solely on his word choice, but that does not square with

the information Ramos gave to police the day after the shooting, or with his trial

61 testimony that he knew that the shooter was Dominican because he recognized

him as the man called “Monaguillo” with whom he was acquainted.

Significantly, both Velazquez and Ramos testified at trial that they believed the

shooter was Dominican for separate reasons: Velazquez because the shooter’s

compatriot spoke in a Dominican accent when taunting Brana, and Ramos

because he had seen Monaguillo in the neighborhood “for about a year or two”

prior to the shooting and knew him to be Dominican. App’x 352. Ramos’s

present-day testimony that he actually knew Monaguillo to be Dominican only

because he heard the shooter say “mamaguevo” is inconsistent with his

statement to police the day after the shooting that he recognized Monaguillo using

his sight and recollection (rather than his ears) and that Jimenez’s picture,

selected from a photographic array, matched that recollection. Even if Detective

Thompson improperly influenced that selection as Ramos alleged at the gateway

innocence hearing, Ramos’s recantation does not undermine Velazquez’s

independent identification of Jimenez in another photographic array later that

same day.31 Even in Ramos’s telling, it was his undisputed story about

31 There is no evidence in the record pointing to the possibility that Velazquez’s selection from the photographic array had been improperly influenced by Detective Thompson or another officer. Absent a basis to think so in the record,

62 recognizing Monaguillo as the shooter that first led investigators to focus on

Jimenez as the prime suspect only a day after Brana’s killing.

Nothing in the record, moreover, convincingly supports the key premise of

Ramos’s recantation that, just because Jimenez is Puerto Rican – a trait that he

and his counsel would have known distinguished him from the identifying

features recounted by the eyewitnesses at trial – he would have never uttered a

vulgarity used mainly by Dominicans. Both eyewitnesses agree that the shooter

advanced on Brana in the company of at least one Dominican, and Delgado, one

of Jimenez’s alibi witnesses and close teenage friend, is also Dominican.

Whatever Ramos’s sincere beliefs about a lack of linguistic cross-pollination

between Puerto Ricans and Dominicans in the Bronx, it is entirely possible that a

Puerto Rican teenager fraternizing with Dominican neighbors might adopt a

profanity from Dominican Spanish into his own manner of speaking.

The Alibi Witnesses leave us with the same nagging uncertainty.

Technically, the only new affirmative evidence of innocence introduced in

Jimenez’s habeas petition is the alibi defense that his trial attorney never raised;

Ramos’s recantation, at most, reduces the total amount of inculpatory evidence.

we do not speculate that her selection from the photographic array was coerced.

63 But even that alibi fails to inspire confidence that Jimenez is clearly innocent.

Hernandez admitted that both he and Jimenez had left the street corner from

time to time. And even granting that Delgado sincerely believes, as he testified at

the gateway innocence hearing, that Jimenez remained at the corner celebrating

Hernandez’s birthday for ten straight hours on a day when a group of at least

eight teenagers “came and left” from that public street corner, we cannot afford

his assertion that Jimenez never “left [his] line of sight,” App’x 1222, significant

weight in light of Hernandez’s admission.

At the very least, the alibi only contradicts Velazquez’s identification. It

does not undermine her trial testimony that she had no doubt that she saw

Jimenez, a stranger to her, shoot her husband. We reiterate that, while

Velazquez’s reliability as an eyewitness was impeached at trial, nothing in

Ramos’s recantation or the Alibi Witness testimonies “thoroughly” destroys the

basis for her identification of Jimenez. Rivas,

.

Rather, the main reason to view Velazquez’s identification with suspicion

is not that her multiple post-shooting descriptions, as recorded in the police

report by Detective Coor, contradicted her description of the killer at trial.

Instead, it is the fact that her consistent description that the killer had Jheri curls

64 bears little resemblance to Jimenez’s recorded appearance in 1992. But even then,

no evidence in the record, old or new, undermines Velazquez’s uncoerced and

close-in-time identification of Jimenez in the photographic array. She also

consistently maintained at trial that, to the extent Detective Coor’s testimony that

she had given him two descriptions of two different men in the post-shooting

interview conflicted with her own recollection, she simply had not described the

harasser to the detectives (or even looked at him), allowing the fair inference that

it was not Velazquez’s initial description that was mistaken, but Detective Coor’s

record of her statements.32 In other words, even if Velazquez was not the most

credible eyewitness, she was not a noncredible eyewitness.

That remaining thread of incriminating evidence is enough to cause

Jimenez’s innocence case to fall short of the threshold implied in Herrera. The

freestanding innocence standard does not require petitioners to eliminate all

doubt of their guilt. But the facts of this case illustrate that it requires more than

an affirmative demonstration of mere reasonable doubt, or even of “considerable

32 That is a reasonable inference given Detective Coor’s testimony at trial that Detective Thompson had separately noted down a slightly different description of the shooter from Velazquez while Detective Coor was still interviewing her, not for the purpose of the report, but for the purpose of quickly disseminating it to other officers in the hopes of catching the shooter in the area.

65 doubt,” House,

, that Jimenez is guilty of the crime. Put another

way, the innocence claim, assuming it is cognizable, does not require Jimenez to

prove to an absolute certainty that he is innocent, or that he could not have

committed the crime. It does, however, require a much higher degree of certainty

than this record provides.

Whatever the exact descriptor applied, the standard for freestanding

innocence is set above the already demanding requirements of gateway

innocence. That is enough to conclude that Jimenez would not meet his burden

even if his freestanding innocence claim is cognizable and the standard of proof

is set at “clear and convincing evidence” of actual innocence. And it is more than

enough to conclude that, even if we thought differently, we would not be at

liberty to grant Jimenez relief under AEDPA.

D. AEDPA

The foregoing discussion demonstrates that all that is clearly established in

the law of freestanding innocence is the lack of clarity about the scope of any

actual innocence right and the evidentiary burden necessary to demonstrate it.

That brings us to AEDPA, the final barrier to both Jimenez’s claim and to our

own authority to decide differently. We cannot determine that the State court was

66 wrong to deny Jimenez’s claim, because even if we could characterize the doubt

that Jimenez has cast on his guilt as sufficient to satisfy Herrera, the deferential

requirements of AEDPA all but foreclose the possibility of granting relief on such

a claim where there is little “clearly established [f]ederal law.”33

(d)(1); see also Yarborough v. Alvarado,

(2004) (holding that

“[a]pplying a general standard [announced by the Supreme Court] to a specific

case can demand a substantial element of judgment,” and that a state court has

“more leeway” in reaching adverse outcomes on the merits of a petitioner’s

constitutional claims).

Section 2254(d)(1) of AEDPA prohibits courts from granting habeas relief

“where a petitioner’s claim pursuant to . . . the U.S. Constitution[] has been

adjudicated on its merits in state court proceedings in a manner that is not

manifestly contrary to common sense.” Contreras v. Artus,

(2d

33 Typically, on habeas review, we look only to the holdings, not dicta, of Supreme Court decisions. Contreras v. Artus,

(2d Cir. 2015). Other than House, however, the relevant Supreme Court precedent on freestanding innocence supplies little but dicta, further restricting our ability to find that the AEDPA standard is met. The remainder of our discussion treats the Supreme Court dicta as if they were holdings to set the parameters of the State court’s “leeway” to reasonably apply federal law in this case, Yarborough v. Alvarado,

(2004), and concludes that even if the dicta in question were holdings, the AEDPA standard still would not be met.

67 Cir. 2015) (internal quotation marks omitted), quoting Anderson v. Miller,

(2d Cir. 2003). That review is extremely forgiving to State courts; federal

courts must “extend considerable deference even to deficient reasoning [by the

State court,] at least in the absence of an analysis so flawed as to undermine

confidence that the constitutional claim has been fairly adjudicated.” McCray v.

Capra,

(2d Cir. 2022) (internal citations, quotation marks, and

alterations omitted). Section 2254(e)(1) of AEDPA also requires that federal

habeas courts afford a presumption of correctness to a State court’s factual

determinations, “rebuttable only upon a showing of clear and convincing

evidence of error.” Cosey,

. Habeas relief is therefore warranted

“only ‘where there is no possibility fair-minded jurists could disagree that the

state court’s decision conflicts with the Supreme Court’s precedents.’” McCray,

(alterations omitted), quoting Harrington,

.

Deference is owed even if the State court does not supply any reasoning in

support of its conclusion on the merits, or “cite or even [demonstrate]

aware[ness] of [Supreme Court] cases under § 2254(d).” Harrington,

. The State court in this case did more than the Supreme Court requires to

trigger our deference under AEDPA; even as it applied standards of actual

68 innocence under a freestanding innocence claim as recognized under State law, it

cited and applied the standards articulated by the Supreme Court in Schlup and

Herrera. Jimenez I,

, at *3-4. Indeed, though the district court found

that the State court’s adverse credibility determinations had been rebutted by

“clear and convincing evidence” as required by § 2254(e)(1), Jimenez II,

, at *14, it concluded that the State court’s “overall decision” on the merits

of Jimenez’s innocence claim – to which it applied a clear and convincing

standard of proof – was not unreasonable under § 2254(d)(1) because that court

“relied on federal precedents including Herrera” and alternatively reasoned that,

“even if [Ramos and the Alibi Witnesses] were reliable, their accounts would not

prove Jimenez’s innocence under the demanding standard for a freestanding

innocence claim,” Jimenez III, 560 F. Supp. 3d at 770-71.

We find no fault in that reasoning. As already discussed, Jimenez has not

supplied new evidence so powerful that it “unquestionably establish[es]” his

innocence. Schlup,

. Therefore, because the State court’s analysis is

not “so flawed as to undermine confidence that the constitutional claim has been

fairly adjudicated,” McCray,

(internal quotation marks omitted),

quoting Cruz v. Miller,

(2d Cir. 2001), we are compelled to

69 conclude that, on these facts, the district court simply could not have granted

relief on Jimenez’s actual innocence claim.

Jimenez does not contest the district court’s conclusion that the State court

did not misapply the law. Jimenez III, 560 F. Supp. 3d at 771. Instead, Jimenez

argues that AEDPA does not apply to freestanding claims of actual innocence

because that right, if it exists, is a fundamental constitutional right that requires

petitioners to shoulder a heavier burden than required for other “arguably less

fundamental” rights. Appellant’s Br. 34. Therefore, innocence claims, which

demand a “thorough inquiry for the truth above all,” must not fall within

AEDPA’s ambit. Id. at 32.

There is no principled reason why AEDPA would not apply to

freestanding actual innocence claims (presuming they exist) to the same extent it

does to other types of alleged violations of the Constitution. As the district court

reasoned, nothing in the text of § 2254(d)(1) or elsewhere in AEDPA indicates an

intent to carve out an exception just for freestanding claims of actual innocence.

Jimenez III, 560 F. Supp. 3d at 770. Nor is there language anywhere in the statute

that supports applying Jimenez’s proposed method of statutory interpretation:

tethering AEDPA’s scope to the standard of proof necessary to establish “less

70 fundamental” constitutional violations. Appellant’s Br. 34. Absent any textual

basis to do so, we are not at liberty to read an exception for innocence claims into

the statute. Cf. Jones v. Hendrix,

(2023) (holding that a petitioner

may not rely on AEDPA’s saving clause to collaterally attack his federal

conviction in a successive habeas petition even after the Supreme Court’s

changed interpretation of the statute of conviction likely rendered his conduct

noncriminal).

Jimenez more expansively contends that AEDPA unconstitutionally

restricts federal review of the merits of his innocence claim. He argues that,

because innocence “cuts to the heart of the ‘Great Writ,’ which has historically

been a mechanism to protect the wrongfully convicted from erroneous

incarceration,” Appellant’s Br. 26, “logic suggests” that the deference mandated

by AEDPA “improper[ly] interfere[s] with the truth/justice-seeking function” of

habeas review. Id. at 32. To supply that logic, Jimenez points to In re Davis, a

habeas petition in a capital case that the Court transferred to a Georgia district

court with instructions to conduct factfinding on the petitioner’s innocence.

, 952 (2009). Writing in concurrence, three Justices opined that even if

AEDPA “applies in full, it is arguably unconstitutional to the extent it bars relief

71 for a death row inmate who has established his innocence.”

(Stevens, J.,

concurring); see also

(“Alternatively, the court may find in such a case

that [AEDPA’s] text is satisfied, because decisions of this Court clearly support

the proposition that it ‘would be an atrocious violation of our Constitution and

the principles upon which it is based’ to execute an innocent person.”), quoting In

re Davis,

(11th Cir. 2009) (Barkett, J., dissenting).

That speculation about what is “arguably unconstitutional,”

,

about AEDPA as applied to the availability of habeas relief in capital cases

provides no guidance here, in a noncapital case.34 Moreover, AEDPA’s

34 Jimenez argues that the scope of any hypothetical innocence right is not limited to capital cases, citing our remarks in Triestman v. United States, which stated that it is “arguable . . . that the continued imprisonment of an actually innocent person would violate . . . a fundamental principle” of due process that is “rooted in the traditions and conscience of our people.”

(2d Cir. 1997) (internal quotation marks and citation omitted), abrogated by Jones,

- 88. But Triestman avoided that constitutional issue by construing AEDPA’s savings clause to permit hearing a successive habeas petition that would have otherwise been procedurally barred, reasoning that interpreting the statute to completely deny the petitioner of “an effective opportunity to raise his claim of actual innocence” would “imperil the constitutional validity of the AEDPA.” Id. at 380. The Supreme Court, however, recently abrogated Triestman’s interpretation of AEDPA, and rejected the petitioner’s arguments that constitutional peril resulted from a lack of opportunity to seek collateral relief. Jones,

-88. At any rate, unlike the risk that no court could hear Triestman’s claim, Jimenez has not been denied a forum as a result of AEDPA’s procedural

72 requirement that federal courts presume that the factual findings of State courts

are correct unless rebutted by clear and convincing evidence of error,

(e)(1), indisputably applies to the already well-recognized gateway

innocence exception to AEDPA’s procedural bars. Cosey,

. That

exception is “grounded in the ‘equitable discretion’ of habeas courts to see that

federal constitutional errors do not result in the incarceration of innocent

persons.” Herrera,

, quoting McCleskey v. Zant,

(1991). We do not see how § 2254(e)(1) can compel a form of deference to State

courts at a less onerous threshold stage that allows a habeas petitioner to

circumvent AEDPA’s procedural bars, but § 2254(d) cannot require similar

deference to the reasonable decisions of State courts on the more demanding, and

more consequential, merits of a freestanding innocence claim.35 Accordingly,

limitations, as the merits of his innocence claim have been heard in both State and federal court. He argues that the State court’s decision did not count as a “full opportunity” to present his claim because it did not hold an evidentiary hearing, Appellant’s Br. 33-34 n.9, but we need not decide whether that is so because even considering the record developed at the gateway innocence hearing, Jimenez has not established that he is innocent. So, the constitutional concerns raised in Triestman do not apply. 35 Jimenez argues that if AEDPA indeed applies to the merits of his innocence claim, § 2254(e)(1)’s presumption of correctness does not apply where the State court failed to hold an evidentiary hearing and prevented adequate development

73 assuming cognizability arguendo, we hold that § 2254(d) of AEDPA constrains

federal courts’ review of freestanding claims of actual innocence.

E. Reasonableness of the State Court’s Decision

Jimenez finally argues that even applying AEDPA deference and an

extraordinarily heavy burden of proof, the State court “unreasonabl[y]

determin[ed] the facts” because its failure to hold an evidentiary hearing resulted

in an incomplete development of the record supporting Jimenez’s innocence.36 28

of the record facts. That raises an unsettled question we need not answer because the district court did not apply § 2254(e)(1)’s presumption of correctness to the merits of Jimenez’s innocence claim, and even assumed arguendo that it could consider evidence from the gateway innocence hearing, yet it still found that Jimenez could not hurdle AEDPA deference under § 2254(d). Jimenez III, 560 F. Supp. 3d at 771. We agree with the district court’s conclusion based on the same assumptions. 36 We have never judged a State court’s failure to hold a hearing on newly discovered evidence of innocence to have resulted in an unreasonable determination of the facts under AEDPA, although we have on one occasion suggested, in a non-precedential order, that a New York State court’s denial of a motion to vacate a conviction without holding a hearing could “result[] in a decision that was an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Garcia v. Portuondo,

(2d Cir. 2004) (internal quotation marks omitted), quoting

(d)(2). In that case, however, we ultimately vacated the district court’s decision to order a new trial.

. For the sake of argument, we assume without deciding that a State court can exceed the bounds of AEDPA’s deference to its factfinding under § 2254(d)(2) by failing to hold an evidentiary hearing. It makes no difference in this case because the State court’s factual

(d)(2). Jimenez specifically attacks the basis for the State court’s

factual conclusions on Ramos’s recantation, the Alibi Witnesses, and the strength

of Velazquez’s identification. Each of those attacks, however, fails for the same

reason: Jimenez contests the State court’s credibility findings. To be sure, the

district court concluded that the State court’s credibility determinations were

rebutted by clear and convincing evidence. But those determinations were not

“unreasonable determination[s] of the facts” under AEDPA, nor did the State

court “misapprehend[] or misstate[] material aspects of the record” or “ignore[]

highly probative and material evidence” in making those determinations. Cardoza

v. Rock,

(2d Cir. 2013).

“Where ‘[r]easonable minds reviewing the record might disagree’ as to the

relevant finding, that [disagreement] is not sufficient to supplant the state court’s

factual determination.”

quoting Rice v. Collins,

(2006). The

State court even assumed that Ramos and the Alibi Witnesses were credible, but

still concluded that their stories, taken together, did not show that it was “highly

probable that [Jimenez] is innocent”; instead, they “merely cast[] doubt” on

determinations are not unreasonable even if we account for the witness testimony elicited at the gateway innocence hearing.

75 Jimenez’s guilt and conflicted with Velazquez’s identification. Jimenez I,

, at *8. A “state-court factual determination is not unreasonable merely

because the federal habeas court would have reached a different conclusion in

the first instance.” Wood v. Allen,

(2010). As we have made clear,

we are far from reaching a different conclusion than the ones the State court

reached in this case.

Accordingly, the district court did not erroneously determine that AEDPA

deference all but compelled it to deny habeas relief on the merits. Even though it

disagreed with the State court for the purposes of gateway innocence, it could not

characterize that court’s conclusions on the weight of the evidence as

unreasonable. And, because the district court did not find differently, it could not

grant Jimenez relief on his substantive claim of actual innocence. See Jimenez III,

560 F. Supp. 3d at 771-72. Neither can we.

II. Brady

Jimenez is not entitled to habeas relief based on his standalone actual

innocence claim, but because his untimely petition passed through the innocence

gateway, he might still be entitled to relief if he can demonstrate that Detective

Thompson tampered with Ramos’s testimony just before he took the stand at

76 Jimenez’s trial, and that that tampering was not disclosed to the defense, in

violation of Brady. According to Ramos, Detective Thompson allegedly told him

that Jimenez was Dominican, showed him a picture of Jimenez, and promised

him “castles and treasure” if he identified Jimenez in the courtroom. App’x 1044.

The State court denied that claim without extended analysis. Jimenez I,

, at *12-13. Jimenez therefore argues on appeal that the State court

unreasonably applied Brady law to Detective Thompson’s undisclosed

interference with Ramos’s courtroom identification because, he urges, knowledge

of that conversation was favorable to the defense and would have impeached

Ramos’s identification of Jimenez at trial.37

As a threshold matter, Jimenez does not contest that § 2254(d) of AEDPA

applies to his Brady claim, but unlike the latitude afforded to his hypothetical

freestanding claim of actual innocence, here it is indisputable that “federal review

37 The district court declined to consider a distinct witness tampering claim based on the same factual allegations underlying Jimenez’s Brady claim because he had not exhausted that claim before the State court. Jimenez III, 560 F. Supp. 3d at 773, citing

(b). Jimenez does not argue on appeal that he had, in fact, exhausted his State remedies on a separate witness tampering claim. We therefore follow the example of the district court and decline to consider any distinct witness tampering claim. In any event, Ramos’s claim that Thompson offered him “castles and treasure” to identify Jimenez as the killer is, on its face, the least credible aspect of his testimony.

77 under . . . § 2254(d)(1) ‘is limited to the record that was before the state court that

adjudicated the claim on the merits.’”38 Jackson v. Conway,

(2d

Cir. 2014), quoting Cullen,

. Under those constraints, Jimenez has

not demonstrated by a preponderance of the evidence that the State violated his

right to disclosure of material exculpatory evidence by failing to turn over

Detective Thompson’s alleged statements to Ramos.

Brady held that “the government violates the Constitution’s Due Process

Clause ‘if it withholds evidence that is favorable to the defense and material to

38 Jimenez argues that the district court should have also considered Ramos’s gateway hearing testimony when evaluating the Brady claim, instead of limiting itself to Ramos’s affidavit. He inaptly relies on Garner v. Lee, which explained that federal courts are “not bar[red] . . . from holding an evidentiary hearing and considering evidence beyond the state court record when it engages in . . . non-§ 2254(d), de novo review” of whether a petitioner has demonstrated “by a preponderance of the evidence that his constitutional rights have been violated.”

(2d Cir. 2018), quoting Cardoza,

. Jimenez, however, erroneously bases his argument on the standard applied when a State court did not decide a petitioner’s exhausted constitutional claims on the merits. Here, the State court did decide the issues on the merits. Garner held that a federal habeas court may order an evidentiary hearing to determine whether the petitioner has met his burden to prove a constitutional violation only if a state court dismissed his claim without any explanation or procedural basis.

By contrast, AEDPA prevents a federal court from “consider[ing] any evidence adduced from its evidentiary hearing in its § 2254(d)(1) analysis” of any claim that the State court did resolve on the merits. Id. The district court, therefore, did not erroneously disregard Ramos’s gateway hearing testimony.

78 the defendant’s guilt or punishment.’” Turner v. United States,

(2017) (emphasis omitted), quoting Smith v. Cain,

(2012). The

government has an affirmative duty to disclose favorable exculpatory evidence

that would impeach the credibility of witnesses. Giglio v. United States,

(1972). To make out a Brady violation, a petitioner must show that

material exculpatory or impeachment evidence was suppressed by the state,

either willfully or inadvertently. United States v. Bagley,

(1985)

(plurality opinion). “In other words, true Brady material must be (1) favorable, (2)

suppressed, and (3) prejudicial.” United States v. Hunter,

(2d Cir.

2022).

The State court dismissed Jimenez’s Brady claim on the basis that Detective

Thompson’s pre-testimony statement to Ramos was not exculpatory Brady

material, but it did not identify whether it concluded as much because that

conversation was not favorable, not suppressed, or not prejudicial. See Jimenez I,

, at *13. The district court, in turn, concluded that the State court’s

conclusion was supportable for three independently sufficient reasons. Jimenez

III, 560 F. Supp. 3d at 773-74. One of those reasons was that “fairminded jurists

could disagree over whether the Ramos affidavit identified any evidence

79 favorable to the defense that prosecutors wrongfully withheld” because the

conversation as alleged in that affidavit had nothing to do with the basis for

Ramos’s identification as understood by all parties at the time of the trial: his

recognition of “Monaguillo.” Id. That conversation, if it occurred as Ramos

alleged in his affidavit, also did not betray to Detective Thompson or any

reasonable person in the detective’s position that the reason Ramos hesitated to

identify Jimenez was his belief that he was Dominican. Id. Because that reason is

sufficient to conclude, as we do, that Jimenez has failed to demonstrate a clear

Brady violation at his trial, we do not address his objections to the district court’s

other independently sufficient reasons.39

The allegedly improper encounter between Detective Thompson and

Ramos was not favorable Brady material. Favorable impeachment evidence

39 The district court identified two more reasons why Ramos’s Brady claim is foreclosed. Jimenez III, 560 F. Supp. 3d at 773-74. First, the court concluded that Ramos’s affidavit summary of his encounter with Detective Thompson was reasonably considered noncredible in the absence of the gateway innocence hearing testimony (which had expanded on the details of Detective Thompson’s alleged influence on Ramos’s courtroom identification). Id. at 773. The district court also reasoned that, even if the conversation had been favorable and suppressed, fairminded jurists could find that withholding it from the defense was not prejudicial because Ramos’s reluctance to identify Jimenez at trial was plainly explored through examination at trial, and he had extensively testified to his belief that the shooter was Dominican. Id. at 774.

80 offered to discredit a witness – in this case, Ramos – includes evidence that could

have significantly weakened his eyewitness account, undermined the

“thoroughness and . . . good faith” of the police investigation, Kyles v. Whitley,

(1995), or “could have helped the defense suggest an

alternative perpetrator,” Boyette v. Lefevre,

(2d Cir. 2001). But in

1994, the fact that Ramos had based his identification of Jimenez on his mistaken

belief that Jimenez was Dominican was, so far as his affidavit suggests, a private

thought expressed to no one at the time. The content of his conversation with

Detective Thompson demonstrates that none of the involved parties would have

understood his queries as material to guilt or innocence that could have

undermined the basis for his identification of Jimenez.

Ramos’s affidavit describes only his internal narrative about why he

considered information about Jimenez’s ethnicity important. Ramos averred that

he asked “because [Ramos] wanted to make sure that [Jimenez] was not Puerto

Rican because [Ramos] knew that the person who killed [Brana] was

Dominican,” and that he “was still uncertain” as to the shooter’s identity until

Detective Thompson mistakenly told him that Jimenez was indeed Dominican, at

which point he “thought that they had him” and “thought that [Jimenez] was the

81 one who killed [Brana].” App’x 67-68. Nowhere in Ramos’s attestation is there

any suggestion that Detective Thompson knew or should have understood from

his questioning that the reason Ramos wanted to know whether Jimenez was

Dominican or Puerto Rican was to allay his uncertainty about identifying the

killer, as opposed to idle curiosity.

Certainly, the record does not reflect that anyone understood that Ramos

hesitated to identify Jimenez, either at the lineup or in the courtroom, because he

was unsure whether Jimenez was actually Dominican. Such an inference on

Detective Thompson’s part would have been remarkable. Jimenez’s ethnicity was

not the basis for Ramos’s identification; it bears repeating that he told Detective

Thompson the day after the murder that he knew the shooter’s identity because

he recognized Monaguillo. Thus, even assuming that Detective Thompson’s

allegedly influential statement to Ramos was said at all, that it was material to the

case, and that its withholding was prejudicial to the defense, it was not favorable

Brady material at the time it was made. At the very least, under the forgiving

standards of § 2254(d), it was not such clearly favorable Brady material that the

State court’s determination runs afoul of clearly established federal law.

In summary, the content of the conversation between Detective Thompson

82 and Ramos would not have clearly signaled to either the defense or the State that

Ramos was reluctant to identify Jimenez only due to his uncertainty about

Jimenez’s ethnicity. Because a fair jurist could reasonably reach the conclusion

that Jimenez had not demonstrated a Brady violation, the State court’s terse

reasoning in denying that claim is not “so flawed as to undermine confidence

that the constitutional claim has been fairly adjudicated.” McCray,

(internal quotation marks omitted), quoting Cruz,

.

We are unpersuaded by Jimenez’s counterarguments on appeal. He argues

that the State court misapplied clearly established law by failing to recognize that

Detective Thompson’s undisclosed conversation with Ramos falls into certain

broad categories of types of favorable Brady material: evidence that undermines

the reliability of Ramos’s trial identification of Jimenez, Smith,

, and

evidence that discredits the quality of the police investigation, Kyles,

. But those are categories that have been found sufficiently favorable to

defendants under case-specific sets of facts. See Yarborough,

(state

courts have “more leeway” in “[a]pplying a general standard to a specific case”).

On the unique facts of this case, it is certainly within the range of reasonable

application of the law and facts for the State court to have concluded that

83 Detective Thompson’s putative incorrect statement to Ramos that Jimenez was

Dominican was both incidental to the central inculpatory facts presented at trial,

and not recognizable as the type of impeachment evidence prohibited by clearly

established law.

Jimenez finally argues that the State court unreasonably found as a matter

of fact that Ramos’s affidavit was noncredible, because Ramos’s multiple

explanations for his identification of the killer were not incompatible with each

other. The State court’s credibility determinations on this front are not

unreasonable. A fair jurist reviewing only Ramos’s affidavit could rationally find

it difficult to reconcile his statements to police in the immediate aftermath of the

murder and his trial testimony about recognizing Monaguillo. As exhaustively

explained, it is not obvious from the conversation recounted in the affidavit why

Jimenez’s ethnicity mattered to Ramos’s identification, and it is doubly hard to

see why it should have been obvious when all parties understood at the time that

the reason Ramos identified Jimenez was because he recognized Monaguillo.40

40 Indeed, defense counsel knew at the time of trial that Jimenez was Puerto Rican, not Dominican, and did not use that fact to impeach Ramos, presumably because nothing in Ramos’s testimony, or anything in the record prior to Ramos’s recantation, suggested that he had identified a person he thought was Dominican because of a Dominican word he heard the shooter say.

84 Therefore, the State court did not unreasonably depart from the facts in the

record before it by viewing the allegations in Ramos’s affidavit as “far-fetched.”

Jimenez I,

, at *8.

Under the forgiving analysis mandated by AEDPA, the State court did not

unreasonably deny Jimenez’s Brady claim as meritless.

CONCLUSION

We remain troubled by the possibility that Jimenez is innocent of the crime

for which he was convicted. But given the unsettled law of the Supreme Court

and the deferential review required by AEDPA, being troubled is simply not

enough. Even assuming, as the Supreme Court has never held, that clear and

convincing evidence of actual innocence permits a grant of habeas corpus,

Jimenez has not satisfied that standard, let alone shown that the State court’s

conclusion that he failed to meet that standard was unreasonable. Accordingly,

and for the reasons set forth above, we AFFIRM the district court’s judgment

denying Jimenez’s petition for a writ of habeas corpus.

85 JOSÉ A. CABRANES, Circuit Judge, concurring in the judgment:

I concur only in the judgment of the Court insofar as it holds that Jimenez

has not carried the burden of proving, under the standards set by the

Antiterrorism and Effective Death Penalty Act of 1996,

, his actual

innocence—assuming that such a claim is cognizable—nor that the Government

withheld exculpatory evidence in violation of the Fourteenth Amendment’s Due

Process Clause, see Brady v. Maryland,

(1963).

1