1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term, 2021 5 6 (Argued: October 27, 2021 Decided: March 9, 2023) 7 8 Docket No. 20-1916-pr 9 _____________________________________ 10 11 ARCHIE COSEY, 12 13 Petitioner-Appellant, 14 15 v. 16 17 LYNN LILLEY, SUPERINTENDENT OF WOODBOURNE 18 CORRECTIONAL FACILITY, 19 20 Respondent-Appellee. 21 _____________________________________ 22 23 Before: 24 KEARSE, LOHIER, and PARK, Circuit Judges. 25 26 After pleading guilty to first-degree conspiracy and second-degree 27 murder in state court, petitioner Archie Cosey filed an unsuccessful federal 28 habeas petition as well as an unsuccessful motion in state court to vacate his 29 conviction. In this second habeas petition presently before us, Cosey argues 30 that newly discovered evidence shows that he is actually innocent of the 31 murder charge. The United States District Court for the Southern District of 32 New York (Koeltl, J.) dismissed the petition as both procedurally barred and 33 lacking merit. Although Cosey’s petition was filed after the one-year time 34 limit in 28 U.S.C. § 2244(d), he argues, based on Schlup v. Delo, 513 U.S. 298 35 (1995), for an equitable exception to the time limit based on a sufficient 1 showing of actual innocence. Because Cosey fails to show that it is “more 2 likely than not that no reasonable juror would have convicted him,” Schlup, 3 513 U.S. at 327, his petition is time-barred. We AFFIRM. 4 5 Judge Park concurs in a separate opinion. 6 7 GLENN A. GARBER (Rebecca E. Freedman, on the 8 brief), The Exoneration Initiative, New York, NY, for 9 Petitioner-Appellant Archie Cosey. 10 11 STEPHEN KRESS, Assistant District Attorney (Karen 12 Schlossberg, Assistant District Attorney, on the brief), 13 for Cyrus R. Vance, Jr., District Attorney of New 14 York County, New York, NY, for Respondent-Appellee 15 Lynn Lilley. 16 17 Parvin Daphne Moyne, Elise B. Maizel, Andrew A. 18 McWhorter, Akin Gump Strauss Hauer & Feld LLP, 19 New York, NY; Zara H. Shore, Akin Gump Strauss 20 Hauer & Feld LLP, Washington, DC, for Amici Curiae 21 The Innocence Project and Centurion Ministries, Inc., 22 in support of Petitioner-Appellant Archie Cosey. 23 24 PER CURIAM: 25 The Antiterrorism and Effective Death Penalty Act (“AEDPA”) erects a 26 difficult series of procedural and substantive barriers for prisoners who 27 collaterally attack their state convictions in federal court. Consider, for 28 example, the strict one-year time limit to file a federal habeas petition. See 28

2 1 U.S.C. § 2244(d)(1). 1 Under Schlup v. Delo, 513 U.S. 298 (1995), petitioners

2 who assert their actual innocence are barred by this time limit unless new

3 evidence shows that “‘it is more likely than not that no reasonable juror

4 would have convicted’” them. McQuiggin v. Perkins, 569 U.S. 383, 395 (2013)

5 (quoting Schlup, 513 U.S. at 329). The actual innocence exception to the one-

6 year time limit “may allow a prisoner to pursue his constitutional claims . . .

7 on the merits notwithstanding the existence of a procedural bar to relief”

8 upo