UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ CARL HUBBARD, │ Petitioner-Appellant, │ > No. 21-2968 │ v. │ │ RANDEE REWERTS, Warden, │ Respondent-Appellee. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:13-cv-14540—David M. Lawson, District Judge.

Argued: July 19, 2023

Decided and Filed: April 16, 2024

Before: BATCHELDER, COLE, and NALBANDIAN, Circuit Judges. _________________

COUNSEL ARGUED: Alexander Kazam, KING & SPALDING LLP, Washington, D.C., for Appellant. Marissa A. Wiesen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON BRIEF: Alexander Kazam, KING & SPALDING LLP, Washington, D.C., for Appellant. Marissa A. Wiesen, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. BATCHELDER, J., delivered the opinion of the court in which NALBANDIAN, J., joined. COLE, J. (pp. 21–44), delivered a separate dissenting opinion. _________________

OPINION _________________

ALICE M. BATCHELDER, Circuit Judge. Petitioner Carl Hubbard was convicted of first-degree murder in Michigan state court on September 2, 1992. Over two decades later (and No. 21-2968 Hubbard v. Rewerts Page 2

long after 28 U.S.C. § 2244’s one-year limitation period had expired), Hubbard filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The district court dismissed the petition as untimely. Hubbard now appeals, arguing that he is entitled to an equitable exception to the Antiterrorism and Effective Death Penalty Act of 1996’s (AEDPA) time bar based on a credible showing of actual innocence. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). While Hubbard presents new evidence that impeaches the State’s case against him, he fails to present evidence affirmatively demonstrating his actual innocence; he cannot prove that he did not, in fact, commit murder. Accordingly, AEDPA does not permit him to file an untimely habeas petition. We affirm.

I.

On the night of January 17, 1992, Rodnell Penn was shot in a crime-ridden neighborhood in Detroit. He was found lying near the curb of Gray Street, just north of the corner of Gray and Mack (colloquially, the “Gray and Mack” neighborhood), about two hundred yards away from a party store. Officer Craig Turner arrived at the scene as backup. As EMS loaded Penn’s body into an ambulance, petitioner Carl Hubbard, who had been walking by the scene, walked up to Officer Turner and asked what happened. Officer Turner stated that a homicide had occurred. Hubbard left and came back about ten minutes later, asking if the victim was from the neighborhood and if he was dead. Officer Turner responded that the victim was not from the neighborhood and was indeed dead. Hubbard reacted with what Officer Turner later described as a fake expression of shock. Hubbard then stated, “You think Leonard [] and Charlevois is out cold, Gray and Mack is.” Officer Turner