Blakney v. United States, No. 4:06-cr-584-RBH-1, 2011 WL 1113468 (D.S.C. Mar. 24, 2011):
[August 18, 2011 Update: For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].
While the Fourth Circuit has not expressly ruled that an "actual innocence" exception exists for motions time-barred under either § 2255(f) or § 2244(d), see DiCaprio–Cuozzo v. Johnson, –––F.Supp.2d ––––, 2010 WL 4007622, at *9 (E.D. Va. Oct. 12, 2010), multiple other circuits have concluded that there is no such exception. See Lee v. Lampert, 610 F.3d 1125, 1128–31 (9th Cir. 2010) (concluding there was no actual innocence exception to the AEDPA's statute of limitations); Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005) (holding that actual innocence "is unrelated to the statutory timeliness rules . . . [and] does not extend the time to seek collateral relief”); David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003) (holding that "defendants who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming"); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (stating that claims of actual innocence do not "justify equitable tolling of the limitations period"); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002) (noting that there is no actual innocence exception separate from the usual equitable tolling factors). But see Souter v. Jones, 395 F.3d 577, 599–600 (6th Cir. 2005) (allowing equitable tolling of the AEDPA's statute of limitations based on actual innocence). With there appearing to be no Fourth Circuit authority to support Petitioner's position, the court finds compelling those cases declining to find an actual innocence exception.
[Ed. Note: The 10th Circuit has also ruled that actual innocence may provide a basis for equitably tolling AEDPA's statute of limitations. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)).]