
    Toddrick BROCKINGTON, Petitioner-Appellant, v. Luis MARSHAL, Superintendent, Respondent-Appellee.
    No. 08-0839-PR.
    United States Court of Appeals, Second Circuit.
    May 3, 2010.
    Robin C. Smith, Brooklyn, NY, for Appellant.
    Kelly Christine Wolford, Assistant District Attorney, for Michael C. Green, District Attorney of Monroe County, Rochester, NY, for Appellee.
    PRESENT: REENA RAGGI and PETER W. HALL, Circuit Judges.
    
    
      
       The Honorable Rosemary S. Pooler, who was a member of this panel, has removed herself from hearing and consideration of this appeal. The remaining two panel members, who agree on the disposition, decide this appeal pursuant to Second Circuit Internal Operating Procedure E(b).
    
   SUMMARY ORDER

Toddrick Brockington, currently serving a prison sentence of twenty-five years to life on his 1992 New York convictions for felony murder, first degree robbery, and second degree manslaughter, appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We review the district court’s denial of the writ de novo. See Doe v. Menefee, 891 F.3d 147, 163 (2d Cir.2004). In doing so, we assume familiarity with the facts and procedural history, which we reference only as necessary to explain our ruling.

The district court correctly concluded that Brockington’s 2007 petition was filed more than a decade after the “grace period” of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, see Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (allowing defendants convicted before AEDPA to file habeas petitions by April 24, 1997), and Brockington’s 1996 receipt of a medical examiner’s “case narrative” containing what he characterized as newly discovered evidence casting doubt on his conviction, see 28 U.S.C. § 2244(d)(1)(D).

Nevertheless, on March 3, 2009, this court issued a certificate of appealability with respect to two issues: “(1) whether petitioner asserted an actual innocence claim in the proceedings below, and, if so, (2) whether petitioner’s assertion of actual innocence requires tolling of the applicable statute of limitations in this case.” Order Granting Certificate of Appealability, Brockington v. Marshal, No. 08-0839-pr (2d Cir. Mar. 3, 2009).

We have not yet decided whether the Constitution requires tolling of AEDPA’s limitations period in a case of actual innocence. See Doe v. Menefee, 391 F.3d at 161. Accordingly, we have instructed district courts presented with untimely habe-as petitions raising claims of actual innocence to determine, “in each case, whether the petitioner has presented a credible claim of actual innocence before ruling on the legal issues of whether such a showing provides a basis for equitable tolling and whether the petitioner must also demonstrate that he or she pursued his or her claim with reasonable diligence.” Id. Where a district court fails to conduct the required inquiry, we will remand so that it may do so in the first instance. See Whitley v. Senkowski, 317 F.3d 223, 226 (2003).

Construing Brockington’s pro se petition liberally, see Roldan v. Racette, 984 F.2d 85, 87 (2d Cir.1993), we conclude that he asserted a claim of actual innocence. In completing the form that constitutes his petition, Brockington made no express declaration of innocence. Nevertheless, he attached two state court decisions denying post-conviction relief, each noting his claim that the case narrative supported his defense that the robbery never occurred and that he was innocent. See People v. Brockington, No. 91-0321, slip op. at 3 (N.Y.Sup.Ct. Feb. 27, 2006) (“[D]efendant contends that ... he is innocent of the crimes of which he stands convicted.”); People v. Brockington, No. 91-0321, slip op. at 8 (N.Y.Sup.Ct. Dec. 22, 2003) (“[I]t is defendant’s contention that the Case Narrative proves that no robbery occurred .... ”). Finally, in response to the district court’s May 7, 2007 order to show cause why the petition should not be dismissed as time-barred, Brockington submitted a memorandum noting that he had claimed actual innocence in his state court petition for post-conviction relief pursuant

to New York Criminal Procedure Law § 440.10. This record is sufficient, though bai-ely so, to have signaled to the district court that Brockington intended his “newly discovered” evidence to support a claim of actual innocence.

Accordingly, without expressing any view as to the merits of Brockington’s putative claim of actual innocence, we remand to permit the district court to conduct the following sequential inquiry:

(1) Did [Brockington] pursue his actual innocence claim with reasonable diligence? (2) If [he] did not pursue the claim with reasonable diligence, must an actual innocence claim be pursued with reasonable diligence in order to raise the issue of whether the United States Constitution requires an “actual innocence” exception to the AEDPA statute of limitations? (3) If [he] did pursue the claim with reasonable diligence or if reasonable diligence is unnecessary, does [he] make a credible claim of actual innocence? (4) If [he] does make a credible claim of actual innocence, does the United States Constitution require an “actual innocence” exception to the AEDPA statute of limitations on federal habeas petitions?

Whitley v. Senkoivski, 317 F.3d at 225-26.

For the reasons explained, the judgment of the district court is VACATED and the case REMANDED for further proceedings consistent with this ruling. 
      
      . While the form offers pro se petitioners a list of "most frequently raised grounds for relief,” actual innocence is not among the grounds included.
     