
    William DiCAPRIO-CUOZZO, # 1121972, Petitioner, v. Gene M. JOHNSON, Director of the Virginia Department of Corrections, Respondent.
    Case No. 2:10cv157.
    United States District Court, E.D. Virginia, Norfolk Division.
    Oct. 12, 2010.
    
      William Jay DiCaprio-Cuozzo, Burke-ville, VA, pro se.
    Kathleen Beatty Martin, Office of the Attorney General, Richmond, VA, for Respondent.
   OPINION AND FINAL ORDER

REBECCA BEACH SMITH, District Judge.

This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition alleges violations of federal rights pertaining to Petitioner’s conviction on July 2, 2002, in the Henrico County Circuit Court, Virginia, of three (3) counts of forcible sodomy, as a result of which he was sentenced to serve a total active sentence of fifty-one (51) years, in the Virginia penal system.

The matter was referred to a United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia for report and recommendation. The report of the magistrate judge was filed on August 13, 2010, recommending dismissal of the petition. (Document No. 29.) By copy of the report, each party was advised of his right to file written objections to the findings and recommendations made by the magistrate judge. On August 20, 2010, the court received Petitioner’s objections. (Document No. 30.) On August 27, 2010, the court received Respondent’s objections. (Document No. 32.)

Equitable Tolling for Actual Innocence

Petitioner’s primary objection is to the magistrate judge’s finding that Petitioner is not entitled to a period of equitable tolling because he failed to demonstrate that he is actually innocent of the charges that were dropped by the government as part of the plea bargain, as well as the three (3) charges to which he pleaded guilty. (Pet’r’s Objections at 2-5.) Petitioner also challenges the magistrate judge’s finding that “only the three (3) charges of forcible sodomy are implicated by Rossi’s recantation.” Id. at 2. Petitioner alleges that all thirteen (13) of the indictments originally brought against him “stemmed from and related solely to the direct alleged sexual abuse of Rossi and photographs of which were also involved in the evidence presented.” Id. at 3.

The court carefully reviewed the charges in all thirteen (13) indictments, as well as Rossi’s affidavit. Rossi’s affidavit specifically mentions only the three (3) charges to which Petitioner pleaded guilty. Rossi states that he “learned that [Petitioner] was convicted of forcible sodomy for having ‘[Rossi] penetrate [Petitioner’s] anus.’ Above all of this, not only was there no such photograph depicting such an act by [Rossi] upon [Petitioner], but no such thing EVER took place.” (Rossi Aff. ¶ 12.) Rossi also declares that Petitioner “became victim to a 51 year sentence for crimes he did not commit upon [Rossi].” (Rossi Aff. ¶ 13.) Accordingly, this new evidence suggests that Petitioner is actually innocent of the three (3) charges to which he pleaded guilty.

As the magistrate judge correctly stated, in order to take advantage of equitable tolling based upon a potential actual innocence exception, Petitioner must demonstrate that he is actually innocent of the crimes for which he was convicted as well as “any other charge dropped by the government as part of a plea bargain.” United, States v. Green, No. 7:99cr32, 2009 WL 2840491, at *2 (W.D.Va. Aug. 31, 2009) (citing Bousley v. United States, 523 U.S. 614, 624, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)); see also United States v. Jacksow-Bey, 302 F.Supp.2d 621, 633-34 (E.D.Va. 2004). In addition to the specific statements discussed above, Rossi’s affidavit also contains general statements about Petitioner’s conduct. Rossi states that Petitioner “never molested [Rossi] nor forced [Rossi] to engage in any sexual act.” (Rossi Aff. ¶ 10(A)). Rossi further states that Petitioner “did not take the photographs of [Rossi] nude, in sexual positions, nor did he ever sexually abuse [Rossi].” (Rossi Aff. ¶ 10(F).) Petitioner argues that these statements demonstrate that he is actually innocent of the eight (8) indictments charging Petitioner with engaging in various sexual acts with Rossi that were nolle prossed. (Pet’r’s Objections at 4.)

A careful analysis of the language in Rossi’s affidavit casts doubt on Petitioner’s assertion. Rossi claims that Petitioner never “forced, [Rossi] to engage in any sexual act.” (Rossi Aff. ¶ 10(A)) (emphasis added). The court notes that none of the eight (8) nolled prossed charges discussed here require proof of force, threats, or intimidation where the victim is under the age of thirteen (13), or fifteen (15), for the indecent liberties charges. Thus, even if Rossi consented to engage in the alleged sexual acts, the conduct would still be unlawful.

Rossi also states that Petitioner never “molested” or “sexually abused” him. (Rossi Aff. ¶ 10(A), (F).) These statements have multiple plausible interpretations. To the extent that these phrases indicate that Petitioner never made Rossi engage in sexual acts against his will, Petitioner’s argument suffers from the same flaw as the statement about force. If the court construes Rossi’s affidavit to state that Petitioner and Rossi never had any sexual contact, consensual or otherwise, then the new evidence could be used in an attempt to demonstrate that Petitioner is actually innocent of the eight (8) nolle prossed charges that expressly allege that Petitioner engaged in sexual acts with Rossi.

Nonetheless, even if the court construes the affidavit to implicate all of the charges mentioning Rossi, the petition must still be dismissed because Petitioner failed to establish actual innocence with respect to the two (2) remaining charges that were nolle prossed. The two (2) remaining indictments charged Petitioner with producing sexually explicit material involving a person under the age of eighteen (18). Rossi’s affidavit states that Petitioner “did not take the photographs of [Rossi] nude, in sexual positions, nor did he ever sexually abuse me. The photographs with [Petitioner] in them were the ones [Petitioner] went to Randy’s to take baek, and were with another subject within. That subject was not [Rossi].” (Rossi Aff. ¶ 10(F).) Petitioner argues that this statement demonstrates that he is actually innocent of the two (2) indictments charging Petitioner with production of child pornography. (Pet’r’s Objections at 4.) The court disagrees. Neither of these indictments alleges that the minor involved was Rossi. Furthermore, Rossi’s own statement suggests that there are in fact pictures of Petitioner and another individual, although it says nothing about the identity or age of the other individual, or the nature of the images. At best, the new evidence Petitioner offers indicates that Petitioner is actually innocent of producing any pornographic material utilizing Rossi, but it fails to demonstrate that “it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt” of producing pornographic material depicting a person, other than Rossi, who is under the age of eighteen (18). House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).

Because Petitioner failed to demonstrate that he is actually innocent of all of the “charge[s] dropped by the government as part of a plea bargain,” Green, 2009 WL 2840491, at *2, he is not entitled to a period of equitable tolling under a potential actual innocence exception. Accordingly, Petitioner’s objection is OVERRULED.

Certifícate of Appealability

Petitioner also objects to the magistrate judge’s finding that the Petitioner “failed to demonstrate ‘a substantial showing of the denial of a Constitutional right.’ ” (Pet’r’s Objections at 5.) The magistrate judge made this finding in the context of recommending that the court decline to issue a certificate of appealability, and was not a finding made on the merits of the petition. In order to obtain a certificate of appealability, a habeas petitioner must demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(e)(2). To satisfy this requirement, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right.” Brown v. Johnson, No. 09-8150, slip op. at 2, — Fed.Appx. -, -(4th Cir. Aug. 19, 2010) (unpublished) (citing Slack, 529 U.S. at 484-85, 120 S.Ct. 1595). The court FINDS that the magistrate judge’s conclusion that the petition is barred by the statute of limitations is correct, and that Petitioner failed to establish that the ruling is debatable. Accordingly, Petitioner’s objection is OVERRULED.

Respondent’s Objection

Respondent objects to a recitation in the conclusion of the magistrate judge’s report which states that: “The statute of limitations was statutorily tolled for twenty-one (21) days while DiCaprio-Cuozzo’s motion for a new trial was pending before the state court.” (Rpt. at 15.) As noted by the Respondent, the magistrate judge’s actual finding, as presented in the Findings of Facts and Conclusions of Law section of the report, was conditional, stating that: “If the Court determined that this motion was a properly filed application for post-conviction review, the limitations period only would be tolled twenty-one (21) days until April 7, 2009.” (Rpt. at 11.) Respondent objects to the recitation in the conclusion of the report because it fails to incorporate the conditional language used earlier, arguing that the motion at issue was not a properly filed application for post-conviction review and thus did not toll the limitations period. (Resp’t’s Objection ¶ 4.) Respondent acknowledges that “[i]f the Magistrate Judge merely had assumed without deciding that the time was tolled, the respondent would have accepted the finding.” (Resp’t’s Objection ¶ 1 n. 1.)

The Rossi affidavit was executed on March 17, 2008. Petitioner filed the instant petition on March 24, 2010, well beyond the one-year limitations period imposed by the AEDPA. See 28 U.S.C. § 2244(d)(1). Ultimately, whether Petitioner’s state court motion for a new trial was a properly filed application for post-conviction review is not material. Under either scenario, the instant petition was filed at least fifty (50) weeks after the limitations period had expired. Accordingly, Respondent’s objection is OVERRULED.

Conclusion

The court, having reviewed the record and examined the objections filed by Petitioner and Respondent to the magistrate judge’s report, and having made de novo findings with respect to the portions objected to, the court hereby ADOPTS AND APPROVES the findings and recommendations set forth in the report of the United States Magistrate Judge filed on August 13, 2010, with the following modifications, which are not material to the court’s decision. See 28 U.S.C. § 636(b)(1). These modifications are as follows: page 15, line 10, following the word “The,” insert the words “court assumes, without deciding, that the”; page 15, line 14, following the words “April 7, 2009,” insert the words “at the latest,”; and page 15, line 16, strike the word “nearly” and insert the word “approximately.”

Accordingly, it is hereby ORDERED that the petition be DENIED AND DISMISSED, as the claims are barred by the statute of limitations. It is further ORDERED that judgment be entered in favor of Respondent.

Petitioner may appeal from the judgment entered pursuant to this final order by filing a urritten notice of appeal with the Clerk of this Court, United States Courthouse, 600 Granby Street, Norfolk, Virginia 23510, within thirty (30) days from the date of entry of such judgment. Petitioner failed to demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Therefore, the court, pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure, declines to issue a certificate of appealability. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

The Clerk shall forward a copy of this Opinion and Final Order to Petitioner and to counsel of record for Respondent.

UNITED STATES MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

F. BRADFORD STILLMAN, United States Magistrate Judge.

This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254. The matter was referred to the undersigned United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C), Rule 72(b) of the Federal Rules of Civil Procedure, and Rule 72 of the Local Civil Rules of the United States District Court for the Eastern District of Virginia. For the reasons stated herein, the Court recommends that the instant petition for a writ 'of habeas corpus be DENIED.

I. STATEMENT OF THE CASE

A. Background

On July 2, 2002, Petitioner, William DiCaprio-Cuozzo (“DiCaprio-Cuozzo”), was convicted of three (3) counts of forcible sodomy in the Henrico County Circuit Court of Henrico, Virginia. Tr., Commonwealth v. DiCaprio-Cuozzo, Nos. CR014086-00-F, CR01-4088-00-F, CR01-409100-F (Va.Cir.Ct. July 2, 2002). On October 4, 2002, DiCaprio-Cuozzo was sentenced on each charge to forty (40) years in prison with twenty-three (23) years suspended, resulting in a total active sentence of fifty-one (51) years. Tr., Commonwealth v. DiCaprio-Cuozzo, Nos. CR014086-00-F, CR01-4088-00-F, CR01-409100-F (Va.Cir.Ct. Oct. 4, 2002).

DiCaprio-Cuozzo entered an Alford plea, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), pursuant to a plea agreement. Tr. at 5, Commonwealth v. DiCaprio-Cuozzo, Nos. CR01-4086-00-F, CR01-4088-00-F, CR01-4091-00-F (Va.Cir.Ct. July 2, 2002). DiCaprio-Cuozzo did not directly appeal his conviction, and therefore, his conviction became final on November 3, 2002, thirty (30) days after the Circuit Court sentenced him.

DiCaprio-Cuozzo filed a petition for a writ of habeas corpus (“state petition”) in the Henrico County Circuit Court on September 1, 2004. DiCaprio-Cuozzo v. Page True, Warden, No. CL04-1007 (Va.Cir.Ct Sept. 1, 2004). After considering DiCaprio-Cuozzo’s claims on the merits, the circuit court denied the petition on October 19, 2004. Id. DiCaprio-Cuozzo appealed that decision to the Supreme Court of Virginia, and the court dismissed the petition on March 8, 2005, because Petitioner had not timely filed his notice of appeal. DiCaprio-Cuozzo v. Page True, Warden, No. 050211 (Va. Mar. 8, 2005).

On November 3, 2005, DiCaprio-Cuozzo filed a second habeas petition in the Supreme Court of Virginia. The Supreme Court of Virginia refused the petition on February 2, 2006, holding that it was both successive and time-barred. DiCaprio-Cuozzo v. Warden, No. 052239 (Va. Feb. 2, 2006).

On May 30, 2007, DiCaprio-Cuozzo filed a Motion to Vacate Void Judgment in the Henrico County Circuit Court, which was denied on June 1, 2007. DiCaprio-Cuozzo appealed, and the Supreme Court of Virginia dismissed the appeal on October 19, 2007. DiCaprio-Cuozzo v. Commonwealth, No. 071907 (Va. Oct. 19, 2007). DiCaprio-Cuozzo filed a petition for rehearing, which was refused on January 22, 2008.

On July 18, 2008, DiCaprio-Cuozzo executed a Motion to Vacate Void Judgment in the Henrico County Circuit Court. The court denied the motion on July 28, 2008. DiCaprio-Cuozzo appealed to the Supreme Court of Virginia, which dismissed his appeal on January 14, 2009. DiCaprio-Cuozzo v. Commonwealth, No. 082423 (Va. Jan. 14, 2009). DiCaprio-Cuozzo filed a petition for rehearing, which was refused on March 9, 2009.

On August 18, 2008, DiCaprio-Cuozzo filed a motion for new trial in the Henrico County Circuit Court on the basis that Richard Rossi, the alleged victim, had recanted his trial testimony. DiCaprioCuozzo attached a signed and notarized affidavit from Rossi in which Rossi denied that DiCaprio-Cuozzo sexually abused him. The court denied DiCaprio-Cuozzo’s motion on September 8, 2008.

On September 23, 2009, DiCaprio-Cuozzo wrote a letter to Judge Harris requesting review of his case or to have his convictions run concurrently. This letter was interpreted as a motion for review, which the court denied on September 30, 2009. DiCaprio-Cuozzo then asked for recusal of the judge and reconsideration of his motion, which was denied on October 8, 2009. DiCaprio-Cuozzo next appealed this denial to the Supreme Court of Virginia, which refused the appeal on May 27, 2010. DiCaprio-Cuozzo filed a petition for rehearing, which is currently pending. DiCaprio-Cuozzo v. Commonwealth, No. 092605.

B. The Instant Petition

On March 24, 2010, while in the custody of the Virginia Department of Corrections at Nottoway Correctional Center, DiCaprio-Cuozzo executed the instant petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. In his petition, DiCaprioCuozzo alleges actual innocence. On May 27, 2010, Respondent filed his Rule 5 Answer, a Motion to Dismiss accompanied by a supporting brief, and a Roseboro Notice pursuant to Local Rule 7(K). (Doc. Nos. 15-18.) On June 16, 2010, DiCaprio-Cuozzo filed his response (Doc. No. 19), accompanied by a Motion for Discovery, Motion for Evidentiary Hearing, and Motion for Appointment of Counsel (Doc. Nos. 20-22).

Respondent argues that Petitioner’s claim is barred by the statute of limitations. The Court agrees.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court need not address the merits of DiCaprio-Cuozzo’s habeas corpus petition because the Court FINDS that the petition is barred by the statute of limitations.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-year statute of limitations for the filing of federal habeas corpus petitions pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2244(d)(1). The statute also prescribes how the one-year limitation period is calculated, including the date on which the limitation period begins, id. § 2244(d)(1), and the circumstances in which the limitation period may be tolled, id. § 2244(d)(2).

A. Commencement of the Statute of Limitations

The AEDPA provides that:

The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2244(d)(1).

Ordinarily, the limitation period for filing a federal habeas corpus petition eommenees when the petitioner’s conviction becomes final. See 28 U.S.C. § 2244(d)(1)(A). DiCaprio-Cuozzo states that the one-year limitations period does not bar his petition because his petition is “based upon newly discovered evidence not available at trial....” (Pet. at 14.) The Court construes DiCaprio-Cuozzo’s assertion as an argument that the statute of limitations in his case should be calculated pursuant to the belated commencement date in § 2244(d)(1)(D).

Under 28 U.S.C. § 2244(d)(1)(D), the one-year limitation period may run from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D). Pursuant to this provision, the relevant inquiry is “when the petitioner knows, or through due diligence could have discovered, the factual predicate for a potential claim, not when he recognizes their [sic] legal significance.” McKinney v. Ray, No. 3:07cv266, 2008 WL 652111, at *2 (E.D.Va. Mar. 11, 2008); see also Owens, 235 F.3d at 359; Johnson v. Polk, No. 1:07cv278, 2008 WL 199728, at *3 (M.D.N.C. Jan. 22, 2008); Phillips v. Spencer, 477 F.Supp.2d 306, 311 (D.Mass.2007) (“ ‘[F]actual predicate’ ... meanfs] evidentiary facts or events rather than court rulings or legal consequences of the facts.”).

Respondent summarily states that § 2244(d)(1)(D) does not apply to DiCaprio-Cuozzo’s petition. The Court disagrees.

DiCaprio-Cuozzo’s claim is based on a newly discovered factual predicate, specifically Rossi’s recantation on March 17, 2008. Multiple courts have held that a witness’s recantation can serve as the factual predicate from which the limitations period begins to run. See, e.g., Daniels v. Uchtman, 421 F.3d 490, 492 (7th Cir.2005); Armstrong v. Romanowski, 2010 WL 618375, at *3 (E.D.Mich. Feb. 18, 2010); Castillo v. Ercole, 2009 WL 1492182, at *3 (S.D.N.Y. May 27, 2009); Henderson v. Foligno, 2007 WL 1589447, at *2 n. 7 (E.D.Pa. May 31, 2007); see also Frederick v. McNeil, 300 Fed.Appx. 731, 732-33 (11th Cir.2008); Ajamu-Osagboro v. Patrick, 620 F.Supp.2d 701, 712 (E.D.Pa.2009). If the petitioner knew or could have discovered that the witness was willing to recant his or her testimony prior to the time the affidavit is executed, the limitations period begins to run on the prior date. See Bates v. Warren, 2010 WL 1286206, at *8 (E.D.Mich. Mar. 30, 2010)(“Federal courts have applied [ ] principles [under § 2244(d)(1)(D) ] to cases involving recanting witness affidavits ruling that the limitations period begins when the petitioner knew or could have discovered that the witness was willing to recant his or her testimony, not when the affidavit is executed.”). However, where, as here, there is no evidence that the petitioner possibly could have discovered the recantation previously, the date of the recantation becomes the date on which the limitations period begins to run. See, e.g., Daniels, 421 F.3d at 492; Ajamu-Osagboro, 620 F.Supp.2d at 712 (“As an incarcerated individual, petitioner arguably had no way of learning of [the victim’s] recantation any earlier.”).

Here, Rossi’s affidavit is dated March 17, 2008. Therefore, absent any applieable tolling period, DiCaprio-Cuozzo had until March 17, 2009, to file his federal habeas corpus petition.

B. Statutory Tolling

A person in state custody may toll the running of the limitation period during the time in “which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). An application for state post-conviction review “is ‘properly filed’ when its delivery and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). Thus, an application that does not comply with the applicable rules, but that is nonetheless accepted by the clerk of a state court, is not a properly filed application; it is merely a “pending” application that does not toll the limitation period. Id. at 9, 121 S.Ct. 361 (stating that an application was not properly filed and the limitation period was not tolled where the required fee was not included with the filing). Accordingly, a petition that is dismissed by the state court as untimely is “not ‘properly filed,’ and ... is not entitled to statutory tolling under § 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). On the other hand, an application that complies with the rules governing filings, but contains claims that are procedurally barred, is still a properly filed application that tolls the statute of limitations. Artuz, 531 U.S. at 9, 121 S.Ct. 361. A properly filed application remains pending throughout the state review process, including the time period between a lower state court’s decision and the filing of a notice of appeal to a higher state court. Carey v. Saffold, 536 U.S. 214, 219-21, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); Rouse v. Lee, 339 F.3d 238, 243-44 (4th Cir.2003) (noting that a state post-conviction proceeding for § 2244(d)(2) tolling purposes encompasses all state-court proceedings, “from initial filing [in the trial court] to final disposition by the highest state court” (quoting Taylor v. Lee, 186 F.3d 557, 561 (4th Cir. 1999))).

Here, on August 18, 2008, DiCaprioCuozzo filed a motion for new trial in the Henrico County Circuit Court on the basis of Rossi’s recantation. The Henrico County Circuit Court denied DiCaprio-Cuozzo’s motion on September 8, 2008. This appears to be the first motion filed by DiCaprio-Cuozzo regarding Rossi’s recantation. If the Court determined that this motion was a properly filed application for post-conviction review, the limitations period only would be tolled twenty-one (21) days until April 7, 2009.

DiCaprio-Cuozzo did not appeal the court’s September 8, 2008 denial, and he did not file any additional motions until September 23, 2009. Because the additional motions filed by DiCaprio-Cuozzo were filed after April 7, 2009, they do not toll his limitations period. Therefore, taking the 21-day period of statutory tolling into consideration, DiCaprio-Cuozzo had until April 7, 2009, to file the instant petition. DiCaprio-Cuozzo did not execute the instant petition until March 24, 2010. Accordingly, the Court FINDS that the instant petition is time-barred unless DiCaprio-Cuozzo demonstrates grounds for equitable tolling of the statute of limitations.

C. Equitable Tolling

In addition to a period of statutory tolling, DiCaprio-Cuozzo may be entitled to equitable tolling of the statute of limitations. See Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010) (holding that “§ 2244(d) is subject to equitable tolling in appropriate cases”). DiCaprio-Cuozzo argues that his petition is not time barred because he qualifies for equitable tolling because he is actually innocent.

Under the AEDPA, a petitioner may benefit from equitable tolling only if he “presents (1) extraordinary circumstances, (2) beyond his control or external to his own conduct, (3) that prevented him from filing on time.” Rouse, 339 F.3d at 246. The petitioner must “establish[] two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way.” Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007); Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Furthermore, “any resort to equity must be reserved for those rare instances where — due to circumstances external to the party’s own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result.” Green v. Johnson, 515 F.3d 290, 304 (4th Cir.2008); Harris, 209 F.3d at 330; Little v. United States, 184 F.Supp.2d 489, 494 (E.D.Va.2002) (quoting Harris with approval). The petitioner “bears the burden of establishing ... that he is entitled to the benefit of the doctrine of equitable tolling.” Doiley v. South Carolina, No. 3:08-3175, 2009 WL 3602029, at *4 (D.S.C. Oct. 27, 2009); see also Pace, 544 U.S. at 418, 125 S.Ct. 1807.

The Fourth Circuit has not expressly ruled that “actual innocence” is an exception that permits equitable tolling. However, other circuits have reasonably concluded that there is no such exception. See, e.g., Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir.2005) (determining that “actual innocence is unrelated to the statutory timeliness rules”); Flanders v. Graves, 299 F.3d 974, 977 (8th Cir.2002) (finding that Congress did not include actual innocence as an exception to the one-year statute of limitations requirement in § 2244, and that the court would not create a “judge-made exception” where the congressional language was clear on its face); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.2002) (noting that there was no express exemption in § 2244(d) for claims of actual innocence, and also determining that such claims do not justify equitable tolling). Further, this Court has found the reasoning in these cases compelling. Maven v. Kelly, 2009 WL 2242634, at *3 (E.D.Va. July 24, 2009).

Nevertheless, before addressing the difficult question of whether actual innocence provides grounds for equitable tolling, the Court may first consider whether the petitioner has made a sufficient showing of actual innocence. Carter v. Virginia, 2010 WL 331758, at *3 (E.D.Va. Jan. 26, 2010). To successfully plead actual innocence, DiCaprio-Cuozzo must demonstrate that it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt in light of Rossi’s recantation. House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006)(citing Schlup v. Delo, 513 U.S. 298, 317, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995)). Further, because DiCaprio-Cuozzo pleaded guilty to three (3) charges in exchange for ten (10) other charges being nolle prossed, to demonstrate actual innocence, DiCaprio-Cuozzo “must show actual innocence of the charge to which [he] pleaded guilty and actual innocence of any other charge dropped by the government as part of the plea bargain.” United States v. Green, 2009 WL 2840491, at *2 (W.D.Va. Aug. 31, 2009) (citing Bousley v. United States, 523 U.S. 614, 624, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998))(emphasis added).

Here, DiCaprio-Cuozzo does not qualify for equitable tolling under a potential actual innocence exception because he has not alleged or presented evidence that he is innocent of the ten (10) charges in the indictment that were nolle prossed in exchange for his plea. Based on the Court’s review of the record, only the three (3) charges of forcible sodomy are implicated by Rossi’s recantation, and therefore DiCaprio-Cuozzo has not presented new exculpatory evidence related to the charges dropped by the government pursuant to his plea agreement. See Schlup, 513 U.S. at 326-27, 115 S.Ct. 851. Accordingly, DiCaprio-Cuozzo has failed to demonstrate that it is more likely than not that no reasonable juror would have found him guilty, and therefore he has failed to demonstrate that he is entitled to any period of equitable tolling based on actual innocence.

D. Conclusion

The one-year statute of limitations began to run on March 17, 2008, when Rossi executed the affidavit recanting his testimony. The statute of limitations was statutorily tolled for twenty-one (21) days while DiCaprio-Cuozzo’s motion for a new trial was pending before the state court. DiCaprio-Cuozzo has not established that he is entitled to any period of equitable tolling. Therefore, DiCaprio-Cuozzo had until April 7, 2009, to file his federal habeas petition. DiCaprio-Cuozzo did not file his petition in this Court until March 24, 2010, which was nearly one year after the statute of limitations expired. Accordingly, the Court FINDS that DiCaprio-Cuozzo’s petition is time-barred, and RECOMMENDS that the instant petition be DENIED.

Because DiCaprio-Cuozzo’s petition is time-barred, the Court need not address the merits of his Motion for Discovery (Doc. No. 20), Motion for Evidentiary Hearing (Doc. No. 21) and Motion for Appointment of Counsel (Doc. No. 22), and these motions are DENIED as MOOT.

III. RECOMMENDATION

For the foregoing reasons, the Court, having found that the instant petition was not timely filed and is barred by the statute of limitations, RECOMMENDS that DiCaprio-Cuozzo’s petition for a writ of habeas corpus be DENIED, that Respondent’s Motion to Dismiss be GRANTED, and that all of DiCaprio-Cuozzo’s claims be DISMISSED WITH PREJUDICE. As noted above, the Court also DENIES Petitioner’s Motion for Discovery (Doc. No. 20), Motion for Evidentiary Hearing (Doc. No. 21) and Motion for Appointment of Counsel (Doc. No. 22).

DiCaprio-Cuozzo failed to demonstrate “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2233(c)(2). Therefore, it is recommended that the Court decline to issue any certificate of appealability pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).

IV. REVIEW PROCEDURE

By copy of this Report and Recommendation, the parties are notified that:

1. Any party may serve upon the other party and file with the Clerk specific written objections to the foregoing findings and recommendations within fourteen (14) days from the date of mailing of this report to the objecting party, see 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2), computed pursuant to Rule 6(a) of the Federal Rules of Civil Procedure, plus three (3) days permitted by Rule 6(d) of said rules. A party may respond to another party’s specific objections within fourteen (14) days after being served with a copy thereof. See Fed. R. Civ. P. 72(b)(2).

2. A district judge shall make a de novo determination of those portions of this report or specified findings or recommendations to which objection is made.

The parties are farther notified that failure to file timely objections to the findings and recommendations set forth above will result in a waiver of the right to appeal from a judgment of this Court based on such findings and recommendations. Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Carr v. Hutto, 737 F.2d 433, 433 (4th Cir.1984); United States v. Schronce, 727 F.2d 91, 94 (4th Cir.1984). 
      
      . Petitioner's first objection is to the magistrate judge’s characterization of the altered dates in the affidavit of Richard Jay Rossi ("Rossi”) as suspicious. (Pet’r's Objections at 1.) However, Petitioner does not challenge the magistrate judge’s finding that the affidavit was executed on March 17, 2008, for purposes of commencing the statute of limitations. Since Petitioner does not object to the magistrate judge’s finding, this comment does not warrant further discussion. The court also notes that this affidavit could have been submitted under seal, as it involved matters when Rossi was a minor, but it was not so submitted, and thus became part of the public record upon the filing of the Petitioner in this court on April 7, 2010.
     
      
      . The three (3) indictments to which Petitioner pleaded guilty included the following charges: In case number CR01-4086, Petitioner was charged with "unlawfully and feloniously commit forcible sodomy by committing fellatio upon R.R., a male child, eleven (11) years of age, who is not his spouse, in violation of Virginia Code § 18.2-67.1A(1).” In case number CR01-4088, Petitioner was charged with "unlawfully and feloniously, commit forcible sodomy by having R.R., a male child, eleven (11) years of age, who is not his spouse, commit anal intercourse upon him, in violation of Virginia Code § 18.2-67.1.” In case number CR01-4091, Petitioner was charged with "unlawfully and feloniously, engage in anallingus with R.R., a male child, eleven (11) years of age, who is not his spouse, in violation of Virginia Code § 18.2-67.1.”
     
      
      . The eight (8) indictments that were nolle pressed but involve sexual acts with Rossi include the following charges: In case number CR01-4087, Petitioner was charged with "unlawfully and feloniously, commit forcible sodomy by having R.R., a male child, eleven (11) years of age, who is not his spouse, commit fellatio upon him, in violation of Virginia Code § 18.2-67.1A.” In case number CR01-4089, Petitioner was charged with "unlawfully and feloniously, commit forcible sodomy by committing anal intercourse upon R.R., a male child, eleven (11) years of age, who is not his spouse, in violation of Virginia Code § 18.2-67.1.” In case number CR014090, Petitioner was charged with "unlawfully and feloniously, commit animate object sexual penetration on R.R., a male child, eleven (11) year so age, who is not his spouse, against such person's will, by force, threat or intimidation, with any object not for a bonafide medical purpose, in violation of Virginia Code § 18.2-67.2.” In case number CR014092, Petitioner was charged with "unlawfully and feloniously, commit aggravated sexual battery, by sexually abusing R.R., a male child, eleven (11) years of age, by masturbating such child, in violation of Virginia Code § 18.2-67.3.” In case number CR01-4093, Petitioner was charged with “unlawfully and feloniously, commit aggravated sexual battery, by sexually abusing R.R., a male child, eleven (11) years of age, by having such child masturbate him, in violation of Virginia Code § 18.2-67.3.” In case number CR01-4094, Petitioner was charged with “being over the age of eighteen (18), unlawfully and feloniously, knowingly and intentionally, with lascivious intent, take indecent liberties by exposing his genital parts to R.R., a male minor child, age eleven (11), in violation of Virginia Code § 18.2-370A(I).” In case number CR01-4095, Petitioner was charged with "being over the age of eighteen (18), unlawfully and feloniously, knowingly and intentionally, with lascivious intent, take indecent liberties with R.R., a male minor child, age eleven (11), by proposing such child expose his genital parts to such person, in violation of Virginia Code § 18.2-370A(I).” In case number CR01-4096, Petitioner was charged with "being over the age of eighteen (18), unlawfully and feloniously, knowingly and intentionally, entice, allure, persuade or invite R.R., a male minor child, age eleven (11), to enter his room or house for the purposes set for in § 18.2-370, in violation of Virginia Code § 18.2-370A(5).”
     
      
      . See Va.Code § 18.2 — 67.1(A) (“An accused shall be guilty of forcible sodomy if he or she engages in cunnilingus, fellatio, anilingus, or anal intercourse with a complaining witness ..., and (1) The complaining witness is less than 13 years of age, or (2) The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness’s mental incapacity or physical helplessness.”); Va.Code § 18.2-67.2(A) ("An accused shall be guilty of inanimate or animate object sexual penetration if he or she penetrates the labia majora or anus of a complaining witness, ..., and (1) The complaining witness is less than 13 years of age, or (2) The act is accomplished against the will of the complaining witness, by force, threat or intimidation of or against the complaining witness or another person, or through the use of the complaining witness’s mental incapacity or physical helplessness.”); Va.Code § 18.2-67.3(A) ("An accused shall be guilty of aggravated sexual battery if he or she sexually abuses the complaining witness, and (1) The complaining witness is less than 13 years of age....”); Johnson v. Commonwealth, 5 Va. App. 529, 365 S.E.2d 237, 240 (1988) (noting that if a sexual assault victim is less than 13 years of age, no force is required to prove aggravated sexual battery).
     
      
      . See Va Code § 18.2-370(A)(1) ("Any person 18 years of age or over, who, with lascivious intent, knowingly and intentionally commits any of the following acts with any child under the age of 15 years is guilty of a Class 5 felony: (1) Expose his or her sexual or genital parts to any child to whom such person is not legally married or propose that any such child expose his or her sexual or genital parts to such person; ... (5) Entice, allude, persuade, or invite any such child to enter any vehicle, room, house, or other place, for any of the purposes set forth in the preceding subdivisions of this section.”).
     
      
      . These two (2) indictments include the following charges: In case number CRO1-4084, Petitioner is charged with "unlawfully and feloniously, produce or makes or attempts or prepares to produce or make sexually explicit visual material which utilizes or has as a subject, a person less than eighteen (18) years of age, in violation of Virginia Code § 18.2-374.1B(2).” In case number CR01-4085, Petitioner is charged with "unlawfully and feloniously, knowingly take part in or participate in the filming, photographing or other reproduction of sexually explicit visual material by any means, including but not limited to computer generated reproduction, which utilizes or has a person less than eighteen (18) years of age, in violation of Virginia Code § 18.2-374.1B(3).”
     
      
      . DiCaprio-Cuozzo was indicted on November 13, 2001, and charged with thirteen (13) felonies, including production and reproduction of child pornography, forcible sodomy, animate object sexual penetration, aggravated sexual battery, and indecent liberties. In exchange for pleading guilty to three (3) counts of forcible sodomy, the remaining ten (10) charges were nolle pressed.
     
      
      . Prior to filing his state petition, DiCaprioCuozzo filed the following motions in Henrico County Circuit Court, which were denied:
      Oct. 7, 2002: Motion to Reconsider Sentence
      Jan. 16, 2003: Motion to Vacate Judgment and Withdraw Plea
      Jan. 31, 2003: Motion to Amend Motion to Vacate and Withdraw Plea Mar. 3, 2003: Motion for New Trial on Newly Discovered Evidence Mar. 27, 2003: Motion to Reconsider Motion for New Trial
     
      
      . DiCaprio-Cuozzo claimed that the trial court did not have proper jurisdiction when he was transported for trial.
     
      
      . DiCaprio-Cuozzo argued that he should have been convicted of one single offense rather than three offenses because the sexual acts allegedly occurred on the same day. He also argued for his sentences to run concurrently.
     
      
      . The Court notes that the United States Supreme Court promulgated certain amendments to the Rules Governing Section 2254 Cases in the United States District Courts, which became effective on December 1, 2004. As amended, Rule 3(d) adopts the prison mailbox rule with regard to § 2254 petitions. Accordingly, the Court recognizes the prison mailbox rule for federal habeas petitions. In this case, DiCaprio-Cuozzo's petition was signed on March 24, 2010; however, it was not received by the court until March 30, 2010. The Court assumes, without finding, that the petition was executed on March 24, 2010, the day it was signed. Further, the Court considers the petition filed, for purposes of the statute of limitations, on that date.
     
      
      . The Court notes that on the affidavit, the ''8" in "2008” appears to have been altered. Further, in DiCaprio-Cuozzo's records from the Henrico County Circuit Court, a document entitled "Affidavit for Entry” accompanies and references the recantation and is dated December 15, 2007. The “7” in "2007” also appears to have been altered. Though these inconsistent and altered dates draw suspicion, for the purposes of this Report and Recommendation, the Court assumes without finding that for the purposes of the statute of limitations, the affidavit was executed on March 17, 2008.
     
      
      . The Court notes that even if DiCaprio-Cuozzo’s petition were not time-barred, it likely would be denied on the merits because DiCaprio-Cuozzo's claim of actual innocence is not accompanied by a claim that his conviction is the result of a constitutional violation. See Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)("Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.”). Further, even if DiCaprio-Cuozzo had alleged the same constitutional violations in his federal petition as he did in his state petition, namely that his plea was not knowing and voluntary and he had ineffective assistance of counsel, under the AEDPA, this Court must give deference to the state court’s lawful and reasonable findings that DiCaprioCuozzo's constitutional claims are without merit. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 386, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
     