Whether Mr. Kennedy was denied due process by the Court of Appeals' improper evaluation of Mr. Kennedy's actual-innocence claim to establish cause to excuse the untimeliness of his, pro-se, 28-U.S.C.-2254-petition

QUESTION PRESENTED NONCAPITAL CASE 1. Mr. Kennedy, acting pro se, filed an appeal to the United States Court of Appeals for the Sixth Circuit, therefore, appealing the order of the United States District Court for the Western District of Tennessee Western Division, dismissing his 28 U.S.C. § 2254 Wnit of Habeas Corpus Petition (“§ 2254 Petition”), raising the issue for appellate review “Whether the United States District Court's decision that “the Petitioner cannot establish cause to excuse the untimeliness of his, pro se, 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus under a claim of actual innocence that would entitle him to equitable tolling based on new reliable evidence-critical physical evidence-that was not presented at Petitioner's trial”, was rendered contrary to the United States Supreme Court's decision in Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995)?”. The Court of Appeals refused to grant Mr. Kennedy's application for a certificate of appealability, finding that because “Under 28 U.S.C. § 2244(d)(1)(A), a state prisoner must file his habeas petition within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Kennedy's first two claims concern alleged constitutional violations during his trial. Kennedy's convictions became final on July 19, 1999, when the Tennessee Supreme Court denied him permission to appeal the decision of the Tennessee Court of Criminal Appeals affirming his convictions and sentence. The § 2244(d)(1)(A) statute of limitations started running ninety days later, on October 18, 1999, when Kennedy's time to file a petition for a writ of certiorari in the United States Supreme Court ran out, See Bronaugh v. Ohio, 235 F.3d 280, 283 (6" Cir. 2000), and expired one year later, on October 18, 2000. Kennedy did not file his § 2254 habeas petition until July 2017, almost seventeen years after the statute of limitations on these two claims expired. His 2014 petition for DNA testing did not revive the already-expired statute of limitations. See Searcy v. Carter, 246 F.3d 515, 516, 519-20 (6" Cir. 2001). Accordingly, reasonable jurists would not debate the district court's i conclusion that Kennedy's first two claims were untimely under § 2244(d)(1)(A). Kennedy's third claim concerns an alleged error in the Tennessee Court of Appeals’ resolution of his petition for DNA testing. The Tennessee Supreme Court denied Kennedy's permission to appeal that decision on June 23, 2016. The § 2244(d)(1)(A) statute of limitations stated running the next day, see Lawrence v. Florida, 549 U.S. 327. 322 (2007), and expired one year later, on June 26, 2017. As stated, Kennedy filed his habeas petition on July 7, 2017, eleven days after the § 2244(d)(1)(A) statute of limitations on this claim expired. Accordingly, reasonable jurists would not debate the district court's conclusion that Kennedy's third claim was also untimely under § 2244(d)(1)(A). And even if the district court's procedural ruling on this claim were debatable, reasonable jurists would not debate whether Kennedy stated a meritorious claim for habeas relief because a claim of constitutional error in a post-conviction proceeding is not cognizable under § 2254. See Slack, 529 U.S. at 484; Dufresne v. Palmer, 876 F.3d 248, 254 (6" Cir. 2017); Cress v. Palmer, 484 F.3d 844, 853 (6" Cir. 2007). A prisoner can obtain equitable tolling of the statute of limitations upon making “a credible showing of actual innocence.” Souter v. Jones, 395 F.3d 577, 599 (6" Cir. 2005). This “requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial.” Cleveland v. Bradshaw, 693 F.3d 626, 633 (6" Cir. 2012) (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). The petitioner must