Whether the 'actual innocence' gateway to federal habeas review allows a federal habeas petitioner to overcome the 'in custody' requirement

QUESTIONS PRESENTED Sean P. Reilly was convicted of witness tampering in 2010 for which served four (4) years in prison. Reilly’s state postconviction motion was pending when his sentence expired, and his claims were never adjudicated on their merits in state court. Reilly filed a § 2254 habeas petition seeking to have his constitutional claims heard for the first time in federal court. He contended that the in dicta exceptions outlined in Lackawanna County Dist. Attorney v. Cross, 582 U.S. 394, 404-06, 121 S. Ct. 1567 (2001)—where a petitioner either makes a claim of actual innocence based on new reliable evidence or demonstrates that the conviction for which the sentence is expired had an adverse affect on a sentence the petitioner is currently serving— 7 should be extended to § 2254 petitioners pursuing redress of federal constitutional claims for the first time in a federal court. The district court disagreed with Reilly and dismissed his petition. For purposes of clarifying the Lackawanna holding, Reilly asks this Court the following two questions: QUESTION ONE Whether the “actual innocence” gateway to federal habeas review applied in Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995), and further explained in dicta in Lackawanna allows a federal habeas petitioner to overcome the “in custody” requirement of 28 U.S.C. § 2254? QUESTION TWO Whether the adverse affect exception explained in dicta in Lackawanna allows a federal habeas petitioner to overcome the “in custody” requirement of 28 U.S.C. § 2254? il ; ~~“)