Aileaf Ashford filed this second or successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Docket No. 1. This court referred the petition to United States Magistrate Judge Jacob P. Hart for a report and recommendation. Docket No. 4; see also 28 U.S.C. § 636(b)(1)(B); Local Civ. R. 72.1(I)(b). Judge Hart concluded in the report and recommendation (R & R) that the petition should be dismissed because it fails to meet the gate-keeping criteria established in 28 U.S.C. § 2244(b). Docket No. 10 (R & R). Ashford filed timely objections to the R & R, which the court finds unpersuasive. Docket No. 11 (Objections to R & R).
The R & R gives an in-depth recitation of the factual and procedural background of this case. R & R, at 1--5. For present purposes, the most relevant facts are detailed below.
On August 22, 2000, a jury convened in the Court of Common Pleas of Philadelphia County found Aileaf Ashford guilty of (1) first-degree murder in the shooting death of Sheldon Clark, and (2) possession of an instrument of crime in connection with that murder. Ashford v. Folino, Civ. No. 07-3847 (First 2254), Docket No. 9, ex. C (Superior Court Decision, at 8). At trial, Kenneth Lomax testified that he witnessed Ashford shoot Clark. Docket No. 9, ex. O-1 (Trial Tr. 31:9--32:15). Lomax also testified that a few days prior to the shooting, he had observed Ashford and Clark arguing about whether Ashford could sell crack cocaine on a particular corner where Clark's associates were already selling crack. Id. at 24:21--26:21.
After exhausting his direct appeals, Ashford petitioned for collateral relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"). See 42 Pa. C.S.A. § 9541 et seq.; Docket No. 9, ex. W (Am. First PCRA Pet.). On August 23, 2005, the Court of Common Pleas dismissed Ashford's first PCRA petition. Docket No. 9, ex. AA (Court of Common Pleas Order Dismissing First PCRA Pet., at 4). Ashford appealed the dismissal to the Pennsylvania Superior Court. First 2254, Docket No. 9, ex. C, at 20 (Superior Court Decision). Ashford attached an affidavit executed by Kenneth Lomax to his first PCRA appeal; in the affidavit, Lomax states that he was high on crack cocaine when the shooting occurred, and that he was financially compensated for his testimony. Id. at 27.The affidavit was not dated or notarized when the petition was filed. Id. On October 31, 2006, the Superior Court denied Ashford's PCRA appeal. Id. at 20.
On or about March 24, 2006, Ashford filed a second PCRA petition. Docket No. 9, ex. BB (Second PCRA Pet.). On August 16, 2006, it was dismissed because the first PCRA petition's appeal was pending. First 2254, Docket No. 9, ex. C, at 24 (Order Dismissing Second PCRA Pet.).
Ashford filed his first federal habeas corpus petition on September 17, 2007. First 2254, Docket No. 1. He submitted a revised version on October 24, 2007. First 2254, Docket No. 4. Ashford attached the Lomax affidavit to that petition, id. at 31, but he did not present an argument about Lomax's recantation or Lomax being paid for his testimony. The petition was dismissed by this court on August 14, 2008, because the claims were procedurally defaulted. First 2254, Docket No. 16.
In the meantime, Ashford filed a third PCRA petition on or about October 25, 2007. Docket No. 9, ex. EE (Third PCRA Pet., at 13). Ashford attached Lomax's affidavit to the petition, as well as an affidavit from Quron Brown.*fn1 Id. at 36, 35.
Brown's affidavit states that he saw a man named "Silk," not Ashford, shoot Clark. Id. at 35. Ashford's third PCRA petition was dismissed as untimely on July 11, 2008. Docket No. 9, ex. HH (Court of Common Pleas Order Dismissing Third PCRA Pet., at 2).
On December 28, 2010, Ashford filed the present habeas corpus petition. Docket No. 1. Because it was a second or successive petition, it was transferred to the Court of Appeals for the Third Circuit. See Docket No. 2 (Transfer Order). On March 10, 2011, the Court of Appeals granted Ashford leave to file this second or successive petition. Docket No. 3 (Third Circuit Order, at 1). The order reads in full:
The foregoing application for leave to file a second or successive petition pursuant to 28 U.S.C. § 2244(b) is granted. Ashford has made a prima facie showing that the affidavits of Kenneth Lomax and Quran Brown constitute newly discovered evidence that, if proven, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found him guilty of his underlying offense. See 28 U.S.C. § 2244(b)(2). The Clerk is directed to transfer the documents received from the District Court in connection with this application back to the District Court, along with a copy of this order, for the District Court's consideration in E.D. Pa. Civil No. 10-cv-07491. Id.
Ashford argues in Ground One of the petition that the affidavits from Kenneth Lomax and Quron Brown constitute newly discovered exculpatory evidence. Docket No. 1, at 8. In Ground Two, Ashford argues that the Commonwealth committed a Brady*fn2 violation when it withheld Lomax's criminal record from the defense. Id. at 10. Finally, in Ground Three, Ashford argues "Actual Innocence" in light of the affidavits. Id. at 12.
The court's analysis of the issues in this case is presented below. Insofar as the R & R is consistent with this analysis, Sections II and III of the R & R are adopted. Since Ashford filed an objection to essentially every conclusion made in the R & R, this ...