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Pirela v. Vaughn

United States District Court, E.D. Pennsylvania

March 24, 2014

DONALD T. VAUGHN, et al., Respondents.


JOEL H. SLOMSKY, District Judge.


Before the Court is the Amended Petition of Simon Pirela a/k/a Salvador Morales ("Petitioner") for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 18.) Petitioner seeks relief based on a variety of alleged constitutional violations, including violations of his Sixth Amendment rights to a trial by jury and effective assistance of counsel, his Eighth Amendment right against cruel and unusual punishment, and his Fourteenth Amendment right to due process of law.[1]

Following a review of the filings by the parties and the pertinent record, United States Magistrate Judge Henry S. Perkin issued a Report, recommending that the Petition for Writ of Habeas Corpus be denied and that a certificate of appealability not be issued. (Doc. No. 46.) Petitioner filed a reply to the Report and Recommendation containing his objections. (Doc. No. 47.) For reasons that follow, the Court will adopt in part Judge Perkin's Report and Recommendation and ultimately deny the Petition for Writ of Habeas Corpus.


On April 12, 1980, Petitioner killed Julio Cruz with a single gunshot wound to the chest on the 3000 block of Leithgow Street in North Philadelphia. (Doc. No. 46 at 1.) The Pennsylvania Court of Common Pleas described the facts of the case as follows:

The shooting was the result of an argument. The victim, Julio Cruz, was driving his car to his home followed in another car by a friend, Concepcion Lopez. Lopez skidded and screeched his brakes when Cruz suddenly stopped short. The two men then observed [Petitioner] coming towards them, angry and yelling because of the noise. An argument ensued between Lopez and [Petitioner]. Cruz intervened to bring the dispute to an end. [Petitioner] threatened Cruz and then left.
[Petitioner] went to his home at 3009 Leithgow Street and obtained a gun. He returned to where Lopez and Cruz parked, again threatening Cruz. He fired a shot but missed. A crowd had gathered and admonished [the defendant] to leave. The defendant again walked to his home but returned within minutes. He said to Cruz "now I am going to kill you, " pulled his gun and shot Cruz at close range.
[Petitioner] threatened the deceased's wife, who had witnessed the shooting, and then ran from the scene.

(Doc. No. 40 at A1-2.)

In October of 1982, the Commonwealth of Pennsylvania ("Commonwealth") charged Petitioner with capital homicide and related offenses in connection with the shooting death of Julio Cruz. (Doc. No. 46 at 1.) Petitioner was tried by jury before the Honorable Albert Sabo in the Philadelphia Court of Common Pleas. (Id.) He was represented by court-appointed counsel, Stephen P. Gallagher, Esquire. On April 7, 1983, the jury convicted Petitioner of first-degree murder and possession of an instrument of crime. (Id. at 2.) On April 8, 1983, the jury sentenced Petitioner to life imprisonment. (Doc. No. 40 at 8.) On January 23, 1984, in accordance with the jury's decision, the trial court sentenced Petitioner to life in prison without the possibility of parole and a consecutive term of two-and-a-half to five years imprisonment for possession of an instrument of crime. (Id.)

Petitioner filed a timely notice of appeal in the Pennsylvania Superior Court ("Superior Court"). He was represented by court-appointed counsel, Daniel McElhatton, Esquire, on appeal. On January 21, 1986, the Superior Court affirmed the trial court's judgment of sentence.[3] Petitioner did not file a petition for allowance of appeal in the Pennsylvania Supreme Court. (Doc. No. 46 at 3; Doc. No. 40 at 9.)

On September 23, 1991, Petitioner filed a pro se motion in state court seeking relief under Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. § 9541, et seq.[4] (Doc. No. 46 at 3.) Petitioner was represented by various court-appointed attorneys throughout the PCRA process. One of those attorneys was Willis Berry, Jr., Esquire ("Berry"). (Id.) On November 9, 1994, Berry filed a First Amended PCRA petition on Petitioner's behalf. (Id.) On February 1, 1995, the Commonwealth filed a motion to dismiss. On March 23, 1995, Berry filed a Second Amended PCRA petition, acknowledging that he mistakenly confused this case with another one of Petitioner's cases in preparation of Petitioner's First Amended Petition.[5]

Notwithstanding this mistake, the Second Amended Petition relied on the same issues presented in Petitioner's First Amended PCRA petition.[6] (Doc. No. 40 at 10.) In November 1995, Berry was elected to the Philadelphia Court of Common Pleas and withdrew his representation of Petitioner. On November 30, 1995, newly appointed counsel, Richard Johnson, Esquire, ("Johnson") sought leave to amend the Second Amended PCRA petition which contained the claims presented by Berry. On December 27, 1995, the PCRA court denied the motion. Ultimately, on October 19, 1998, the PCRA court denied the Second Amended PCRA petition.[7]

In September 1999, Petitioner, represented by pro bono counsel Mary R. Ennis, Esquire, appealed the dismissal of the PCRA petition to the Superior Court.[8] On May 5, 2000, the Superior Court affirmed the PCRA court's denial of relief. On November 14, 2000, the Pennsylvania Supreme Court denied Petitioner's request for allowance of appeal to review all issues presented to the Superior Court.

On August 7, 2001, Petitioner filed a Petition for a Writ of Habeas Corpus with the United States District Court for the Eastern District of Pennsylvania. The Court stayed the Petition to allow Petitioner an opportunity to present a mental retardation claim in one of Petitioner's other state court PCRA proceedings in accordance with Atkins v. Virginia , 536 U.S. 304, 321 (2002).[9]

In October 2008, Petitioner's habeas petition was transferred to the Honorable Joel H. Slomsky, who assigned the petition to the Honorable Henry S. Perkin for a Report and Recommendation. (Doc. No. 9.) On June 11, 2009, Petitioner filed his Amended Petition for a Writ of Habeas Corpus, which challenges his state court conviction as opposed to only his sentence. (Doc. No. 18.) On August 16, 2013, Judge Perkin issued a Report and Recommendation, recommending that the Amended Petition be denied. (Doc. No. 46.) Petitioner filed objections to the Report which are now before the Court for review.


A. Review of Habeas Corpus Petition

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal habeas Petition may not be granted on any claim which was adjudicated on the merits in State court proceedings unless Petitioner can show that the adjudication of the claims either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); see also Woodford v. Visciotti , 537 U.S. 19, 21 (2002). Under the AEDPA, review of state court legal and factual determinations is highly deferential. See Palmer v. Hendricks , 592 F.3d 386, 392 (3d Cir. 2010) ("[T]the AEDPA requires federal courts collaterally reviewing state proceedings to afford considerable deference to state courts' legal and factual determinations.' Factual determinations made by the state court are presumed to be correct, but may be rebutted by clear and convincing evidence.") (internal quotation omitted). If a state court did not adjudicate a claim on the merits, however, the deferential standard of AEDPA does not apply. Id . Rather, in such cases, "the federal habeas corpus court must conduct a de novo review over pure legal questions and mixed questions of law and fact...." Appel v. Horn , 250 F.3d 203, 210 (3d Cir. 2001) (citing McCandless v. Vaughn , 172 F.3d 255, 260 (3d Cir. 1999)).

B. De Novo Review of Petitioner's Objections to Report and Recommendation

Under 28 U.S.C. § 636(b)(1)(B) and the local rules of this Court, a district judge is permitted to designate a magistrate judge to make proposed findings and recommendations on petitions for post-conviction relief. Any party may file objections in response to the magistrate judge's Report and Recommendation. Id. at § 636(b)(1)(C). Whether or not an objection is made, a district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The [district] judge may also receive further evidence or recommit the matter to the magistrate judge with further instructions." Id . "[I]t must be assumed that the normal practice of the district judge is to give some reasoned consideration to the magistrate's report before adopting it as the decision of the court." Henderson v. Carlson , 812 F.2d 874, 878 (3d Cir. 1987); see also 28 U.S.C. § 636(b).

In the Eastern District of Pennsylvania, Local Rule 72.1.IV(b) governs a petitioner's objections to a magistrate judge's Report and Recommendation. Under that rule, Petitioner must "specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections[.]" Savior v. Superintendent of Huntingdon SCI, No. 11-5639, 2012 WL 4206566, at *1 (E.D. Pa. Sept. 20, 2012). Upon review, "[a district judge] shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). De novo review is non-deferential and generally permits the district court to conduct an "independent review" of the entire matter. Salve Regina College v. Russell , 499 U.S. 225, 238 (1991). "Although [the] review is de novo, [a district judge] [is] permitted, by statute, to rely upon the magistrate judge's proposed findings and recommendations to the extent [the judge], in the exercise of sound discretion, deem[s] proper." Owens v. Beard , 829 F.Supp. 736, 738 (M.D. Pa. 1993) (citing United States v. Raddatz , 447 U.S. 667, 676 (1980)).


In the Amended Petition for Writ of Habeas Corpus (Doc. No. 18), Petitioner raised eighteen claims for the Court to consider. The Magistrate Judge reviewed all eighteen claims, and this Court will now review Petitioner's objections to the Report and Recommendations. Because the Magistrate Judge found several of the claims unexhausted and procedurally defaulted, the Court will briefly discuss the standards for determining exhaustion and procedural default.

A. Exhaustion and Procedural Default

1. Exhaustion

It is a well-established principle that a state prisoner must exhaust all of his claims by "giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999). See also 28 U.S.C. § 2254(b)(1)(A). To do this, a petitioner must have presented his claims to the state court's highest tribunal. Rolan v. Coleman , 680 F.3d 311, 317 (3d Cir. 2012), cert. denied, 133 S.Ct. 669 (2012). "The exhaustion requirement ensures that state courts have the first opportunity to review federal constitutional challenges to state convictions and preserves the role of states courts in protecting federally guaranteed rights." Caswell v. Ryan , 953 F.2d 853, 857 (3d Cir.), cert. denied, 504 U.S. 944 (1992).

Under the exhaustion requirement, a petitioner must show that the claim raised in the federal habeas petition was "fairly presented" to the state courts. Duncan v. Henry , 513 U.S. 364, 365-66 (1995) (quoting Picard v. Connor , 404 U.S. 270, 275 (1971)). See also Baldwin v. Reese , 541 U.S. 27, 29 (2009) (same). This requires a federal habeas petitioner to demonstrate that "the claim brought in federal court [is] the substantial equivalent of that presented to the state courts." Lesko v. Owens , 881 F.2d 44, 50 (3d Cir. 1989) (citations omitted), cert. denied, 493 U.S. 1036 (1990). In other words, the legal theory and the facts supporting a federal claim must have been presented to the state courts. Id .; see also Ross v. Petsock , 868 F.2d 639, 641 (3d Cir. 1989); Gibson v. Scheidemantel , 805 F.2d 135, 139 (3d Cir. 1986). Substantial equivalence is not sufficiently demonstrated if only a "somewhat similar state-law claim was made." McCandless v. Vaughn , 172 F.3d 255, 261 (3d Cir. 1999) (quoting Anderson v. Harless , 459 U.S. 4, 6 (1982)). Federal courts "refuse to take cognizance of arguments that are made in passing without proper development." Johnson v. Williams , 133 S.Ct. 1088, 1095 (2013).

2. Procedural Default

In federal habeas cases, a petitioner must not only have exhausted his state remedies, but must "also have properly done so by giving the [s]tate a fair opportunity to pass upon his claims. O'Sullivan, 456 U.S. at 854 (Stevens, J., dissenting) (citing Darr v. Burford , 339 U.S. 200, 204 (1950)). When a petitioner has deprived the state courts of that opportunity, procedural default prohibits federal habeas relief. Coleman v. Thompson , 501 U.S. 722, 729-32 (1991). A federal court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman , 501 U.S. at 729. A state law ground is "independent" when resolution of the state law question does not depend on a federal constitutional ruling. Ake v. Oklahoma , 470 U.S. 68, 75 (1985). Such a rule is "adequate" if, at the time of the alleged default, "it was firmly established and regularly followed'...." Lewis v. Horn , 581 F.3d 92, 105 (3d Cir. 2009) (quoting Ford v. Georgia , 498 U.S. 411, 423-24 (1991) (quotation omitted)). The "independent and adequate" requirement ensures that the petitioner will have had fair notice of the need to follow the state procedural rule. Bronshtein v. Horn , 404 F.3d 700, 707 (3d Cir. 2005).

The Supreme Court has carved out an exception to the procedural default rule. If a petitioner has procedurally defaulted his claims, he is ineligible for federal habeas relief absent a showing of "cause and prejudice" or a "fundamental miscarriage of justice." Murray v. Carrier , 477 U.S. 478, 485-95 (1986)); see also Coleman , 501 U.S. at 750; Peterkin v. Horn , 176 F.Supp.2d 342, 353 (E.D. Pa. 2001) (stating that upon a finding of procedural default, review of a federal habeas petition is prohibited unless the petitioner can show "cause for his failure to comply with state procedural rules and prejudice resulting therefrom; or that a fundamental miscarriage of justice will occur if not considered"). "Cause" for default "ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim." Murray , 477 U.S. at 492. Thus, cause is shown when "the factual or legal basis for a claim was not reasonably available to counsel, or... some interference by officials, ' made compliance impracticable[.]" Id. at 488 (internal citations omitted). The cause must be "something that cannot fairly be attributed to the petitioner." Johnson v. Klem, No. 04-410, 2004 WL 1175575, at *2 (E.D. Pa. May 26, 2004) (quoting Coleman , 501 U.S. at 754). On the other hand, "the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default." Murray , 477 U.S. at 486.

To demonstrate prejudice, Petitioner must show:
[N]ot merely that the errors at... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied "fundamental fairness" at trial.

Id. at 494 (quoting United States v. Frady , 456 U.S. 152, 170 (1982)). If both cause and prejudice are successfully shown, procedural default will be excused, and the Court may review the merits of the claim. As noted above, procedural default may also be excused if a petitioner can demonstrate that a fundamental miscarriage of justice will occur. A fundamental miscarriage of justice will occur if a Petitioner can establish that in light of new evidence it is more likely than not that no reasonable juror would have convicted him absent the claimed error. Schlup v. Delo , 513 U.S. 298, 327-28 (1995).

3. Exhaustion vs. Procedural Default

Although the doctrines of exhaustion and procedural default tend to go hand-in-hand, they represent two analytically distinct judge-made rules. O'Sullivan , 526 U.S. at 850 (Stevens, J., dissenting). Generally, the exhaustion requirement is purely a rule of timing. Id. at 856. The doctrine's purpose is to determine "whether an applicant for federal relief could still get the relief he seeks in the state system." Id . (citing Engle v. Isaac , 456 U.S. 107, 125-26, n. 28 (1982)). More simply, the exhaustion requirement focuses on the "availability of state procedures at the time when the federal court is asked to entertain a habeas petition." Id. at 852. If an applicant currently has an avenue to raise his claims in state court, a federal court must refrain from intervening in the process. Id.

Although the standards are somewhat connected, the procedural default doctrine requires a federal habeas court to ask how a petitioner exhausted his state court remedies. Id. at 853-54. This inquiry "ensure[s] that state prisoners not only become ineligible for state relief before raising their claim in federal court, but also that they give state courts a sufficient opportunity to decide those claims before doing so." O'Sullivan, 456 U.S. at 853 (Stevens, J., dissenting). If at the time a petitioner filed for habeas relief there were no state remedies available to him because he failed to comply with the state's timing requirements, the petitioner has "exhausted" his state remedies. If the federal courts allowed state prisoners to obtain review by merely allowing the time to run on state remedies and then hastily running to the federal system, the exhaustion rule and comity interests could be easily upset. Id. at 853-54. Thus, in federal habeas cases, "[federal courts] ask not only whether an applicant has exhausted his state remedies; [federal courts] also ask how he has done so." Id. at 854.

B. Petitioner's Objections in Claim I are Unavailing because Petitioner's Freestanding Actual Innocence Claim is Not Cognizable on Habeas Review and Cannot Act as a Gateway for His Other Procedurally Defaulted Claims.

In Claim I of the Amended Petition, Petitioner argued that he is actually innocent of first-degree murder. (Doc. No. 18 at 30-34.) In addition, he argued that his freestanding actual innocence claim must act as a gateway to permit the Court to review his otherwise procedurally defaulted claims of constitutional error. (Id. at 31.) The Magistrate Judge denied habeas relief, finding that Petitioner's freestanding actual innocence claim is neither cognizable on federal habeas review, nor can it act as a gateway to review other procedurally defaulted claims. (Doc. No. 46 at 13.)

Petitioner objects to the Magistrate Judge's Report and Recommendation on Claim I and has advanced four objections. (Doc. No. 47 at 3.) First, Petitioner objects to the Report for concluding that Herrera v. Collins , 506 U.S. 390 (1993) prohibits habeas relief in non-capital cases based on a freestanding claim of actual innocence. (Id.) Second, Petitioner objects to the Report for finding Claim I time-barred and contends that it is timely because "it relates back to other claims raised in his timely-filed [amended] petition and is subject to equitable tolling." (Id. at 4.) Third, Petitioner objects to the Magistrate Judge's finding that this claim is procedurally defaulted and asserts that "any procedural default resulting from his failure to raise this claim in his PCRA proceedings should be excused." (Id. at 8.) Fourth, Petitioner objects to the Magistrate Judge's assessment that Petitioner did not adequately allege a Schlup gateway claim, arguing that the Magistrate Judge "failed to assess [Petitioner's] proffered evidence in light of how a reasonable juror would have reacted to it, as required by House v. Bell , 547 U.S. 518 (2006)." (Id. at 10.)

1. Petitioner's first objection to the Report is meritless because a freestanding claim of actual innocence is not cognizable on federal habeas review

Petitioner's first objection to the Magistrate Judge's treatment of Claim I concerns his substantive, freestanding claim of actual innocence.[10] This objection is distinct from Petitioner's fourth objection under Claim I. There, Petitioner argues that his claim acts as a procedural mechanism to allow the Court to review his otherwise constitutionally procedurally defaulted claims. That objection is discussed in Section IV.B.4. Here, on the other hand, Petitioner objects to the Magistrate Judge's finding that Herrera bars his actual innocence claims from federal habeas review. (Doc. No. 47 at 3.) The Court agrees with the Magistrate Judge that Herrera bars Petitioner's claim of actual innocence.

In Herrera, the United States Supreme Court addressed the issue of whether a freestanding claim of actual innocence was cognizable on federal habeas review. 506 U.S. at 400. The Court concluded that "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."[11] Id . In January 1982, habeas petitioner Leonel Torres was convicted of capital murder and sentenced to death. Id. at 393. Torres unsuccessfully challenged his conviction on direct appeal, state collateral proceedings in Texas state courts, and on federal habeas petition. Id . In February 1992, ten years after his initial conviction, Torres filed a second federal habeas petition arguing that he was "actually innocent" of the murder for which he was convicted and sentenced to death, his Eighth Amendment right against cruel and unusual punishment was violated, and his guarantee of due process of law under the Fourteenth Amendment prohibited his execution. Id. at 393-94. In support of his second federal habeas petition, Torres submitted affidavits which attempted to explain that his deceased brother committed the murder, rather than him. Id. at 393. Specifically, Torres submitted affidavits of his nephew and a schoolmate. Id. at 397. His nephew, who was nine years old at the time of the murder, alleged that he saw his father (Torres' brother) commit the murder and that Torres was not present at the scene of the crime. Id . Moreover, the schoolmate's affidavit indicated that Torres' brother told him that he committed the murder and that law enforcement was aware of this evidence. Id.

The Court found Torres' freestanding claim of actual innocence unavailing. The Court highlighted that a "petitioner otherwise subject to defenses of abusive or successive use of the writ may have his federal constitutional claim heard on the merits if he makes a proper showing of actual innocence." Id. at 404. The Court, however, clarified that a freestanding claim of "actual innocence is not itself a constitutional claim, but instead "a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claims considered on the merits." Id . The petitioner in Herrera did not seek exemption of a procedural error in order to bring an independent constitutional claim that challenged his conviction or sentence. Instead, the petitioner argued that habeas relief was warranted based on newly discovered evidence that showed his conviction to be factually incorrect. Id. at 404. The Court reemphasized that "the existence of merely newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus." Id. at 400 (quoting Townsend v. Sain , 372 U.S. 293, 317 (1963)). The purpose of federal habeas courts is not to cure errors of fact, but rather, to ensure that individuals are not imprisoned unconstitutionally. Id.

Additionally, the Court was not persuaded by Torres' argument that his situation required different treatment because his case was a capital case. The Court has "refused to hold that the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus." Id. at 405 (quoting Murray v. Giarratano , 492 U.S. 1, 9 (1989) (plurality opinion)). The Court further explicated:

We may assume, for the sake of argument in deciding this case that in a capital case a truly persuasive demonstration of "actual innocence" made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim. But because of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high.

Herrera , 506 U.S. at 417. Even under this hypothetical standard, however, Torres fell far short of the heightened threshold. The Court focused on Torres' newly discovered evidence which consisted of affidavits from his nephew and schoolmate. The court noted that relying on these affidavits was suspect because the affiant's statements were procured without the benefit of cross-examination and the opportunity to determine credibility. Id . Moreover, the affidavits were suspect because they were filed over eight years after the trial, without satisfactory explanation. The affiants did not explain why they waited until the "11th hour, " when the alleged murderer-Torres' brother-was dead to make their statements. Id .; see also Taylor v. Illinois , 484 U.S. 400, 414 (1988) (stating that "[I]t is... reasonable to presume that there is something suspect about a defense witness who is not identified until after the 11th hour has passed"). Furthermore, the affidavits contained inconsistencies and could not provide a convincing account of the events which transpired the night of the murder. Herrera , 506 U.S. at 418.

Lastly, the affidavits, when considered in light of the proof of Torres' guilt at trial-including two eyewitness identifications and numerous aspects of circumstantial evidence-pointed heavily to Torres' guilt. The Court explained that the affidavits proffered were not devoid of probative value. Had the information in the affidavits been presented at trial, the jury could have weighed its effect against the evidence offered by the State before returning its verdict. Id. at 418-19. "But coming [ten] years after [Torres'] trial, this showing of innocence falls far short of that which would have to be made in order to trigger the sort of constitutional claim which we have assumed, arguendo, to exist." Id. at 419.

The Court agrees with the Magistrate Judge's determination that under Herrera, a freestanding claim of actual innocence is not cognizable on federal habeas review. Federal habeas review of a freestanding claim of actual innocence is unavailable save an independent constitutional violation that occurred in the underlying state proceeding. Herrera , 506 U.S. at 400. As the Supreme Court explained, "a claim of actual innocence' is not itself a constitutional violation." Id. at 404. Like the petitioner in Herrera, Petitioner here has not alleged an independent constitutional violation which occurred in the state criminal proceedings. He has not sought excusal of a procedural miscue so that he can bring an independent constitutional claim challenging his conviction. Rather, Petitioner argues that he is entitled to habeas relief based on affidavits which tend to show that his conviction is factually incorrect. See Herrera , 506 U.S. at 404.

Petitioner argues that the Herrera decision assumed that in a non-capital case, a freestanding actual innocence claim is cognizable on federal habeas review. (Doc. No. 47 at 3.) Petitioner's argument is incorrect. The Supreme Court in Herrera makes no distinction between capital and non-capital cases for purposes of recognizing that a freestanding claim of actual innocence is not cognizable on federal habeas review. In fact, as mentioned above, the Court explained that "[it] has refused to hold the fact that a death sentence has been imposed requires a different standard of review on federal habeas corpus." 506 U.S. at 390. Furthermore, the Herrera Court's assumption that theoretically, in a capital case, a petitioner who meets an extraordinarily high threshold for showing actual innocence could warrant federal habeas relief is not applicable here. The Court was merely explaining that it would be unconstitutional to execute someone who satisfied that extremely high standard. This is not a capital case. The fears of executing an innocent person are not present here.

Even if Herrera's hypothetical heightened standard applied to non-capital cases, Petitioner falls short of meeting the threshold. As in Herrera, the affiants' statements (including Petitioner's own affidavit) in support of his innocence are suspect because they were obtained without the benefit of cross-examination and without the ability to make credibility determinations. Moreover, analogous to Herrera, Petitioner's affidavits are suspect because they were not filed until at least nine years after trial. In fact, one affiant provided affidavits thirteen and twenty-six years after Petitioner's trial ended. Thus, even if Herrera's assumed extraordinarily high capital standard applied in this context, Petitioner would not meet the threshold.

Additionally, Petitioner asserts that "several circuits have recognized or assumed that actual innocence claims in non-capital cases are cognizable in federal habeas proceedings." (Doc. No. 47 at 3.) Petitioner's assertion is unavailing. This Court is bound to follow precedent set by the Third Circuit Court of Appeals and the United State Supreme Court. The Third Circuit has confirmed Herrera's holding. In Fielder v. Varner, the Court of Appeals followed Herrera's holding that, "[i]t has long been recognized that [c]laims of actual innocence based on newly discovered evidence' are never grounds for federal habeas relief absent an independent constitutional violation." 379 F.3d 113, 122 (3d Cir. 2004) (quoting Herrera); see also Woodard v. Tennis, 2009 WL 1858237 *9 (W.D. Pa. 2009) (concluding that in a non-capital federal habeas case, a petitioner's freestanding claim that he is actually innocent of the underlying crime is not cognizable on federal habeas review without a constitutional claim attached to the actual innocence allegation). In Albrecht v. Horn , 485 F.3d 103, 122 (3d Cir. 2007), the Third Circuit addressed the merits of Petitioner's freestanding actual innocence claim under Herrera's heightened hypothetical standard. The Albrecht court, however, only considered this standard because it was a capital case. Again, because this is not a capital case, Herrera's hypothetical capital case standard for Petitioner's actual innocence claims does not apply.

Petitioner is not entitled to relief based on his freestanding claim of actual innocence. Therefore, Petitioner's non-capital freestanding actual innocence claim is unreviewable by this Court.

2. Petitioner's objection that his freestanding claim of actual innocence is subject to equitable tolling is unavailing

Petitioner objects to the Magistrate Judge's treatment of Claim I for a second reason. He argues that his actual innocence claim is subject to equitable tolling and is therefore not time-barred. Because Petitioner's actual innocence claim is not cognizable on federal habeas review, the Court need not address Petitioner's arguments regarding equitable tolling.

3. Petitioner's objection that his freestanding claim of actual innocence is not procedurally defaulted is also unavailing

Petitioner also objects to the Magistrate Judge's finding that his actual innocence claim is procedurally defaulted. Having determined that the Magistrate Judge was correct in finding this claim not cognizable, the Court need not consider Petitioner's arguments regarding procedural default.

4. Petitioner's freestanding claim of actual innocence cannot act as a gateway for the court to review Petitioner's other ...

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