Submitted Under Third Circuit L.A.R. 34.1(a) September 19,
Appeal from the United States District Court for the Eastern
District of Pennsylvania (D.C. No. 2-14-cv-01683) District
Judge: Honorable Stewart Dalzell
Michael Wiseman, Esq. Counsel for Appellant.
Kaufman, Esq. Philadelphia County Office of District Attorney
Counsel for Appellees.
Before: MCKEE, Chief Judge, [*] HARDIMAN, and RENDELL, Circuit
HARDIMAN, Circuit Judge.
appeal involves a petition for writ of habeas corpus that was
dismissed as untimely under the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214. Despite his tardy filing, Appellant Patrick Coleman
claims that it was a fundamental miscarriage of justice to
deny him his day in court. Because Coleman cannot satisfy the
actual innocence requirement of the fundamental miscarriage
of justice exception to AEDPA, we will affirm.
was tried along with several other defendants for his
involvement in a gang-related shooting that occurred at
Tobin's Inn Restaurant on August 10, 1989. See
Coleman v. Folino, 2015 WL 6379296, at *1 (E.D. Pa. Oct.
21, 2015). The month-long trial included 76 witnesses for the
Commonwealth, only one of whom testified as to Coleman's
involvement in the shooting. Id. Coleman was
convicted of first-degree murder, two counts of aggravated
assault, criminal conspiracy, and possession of an instrument
of a crime. Id. at *1-2. Significantly for purposes
of this appeal, Coleman was acquitted of violating the
Pennsylvania Corrupt Organizations Act (PCOA), 18 Pa. Cons.
Stat. § 991. Id. at *2. The Pennsylvania
Superior Court affirmed Coleman's convictions, and he did
not seek review by the Pennsylvania Supreme Court.
years after Coleman's convictions became final, the
Pennsylvania Supreme Court held that the PCOA did not apply
to an individual's participation in a wholly illegitimate
enterprise. Commonwealth v. Besch, 674 A.2d 655, 655
(Pa. 1996). Had Besch been the law when
Coleman was tried, he could not have been charged with a PCOA
violation because the gang to which he belonged was wholly
illegitimate. Coleman, 2015 WL 6379296, at *3.
Coleman failed to raise a claim under Besch when he
twice sought post-conviction relief under Pennsylvania's
Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. §
PCRA petitions-a pro se petition filed in 2002 and a
counseled petition filed in 2007-sought reinstatement of his
appellate rights based on ineffective assistance of counsel.
Coleman claimed his attorney had agreed to appeal his
conviction to the Pennsylvania Supreme Court but failed to do
so. Both petitions were denied.
2014, Coleman filed a petition for writ of habeas corpus in
the United States District Court for the Eastern District of
Pennsylvania. Coleman argued that he was denied due process
because the evidence introduced against his co-defendants was
unfairly imputed to him. The Magistrate Judge recommended
that Coleman's petition be dismissed as untimely under
AEDPA, which imposes a one-year statute of limitation on
applications for writs of habeas corpus. Although Coleman
conceded his petition was filed well outside that period, he
asserted that his claim should be considered under the
fundamental miscarriage of justice exception and principles
of equitable tolling.
District Court dismissed the petition with prejudice. The
Court found that Coleman did not meet the requirements of the
fundamental miscarriage of justice exception because he could
not prove he was actually innocent. Nevertheless, the Court
concluded that "reasonable jurists could disagree as to
whether a conviction arising from a twenty-eight day trial
where seventy-six witnesses were called and only one
testified as to Coleman's participation in the
Tobin's Inn Shooting can be considered a fundamental
miscarriage of justice." Coleman, 2015 WL
6379296, at *6. Accordingly, the Court issued a certificate
of appealability "on the sole issue of ...