United States District Court, E.D. Pennsylvania
TERRENCE E. HOLMES, Petitioner,
VINCENT MOONEY; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
F. LEESON, JR. UNITED STATES DISTRICT JUDGE
Holmes filed a petition for a writ of habeas corpus under 28
U.S.C. § 2254 challenging his 2005 conviction for
attempted murder, aggravated assault, possession of a
firearm, and criminal conspiracy. ECF No. 1. Holmes was tried
in absentia after he absconded before trial, and was
sentenced to 20.5 to 45 years in prison. After the government
responded to Holmes's petition, ECF No. 18, United States
Magistrate Judge David R. Strawbridge issued a Report and
Recommendation (R&R) finding Holmes's petition
untimely. ECF No. 22. Holmes filed a timely objection to the
R&R, alleging that he can overcome the time bar through a
gateway claim of actual innocence. ECF No. 24. Because this
Court disagrees for the reasons discussed below, Holmes's
objection is overruled, the R&R is adopted, and the
habeas petition is dismissed.
objections to a report and recommendation have been filed
under 28 U.S.C. § 636(b)(1)(C), the district court must
make a de novo review of those portions of the report to
which specific objections are made. Sample v.
Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989);
Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984)
(“providing a complete de novo determination where only
a general objection to the report is offered would undermine
the efficiency the magistrate system was meant to contribute
to the judicial process”). “District Courts,
however, are not required to make any separate findings or
conclusions when reviewing a Magistrate Judge's
recommendation de novo under 28 U.S.C. § 636(b).”
Hill v. Barnacle, 655 F. App'x. 142, 147 (3d
Cir. 2016). The district “court may accept, reject, or
modify, in whole or in part, the findings and
recommendations” contained in the report. 28 U.S.C.
§ 636(b)(1)(C) (2009).
Court adopts the factual and procedural history as summarized
by Magistrate Judge Strawbridge in the R&R. Magistrate
Judge Strawbridge did not reach the merits of Holmes's
claims because he concluded that they are time-barred. In his
Objection, Holmes concedes that his petition is untimely;
however, he asserts that this Court can address the merits of
his petition because he is actually innocent. Obj. 1, ECF No.
innocence is an equitable exception to the statute of
limitations. McQuiggin v. Perkins, 133 S.Ct. 1924,
1933 (2013). Thus, “actual innocence, if proved, serves
as a gateway through which a petitioner may pass”
despite the expiration of the statute of limitations; that
is, a Court may consider the merits of a petitioner's
untimely claims when the prisoner proves his actual
innocence. Id. at 1928. The standard for
establishing actual innocence, however, is demanding.
Id. at 1936. It requires “new reliable
evidence-whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical
evidence-that was not presented at trial.” Schlup
v. Delo, 513 U.S. 298, 324 (1995). The standard is not
met unless the petitioner “persuades the district court
that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a
reasonable doubt.” McQuiggin, 133 S.Ct. at
1928 (quoting Schlup, 513 U.S. at 329).
“Because such evidence is obviously unavailable in the
vast majority of cases, claims of actual innocence are rarely
successful.” Schlup, 513 U.S. at 324; see
also Calderon v. Thompson, 523 U.S. 538, 559 (1998)
(“We have often emphasized ‘the narrow scope'
of the exception.”); Sistrunk v. Rozum, 674
F.3d 181, 192 (3d Cir. 2012) (“Schlup sets a
supremely high bar.”).
succeed on his actual innocence gateway claim, Holmes must
present new evidence of his innocence. The Third Circuit
Court of Appeals generally considers evidence
“new” under Schlup only if it was not
available at trial and could not have been discovered earlier
through the exercise of due diligence. See Houck v.
Stickman, 625 F.3d 88, 93-94 (3d Cir. 2010); Pirela
v. Dist. Attorney of the Cty. of Philadelphia, No.
CIV.A. 00-5331, 2014 WL 2011536, at *5-6 (E.D. Pa. May 16,
2014). However, the Houck court recognized that a
petitioner who seeks relief on the basis of ineffective
assistance of trial counsel for failure to present specific
evidence of innocence-as Holmes does here-faces a dilemma: to
prove that his counsel was ineffective, he must show that his
trial counsel should have discovered and presented the
evidence at trial, but to pass through the actual innocence
gateway, he must show that the evidence was undiscoverable.
625 F.3d at 94. The court suggested that it would apply a
modified version of the Eighth Circuit's definition of
“new” evidence in Amerine v. Bowersox,
128 F.3d 1222, 1230 (8th Cir. 1997): “evidence is new
only if it was not available at trial and could not have been
discovered earlier through the exercise of due
diligence.” The Third Circuit approved of this
definition, “with the narrow limitation that if the
evidence was not discovered for use at trial because trial
counsel was ineffective, the evidence may be regarded as new
provided that it is the very evidence that the petitioner
claims demonstrates his innocence.” Houck, 625
F.3d at 94. Although the Third Circuit did not apply this
“modified Amerine standard” in
Houck, see 625 F.3d at 95, other district
courts in the Third Circuit have applied it where petitioners
try to pass untimely claims of ineffective assistance of
counsel through the actual innocence gateway. See Reeves
v. Coleman, No. 3:14-CV-01500, 2016 WL 7424265, at *17
(M.D. Pa. Oct. 17, 2016) (“Despite being dicta, we
think Houck is persuasive evidence of how the Third
Circuit would rule if presented with the issue.”),
report and recommendation adopted, No. CV 3:14-1500,
2016 WL 7411130 (M.D. Pa. Dec. 22, 2016); McDonald v.
Gilmore, No. 14CV3998, 2015 WL 1400954, at *6 n.13 (E.D.
Pa. Mar. 27, 2015) (applying Houck to claim based on
affidavits from witnesses where petitioner alleged his trial
counsel was ineffective for choosing not to contact those
Court will apply the Houck standard as well. Thus,
to present “new evidence” sufficient to support a
gateway claim of actual innocence, Holmes must present newly
discovered evidence or evidence that was not discovered for
use at trial because of his counsel's ineffectiveness.
Holmes references two pieces of evidence that he believes
demonstrate his actual innocence. First, Holmes contends that
the government withheld sections of the victim's medical
records that show that the victim was unconscious “with
a tracheotomy down his throat, ” which would
“contravene the investigating detective's sworn
affidavit that he spoke with the victim on February 8,
2002.” Obj. 2. Second, Holmes offers a statement made
to police by Shawn Gale, an eyewitness to the crime. He
argues that he does not match Gale's description of the
assailant, and that Gale described the incident differently
from the investigating detective, identifying a single
shooter and describing the getaway car as a different color.
Id. Holmes contends that his trial counsel rendered
ineffective assistance because she chose not to use this
information or investigate Gale's eyewitness account.
the evidence Holmes offers does not meet the Houck
standard because it was known and available to counsel at
trial. See Reeves, 2016 WL 7424265, at *17
(“[W]e do not read Houck expansively to cover
evidence that defense counsel discovered prior to trial but
merely failed to present at trial. Thus, we will not consider
evidence as new if the evidence was available at the time of
trial and Reeves or his counsel knew about such
evidence.”); Hayes v. Wenerowicz, No. CIV.A.
13-589, 2015 WL 1636947, at *6 (W.D. Pa. Apr. 13, 2015)
(where petitioner conceded that his trial counsel was aware
of alibi witnesses but did not investigate them, testimony of
those witnesses was not “new evidence” under
Houck). Holmes complains that his trial counsel did
not use the victim's medical records, but concedes that
his trial counsel had access to them. See Obj. 3
(“Trial counsel, armed with this information,
[chose] not to use the information . . . .”) (emphasis
added). When the Superior Court of Pennsylvania addressed
Holmes's third PCRA petition, it noted that he had
admitted that his trial counsel knew about the medical
records. See Commonwealth v. Holmes, 2453 EDA 2014
(Pa. Super. Ct. June 22, 2015), Ex. A to Government's
Response at 4, ECF No. 18-1. The Superior Court found that
Holmes's counsel knew about the victim's medical
records, and that the victim's medical condition and
treatment were elicited at trial in 2005. Id. at 6.
The court stated that “[b]ecause he absconded from
trial, [Holmes] may not have had personal knowledge
of the victim's medical records; however, his former
fugitive status affords him no special treatment.”
Id. Holmes has failed to show that the medical
records were unavailable at trial, and thus they are not new
evidence that supports an actual innocence claim.
claims that his trial counsel rendered ineffective assistance
because she did not investigate Gale as a witness. Holmes
attaches Gale's statement to the police to his Objection,
along with the government's letter to his trial counsel
enclosing the government's discovery. See ECF
24. This letter makes clear that the government did in fact
provide Gale's statement to Holmes's trial counsel
prior to his second trial. To the extent that Holmes argues
that his counsel was ineffective for failing to utilize
Gale's testimony, he cannot establish an actual innocence
claim because he relies only on evidence that his trial
counsel already had. Although Holmes argues that he believes
his trial counsel failed to investigate Gale further, he
provides no new evidence that his counsel should have
uncovered by investigating Gale. In fact, Holmes's
argument that Gale's testimony demonstrates his actual
innocence relies only on Gale's written statement to the
police-the statement his counsel had at the time of trial.
Therefore, Gale's statement cannot ground an actual
innocence claim. Holmes has failed to establish an actual
innocence claim sufficient to overcome the time bar.
Judge Strawbridge correctly concluded that Holmes's
petition for writ of habeas corpus is untimely. Holmes cannot
prevail on a gateway claim of actual innocence. This Court
therefore adopts the findings and conclusions in the Report
and Recommendation and follows the recommendation to ...