Siluk, Jr. v. Garman

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL SILUK, JR. :

Petitioner : CIVIL ACTION NO. 3:20-0812

v. : (JUDGE MANNION)

MARK GARMAN, :

Respondent :

MEMORANDUM

Petitioner, Michael Siluk, Jr., an inmate confined in the Rockview State

Correctional Institution, Bellefonte, Pennsylvania, filed the instant petition for

writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). He attacks a

conviction imposed by the Court of Common Pleas for Dauphin County,

Pennsylvania. Id. Presently before the Court is Respondent’s partial

response, seeking dismissal of the petition as barred by the statute of

limitations. (Doc. 15). Although provided an opportunity to file a traverse,

Petitioner did not file a traverse. The petition is ripe for disposition and, for

the reasons set forth below, will be dismissed as untimely under the statute

of limitations, see 28 U.S.C. §2244(d).

I. Background

The factual and procedural background, extracted from the

Pennsylvania Superior Court’s October 10, 2018 Memorandum Opinion, is

as follow:

In 2001, Appellant was arrested and charged with multiple crimes

stemming from sexual assaults he committed against several

prostitutes. In November of 2002, a jury convicted him of four

counts of rape, one count of involuntary deviate sexual

intercourse, two counts of aggravated indecent assault, one

count of sexual assault, one count of aggravated assault, two

counts of robbery, and two counts of simple assault. On February

20, 2003, Appellant was sentenced to an aggregate term of 621

to 1260 months’ (or approximately 52 to 105 years’)

incarceration. Pertinent to the present appeal, Appellant’s

sentence included flat terms of 10 years’ imprisonment for one

count of sexual assault and two counts of aggravated indecent

assault. The court imposed those three flat sentences because

each of the offenses carried a statutory maximum term of 10

years’ incarceration1, but Appellant was also subject to a

mandatory minimum term of 10 years’ imprisonment for each

count pursuant to 42 Pa.C.S. §9714(a)(1) (Sentences for second

and subsequent offenses).

In support of these flat sentences, the trial court relied on

Commonwealth v. Bell, 645 A.2d 211, 216-18 (Pa. 1994)

(affirming a flat, five-year sentence where the mandatory-

minimum sentence and the statutory-maximum sentence were

both five years’ incarceration).

1 See 18 Pa.C.S. §3124.1 (grading sexual assault as a felony of the second

degree); 18 Pa.C.S. §3125(a) (grading aggravated indecent assault as a

felony of the second degree); 18 Pa.C.S. §1103(2) (stating that a person

convicted of a second-degree felony may be sentenced to a term of

incarceration “which shall be fixed by the court at not more than ten years”)

Appellant filed a timely direct appeal from his judgment of

sentence. After this Court affirmed on January 15, 2004, our

Supreme Court denied his subsequent petition for allowance of

appeal on October 13, 2004. See Commonwealth v. Siluk, 847

A.2d 761 (Pa. Super. 2004) (unpublished memorandum), appeal

denied, 860 A.2d 123 (Pa. 2004).

Over the ensuing years, Appellant filed, inter alia, several

petitions for relief under the Post Conviction Relief Act (PCRA),

42 Pa.C.S. §§9541-9546. Additionally,

[i]n December [of] 2011, Appellant filed a petition in the

Court of Common Pleas[,] which he labeled a “Petition to

Correct and/or Modify Illegal Sentence Pursuant to the

Court’s Inherent Power to Correct an Illegal Sentence.” In

this filing, Appellant argued that the trial court illegally

imposed the three individual flat sentences of ten years’

imprisonment. Appellant argued that the trial court should

modify the sentences to include a minimum and maximum

of ten years. Further, Appellant alleged that the Department

of Corrections [ (DOC) ] acted without authority and changed

the relevant sentences to ten to twenty years’ imprisonment.

On January 11, 2012, the lower court entered an order

denying Appellant’s petition to modify his sentence,

specifically finding that “the sentences imposed on the

second degree felonies were mandated under 42 Pa.C.S.

§9714 and lawful under ... Bell ....” Order, 1/11/12, at 1.

On April 17, 2014, Appellant filed a petition for mandamus

in the Commonwealth Court, requesting that the DOC be

compelled to recalculate the relevant sentences to have

minimum and maximum terms of ten years’ imprisonment.

In response, the DOC alleged it had authority to modify the

sentence[,] as it previously had received a clarification letter

from the sentencing judge indicating that the flat sentences

should have been terms of ten to twenty years’

imprisonment and confirming that its imposition of flat

sentences was an obvious and patent mistake.

On June 5, 2014, the Commonwealth Court dismissed

Appellant’s petition, reasoning that (1) the trial court has

authority to correct clerical sentencing errors and (2) the

DOC properly corrected the sentences to ten to twenty

years’ imprisonment based on the alleged clarification order

from the trial court and the fact that the trial court

subsequently denied Appellant’s petition for modification of

his sentence. See Siluk v. Wetzel, 524 M.D. 2013 (Pa.

Cmwlth. 2014). The Commonwealth Court did not

acknowledge that the lower court’s January 11, 2012 order

stated that the flat sentences imposed were lawful under

Bell. On February 17, 2015, the Supreme Court affirmed the

Commonwealth Court’s dismissal of Appellant’s mandamus

petition in a per curiam order. See Siluk v. Wetzel, 631 Pa.

285, 110 A.3d 993 (2014).

On August 6, 2015, [Appellant] filed a petition for

“clarification of sentence” in the Court of Common Pleas of

Bedford County, arguing that it was illegal to change his flat

ten-year sentences to sentences of ten to twenty years’

imprisonment. On September 2, 2015, the lower court

dismissed [Appellant’s] filing, which it characterized as a

PCRA petition, without a hearing. On August 9, 2016, this

Court affirmed the dismissal of Appellant’s filing as an

untimely PCRA petition.

On February 7, 2017, Appellant, while incarcerated at S.C.I.

Rockview, filed [a] pro se Petition for Writ of Habeas Corpus

Ad Subjiciendum, arguing that the DOC erroneously

interpreted the sentence imposed by the trial court.

Commonwealth v. Siluk, No. 804 MDA 2017, unpublished

memorandum at 3-5 (Pa. Super. filed Feb. 2, 2018) (hereinafter,

“Siluk I ”).

The trial court treated Appellant’s February 7, 2017 petition for

writ of habeas corpus as an untimely PCRA petition and denied

it. On appeal to this Court, the panel in Siluk I, supra, first

concluded that the trial court had erred by construing Appellant’s

habeas petition as a PCRA petition. The panel stressed that,

“Appellant’s assertion of error is due to ambiguity in the sentence

imposed,” and, therefore, “it was appropriate for Appellant to

seek habeas relief.” Siluk I, No. 804 MDA 2017, unpublished

memorandum at 7 (relying on Commonwealth v. Heredia, 97

A.3d 392, 394-95 (Pa. Super. 2014) (“If the alleged error

[asserted in a petition] is thought to be attributable to ambiguity

in the sentence imposed by the trial court, then a writ of habeas

corpus ad subjiciendum lies to the trial court for clarification

and/or correction of the sentence imposed.”) ).

The Siluk I panel also concluded that “there is ambiguity in the

sentence that is currently in place.” Id. at 8. Specifically, the

panel noted that, while the trial court had relied on Bell to support

the legality of Appellant’s flat, 10-year sentences, the DOC

claimed that the court had sent it a “clarification letter” stating that

those sentences had been corrected to 10 to 20 years’

incarceration. Id. Based on this ambiguity, the Siluk panel

vacated the trial court’s order denying Appellant’s writ of habeas

corpus and “remand[ed] to the trial court for clarification and/or

correction of the sentence imposed.” Id. Notably, however, the

panel did not vacate any aspect of Appellant’s judgment of

sentence.

On remand, the trial court issued the March 14, 2018 order

presently on appeal. In that order, entitled, “Amended

Sentencing Order,” the court “resentenced” Appellant on the at-

issue counts to terms of 10 to 20 years’ incarceration. Order,

3/14/18, at 1 (unnumbered). The court also noted that “[a]ll other

sentences remain as imposed[,]” and Appellant’s aggregate term

of incarceration was unchanged. Id. at 2 (unnumbered).

Appellant filed the instant timely, pro se notice of appeal, and he

also timely complied with the trial court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

Herein, he presents 12 issues for our review:

I. Whether the lower court erred and violated the Double

Jeopardy Clause by modifying Appellant’s three flat sentences to

ten to twenty[-]year sentences?

II. Whether the lower court erred [by] sentencing Appellant to an

enhanced sentence for every crime of violence pursuant to 42

Pa.C.S.[ ] §9714, in a criminal episode?

III. Whether [ ] Appellant’s designation as a Sexually Violent

Predator [ (SVP) ] violates the federal and state constitutions [by]

increasing the penalty [ ] Appellant is exposed to without the

fact[-]finder making the necessary factual findings pursuant to

Alleyne v. United States, 113 S.Ct. 2151 (2013)?

IV. Whether the evidence presented was insufficient to sustain

the conviction for aggravated assault as charged in violation of

the Fourteenth Amendment?

V. Whether the conviction for the crime of aggravated assault

was the result of a constitutional amendment and/or variance to

the crime charged in the information in violation of the Fifth, Sixth,

and Fourteenth Amendments?

VI. Whether [ ] Appellant was denied a preliminary hearing in the

case at 4199 CR 2001?

VII. Whether the district court erred in failing to dismiss the case

at 4199 CR 2001, for lack of subject matter jurisdiction sua

sponte?

VIII. Whether the lower court erred and violated Appellant’s Sixth

Amendment right to confrontation pursuant to Crawford v.

Washington, 541 U.S. 36 (2004), by admitting the preliminary

hearing testimony of Maria Houseworth at trial?

IX. Whether the lower court erred in holding that the case at 4199

CR 2001 was subject to compulsory joinder, and not dismissing

the case for lack of jurisdiction, and/or improper venue?

X. Whether [ ] Appellant was denied his Fourteenth Amendment

right to due process by the Commonwealth’s failure to prove the

dates of the crimes with reasonable certainty at 4197, and 4199

CR 2001?

XI. Whether the lower court erred and committed reversible error

by failing to give the jury a cautionary and[ ] limiting instruction

when evidence of other crimes[,] wrongs[,] or bad acts were

admitted at Appellant’s trial as required by Commonwealth v.

Billa, 555 A.2d 835 (Pa. 1989)?

XII. Whether the District Attorney’s Office committed

prosecutor[ial] misconduct in violation of the Fourteenth

Amendment by the suppression of evidence, failure to collect and

preserve evidence, solicitation and use of known perjured

testimony, failure to correct perjured testimony and knowingly

and willingly lying to the district court to obtain an illegal arrest

warrant?

(Doc. 15-6, Comm of Pennsylvania v. Siluk, 588 MDA 2018 at 1-3, ).

On October 10, 2018, the Pennsylvania Superior Court reversed the

trial Court’s March 14, 2018 order resentencing Siluk to 10 to 20 years’

imprisonment for the three, at-issue counts and reinstated Siluk’s original

2003 sentence, including his flat 10-year terms of incarceration for two

counts of aggravated indecent assault and one count of sexual assault. Id.

The Court refused to address Siluk’s remaining claims, finding that “each

involve challenges to his 2003 sentence, or allege errors that occurred at (or

before) trial and, therefore, they are outside the scope of the present appeal.”

Id.

Siluk filed an appeal from the Pennsylvania Superior Court’s October

10, 2018 reversal, to the Pennsylvania Supreme Court, which denied Siluk’s

petition for allowance of appeal on May 14, 2019. (See Doc. 15-1 at 21,

Criminal Docket Sheet).

On May 19, 2020, Petitioner filed the instant petition for writ of habeas

corpus, in which he once again challenges his conviction and sentence

imposed in the Centre Court of Common Pleas. (Doc. 1, petition).

Specifically, Petitioner raises the following five grounds for review:

1. Aggravated assault conviction obtained in violation of the Fifth,

Sixth and Fourteenth Amendments, due to the constructive

amendment and/or variance to the information in the case at

4194-CR-2001.

2. Trial counsel was ineffective for failing to raise and litigate any

issue relating to Petitioner’s actual innocence of the aggravated

assault charge in the case 419-CR-2001 where the record of the

case and alleged victim’s testimony established beyond a

reasonable doubt that she was not struck with a hammer as

alleged in the information and counsel admitted to forgetting to

amend his statement of matters to include a challenge to the

sufficiency of the evidence, and PCRA counsel was ineffective

for failing to raise and litigate any issue of trial counsel’s

ineffectiveness in this regard.

3. Conviction obtained in violation of Petitioner’s Sixth

Amendment right to confrontation pursuant to Crawford v.

Washington, 541 U.S. 36 (2004), where the trial court declared

Maria Houseworth unavailable and admitted her preliminary

hearing testimony.

4. The evidence presented at trial was insufficient to sustain the

conviction for the crime of aggravated assault as charged in the

case at 419-CR-2001.

5. The Superior Court violated Petitioner’s Eighth and Fourteenth

Amendment rights by reversing the trial court’s March 14, 2018

resentencing Order as patently illegal and directing the

department of corrections to enforce Petitioner’s original three

flat sentences, which are just as patently illegal.

(Doc. 1, petition). For relief, Petitioner requests that this Court “vacate

conviction and sentence for the crime of aggravated assault; vacate the rest

of Petitioner’s sentence; dismiss the case at 4199-CR-2001; suppress all

evidence obtained as a direct result and/or indirect result of the illegal traffic

stop; and vacate convictions and sentences in all cases.” Id.

II. Discussion

The court shall “entertain an application for a writ of habeas corpus on

behalf of a person in custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. §2254(a). A petition filed under

§2254 must be timely filed under the stringent standards set forth in the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No.

104-132, 110 Stat. 1214 (Apr. 24, 1996). See 28 U.S.C. §2244(d) (1).

Specifically, a state prisoner requesting habeas corpus relief pursuant to

§2254 must adhere to a statute of limitations that provides, in relevant part,

as follows:

(1) A 1-year period of limitation shall apply to an application for a

writ of habeas corpus by a person in custody pursuant to the

judgment of a State court. The limitation period shall run from the

latest of–

(A) the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review;

. . .

(2) The time during which a properly filed application for State

post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted

toward any period of limitation under this subsection.

28 U.S.C. §2244(d)(1)-(2); see Jones v. Morton, 195 F.3d 153, 157 (3d Cir.

1999). Thus, under the plain terms of §2244(d)(1)(A), a state court criminal

judgment does not become final until appeals have been exhausted or the

time for appeal has expired. See Nara v. Frank, 264 F.3d 310, 314 (3d Cir.

2001).

On January 15, 2004, the Pennsylvania Superior Court affirmed

Petitioner’s judgment and sentence on direct appeal. On October 13, 2004,

the Pennsylvania Supreme Court denied his subsequent petition for

allowance of appeal. See Commonwealth v. Siluk, 847 A.2d 761 (Pa. Super.

2004) (unpublished memorandum), appeal denied, 860 A.2d 123 (Pa. 2004).

Petitioner’s judgment became final on January 11, 2005, ninety days after

his Petition for Allowance of Appeal to the Pennsylvania Supreme Court was

denied. Wade v. Battle, 379 F.3d 1254, 1256 (11th Cir. 2004) (holding that a

judgment of sentence becomes final for AEDPA purposes “when the ninety-

day period in which to seek certiorari from the United States Supreme Court

expired”). The one-year AEDPA statute of limitations period commenced

running as of that date and expired one year later, on January 11, 2006.

Therefore, the present petition, filed on May 18, 2021, is patently untimely

by fifteen years.

However, the limitation period is not “an inflexible rule requiring

dismissal whenever AEDPA’s one-year clock has run.” Day v. McDonough,

547 U.S. 198, 208 (2006). “Instead, the limitation period is subject to both

statutory and equitable tolling.” Jenkins v. Superintendent of Laurel

Highlands, 705 F.3d 80, 85 (3d Cir. 2013).

A. Statutory Tolling

Section 2244(d)(2) tolls the one-year statute of limitations with respect

to the “time during which a properly filed application for State post-conviction

or other collateral review with respect to the pertinent judgment or claim is

pending.” 28 U.S.C. §2244(d)(2). The Third Circuit Court of Appeals has

defined “pending” as the time during which a petitioner may seek

discretionary state court review, whether or not such review is sought.

Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000).

Petitioner’s PCRA history is set forth in Commonwealth v. Siluk, No.

1887 MDA 2015 (Pa. Super. Aug. 9, 2016) as follows:

On October 12, 2005, Siluk filed a timely PCRA petition. On

January 30, 2006, the PCRA court dismissed the petition, and on

March 6, 2007, this Court affirmed. Siluk did not file a petition for

allowance of appeal in the Supreme Court. Additionally, Siluk

filed multiple unsuccessful requests for post-conviction relief in

December 2005, January 2006, April 2007, May 2008, March

2010 and December 2011.

Siluk argued in his December 2011 petition that (1) the trial court

imposed illegal flat-term sentences of 10 years for three of his

offenses (one count of sexual assault and two counts of

aggravated indecent assault); (2) the court should have imposed

minimum and maximum terms for each sentence, (3) the

Department of Corrections (“DOC”) changed the sentences to

terms of 10-20 years’ imprisonment, and (4) the court should

change these sentences to include both a minimum and

maximum of ten years (i.e., 10-10 years’ imprisonment). On

January 11, 2012, the court denied Siluk’s petition on the ground

that (1) imposition of flat ten-year sentences was a clerical error,

and the sentences should have been mandatory minimum

sentences of 10-20 years’ imprisonment under 42 Pa.C.S.

§9714, and (2) the court had instructed the DOC to correct the

sentences to 10-20 years’ imprisonment. On February 11, 2012,

Siluk filed an untimely notice of appeal. This Court quashed his

appeal at 345 MDA 2012.

On April 17, 2014, Siluk filed a petition for mandamus in the

Commonwealth Court at 524 M.D. 2013 requesting an order

directing the DOC to recalculate his sentence in accordance with

the 10-10 years’ imprisonment formula envisioned in his prior

PCRA petition—a formula that would have reduced his maximum

sentence by thirty years. On June 5, 2014, the Commonwealth

Court dismissed Siluk’s petition, reasoning that (1) clerical

sentencing errors can be corrected at any time, and (2) the DOC

properly corrected Siluk’s sentences to 10-20 years’

imprisonment pursuant to the trial court’s request to correct the

aforementioned clerical errors. On February 17, 2015, the

Supreme Court affirmed at No. 68 MAP 2014.

On August 6, 2015, Siluk filed a petition in the lower court for

“clarification of sentence”, the petition presently under review in

this appeal. Once again, Siluk argued that it was illegal to change

his flat 10-year sentences to sentences of 10-20 years’

imprisonment. The Commonwealth filed a response in opposition

to Siluk’s motion. On September 2, 2015, the court dismissed

Siluk’s petition without a hearing. On October 2, 2015, Siluk filed

a timely notice of appeal. Both Siluk and the court complied with

Pa.R.Crim.P. 1925.

Id. By Memorandum Opinion dated August 9, 2016, the Superior Court

treated Siluk’s petition as a PCRA petition, dismissed it as “untimely on its

face” and because his sentence did not include an “unconstitutional

mandatory minimum under Alleyne v. United States, 133 S.Ct. 2151 (2013).

Id. The Superior Court further found that “[e]ven if he raised Alleyne sub

silentio, subsection (iii) does not apply, because neither the United States

Supreme Court nor the Pennsylvania Supreme Court has held that Alleyne

applies retroactively to untimely PCRA petition.” Id.

On February 7, 2017, Siluk filed a pro se Petition for Writ of Habeas

Corpus Ad Subjiciendum, arguing that the DOC erroneously interpreted the

sentence imposed by the trial court. Commonwealth v. Siluk, No. 804 MDA

2017, unpublished memorandum at 3-5 (Pa. Super. filed Feb. 2, 2018)

(hereinafter, “Siluk I ”). The trial court treated Siluk’s February 7, 2017

petition for writ of habeas corpus as an untimely PCRA petition and denied

it. Id. On appeal, the Superior Court, in Siluk I, supra, first concluded that the

trial court had erred by construing Siluk’s habeas petition as a PCRA petition,

and that “it was appropriate for Appellant to seek habeas relief.” Id.

Thus, even affording Petitioner the most liberal tolling period pursuant

to 28 U.S.C. §2244(d)(2), the instant petition is grossly untimely. Petitioner’s

most recent PCRA petition was filed on August 6, 2015 and upheld by the

Superior Court on August 9, 2016. Tolling the federal statute through the

thirty-day appeal period to the Pennsylvania Supreme Court2 and the one-

year federal period, results in a filing deadline of September 8, 2017. The

instant petition was filed on May 18, 2020, almost three years after the latest

tolling period date.

B. Equitable Tolling

Equitable tolling stops the clock when extraordinary circumstances

prevent a petitioner from timely filing, thereby rendering strict enforcement of

the one-year limitations period unfair. Wood v. Milyard, 566 U.S. 463, 469

n.3 (2012); see also Holland v. Florida, 560 U.S. 631 (2010). “Equitable

tolling of the limitations period is to be used sparingly and only in

“extraordinary” and “rare” circumstances. See Satterfield v. Johnson, 434

2 See Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 86 (3d

Cir. 2013) (citing Pennsylvania Rule of Appellate Procedure 1113(a) (“a

petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days after the entry of the order of the Superior

Court”)).

F.3d 185, 195 (3d Cir. 2006); LaCava v. Kyler, 398 F.3d 271, 274-75 (3d Cir.

2005). Generally, a litigant seeking equitable tolling must establish two

elements: (1) that he has been pursuing his rights diligently; and (2) that

some extraordinary circumstance stood in his way.” Pace, 544 at 418.

With respect to the diligent pursuit of rights, he must demonstrate that

he exercised reasonable diligence in investigating and bringing the claims.

See Robinson v. Johnson, 313 F.3d 128, 142 (3d Cir. 2002). Mere excusable

neglect is not sufficient. See LaCava, 398 F.3d at 276. Moreover, “the party

seeking equitable tolling must have acted with reasonable diligence

throughout the period he seeks to toll.” Warren v. Garvin, 219 F.3d 111, 113

(2d Cir. 2000) (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).

Extraordinary circumstances have been found where (1) the

respondent has actively misled the petitioner, (2) the petitioner has in some

extraordinary way been prevented from asserting his rights, (3) the petitioner

has timely asserted his rights mistakenly in the wrong forum, see Jones, 195

F.3d at 159, or (4) the court has misled a party regarding the steps that the

party needs to take to preserve a claim, see Brinson v. Vaughn, 398 F.3d

225, 230 (3d Cir. 2005). Significantly, even where extraordinary

circumstances exist, “[i]f the person seeking equitable tolling has not

exercised reasonable diligence in attempting to file after the extraordinary

circumstances began, the link of causation between the extraordinary

circumstances and the failure to file is broken, and the extraordinary

circumstances therefore did not prevent timely filing.” Brown v. Shannon, 322

F.3d 768, 773 (3d Cir. 2003) (quoting Valverde v. Stinson, 224 F.3d 129, 134

(2d Cir. 2000)).

Here, Petitioner does not set forth any basis to support the application

of equitable tolling. In fact, although this Court’s September 11, 2020

scheduling Order provided an opportunity to file a reply to Respondent’s

memorandum, Petitioner neither filed a reply, nor requested an enlargement

of time within which to do so.

We now turn to the fundamental miscarriage of justice tolling

exception. Although the fundamental miscarriage of justice or “actual

innocence” exception was previously used to excuse procedural default, the

United States Supreme Court has held that a convincing showing of actual

innocence may excuse the federal limitations period. McQuiggin v. Perkins,

569 U.S. 383 (2013). McQuiggin made it clear that such an exception is very

rare, noting that the petitioner “must show that it is more likely than not that

no reasonable juror would have convicted him in the light of the new

evidence.” Id. at 399 (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)). “To

be credible a claim of actual innocence must be based on reliable evidence

not presented at trial.” Schlup, 513 U.S. at 324; Calderon v. Thompson, 523

U.S. 558, 559 (1998). “Proving actual innocence based on new evidence

requires the petitioner to demonstrate (1) new evidence (2) that is reliable

and (3) so probative of innocence that no reasonable juror would have

convicted the petitioner.” Sistrunk v. Rozum, 674 F.3d 181, 191 (3d Cir.

2012) (citing Schlup, 513 U.S. at 327). “‘[A] petitioner does not meet the

threshold requirement unless he 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.’ Schlup, 513 U.S., at 329, 115 S.Ct. 851;

see House, 547 U.S., at 538, 126 S.Ct. 2064 (emphasizing that the Schlup

standard is “demanding” and seldom met).” McQuiggin, 569 U.S. at 386.

“The gateway actual innocence standard is ‘demanding’ and satisfied

only in the ‘rare’ and ‘extraordinary’ case where ‘a petition presents evidence

of innocence so strong that a court cannot have confidence in the outcome

of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error.’ ” Reeves v. Fayette SCI, 897 F.3d 154 (3d

Cir. 2018) (quoting McQuiggin, 569 U.S. at 392). Here, Petitioner fails to

provide new reliable exculpatory evidence to support an actual innocence

claim, and none can be extracted from the claims raised in his petition.

Accordingly, he has not demonstrated that the “actual innocence” exception

to the AEDPA statute of limitations applies.

III. Conclusion

For the reasons set forth above, the petition for writ of habeas corpus

will be dismissed as untimely.

IV. Certificate of Appealability

Pursuant to 28 U.S.C. §2253(c), unless a circuit justice or judge issues

a certificate of appealability (“COA”), an appeal may not be taken from a final

order in a proceeding under 28 U.S.C. §2254. A COA may issue only if the

applicant has made a substantial showing of the denial of a constitutional

right. 28 U.S.C. §2253(c)(2). “A petitioner satisfies this standard by

demonstrating that jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322 (2003). “When the district court denies a

habeas petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim, a COA should issue when the prisoner

shows, at least, that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and that

jurists of reason would find it debatable whether the district court was correct

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here,

jurists of reason would not find the procedural disposition of this case

debatable. Accordingly, no COA will issue.

A separate Order will issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: December 23, 2021

20-0812-01