# CLARK v. CLARK

> District Court, W.D. Pennsylvania · November 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10417145

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** November 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10417145

## How later opinions describe it (automated extraction)

- explaining that actual innocence was demonstrated where new evidence both showed that the crime could not have happened in the way the Commonwealth presented at trial and provided an alternative theory that was more appropriate and better fit the facts of the case

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MELVIN R. CLARK, )
)
Petitioner, ) Civil Action No. 2:21-cv-61
)
v. )
) Magistrate Judge Patricia L. Dodge
MICHAEL CLARK, et al., )
)
Respondents.

MEMORANDUM

Pending before the Court1 is the Respondents’ Motion to Dismiss (ECF 8) the counseled
Petition for a Writ of Habeas Corpus (ECF 1) filed by state prisoner Melvin R. Clark (“Petitioner”)
under 28 U.S.C. § 2254. For the reasons below, the Court will grant Respondents’ Motion, deny
each of his claims as time-barred and deny a certificate of appealability on all claims.2
I. Relevant Background3
Petitioner was arrested in March 2008 in Washington County, Pennsylvania and charged
with numerous crimes related to the molestation of his two minor adopted daughters, “AC” and
“RC,” and his (now former) wife’s minor sister, “CS.” Petitioner retained Attorney William F.
Conway to represent him. His jury trial was held on March 9, 2009 through March 12, 2009.

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to
have a United States Magistrate Judge conduct proceedings in this case, including entry of a final
judgment.
2 Respondents also asserts that Petitioner procedurally defaulted his claims and that they have no
merit. (See ECF 8, 9.) The Court’s disposition on timeliness makes it unnecessary for it to reach
these additional issues.
3 The parties electronically filed relevant parts of the state court record. Respondents have also
submitted a hard copy of the Court of Common Pleas’ file for Petitioner’s criminal case, including
the trial transcript.
Many witnesses testified at the trial, including AC, RC, and CS. In its Appellate Rule
1925(a) opinion issued after Petitioner filed a direct appeal, the trial court summarized their
testimony as follows:
[Petitioner] was charged with sexually assaulting three minor victims, his
two adopted daughters [AC and RC] and the minor sister [CS] of their mother over
a period of several years. [Petitioner] married [AC and RC’s mother] in October of
2001. [Trial Tr. at p. 146.] Thereafter, [Petitioner] began to sexually molest his
adopted daughter, AC, in June of 2002, when she was 11 years old. It began with
the [Petitioner] sexually touching the victim and progressed to digital penetration
of her vagina and oral sex. [Id. at pp. 20-39]. This continued from age 11 until the
victim was 18 when she finally disclosed [Petitioner’s actions] to her mother. [Id.
at pp. 39-40.] The sexual abuse by [Petitioner] of his youngest adopted daughter
[RC] was occurring simultaneously, beginning when RC was 14 until she was 16.
As with [AC], the assault began with sexual touching of her breasts and progressed
to the victim’s vagina. [Id. at pp. 83-101.]
[Petitioner’s] sister-in-law, CS, testified that [Petitioner] sexually assaulted
her beginning at age 15, including an incident when [Petitioner] sexually assaulted
both her and victim AC at the same time, which AC corroborated. [Id. at pp. 120-
34.]
(Resp’s Ex. B, ECF 20-1 at pp. 4-6.)
The Commonwealth introduced at trial several incriminating voice mail recordings made
by Petitioner to his wife on December 11, 2007, soon after AC first reported that he had been
abusing her for several years. (Trial Tr. at pp. 170-79.) These voice mails were as follows:
2:58 p.m.:
Please talk to me, Honey. Please. Please call me and talk to me. I know I hurt you
so bad and I hurt the girls. Please help me, Honey. I need you in my life. I love you
more than anything in this world. I don’t know why I did what I did. Please call
me. Please I gotta…talk to you. I love you with all my heart.
3:55 p.m.:
Hey, Honey, (indiscernible). Can you please, please stop and see me so we can
talk…. I’ll do anything just give me (indiscernible). If you want me to go to jail,
I’ll go to jail as long as we can stay a family. Please, Dear, don’t make me go to the
last resort that I have. I know sorry isn’t good enough and the only thing is
(indiscernible). Please call me. Please come and see me. I love you with all my
heart. I haven’t slept; I haven’t done anything but try and I know it’s all my fault. I
don’t know what’s the matter with me, but I know I need you and the kids. I love
you with all my heart. Please. Please come and see me. I love you. Please.
5:21 p.m.:
(Indiscernible.) I’m not going to hurt you guys. Why? Why are you doing this to
me? I know I hurt you and I know you can put me in jail for calling you. I’ll give
you anything you want, just talk to me. Please. That’s all I want, Honey. That’s all
I want. I know I’ve done some mean, terrible things. I love you with all me heart.
Please give me another chance. Please. Please. I love you so much. I was so
(indiscernible). You’ll never hear from me again. I couldn’t find them shells for
your gun (indiscernible). I’ll find another one. I love you. Please call me. Please. I
love you with all my heart. Bye.
5:35 p.m.:
Honey, you can use this for the PFA if you want. I really don’t care. If I go
to jail, I go to jail. My li[f]e is over with, Honey, and I’m losing my family anyway.
I need you to let me know what you’re actually looking for. I mean, you can have
whatever. All I want is to be a family. I know I’ve done terrible wrong things. I
mean, I understand. I love you with all my heart. Why can’t you give me another
chance? I love you. I won’t harass you. I just want to let you know how much I
really do love you. If I have to go to jail, then I’ll go to jail. Whatever it takes is
what I’ll do. All I want is you and the kids. I’m sorry for the evil things I did. That
with [AC] was over a year and a half ago. And…[RC] was goofing around and I’m
sorry for it.
(Id. at pp. 173-78).
The Commonwealth also introduced several incriminating letters written by Petitioner to
members of his family. (Id. at pp. 200-03.) In one letter to “My Family,” Petitioner wrote: “Once
again I tore up our family. I don’t know why I do some things. I have hurt the three most special
women in my life. Words, praying to God won’t ease the pain. I know without you three I have no
life. I know killing myself won’t make things better, but I should go to Hell where I belong. My
heart is broken because of what I have done and it can’t be fixed.” (Id. at pp. 201-02.) In another
letter addressed to his wife, Petitioner wrote: “Look back and remember the good times we had
and not the monster I have become…. I have so many things racing through my head I just can’t
write them down. Remember, it’s all my fault.” (Id. at p. 202.) Petitioner wrote to AC: “Don’t ever
think what I did to myself is your fault. Remember what I always said, what goes around comes
around. And know it’s my turn. I know I have hurt you in ways words can’t fix…. Remember, do
the opposite of what I did.” (Id. at p. 203.) To RC, he wrote: “I had a chance from God to change
your life and I made it worse. I had all I ever wanted and I threw it all away without thinking….

Remember, none of this is your fault. Take care of the family. Daddy is very sorry for letting the
monster inside him, get the best of him.” (Id.)
Petitioner testified at trial that he did not sexually abuse AC, RC or CS. (Id. at pp. 269,
303-04.) He stated that in the voice mail he left on December 11, 2007 at 5:35 p.m. in which he
apologized “for the evil things” he did to AC “a year and half ago,” he was referring to when he
would not let her go to a trip to France. (Id. at pp. 296-97.) He also stated that when he apologized
to AC and RC in the letters, he was expressing his remorse for being so strict with them. (Id. at pp.
301-02.)
When asked what prompted him to write the above-quoted letters, Petitioner testified:
I had been studying my bible, which anyone can tell you I constantly do. It took me
back to the Book of Job and how he had lost his entire family through no fault of
his own. He searched himself: Why, why did this happen to me. Everything seemed
like I was in that same exact point where he [Job] had lost everything that he had
lived for, to see his children grow, to see his children happy and everything.
(Id. at pp. 298-99.) Petitioner also explained why he referred to himself as a monster in one of
the letters:
In the Book of Job…it’s actually chapter 7, verse 12—it explains—well Job is lost
at this point, he had just lost all his family. He had 12 kids. He lost all of his
possessions, everything that he had. He was hurting so bad he asked a question:
“Am I a monster, the monster in me? Is this what I am? Did I do this?” That is what
I was referring to when I wrote that because as I was writing these letters I had my
Bible right there with me.
(Id. at p. 301.)
The jury found petition guilty of the following offenses: Rape by Forcible Compulsion,
Felony 1; Rape by Threat of Forcible Compulsion, Felony 1; Rape of a Child, Felony 1; Sexual
Assault (3 counts), Felony 2; Aggravated Indecent Assault, Felony 2; Aggravated Indecent Assault
by Forcible Compulsion, Felony 2; Aggravated Indecent Assault of a Child, Felony 1; Aggravated

Indecent Assault, person less than 16 years of age, Felony 2; Indecent Assault without consent (3
counts), Misdemeanor 2; Indecent Assault-person less than 13 years of age (3 counts),
Misdemeanor 1; Statutory Sexual Assault (2 counts), Felony 2; Involuntary Deviate Sexual
Intercourse by threat of forcible compulsion (2 counts), Felony 1; Involuntary Deviate Sexual
Intercourse by forcible compulsion (2 counts), Felony 1; Involuntary Deviate Sexual Intercourse-
person less than 16 years of age; Felony 1; Involuntary Deviate Sexual Intercourse with a child (2
counts), Felony 1; Endangering the welfare of children (3 counts), Misdemeanor 1; Corruption of
Minors (3 counts) Misdemeanor 1; and Incest, Felony 1.
Before sentencing, Petitioner retained Attorney Stanley W. Greenfield to be represent him.
On January 11, 2010, following a presentence investigation and assessment by the Pennsylvania

Sexual Offenders Assessment Board, the trial court sentenced Petitioner to an aggregate term of
imprisonment of not less than 56 years and not more than 112 years in a state correctional
institution. The trial court also found Petitioner to be a Sexually Violent Predator and subject to a
lifetime reporting requirement upon his release from incarceration.
Petitioner, through counsel (Attorney Greenfield), filed a direct appeal with the Superior
Court of Pennsylvania, in which he raised the following four claims:
I. The trial court erred in admitting evidence of Petitioner’s 1983 summary
conviction for retail theft, in contravention of Pennsylvania Rule of
Evidence 403, during the cross-examination of Petitioner’s character
witness, Reverend Gary Schneider;
II. The trial court erred in instructing the jury to consider the evidence of the
1983 summary conviction for retail theft as evidence “to help you determine
the credibility and weight of the testimony given by [Petitioner] as a witness
in this trial,” since that conviction could only be used to determine a
character witness’s familiarity with Petitioner’s reputation, not as potential
impeachment evidence of Petitioner’s himself;

III. The trial court erred in excluding the expert testimony of Reverend
Schneider, who was offered as an expert witness to explain the meaning of
the Book of Job, and Job’s lament to God “Why me? Am I this Monster, I
don’t deserve it”; and

IV. The trial court erred in denying Petitioner’s request for a factual hearing for
a determination of whether his trial counsel, Attorney Conway, was
ineffective in failing to properly object to the evidence and charges at issue
in issues I, II and III.

(Pet’s Ex. B, ECF 1-4 at pp. 4-5.)
On November 14, 2011, the Superior Court affirmed Petitioner’s judgment of sentence in
Commonwealth v. Clark, No. 1054 WDA 2010, slip op. at 3-4 (Pa. Super. Ct. Nov. 14, 2011)
(“Clark I”). (Id. at pp. 2-12.) It denied the three claims of trial court error (Claims I, II and III) and
dismissed Claim IV without prejudice to Petitioner raising claims of Attorney Conway’s
ineffective assistance in a PCRA proceeding. (Id. at pp. 5-12).
The Pennsylvania Supreme Court denied a petition for allowance of appeal on
May 23, 2012. (Pet’s Ex. B, ECF 1-4 at p. 13.) Petitioner did not file a petition for a writ of
certiorari with the United States Supreme Court. Thus, his judgment of sentence became final
under both state and federal law on August 21, 2012, when the 90-day period for him to file a
petition for a writ of certiorari expired. 42 Pa. Cons. Stat. § 9545(b)(3); 28 U.S.C. § 2244(d)(1)(A)
and Gonzalez v. Thaler, 565 U.S. 134, 149-50 (2012).
On March 13, 2013, Petitioner filed, through counsel (Attorney Greenfield), a PCRA
petition. (Resp’s Ex. 4, ECF 9-4 at pp. 3-12.) The trial court, now the PCRA court, denied him
relief. (Pet’s Ex. D, ECF 1-6 at pp. 2-8.) Petitioner then filed an appeal with the Superior Court in
which he raised the following claim:
The PCRA court erred in denying Petitioner’s request for an evidentiary hearing
for a determination as to whether his trial counsel provided ineffective assistance
for failing to properly object to the jury charge instructing the jury to consider
Petitioner’s 1983 summary conviction for retail theft in evaluating his testimony at
trial in which he denied his guilt.
(Resp’s Ex. 6, ECF No. 9-1 at p. 4.)
On November 13, 2015, the Superior Court issued its decision affirming the dismissal of
the PCRA petition in Commonwealth v. Clark, No. 177 WDA 2014, slip op. at p. 4 (Pa. Super. Ct.
Nov. 13, 2015) (“Clark II”)). (Id. at pp. 2-11.) It held that although Attorney Conway should have
objected to the challenged jury instruction, Petitioner was not prejudiced because of the
“overwhelming” evidence of his guilt, which included the “inculpatory statements to his wife and
the victims.” (Id. at p. 10); see, e.g., Buell v. Vaughn, 166 F.3d 163, 172 (3d Cir. 1999) (“It is
firmly established that a court must consider the strength of the evidence in deciding whether the
Strickland prejudice prong has been satisfied.”)4
Petitioner did not file a petition for allowance of appeal with the Pennsylvania Supreme
Court following the Superior Court’s decision in Clark II. (Resp’s Ex. 7, ECF 9-7 at p. 5.)

4 Claims of ineffective assistance are governed by the standard set forth by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Strickland recognized that a defendant’s Sixth
Amendment right to the assistance of counsel for his defense entails the right to be represented by
an attorney who meets at least a minimal standard of competence. 466 U.S. at 685-87. Under
Strickland, it is the petitioner’s burden to establish that his “counsel’s representation fell below an
objective standard of reasonableness.” 466 U.S. at 688. Strickland also requires that the petitioner
demonstrate that he was prejudiced by trial counsel’s alleged deficient performance. This places
the burden on the petitioner to establish “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Counsel’s errors must be so serious as to have “deprive[d] [the petitioner] of a fair trial, a trial
whose result is reliable.” Id. at 687.
Petitioner filed, through new counsel, his Petition for a Writ of Habeas Corpus (ECF 1)
with this Court on January 13, 2021. In his “Statement In Support of Habeas Corpus Relief” (ECF
1-1), which he attached to the Petition, he asserts that he “challenges the entire criminal
prosecution beginning from his preliminary hearing up to an including his post conviction

proceedings.” (ECF 1-1 at p. 16.) In the section of that document entitled “Grounds for Seeking
Habeas Corpus Relief,” Petitioner lists the following six claims for relief:
1. he was “denied a fair trial contrary to the 6th and 14th Amendments of the U.S.
Constitution;”

2. his “convictions were wrongful based upon either legal and or factual innocence;”
3. his “conviction and sentence is wrongful based upon cumulative error;”
4. his “trial counsel [Attorney Conway] and direct appeal counsel [Attorney Greenfield]
provided him with ineffective assistance contrary to the 6th Amendment and 14th
Amendment of the U.S. Constitution;”

5. his “post-conviction counsel was ineffective contrary to the 6th Amendment and 14th
Amendment to the U.S. Constitution;” and

6. “The Pennsylvania court’s adjudication of [his] various alleged harms involved an
unreasonable application of clearly established federal law enunciated in Jackson v.
Virginia, 443 U.S. 307 (1979).”

(ECF 1-1 at pp. 23-24.)
The Court notes that these grounds are too boilerplate to state a claim for habeas relief.
Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts requires
that a habeas petition must “specify all the grounds for relief available to the petitioner” and “state
the facts supporting each ground.” Merely asserting legal conclusions does not fulfill the
requirements of Rule 2(c). As the Supreme Court explained in Mayle v. Felix, 545 U.S. 644, 649
(2005):
In ordinary civil proceedings, the governing Rule, Rule 8 of the Federal Rules of
Civil Procedure, requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). Rule 2(c) of the
Rules Governing Habeas Corpus Cases requires a more detailed statement. The
habeas rule instructs the petitioner to “specify all the grounds for relief available to
[him]” and to “state the facts supporting each ground.”
The Supreme Court also observed: “Notice pleading is not sufficient, for the petition is expected
to state facts that point to a real possibility of constitutional error.” Id. at 656 (emphasis added).
Thus, the broad, general grounds for relief listed above lack the required specificity to raise a valid
habeas claim.
A review of Petitioner’s 24-page “Statement in Support of Habeas Corpus Relief” indicates
that he is asserting some or all of the same claims he raised to the Superior Court on direct appeal
and in the PCRA proceeding as well as numerous claims that Attorney Conway and Attorney
Greenfield were ineffective, including for failing to challenge a number of alleged errors made at
trial and during sentencing. Petitioner asserts that Attorney Conway was ineffective as trial
counsel:
• for failing to “investigate the case and ensure the presence of all defense witnesses at
trial”;

• “because he was disabled due to a drug addiction”;

• for failing to ensure that “alibi evidence was presented at trial”;

• for failing to “object to the jury hearing of PFA court orders which was akin to other
crimes evidence;”

• for failing to seek the “recusal of the trial court judge who had presided over multiple
proceedings involving the same parties and the same subject matter;”

• for failing “to seek a mistrial based the trial court’s making comments upon the
evidence;”

• for failing “to contest the various Court jury instructions” “which were tainted;”

• for failing to “to withdraw from the case” due to a conflict of interest;

• for failing to file “adequate pretrial motions” and,
• for failing “challenge Commonwealth witnesses by impeachment.” 5
(ECF 1-1 at pp. 16-24.)
Petitioner also asserts that Attorney Greenfield was ineffective in his role as sentencing,
post-trial and direct appeal counsel failing to raise claims challenging:
• the trial court’s ruling that he was Sexually Violent Predator;

• the term of the sentence imposed as excessive;

• the court’s exclusion of alibi evidence;

• the alleged fact that jurors slept during the trial;

• the trial court’s ruling that the rape shield statutes forbid the defense from impeaching
witnesses; and,

• certain jury instructions as “tainted.”

(See id.)
In their Motion to Dismiss (ECF 8), Respondents assert that the Court must dismiss the
Petition because all of Petitioner’s claims are time-barred under the applicable one-year statute of

5 Petitioner also claims that Attorney Greenfield was ineffective for failing to raise these claims of
trial counsel’s ineffectiveness in the PCRA proceeding. A claim that PCRA counsel was
ineffective is not cognizable under 28 U.S.C. § 2254. That is because Petitioner did not have a
federal constitutional right to counsel during his PCRA proceeding. Pennsylvania v. Finley, 481
U.S. 551, 555 (1987). Thus, he cannot receive habeas relief on a claim that his PCRA counsel was
ineffective, a fact codified by statute at 28 U.S.C. § 2254(i), which expressly provides: “[t]he
ineffectiveness of counsel during Federal or State collateral post-conviction proceedings shall not
be ground for relief in a proceeding arising under section 2254.” See also Coleman v. Thompson,
501 U.S. 722, 752-53 (1991) (“There is no constitutional right to an attorney in state post-
conviction proceedings.... Consequently, a petitioner cannot claim constitutionally ineffective
assistance of counsel in such proceedings.”). Under Martinez v. Ryan, 566 U.S. 1 (2012), a
petitioner’s allegation that PCRA counsel was ineffective is relevant to whether defaulted claims
of trial counsel’s ineffectiveness should be excused. As noted above, the Court need not address
whether any of Petitioner’s claims are defaulted (and, if so, whether the default should be excused
under Martinez) because all of his claims are clearly time-barred under AEDPA’s one-year statute
of limitations.
limitations, which is set forth in the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and codified at 28 U.S.C. § 2244(d). Petitioner concedes that he filed his habeas
claims outside of AEDPA’s one-year statute of limitations. He argues that he is entitled to equitable
tolling and also that, in accordance with the Supreme Court’s decision in McQuiggin v. Perkins,

569 U.S. 383 (2013), the Court should excuse his failure to comply with AEDPA’s limitations
period because he is “actually innocent.”
II. Discussion
A. Jurisdiction
The Court has jurisdiction under 28 U.S.C. § 2254, the federal habeas statute applicable to
prisoners in custody pursuant to a state-court judgment. It permits a federal court to grant a state
prisoner a writ of habeas corpus “on the ground that he or she is in custody in violation of the
Constitution…of the United States.” 28 U.S.C. § 2254(a). Errors of state law are not cognizable.
Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is Petitioner’s burden to prove that
he is entitled to the writ. See, e.g., Vickers v. Sup’t Graterford SCI, 858 F.3d 841, 848-49 (3d Cir.

2017).
In 1996, Congress made significant amendments to the federal habeas statutes with the
enactment of AEDPA, which “modified a federal habeas court’s role in reviewing state prisoner
applications in order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions
are given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693 (2002) (citing
Williams v. Taylor, 529 U.S. 362, 403-04 (2000)). AEDPA reflects the view that habeas corpus is
a “guard against extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011)
(internal quotations and citation omitted).
AEDPA substantially revised the law governing federal habeas corpus. Among other
things, AEDPA set a one-year limitations period for filing a federal habeas petition. See Pace v.
DiGuglielmo, 544 U.S. 408, 410 (2005).
B. Petitioner’s Claims are Time-barred

AEDPA’s statute of limitations is codified at 28 U.S.C. § 2244(d) and it requires, with a
few exceptions not applicable here, that habeas corpus claims under 28 U.S.C. § 2254 be filed
within one year of the date the petitioner’s judgment of sentence became final. 28 U.S.C.
§ 2244(d)(1)(A).6 AEDPA also provides that “[t]he 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).
As discussed above, Petitioner’s judgment of sentence became final on August 21, 2012.
He filed the PCRA petition 204 days later, on March 13, 2013. In accordance with § 2244(d)(2),
that first PCRA proceeding statutorily tolled AEDPA’s limitations period beginning on

March 13, 2013. Petitioner’s PCRA proceeding remained pending through on or around Monday,
December 14, 2015, which is the date the 30-day time period expired for him to file a petition for
allowance of appeal from the Superior Court’s November 13, 2015 decision in Clark II. See, e.g.,
Swartz v. Meyers, 204 F.3d 417, 419-20 (3d Cir. 2000).
AEDPA’s limitations period began to run again the next day, on December 15, 2015. Since
204 days had expired already from the limitations period, Petitioner had 161 more days—until on

6 The date on which AEDPA’s one-year limitations period commenced is determined on a claim-
by-claim basis. Fielder v. Varner, 379 F.3d 113, 118-22 (3d Cir. 2004). Petitioner acknowledges
that the statute of limitations for all claims he asserts in this habeas action began to run on the date
his judgment of sentence became final in accordance with § 2244(d)(1)(A). (ECF 1-1 at p. 19.) He
does not assert that any claim must be evaluated under paragraphs (B), (C) or (D) of § 2244(d)(1).
or around May 24, 2016—to file a timely federal habeas petition. He did not file his Petition until
January 13, 2021, thereby making the claims he raised in the Petition untimely by approximately
1,695 days, or more than four years and seven months.
Petitioner acknowledges that he filed his claims outside of AEDPA’s one-year statute of

limitations, but contends that the limitations period should be equitably tolled. Equitable tolling
would apply here only if Petitioner established that (1) he pursued his rights diligently; and
(2) some extraordinary circumstance stood in his way and prevented timely filing. Holland v.
Florida, 560 U.S. 631 (2010); see, e.g., Wallace v. Mahanoy, 2 F.4th 133, 143-44 (3d Cir. 2021);
Ross v. Varano, 712 F.3d 784, 798-804 (3d Cir. 2013); United States v. Thomas, 713 F.3d 165,
174-75 (3d Cir. 2013); Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). “This
conjunctive standard requires showing both elements before we will permit tolling.” Sistrunk v.
Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original)).
The Court of Appeals has explained:
The diligence required for equitable tolling purposes is reasonable diligence, not
maximum, extreme, or exceptional diligence. Holland, 130 S. Ct. at 2565…. A
determination of whether a petitioner has exercised reasonable diligence is made
under a subjective test: it must be considered in light of the particular circumstances
of the case. See Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) (“Due diligence
does not require the maximum feasible diligence, but it does require diligence in
the circumstances.”) (emphasis added) (internal quotation marks and citation
omitted); see also Doe v. Busby, 661 F.3d 1001, 1013 (9th Cir. 2011) (“To
determine if a petitioner has been diligent in pursuing his petition, courts consider
the petitioner’s overall level of care and caution in light of his or her particular
circumstances." (emphasis added)).
Ross, 712 F.3d at 799. The Court of Appeals has further instructed that:
“[t]here are no bright lines in determining whether equitable tolling is warranted in
a given case.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011). Nevertheless,
“courts must be sparing in their use of equitable tolling,” Seitzinger v. Reading
Hosp. & Medical Ctr., 165 F.3d 236, 239 (3d Cir. 1999), and should do so “only
when the principles of equity would make the right application of a limitation
period unfair.” Miller [v. New Jersey State Dept. of Corr.], 145 F.3d [616, 618 (3d
Cir. 1998)].
Sistrunk, 674 F.3d at 190.
Petitioner has failed to establish that he is entitled to equitable tolling. No evidence supports
a finding that he was diligent in filing his federal habeas claims and that extraordinary
circumstances prevented him from raising them. His assertion that Attorney Greenfield abandoned

him either during and/or after his PCRA proceeding has no legal or evidentiary support. Moreover,
once his PCRA proceeding concluded, Petitioner still had 161 days (until on or around
May 24, 2016) to file a timely pro se federal habeas petition with this Court. He does not explain
why he did not do so, let alone direct the Court to any evidence that would establish that he is
entitled to equitable tolling for the amount of time (1,695 days) that would be required to save his
claims from being time-barred.
Petitioner also argues that in accordance with the Supreme Court’s decision in McQuiggin
v. Perkins, 569 U.S. 383 (2013), the Court should excuse his failure to comply with AEDPA’s
limitations period because he is innocent. In McQuiggin, the Supreme Court recognized that the
actual-innocence “gateway” to federal habeas review developed in Schlup v. Delo, 513 U.S. 298

(1995) for procedurally defaulted claims extends to cases in which a petitioner’s claims would
otherwise be barred by the expiration AEDPA’s one-year statute of limitations.
In Schlup, the Supreme Court held that a viable claim of actual innocence requires a
petitioner “to support his allegations of constitutional error with new reliable evidence—whether
it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence—that was not presented at trial.” 513 U.S. at 324. “‘[a]ctual innocence’ means factual
innocence, not mere legal insufficiency.” Sistrunk, 674 F.3d at 191 (quoting Bousley v. United
States, 523 U.S. 614, 623 (1998)).
The Supreme Court’s ruling in McQuiggin was “grounded in the ‘equitable discretion’ of
habeas courts to see that federal constitutional errors do not result in the incarceration of innocent
persons.” 569 U.S. at 392-93 (quoting Herrera v. Collins, 506 U.S. 390, 404 (1993)). It held that
the “actual innocence” exception will apply only to a “severely confined category” of cases,” id.

at 395, and instructed “[t]he gateway should open only when 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.’” Id. at 401 (quoting
Schlup, 513 U.S. at 316).
In Reeves v. Fayette SCI, 897 F.3d 154, 160-61 (3d Cir. 2018), the Court of Appeals
explained:
To satisfy this standard, first, “a petitioner must present new, reliable evidence” and
second, “show by a preponderance of the evidence ‘that it is more likely than not
that no reasonable juror would have convicted him in the light of the new
evidence,’” Houck v. Stickman, 625 F.3d 88, 93 (3d Cir. 2010) (citing and quoting
Schlup, 513 U.S. at 324, 327, 115 S. Ct. 851), or stated differently, that it is “more
likely than not any reasonable juror would have reasonable doubt,” House v. Bell,
547 U.S. 518, 538, 126 S. Ct. 2064, 165 L.Ed.2d 1 (2006).
It further explained:
“[M]ere impeachment evidence is generally not sufficient to satisfy the [actual
innocence gateway] standard.” Munchinski v. Wilson, 694 F.3d 308, 338 (3d Cir.
2012). However, new, reliable evidence that “undermine[s] the [trial] evidence
pointing to the identity of the [perpetrator] and the motive for the [crime]” can
suffice to show actual innocence. Goldblum v. Klem, 510 F.3d 204, 233 (3d Cir.
2007); see also Munchinski, 694 F.3d at 336-37 (explaining that actual innocence
was demonstrated where new evidence both showed that the crime could not have
happened in the way the Commonwealth presented at trial and provided an
alternative theory that was more appropriate and better fit the facts of the case). In
weighing the evidence, “[t]he court’s function is not to make an independent factual
determination about what likely occurred, but rather to assess the likely impact of
the evidence on reasonable jurors”; the actual innocence standard “does not require
absolute certainty about the petitioner’s guilt or innocence.” House, 547 U.S. at
538, 126 S. Ct. 2064.
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.” McQuiggin, 569 U.S. at 386, 392, 401, 133 S. Ct. 1924 (internal quotation
marks and citations omitted).
Id. at 161 (altered text added by court of appeals).
Petitioner has not produced new evidence of his innocence that provides a “gateway”
through which the Court may consider his untimely federal habeas claims. As “new” evidence of
his innocence, he relies on a 209-page printout of a daily planner that was not introduced at trial
and which purportedly sets forth his delivery schedule for work from October 6, 2006 through
October 6, 2008. (Pet’s Ex. G, ECF 17).7 Petitioner asserts generally that this document shows that
he could not have committed the acts of abuse as testified by the victims. However, he does not
cite to a specific page of this lengthy document to show how it supports his claim that he is factually
innocent. The Court also notes that the victims did not testify as to specific dates the incidents of
abuse occurred8 and also that AC testified that Petitioner’s abuse of her began in June 2002, years
before the dates set forth in the daily planner. (Trial Tr. at pp. 21-22).

7 The Court assumes for the purposes of this Memorandum only that the daily planner Petitioner
produced as Exhibit G is authentic. See Williams v. Woodford, 384 F.3d 567, 590-91 (9th Cir.
2004) (expansion of the record under Pursuant to Rule 7 of the Rules Governing Section 2254
Cases in the United States District Courts is a permissible step that may avoid the necessity of an
expensive and time consuming evidentiary hearing); Boyko v. Parke, 259 F.3d 781, 790 (7th Cir.
2001) (Rule 7 “can be used to introduce new factual information into the record in lieu of an
evidentiary hearing”).
8 For example, AC testified that Petitioner abused her approximately “twice a week…whenever he
would be there without my mom being home.” (Trial Tr. at p. 28.) AC explained that some of the
abuse occurred during the summer, when she and her siblings were home alone while their mother
was at work. AC stated that Petitioner, who was employed as a delivery driver, was able to stop
by the house during the day on some occasions because he was making a delivery nearby. (Id. at
p. 25.) Moreover, the trial court instructed the jury that “in all three indictments [the
Commonwealth] allege[s] that the crimes were committed on a range of dates. You are not bound
by the date alleged in the criminal information…. You may find the Defendant guilty if you are
satisfied beyond a reasonable doubt that he committed the crimes charged in or around or on or
about the dates charged in the criminal complaint, even though you are not satisfied that the
Defendant committed it on the particular dates alleges in the complaint.” (Trial Tr. at p. 386-87.)
Based on the foregoing, Petitioner has shown neither that an “extraordinary circumstance”
stood in his way of filing his habeas claims within AEDPA’s statute of limitations or that he acted
with the required diligence sufficient to justify the amount of equitable tolling that would be
required to save his claims from being time-barred. Nor has Petitioner demonstrated that this is

one of the rare cases in which the actual innocence exception to the statute of limitations
recognized by McQuiggin applies. Thus, his habeas claims are time-barred and the Court will deny
them for that reason.
Finally, to the extent that Petitioner is also raising a freestanding actual innocence claim
(in addition to his gateway actual innocence claim), that claim is denied. In the Third Circuit, “[i]t
has long been recognized that ‘[c]laims of actual innocence based on only newly discovered
evidence’ are never grounds for ‘federal habeas relief absent an independent constitutional
violation.’” Fielder, 379 F.3d at 122 (quoting Herrera v. Collins, 506 U.S. 390, 400 (1993));9
Albrecht v. Horn, 485 F.3d 103, 121-22 (3d Cir. 2007). However, the Court of Appeals has
acknowledged that the Supreme Court has yet to definitely resolve the issue. Reeves, 897 F.3d at

160 n.4. The Court of Appeals has further explained that to the extent freestanding actual
innocence claims are cognizable, they must be “assessed under a more demanding standard [than
a gateway actual innocence claim], since the petitioner’s [freestanding] claim is that his conviction
is constitutionally impermissible ‘even if his conviction was the product of a fair trial[.]’” Id.
(quoting Schlup, 513 U.S. at 316 and citing House v. Bell, 547 U.S. 518, 555 (2006)).

9 In Herrera, the Supreme Court left open the possibility 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 was no state avenue open to process
such a claim.” 506 U.S. at 417.
Suffice it to say that if indeed a freestanding claim of actual innocence could be brought in
a non-capital federal habeas case such as this one, Petitioner has fallen short of offering the type
of evidence of innocence that would entitle him to habeas relief on such a claim given that he has
not satisfied the lesser (although still demanding) standard that applies to gateway actual innocence

claims.
Accordingly, if Petitioner is raising a freestanding actual innocence claim it is denied.
III. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for
appellate review of a district court’s disposition of a habeas petition. It provides that “[a] certificate
of appealability 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). “When the district court denies a habeas petition
on procedural grounds without reaching the prisoner’s underlying constitutional claim, a
[certificate of appealability] 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). Applying that standard here,
jurists of reason would not find it debatable whether Petitioner’s claims should be denied as
untimely. Thus, a certificate of appealability is denied with respect to each claim.
IV. Conclusion
For these reasons, the Court will grant Respondents’ Motion to Dismiss (ECF 8), deny each
of Petitioner’s habeas claims as time-barred and deny a certificate of appealability with respect to
each claim.

An appropriate Order follows.

/s/ Patricia L. Dodge
Date: November 19, 2021 PATRICIA L. DODGE
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417145. Public record. Not legal advice.