Sistrunk v. Rozum

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-2495

_____________

EDWARD SISTRUNK,

Appellant

v.

GERALD ROZUM;

THE DISTRICT ATTORNEY OF THE

COUNTY OF PHILADELPHIA;

THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2:06-cv-05630)

District Judge: Hon. John R. Padova

Submitted under Third Circuit LAR 34.1(a)

October 28, 2011

Before: SLOVITER, GREENAWAY, JR. and ALDISERT,

Circuit Judges.

(Filed: March 20, 2012)

Teri B. Himebaugh, Esq.

220 Stallion Lane

Schwenksville, PA 19473

Attorney for Appellant

Molly Selzer Lorber, Assistant District Attorney

Thomas W. Dolgenos, Chief, Federal Litigation

Ronald Eisenberg, Deputy District Attorney, Law Division

Joseph E. McGettigan, III, First Assistant District Attorney

R. Seth Williams, District Attorney

Philadelphia District Attorney’s Office

Three South Penn Square

Philadelphia, PA 19107-3499

Attorneys for Appellees

____________

OPINION OF THE COURT

____________

ALDISERT, Circuit Judge.

This appeal seeks review of a denial of a petition for

habeas corpus by Edward Sistrunk, an inmate in

Respondents’ custody. After pursuing and exhausting his

state court avenues for appeal, Sistrunk sought habeas relief

from the United States District Court for the Eastern District

of Pennsylvania on the basis of newly discovered evidence of

his “actual innocence.” The District Court concluded that the

Pennsylvania state courts’ disposition of Sistrunk’s appeal

2

was not contrary to, nor an unreasonable application of,

clearly established federal law, and denied his petition. We

will affirm.

The certificate of appealability (“COA”) limits our

review to a single issue: whether Sistrunk’s habeas petition

was timely filed according to 28 U.S.C. § 2244(d)(1)(D). By

sheer counting of calendar days, it is undisputed that

Sistrunk’s petition was filed long after his one-year timeliness

period expired. But because the Anti-Terrorism and Effective

Death Penalty Act (“AEDPA”) provides several avenues for

petitioners to satisfy timeliness, Sistrunk’s argument requires

us to determine whether he is entitled to statutory tolling or

different types of equitable tolling that might save his claim.

Specifically, Sistrunk contends that he is entitled to: (1)

statutory tolling on the basis of uncovering new, exculpatory

evidence; (2) equitable tolling due to government witness

tampering; or (3) equitable tolling because he is actually

innocent.

We conclude that Sistrunk does not qualify for these

tolling exceptions. Sistrunk’s delays are inexcusable, his

evidence is not “new,” and even if we permitted equitable

tolling for actual innocence, Sistrunk’s proofs of “actual

innocence” fall short. We will, therefore, affirm the District

Court’s judgment.

I.

A.

In the early morning hours of July 23, 1993, Edward

Sistrunk used his automobile horn and headlamps to harass a

car driven by Julmaine Moody on a residential road in

3

Philadelphia, Pennsylvania. 1 Both cars pulled over. An

altercation between the cars’ occupants broke out, but ceased

abruptly when a passenger in Moody’s car recognized a

passenger in Sistrunk’s car as an acquaintance. All reentered

their respective vehicles, and the cars returned to the

roadway. Sistrunk then positioned his moving car alongside

Moody’s, drew a revolver, aimed at a passenger in Moody’s

car with whom he had had a heated exchange, and fired.

Missing its intended mark, the bullet struck the unarmed and

pregnant Moody in the head, killing her.

Sistrunk evaded capture for three months until his

arrest in North Carolina. Multiple witnesses identified

Sistrunk as the shooter, including Sistrunk’s intended victim,

David Snyder. Out of the many people who implicated

Sistrunk in the murder, one witness of particular significance

here, Gregory Anderson, gave a statement to police and

testified at a preliminary hearing on January 6, 1994, that he

was in Sistrunk’s car at the time of the murder and that

Sistrunk was the murderer. Anderson disappeared before trial

and therefore did not testify, but Sistrunk’s defense counsel

successfully argued to admit Anderson’s hearing testimony at

trial. The trial court found as a fact that all witnesses agreed

Sistrunk was the shooter.

On May 18, 1995, the court sentenced Sistrunk to life

imprisonment for murdering Moody. In addition, the court

1

AEDPA requires us to presume that the state courts’ factual

findings are valid and binding, absent clear and convincing

evidence to the contrary. See 28 U.S.C. § 2254(e)(1). We thus

relate the relevant facts as found by the Pennsylvania state

courts.

4

sentenced Sistrunk to concurrent imprisonment terms for

possession of an instrument of crime, reckless endangerment,

and simple assault. The Pennsylvania Superior Court affirmed

Sistrunk’s sentence on July 19, 1996. The Pennsylvania

Supreme Court then denied Sistrunk’s petition for allowance

of appeal on December 11, 1996. His conviction became final

on March 11, 1997, when Sistrunk’s deadline for filing a

petition for certiorari in the United States Supreme Court

passed. See 28 U.S.C. § 2101(c); Kapral v. United States, 166

F.3d 565, 575 (3d Cir. 1999).

B.

Sistrunk filed a petition for relief under the

Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.

Cons. Stat. Ann. §§ 9541-9546, on December 11, 1997,

contending that his appellate counsel was ineffective for

failing to challenge the effectiveness of his trial counsel. The

PCRA court dismissed Sistrunk’s petition because Sistrunk

had already litigated the issues on direct appeal. The

Pennsylvania Superior Court then affirmed this dismissal on

June 19, 2000.

Sistrunk filed a second PCRA petition on June 26,

2002, contending that newly discovered evidence entitled him

to a new trial or evidentiary hearing. Sistrunk alleged that he

had uncovered evidence proving that another person had

confessed to shooting Moody. Sistrunk claimed to have first

heard on April 29, 2002, that Damon Rodriguez—now

deceased—had told Manuel Rodriguez in 1993 that Damon

had driven the car on the night of the murder and had shot

Moody. The PCRA court dismissed this petition as untimely

on July 9, 2003. The Superior Court affirmed this dismissal

on January 26, 2005. The Pennsylvania Supreme Court then

5

denied Sistrunk’s petition for allowance of appeal on October

4, 2005.

On August 18, 2006, Sistrunk filed a third PCRA

petition, asking the PCRA court to vacate his conviction

based on more newly discovered evidence of his actual

innocence. In this petition, Sistrunk alleged that his attorney

received a letter from Gregory Anderson—Sistrunk’s

cousin—on June 22, 2006, admitting to perjuring himself at

Sistrunk’s preliminary hearing by testifying that Sistrunk was

the shooter. Anderson further claimed that police

investigators coerced him into giving false testimony,

specifically against Sistrunk, by threatening to charge

Anderson with conspiracy. After testifying to Sistrunk’s

detriment at the preliminary hearing and then failing to appear

at trial, Sistrunk claimed that Anderson felt the need to finally

clear his conscience.

C.

This third PCRA petition pended in Pennsylvania state

court when Sistrunk filed his federal petition, on December

22, 2006. In it, Sistrunk raised two claims for relief based on

newly discovered evidence of innocence: (1) the Damon

Rodriguez confession, which Sistrunk learned about on April

29, 2002; and (2) the Gregory Anderson letter, which Sistrunk

received on June 22, 2006. On July 5, 2007, Magistrate Judge

Hey issued a Report and Recommendation, advising

dismissal of both claims. In an Order-Memorandum filed on

October 31, 2007, the District Court for the Eastern District

of Pennsylvania adopted the Recommendation to dismiss

Sistrunk’s Rodriguez claim, but, because Sistrunk’s third

PCRA petition still pended, the District Court stayed the

Anderson claim. On October 30, 2008, the District Court

6

recommitted the claim to Magistrate Judge Hey for a

Supplemental Report and Recommendation.

On February 24, 2009, Magistrate Judge Hey

recommended that Sistrunk’s Anderson claim be dismissed as

time-barred. The magistrate judge concluded that: Sistrunk’s

conviction became final on March 11, 1997; Sistrunk’s

federal petition was filed on December 22, 2006, seven years

past AEDPA’s time limit, see 28 U.S.C. § 2244(d)(1); the

Anderson letter was not “newly discovered evidence” under

§ 2244(d)(1)(D), and thus did not create a new one-year

limitations period; Sistrunk’s third PCRA petition did not toll

the AEDPA limitations period; Sistrunk was not entitled to

equitable tolling; and no COA should issue.

Sistrunk filed his objections with the District Court on

March 5, 2009. The District Court concluded that none of

Sistrunk’s objections had merit, affirmed the magistrate

judge’s denial of a COA, and dismissed Sistrunk’s habeas

petition with prejudice on April 21, 2009. Sistrunk then filed

an application for a COA with this Court under 28 U.S.C.

§ 2253(c)(1), which we granted on March 7, 2011.

II.

The District Court had jurisdiction under 28 U.S.C.

§ 2254(a). As discussed below in Part III, we have

jurisdiction under 28 U.S.C. §§ 1291 and 2253(c).

We apply a mixed standard of review. We scrutinize

jurisdictional questions and legal conclusions under a plenary

standard of review. See Lambert v. Blackwell, 387 F.3d 210,

231 (3d Cir. 2004). On the merits, however, “a federal court

is limited to deciding whether a conviction violated the

Constitution, law, or treaties of the United States.” Estelle v.

7

McGuire, 502 U.S. 62, 67-68 (1991). “[A] state court’s

interpretation of state law . . . binds a federal court sitting in

habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).

Under AEDPA, moreover, we must deny the writ unless the

petitioner shows that the state court conviction unreasonably

applied clearly established federal law, was contrary to

clearly established federal law, or was based on an

“objectively unreasonable” determination of the facts in light

of the evidence. See 28 U.S.C. § 2254(d); Williams v. Taylor,

529 U.S. 362, 409-410 (2000).

III.

Before turning to Sistrunk’s substantive arguments, we

address briefly—and ultimately dismiss—the government’s

contention that we lack jurisdiction because Sistrunk’s habeas

petition does not state a constitutional claim. This argument

attacks our jurisdiction on two levels. First, the government

contends that the absence of a constitutional claim renders the

COA defective, barring us from considering Sistrunk’s

claims. Second, the government argues that Sistrunk’s

petition points only to his imprisonment-while-actually-

innocent as a constitutional harm. Because, in the

government’s view, a freestanding claim of innocence is not a

proper “basis for federal habeas relief absent an independent

constitutional violation occurring in the state trial,” Albrecht

v. Horn, 485 F.3d 103, 121 (3d Cir. 2007) (citing Herrera v.

Collins, 506 U.S. 390, 400 (1993)), Sistrunk’s petition—even

if it were timely—would lack the requisite underlying

“independent constitutional violation” needed for our

jurisdiction.

We conclude that our exercise of jurisdiction is proper.

First, the United States Supreme Court’s opinion in Gonzalez

8

v. Thaler, 132 S. Ct. 641 (2012), destroys the government’s

attack on the COA. Even a defective COA does not thwart

our jurisdiction. Rather, “[o]nce a judge has made the

determination that a COA is warranted”—which has

happened here—“the COA has fulfilled [its] gatekeeping

function.” Id. at 650. No further scrutiny of the COA is

necessary. See id. at 652 (“[Section] 2253(c)(3) is a

nonjurisdictional rule . . . .”).

Second, we need not address whether a freestanding

claim of actual innocence would be cognizable on federal

habeas review because that is not all that Sistrunk’s petition

offers. 2 Sistrunk’s claims of innocence, rather, expressly

2

Neither this Court nor the Supreme Court has ever held that

a freestanding claim of innocence merits habeas relief. See,

e.g., Han Tak Lee v. Glunt, 667 F.3d 397, 403 n.5 (3d Cir.

2012) (reserving the issue expressly while permitting the

petitioner’s claim to proceed on due process grounds); United

States v. Davies, 394 F.3d 182, 191 n.8 (3d Cir. 2005)

(highlighting without ruling on the petitioner’s actual

innocence claim). Other courts have discussed the issue and

reached divergent conclusions. See, e.g., Souter v. Jones, 395

F.3d 577, 599 (6th Cir. 2005) (permitting equitable tolling for

a “credible showing of actual innocence”); Cousin v. Lensing,

310 F.3d 843, 849 (5th Cir. 2002) (rejecting an actual

innocence equitable tolling claim). Indeed, the Supreme Court

noted in discussing whether actual innocence implicates the

Constitution that “[w]hether such a federal right exists is an

open question. [Courts] have struggled with it over the years,

in some cases assuming, arguendo, that it exists while also

noting the difficult questions such a right would pose and the

high standard any claimant would have to meet.” Dist. Att’ys

9

incorporate separate constitutional violations. Sistrunk states

in his petition that he “was denied his Fourteenth and Sixth

Amendment rights,” not only because he is allegedly

innocent, but also because newly discovered evidence shows

that witnesses colluded to keep the identity of the real

murderer a secret and one witness—Gregory Anderson—

perjured himself due to government coercion. These claims

are probative of innocence, to be sure, but they also implicate

sufficiently Sistrunk’s right to due process. Indeed, “a

conviction obtained through use of false evidence, known to

be such by representatives of the State, must fall under the

Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264,

269 (1959); see Lambert v. Blackwell, 387 F.3d 210, 242 (3d

Cir. 2004) (stating that the government may not knowingly

use perjured testimony at trial). “The same result obtains

when the State, although not soliciting false evidence, allows

it to go uncorrected when it appears.” Napue, 360 U.S. at 269;

see United States v. Agurs, 427 U.S. 97, 103 (1976) (“[T]he

Court has consistently held that a conviction obtained by the

knowing use of perjured testimony is fundamentally unfair.”);

Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir. 2010) (granting

habeas relief based on an actual innocence claim for a

conviction stemming in part from perjured testimony).

Moreover, the teachings of Brady v. Maryland, 373 U.S. 83,

87 (1963), require prosecutors to disclose any benefits that

are given to a witness, including any possible lenient

treatment in a given case. Although the veracity of Sistrunk’s

allegations may be in question, the constitutional violations

they encompass comprise an integral and unavoidable part of

Sistrunk’s new-evidence-of-innocence claims: on the way to

Office for the Third Judicial Dist. v. Osborne, 129 S. Ct.

2308, 2321 (2009) (citations omitted).

10

demonstrating his innocence, Sistrunk’s new evidence would

show also that the government violated Sistrunk’s due

process rights. Such a showing would unquestionably

establish one or more “independent constitutional violations”

and therefore would grant us jurisdiction to review the merits

of Sistrunk’s petition if—and only if—it is timely. 3 We turn

now to address that question.

IV.

There can be no dispute that Sistrunk’s petition would

be time-barred without AEDPA’s tolling exceptions.

Sistrunk’s conviction became final on March 11, 1997. See

28 U.S.C. § 2244(d)(1). He had until one year from that date

to file a habeas petition. Id. § 2244(d)(1)(A). Sistrunk did not

file his federal petition, however, until December 22, 2006,

many years too tardy. Sistrunk then rushed to raise three

tolling arguments, any one of which would salvage his

otherwise-barred petition. He contends that he is entitled to:

(1) statutory tolling of his entire petition under § 2244(d)(2)

for the time during which his state postconviction review

pended; (2) equitable tolling because of the discovery of new

evidence; or (3) equitable tolling because he is actually

innocent. We ultimately reject each, and will affirm the

District Court’s judgment.

A.

Sistrunk contends first that his petition is subject to

AEDPA’s express statutory tolling provision, which permits

tolling for the time during which a properly filed application

3

As discussed infra, because we conclude that Sistrunk’s

petition is not timely, we do not reach the merits of his claims

to determine whether such a violation actually occurred.

11

for state postconviction review is pending in state courts. See

28 U.S.C. § 2244(d)(2); Swartz v. Meyers, 204 F.3d 417, 420

(3d Cir. 2000). Sistrunk’s application was indeed

“pending”—he filed a new petition for review in the state

PCRA court within 60 days of receiving the letter. The issue

here is whether the application was “properly filed.”

Although AEDPA permits a tardy state court filing upon the

discovery of new evidence, see 28 U.S.C. § 2244(d)(1)(D),

Sistrunk’s contention depends on whether the Anderson letter

fits within AEDPA’s definition of “new” evidence: the date

on which the “factual predicate” of the evidence was known.

We hold that it does not.

The District Court concluded that Sistrunk’s petition

for state review was not properly filed because the Anderson

letter did not constitute newly discovered evidence under

§ 2244(d)(1)(D). Rather, the District Court held, Sistrunk

knew of Anderson’s perjury no later than January 1994, over

a decade before he supposedly uncovered this evidence.

Sistrunk contends that this holding was in error,

because he did not learn of the factual predicate underlying

Anderson’s letter until June 22, 2006, when his attorney

received it. His knowledge of his own innocence

notwithstanding, Sistrunk insists that he could not have

introduced evidence about Anderson’s initial reticence to

come forward, the perjury of a key witness, police

misconduct, or witness tampering until his receipt of

Anderson’s revelations. 4 The government responds that the

4

Assuming Anderson’s letter succeeds in tolling Sistrunk’s

time to file, Sistrunk also contends that this letter permits him

to bootstrap the Rodriguez claim into his petition. See Sweger

12

“facts” of Sistrunk’s innocence and Anderson’s perjury were

long ago determined, and the appearance of a new witness to

testify to that fact does not restart the limitations period.

Because the Anderson letter does not fit within

AEDPA’s definition of “new” evidence, we agree with the

District Court that Sistrunk’s petition was improperly filed,

and thus, cannot toll AEDPA’s limitations period. Evidence

becomes “known” on “the date on which the factual predicate

of the claim or claims presented could have been discovered

through the exercise of reasonable diligence.” 28 U.S.C.

§ 2244(d)(1)(D). Here, the PCRA court found that Sistrunk

not only could have known, but actually did know of the vital

facts underlying both the Anderson letter and Rodriguez

affidavit—i.e., Damon Rodriguez was the real shooter and

Gregory Anderson perjured himself—long before the filing of

his habeas petition. See App. 00092. This finding by the state

court binds us. See Warren v. Kyler, 422 F.3d 132, 136 (3d

Cir. 2005) (“‘[I]t is not the province of a federal habeas court

to reexamine state-court determinations on state-law

questions.’” (quoting Estelle, 502 U.S. at 67-68)). Because

evidence that is “previously known, but only newly available”

does not constitute “newly discovered evidence,” United

States v. Jasin, 280 F.3d 355, 362 (3d Cir. 2002), we will not

construe the evidence of innocence Sistrunk offers as “new.”

Similarly, to the extent that the Anderson letter introduced

v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002) (holding that

tolling applies to the entire petition so long as the state

proceeding attacks the same judgment as the habeas petition

does). Because we deny Sistrunk’s tolling claim related to the

Anderson letter, his attempt to revive his barred contentions

concerning the Rodriguez affidavit also fails.

13

new evidence of the reasons behind Anderson’s perjury,

“evidence known but unavailable at trial does not constitute

‘newly discovered evidence’ within the meaning of Rule 33.”

Id.

B.

Sistrunk next contends that the government’s attempt

to actively mislead him with respect to his Rodriguez

affidavit claim entitles him to equitable tolling. Because

Sistrunk cannot show both (1) extraordinarily burdensome

circumstances as well as (2) reasonable diligence in

investigating the claim, see Schlueter v. Varner, 384 F.3d 69,

78 (3d Cir. 2004), we hold that he cannot avail himself of

equitable tolling.

The District Court rejected this contention because

Sistrunk knew of Rodriguez’s guilt and Anderson’s perjury

and yet did nothing about these facts for twelve years, placing

his case far outside the bounds of “reasonable diligence.”

Sistrunk, seeking to construct an unstated declaration

of what the court meant but did not say, contends that he was

“actively misled” by the PCRA court. According to Sistrunk,

although the PCRA court dismissed his entire petition as

untimely, it did not mean to affix the label “untimely” to all

of the claims within the petition, but meant instead to dismiss

his affidavit claim on the merits. Because the court’s alleged

misstating led Sistrunk to believe his claim was dismissed as

untimely, he had thought that a federal habeas petition would

be futile. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).

After discovering the “error” in 2006, Sistrunk then

“diligently” filed his federal petition.

14

The government responds that reinventing language in

a judicial opinion—assuming arguendo that the opinion was

mistaken—provides no grounds for equitable tolling. 5 The

government contends, moreover, that reasonable diligence

cannot mean that a habeas petitioner may “sit quietly by,

knowing there are multiple witnesses to his version of events,

and do nothing to present this evidence to any court for years

on end.” Gov’t Br. at 39; cf. Schlup v. Delo, 513 U.S. 298,

332 (1995) (holding that courts “may consider how the timing

of the submission and the likely credibility of the affiants bear

on the probable reliability of that evidence” when considering

claims of innocence).

Both the Supreme Court and this Court agree with the

District Court that Sistrunk’s claims do not qualify for

equitable tolling. AEDPA does not provide additional

justifications for tolling its one-year time limit beyond the

specific instances listed in § 2244(d). Although we have

recognized rare situations in which equity permits tolling, see

Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (holding that

AEDPA’s time limitations are “subject to equitable tolling in

appropriate cases”); Miller v. N.J. State Dep’t of Corr., 145

F.3d 616, 617 (3d Cir. 1998) (holding that equitable tolling

may only occur when a petitioner has been extraordinarily

prevented from asserting his rights), this is not one of those

situations.

As we have explained, “[t]here are no bright lines in

determining whether equitable tolling is warranted in a given

5

The government is correct that the PCRA court indeed

rejected Sistrunk’s Rodriguez claim as untimely. See App.

00026.

15

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 rigid application of a

limitation period unfair.” Miller, 145 F.3d at 618 (internal

quotation marks and citation omitted). The Supreme Court

has provided guidance as to when the “principles of equity”

permit equitable tolling: “[A] petitioner is entitled to

equitable tolling only if he shows (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.”

Holland, 130 S. Ct. at 2562-2563 (internal quotation marks

and citation omitted). This conjunctive standard requires

showing both elements before we will permit tolling. See

Schlueter, 384 F.3d at 78.

Here, it is readily apparent that Sistrunk cannot meet

the Holland standard, as he has shown neither diligence nor

extraordinarily burdensome circumstances. As for diligence,

Sistrunk was in the car on the night of the shooting with three

other people, one of whom—Damon Rodriguez—was the

supposed killer. One passenger, Gregory Anderson, testified

against Sistrunk. In the intervening years, Sistrunk made no

effort to get Anderson to recant his testimony or to get the

other passengers to testify. As the PCRA court concluded,

Sistrunk (a) knew of both Rodriguez’s guilt and Anderson’s

perjury and (b) did nothing about either for 12 years. When a

petitioner has knowledge of his innocence and of witnesses

who might testify to it, “[m]ere excusable neglect is not

sufficient” to show diligence. Miller, 145 F.3d at 619.

Sistrunk waited far too long to possibly claim that he has

diligently pursued this claim. See Pace, 544 U.S. at 418-419

16

(holding that a five-month delay demonstrated a lack of

diligence).

Moreover, even if we held that Sistrunk were diligent,

he has not been extraordinarily burdened or prevented from

pressing his claim. We have a high standard for

“extraordinary circumstances.” See, e.g., Pabon, 654 F.3d at

400 (holding that a defendant’s inability to speak English and

the lack of Spanish language legal materials or interpreters

constituted extraordinary circumstances). Even assuming that

the PCRA court dismissed Sistrunk’s claim on the merits, and

not for timeliness reasons, misreading a court opinion is not

an “extraordinary circumstance [that] stood in his way and

prevented timely filing.” Holland, 130 S. Ct. at 2562-2563

(citations omitted).

Sistrunk needed to show both diligence and

extraordinary circumstances to succeed on his equitable

tolling argument. He can show neither. As a result, we

conclude that the District Court correctly dismissed Sistrunk’s

first equitable tolling claim.

III.

Finally, Sistrunk contends that he is entitled to

equitable tolling on the separate ground that he is introducing

evidence of “actual innocence,” a claim that should permit

him to clear any procedural hurdles to obtaining a new

evidentiary hearing on his innocence. We disagree.

Regardless of whether we adopt the contention that Sistrunk’s

actual innocence might permit equitable tolling, we hold that

Sistrunk has not shown that the evidence he seeks to submit

17

demonstrates that he is actually innocent. We therefore will

affirm the District Court’s dismissal of Sistrunk’s petition. 6

Sistrunk contends that the evidence he now offers—the

Anderson letter and the Rodriguez affidavit—satisfies the

Supreme Court’s standard for actual innocence: that no

reasonable juror would have voted to find Sistrunk guilty had

these pieces of evidence been available at trial. See Bousley

v. United States, 523 U.S. 614, 623 (1998) (“‘Actual

innocence’ means factual innocence, not mere legal

insufficiency.” (citation omitted)). Sistrunk then argues that

this evidence of innocence entitles him to equitable tolling.

The government responds that, even if we were to hold that a

legitimate actual innocence claim could permit equitable

tolling, Sistrunk’s case falls far short of “actual innocence.”

We conclude that Sistrunk is not entitled to equitable

tolling for actual innocence because he cannot show that he

is, in fact, innocent. 7 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.

Schlup, 513 U.S. at 324, 327; see also House v. Bell, 547

U.S. 518, 536-537 (2006). All three Schlup factors are

6

The District Court dismissed this claim entirely on the

ground that Sistrunk has not been diligent. Because Sistrunk’s

claim, as he crafts it, would trump the diligence requirement

from above, we proceed to discuss it in greater detail.

7

We do not decide whether a petitioner’s actual innocence

might permit equitable tolling because, even if it could,

Sistrunk does not meet the preliminary requirement of

demonstrating his innocence.

18

necessary for Sistrunk to prevail. See House, 547 U.S. at 536-

537. He fails each.

First, as discussed, Sistrunk’s evidence is not “new.”

Second, even if it were, it is not reliable. The Pennsylvania

PCRA court’s factual finding that Rodriguez’s affidavit is

unreliable binds us, and Sistrunk has not shown clear and

convincing evidence to the contrary. See Werts v. Vaughn,

228 F.3d 178, 196 (3d Cir. 2000). The Anderson letter, too, is

not reliable—it comes nearly a decade too tardy from another

prisoner, who is related to Sistrunk and admits to having lied

once before. Cf. Taylor v. Illinois, 484 U.S. 400, 414 (1988)

(“It is . . . reasonable to presume that there is something

suspect about a defense witness who is not identified until

after the 11th hour has passed.”); Dobbert v. Wainwright, 468

U.S. 1231, 1233-1234 (1984) (“Recantation testimony is

properly viewed with great suspicion. It . . . is very often

unreliable . . . , and most often serves merely to impeach

cumulative evidence rather than to undermine confidence in

the accuracy of the conviction.”); Landano v. Rafferty, 856

F.2d 569, 572 (3d Cir. 1988) (“Courts have historically

viewed recantation testimony with great suspicion.”). Third,

Sistrunk’s new evidence simply cannot be evaluated as so

probative of his innocence that no reasonable juror could have

convicted him. Schlup sets a supremely high bar. Neither the

recantation of a witness who did not even testify at trial nor

the second-hand retelling of a jailhouse confession can clear

it. There were several eyewitnesses to the crime, all of whom

implicated Sistrunk at trial. Adding Sistrunk’s offered

evidence into the mix would still permit a reasonable juror to

vote to convict. Sistrunk thus cannot meet Schlup’s standard

for actual innocence and cannot avail himself of equitable

tolling on that basis.

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V.

We hold that Sistrunk’s petition is time-barred, and is

subject to neither statutory nor equitable tolling. We will

therefore AFFIRM the District Court’s judgment.

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