Joseph Wallace v. Superintendent Mahanoy SCI

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 18-3006
_________________
JOSEPH WALLACE,
Appellant
v.
SUPERINTENDENT MAHANOY SCI;
ATTORNEY GENERAL PENNSYLVANIA
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-15-cv-05376
District Judge: The Honorable Jeffrey L. Schmehl
__________________________
Argued March 9, 2021
Before: SMITH, Chief Judge, McKEE, and AMBRO,
Circuit Judges
(Filed: June 22, 2021)
Federal Public Defender
Western District of Pennsylvania
Lisa B. Freeland
Samuel G. Saylor [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant
Nicholas J. Casenta, Jr. [ARGUED]
Chester County Office of the District Attorney
Suite 4450
201 West Market Street
P.O. Box 2746
West Chester, PA 19380
Counsel for Appellee
_____________________
OPINION OF THE COURT
_____________________
SMITH, Chief Judge.
More than twenty years ago, Joseph Wallace
pleaded guilty but mentally ill (GBMI) to third-degree
murder and related crimes. This appeal concerns his
petition for a writ of habeas corpus that was due by
2
January 7, 2002, but which he did not file until
September 13, 2015. He asks us now to excuse his
decade-plus delay in filing the petition.
For much of his life, if not all of it, Wallace has
suffered from severe mental illness, including bipolar
disorder with psychotic features, chronic depression,
attention deficit hyperactivity disorder, and major
affective disorder; his illness has manifested at times as
hallucinations, religious delusions, manic activity, and
suicidal tendencies. It is undisputed that an acute
psychotic episode led him to commit the crime for which
he remains incarcerated today. Wallace contends that his
mental illness so hampered his ability to think clearly that
he could not reasonably have been expected to file for
federal habeas relief at any time prior to September 2015.
But after a painstaking review of the record, we cannot
agree. Instead, we conclude that Wallace has not
demonstrated his entitlement to equitable tolling that
would allow us to extend the filing deadline for the
duration of the period of excessive delay the record
reveals.
In addition, Wallace claims that his prescribed use
of the prescription drug Ritalin1 may have exacerbated his
1
Ritalin is the brand name for methylphenidate
hydrochloride, a “mild central nervous system stimulant”
3
psychosis, rendering him involuntarily intoxicated or
legally insane at the time of his crime such that he could
not form the mens rea necessary for murder. But given the
applicable law and the evidence of record, we are not
persuaded that this claim permits Wallace to employ the
narrow “actual innocence gateway,” McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013), to excuse him from the
filing deadline for habeas petitions set forth in 28 U.S.C.
§ 2244.
We will affirm the District Court’s judgment
dismissing Wallace’s habeas petition as untimely.
I. FACTUAL BACKGROUND2
On February 28, 2000, Wallace was in the throes of
a severe psychotic episode. Early that morning, after a
sleepless night, he got into bed with his wife, Eileen.
Wallace was clutching a knife. After waiting ten or fifteen
used to treat Attention Deficit Hyperactivity Disorder
(ADHD) and narcolepsy. JA 327–28.
2
The factual background and procedural history have been
drawn from the contents of the appendix provided by the
parties. The salient facts are largely undisputed.
However, portions of the record appear to be missing or
incomplete, likely due to the lengthy interval between
Wallace’s underlying criminal proceeding and the current
habeas proceeding,
4
minutes to build up his courage, Wallace used the knife to
stab Eileen in the chest as she lay sleeping. She awoke,
pleaded with him to stop, and tried to fight him off. They
struggled for a few minutes while Wallace continued to
stab and slash at her. Eileen soon died from her wounds.
Wallace then showered, changed his clothes,
stowed the knife in a drawer, and locked the door to their
house, leaving Eileen’s body behind. Then he left for a
convenience store. Later, Wallace took a train to
Philadelphia where he planned to commit suicide. Police
were waiting for him, however, after his mother disclosed
his whereabouts. They apprehended him in Philadelphia’s
Thirtieth Street train station.
Meanwhile, Patricia Daniels, began to worry when
her friend, Eileen, missed a scheduled appointment.
Daniels contacted the police and asked for a “well-being
check” at the Wallaces’ home. JA 1150.3 A responding
officer discovered the doors were locked, and when no one
answered, he entered forcefully by breaking a
windowpane. Daniels accompanied the officer inside
where they discovered Eileen’s body upstairs.
The next day, while in police custody, Wallace
admitted to stabbing his wife to death. He told police that
he had acted on a belief that Eileen’s death would put her
3
JA refers to the parties’ Joint Appendix.
5
out of her misery and set her spirit free. As he related his
account, he appeared mild, calm, and subdued to the
officers who interviewed him.
Several months later, Wallace explained to a doctor
that he had killed Eileen because he had believed that he
and she, together, “were Jesus,” JA 253, and that “he was
doing her a favor by killing her” because “she is in
heaven” and “it was the right thing for her,” JA 256. He
then explained that he left the scene because he knew the
police would be looking for him.
Around the time of the crime, Wallace had been
taking prescription medications including Ambien, Paxil,
and Ritalin. Later, he claimed to doctors that he did not
remember precisely which medications he took on the day
of Eileen’s death.
II. PROCEDURAL HISTORY
A. Wallace’s Pennsylvania Criminal Proceeding
Wallace was charged in the Court of Common Pleas
of Chester County with first-, second-, and third-degree
murder, 18 Pa C.S. § 2502,4 aggravated assault, 18 Pa. C.S.
4
Under 18 Pa C.S. § 2502(a), first-degree murder is a
criminal homicide “committed by an intentional killing.”
An intentional killing is killing “by means of poison, or by
6
§ 2702(a)(1), (4), possession of an instrument of crime, 18
Pa. C.S. § 907(a), and tampering with evidence, 18 Pa.
C.S. § 4910(1).5 The case was assigned to Judge James P.
MacElree, III. First Assistant Public Defender Graham
Andes, Esq., represented Wallace. At that time, Andes
was a twenty-seven-year veteran of the Chester County
public defender’s office and was that office’s specialist in
mental health defenses. Andes was assisted by co-counsel
Maria Heller, Esq.
In March 2000, Andes directed two forensic
psychologists, Dr. Gerald Cooke and Dr. Robert Sadoff, to
examine Wallace and opine on his mental competence.
Both doctors concluded that Wallace was competent to
attend a preliminary hearing but that he would need to be
re-evaluated as to his competence to stand trial.
In June 2000, Andes requested Drs. Sadoff and
Cooke to re-evaluate Wallace by conducting
lying in wait, or by any other kind of willful, deliberate
and premeditated killing.” § 2502(d). Second degree
murder is a criminal homicide “committed while
defendant was engaged as a principal or an accomplice in
the perpetration of a felony.” § 2502(b). Third degree
murder is “[a]ll other kinds of murder.” § 2502(c).
5
The tampering charge arose from Wallace’s having
placed the murder weapon into a drawer.
7
psychological testing and reviewing his medical records.
Andes sought comprehensive written opinions assessing
both Wallace’s competence to stand trial and his state of
mind at the time of the crime. In response, Dr. Cooke
reported that Wallace was, at the time of the evaluation, in
partial remission due to his medication regime. Dr. Cooke
adjudged him “marginally competent to stand trial,” but
suggested re-evaluation “a day or two prior to” trial to
assess whether the stress of an approaching trial could
cause him to decompensate. JA 999. As to state of mind
at the time of the crime, Dr. Cooke opined that Wallace
was not legally insane but satisfied Pennsylvania’s GBMI6
definition:
Wallace was overtly and grossly psychotic at
the time of the offense, and . . . his actions
followed from a psychotic delusion. If not
for his psychosis, it is my opinion that this
offense would not have occurred. It is also
6
“A person who timely offers a defense of insanity in
accordance with the Rules of Criminal Procedure may be
found ‘guilty but mentally ill’ [GBMI] at trial if the trier
of facts finds, beyond a reasonable doubt, that the person
is guilty of an offense, was mentally ill at the time of the
commission of the offense and was not legally insane at
the time of the commission of the offense.” 18 Pa. C.S.
§ 314(a).
8
my opinion that because of his psychosis he
could not conform his behavior to the
requirements of law and therefore he
would meet the criteria for Guilty but
Mentally Ill. However, though he believed
that he was acting based on a higher law, he
did know that by Man’s law what he did
would be viewed as wrong, and that the
police would come looking for him.
Therefore, it is my opinion that he does not
meet the stricter M’Naughten standard for
Insanity. . . . [I]t is my opinion that Mr.
Wallace acted without malice. Rather,
based on his delusions, he felt he was freeing
his wife from an evil world and sending her
to heaven.
JA 1000 (emphases added).
Dr. Sadoff reached essentially the same conclusions
as had Dr. Cooke. Sadoff opined in a June 2000 report
that Wallace was “currently mentally competent to
proceed.” JA 983. In addition, Sadoff concluded that
Wallace stabbed his wife “with a benevolent intent and
without malice, i.e., without the intent to harm her, but
rather to help her get out of the misery of this world.” JA
982. But Dr. Sadoff went on to opine that Wallace was
not insane and instead met the definition for GBMI:
9
Mr. Wallace knew that he was stabbing his
wife and knew that it was against the law.
His behavior indicates that he wanted to
avoid the police and knew that taking
another’s life was against the law. Thus,
he does not fit the McNaughten rule for
insanity in Pennsylvania. With respect to
diminished capacity, Mr. Wallace had the
ability to form the intent to kill his wife,
which is what he intended to do, and
carried out his intention, so there is no
diminished capacity. However, Mr.
Wallace, in my opinion, lacked substantial
capacity to conform his conduct to the
requirements of law, which is one of the
definitions for mentally ill in the legal
concept of “guilty but mentally ill.”
JA 982–83 (emphases added).
On June 7, 2000, the trial court held a status hearing
during which Andes indicated that the doctors had found
Wallace competent to proceed, and Wallace himself
agreed with their assessment.7 In an abundance of caution,
7
Andes disclosed to the trial court that Wallace had
requested the death penalty for himself (despite the fact
that the Commonwealth was not seeking the death
10
the trial court conducted a second arraignment to ensure
that there was no question of Wallace being competent for
the arraignment process. While Wallace stood mute,
Andes entered a plea of not guilty on his client’s behalf as
to all counts. Trial was tentatively set for late September
2000.
In the fall of 2000, Andes moved to recuse Judge
MacElree as trial judge, arguing that the Judge had
displayed an appearance of bias against mental health
defenses based on statements made in Wallace’s case. On
September 26, 2000, oral argument on the recusal motion
was held before Senior Judge John Backenstoe of Lehigh
County. Andes argued that “there is no defense in this case
but a mental health defense” but observed that, “based on
the psychological/psychiatric reports that [he had]
received from [the] experts, there [was] almost no chance
of a finding of not guilty by reason of insanity.” JA 1057.
Thus, he anticipated that the case before the jury would
focus on GBMI. Andes also observed that there was little
record evidence to support a finding of malice, apart from
the inference that would arise from the use of a deadly
weapon to a vital part of the victim’s body. JA 1059.
penalty) and that the doctors had considered that fact when
conducting their competency assessments.
11
Judge Backenstoe ultimately denied the disqualification
motion and the matter continued before Judge MacElree.
On November 9, 2000, Judge MacElree conducted
an evidentiary hearing on a motion to suppress. Andes
reiterated at that time that he planned to present both the
insanity and GBMI defenses. He stated, “[w]e have taken
the position that even though our doctors do not indicate
that [Wallace] was M’Naughten insane, that this should be
presented to a jury.” JA 1232. Andes noted that the
Commonwealth’s doctors were still examining Wallace
and had yet to determine whether they viewed him as
insane. Trial was re-scheduled to mid-December.
Later that November, the Commonwealth’s expert,
psychiatrist Timothy J. Michals, examined Wallace,
conducted psychological testing, and reviewed his
medical records.8 Dr. Michals concluded that Wallace
was competent to proceed to trial. He further concluded
that, in killing Eileen, Wallace had acted with malice as
defined under Pennsylvania law:
8
Dr. Michals’s report indicates that forensic psychologist
Dr. Steven Samuel also examined Wallace and prepared a
report. The record reflects that a transcript was prepared
of the examination that Drs. Samuel and Michals
conducted. Neither Samuel’s report nor the examination
transcript appears in the record.
12
[I]t is my opinion that Mr. Wallace knew that
the stabbing and other injuries that he had
inflicted on his wife were wrong and would
cause her physical death.
It is my understanding that malice is
defined as, “. . . first, an intention to kill, or
second, an intent to inflict serious bodily
harm, or third, (a wickedness of
disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind
regardless of social duty indicating an
unjustified disregard for the probability of
death or great bodily harm and an extreme
indifference to the value of human life) (a
conscious disregard of an unjustified and
extremely high risk that his actions might
cause death or serious bodily harm).[”]
It is my opinion that Mr. Wallace’s killing
of his wife was done with malice. Secondly,
it is my opinion that he intended to inflict
serious bodily harm. Thirdly, it is my
opinion, based on the review of the autopsy
and the photographs of Mrs. Wallace, that
Mr. Wallace acted with wickedness of
disposition, hardness of the heart, cruelty and
13
recklessness in taking his wife’s life and this
was not a benevolent killing.
JA 1448 (emphases added).
At around the same time as Dr. Michals’s
examination, defense counsel asked Drs. Cooke and
Sadoff to revisit their views on Wallace’s state of mind.
Dr. Sadoff reiterated that his opinion had not changed
since the June 2000 evaluation. Dr. Cooke similarly
restated his earlier opinion “that the actions that comprised
the offense would not have occurred but for Mr. Wallace’s
grandiose psychotic delusions, and that because he acted
out these delusions believing that what he was doing was
out of love and right in the eyes of God, he acted without
malice.” JA 312.
After months of trial preparations, on December 6,
2000, Wallace entered a plea agreement with the
Commonwealth. He pleaded GBMI to third-degree
murder, possession of an instrument of crime, and
tampering with evidence.9 Judge MacElree sentenced
Wallace to a term of 23½ to 47 years’ imprisonment.
9
Due to the long lapse of time between Wallace’s guilty
plea and initiation of post-conviction proceedings, the tape
recordings that were necessary to prepare a transcript of
14
Wallace did not take a direct appeal.
B. Wallace’s Pennsylvania PCRA Proceeding
In the fall of 2012, Wallace spoke to a prison doctor
who expressed a suspicion that Wallace may have been
legally insane at the time of the murder. Wallace’s
treatment team began encouraging him to pursue legal
remedies, and they put him in touch with a fellow inmate
who could assist him with legal filings. With that
assistance, on September 3, 2013—nearly a decade and a
half after he entered his guilty plea—Wallace filed a pro
se petition for post-conviction relief under Pennsylvania’s
Post-Conviction Relief Act (PCRA). In it, Wallace
proposed a new theory to explain his violent actions in
February of 2000: that consuming Ritalin may have
caused the psychotic episode that led him to kill Eileen.
He also raised a number of related claims, including actual
innocence based on insanity and involuntary intoxication
caused by Ritalin and ineffective assistance of counsel for
failing to adequately investigate the Ritalin theory or a
legal insanity defense.
The PCRA Court appointed Robert P. Brendza,
Esq., to represent Wallace. On October 31, 2013, Brendza
the plea hearing had been destroyed. Accordingly, no plea
hearing transcript appears in the record.
15
filed a no-merit letter and moved to withdraw from the
representation on grounds that Wallace’s PCRA petition
was untimely filed. See 42 Pa. C.S. § 9545(b)(1)
(providing that a PCRA petition is due one year after the
date the judgment becomes final). On September 24,
2014, the PCRA Court agreed. The PCRA Court rejected
Wallace’s claim that the petition’s untimeliness should be
excused based upon “newly discovered facts” under 42 Pa.
C.S. § 9545(b)(1)(ii) (requiring that the facts upon which
the petition is based “were unknown to the petitioner and
could not have been ascertained by the exercise of due
diligence”). The court observed that “[t]he ‘new facts’
asserted by defendant, including his claim of involuntary
intoxication by prescription medication, were not new,
rather they were different iterations of an old issue,
defendant’s mental health at the time he killed his wife.”
JA 71 n.1. The PCRA Court therefore dismissed the
petition as untimely and granted counsel’s motion to
withdraw.
Wallace appealed. On November 25, 2014, the
Superior Court affirmed the PCRA Court’s dismissal. The
Superior Court agreed with the PCRA Court that
Wallace’s Ritalin-related claims “are not [based on] newly
discovered facts but merely a newly willing source for
previously known facts.” JA 79 (citation omitted, cleaned
up).
16
On July 29, 2015, the Pennsylvania Supreme Court
denied Wallace’s petition for allowance of appeal. See
Commonwealth v. Wallace, 119 A.3d 351 (Pa. 2015).
C. Wallace’s Federal Habeas Proceeding
On September 29, 2015, Wallace filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In it, he raised claims similar to those raised in his
2013 PCRA petition, including: actual innocence due to
insanity and involuntary intoxication based on Ritalin use;
incompetence to plead guilty; and ineffective assistance of
counsel for advising him to plead guilty in light of his
possible defenses. The petition included a lengthy
statement on timeliness, discussing Wallace’s long history
of mental illness as well as purportedly recently
discovered facts concerning Wallace’s lack of malice at
the time of the offense and the potential side effects of
Ritalin. At Wallace’s request, the District Court appointed
counsel from the Federal Community Defender Office.
In November 2017, Magistrate Judge Marilyn
Heffley issued a detailed Report & Recommendation
(R&R) addressing Wallace’s habeas claims. In the R&R,
she observed that, because Wallace did not appeal, his
deadline to file a habeas petition was January 7, 2002. See
28 U.S.C. § 2244(d). She further concluded that neither
statutory nor equitable tolling applied to extend the
deadline.
17
As to equitable tolling, Magistrate Judge Heffley
concluded that Wallace failed to establish that
extraordinary circumstances prevented him from filing a
petition throughout the entire period of delay. She noted
that Drs. Cooke and Sadoff had opined that Wallace was
not legally insane at the time of the crime and that he was
competent to stand trial. She concluded that Wallace
failed to meet his burden to show that his mental illness
prevented him from pursuing his legal rights during the
statute of limitations period or for the subsequent 13 years.
Notably, Magistrate Judge Heffley found that Wallace’s
bipolar disorder was in full remission for several years
beginning in December 2007. In addition, even if his
“marked recovery” leading to the ability to file in court did
not begin until March 2013 (as he alleged), he did not file
a federal habeas petition for another two and a half years.
JA 731 n.4. She went on to conclude that Wallace did not
pursue his claim with reasonable diligence; for more than
two years, he pursued a PCRA petition rather than federal
relief. Accordingly, she recommended that the habeas
petition be denied.
In response to the R&R, Wallace’s counsel moved
to withdraw from further representation. Magistrate Judge
Heffley issued a show cause order directing Wallace to
demonstrate why the withdrawal request should not be
granted. Wallace moved for appointment of standby
counsel, leave to file objections, and funds to hire an
18
expert. Wallace then filed a lengthy set of objections to
the R&R accompanied by voluminous exhibits. On
August 8, 2018, District Judge Jeffrey Schmehl approved
and adopted the R&R, dismissed Wallace’s petition,
granted counsel’s motion to withdraw, and denied the
motion for expert funds as moot.
Wallace timely filed a pro se notice of appeal and
applied for a certificate of appealability (COA). A panel
of this Court appointed counsel and granted a COA on the
following issues relevant to the petition’s timeliness:
(1) Whether Wallace is entitled to equitable tolling;
(2) Whether the District Court should have addressed
Wallace’s claim of innocence by reason of insanity
or involuntary intoxication as a ground to excuse
compliance with the statute of limitations under the
equitable exception established by McQuiggin v.
Perkins, 569 U.S. 383 (2013); and
(3) Whether the District Court should have addressed
the merits of the motion for funds for an expert
instead of dismissing it as moot.10
10
Additionally, the panel granted the COA on: (1) whether
Wallace is innocent of murder by reason of insanity or
involuntary intoxication; (2) whether he was incompetent
19
We address the issues in turn.
III. STANDARD OF REVIEW
The District Court exercised jurisdiction pursuant to
28 U.S.C. §§ 2241 and 2254. We have jurisdiction under
28 U.S.C. §§ 1291 and 2253.
We conduct a plenary review of the District Court’s
order dismissing a habeas petition as time-barred.11
to plead guilty; and (3) whether his counsel rendered
ineffective assistance by advising him to plead guilty
without (a) ensuring his competence and (b) properly
investigating insanity and involuntary intoxication
defenses. Our disposition on timeliness makes it
unnecessary for us to reach these additional issues.
11
In a non-precedential opinion, a panel of this Court
observed that “it does not appear that we have definitively
decided the standard of review applicable to the question
of equitable tolling where there is a dispute concerning the
petitioner’s mental competence.” Champney v. Sec’y
DOC, 469 F. App’x 113, 115 (3d Cir. 2012). To the extent
Champney identified an open question, we conclude that
de novo review applies. First, de novo review applies
generally to a timeliness decision in a habeas case, see
Schlueter v. Varner, 384 F.3d 69, 73 (3d Cir. 2004), and
Wallace offers no reason to apply a different standard
here. Second, because the District Court did not conduct
20
Schlueter v. Varner, 384 F.3d 69, 73 (3d Cir. 2004). In the
context of an actual innocence claim, we also conduct a
plenary review of whether a petitioner’s evidence is
sufficient to meet the standard set forth in Schlup v. Delo,
513 U.S. 298, 329 (1995). Munchinski v. Wilson, 694 F.3d
308, 337–38 (3d Cir. 2012).
We review a District Court’s decision not to hold an
evidentiary hearing for abuse of discretion. See Morris v.
Beard, 633 F.3d 185, 193 (3d Cir. 2011). We apply that
same standard of review to the denial of discovery and the
motion for expert witness funds.12 See Han Tak Lee v.
Glunt, 667 F.3d 397, 404 (3d Cir. 2012). A District Court
abuses its discretion when the requested discovery is
a hearing, it was in no better position than we are to review
the documentary evidence. Accordingly, a more
deferential standard of review is not warranted.
12
Discovery in a habeas proceeding is permitted under
Rule 6 of the Rules Governing § 2254 Cases, which
provides that “[a] judge may, for good cause, authorize a
party to conduct discovery under the Federal Rules of
Civil Procedure and may limit the extent of discovery.”
To satisfy the “good cause” standard, a petitioner must set
forth specific factual allegations which, if fully developed,
would show entitlement to the writ. See Williams v.
Beard, 637 F.3d 195, 209 (3d Cir. 2011).
21
essential for the habeas petitioner to develop fully his
underlying claim. Id.IV. EQUITABLE TOLLING
A habeas petition under § 2254 must be filed within
one year of, inter alia, “the date on which the judgment
became final by the conclusion of direct review or the
expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A).13
Because Wallace did not appeal, the judgment
became final thirty days after his sentence was imposed,
on January 5, 2001. See Pa. R. App. P. 903(c)(3). Thus,
under § 2244(d)(1)(A), his petition was due one year later,
by January 7, 2002.14 But Wallace did not file until
September 29, 2015. Although Wallace did not file his
habeas petition within the one-year period, he argues that
he is entitled to equitable tolling of the approximately
13
The remaining provisions of § 2244(d) concerning the
running of the limitations period, § 2244(d)(1)(B)–(D), do
not apply in Wallace’s case.
14
The last day of the one-year period, January 5, 2002, fell
on a Saturday, so the petition would have been due the
following Monday, January 7, 2002. See Fed. R. Civ. P.
6(a)(1)(C).
22
fourteen-year period from January 7, 2002 through
September 29, 2015.
A. Legal Standard
Equitable tolling applies when a petitioner has been
prevented in “some extraordinary way” from timely filing
and has “exercised reasonable diligence” in bringing the
claims. Nara v. Frank, 264 F.3d 310, 319 (3d Cir. 2001),
overruled in part on other grounds by Carey v. Saffold,
536 U.S. 214 (2002). The petitioner bears the burden of
establishing both extraordinary circumstances and
reasonable diligence. See Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005). There are no bright lines for determining
eligibility. Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir.
2011). Although this equitable doctrine is used sparingly,
the assessment is flexible and the particular circumstances
of the petitioner must be taken into account. Id.B. Extraordinary Circumstances
In Nara v. Frank, we held that suffering from a
mental illness does not per se entitle a petitioner to
equitable tolling. 264 F.3d at 320. Instead, to qualify as
an extraordinary circumstance, the mental illness must
have affected the petitioner’s ability to seek relief in some
way. Id. We did not specify how a court should make that
determination. Instead, we held in Nara’s particular case
23
that, if his allegations were true, extraordinary
circumstances may have been present. So we remanded
the matter to the District Court to develop the record
without offering an opinion as to the proper outcome. Id.In Pabon v. Mahanoy, we reiterated that the relevant
inquiry for purposes of assessing extraordinary
circumstances is “how severe an obstacle [the
circumstance] creates with respect to meeting AEDPA’s
one-year deadline.”15 654 F.3d at 401.
Wallace suggests that we employ a more rigid
framework for assessing his extraordinary circumstances
claim. He looks to a non-precedential case by a panel of
our Court, Champney v. Sec’y DOC, 469 F. App’x 113,
117–18 (3d Cir. 2012), which provided a “non-exhaustive
list of factors to consider” in determining whether mental
illness constitutes an extraordinary circumstance for
equitable tolling purposes. The Champney factors
include:
15
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 110 Stat. 1214, substantially revised the
law governing federal habeas corpus. See In re Minarik,
166 F.3d 591, 595 (3d Cir. 1999). 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).
24
(1) whether the petitioner was adjudicated
incompetent and, if so, when did the
adjudication occur in relation to the habeas
statutory period; (2) whether the petitioner
was institutionalized for his mental
impairment; (3) whether the petitioner
handled or assisted in other legal matters
which required action during the federal
limitations period; and (4) whether the
petitioner supported his allegations of
impairment with extrinsic evidence such as
evaluations and/or medications.
Id. at 118 (cleaned up).
Wallace asks us to apply Champney’s factors.16
Although he cannot satisfy the first factor because he has
never been adjudicated as incompetent, he easily satisfies
factor two, because he has been both voluntarily and
involuntarily committed at various times and has required
16
We do not regard our Court’s non-precedential opinions
as binding authority. See In re Grand Jury Investigation,
445 F.3d 266, 276 (3d Cir. 2006); 3d Cir. I.O.P. 5.7
(2018). Nonetheless, parties remain free to argue that such
opinions set forth persuasive reasoning. See New Jersey
Dep’t of Treasury v. Fuld, 604 F.3d 816, 823 (3d Cir.
2010).
25
continuous psychiatric care throughout his incarceration.
He also satisfies factor three: Wallace did not participate
in any legal proceeding during the one-year limitations
period; his first post-conviction legal matter was his state
court PCRA petition in September 2013. Finally, to
satisfy factor four, Wallace has provided substantial
medical records to support his claim.
We acknowledge that Champney’s non-exhaustive
list of factors may be relevant in assessing extraordinary
circumstances in mental illness cases, but we decline to
adopt Champney as establishing any sort of “test” that
cabins our analysis. Indeed, in Wallace’s case, the
Champney factors provide little more than a starting point.
The three Champney factors he satisfies simply lend
support to Wallace’s claim that he genuinely suffers from
a mental illness—but the existence of his mental illness
has never been in dispute.
The record amply demonstrates that Wallace has
been severely mentally ill for most, or possibly all, of his
adult life. Indeed, since his imprisonment, he has not gone
unmedicated for any significant length of time. But the
fact of his serious illness, without more, is not dispositive
of Wallace’s tolling claim, see Nara, 264 F.3d. at 320,
particularly because he asks us to excuse an exceptionally
long delay. In fact, were we to conclude that his illness is
sufficient—without more—to excuse his belated habeas
26
filing, then up to this very day, Wallace would not be
subject to a deadline. That simply cannot be.
It is apparent from the record that Wallace has had
periods of relative stability and good mental health. We
can discern that, during those periods, he has been quite
capable of pursuing legal remedies; indeed, he has done so
in recent years on a pro se basis in both state and federal
courts.17 So it is far from sufficient that Wallace has
demonstrated the existence of a serious illness. Instead,
we must consider the totality of the circumstances in
determining whether the record supports Wallace’s claim
that he had no periods of sufficiently good mental health
from 2000 through 2015, during which time he could have
pursued a federal habeas petition.
To do so, we look to the medical records Wallace
has provided to discern whether they support his position
that it was “impossible” for him to pursue post-conviction
17
Counsel points out that some of Wallace’s court papers
were drafted by fellow inmates. But the ability to seek
assistance and work with others to obtain legal relief is, in
our view, worthy of consideration in assessing Wallace’s
equitable tolling claim. Moreover, it is apparent that
Wallace drafted at least some of his submissions on his
own.
27
remedies during that entire time.18 See Wallace Br. 31. In
particular, we focus on what the records show about the
changes and fluctuations in Wallace’s condition over the
decade-plus period for which he seeks tolling.
(1) 2000 to 2001: period of poor mental
health
Around the time of his guilty plea, the records
demonstrate unequivocally that Wallace was seriously ill.
A doctor’s December 2000 report rated his Global
18
Wallace argues that it was “impossible for [him] to
pursue his post-conviction remedies because he was
simply too mentally impaired and overmedicated to focus
on legal matters for any amount of time.” Wallace Br. 31
(emphasis added). In doing so, he has set a higher bar than
necessary for himself. As previously observed, to
demonstrate extraordinary circumstances, Wallace need
only have shown that “the alleged mental incompetence
must somehow have affected the petitioner’s ability to file
a timely habeas petition.” Nara, 264 F.3d at 320. We
respond to his impossibility claim only because he set this
higher bar for himself. To be clear, however, a petitioner
need not necessarily demonstrate impossibility of pursing
legal relief in order to show extraordinary circumstances
for purposes of equitable tolling.
28
Assessment of Functioning (GAF) at a score of 50,19
indicating serious symptoms and impairment of
19
“The GAF is a numeric rating used by mental health
practitioners to measure the functional impairment of a
patient on a 0–100 scale in accordance with the Diagnostic
and Statistical Manual of Mental Disorders.” Funk v.
CIGNA Group Ins., 648 F.3d 182, 186 n.6 (3d Cir. 2011)
(citing Am. Psychiatric Assoc., Diagnostic and Statistical
Manual of Mental Disorders 34 (4th ed., 2000)). As
relevant to Wallace, who generally scored in a range from
50 to 75:
80–71 means “If symptoms are present, they are transient
and expectable reactions to psychosocial stressors (e.g.,
difficulty concentrating after family argument); no more
than slight impairment in social or occupational
functioning (e.g., temporarily falling behind on projects).”
70–61 means “Some mild symptoms (e.g., depressed
mood and mild insomnia) OR some difficulty in social or
occupational functioning (e.g., theft within the
household), but generally functioning pretty well, has
some meaningful interpersonal relationships.”
60–51 means “Moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR
moderate difficulty in social or occupational functioning
(e.g., few friends, conflicts with peers).”
50–41 means “Serious symptoms (e.g., suicidal ideation,
severe obsessional rituals, frequent shoplifting) OR any
29
functioning. The same doctor recommended that Wallace
be placed in the prison’s Special Needs Unit (SNU). At
the time, doctors observed that Wallace suffered from
“psychomotor retardation” and “pseudodementia” and
looked “haggard” and “overmedicated”; eventually
doctors recommended Wallace’s placement in the prison’s
Special Observation Unit (SOU). JA 391–92. While in
the SOU, Wallace showed serious symptoms and suicidal
ideation, and was examined by doctors almost daily.
Wallace eventually was discharged to the general
population, but he began suffering paranoia and was
promptly readmitted to the SOU. Records reflect that
Wallace continued to do poorly through the first half of
2001. He suffered paranoid ideations, psychomotor
retardation, and severe depression. Doctors continued to
assess his GAF at around 50 and even recommended that
he undergo Electroconvulsive Therapy treatment for his
depression.
(2) Summer 2001 through 2003: period of
improvement
Beginning in summer 2001, records demonstrate
that Wallace showed notable signs of improvement. He
serious impairment in social or occupational functioning
(e.g., no friends).” Am. Psychiatric Assoc., Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed., 2000)
30
was returned to the SNU, which meant he was no longer
under near-constant observation as he had been while in
the SOU. Wallace’s doctor visits were scheduled less
frequently, and he was asked to return to the clinic only
once per month beginning in July 2001. That continued to
be his clinic schedule up to and throughout 2005.
By February 2002, doctors noted that Wallace was
in partial remission. In summer 2002, doctors described
him as “stable,” having “no complaints,” and showing “no
psychosis.” JA 490. By the fall, he even described himself
as “doing fine on the medications.” JA 491.
(3) 2003 through 2006: period of relatively
good mental health
In May 2003, Wallace reported that he was “doing
pretty good” and “doing fine.” JA 493. Records suggest
that he continued to do well throughout 2003 and 2004. In
November 2003, doctors assessed his GAF as rising to 65,
and by March 2004, they rated his GAF as 70; he
maintained that relatively high GAF through July 2004.
Toward the end of 2004, the records show that
Wallace again began something of a decline. His GAF
decreased to 65 in December 2004, then 60 in January
2005, and then 55 in April through August 2005. Even so,
doctors saw him only about once a month.
31
By 2006, doctors further reduced the frequency of
Wallace’s clinic visits. He was ordered to return to the
clinic in increments of 60 to 90 days through that year.
And during that time, he reported clearer thinking and
stability, with no side effects from medications. Doctors
observed that he was “stable” and “doing very well.” JA
519. Throughout 2006 and 2007, Wallace continued to see
his doctors at 90-day intervals and he consistently reported
that he felt fine.
(4) 2007 through 2009: period of remission
As Magistrate Judge Heffley noted in her R&R,
Wallace submitted a memorandum indicating that his
bipolar disorder was stable and in “full remission” for a
period of “several years” beginning in late 2007 through
2009. JA 728 (citing Pet’r Counseled Mem. in Supp. of
Equitable Tolling at 9). The records support Wallace’s
description. In late 2007 and throughout 2008, Wallace’s
doctors noted that he was “clinically stable” and that his
bipolar disorder was in “full remission.” JA 523, 525, 527,
529. The records from that period indicate that Wallace
was stable, calm, had normal thought processes, and did
not suffer from delusions. Wallace’s records during this
timeframe repeatedly note his good personal grooming,
logical thinking, and intact memory.
(5) 2010 to 2011: continuing period of
stability
32
In 2010 and 2011, the records continue to indicate
that Wallace experienced comparative stability and
needed only infrequent doctors’ visits (generally at 30-day
intervals). Wallace’s GAF was assessed as high as 75
during this period.
(6) 2011 to 2013: period of serious
deterioration
The records show that Wallace’s period of relative
stability and well-being came to an end by the summer of
2011. In July 2011, Wallace voiced a concern about
hurting others. By September of that year, the records
reflect that he was suffering from “bipolar depression.”
JA 540. His religious preoccupation and delusions
reemerged. He began to complain of side-effects from his
medications, and eventually stopped taking some of them.
He was admitted for psychiatric observation on several
occasions based on concerns that he could be suicidal or
might hurt others.
Doctors once again began to observe psychomotor
retardation and slow thought-processes. He showed
impaired judgment, illogical thinking, poor insight, and
increasing paranoia. Despite those challenges with his
illness, he told a doctor in November 2012 that his goals
included “contact attorney for help on case.” JA 406.
33
By the end of 2012, Wallace was involuntarily
committed for mental health treatment because his
worsening delusions caused him to become a danger to
others.
(7) 2013 to 2015: period of relatively poor
mental health, but successful pursuit of
state legal relief
In 2013 through 2015, Wallace continued to
experience serious mental health issues. Wallace’s GAF
deteriorated to the 50s, he had frequent doctor visits, and
demonstrated impaired and limited judgment and insight.
He also experienced periods in which delusions and
paranoia returned along with suicidal ideations, and he
sometimes required constant observation.
Yet some entries in the medical records reflect that,
in 2013–2015, Wallace experienced somewhat better
mental health than he had demonstrated during the 2011–
2013 timeframe. Nonetheless, Wallace’s mental health
did not fully rebound to the period of relative wellness that
he had shown in the 2002–2006 and 2007–2010 time
periods.
Even so, Wallace was well enough to pursue state
PCRA relief. By September 3, 2013, he had filed his
PCRA petition, albeit with assistance. And, notably, by
December 2013 Wallace filed a brief—expressly
34
informing the PCRA court that he did so without
assistance. See JA 1372 (Third PCRA Supplement, dated
Dec. 19, 2013) (“Unlike my previous supplements and
PCRA, this supplement is submitted without assistance,
pro se.”).
***
The foregoing summary reflects the highlights of
our minute review of the hundreds of pages of medical
records that Wallace has provided. Our examination
confirms that there were substantial periods—several
years worth, in fact—during which Wallace appears to
have experienced relatively good mental health, with
periods in which he was in “full remission” and stable. We
stress our agreement with Magistrate Judge Heffley’s
finding that the documentary record indicates that Wallace
was stable and in remission during the 2007 to 2009 time
period, JA 728, 730–31, and therefore was not prevented
by his illness from pursuing a habeas petition in those
years.20 In fact, there likely was a considerably longer
20
Because we have identified a period of longer than one
year in which Wallace has failed to demonstrate the
existence of extraordinary circumstances, we need not
engage in the intricate counting that is required to compute
any hypothetical tolling period. See Schlueter v. Varner,
384 F.3d 69, 77 n.12 (3d Cir. 2004).
35
period—from as early as 2003 and ending as late as
2011—during which Wallace’s mental condition was
sufficiently stable to have allowed him to pursue his legal
rights.
The burden remains on Wallace to establish that
extraordinary circumstances prevented him from filing a
habeas petition for the entirety of the period for which he
has sought tolling. The records provide insufficient
support for his claim.
Wallace responds by arguing that, despite his
remission during the 2007–2009 timeframe, the record
still shows that he was heavily medicated. According to
Wallace, his condition was “controlled not cured,” and the
medications “dulled” his ability to think clearly about his
legal case. Wallace Br. at 34–35.
Wallace fails to cite record support for his claim that
his medications caused him to suffer a “significant cost to
his cognitive function.” See id. at 17. Nonetheless,
accepting that Wallace’s medications interfered to some
extent with his ability to think clearly, we are not satisfied
that the records demonstrate that his medications
prevented him from pursuing legal relief before 2013. See
id. at 30–31. Moreover, and strikingly, Wallace was able
in 2013 to pursue state post-conviction relief—despite his
many medications and his claimed decline in mental
health. Our careful comparison of the medical records
36
from 2013–2015 to those from earlier time periods,
including the 2007–2009 timeframe, compel us to
reiterate: Wallace did not experience extraordinary
circumstances preventing him from pursuing legal relief
when his mental health was comparatively better, even
though he was taking medications at the time. See Wallace
Br. 30–31.
Wallace also argues that remand—and
authorization of funds to hire an expert—is necessary
before we may dispose of his claim. We disagree. There
is substantial documentary evidence in the record before
us, and it supports our conclusion that Wallace’s mental
illness did not pose a sufficiently severe obstacle to his
pursuit of legal remedies for a period of several years. We
conclude that Wallace has failed to produce evidence
sufficient to warrant a hearing on that issue. Compare
Pabon, 654 F.3d at 401–02 (because there was substantial
evidence of the requisite extraordinary circumstances,
remand was ordered for an evidentiary hearing on the
issue); Nara, 264 F.3d at 320 (although there was no
evidence of record, because Nara’s petition was pro se and
because he “presented evidence of ongoing, if not
consecutive[,] periods of mental incompetency,” remand
was ordered for an evidentiary hearing).
37
C. Reasonable Diligence
In addition to his claim of extraordinary
circumstances, Wallace argues that he showed reasonable
diligence in pursuing legal relief, the second prong he
must satisfy in order to avail himself of the equitable
tolling doctrine. For the period from 2002 until 2013, his
diligence claim essentially overlaps with his extraordinary
circumstances claim: Wallace contends that legal filings
of any kind were “impossible” for him due to his mental
illness. See Wallace Br. 30–31. We are skeptical of this
claim because, as we have already observed, the medical
records do not support Wallace’s position.
Yet even if we were to accept that Wallace showed
reasonable diligence under the circumstances prior to
2013, it was certainly possible for him to file by early
2013. It was then that he was mentally well enough to
have pursued PCRA relief.21 Yet he did not file a federal
21
According to his 2017 affidavit, Wallace first began
discussing his legal case with a doctor in “fall of 2012,”
and by “early 2013” he began working on a draft PCRA
petition. JA 356. He ultimately filed the PCRA petition
in September 2013. Thus, nearly a year passed from the
time Wallace began thinking about filing a PCRA petition
until he actually filed one. This delay further undermines
his claim of diligence.
38
habeas petition in 2013, waiting instead until September
2015. Wallace argues that he is entitled to equitable
tolling of this approximately two-year period because he
was pursuing PCRA relief, and his choice reflects
reasonable diligence.22 We disagree.
Had the PCRA Court concluded that Wallace’s
2013 PCRA petition was timely filed under a statutory
exception to Pennsylvania’s one-year limitations period,
then that state petition would have been “properly filed.”23
22
In his brief, Wallace argues that he was quite ill during
the 2013–2015 timeframe; he “see-sawed between the
psychiatric observation unit and the general population.”
Wallace Br. 37. As discussed supra, the medical records
support this claim. Yet Wallace still pursued his PCRA
petition during that same time, successfully engaging
assistance when he needed it. We reiterate our view that
Wallace’s ability to pursue legal relief while experiencing
what may well have been serious symptoms undermines
his position that it was “impossible” to have filed legal
documents sooner due to his mental illness. See Wallace
Br. 31.
23
Pennsylvania treats its statute of limitations as
jurisdictional and therefore does not permit equitable
tolling. There are three statutory exceptions that may
extend the one-year PCRA limitations period. Wallace
39
See Merritt v. Blaine, 326 F.3d 157, 161 (3d Cir. 2003);
28 U.S.C. § 2244(d)(2). But the PCRA Court did not
accept Wallace’s argument that a statutory exception
applied, and it dismissed his PCRA petition as untimely.
We afford deference to that determination. See Merritt,
326 F.3d at 168. Accordingly, Wallace’s PCRA petition
was not “properly filed” for statutory tolling purposes.
Wallace nonetheless argues that his decision to
pursue a PCRA petition reflects diligence in pursuing legal
relief, and that we should not hold the approximately two-
year period during which he pursued PCRA relief against
him. Yet he could have filed a protective federal habeas
petition during the pendency of his PCRA proceeding, as
described by the Supreme Court in Pace v. DiGuglielmo,
544 U.S. 408, 416–17 (2005). His failure to do so
undermines his diligence claim.
In Pace, the Supreme Court addressed a claim for
both statutory and equitable tolling by a habeas petitioner
who, like Wallace, had first pursued state collateral relief
that was ultimately rejected as untimely. The Supreme
Court discussed the possible unfairness that arises when
such an individual, in good faith, attempts to exhaust state
remedies—a process that may take years—only to
attempted to invoke the exception for newly discovered
facts. See 42 Pa. C.S. § 9545(b)(1)(ii).
40
ultimately learn that the state courts have rejected the
claim as untimely and therefore never “properly filed”: “A
prisoner seeking state postconviction relief might avoid
this predicament . . . by filing a ‘protective’ petition in
federal court and asking the federal court to stay and abey
the federal habeas proceedings until state remedies are
exhausted.” Id. at 416.
Although the discussion in Pace pertained to
statutory tolling, it suggests that Wallace’s pursuit of a
PCRA petition—without making some effort to preserve
his federal rights—weighs against a conclusion that he
was reasonably diligent for equitable tolling purposes. See
Palacios v. Stephens, 723 F.3d 600, 608 (5th Cir. 2013).
Moreover, Wallace had notice by September 24, 2014 that
the Court of Common Pleas had rejected his timeliness
arguments. He surely was aware by that time that his
efforts in state court were unlikely to be successful and
that federal relief could be necessary. See White v. Martel,
601 F.3d 882, 884–85 (9th Cir. 2010). Yet Wallace waited
another full year—until September 29, 2015—to file his
federal habeas petition. We simply cannot conclude that
such delay reflects reasonable diligence in pursuing a
federal habeas claim.
Finally, Wallace contends that he relied on the
mistaken advice of a fellow inmate in reaching the
incorrect conclusion that filing a PCRA proceeding would
41
“reset” the deadlines for his federal habeas petition.
Wallace Br. 40. But erroneous legal advice is not a basis
for invoking equitable tolling. Schlueter v. Varner, 384
F.3d 69, 76 (3d Cir. 2004) (observing that, in non-capital
cases, attorney error generally is not a basis for equitable
tolling); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999)
(holding that misunderstanding the exhaustion
requirement does not excuse a failure to comply with the
statute of limitations requirement).
***
In sum, even were we to conclude that extraordinary
circumstances prevented Wallace from filing his habeas
petition before 2013, he was insufficiently diligent in
preserving his federal rights between 2013 and 2015 so
that he might avail himself of equitable tolling. Wallace’s
lack of reasonable diligence provides an independent
ground for rejection of his equitable tolling claim. We also
view the fact that no expert testimony would reasonably
assist Wallace in overcoming his lack of diligence in
pursuing habeas relief between 2013 and 2015 as
reinforcing our determination that an evidentiary hearing
on his equitable tolling claim is unnecessary.
V. ACTUAL INNOCENCE
As an alternative to equitable tolling, Wallace
argues that he should be excused from the statute of
42
limitations because he is actually innocent of murder.
Specifically, at the time of the crime, Wallace claims he
was intoxicated by Ritalin and that it rendered him
temporarily insane such that he was incapable of forming
the requisite intent to commit murder.
In McQuiggin v. Perkins, 569 U.S. 383 (2013), the
Supreme Court discussed the “actual innocence gateway”
first recognized in Schlup v. Delo, 513 U.S. 298, 314–15
(1995), which is an equitable exception to certain
procedural requirements permitted only in those rare
habeas cases implicating a fundamental miscarriage of
justice. In McQuiggin, the petitioner filed a federal habeas
petition more than a decade after his first-degree murder
conviction became final. To overcome the statute of
limitations problem he faced, he provided newly
discovered evidence of his actual innocence—specifically,
the affidavits of three witnesses attesting that the true
perpetrator had either confessed to them or shown them
his blood-stained clothing. The Supreme Court granted
certiorari to resolve a Circuit split concerning whether
there is an exception to AEDPA’s one-year statute of
limitations for a claim of actual innocence.
The Supreme Court concluded that such an
exception exists. Justice Ginsburg, writing for a five-
justice majority, stated: “We hold that actual innocence, if
proved, serves as a gateway through which a petitioner
43
may pass whether the impediment is a procedural bar . . .
or, as in this case, expiration of the statute of limitations.
We caution, however, that tenable actual-innocence
gateway pleas are rare.” McQuiggin, 569 U.S. at 386. To
pass through that gateway, the petitioner must persuade
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.” Id. Although delay in
filing is not a bar to relief, it nonetheless remains “a factor
in determining whether actual innocence has been reliably
shown.” Id. at 387.
***
Thus, McQuiggin establishes an exception to the
statute of limitations, even where a petitioner may not
qualify for an extension to the statute of limitations via
equitable tolling.24 See McQuiggin, 569 U.S. at 400. To
satisfy the demanding actual innocence exception, a
24
Ultimately, the Supreme Court observed that Perkins
himself probably was not entitled to the exception
recognized in his case because the District Court had
determined that the information in the affidavits he
provided was “substantially available” at trial and, even if
“new,” “was hardly adequate to show that . . . no
reasonable juror would have convicted Perkins.” Id. at
400–01.
44
petitioner must (1) present new, reliable evidence of his
innocence; and (2) show by a preponderance of the
evidence that it is more likely than not that no reasonable
juror would have convicted him (i.e., a reasonable juror
would have reasonable doubt about his guilt) in light of the
new evidence. Reeves v. Fayette SCI, 897 F.3d 154, 160
(3d Cir. 2018).
We review de novo whether a petitioner’s evidence
is sufficient to pass through the actual innocence gateway.
Munchinski, 694 F.3d at 337. We do not make an
independent factual determination of what actually
happened. Rather, we assess the likely impact that the new
evidence would have had on reasonable jurors. Reeves,
897 F.3d at 161. The standard does not require absolute
certainty of guilt or innocence, but it is demanding and will
be satisfied only in rare and extraordinary cases where the
evidence of innocence is so strong that it undermines
confidence in the trial’s outcome. Id.
For reasons we cannot discern, the District Court
never addressed Wallace’s actual innocence claim.
Wallace contends that, by limiting his appointment of
counsel to the issue of his mental state from 2001 through
2013, the Magistrate Judge effectively prevented him from
arguing actual innocence and summarily denied the claim
by failing to address it on the merits. And then, when
Wallace reiterated his actual innocence claim in his
45
objections to the Magistrate Judge’s R&R, the District
Court neglected to address that claim as well.
Accordingly, “[t]here is not even a finding on which to
permit meaningful appellate review.” Wallace Br. 57.
Wallace argues that the failure of the District Court to
address the issue warrants reversal and remand.
We agree that it was error for the District Court to
have failed to address his actual innocence claim. We
need not direct a remand, however. In exercising de novo
review, it is apparent to us that Wallace cannot meet the
stringent actual innocence standard. He has put forth no
new, reliable evidence of actual innocence, nor has he
established that, in light of the evidence, no reasonable
juror would have convicted him.
A. New, Reliable Evidence of Actual Innocence25
Wallace contends that counsel failed to adequately
investigate the role that Ritalin played in causing his
25
Because Wallace committed the physical act of killing
his wife, his actual innocence claim turns on whether he
has a defense to murder based on a lack of mental capacity.
Some of our sister Courts of Appeals have concluded that
“actual innocence” claims can encompass complete
defenses such as insanity. For instance, in Britz v. Cowan,
192 F.3d 1101, 1103 (7th Cir. 1999), the Seventh Circuit
determined that an individual may commit a killing yet
46
psychosis. He claims that counsel’s failure to explore a
link between psychosis and Ritalin undermines confidence
in the outcome of Wallace’s criminal proceeding.
still claim actual innocence of murder by invocation of an
insanity defense. But other Courts of Appeals consider
this an open question. See Rozzelle v. Secretary Fla. Dep’t
Corr., 672 F.3d 1000, 1015 (11th Cir. 2012) (“Today, we
need not decide whether Schlup permits a claim of actual
innocence based on ‘new reliable’ evidence of a complete
affirmative defense that renders the conduct of conviction
wholly noncriminal and requires acquittal.”). Previously,
we have assumed without deciding that both mental illness
and involuntary intoxication defenses may qualify for the
actual innocence gateway. See In re Minarik, 166 F.3d
591, 607–08 (3d Cir. 1999); Glass v. Vaughn, 65 F.3d 13,
16–17 (3d Cir. 1995). But we have never reached the
question of whether such defenses can, as a matter of law,
satisfy the actual innocence standard because, in all cases
to date, the defendants failed to demonstrate actual
innocence on the facts. Similarly, Wallace does not
present a factual case that meets the rigorous actual
innocence standard. So once again, we need not decide
definitively whether, as a matter of law, a defense of
insanity or involuntary intoxication may qualify for the
actual innocence gateway.
47
For actual innocence purposes, “new” evidence
includes both newly discovered evidence as well as
exculpatory evidence that counsel failed to discover or
present at trial. Reeves v. Fayette SCI, 897 F.3d 154, 163–
64 (3d Cir. 2018) (“[W]hen a petitioner asserts ineffective
assistance of counsel based on counsel’s failure to
discover or present to the fact-finder the very exculpatory
evidence that demonstrates his actual innocence, such
evidence constitutes new evidence for purposes of the
Schlup actual innocence gateway.”). In addition, although
there is no diligence requirement, we have held that a court
may consider how the timing of the habeas petition bears
on the probable reliability of the “new” evidence. Id. at
161.
We have serious doubts that Wallace’s Ritalin
evidence constitutes “new, reliable evidence of actual
innocence” for at least four reasons: (1) the evidence is not
“new” because, during preparations for trial, defense
counsel provided the doctors who examined Wallace with
medical records showing that Wallace was prescribed
Ritalin; (2) the evidence is not “reliable” because
Wallace’s strongest evidence is, at most, a tentative
opinion rendered after more than a decade of delay; (3) the
evidence does not show actual innocence because
Pennsylvania law does not recognize involuntary
intoxication as a defense to murder; and (4) the evidence
48
does not show actual innocence because Pennsylvania
courts view the etiology of insanity as irrelevant.
(1) Wallace’s evidence is not new because
defense counsel provided the doctors who
examined him with medical records
showing that Wallace was prescribed
Ritalin.
Wallace’s purportedly “new” evidence turns on his
discovery that taking Ritalin may have either caused or
exacerbated his psychosis.26 He argues that “[h]is experts
were never able to evaluate what role Ritalin played on the
deeply psychotic condition which led to [the crime].”
26
Wallace does not contend that the science underlying his
Ritalin claim—that is, that Ritalin may contribute to
psychosis—is “new.” The possibility that Ritalin may
exacerbate psychosis has long been public knowledge.
For instance, the record contains a 1997 version of the
Ritalin label, which warned against Ritalin use with
psychotic children because it may “exacerbate
symptoms.” JA 341. Indeed, Wallace’s claim that counsel
was ineffective for failing to adequately investigate the
link between Ritalin and Wallace’s psychosis relies on
only an assumption that the science was established at the
time of Wallace’s crime.
49
Wallace Br. 49. Although Wallace argues otherwise, the
record shows that defense experts reviewed records
reflecting that Wallace had been prescribed Ritalin before
he committed the crime.
Wallace’s medical records, in particular those from
psychiatrist Dori Middleman, showed that Wallace was
taking Ritalin for ADHD in the years prior to the murder,
beginning as early as 1997. In Dr. Sadoff’s June 2000
report, he noted that Dr. Middleman had prescribed both
Paxil and Ritalin for Wallace. Although Dr. Cooke did not
directly mention Ritalin, he stated in his June 2000 report
that he had reviewed Dr. Middleman’s records, including
Wallace’s medications for ADHD.
The contention, then, that Wallace’s experts were
unable to evaluate the potential role of Ritalin is not
supported by the record. Even if Drs. Cooke and Sadoff
may have failed to appreciate Ritalin’s significance at the
time they examined Wallace, it cannot be said that the
information was unavailable to them.
(2) Wallace’s Ritalin evidence is not reliable
because it is based on a tentative opinion.
Let us suppose that Ritalin’s potential contributing
role in Wallace’s psychosis is “new” because the defense
experts did not recognize its import at the time of trial
preparations. We still have serious doubt that any role that
50
Ritalin possibly played in Wallace’s violent behavior
constitutes “reliable” evidence of actual innocence. Even
up to today, after pursuing this collateral attack for years,
Wallace presents little more than one doctor’s tentative
hypothesis that Ritalin might have exacerbated his
psychosis.
In August 2014, Dr. Cooke reported that although
Ritalin “did not cause the psychotic episode” leading up to
the stabbing death, it “exacerbated [Wallace’s] psychosis
and contributed to the disinhibition that led to the offense.”
JA 801. Dr. Cooke stated that he did not provide this
opinion sooner because he did not know that Wallace had
been taking Ambien, Ritalin, and Paxil around the time of
the killing.27 His 2014 opinion suggests that some, as-yet-
unidentified medical practitioner could opine that “the
involuntary intoxication from the medication exacerbated
[Wallace’s] psychosis”—although Dr. Cooke himself did
not attest to that. JA 801. Instead, he suggests that
Wallace “would need an M.D. to give expert testimony
regarding the effects of the medication.” Id.
27
As noted previously, however, Dr. Cooke stated in June
2000 that he had reviewed Wallace’s medical records,
which included the records from Dr. Middleman showing
Wallace’s Ritalin prescription for ADHD.
51
Furthermore, Dr. Cooke went on to opine that his
new assessment concerning Ritalin’s contributing role did
not change his view—originally expressed in his June
2000 report—that Wallace knew that what he was doing
was wrong under “man’s law.” Id. Dr. Cooke concluded
that his “opinion regarding competency and insanity is not
affected by [his] recently acquired knowledge of the
medications [Wallace] was on at the time of the offense.”
Id. Clearly then, Dr. Cooke’s 2014 assessment provides
only a tentative opinion on the possible existence of a
partial defense, and—even taking Ritalin consumption
into account—it reiterates his continued view that Wallace
was not legally insane at the time he killed his wife.
Moreover, as observed in Reeves, we may take into
account how the timing of the claim bears on the reliability
of the evidence. Reeves, 897 F.3d at 161. Here, any
information about the possible effects of medications that
Wallace was taking at the time of his wife’s tragic death is
now more than twenty years old. Even back in 2000,
Wallace himself did not recall precisely which
medications he took before the killing. And with the
passage of so many years, Dr. Cooke seems to have
forgotten that his earlier review of the records would have
revealed to him that Wallace was prescribed Ritalin. It
strains credulity to imagine that, at this late date, it would
be possible to gain any further, reliable insight into how
much Ritalin Wallace may have taken, or the degree to
52
which it might have affected his state of mind at the time
of his wife’s killing. So for that reason as well, Dr.
Cooke’s tentative 2014 opinion that Ritalin may have
contributed to Wallace’s psychosis falls short of providing
reliable evidence of actual innocence.
(3) Wallace’s evidence does not show actual
innocence because Pennsylvania has not
recognized involuntary intoxication as a
defense to murder.
At least in part, Wallace’s claim of actual innocence
relies on an involuntary intoxication defense.28 Yet
whether an involuntary intoxication defense exists under
Pennsylvania law is highly doubtful.29 No Pennsylvania
28
Although Wallace ingested Ritalin voluntarily, he
argues that he was involuntarily intoxicated because he
was taking the medication pursuant to a doctor’s
prescription. Jurisdictions recognizing an involuntary
intoxication defense apply it in the case of an unexpected
intoxication arising from a medically prescribed drug.
Commonwealth v. Smith, 831 A.2d 636, 639 (Pa. Super.
Ct. 2003).
29
In contrast to involuntary intoxication, Pennsylvania
law expressly provides that voluntary intoxication may
provide a defense to reduce the degree of murder, although
voluntary intoxication is not otherwise available as a
53
statute or Supreme Court case establishes involuntary
intoxication as a defense to murder, and the handful of
Superior Court cases that discuss the concept demonstrate
that, while there remains a possibility of such a defense,
no defendant to date has successfully invoked it.
For instance, in Commonwealth v. Smith, 831 A.3d
636 (Pa. Super. Ct. 2003), the defendant ingested alcohol
while wearing a prescription pain patch; she then drove her
car and was arrested for driving under the influence (DUI).
She claimed that the effects of the medication and alcohol
together unexpectedly rendered her involuntarily
intoxicated. In appealing her DUI conviction, she asked
defense to a criminal charge. 18 Pa. C.S. § 308. A
defendant cannot, however, be insulated from criminal
liability by claiming insanity due to voluntarily ingesting
drugs or alcohol—regardless of whether the person was
unaware of the effect that the drugs or alcohol might have.
Commonwealth v. Henry, 524 Pa. 135, 149 (Pa. 1990)
(prohibiting insanity and GBMI defenses when defendant
voluntarily ingested alcohol, even if he was unaware of the
adverse effects the alcohol would have on him).
Furthermore, voluntary intoxication cannot negate the
element of malice for purposes of reducing third-degree
murder to manslaughter. Commonwealth v. Hicks, 483 Pa.
305, 312 (Pa. 1979).
54
the Superior Court to consider whether Pennsylvania law
recognizes involuntary intoxication as a defense.
The Superior Court observed that, in contrast to
voluntary intoxication, which is recognized by statute,
Pennsylvania law “does not specify whether an
involuntary intoxication defense is available.” Id. at 639;
see also Commonwealth v. DuPont, 860 A.2d 525, 536
(Pa. Super. 2004) (rejecting PCRA petitioner’s claim of
ineffective assistance of counsel based on a failure to raise
a prescription drug involuntary intoxication defense
because no appellate decision has affirmatively
acknowledged the existence of such a defense under
Pennsylvania law); Commonwealth v. Plank, 478 A.2d
872, 875 (Pa. Super. Ct. 1984) (stating that “[i]nvoluntary
intoxication may, in certain circumstances, provide a
defense to the criminal charge,” but an alcoholic blackout
cannot qualify).
The Smith court observed that other jurisdictions
have permitted involuntary intoxication as a complete
defense to criminal responsibility “premised upon the
notion that [the defendant] was temporarily rendered
legally insane at the time he or she committed the offense.”
831 A.3d at 639. Those jurisdictions have recognized
involuntary intoxication in situations, for instance, “where
unexpected intoxication results from a medically
prescribed drug” or “where a defendant unknowingly
55
suffers from a physiological or psychological condition
that renders him abnormally susceptible to a legal
intoxicant.” Id. Where it is available, a key component of
the defense is that the defendant is not culpable in causing
the intoxication. Id. In Smith’s case, she had knowingly
introduced alcohol into her system, and its intoxicating
tendencies should have been known to her. Thus,
assuming (but not deciding) that an involuntary
intoxication defense is viable, the court held that
“Pennsylvania . . . would not characterize intoxication
produced by the voluntary consumption of a prescription
drug and alcohol as ‘involuntary’ even if that consumption
was without knowledge of a synergistic effect.”30 Id. at
640.
The Superior Court’s discussion in Smith suggests
that a defendant who, like Wallace, has taken prescription
drugs that rendered him mentally incompetent may have a
30
A decade later, in the unreported case of Commonwealth
v. McDonald, No. 880 EDA 2012, 2013 WL 11261654(Pa. Super. Ct. 2013), an arsonist raised an involuntary
intoxication defense based on the use of prescription
medications. The Superior Court observed that “neither
courts nor our legislature has recognized the doctrine of
involuntary intoxication,” at least outside the context of a
DUI. Id. at *11 n.31.
56
complete or partial defense—but only if he can show that
the prescription drug rendered him legally insane. Thus,
involuntary intoxication would, at most, have provided
Wallace another avenue for arguing insanity.
(4) Wallace’s evidence does not show actual
innocence because Pennsylvania
considers the etiology of insanity
irrelevant.
Finally, the late-discovered possibility of a causal
role for Ritalin in Wallace’s mental condition at the time
of his wife’s fatal stabbing fails to support his actual
innocence. Under Pennsylvania law, the cause of insanity
is irrelevant to the defense. Plank, 478 A.2d at 875.
Indeed, that legal proposition is consistent with the PCRA
Courts’ rejection of Wallace’s “new evidence” claim:
“The ‘new facts’ asserted by defendant, including his
claim of involuntary intoxication by prescription
medication, were not new, rather they were different
iterations of an old issue, defendant’s mental health at the
time he killed his wife.” JA 71 (PCRA opinion); see also
JA 79 (Superior Court denial of PCRA appeal, stating
“these are not ‘newly discovered facts,’ but merely ‘a
newly willing source for previously known facts’”).
At the time of the events in question, Wallace had a
potential insanity defense based on his psychosis. Four
doctors examined him for that very reason, and all four
57
offered opinions that he was sane at the time of the crime.
The later-discovered possible cause of Wallace’s
psychosis—i.e., Wallace’s consumption of Ritalin—is not
“new evidence” of his innocence. Under Pennsylvania
law, even if Wallace had been insane at the time of the
crime, the cause of the insanity would not be significant to
his invocation of the insanity defense. Evidence
concerning the etiology of Wallace’s alleged insanity adds
nothing.
B. More Likely Than Not No Reasonable Juror
Would Convict
Apart from whether Wallace has provided “new,
reliable evidence” of actual innocence concerning
Ritalin’s causal or contributing role in his psychosis, we
also conclude that the evidence is not so strong that, in
light of the record as a whole, no reasonable juror could
vote to convict him. Rather, Wallace’s evidence simply
provides an additional exculpatory fact that a jury could
have considered (if the matter had gone to trial) in
reaching a decision about whether Wallace had the mens
rea to commit murder.
58
In Pennsylvania, the mens rea for murder is that the
killing is committed with “malice aforethought.”31 See
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017).
Pennsylvania’s Supreme Court has long defined malice as
follows:
[I]t is not malice in its ordinary understanding
alone, a particular ill-will, a spite or a grudge.
Malice is a legal term, implying much more.
It comprehends not only a particular ill-will,
but every case where there is wickedness of
disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind
regardless of social duty, although a
particular person may not be intended to be
injured.
Id. (citing Commonwealth v. Drum, 58 Pa. 9 (Pa. 1868)).
Wallace argues that he is actually innocent because
he was legally insane and thus unable to form malice to
commit murder. Under Pennsylvania law, legal insanity
“means that, at the time of the commission of the offense,
the actor was laboring under such a defect of reason, from
disease of the mind, as not to know the nature and quality
31
“Malice” differentiates murder from all other types of
homicide, such as manslaughter. See Commonwealth v.
Packer, 168 A.3d 161, 168 (Pa. 2017).
59
of the act he was doing or, if the actor did know the quality
of the act, that he did not know that what he was doing was
wrong.” 18 Pa. C.S. § 315(b). Wallace argues that “[n]o
juror presented with this evidence [of his taking Ritalin
and its potential effect on his psychosis]—in addition to
psycho-pharmacologist expert testimony for which Mr.
Wallace has repeatedly begged—would have found he had
the requisite mens rea to intentionally kill his wife.”
Wallace Br. 52. We disagree.
It is possible that Wallace’s “new” evidence
concerning Ritalin’s potential role could have been useful
to his defense counsel had he proceeded to trial. But, in
light of the record as a whole, the evidence is hardly so
strong as to show by a preponderance of the evidence that
it would have been more likely for a reasonable juror to
have refused to convict him of murder. That is because
there was also substantial record evidence supporting a
conclusion that Wallace did have the requisite mens rea to
commit that crime.
We are mindful that Wallace’s expert, Dr. Cooke,
opined in June 2000 that, although Wallace did not act
with “malice” in the colloquial sense, he was not legally
insane at the time of the murder:
Wallace was overtly and grossly psychotic at
the time of the offense, and . . . his actions
followed from a psychotic delusion. If not
60
for his psychosis, it is my opinion that this
offense would not have occurred. It is also
my opinion that because of his psychosis he
could not conform his behavior to the
requirements of law and therefore he would
meet the criteria for Guilty but Mentally Ill.
However, though he believed that he was
acting based on a higher law, he did know
that by Man’s law what he did would be
viewed as wrong, and that the police would
come looking for him. Therefore, it is my
opinion that he does not meet the stricter
M’Naughten standard for Insanity. . . . [I]t
is my opinion that Mr. Wallace acted without
malice. Rather, based on his delusions, he
felt he was freeing his wife from an evil
world and sending her to heaven.
JA 277 (emphasis added).
Similarly, Dr. Sadoff opined in his June 2000 report
that Wallace stabbed his wife “with a benevolent intent
and without malice, i.e., without the intent to harm her, but
rather to help her get out of the misery of this world.” JA
259. But Dr. Sadoff went on to opine that Wallace acted
with intent:
Mr. Wallace knew that he was stabbing his
wife and knew that it was against the law.
61
His behavior indicates that he wanted to
avoid the police and knew that taking
another’s life was against the law. . . . Mr.
Wallace had the ability to form the intent
to kill his wife, which is what he intended
to do, and carried out his intention.
JA 259 (emphasis added).
Wallace argues that both defense doctors’ reports
refer to a “lack of malice,” so Wallace did not satisfy the
legal element of “malice” for purposes of murder. We
remain unpersuaded. It is readily apparent that the two
doctors were using the colloquial sense of “malice” to
indicate ill will or spite, not the legal term of art under
Pennsylvania law.
For instance, in a follow-up report dated November
27, 2000, in which defense counsel specifically asked Dr.
Cooke to opine on whether Wallace acted with malice, he
stated that “because [Wallace] acted out these delusions
believing that what he was doing was out of love and right
in the eyes of God, he acted without malice.” JA 312.
While acting “out of love” may indicate that Wallace was
not hateful or angry, this does not mean that, as a matter
of Pennsylvania law, he did not act without regard to social
duty or in disregard of the consequences of his actions.
Similarly, Dr. Sadoff opined that Wallace was not acting
with malice, but defined malice as being “without the
62
intent to harm [his wife], but rather to help her get out of
the misery of this world.” JA 259. Again, the view that
Wallace acted with a benevolent intent is not at odds with
a conclusion that he acted with malice as it is defined
under Pennsylvania law.
In contrast with the two defense doctors, the
Commonwealth’s expert, Dr. Timothy Michals, did cite
the correct legal definition of malice. And Dr. Michals
concluded unequivocally that Wallace’s actions satisfied
that definition:
It is my understanding that malice is defined
as, “Thus, killing is with malice if the killer
acts with: first, an intention to kill, or second,
an intent to inflict serious bodily harm, or
third, (a wickedness of disposition, hardness
of heart, cruelty, recklessness of
consequences, and a mind regardless of
social duty indicating an unjustified disregard
for the probability of death or great bodily
harm and an extreme indifference to the value
of human life) (a conscious disregard of an
unjustified and extremely high risk that his
actions might cause death or serious bodily
harm).[”]
It is my opinion that Mr. Wallace’s killing
of his wife was done with malice. Secondly,
63
it is my opinion that he intended to inflict
serious bodily harm. Thirdly, it is my
opinion, based on the review of the autopsy
and the photographs of Mrs. Wallace, that
Mr. Wallace acted with wickedness of
disposition, hardness of the heart, cruelty
and recklessness in taking his wife’s life
and this was not a benevolent killing.
JA 1448 (emphasis added).
Thus, the doctors’ reports provide strong evidence
that Wallace was not “actually innocent” on the basis of
insanity. Wallace’s counsel, attorney Andes, recognized
as much. During a September 26, 2000 hearing, he
argued: “[B]ased on the psychological/psychiatric reports
that I have received from my experts, there is almost no
chance of a finding of not guilty by reason of insanity .
. . [and] we will be looking at a case where the jury will
have to decide if he was guilty but mentally ill.” JA 1057
(emphasis added).
In addition to the doctors’ reports, the record
demonstrates that Wallace, after killing his wife, acted in
a manner that could support a reasonable juror’s
conclusion that he understood what he was doing, that it
was wrong, and that it would subject him to arrest. Indeed,
many of his actions could be viewed as conscious efforts
to evade detection.
64
For instance, Wallace told police that, after the
killing, he put the knife in a drawer, showered, got dressed,
and went to a Wawa convenience store. He apparently
locked the door to the house when he left, because all
doors to the house were found to be locked when the police
arrived. Wallace told police that he left the Wawa for the
Downingtown train station from which he took a train to
Philadelphia. Although he claimed that he intended to
commit suicide, he also explained that he left
Downingtown for Philadelphia because he “thought the
police would be looking for me there.” JA 969.
Similarly, Wallace told Dr. Sadoff in June 2000
that, after the stabbing, he “showered, changed clothes and
got out. He said he got out in a hurry in case she [Eileen]
got hold of the police. . . . He did know the police would
be looking for him. . . .” JA 257. The arresting officers
also testified that Wallace had changed his clothes, and
that, when they discovered him in Thirtieth Street Station
in Philadelphia, he appeared to be “trying to blend in.” JA
1107.
In addition, on the day after the killing, Wallace had
a steady and seemingly rational demeanor. He appeared
to the officers who interviewed him as calm, courteous,
conversational, and not upset. During a suppression
hearing, one detective testified to how calm and normal
Wallace’s demeanor appeared at the time of his arrest:
65
Sir, his tone and inflection as he was – in
narrative form going through the events that
– of the evening, to me was a normal
conversation form. The way he was
conversing was a normal conversation
everybody would have. There was tone,
there was inflection. I don’t remember
emotional appearance on his face or anything
like that, but it was clear to me that he was
fully aware of the statement he was
making and he was telling us as best he
could in detail of what happened.
JA 1144 (emphasis added).
We recognize that the record evidence concerning
Wallace’s behavior and demeanor after committing the
crime is not dispositive of his mental health or ability to
form a mens rea for murder. Yet having such evidence
before the finders of fact could support a reasonable
juror’s conclusion that Wallace was in control of his
actions and emotions and not so psychotic that he could
not understand how to behave or make rational decisions.
Indeed, as the trial date approached, Wallace’s
counsel decided to advocate that the insanity issue be
presented to the jury as a fact issue: “We have taken the
position that even though our doctors do not indicate that
[Wallace] was M’Naughton insane, that this should be
66
presented to a jury. You’ll have to decide that.” JA 1232.
In response, the prosecution made clear that, depending on
how mental health was to be presented by the defense, it
“may be forced to put on a big rebuttal case.” JA 1237.
These comments demonstrate that the issue of Wallace’s
sanity and ability to form the requisite mens rea would
have been hotly contested at trial.
In sum, in light of the “new” evidence, a reasonable
juror might have concluded that Wallace was too mentally
ill to form the mens rea to commit murder. On the other
hand, a reasonable juror might well have concluded that
the doctors’ reports, coupled with evidence concerning
Wallace’s actions and demeanor around the time of the
crime, indicated that he did possess the requisite intent to
commit murder. When there exists sufficiently strong
competing evidence undermining an innocence claim, a
defendant is not entitled to pass through the “actual
innocence” gateway.
Our decision in Glass v. Vaughn, 65 F.3d 13, 16–17
(3d Cir. 1995), illustrates this point. Glass argued that his
PTSD caused him to be in a dissociative state at the time
he committed a killing, undermining his ability to form the
requisite intent. We concluded that Glass did not satisfy
the “no reasonable juror” standard and thus was not
“actually innocent.” Despite the new evidence of Glass’s
mental state, the record evidence also supported a guilty
67
verdict: “there was evidence that Glass went to the murder
scene armed and that he had earlier behaved violently
towards the victim. Moreover, when arrested, Glass did
not give the police the explanation he now proffers—that
he had no memory of what happened—but relied instead
on an alibi that he was not even at the scene when the
killing occurred.” Id. at 17. Thus, even considering the
new psychological evidence, we could not conclude that
that no rational juror would have voted to convict Glass of
first-degree murder.
As in Glass, the evidence before us on both sides of
the sanity and mens rea issues is such that we are unable
to say that no reasonable juror could conclude that Wallace
was sane and able to form the requisite mens rea to commit
murder. Wallace’s purportedly new evidence of actual
innocence is not so compelling that it undermines our
confidence in the outcome of his case.
In short, Wallace does not satisfy the actual
innocence standard.
C. Evidentiary Hearing and Expert Funds
Finally, Wallace asks us to consider whether the
District Court erred in dismissing his motion for expert
68
funds.32 In regard to his actual innocence claim, Wallace’s
reason for requesting an expert is to opine on whether
Ritalin could have so exacerbated his mental illness as to
render him insane at the time of the crime. But as we have
already discussed, the issue of Wallace’s mental state was
explored at the time of his pre-trial proceedings and guilty
plea, and both then and now it is highly debatable. His
“new” evidence is only Dr. Cooke’s tentative opinion
about Ritalin’s possible role: that Ritalin could at most
provide a “partial defense.” JA 801. This tepid evidence
is hardly strong enough to undermine confidence in the
criminal proceeding’s outcome, and even if Wallace had
proffered more powerful expert testimony regarding the
side effects of Ritalin, the countervailing evidence of
record is such that he would be unable to show that “no
reasonable juror” would convict him of murder.
Thus, an expert’s testimony is unnecessary to
resolve Wallace’s actual innocence claim. The District
32
Although Wallace’s motion to the District Court was
limited to funds for an expert, we presume this request
implicitly included a motion for an evidentiary hearing at
which to present the expert testimony.
69
Court did not abuse its discretion in declining to hold a
hearing or in declining to order funds to retain an expert.
VI. CONCLUSION
Wallace filed his habeas petition in 2015, nearly a
decade and a half after he pleaded guilty to third-degree
murder. In order for us to consider his petition on its
merits, he must establish a basis for us to excuse or extend
the one-year habeas filing deadline. Although he argues
for both an extension of the deadline based on equitable
tolling and excuse from the deadline due to actual
innocence, he has not met the standards for either form of
relief.
Accordingly, for all the reasons discussed, we will
affirm the District Court’s judgment dismissing the
petition on timeliness grounds.33
33
Judge McKee would have ordered a remand, authorized
funds for an expert, and directed that an evidentiary
hearing be held on the medical issues pertaining to
Wallace’s ability to file for habeas relief.
70