David Munchinski v. Harry Wilson

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-3416
_____________
DAVID JOSEPH MUNCHINSKI
v.
HARRY WILSON, Warden of the State Correctional
Institute of Fayette;
ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA,
Appellants
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-07-cv-01712
Magistrate Judge: The Honorable Lisa P. Lenihan
Argued June 27, 2012
Before: SMITH and JORDAN, Circuit Judges
RAKOFF, Senior District Judge
(Filed: September 11, 2012)
Noah Geary [ARGUED]
Suite 225
Washington Trust Building
Washington, PA
Counsel for Appellee
Gregory J. Simatic [ARGUED]
Office of Attorney General of Pennsylvania
Appeals & Legal Services Section
564 Forbes Avenue
6th Floor
Pittsburgh, PA
Counsel for Appellant
________________
OPINION
________________
SMITH, Circuit Judge.

The Honorable Jed S. Rakoff, United States Senior
District Judge for the United States District Court for the
Southern District of New York, sitting by designation.
2
In 1986, David Munchinski was convicted of two
counts of first-degree homicide and two counts of
second-degree homicide arising out of a pair of murders
that occurred in 1977 in Bear Rocks, Pennsylvania (the
“Bear Rocks Murders” or the “murders”). In the years
following his conviction, Munchinski discovered that
prosecutors had withheld from his counsel almost a
dozen articles of exculpatory evidence. After
unsuccessfully petitioning for post-conviction relief
several times in state and federal court, Munchinski filed
a second or successive habeas petition pursuant to 28
U.S.C. §§ 2244 & 2254(d) in the United States District
Court for the Western District of Pennsylvania.
Munchinski argued that the Pennsylvania Superior Court
unreasonably applied Brady v. Maryland, 373 U.S. 83(1963), when it declined to grant Munchinski post-
conviction relief based on several articles of exculpatory
evidence that were unlawfully withheld by the
prosecution.
The District Court found some of Munchinski‟s
claims untimely under 28 U.S.C. § 2244(d)(1)(D), but
equitably tolled the statute of limitations for a subset of
those claims. The District Court next concluded that
Munchinski had procedurally defaulted certain claims.
The District Court excused his procedural default,
finding that applying the procedural default doctrine to
Munchinski‟s petition would effect a fundamental
miscarriage of justice. Finally, the District Court agreed
3
with Munchinski that the state court had unreasonably
applied Brady. The District Court granted Munchinski‟s
petition.
Warden Harry Wilson and the Pennsylvania
Attorney General (collectively, the “Commonwealth”)
appeal from the District Court‟s judgment. The
Commonwealth concedes that it cannot “make a
compelling argument” that the Superior Court properly
applied Brady given the nature of the evidence that was
withheld. Oral Arg. Tr. 4:8-9. We agree. The scope of
the Brady violations here is staggering, and the Superior
Court failed to appreciate the aggregate impact of the
withheld evidence.
In apparent recognition of that reality, the
Commonwealth limits its appeal to three issues: (1)
whether the District Court erred by equitably tolling the
statute of limitations in § 2244(d)(1)(D); (2) whether the
District Court erred by excusing Munchinski‟s supposed
procedural default on the basis of a fundamental
miscarriage of justice; and (3) whether Munchinski has
produced sufficient evidence “to establish by clear and
convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense,” 28 U.S.C.
§ 2244(b)(2)(B)(ii).
We conclude: (1) that the District Court
appropriately tolled the statute of limitations; (2) that
4
Munchinski did not procedurally default his claims; and
(3) that Munchinski has demonstrated his actual
innocence by clear and convincing evidence, as is
required by § 2244(b)(2)(B)(ii). “Section 2254(d)
reflects the view that habeas corpus is a guard against
extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction
through appeal.” Harrington v. Richter, --- U.S. ---, 131
S. Ct. 770, 786 (2011) (internal quotation marks
omitted). Like the District Court, we see precisely such
an “extreme malfunction[ ]” in this case. Consequently,
we will affirm the judgment of the District Court granting
Munchinski a writ of habeas corpus pursuant to
§ 2254(d)(1).
I.
On December 2, 1977, Pennsylvania State Police
found the bodies of two men in and around a cabin
owned by Raymond Gierke in Bear Rocks, located in
Fayette County, Pennsylvania.1 These two bodies were
later identified as those of Gierke and James Peter
Alford.
1
The parties have not produced the trial testimony and
other evidence that was actually presented at trial. We
take the facts as recited by the Pennsylvania Superior
Court in its adjudication of Munchinski‟s state court
petition for post-conviction relief.
5
The police notified Fayette County Deputy
Coroner Jack Powell, who transported the bodies from
the crime scene in order to conduct autopsies. Autopsies
were conducted that same day by pathologist Dr. Sava
Radisavljevic (“Dr. Sava”). On December 9, 1977, Dr.
Sava delivered his autopsy report to the Fayette County
Coroner‟s Office. A week later, he delivered addenda to
his report.2 The report and the addenda made clear that
Gierke and Alford were shot multiple times at close
range and died from their gunshot wounds. The report
and addenda also suggested that both Gierke and Alford
had been anally raped prior to the murders.
The Pennsylvania State Police assigned Trooper
Montgomery Goodwin as the lead investigating officer in
the case. Trooper Goodwin worked with Corporal
Robert Mangiacarne over the course of the next five
years investigating the murders. Though Trooper
Goodwin and Corporal Mangiacarne identified several
suspects, they lacked sufficient evidence to file charges
until 1982.
A.
At some point within the period of 1980 and 1981,
Richard Bowen, a convicted burglar and forger
incarcerated in state prison in Greensburg, Pennsylvania,
2
Dr. Sava died on December 19, 1977, two days after the
addenda were delivered to the coroner‟s office.
6
contacted the Pennsylvania State Police claiming
knowledge of the Bear Rocks Murders. The precise
dates of the conversations between Bowen and the police
remain unknown and the exact nature of those
conversations remains unclear. What is certain is that
Bowen‟s statements were inconsistent and contradictory.
Two of these inconsistencies are most remarkable for our
purposes: (1) Bowen initially implicated only Leon
Scaglione, the man who was eventually tried and
convicted along with Munchinski; and (2) Bowen at first
stated that he did not enter Gierke‟s home during the
shootings and did not directly witness the murders.
There were numerous changes in Bowen‟s account
of the murders; at some point Bowen‟s story changed
such that he was a direct witness to the shootings, which
he claimed were committed by Scaglione as well as
Munchinski in a drug-related dispute.3 On October 22,
1982, Munchinski and Scaglione were charged with two
counts of criminal homicide in violation of 18 Pa. Cons.
Stat. Ann. § 2501(a), and two counts of criminal
conspiracy to commit homicide in violation of 18 Pa.
Cons. Stat. Ann. § 903.
Munchinski and Scaglione were tried jointly in
3
Even this fact was not consistent in Bowen‟s various
accounts. Initially, Bowen claimed that the murders were
“a contract hit, [and] that a doctor or a lawyer paid
him[.]” Munchinski App‟x 197.
7
April 1983 (the “First Trial”). At this trial, the
Commonwealth relied principally on Bowen‟s purported
eyewitness testimony. Bowen testified that he directly
witnessed Munchinski and Scaglione commit the
murders. Specifically, Bowen testified that Gierke and
Alford were raped by Scaglione and Munchinski,
respectively, and that the two victims were murdered
almost immediately thereafter. Bowen‟s trial testimony
was markedly different from the stories he reportedly
told police when he first approached them as a potential
witness. Bowen‟s testimony was also at odds with
certain facts that were elicited at trial. For example,
Bowen claimed that he drove Scaglione and Munchinski
to the site of the murders in Scaglione‟s lime green Ford
Gran Torino. Scaglione, however, did not purchase that
Gran Torino until almost six months after the murders.
The Commonwealth also presented testimony from
Lori Lexa and Deborah Sue Dahlmann. Lexa and
Dahlmann, acquaintances well before their involvement
in this case, claimed that Munchinski and Scaglione were
with them in a bar in January 1978, and that Munchinski
and Scaglione admitted to committing the murders.
Dahlmann‟s ex-husband Ed Wiltrout, however, was a
prime suspect in the Bear Rocks murders; unbeknownst
to Munchinski, at least one witness claimed to police that
Wiltrout was one of the shooters. Munchinski was
unable at trial to cross-examine Dahlmann with the
witness statement implicating Wiltrout because the report
8
documenting that statement had not been produced. The
Commonwealth relied exclusively on testimony from
Bowen, Lexa, and Dahlmann to link Munchinski to the
crime, presenting no physical evidence linked to
Munchinski.
On April 12, 1983, the First Trial ended with a
hung jury and the declaration of a mistrial. The
Commonwealth dropped the conspiracy charges against
Munchinski and severed Munchinski‟s case from
Scaglione‟s case. In October 1986, the Commonwealth
retried Scaglione. During his trial, Scaglione admitted to
committing the murders. Scaglione testified that
Munchinski had no involvement in the murders, but that
Scaglione had committed the crimes with an associate
named Homer Stewart who allegedly resembled
Munchinski. Scaglione was convicted of two counts of
first degree homicide and two counts of second degree
homicide.
In November 1986, the Commonwealth retried
Munchinski (the “Retrial”). The Commonwealth‟s case
still consisted solely of witness testimony allegedly
linking Munchinski to the murders. The Commonwealth
again elicited testimony from Bowen, Lexa, and
Dahlmann, which was largely consistent with their
testimony from the First Trial. The Commonwealth also
introduced testimony from two additional sources: (1)
Bernard Furr, another acquaintance of Dahlmann‟s, who
repeated a story very similar to Dahlmann‟s about an
9
alleged confession in January 1978; and (2) Harold
Thomas, who testified that Munchinski confessed while
in jail in 1983.
During the Retrial, Munchinski sought to introduce
Scaglione‟s testimony from his October 1986 retrial,
where he implicated Stewart and exonerated Munchinski.
Scaglione declined to testify, invoking his Fifth
Amendment right against self-incrimination. Munchinski
requested that the court grant Scaglione use immunity,
but the court refused. Additionally, the trial court ruled
that Scaglione‟s prior testimony was inadmissible under
Pennsylvania law. As a result, Munchinski was unable to
introduce any exculpatory testimony from Scaglione.
In his closing arguments, then-Assistant District
Attorney Ralph Warman stated to the jury: “did you hear
anyone testify that Bowen received anything other than
immunity? No . . . does that bolster his testimony to
indicate that Bowen was there?” Munchinski App‟x 42.
This argument misled the jury. Unbeknownst to the jury
and Munchinski, prosecutors in Fayette County had
reached a leniency agreement with Bowen, whereby
prosecutors in Westmoreland County would act leniently
against Bowen in his ongoing parole revocation hearings
in exchange for Bowen‟s testimony against Munchinski.
The Commonwealth failed to turn over to Munchinski
documents evidencing this leniency agreement.
Munchinski was found guilty of two counts of
10
first-degree homicide and two counts of second-degree
homicide. On June 15, 1987, Munchinski was sentenced
to two consecutive life sentences, one for each of the first
degree murder convictions. Munchinski received no
additional penalties for the two second degree
convictions.4
On July 14, 1987, Munchinski appealed from the
judgment of sentence. On November 30, 1990, the
Pennsylvania Superior Court affirmed. Commonwealth
v. Munchinski, 585 A.2d 471, 476 (Pa. Super. Ct. 1990).
Munchinski then sought allocatur from the Pennsylvania
Supreme Court. That court denied review on November
13, 1991.
B.
In November 1991, while imprisoned in
Oklahoma, Bowen asked to speak with the Federal
4
Munchinski argued on appeal that his convictions were
multiplicitous, and that he could not be convicted of two
counts of first degree murder and two counts of second
degree murder in connection with Gierke‟s and Alford‟s
murders. On appeal, the Pennsylvania Superior Court
held that by declining to impose an additional sentence
for the second degree murder convictions, the trial court
had effectively merged the first degree and second degree
counts for each of the two murders. See Commonwealth
v. Munchinski, 585 A.2d 471, 479 (Pa. Super. Ct. 1990).
11
Bureau of Investigation (“FBI”) about the Bear Rocks
Murders. Bowen was soon contacted by FBI Special
Agent Matthew Schneck. In talking with Agent Schneck,
Bowen recanted his trial testimony, saying that “he was
not involved in any fashion with Scaglione or
Munchinski in the . . . killings of Alford and Gierke.”
Munchinski App‟x 42.
Munchinski was soon made aware of Bowen‟s
statement to Special Agent Schneck. On April 4, 1992,
in response to Bowen‟s recantation, Munchinski deposed
Bowen. Bowen testified that he fabricated his trial
testimony, and admitted that he was not in Pennsylvania
on the night of the murders. Bowen claimed that police
and prosecutors had threatened him. If he did not testify
against Munchinski and Scaglione, Bowen said, “they
would have someone come along and say that they were
present and that I had done the shootings.” Bowen Dep.
13:7-9. Bowen maintained that Scaglione admitted to
committing the murders, but that Scaglione “never did
mention [Munchinski‟s] name.” Id. at 21:15.
Bowen also explained why his fabricated account
of the murders changed over time. Specifically, he
testified that he would rehearse his story with Trooper
Goodwin, and that Goodwin would give him instructions:
A: [Trooper Goodwin] asked me about
the story, and I went over it, you
know, a couple different times. And
12
then, he started with “No, this is what
happened”--you know--“and we have
witnesses to verify this.” And, he
started in with the [sic] I was driving
the car and I told him, you know
“[y]ou‟re crazy. You people can‟t
prove none [sic] of this.” “We got
witnesses.” And then, he started with
a--he pulled a warrant out of hand--I
never did see if it was signed or what
it said--but he was reading on that
where all he had to do is sign my
name and I would be charged in the
murder.
***
Q: And, whenever this occurred, did
Trooper Goodwin tell you that he
wanted you to give him a different
story?
A: He told me the story, and then he said
if I didn‟t go along with that, then I
would be charged in the homicide.
Id. at 23:11-22, 24:4-9. Notably, Trooper Goodwin was
responsible for the change between Bowen‟s first
account, when he claimed that he remained in the car, to
his later accounts, when he claimed that he went into the
13
cabin and directly witnessed the murders.5 Bowen
claimed that he changed this part of his story because
Trooper Goodwin “said that they had to have [him] in the
house.” Id. at 61:16-17.
Bowen further testified about how he prepared for
trial with former District Attorney Gerald Solomon, the
lead prosecutor during the First Trial:
Q: And, did [Solomon] tell you what to
say?
A: Yes.
Q: Did you tell him that you were not
present at the killings?
A: He knew I wasn‟t. Yes, I told him
5
In 1988, years after Munchinski‟s arrest, Trooper
Goodwin was convicted of third-degree murder of a man
who was seen dancing with his wife. See Munchinski
App‟x 44. Trooper Goodwin was sentenced to a 10-20
year prison sentence, and was ultimately released on
parole in 2008, after serving nearly 20 years in prison.
See id.; Former State Trooper Out of Prison, Tribune
Democrat, May 23, 2008, available at http://tribune-
democrat.com/local/x519164954/Former-state-trooper-
out-of-prison/print (last visited August 30, 2012).
14
that. I said, I--it was just a “I can‟t do
this, man. This ain‟t right.” And,
it‟s--you know “[t]his is done all the
time. We know they did it. We just--
we have to put somebody there to say
they seen them.”
Q: And, that‟s what he told you?
A: Yes.
Q: And, he knew that you weren‟t there?
A: Yes, he did.
Id. at 42:7-20.
Finally, Bowen described how he came to know so
many details about the murders. He explained that
Trooper Goodwin showed him several photos of the
crime scene, and even took him to the scene and pointed
out where the bodies were found. Bowen also confirmed
that Trooper Goodwin gave him details about Scaglione‟s
lime green Gran Torino, and pressed him to include that
information in his testimony; apparently neither of them
was aware that Scaglione had not purchased his lime
green Gran Torino until well after the murders.
On April 16, 1992, only a few weeks after
Bowen‟s deposition, Munchinski filed his first petition
for relief under the Pennsylvania Post-Conviction Relief
15
Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq.
(the “PCRA I” petition). The PCRA I petition sought
relief based on two articles of newly-discovered
evidence: (1) a September 1982 report from Trooper
Goodwin (the “Goodwin Report”) that was intentionally
edited to conceal a reference to a recorded statement
made by Bowen; and (2) Bowen‟s sworn deposition
testimony. PCRA petitions are generally assigned to the
judge who presided over a petitioner‟s trial. In this case,
however, the judge who had presided over the First Trial
and the Retrial had retired from the bench, so the PCRA I
petition was assigned to Judge William J. Franks of the
Court of Common Pleas of Fayette County.
Judge Franks held an evidentiary hearing
concerning both of Munchinski‟s evidentiary claims.
Former prosecutors Solomon and Warman testified at the
hearing about the Goodwin Report. Warman, the
Commonwealth‟s lead prosecutor during the Retrial,
admitted that he intentionally edited the Goodwin Report
to remove a paragraph referencing a recorded statement
from Bowen, and spliced together the paragraphs before
and after the removed text in order to conceal the
removal. Warman testified that he intentionally removed
the relevant paragraph because no statement from Bowen
was ever transcribed or recorded and that the reference
would be “misleading.” Solomon, who was Warman‟s
supervisor during the Retrial, corroborated Warman‟s
testimony.
16
Judge Franks credited Warman‟s and Solomon‟s
account, finding that Bowen‟s statement was never
recorded. Nonetheless, troubled by Warman‟s
intentional modification of the Goodwin Report, Judge
Franks ordered an in camera review of all of the
Pennsylvania State Police investigative files related to the
Bear Rocks Murders, including several additional files
relating to Bowen. Judge Franks ordered the
Commonwealth to turn over all documents that he
deemed discoverable. The Commonwealth, however,
failed to turn over several critical articles of evidence to
the PCRA I court for its in camera review, rendering that
review incomplete.
As to Bowen‟s deposition testimony, Munchinski
called Bowen to testify and recant his trial testimony.
Bowen, however, invoked his Fifth Amendment right
against self-incrimination. Judge Franks granted Bowen
use immunity for his testimony. At the hearing, Bowen
disavowed his deposition testimony and reaffirmed his
testimony from the Retrial.6 Bowen subsequently
6
In 1995, Munchinski filed a private criminal complaint
against Bowen for perjury during his civil deposition.
Munchinski‟s complaint was dismissed, however, on the
ground that Judge Franks had granted Bowen use
immunity for his testimony at the evidentiary hearing.
See Commonwealth ex rel. Munchinski v. Bowen, No.
1706 Pittsburgh 1995, at *1-2 (Pa. Super. Ct. filed Apr.
17
committed suicide.
Munchinski also adduced testimony from Kenneth
Knight, an acquaintance of Bowen‟s from prison. Knight
testified that Bowen admitted that he was in Oklahoma at
the time of the murders, and that he lied under oath
during the Retrial. Further, Knight testified that he had
personally introduced Bowen to Scaglione and
Munchinski in March 1978, long after the Bear Rocks
Murders, when all four of them were incarcerated
together in Westmoreland County Jail.
On August 5, 1993, based on the limited Brady
violations that were known and alleged at the time, Judge
Franks dismissed Munchinski‟s PCRA I petition.
Munchinski appealed this decision. On December 11,
1995, the Pennsylvania Superior Court affirmed the
dismissal of the PCRA I petition. Munchinski sought
review by the Pennsylvania Supreme Court. That Court
denied allocatur on August 30, 1996.
16, 1996) (unpublished memorandum). Judge Feudale,
who presided over the PCRA III proceedings, found this
troubling—the prosecution apparently threatened Bowen
with perjury charges if he did not retract his recantation,
but then Bowen was granted use immunity, and
protection from any resulting perjury charges, if he
reaffirmed his prior testimony. Although we understand
Judge Feudale‟s concern, it has no bearing on the issues
before us now.
18
On January 6, 1998, Munchinski filed his first
habeas petition under 28 U.S.C. § 2254. The United
States District Court for the Western District of
Pennsylvania dismissed the petition as untimely on
September 30, 1998. Munchinski appealed the dismissal
of his petition to this court (the “Appeal”).
On May 12, 2000, while the Appeal was pending
before this court, Munchinski filed a second PCRA
petition pro se. That petition raised additional Brady
claims based on allegedly withheld evidence that
Munchinski discovered while his first federal habeas
petition was pending. Six days later, on May 18, 2000,
that pro se petition was dismissed because Munchinski
was still represented by counsel. On July 27, 2000,
Munchinski refiled his petition through counsel (the
“PCRA II” petition).
The PCRA II court never reached the merits of
Munchinski‟s Brady claims. Rather, based on a
misunderstanding of Pennsylvania law, Judge Franks
erroneously concluded that the PCRA II court lacked
jurisdiction over Munchinski‟s petition because the
Appeal remained pending in federal court. Judge Franks
stated:
After full review of the Petition and record,
this Court finds that an appeal was filed to
the United States Court of Appeals for the
Third Circuit and is still pending. This
19
Court has no jurisdiction. Defendant is not
entitled to post-conviction collateral relief,
and further proceedings would serve no
legitimate purpose. Pa. R. Crim. P. section
1507(a).
Order Dismissing PCRA II Pet., August 24, 2000,
Munchinski v. Wilson, No. 07-cv-1712, ECF No. 21-12.7
After disclaiming jurisdiction, Judge Franks stated
that Munchinski could appeal within thirty days from the
date of the court‟s order. Perhaps knowing that the
Appeal would be resolved imminently, Munchinski
declined to appeal the PCRA II Court‟s decision.
Instead, he heeded Judge Frank‟s implicit suggestion and
waited to re-file his petition after the Appeal was
decided, when the state court could properly exercise
jurisdiction over his petition. On January 24, 2001, we
decided the Appeal, affirming the dismissal of
7
On August 3, 2000, Judge Franks issued an order
stating that the PCRA II court “ha[d] no jurisdiction”
over the petition. Order, August 24, 2000, Munchinski v.
Wilson, No. 07-cv-1712, ECF No. 21-11. This order did
not formally dismiss Munchinski‟s petition, but noted
that the court would dismiss his petition for lack of
jurisdiction unless Munchinski could provide “an
appropriate response.” When no appropriate response
was filed, Judge Franks dismissed Munchinski‟s petition
on August 24, 2000.
20
Munchinski‟s first habeas petition.
C.
1.
On March 21, 2001, less than sixty days after we
decided the Appeal, Munchinski filed his third PCRA
petition (the “PCRA III” petition). In the interim, former
prosecutors Warman and Solomon had each been
elevated to the bench of the Court of Common Pleas of
Fayette County. This led all the sitting judges of the
Court of Common Pleas of Fayette County to recuse
themselves from the matter. The Administrative Office
of Pennsylvania Courts assigned the PCRA III Petition to
Judge Barry Feudale of the Court of Common Pleas of
Northumberland County.8 Additionally, because of
allegations of misconduct made against First Assistant
District Attorney John Kopas, who represented the
Commonwealth during the PCRA I proceedings, the
Commonwealth‟s case was taken over by the
Pennsylvania Attorney General‟s Office.
8
Judge Feudale was elected to the Court of Common
Pleas of Northumberland County in 1987. He became
that court‟s President Judge in 1995, and took senior
status in 1998. In 2004, after issuing his opinion in this
case, Judge Feudale was appointed as a visiting Senior
Judge of the Commonwealth Court of Pennsylvania.
21
The PCRA III petition raised several Brady claims.
Munchinski twice moved to amend that petition to
include additional claims based on evidence he
uncovered after filing the PCRA III petition. Both of
these motions were granted. In sum, Munchinski raised
Brady claims based on the following eleven articles of
material exculpatory evidence that were allegedly
suppressed by the Commonwealth, in addition to the
Goodwin Report that was the subject of the PCRA I
petition:
1. Sava Addendum: an addendum to Alford‟s
autopsy report from Dr. Sava indicating that
the semen sample taken from Alford‟s
rectum was of blood type “A.” Munchinski
is of blood type “B.”9 Munchinski App‟x
167.
2. Parole Revocation Documents: a set of
documents related to Bowen‟s 1983 parole
revocation hearings evidencing a previously-
undisclosed leniency agreement between
9
Dr. Sava does note that cross-contamination from
Alford‟s own semen could not “be entirely ruled out”
based on the low number of spermatozoa found in
Alford‟s rectum. As the District Court noted, however,
even if the collected sperm was from Alford, that fact by
itself would cast further doubt on Bowen‟s testimony that
Munchinski raped Alford.
22
Bowen, the Westmoreland County District
Attorney‟s Office, and the Fayette County
District Attorney‟s Office. Munchinski
App‟x 168-71.
3. Bates Report: a January 7, 1978 report from
Trooper George F. Bates discussing an
interview with a witness who stated that
Bowen had left Pennsylvania for Oklahoma
on December 1, which, if referring to
December 1, 1977, would have been the day
before the murders. Munchinski App‟x 158.
4. Goodwin/Powell Report: a December 20,
1977 report from Goodwin in which Deputy
Coroner Powell stated his belief that the anal
intercourse to which Alford was subjected
took place 24 hours prior to his death,
thereby inconsistent with Bowen‟s account
of the murders. Commonwealth App‟x 218.
5. Powell Addendum: a typewritten summary
of a phone call from Deputy Coroner Powell
reaffirming his belief, recorded in the
Goodwin/Powell Report, that Alford was
subjected to anal intercourse “at least 24
hours” prior to his murder. Commonwealth
App‟x 219.
6. Mangiacarne/Carbone Report: a December
23
16, 1980 report from Corporal Mangiacarne
describing an interview with Elizabeth
Carbone. Carbone related a detailed
confession given to her that implicated Ed
Wiltrout, Commonwealth witness
Dahlmann‟s ex-husband. Commonwealth
App‟x 220.
7. Kinch Report: a December 19, 1977 report
from Trooper Robert Kinch describing nail
scrapings and other biological evidence that
had been taken from Alford. The existence
of this evidence was not disclosed to
Munchinski before the First Trial or the
Retrial. Commonwealth App‟x 221.
8. Dunkard/Proud Report: a December 5, 1977
report from Trooper Edward Dunkard
relating a discussion with Delores Proud, a
dispatcher for the Mount Pleasant,
Pennsylvania Police Department.
According to the report, Proud received a
call at approximately 2:32 A.M. on
December 2, 1977, from a telephone
operator who allegedly received a call from
Gierke claiming that he had been shot.
Proud also received a call requesting an
ambulance approximately 18 minutes after
Gierke‟s call. The call was from Bonnie
Blackson, who had discovered Alford‟s
24
body.10 Commonwealth App‟x 223. The
timing of these calls was inconsistent with
the account provided by Bowen.
9. Veil/Mangello Report: a June 23, 1986
report from Trooper Richard Veil describing
an interview with inmate Robert Lee
Mangello, in which Mangello indicated that
the Bear Rocks Murders were committed by
Scaglione, Joseph Lucy, and a third,
unnamed man. Commonwealth App‟x 216.
10.Madden/Lucy Report: an October 15, 1986
report from Trooper William F. Madden
describing an interview with Lucy, in which
Lucy denied Mangello‟s accusations. Lucy
claimed that Mangello himself was a direct
witness of the Bear Rocks Murders.
Commonwealth App‟x 217.
10
Although the caller did not identify himself on the
phone, blood found on the phone in Gierke‟s cabin was
matched to Gierke‟s blood type. The PCRA III Court
and the District Court proceeded on the assumption that
the call was placed by Gierke. Based on that assumption,
the timing of these calls could be said to conflict with the
account provided by Bowen, who suggested at one point
during trial that Gierke was shot in the head, which
would of course make it unlikely that Gierke would make
a later phone call.
25
11.Bates II Report: a second copy of the Bates
Report that was marked-up, allegedly by the
Commonwealth. Notably, the passage “and
BOWEN left on the 1st of December” was
highlighted. Munchinski App‟x 159.
Judge Feudale held several days of hearings on the
PCRA III petition. The parties presented testimony from
Judge Franks, who had presided over the PCRA I
petition. Judge Franks testified that, had he been aware
of the Bates Report, the Goodwin/Powell Report, and the
Mangiacarne/Carbone Report (i.e., had Kopas produced
the entire prosecution file as per his order, rather than
intentionally withholding material evidence from his in
camera review), he may well have granted relief on
Munchinski‟s PCRA I petition. See Munchinski App‟x
112.
Judge Feudale also heard testimony from Warman
and Trooper Goodwin about the recorded statement
referenced in the Goodwin Report, that the PCRA I court
concluded did not exist. Trooper Goodwin, who was at
the time “serving a 10-20 year [prison] sentence for the
murder of a man involved with his estranged wife,”
Munchinski App‟x 44, testified that he personally
observed Warman recording Bowen‟s statement on a tape
recorder. Goodwin confirmed that the whole purpose of
speaking with Bowen was to get a recorded statement,
noting that without a recording “[h]e could change his
story.” Munchinski App‟x 96.
26
Trooper Goodwin commented that he drafted his
report the day after Bowen made his statement, and that
his report was thus a timely recording of the discussion
with Bowen. Finally, Trooper Goodwin noted that his
report, including the reference to the recording, was
approved by his supervisor, who was also present when
Bowen made his statement. Trooper Goodwin noted that
his supervisor would not have approved his report had
such an important fact been incorrect.
Warman maintained that Bowen‟s statement was
never tape recorded. Throughout the proceedings,
Warman was openly hostile to questions. When asked
why he did not approach the Court before editing the
Goodwin Report, he responded that “he didn‟t have to.”
Munchinski App‟x 102. When asked why he didn‟t
obtain a written statement from Bowen, he replied:
“Why would I want to do that? That‟s a police job, not
mine.” Id. at 103. When counsel suggested that a
written statement may have been a good idea because
Bowen could simply disappear before trial, Warman
responded “[t]hat wouldn‟t be [his] problem”11 because
11
Though the audio recording of the PCRA III
proceedings was not produced to our court and has no
bearing on the merits of the instant appeal, Judge Feudale
noted that when Warman made this statement, “there was
a collective and audible gasp from the crowded
courtroom.” Munchinski App‟x 103 n.3. Judge Feudale
27
he was “not the investigator . . . . We don‟t go out and do
that kind [o]f thing.” Id. at 103-04. Warman admitted
that if a police officer had altered the report, the officer
might be guilty of tampering with evidence, but
maintained that his conduct was permissible because he
was a prosecutor, not a police officer. Id. at 104.
In addition to hearing testimony about the alleged
recorded statement, Judge Feudale heard testimony from
Kopas about his conduct during the PCRA I proceedings.
Kopas acknowledged that he confirmed to the PCRA I
court, “[a]s an Officer of the Court,” that he submitted
the entire police file to Judge Franks for in camera
review. Munchinski App‟x 108. He could not explain
why the files he turned over “included none of the eleven
pieces of exculpatory evidence at issue.” Id. Throughout
the hearing, Kopas was evasive. Kopas repeatedly
responded to questions by stating that he could not or did
not recall the requested information. Judge Feudale
noted that in contrast to his statements during the PCRA I
hearings, Kopas‟s testimony in the PCRA III hearings
was couched in “equivocal language.” Id.Finally, based on the Kinch Report‟s references to
several articles of physical evidence that were never
submitted for laboratory testing, the PCRA III Court
also noted that “the comment and response was unlike
anything [he had] perceived in [his] 15 years on the
bench.” Id.28
ordered testing of all evidence still in existence. The test
results were inconclusive, and were matched either to the
victims or an unidentifiable male.
On October 1, 2004, Judge Feudale filed a
strongly-worded 114-page opinion thoroughly analyzing
the merits of the PCRA III petition, and granting
Munchinski‟s petition.12 At the outset of his opinion,
Judge Feudale remarked on the nature of the Brady
claims in this case:
As a general observation, in the past
seventeen years we have presided over
numerous PCRA petitions, both counseled
and uncounseled. Incantations of
prosecutorial/police misconduct, corruption
and perjury along with utterances of
egregious and outrageous [sic], often
appeared formulaic, and were ostensibly an
elevation of form over substance. At a
minimum, the circumstances surrounding
these homicides, and the subsequent events
involving the principal cast of characters in
12
Judge Feudale granted the Commonwealth leave to
retry Munchinski if the Commonwealth produced a copy
of the recorded statement referenced in the Goodwin
Report within ten days of the court‟s order. If the
Commonwealth could not produce the recorded
statement, Munchinski was to be released.
29
this tragic drama lend themselves to the term
extraordinary.
Munchinski‟s App‟x 40.
The PCRA III court concluded that: (1) despite
the PCRA I Court‟s conclusion to the contrary, the
recorded statement referred to in the omitted paragraph
of the Goodwin Report did exist, and was intentionally
withheld by prosecutors; (2) even if no recorded
statement existed, Warman‟s intentional editing of the
Goodwin Report violated Brady; (3) Kopas intentionally
committed prosecutorial misconduct in violation of
Brady when he failed to turn over the entire police file, as
ordered during the PCRA I proceedings; (4) Solomon
and Warman both committed prosecutorial misconduct
and numerous Brady violations leading up to and during
the First Trial and the Retrial; and (5) Warman
intentionally misled the jury during the Retrial when he
stated that all Bowen received in exchange for his
testimony was immunity, because he was aware that
Bowen also received leniency as to a number of
probation and parole violations in Westmoreland County.
The PCRA III court also concluded that the
evidence withheld by prosecutors was material under
Brady, and granted Munchinski‟s petition. The court
concluded that Warman, Solomon, and Kopas all
engaged in serious and intentional prosecutorial
misconduct. Judge Feudale declined to refer the former
30
prosecutors to the Judicial Conduct Board or for possible
criminal charges because such a referral was not “within
the clear ambit of relief set forth in Section 9546 of the
[PCRA].” Munchinski App‟x 33.
In a footnote to his order, Judge Feudale
excoriated Warman, Solomon, and Kopas, stating that
their “actions ill served the victims, their families, the
defendant and citizens of Fayette County,” and
suggesting that the outcome of the case was “a reflection
of the ongoing foundation of prosecutorial misconduct by
the former prosecutors.” Munchinski App‟x 32. Judge
Feudale commented that in his “17 years as a judge,
while [he has] handled numerous PCRA‟s [sic], and
granted collateral relief, this is the first time [he has]
granted a request for new trial/discharge.” Id. Judge
Feudale closed by characterizing the matter before him as
“an extraordinary case” and expressing the hope “that [it]
is not replicated[.]” Id. at 33.
2.
On October 8, 2004, the Commonwealth appealed
from the PCRA III court‟s grant of relief to Munchinski.
On December 14, 2005, the Pennsylvania Superior Court
issued a nonprecedential and unsigned memorandum
opinion reversing the PCRA III court. Because the
Superior Court‟s opinion is the focus of our review, we
will subject it to painstaking analysis. Unfortunately,
though the Superior Court‟s opinion is lengthy, its
31
reasoning is opaque. The memorandum is confusing, and
at times internally inconsistent. As best we can
understand, the Superior Court concluded that certain
articles of evidence listed in the PCRA III petition as
undisclosed by the prosecution were not raised on a
timely basis, and thus could not be raised as independent
claims. Nonetheless, because some of Munchinski‟s
claims were timely, the court concluded that it was
required to consider all of the evidence raised in the
PCRA III petition. In analyzing the merits of
Munchinski‟s Brady claims, the court considered each
article of evidence in isolation, never considering the
aggregate materiality of all of the withheld evidence.
The Superior Court began its opinion with a
discussion of the jurisdictional restrictions on courts
reviewing a PCRA petition, noting that “Pennsylvania
courts have no jurisdiction to address claims in an
untimely PCRA petition no matter how serious the
assertions raised therein[.]” App‟x 113. Munchinski
argued that his petition was timely under Pennsylvania‟s
“after-discovered evidence exception.” App‟x 116-18;
42 Pa. Cons. Stat. Ann. § 9545(b)(2) (after-discovered
evidence exception). The Superior Court suggested that
some of Munchinski‟s claims were filed beyond the
sixty-day limitations period for after-discovered
evidence.
Significantly, the Court‟s analysis did not end
there. Up to this point in the opinion, the Superior Court
32
had not considered the articles of evidence that were
discovered between the filing of Munchinski‟s PCRA II
petition and his PCRA III petition. Munchinski
discovered a report of Sergeant George Fayouk‟s
interview of Richard Bowen between February 20, 2003
and March 10, 2003. The court concluded that
Munchinski “asserted the claims based thereon within
sixty days of its discovery. Thus all such claims are
timely.” App‟x 133. Additionally, the court noted that
Munchinski timely raised the Veil/Mangello Report and
the Madden/Lucy Report. As such, the court “agree[d]
with the third PCRA court that Munchinski raised
cognizable Brady claims.” App‟x 139.
In a critical paragraph, the Superior Court stated:
We shall address the Commonwealth‟s
contentions [that the alleged Brady
violations did not concern “material”
evidence] seriatim. Before doing so,
however, we must resolve the question of
whether the procedural irregularities of this
case preclude us from considering all of the
evidence in the certified record. We
conclude that we cannot confine our analysis
only to newly acquired evidence that was
timely presented. Rather, the distinction that
must be made is whether a particular claim
is timely and whether that claim is supported
by sufficient evidence of record, no matter
33
when that evidence was acquired. Because
the PCRA‟s timing restrictions are
jurisdictional, this Court lacks authority to
affirm an order granting relief predicated on
an untimely claim merely because certain
timely presented after-discovered evidence
tends to support that claim. Conversely,
however, a timely asserted claim cannot be
found to be invalid simply because part of
the evidence that supports the PCRA court‟s
ruling was submitted too late to form the
basis of an entirely separate claim. In short,
we cannot review the PCRA court‟s rulings
on a diminished record.
App‟x 148-49.
The Superior Court proceeded to reach the merits
of all of the articles of evidence cited in the PCRA III
petition, with the exception of the recorded statement
referenced in the Goodwin Report—an issue that was
“previously litigated” by the PCRA I court. The Superior
Court reiterated its conclusion that it was required to
consider the merits as to all of the individual articles of
evidence, including those articles that would have been
untimely if raised separately:
Nevertheless, the third PCRA court‟s grant
of relief did not rely only on the eleven
pieces of purported newly-discovered
34
evidence, which were untimely asserted.
We must therefore discuss all of the
evidence on which that court relied in
granting relief. See Santiago, 654 A.2d at
1070 (holding that an appellate court must
evaluate the significance of suppressed
evidence pursuant to Brady in relation to the
record as a whole). As noted above, there is
a distinction to be made between a claim
that is untimely under the PCRA and a
timely claim predicated on evidence that has
been presented too late to create a separate
issue.
App‟x 162-63.
The relationship between the court‟s discussion of
the timeliness of Munchinski‟s claims and its discussion
of the merits of Munchinski‟s claims is unclear. Nothing
in the opinion suggests that the court‟s ruling on the
merits was in the alternative. Indeed, the opinion
suggests the opposite—that under Pennsylvania law, the
court was required to consider all of the evidence listed
in Munchinski‟s petition, even if some of that evidence
would have been untimely in a separate petition. At all
events, the Superior Court reversed the PCRA III court
and dismissed the PCRA III petition. Munchinski sought
review from the Pennsylvania Supreme Court, but on
February 8, 2007, that court denied allocatur.
35
3.
On December 15, 2007, Munchinski filed the
instant habeas petition in the United States District Court
for the Western District of Pennsylvania. The District
Court concluded that this petition was a “second or
successive petition” within the meaning of 28 U.S.C. §
2244(b), and transferred jurisdiction over the case to this
court pursuant to 28 U.S.C. § 1631. On November 5,
2009, we concluded that Munchinski presented “a prima
facie showing that his petition contain[ed] newly
discovered evidence” as required under § 2244(b), and
transferred jurisdiction over the petition back to the
District Court.
On August 5, 2011, the Magistrate Judge to whom
this matter was assigned issued a thorough 80-page
opinion granting Munchinski‟s habeas petition. Aware
of the arguments over whether Munchinski had properly
complied with state and federal procedural requirements,
the District Court first considered whether Munchinski‟s
petition was timely under the Antiterrorism and Effective
Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214 (1996), which requires that claims based on
newly-discovered evidence be filed within one year of
the discovery of that evidence. The court found that the
majority of the eleven articles of newly-discovered
evidence, with the exception of the Veil/Mangello
Report, the Madden/Lucy Report, and the Bates Report
II, were raised beyond the one year statute of limitations
36
in § 2244(d)(1)(D).
Though untimely, the District Court equitably
tolled the one-year statute of limitations for the majority
of these articles of evidence, with the exception of the
Sava Addendum, the Parole Revocation Documents, and
the Goodwin Report, which were discovered prior to the
filing of the PCRA I petition. The court reasoned that the
uncertainty in the Pennsylvania State Courts surrounding
parallel petitions for post-conviction relief in both state
and federal courts was a sufficiently extraordinary
circumstance to justify equitable tolling given “the
general diligence exhibited by [Munchinski] throughout
this ordeal[.]” Commonwealth App‟x 40.
The court then considered whether Munchinski
had procedurally defaulted his claims. The court appears
to have assumed that there was procedural default. The
bulk of the court‟s analysis focused on whether default
could be excused. The court acknowledged that a
procedural default can be excused for one of two reasons:
(1) if a petitioner can show cause for the default and
prejudice resulting therefrom; or (2) if enforcing the
procedural default rule would effect a fundamental
miscarriage of justice.
The court declined to consider whether
Munchinski had shown cause and prejudice, because “he
so clearly qualifies for the second exception to the
procedural default rule—i.e., failing to allow his claims
37
to proceed would result in a fundamental miscarriage of
justice.” Commonwealth App‟x 46. Specifically, the
court concluded that a fundamental miscarriage of justice
would occur because “he has show[n] by „clear and
convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant
guilty of the underlying offense.‟” Commonwealth
App‟x 46 (quoting 28 U.S.C. § 2244(b)(2)(B)(ii)).
Finally, the District Court reached the merits of
Munchinski‟s Brady claims. The District Court
concluded that the Superior Court unreasonably applied
Brady in violation of 28 U.S.C. § 2254(d)(1), because the
court analyzed the materiality of the withheld evidence
individually, rather than collectively. See Kyles v.
Whitley, 514 U.S. 419, 437-38 (1995). The court further
concluded that Munchinski‟s new evidence demonstrated
that no reasonable juror would have found him guilty
under the high standard required of a habeas petitioner
filing a second or successive petition under 28 U.S.C.
§ 2244(b)(2). The District Court granted Munchinski
habeas relief, permitting the Commonwealth 120 days
from the filing of its order in which it could retry
Munchinski. The District Court also ruled that it would
stay its order if either party chose to appeal. On
September 2, 2011, the Commonwealth timely appealed.
II.
The Commonwealth raises three arguments on
38
appeal: (1) that the District Court erred by equitably
tolling AEDPA‟s one-year statute of limitations; (2) that
Munchinski procedurally defaulted certain claims, and
the District Court erred by excusing the default on the
grounds of fundamental miscarriage of justice grounds;
and (3) that Munchinski failed to demonstrate his actual
innocence under the high standard required by
§ 2244(b)(2)(B)(ii). The District Court had jurisdiction
over Munchinski‟s petition pursuant to 28 U.S.C.
§§ 2241 & 2254. We have jurisdiction over this appeal
pursuant to 28 U.S.C. §§ 1291 & 2253.
A.
1.
Under AEDPA, “[a] 1-year period of limitation
shall apply to an application for a writ of habeas corpus
by a person in custody pursuant to the judgment of a
State court.” 28 U.S.C. § 2244(d). For a petitioner
asserting claims based on newly-discovered evidence, the
limitations period generally will begin to run on “the date
on which the factual predicate of the claim or claims
presented could have been discovered through the
exercise of due diligence.” Id. § 2244(d)(1)(D). AEDPA
provides that the one-year limitation period is subject to
“statutory tolling”: “[t]he time during which a properly
filed application for State post-conviction or other
collateral review with respect to the pertinent judgment
or claim is pending shall not be counted toward any
39
period of limitation under this subsection.” Id.
§ 2244(d)(2).
AEDPA‟s statute of limitations must be applied
“on a claim-by-claim basis.” Fielder v. Varner, 379 F.3d
113, 118 (3d Cir. 2004). The District Court divided the
alleged Brady violations into three separate groups based
on “the date on which the factual predicate of the claim
. . . presented could have been discovered through the
exercise of due diligence.” Id. § 2244(d)(1)(D).13 For
13
The District Court, citing Fielder, considered each
article of evidence as giving rise to a separate Brady
claim with an independent statute of limitations.
Consequently, the District Court reasoned that certain
Brady claims could be timely under § 2244(d), while
other claims might well be untimely. We agree that this
is the correct approach when considering a petition
alleging multiple Brady violations. For most purposes,
courts must analyze Brady allegations by evaluating “the
undisclosed evidence item by item[.]” Kyles, 514 U.S. at437 n.10. Only after that initial item-by-item analysis do
we “evaluate its cumulative effect for purposes of
materiality[.]” Id. Thus, while each alleged Brady
violation bears on the materiality of other alleged
violations, each violation constitutes a separate claim that
must be analyzed independently in other respects. As
such, we must independently consider whether each
alleged Brady violation is timely under § 2244(d).
40
each group, the District Court properly applied a two-step
analysis to determine whether the claims were timely
under § 2244(d)(1). First, the court considered whether
more than one year had elapsed between the date on
which the relevant evidence could have been discovered
through the exercise of due diligence. If more than one
year had elapsed, the court then considered whether the
group of claims was entitled to statutory tolling pursuant
to § 2244(d)(2).
The Group 1 claims are based on the
Veil/Mangello Report, the Madden/Lucy Report, and the
Bates II Report. This evidence was discovered on March
10, 2003, while the PCRA III petition was pending.14
The instant habeas petition was filed on December 15,
2007. More than one year lapsed from the date of
discovery until the date Munchinski‟s habeas petition
Because the Commonwealth has conceded that the
Superior Court unreasonably applied Brady, a point
which appears to be beyond dispute, we do not consider
whether, even if certain Brady violations were raised
beyond § 2244‟s one-year statute of limitations, they can
nonetheless be considered as part of the cumulative
materiality analysis required by Kyles.
14
The Commonwealth has not alleged that this evidence
“could have been discovered” any earlier, within the
meaning of § 2244(d)(1)(D).
41
was filed, rendering the Group 1 claims untimely under
§ 2244(d)(1).
On April 15, 2003, however, Munchinski filed his
PCRA III petition in Pennsylvania state court. The
Superior Court found that the Brady violations in Group
1 were properly filed. Thus, from April 15, 2003 until
February 8, 2007, when the Pennsylvania Supreme Court
denied Munchinski‟s request for allocatur, there was a
properly filed PCRA petition pending in the state court
system. As a result, Munchinski is entitled to statutory
tolling for this period pursuant to § 2244(d)(2). This
means that the statute of limitations for the Group 1
claims ran from March 10, 2003 until April 15, 2003, and
then from February 8, 2007 until December 15, 2007.
Cumulatively, these periods are shorter than one year.
The Group 1 claims are therefore timely under § 2244.
The Group 2 claims are based on the Goodwin
Report, the Sava Report, and the Parole Revocation
Documents. This evidence was discovered prior to the
filing of Munchinski‟s PCRA I petition. Given that we
previously held these claims untimely in Munchinski‟s
first habeas petition, Munchinski v. Price, 254 F.3d 1078(3d Cir. 2001) (unpublished), the District Court
concluded that these claims are also untimely in the
instant petition. We agree, and conclude that the Group 2
claims are untimely under § 2244(d).
Finally, the Group 3 claims are based on: (1) the
42
Bates Report; (2) the Goodwin/Powell Report; (3) the
Powell Addendum; (4) the Mangiacarne/Carbone Report;
(5) the Dunkard/Proud Report; and (6) the Kinch Report.
This evidence was discovered at an unspecified time in
2000, while Munchinski‟s appeal from the denial of his
first federal habeas petition was pending before this
court. The District Court concluded that the Bates
Report was discovered on or before May 12, 2000, when
Munchinski filed his pro se PCRA II petition referencing
the Bates Report. Again, well over a year elapsed
between the discovery of the report and the filing of the
instant habeas petition; that particular claim is thus
untimely under § 2244(d)(1). The court credited
Munchinski‟s assertion that the remaining evidence in
Group 3 was discovered between July 27, 2000 and
August 24, 2000. Using the July 27, 2000 date as the
date of discovery, the Group 3 claims are also untimely
under § 2244(d)(1).
Nor are the Group 3 claims entitled to statutory
tolling under § 2244(d)(2). The PCRA II court dismissed
the PCRA II petition, first for being filed pro se, and
second for lack of jurisdiction. As such, the petition was
never “properly filed” within the meaning of
§ 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Similarly, the Superior Court reviewing Munchinski‟s
PCRA III petition concluded that the Brady allegations
premised on the evidence in Group 3 were not raised
within 60 days of the date of discovery, as required by
43
Pennsylvania law.15 As such, the PCRA III petition was
also not “properly filed” within the meaning of
§ 2244(d)(2). Thus, the Group 3 claims are untimely
under § 2244(d).
2.
Though the Group 2 and 3 claims are untimely
under § 2244(d), the Supreme Court has held that
§ 2244(d) “is not „jurisdictional‟” and does not set forth
“an inflexible rule requiring dismissal . . . [whenever the]
clock has run.” Day v. McDonough, 547 U.S. 198, 205,
208 (2006). Rather, Ҥ 2244(d) is subject to equitable
tolling in appropriate cases.” Holland v. Florida, --- U.S.
---, 130 S. Ct. 2549, 2560 (2010).
The decision to equitably toll § 2244(d) “must be
made on a case-by-case basis.” Id. at 2563 (quoting
Baggett v. Bullitt, 377 U.S. 360, 375 (1964)). “In each
case, there is a need for „flexibility,‟ „avoiding
mechanical rules,‟ and „awareness . . . that specific
circumstances, often hard to predict in advance, could
warrant special treatment in an appropriate case.” Pabon
v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011) (quoting
Holland, 130 S. Ct. at 2563). There are “no bright lines
in determining whether equitable tolling is warranted in a
15
As we note in Part II.B, infra, the court nevertheless
concluded for other reasons that it had to consider that
evidence in its merits analysis.
44
given case.” Id. Rather, equitable tolling is appropriate
when “principles of equity would make the rigid
application of a limitation period unfair.” Miller v. N.J.
State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)
(alterations omitted).
Generally speaking, a petitioner is entitled to
tolling if he shows: (1) “„that some extraordinary
circumstance stood in his way‟ and prevented timely
filing”; and (2) that “he has been pursuing his rights
diligently.” Id. at 2562 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)).16 Initially, we agree with the
16
It is worth noting that “a growing chorus” of our sister
circuits have recognized “an equitable exception to
AEDPA‟s limitation period in extraordinary cases . . . in
which the petitioner has made a credible and compelling
showing of his actual innocence[.]” Rivas v. Fischer, ---
F.3d ---, 2012 WL 2686117, at *32 (2d Cir. July 9 2012);
see also Perkins v. McQuiggin, 670 F.3d 665, 675 (6th
Cir. 2012) (holding that there is an “actual innocence”
exception to § 2244(d)); San Martin v. McNeil, 633 F.3d
1257, 1267-68 (11th Cir. 2011) (same); Lee v. Lampert,
653 F.3d 929, 934 (9th Cir. 2011) (en banc) (same);
Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010)
(same). But see Escamilla v. Jungwirth, 426 F.3d 868,
871-72 (7th Cir. 2005) (holding that there is no “actual
innocence” exception to § 2244(d)); Cousin v. Lensing,
310 F.3d 843, 849 (5th Cir. 2002) (same); David v. Hall,
45
District Court that the Group 2 claims are not eligible for
equitable tolling. The parties do not object to this
conclusion. The Commonwealth‟s argument focuses on
the Group 3 claims. The District Court concluded that
the Group 3 claims were eligible for equitable tolling
because the PCRA II court‟s erroneous dismissal of the
PCRA II petition constitutes an extraordinary
circumstance, and because Munchinski diligently
pursued his rights despite his circumstances.
(a)
The Commonwealth first challenges the District
Court‟s conclusion that there were extraordinary
circumstances that prevented Munchinski from timely
filing the instant habeas petition. When the facts
allegedly constituting an extraordinary circumstance are
not in dispute, “a District Court‟s decision on the
question whether a case is sufficiently „extraordinary‟ to
justify equitable tolling should be reviewed de novo.”
318 F.3d 343, 347 (1st Cir. 2003) (same). Because we
conclude that Munchinski has shown diligence and
extraordinary circumstances, however, we agree with the
District Court that he is entitled to equitable tolling on
that basis. We thus do not consider whether an “actual
innocence” exception to § 2244(d) exists.
46
Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).17
The extraordinary circumstances prong requires
that the petitioner “in some extraordinary way be[ ]
prevented from asserting his or her rights.” Brown v.
Shannon, 322 F.3d 768, 773 (3d Cir. 2003). “One . . .
potentially extraordinary situation is where a court has
misled a party regarding the steps that the party needs to
take to preserve a claim.” Brinson, 398 F.3d at 230.
That is precisely what happened here. The facts before
us are remarkably similar to those in Urcinoli v. Cathel,
546 F.3d 269, 273 (3d Cir. 2008). In both cases, a court
erroneously dismissed pending petitions amidst
confusion over recent caselaw. In both cases, the court
implicitly suggested steps that the petitioner should take
to present the same claims in the future. In Urcinoli, the
court dismissed a so-called “mixed” habeas petition
containing both exhausted and unexhausted claims, and
implicitly suggested that the petitioner refile the same
petition without the allegedly unexhausted claims. As we
noted, however, if the petitioner refiled the petition, those
claims would have been untimely because the one-year
limitation in § 2244(d) had already passed. Id. So too
17
Brinson suggested that a de novo standard of review
should apply, but declined to decide the issue. In Taylor
v. Horn, 504 F.3d 416, 427 (3d Cir. 2007), however, we
applied a de novo standard, and implicitly adopted
Brinson.
47
here, the PCRA II court erroneously dismissed the PCRA
II petition for lack of jurisdiction because of
Munchinski‟s pending federal appeal. In so doing, the
court implied that Munchinski could reassert his claims
once the federal appeal was resolved. Munchinski did
precisely that, but the Superior Court concluded that such
claims had become untimely.
We thus conclude, as we did in Urcinoli, that the
PCRA II court‟s dismissal of Munchinski‟s pending
petition, with its implicit suggestion that Munchinski
refile once his federal appeal was resolved, was
sufficiently misleading as to constitute an extraordinary
circumstance because “it later operate[d] to prevent
[Munchinski] from pursuing his rights.” Id. at 275.
(b)
The diligence required of a habeas petitioner
seeking equitable tolling “is reasonable diligence, not
maximum feasible diligence.” Holland, 130 S. Ct. at
2565 (internal quotation marks and citations omitted).
The Commonwealth argues that by failing to appeal the
PCRA II court‟s erroneous dismissal of his petition,
Munchinski did not demonstrate the “reasonable
diligence” necessary to permit equitable tolling.
We have not addressed the appropriate standard of
review for a District Court‟s determination that a habeas
petitioner demonstrated reasonable diligence. Whether a
48
petitioner‟s diligence was “reasonable” under the
circumstances of the case seems a much more fact-
intensive inquiry than whether a set of undisputed facts
constitutes an “extraordinary circumstance” as a matter
of law. As such, Brinson‟s reasons for de novo review of
a district court‟s extraordinary circumstances analysis
may not apply to its diligence analysis in all cases. See,
e.g., Rivas v. Fischer, --- F.3d ---, 2012 WL 2686117, at
*21 (2d Cir. July 9, 2012) (reviewing district court‟s
diligence analysis for clear error). Indeed, when
reviewing a district court‟s determination that a petitioner
demonstrated “reasonable diligence in the circumstances”
under § 2244(d)(1)(D), we apply a clear error standard.
Wilson v. Beard, 426 F.3d 653, 660-61 (3d Cir. 2005).
We need not decide this issue, however, because we
conclude that Munchinski demonstrated reasonable
diligence even under a de novo standard.
The diligence requirement “does not demand a
showing that the petitioner left no stone unturned.”
Ramos-Martinez v. United States, 638 F.3d 315, 324 (1st
Cir. 2011). Rather, “[t]o determine if a petitioner has
been [reasonably] diligent in pursuing his petition, courts
consider the petitioner‟s overall level of care and caution
in light of his or her particular circumstances.” Doe v.
Busby, 661 F.3d 1001, 1013 (9th Cir. 2011); see also
Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004)
(“Due diligence . . . require[s] reasonable diligence in the
circumstances.”). In other words, the diligence inquiry
49
is fact-specific and depends on the circumstances faced
by the particular petitioner; there are no bright line rules
as to what conduct is insufficient to constitute reasonable
diligence. If a petitioner “did what he reasonably thought
was necessary to preserve his rights . . . based on
information he received . . . , then he can hardly be
faulted for not acting more „diligently‟ than he did.”
Holmes v. Spencer, 685 F.3d 51, 65 (1st Cir. 2012).
Over the past several decades, Munchinski has
vigorously pursued relief in state and federal courts. He
has filed five petitions for post-conviction relief, all
raising substantial and difficult questions about his
conviction. He filed the PCRA II petition very soon after
discovering the Bates Report, though the petition was
mistakenly dismissed by the court. He followed the
PCRA II court‟s implicit suggestion and filed his PCRA
III petition within a month of our dismissal of the
Appeal, when the alleged jurisdictional issue had been
resolved. Throughout this process, he continued to
collect evidence. He presented this evidence in his
PCRA III petition—if the PCRA II court had been
correct about the jurisdictional issue, this evidence would
have been timely presented under 42 Pa. Cons. Stat. Ann.
§ 9545(b)(2). Under the circumstances, we conclude that
Munchinski was reasonably diligent.
Munchinski‟s conduct is comparable to that of the
petitioner in Mathis v. Thaler, 616 F.3d 461 (5th Cir.
2010). In that case, the petitioner was simultaneously
50
pursuing post-conviction relief in state and federal courts.
Just like the PCRA II court, the state court erroneously
dismissed the pending state court petition based on its
understanding of Texas‟s so-called “two-forum rule,”
which prohibited state courts from exercising jurisdiction
over a state court petition while a federal petition was
pending. The Texas state courts subsequently clarified
the two-forum rule in Ex parte Soffar, 143 S.W. 3d 804,
807 (Tex. Crim. Ct. App. 2004), permitting review of a
state court petition if the federal petition was stayed.
Soon after the Soffar decision, the petitioner again
sought relief in the state courts. The Fifth Circuit
concluded that the petitioner “exhibited a pattern of
diligently pursuing his rights in state and federal court,
despite procedural difficulties. . . . Far from sleeping on
his rights, [the petitioner] sought relief in multiple
tribunals in an effort to raise his . . . claim. Under the
circumstances, [the petitioner‟s] actions were more than
reasonably diligent.” Mathis, 616 F.3d at 474. We reach
the same conclusion here, and agree with the District
Court that in view of the extraordinarily difficult
circumstances that Munchinski faced, he demonstrated
reasonable diligence in pursuing his rights.
The Commonwealth argues that Munchinski‟s
failure to appeal from the PCRA II court‟s dismissal of
his petition precludes him from showing reasonable
diligence. We disagree. Although with the benefit of
hindsight, an appeal may have been prudent, equitable
51
tolling does not require the “maximum feasible
diligence.” Holland, 130 S. Ct. at 2565. What the
diligence inquiry requires is reasonable diligence under
the circumstances of a particular case.
The PCRA II court interpreted Pennsylvania state
law as precluding jurisdiction over a PCRA petition
while Munchinski‟s federal appeal remained pending.
As the District Court noted, at that time the Pennsylvania
Supreme Court had yet to issue its ruling in
Commonwealth v. Whitney, 817 A.2d 473 (Pa. 2003),
which clarified that Pennsylvania state courts do maintain
jurisdiction over a PCRA petition despite a pending
federal petition. As such, when the PCRA II court
dismissed Munchinski‟s petition, it was not clear that the
court had erred. The Pennsylvania Supreme Court‟s case
law could be read (as it was by the PCRA II court) to
disclaim jurisdiction over a PCRA petition while a
federal petition was pending. There then existed no case
law that might clearly indicate to Munchinski that the
PCRA II court had erred. Given the uncertainty
surrounding the issue, we do not think it was
unreasonable for Munchinski to choose to credit the
PCRA II court‟s interpretation of Pennsylvania
procedural law, and heed its implicit suggestion that he
wait to refile his claims once this court resolved his
federal appeal.
As we have observed, the diligence inquiry is
contextual. Here, Munchinski made almost every effort
52
to seek timely post-conviction relief in both the state and
federal systems. He simply chose to follow the implicit
suggestion from the PCRA II court rather than appeal its
decision. He did not “sleep[ ] on his rights.” Mathis, 616
F.3d at 474. Nor did he simply misread a court opinion.
See Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012)
(holding that “misreading a court opinion” was not a
sufficient basis to permit equitable tolling). He did
exactly what the PCRA II court implicitly suggested,
doing “what he reasonably thought was necessary to
preserve his rights . . . based on information he
received[.]” Holmes, 685 F.3d at 65. Under these
circumstances, the “principles of equity would make the
rigid application of a limitation period unfair.” Miller,
145 F.3d at 618 (alterations omitted). We thus conclude
that Munchinski was reasonably diligent under the
circumstances in pursuing his rights.
Because we conclude that Munchinski faced
extraordinary circumstances and demonstrated
reasonable diligence in pursuit of his rights, we agree
with the District Court that he is entitled to equitable
tolling. The District Court was correct in deciding to toll
the statute of limitations as to his Group 3 claims from
August 24, 2000, when Munchinski‟s PCRA II petition
was dismissed,18 until February 8, 2007, when the
18
It is unclear why the District Court only tolled § 2244
starting on August 24, 2000, when his PCRA II petition
53
Pennsylvania Supreme Court denied allocatur over the
Superior Court‟s dismissal of his PCRA III petition.
With this period equitably tolled, Munchinski‟s Group 3
claims, with the exception of his claim based on the
Bates Report, are timely. As such, the District Court
could properly consider the Group 1 and Group 3 claims,
again with the exception of the claim based on the Bates
Report.
B.
Even if a claim is timely under § 2244, a federal
court “may not conduct habeas corpus review of a claim
which a petitioner has procedurally defaulted in state
court.” Lark v. Sec’y Pa. Dep’t of Corr., 645 F.3d 596,
611 (3d Cir. 2011). Grounded in principles of comity
and federalism, the procedural default doctrine prevents a
federal court sitting in habeas from reviewing a state
was dismissed, as opposed to July 27, 2000, when the
PCRA II petition was filed. Certainly, the alleged
extraordinary circumstance here, the PCRA II court‟s
erroneous dismissal of Munchinski‟s petition along with
the suggestion that Munchinski wait to refile his petition
once the Appeal was resolved, did not occur until August
24, 2000. But for this circumstance, the PCRA II petition
may well have been “properly filed, and Munchinski may
have been entitled to statutory tolling under § 2244(d)(2).
Munchinski has not raised this argument on appeal,
however, and it does not affect our judgment.
54
court decision that rests on a state law ground “that is
sufficient to support the judgment,” when that state law
ground “is independent of the federal question and
adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 729 (1991). In such situations,
“resolution of any independent federal ground for the
decision could not affect the judgment and would
therefore be advisory.” Id.As the Supreme Court noted in Coleman, “[i]t is
not always easy for a federal court to apply the
[procedural default] doctrine. State court opinions will,
at times, discuss federal questions at length and mention
a state law basis for decision only briefly.” Id. at 732. A
state court can still “look to federal law for guidance or
as an alternative holding while still relying on an
independent and adequate state ground” as long as it
states “„clearly and expressly that [its decision] is . . .
based on bona fide separate, adequate, and independent
grounds.‟” Id. at 733 (quoting Michigan v. Long, 463
U.S. 1032, 1041 (1983)). In certain situations, however,
it may be “difficult to determine if the state law
discussion is truly an independent basis for decision[,]”
and thus whether there has been a procedural default. Id.
at 732.
To account for this difficulty, the Supreme Court
has instructed federal courts to “presume that there is no
independent and adequate state ground for a court
decision . . . when the adequacy and independence of any
55
possible state law ground is not clear from the face of the
opinion. Id. at 735 (citation and internal quotation marks
omitted). In order to overcome this presumption, “the
last state court to which the petitioner presented his
federal claims . . . [must] clearly and expressly rely on an
independent and adequate state ground[.]” Id.
The District Court held that Munchinski
procedurally defaulted his Group 3 claims. The court
concluded that the Superior Court relied on an
independent and adequate state law ground, namely the
sixty-day statute of limitations in § 9545(b)(2), to dismiss
the Group 3 claims. Only then did the court consider
whether or not to excuse the procedural default,
ultimately excusing the default on fundamental
miscarriage of justice grounds. We do not reach the
latter question because we disagree with the District
Court as to the former; we conclude that the Superior
Court did not “clearly and expressly” rely on a state law
ground sufficient to support its judgment, and thus that
there was no procedural default.
The Commonwealth argues that there was in fact a
procedural default, and directs us to the portions of the
opinion discussing the timeliness of the Group 3 claims.
See Commonwealth App‟x 117-23. Admittedly, there is
language in the court‟s opinion suggesting that these
claims, considered in isolation, are untimely under
§ 9545(b)(2). But the opinion immediately follows that
discussion with the disclaimer that its “analysis does not
56
end here, however.” Id. at 123.
The remainder of the Superior Court‟s opinion is
difficult to understand, and at times seems almost self-
contradictory. The Superior Court apparently concluded
that the Group 3 claims were “submitted too late to form
the basis of an entirely separate claim.” Id. at 149.
Nonetheless, “a timely asserted claim cannot be found to
be invalid simply because part of the evidence that
supports the PCRA court‟s ruling was submitted too late
to form the basis of an entirely separate claim.” Id.
Consequently, the court concluded that it could not
“review the PCRA court‟s rulings on a diminished
record[,]” and reached the merits of all of Munchinski‟s
Brady claims. Id.
In other words, the court concluded that even
though the Group 2 and Group 3 claims were untimely if
presented independently, it was required to consider the
materiality of all of the alleged suppressed evidence
because Munchinski did present timely Brady claims via
Group 1. Though the Superior Court does not explain
why it was required to reach the merits as to all of
Munchinski‟s Brady claims, it cites a Pennsylvania
Supreme Court case to support its conclusion. As such,
this conclusion appears to result from an interpretation of
state law, and is not properly before us. The only issue
we must consider is whether the Superior Court‟s earlier
statements regarding the Group 2 and 3 claims provide an
independent and adequate state court ground sufficient to
57
support its judgment.
The Superior Court concluded that despite “the
procedural irregularities of this case,” it was required to
address the federal question as to all of Munchinski‟s
Brady claims. The court could not then have relied
exclusively on its procedural rulings to resolve the Group
2 and Group 3 claims. Indeed, the court repeats several
times, using mandatory language, that it was required to
reach the merits of all of Munchinski‟s claims, stating:
(1) that it “cannot confine [its] analysis only to newly
acquired evidence that was timely presented,” Id. at 148;
(2) that “a timely asserted claim cannot be found to be
invalid simply because part of the evidence that supports
the PCRA court‟s ruling was submitted too late to form
the basis of an entirely separate claim,” Id. at 149; (3)
that it “cannot review the PCRA court‟s ruling on a
diminished record,” Id.; and (4) that it “must therefore
discuss all of the evidence on which that court relied on
granting relief,” Id. at 162.
Despite Munchinski‟s procedural error, the
Superior Court concluded that it was required to consider
the materiality of all of the evidence raised in the PCRA
III petition. Logically speaking, the procedural ruling
was not sufficient to support the court‟s judgment. That
is, the court could not avoid analyzing the merits of
Munchinski‟s Group 3 claims on the basis of their
timeliness. Indeed, the court specifically rejected that
possibility. See id. at 148 (“We conclude that we cannot
58
confine our analysis only to newly acquired evidence that
was timely presented [under § 9545(b)(2)].” (emphasis
added)).
This is not a case where addressing “any
independent federal ground for the decision could not
affect the judgment and would therefore be advisory.”
Coleman, 501 U.S. at 729. Munchinski‟s habeas petition
was directed at the Superior Court‟s Brady analysis of the
Group 1 and Group 3 claims—an analysis implicating
federal law that the Superior Court apparently believed it
was required to conduct. If we disagree with the
Superior Court‟s application of federal law, and we do,
the Superior Court‟s judgment cannot be sustained. See
Smith v. Freeman, 892 F.2d 331, 336-37 (3d Cir. 1989)
(holding that there was no procedural default even
though a petition was possibly untimely, because the
procedural error was not sufficient to support the state
court‟s judgment; the state court determined that it was
“bound under Pennsylvania law to reach the merits”
despite any procedural error). As such, federalism and
comity do not prevent us from considering the evidence
giving rise to the Group 3 claims.
When pressed on this point at argument, the
Commonwealth argued that the Court‟s discussion of the
federal issues were simply alternative grounds for its
judgment. To be sure, a state court can speak to a federal
issue in the alternative, so long as it is clear from the face
of the opinion that the state law ruling is sufficient to
59
support its judgment. See Coleman, 501 U.S. at 733.
Here, however, the state law ruling was not sufficient to
support its judgment—the court‟s Brady analysis was
necessary to its holding. An issue that is necessary to the
court‟s judgment cannot be “an alternative basis” for the
ruling. Without the analysis of federal law, the Superior
Court could not have reached the conclusion that it
reached.
Even if it were possible to read the discussion of
federal law as an alternative basis for the court‟s holding,
we do not think that the opinion is sufficiently clear to
overcome the presumption against procedural default.
The Superior Court did not “clearly and expressly” rely
on state procedural law as grounds for its judgment. As
stated above, there is language in the opinion suggesting
that Munchinski‟s procedural error was not a sufficient
basis to support its judgment. The Superior Court did not
indicate that its discussion of federal law was merely an
alternative basis for its holding. Because “the adequacy
and independence of any possible state law ground is not
clear from the face of the opinion,” Coleman, 501 U.S. at
735, we conclude that the District Court erred by
concluding that Munchinski‟s Group 3 claims were
procedurally defaulted. Absent any procedural default,
the District Court did not err when it included the Group
3 claims in its merits analysis.
C.
60
Because the instant habeas petition is a second or
successive petition, Munchinski must also demonstrate
“by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.” 28
U.S.C. § 2244(b)(2)(B)(ii). Other courts have referred to
this statute as requiring a “gateway” showing of actual
innocence. See, e.g., United States v. MacDonald, 641
F.3d 596, 611-12 (4th Cir. 2011).
1.
The Commonwealth argues that Munchinski has
failed to prove by clear and convincing evidence that no
reasonable juror could vote to convict him in light of his
newly-discovered evidence. We generally review the
District Court‟s “probability determination that no
reasonable juror would convict de novo.” Gomez v.
Jaimet, 350 F.3d 673, 679 (7th Cir. 2003); see also
Sweger v. Chesney, 294 F.3d 506, 522 (3d Cir. 2002).
At the Retrial, the Commonwealth built an
elaborate theory of the case. It argued that the murders
were drug related—that Munchinski, Scaglione, and
Bowen drove to Gierke‟s cabin in a lime green Gran
Torino in order to resolve a drug dispute. The
Commonwealth presented a straightforward timeline of
events, arguing that over the course of a few hours that
night, Scaglione raped Gierke, Munchinski raped Alford,
and then almost immediately afterwards, Gierke and
61
Alford were shot. The Commonwealth‟s theory was
supported exclusively by Bowen‟s testimony. Indeed,
the Commonwealth concedes as much in its briefing
before this court. See Commonwealth Br. 41
(“Appellants acknowledge that Bowen‟s testimony was
central to the prosecution case.”).
We acknowledge that mere impeachment evidence
is generally not sufficient to show actual innocence by
clear and convincing evidence. Cf. Sawyer v. Whitley,
505 U.S. 333, 349 (1992). Munchinski‟s newly-
discovered evidence, however, is not mere impeachment
evidence. Rather, Munchinski‟s evidence clearly and
convincingly shows that the murders could not have
happened as the Commonwealth proposed at trial. See
Keith v. Bobby, 551 F.3d 555, 558 (6th Cir. 2009)
(differentiating between habeas petitions premised on
mere impeachment evidence, and petitions based on
“new evidence that . . . directly contradicted the
government‟s case in chief”). The Powell Report and the
Goodwin/Powell Report both suggest that the
Commonwealth‟s timeline is inconsistent with the
physical evidence from the autopsy.19 The Bates Report
19
The Commonwealth points to credibility issues
concerning some of the new evidence that Munchinski
raises in his habeas petition, arguing that Munchinski
cannot surpass § 2244(b)(2)(B)(ii)‟s high standard when
his proffered evidence has credibility problems.
62
II suggests that Bowen, the only witness who could
provide any details supporting the Commonwealth‟s
theory of the case, was not even in Pennsylvania the
night of the murders, and makes clear that the police
were aware of this fact.
Besides Bowen‟s testimony, the only evidence
linking Munchinski to the murders was (1) testimony
from Lexa, Dahlmann, and Furr, three acquaintances who
Certainly, when analyzing the record for actual
innocence purposes, “the court must give due regard to
any unreliability of the evidence, and may have to make
some credibility assessments[.]” MacDonald, 641 F.3d
at 612-13 (citations and internal quotation marks
omitted). There are minor credibility issues with some of
Munchinski‟s evidence. For example, Powell claimed at
the PCRA III hearings that he never stated that the rapes
occurred at least 24 hours prior to the murders. The task
of weighing the credibility of Munchinski‟s new
evidence, however, would ultimately lie with the jury.
The jury would have to determine whether to credit
Powell‟s PCRA testimony, over two decades after the
initial autopsy, or two statements made soon after the
autopsies, and recorded by police officers with no
motivation to misstate the facts. Our role is not to weigh
the credibility of each witness; rather, we must consider
all of the relevant evidence and account for any
credibility issues in our analysis.
63
testified that Munchinski confessed to them in a bar in
January 1978; and (2) testimony from Thomas, a
jailhouse informant who claimed that Munchinski
confessed to him in jail. The Mangiacarne/Carbone
Report provided the jury evidence that Dahlmann, Lexa,
and Furr had a motivation to fabricate Munchinski‟s
supposed confession, to keep Dahlmann‟s ex-husband
Wiltrout from being implicated in the crime. While
Munchinski was aware that Wiltrout was a suspect in the
murders early in the investigation, he could not
effectively cross-examine Dahlmann, Lexa, and Furr
about Wiltrout absent any evidence that Wiltrout was a
serious subject of the investigation. The
Mangiacarne/Carbone Report would have made clear to
the jury that if the murders were not attributed to
Munchinski, Wiltrout would be high on the list of
potential suspects.
Again, the Mangiacarne/Carbone Report does
more than just impeach Dahlmann, Lexa, and Furr. The
report presents an alternative theory that better fits the
verifiable facts of the case than the Commonwealth‟s
theory. Carbone‟s account suggested that Wiltrout and at
least one acquaintance travelled to Bear Rocks for a drug
deal. At some point, the drug deal went bad and Wiltrout
shot Alford and Gierke. Commonwealth App‟x 220.
There was no inconsistency between this account and
Powell‟s statements concerning the timing of the rapes.
The fact that Carbone‟s account supported a theory of the
64
case that better fit with other recovered evidence is a
critical point. In House v. Bell, 547 U.S. 518 (2006), the
Supreme Court found that the petitioner made a gateway
showing of actual innocence in part because the
petitioner‟s newly-discovered evidence identified an
alternate suspect and supported a more appropriate theory
of the case. See id. at 548-53.
The Commonwealth would essentially be asking
the jury to convict based on: (1) an implausible theory of
the case inconsistent with other evidence in the record;
(2) self-serving testimony from three acquaintances
whose testimony kept Dahlmann‟s ex-husband from
becoming a target in the investigation; and (3) testimony
from a jailhouse informant. Critically, the jury would be
left without a theory of the case to explain the actual
murder itself—testimony from Dahlmann, Lexa, Furr,
and Thomas was limited to what happened after the
murders, and did not provide the jury with a detailed
account of what actually transpired in Bear Rocks.
On the other hand, Munchinski would have offered
the jury alternative theories of the case without the
problematic inconsistencies in Bowen‟s account.
Considering all of the evidence that would have been
presented to the jury, Munchinski has clearly and
convincingly demonstrated that but for the
Commonwealth‟s Brady violations, no reasonable juror
could rationally believe beyond a reasonable doubt that
Munchinski committed the Bear Rocks Murders.
65
The Commonwealth‟s case against Munchinski
was always close, even without the critical pieces of
evidence that the Commonwealth unlawfully suppressed.
When the jury at the First Trial was presented with
virtually the same evidence, they could not reach a
verdict. Giving “due regard to any unreliability of”
Munchinski‟s new evidence, we are satisfied that
Munchinski has made a truly persuasive demonstration of
his “actual innocence.” Schlup v. Delo, 513 U.S. 298,
328 (1995). When all of the evidence is considered as a
whole, we are convinced that no reasonable juror could
rationally vote to convict. We thus conclude that
Munchinski has made a gateway showing of actual
innocence, under the clear and convincing evidence
standard required under § 2244(b)(2)(B)(ii).
2.
The Commonwealth also argues that Munchinski
has not “support[ed] his allegations of constitutional error
with new reliable evidence.” Schlup, 513 U.S. at 324.
The Commonwealth concedes that Munchinski has
presented “new” evidence, but argues that Munchinski‟s
evidence is not “reliable” within the meaning of Schlup.
Commonwealth Br. at 36 (“Although Munchinski
presented new evidence, nothing about this evidence
indicates that it is particularly reliable.”). We review de
novo whether a petitioner‟s evidence is sufficient to
66
satisfy Schlup. See McCoy v. Norris, 125 F.3d 1186,
1190 (8th Cir. 1997); see also Sweger, 294 F.3d at 522.20
In Schlup, the Supreme Court emphasized that a
petitioner asserting actual innocence in a second or
successive habeas petition based on newly-discovered
20
We have not had occasion in this circuit to definitively
determine whether § 2244(b)(2)(B)(ii) incorporates all of
the “features of the standards spelled out in [ ] pre-
AEDPA decisions . . . [that] oblige[ ] the prisoner to
proffer some new evidence in support of his habeas
corpus claim.” MacDonald, 641 F.3d at 612. We have
previously held that AEDPA “built on,” rather than
supplanted, the “abuse-of-the-writ” doctrine that
preceded AEDPA. See Goldblum v. Klem, 510 F.3d 204,
216 & n.8 (3d Cir. 2007). Though Goldblum does not
explicitly resolve the question at issue here—
whether§ 2244(b)(2)(B)(ii) incorporates Schlup‟s
requirement of new and reliable evidence—it does
suggest that AEDPA did nothing to displace that
requirement from Schlup. Consequently, we are inclined
to agree with the Fourth Circuit that § 2244(b)(2)(B)(ii)
incorporates Schlup, and that a petitioner filing a second
or successive petition must provide new and reliable
evidence in support of his or her claims. See
MacDonald, 641 F.3d at 612. Because this issue has not
been briefed by the parties, however, we will not address
it here.
67
evidence must rely on “reliable evidence-whether it be
exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence[.]” Schlup, 513
U.S. at 324. The Commonwealth argues that because all
of Munchinski‟s evidence merely attacks Bowen‟s
credibility, his evidence does not fit within the categories
of permissible evidence cited in Schlup, and thus cannot
be “reliable.”
Schlup‟s three categories are not an exhaustive list
of the types of evidence that can be “reliable.” Indeed,
the Supreme Court‟s own decision in House, 547 U.S. at
548-53, suggests that other types of evidence can pass the
high bar set by Schlup. In House, the Supreme Court
spent a large portion of its analysis on evidence that
implicated another suspect. Id. This evidence is very
similar to the evidence raised by Munchinski—the
petitioner‟s evidence implicates other suspects and casts
serious doubts on the viability of the Commonwealth‟s
theory of the case. Moreover, Munchinski has presented
evidence that is reliable under Schlup. The Powell
Report and the Goodwin/Powell Report are “exculpatory
scientific evidence” because both suggest that Alford had
been raped “at least 24 hours prior” to his death.
When pressed about these two articles of evidence
at oral argument, the Commonwealth argued that even
though they might appear to be reliable, they are in fact
not reliable because they conflicted with Powell‟s
testimony during the PCRA proceedings. The
68
Commonwealth argued that because Powell later
disavowed the claims in the Powell Report and the
Goodwin/Powell Report, that those reports cannot be
reliable. Schlup, however, does not require a habeas
court to play the role of the jury and weigh all potentially
countervailing evidence when considering whether a
particular article of evidence is reliable. That weighing
exercise is undertaken when the court considers whether
any reasonable juror would vote to convict based on all
of the evidence in the record. We conclude that the
Goodwin/Powell Report and the Powell Report are
“reliable,” within the meaning of Schlup.
Similarly, the Bates Report II and the
Dunkard/Proud Report are “reliable” evidence within the
meaning of Schlup. The former is a police report relating
an interview of someone with direct personal knowledge
of Bowen‟s whereabouts. The latter is a police report
relating an interview with a police dispatcher. Although
neither is a sworn affidavit, both reports document what
were, at the time, non-controversial facts that were
recorded by the police themselves. We believe that the
particular context surrounding these reports sufficiently
guarantee their reliability in this case. Nothing in the
record suggests that either the police or the declarants
had any reason to misstate the facts in either of these
reports at the time the reports were created.
The Commonwealth is correct that mere
impeachment evidence is generally not sufficient to
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satisfy the Schlup standard. See Sawyer, 505 U.S. at 349.
But like the Powell Report and the Goodwin/Powell
Report, both the Bates Report II and the Dunkard/Proud
Report are not merely impeachment evidence. As such,
they call into question the Commonwealth‟s entire theory
of the case. Indeed, the prosecution appears to have
recognized this, by highlighting the portion of the Bates
Report II suggesting that Bowen had left for Oklahoma
prior to the murders. Munchinski provides the type of
evidence required of a second or successive petition
under § 2244(b)(2)(B)(ii).
Based on all of this evidence, we conclude that
Munchinski has “present[ed] new, reliable evidence that
was not presented at trial.” Houck v. Stickman, 625 F.3d
88, 93 (3d Cir. 2010) (citation omitted). Assuming that
§ 2244(b)(2)(B)(ii) incorporates Schlup‟s requirement
that a petitioner support his or her constitutional claims
with new and reliable evidence, we are thus satisfied that
Munchinski has presented evidence that satisfied
Schlup‟s high standard.
III.
The Commonwealth restricted its appeal to three
issues: (1) whether the District Court erred by equitably
tolling the statute of limitations for Munchinski‟s Group
3 claims; (2) whether the District Court erred by excusing
the procedural default of his Group 3 claims; and (3)
whether Munchinski has made a gateway showing of
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actual innocence under § 2244(b)(2)(B)(ii). We will
affirm the judgment of the District Court, although we
depart from its reasoning. See Ross v. Dist. Att’y of the
Cnty. of Allegheny, 672 F.3d 198, 213 n.12 (3d Cir.
2012) (noting that we can affirm on an alternative basis).
First, we agree with the District Court that
Munchinski was entitled to equitable tolling for his
Group 3 claims. Second, we conclude that Munchinski
did not procedurally default his claims, and thus that
there was no need to decide whether to excuse his alleged
default. Finally, we conclude that Munchinski has
shown, by clear and convincing evidence, that no
reasonable juror would vote to convict him based on all
of the evidence that should have been introduced at trial,
absent the Commonwealth‟s constitutional violations.
We also conclude that Munchinski has introduced new
and reliable evidence in support of the constitutional
claims in his second or successive petition. We
acknowledge that both the Supreme Court and Congress
have set a high standard for second or successive habeas
petitions that “permits review only in the „extraordinary‟
case.” House, 547 U.S. at 538 (internal quotation marks
omitted) (quoting Schlup, 513 U.S. at 327).
“Extraordinary” is how Judge Feudale characterized this
case when it was before him at the PCRA III stage, and
“extraordinary” is how we view it for second or
successive habeas purposes.
Though our reasoning differs from that of the
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District Court, we ultimately agree with that court that
the procedural irregularities of this case do not preclude
us from reaching the merits of Munchinski‟s argument
that the Superior Court unreasonably applied Brady as to
his Group 1 and Group 3 claims—an argument that has
been expressly and rightly conceded by the
Commonwealth. It seems that the Commonwealth‟s
decision to appeal the District Court‟s judgment may
have been motivated by considerations external to this
particular case, because it is difficult to discern any
significant justification on this record for continuing to
defend what is now acknowledged by all to be a badly
tainted and highly suspect conviction. We will affirm the
judgment of the District Court granting Munchinski a
writ of habeas corpus pursuant to § 2254(d)(1). The
Commonwealth must either release Munchinski or retry
him within 120 days of our opinion.
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