Houck v. Stickman

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 05-4580
______________

LAFOND JAMES HOUCK,
Appellant

v.

WILLIAM STICKMAN, Superintendent SCI-Pitts;
THE DISTRICT ATTORNEY OF THE COUNTY OF
ALLEGHENY;
THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
______________

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 04-00507)
Honorable Arthur J. Schwab, District Judge
______________

Argued October 4, 2010

BEFORE: SCIRICA, JORDAN, and GREENBERG, Circuit
Judges
 (Filed: November 17, 2010)
______________

Mary Gibbons (argued)
600 Mule Road
Toms River, NJ 08757-0000

Attorney for appellant

Stephen A. Zappala, Jr.
District Attorney
Michael W. Streilly
Deputy District Attorney
Rusheen R. Pettit (argued)
Ronald M. Wabby, Jr.
Amy L. Fitzpatrick
Office of the District Attorney
436 Grant Street
401 Allegheny County Courthouse
Pittsburgh, PA 15219-0000

Attorneys for appellees

______________

OPINION OF THE COURT
______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

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 This matter comes on before this Court on an appeal from
an August 15, 2005 order of the District Court entered August
16, 2005, denying appellant LaFond James Houck‟s petition for
a writ of habeas corpus and adopting as the opinion of the Court
a report and recommendation of a magistrate judge dated June
21, 2005, recommending that the Court deny the petition. The
magistrate judge filed her report and recommendation after
respondents, officers of the Commonwealth of Pennsylvania, the
appellees on this appeal, filed an answer to Houck‟s petition and
Houck, in turn, filed a traverse to the answer. The magistrate
judge, and thus the District Court, predicated a portion of the
opinion on Houck‟s failure to present certain claims in the
Pennsylvania state courts, an omission causing the magistrate
judge, and thus the District Court, to determine that they were
barred from considering those claims on their merits. Houck
appealed and we granted a certificate of appealability on the
following issue: “whether [Houck‟s] procedural default should
be excused on the basis of newly presented evidence of his
actual innocence.” Thus, we deal only with that issue and do not
review the opinion‟s disposition of the issues not procedurally
barred on their merits.

II. FACTS

On the afternoon of October 13, 1997, two masked men
dressed in black attacked Andre Freeman while he was sitting
inside his car at Grove Place, a residential area in the Hill
District of Pittsburgh. After the assailants dragged Freeman
from his car, beat him and threatened him with a firearm, they

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forced him into the trunk of their own car, a red Ford Taurus.
Freeman, however, would not fit in the trunk, so the assailants
lowered the Taurus‟s back seat thus allowing part of Freeman‟s
body to protrude into the car‟s passenger compartment.
Fortunately there were witnesses to the attack who called the
police and told them what they had seen.

Later in the evening of the same day two Pittsburgh
police officers noticed a red Taurus matching the eye witnesses‟
description and consequently the officers followed the Taurus.
Eventually its operator, Houck, drove the Taurus into a gas
station and parked. There was one passenger, Charlie Turner, in
the Taurus. After seeing the officers, Turner began walking
away from the gas station, dropping a gun and a black pullover
as he walked. When an officer pursued Turner he fled but the
police overtook and captured him. The police recovered the
gun and pullover and, in addition, in their search of Turner at the
time of his arrest, they found a mask in his right sock.

Subsequently, the police officers found Freeman, who
was partially in the trunk and partially in the Taurus‟s back seat,
a position made possible because, as we have explained, the rear
seat of the Taurus was folded down enabling Freeman to
protrude from the trunk into the back seat. Freeman, who was
bloody, told the officers that he had been shot.

A gas station attendant approached the officers and
pointed to a black Pontiac Grand Prix parked at the gas station.
One of the officers approached the Grand Prix and found
Houck, who was wearing a bloody white T-shirt and had a black
sweater in his lap, inside. The officers also found a gun nearby.

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 The police then arrested and searched Houck, finding a mask in
his pants pocket.1

Charges to which Houck pleaded not guilty were filed
against him arising from the events we have described, and a
jury trial at which Houck testified and maintained his innocence
ensued. 2 Houck explained that during the late afternoon of
October 13, 1999, he picked up his son at his school, the Mt.
Zion Christian Academy, and then took him home. Houck
testified that the blood on his T-shirt was not from an assault on
Freeman but was from his role in breaking up a fight between
his fiancée‟s mother and the mother‟s boyfriend. Houck also
testified that after that fight, Turner and two other men in the
Taurus picked him up and, after Houck and Turner dropped the
two other men off, he and Turner went to the gas station where
the police arrested him. Houck claimed that he was unaware of
the assault on Freeman and did not know that Freeman was in
the Taurus when he, Houck, was in that car.

Notwithstanding Houck‟s denials, the jury convicted him
of kidnapping, aggravated assault, carrying a firearm without a

1. Houck claims that the item retrieved from his pocket was a
skullcap.

2. At the trial the prosecution introduced evidence that after the
police took Houck to a police station and gave him his Miranda
rights, he made an oral confession that a detective recorded on
paper. Though the defense argued that Houck had not given the
statement and pointed out that he had not signed it, the Court
allowed the statement to be used at the trial.

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license, reckless endangerment, and criminal conspiracy.
Ultimately the state trial court sentenced him on the various
charges to a cumulative indeterminate term of 15 to 30 years
incarceration. Houck then appealed.

Houck asserts that he asked his appellate counsel, who
had not been his trial counsel, to pursue several issues on the
appeal of his state conviction, including his trial counsel‟s
incompetency in failing to investigate fully Houck‟s alibi but he
failed to do so. In particular, Houck believed that trial counsel
should have examined the student log book at his son‟s school
because Houck believed that it would have shown that he had
been picking up his son at the time of the assault on Freeman.3
Moreover, Houck thought that witnesses who had been at the
school could confirm his assertion about having picked up his

3. In Houck‟s brief on this appeal he indicates that after
respondents “raised the issue of procedural default in their
Answer to the petition/ amended petition [he] filed a Traverse,
attaching exhibits which established that he had requested by
letter to his original appellate counsel, that these very issues of
trial counsel‟s ineffectiveness be raised on appeal.” Appellant‟s
br. at 10. Houck‟s pinpoint citation supporting this statement is
to appendix at 136 but that page does not support his assertion.
Houck‟s traverse, however, refers to Houck‟s trial counsel‟s
failure to discover the log book and it makes clear that Houck
asked his original appellate counsel to raise some issues of trial
counsel‟s incompetency. In the circumstances, we will assume
that Houck made a request to appellate counsel to pursue the log
book issue on appeal.

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son. Appellate counsel, however, did not pursue this ineffective
assistance of counsel issue, focusing instead on other matters,
including a different ineffective assistance of trial counsel claim.
On Houck‟s appeal, the Pennsylvania Superior Court affirmed
the judgment of conviction and sentence, and the Pennsylvania
Supreme Court denied further discretionary review.

Houck then sought post-conviction relief under
Pennsylvania‟s Post-Conviction Relief Act. His petition,
however, did not address his trial counsel‟s failure to investigate
his alibi or his appellate counsel‟s failure to raise that issue on
the direct appeal, though it did address other ineffective
assistance of counsel claims with respect to his counsel on direct
appeal. Houck‟s petition was unsuccessful both in the state trial
and appellate courts.

Houck then filed a petition for a writ of habeas corpus in
the District Court. Houck‟s federal habeas corpus petition
advanced six claims,4 and he later filed an amended petition

4. In the petition Houck claimed:
Appellate counsel gave ineffective assistance for failing
to raise the claim that trial counsel gave ineffective
assistance for improperly advising appellate [sic] not to
present character testimony;
Appellate counsel gave ineffective assistance for failing
to argue that trial counsel gave ineffective assistance
for failing to request an instruction that the defense witness
had no duty to contact the police or district attorney‟s [sic];
Appellate counsel gave ineffective assistance for failing
to argue that the trial court erred, over objection, in

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asserting five additional claims.5 The relevant claims for our
purposes all assert that Houck‟s trial counsel failed to gather
evidence that would have supported his defense. Houck
asserted that his counsel had been ineffective and, in this regard,
cited Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

allowing hearsay testimony to be presented;
Trial counsel was ineffective in failing to call alibi
witness Tracy . . . ;
Trial counsel was ineffective in failing to investigate alibi
defense . . . ;
Trial counsel was ineffective for failing to investigate the
crime scene.

App. at 30-36.

5. In the amended petition Houck claimed trial counsel was
ineffective for:
Failure to investigate all the facts necessary to formulate
a plausible alibi defense;
Failure to investigate and/or interview potential witness
Everett Carmack;
Failure to go to scene of crime to locate potential
eyewitnesses;
Failure to investigate and use available
corroborating/rebuttal evidence;
Failure to investigate medical records and circumstances
surrounding
statements of Andre Freeman.

App. at 38-75.

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(1984).

Respondents opposed the petition, arguing that Houck
had not exhausted certain claims in the state courts and,
therefore, those claims were procedurally defaulted. Houck
filed a traverse admitting those claims had been defaulted, but
arguing that this default should be excused because his attorney
on his direct appeal from the conviction and sentence had failed
to raise these claims despite Houck‟s explicit request that he do
so. Accordingly, Houck relied on the “cause and prejudice
exception” to the procedural default rule as authority for the
Court to entertain his defaulted claims. The Supreme Court
explained that exception in Coleman v. Thompson, 501 U.S.
722, 750, 111 S.Ct. 2546, 2565 (1991), as follows: “In all cases
in which a state prisoner has defaulted his federal claims in state
court pursuant to an independent and adequate state procedural
rule, federal habeas review of the claims is barred unless the
prisoner can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal law . . . .”
The Supreme Court then went on to explain that an attorney‟s
ignorance or inadvertence is not cause but: “Attorney error that
constitutes ineffective assistance of counsel is cause . . . .” Id. at
753-54, 111 S.Ct. at 2566-67. To support his assertion of
counsel‟s ineffectiveness, Houck attached his correspondence
with his original appellate counsel.6

6. As we indicated above, see supra n.3, we cannot be sure that
the correspondence included a request that his counsel pursue an
alibi defense but we will assume that it did.

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 Although Houck in his traverse to the answer to the
petition did not explicitly argue that his procedural default
should be excused because of new evidence of actual innocence,
he did attach several new affidavits that he obviously intended
to establish that he was innocent of the offenses for which the
jury had convicted him. In the circumstances, we regard his
claim of actual innocence on which we granted the certificate of
appealability as preserved for review in this Court. See Hubbard
v. Pinchak, 378 F.3d 333, 337 (3d Cir. 2004).

The District Court referred Houck‟s petition to a
magistrate judge, who concluded that certain claims had not
been exhausted in the state courts and thus were barred. The
magistrate judge rejected Houck‟s argument regarding the
“cause and prejudice exception” to the procedural default
doctrine, but did not consider whether evidence of Houck‟s
actual innocence excused his procedural default in the state
courts. This omission was understandable inasmuch as Houck
did not explicitly raise an actual innocence claim in his petition
or his traverse. The magistrate judge rejected Houck‟s
remaining claims on the merits. 7

7. The magistrate judge questioned whether appellate counsel
was ineffective, but noted that even assuming that he was
ineffective Houck should have presented that claim in his post-
conviction relief proceedings in the state courts. See Murray v.
Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46 (1986)
(“Ineffective assistance of counsel . . . is cause for a procedural
default. However, we think that the exhaustion doctrine . . .
generally requires that a claim of ineffective assistance be
presented to the state courts as an independent claim before it

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 Houck filed objections to the magistrate judge‟s report
and recommendation in which he contended that the District
Court should excuse his default because he had presented new
evidence of actual innocence.8 Houck cited Schlup v. Delo, 513
U.S. 298, 115 S.Ct. 851 (1995), in support of his position. In its
order of August 15, 2005, the District Court found Houck‟s
objections “to be without merit” and adopted the magistrate
judge‟s report and recommendation without discussing Houck‟s
assertion of actual innocence. This appeal and our grant of a
certificate of appealability followed.9
The District Court had jurisdiction under 28 U.S.C. §
2254 and we have jurisdiction over the District Court‟s final
order under 28 U.S.C. §§ 1291, 2253. We are exercising
plenary review on this appeal as the District Court in this
procedural default case did not conduct an evidentiary hearing.
See Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007); Duncan
v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).

may be used to establish cause for a procedural default.”).

8. His claim of actual innocence in his objections reinforces our
determination to regard that claim as preserved for our
consideration.

9. Houck filed a motion for reconsideration in the District Court
on August 29, 2005, which the Court denied on September 9,
2005. He has not appealed from the September 9, 2005 order.

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 III. DISCUSSION

A. Excusing Default Based on Evidence of Actual
Innocence

A district court ordinarily cannot grant a petition for a
writ of habeas corpus arising from a petitioner‟s custody under a
state court judgment unless the petitioner first has exhausted his
available remedies in state court. 28 U.S.C. § 2254(b).
However, there is a narrow class of cases in which, in order to
avoid a fundamental miscarriage of justice, evidence of a
petitioner‟s actual innocence can excuse his failure to exhaust
his state court remedies. McCleskey v . Zant, 499 U.S. 467,
494, 111 S.Ct. 1454, 1470 (1991); Hubbard, 378 F.3d at 338.10
A case in which a petitioner seeks to excuse his procedural
default by advancing a claim of actual innocence is known as a
“gateway” case. See, e.g., Albrecht, 485 F.3d at 122. In a
gateway case the court initially examines the question of
whether a petitioner‟s procedural default should be excused,
thereby allowing him to present evidence of a constitutional
violation that infected his original trial. In this case the
constitutional violation that Houck sought to advance was that
he had had ineffective assistance of counsel in the state courts.
Thus, we are not dealing here with a “freestanding” claim of
innocence case in which a petitioner advances a claim of

10. The Supreme Court in House v. Bell, 547 U.S. 518, 536, 126
S.Ct. 2064, 2076 (2006), characterized a claim of actual
innocence as a “specific rule to implement” the cause and
prejudice exception to the procedural default bar.

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innocence by itself as a basis for granting him habeas corpus
relief.

In an actual innocence gateway case a petitioner must
demonstrate two things before his procedural default will be
excused. First, a petitioner must present new, reliable evidence
that was not presented at trial. Schlup, 513 U.S. at 324, 115
S.Ct. at 865. Second, a petitioner must show by a
preponderance of the evidence, “that it is more likely than not
that no reasonable juror would have convicted him in the light of
the new evidence.” Id. at 327, 115 S.Ct. at 867.11

B. What is new evidence

In Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir.
1997), a case on which respondents heavily rely, the Court said
that “evidence is new only if it was not available at trial and
could not have been discovered earlier through the exercise of
due diligence.”12 Respondents urge that we use this definition

11. The Supreme Court explained in House v. Bell, 547 U.S.
518, 538, 126 S.Ct. 2064, 2078 (2006), that the actual innocence
gateway “requires the federal court to assess how reasonable
jurors would react to the overall, newly supplemented record.”

12. In United States v. Davies, 394 F.3d 182, 191 n.8 (3d Cir.
2005), we indicated that new evidence does not necessarily
mean “newly discovered” evidence and may mean “newly
presented” evidence. Nevertheless, in that case we did “not
weigh in . . . on the „newly presented‟ versus „newly discovered‟
issues” because we did not need to do so.

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and conclude that Houck did not tender new evidence in the
District Court as he could have discovered his newly presented
affidavit evidence for use at the trial through the exercise of due
diligence. Houck is almost compelled to agree in part with
respondents because in his petition in the District Court he
claimed that his trial counsel was ineffective because he should
have discovered and then presented this evidence at the trial. Of
course, if this evidence had not been reasonably available before
trial, trial counsel would not have been ineffective for failing to
discover it and Houck‟s underlying ineffective assistance claim
should have failed as, indeed, it did, though for jurisdictional
and procedural reasons.

Yet arguably it is unfair to a petitioner to apply the
Amrine statement of the law in cases in which the petitioner
claims that he had had ineffective assistance of counsel by
reason of his attorney not discovering exculpatory evidence
when the petitioner is relying on that very evidence as being the
evidence of actual innocence in a gateway case to reach the
ineffective assistance of counsel claim. As we have indicated,
the rule that Amrine sets forth requires a petitioner, such as
Houck, in effect to contend that his trial counsel was not
ineffective because otherwise the newly presented evidence
cannot be new, reliable evidence for Schlup purposes.

We are not the first Court to recognize the petitioner‟s
dilemma in the situation that we have described, for the Court of
Appeals for the Seventh Circuit in Gomez v. Jaimet indicated
that: “Particularly in a case where the underlying constitutional
violation claimed is the ineffective assistance of counsel
premised on a failure to present evidence, a requirement that

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new evidence be unknown to the defense at the time of trial
would operate as a roadblock to the actual innocence gateway.”
350 F.3d 673, 679-80 (7th Cir. 2003). The Gomez Court dealt
with the problem by regarding evidence as new even if it was
not newly discovered as long as it was “not presented to the trier
of fact . . . . ” Id. at 680. Consequently, the Gomez Court
indicated that a court can evaluate newly presented evidence in
making a determination of whether the evidence is strong
enough to establish the petitioner‟s actual innocence. Id.

We believe, however, that Gomez‟s definition of “new”
may be too expansive as it seems to go beyond what is needed to
remedy the particular problem that that Court identified because
it is not anchored to a claim that there had been ineffective
assistance of counsel by reason of counsel‟s failure to present
evidence of the petitioner‟s innocence. On the other hand, the
Amrine definition of what is new evidence may be too narrow as
its adoption would mean that evidence that was not discovered
by an ineffective counsel could not be new evidence even
though the petitioner was relying on that very failure as the basis
for his claim. Overall we are inclined to accept the Amrine
definition of new evidence with the narrow limitation that if the
evidence was not discovered for use at trial because trial counsel
was ineffective, the evidence may be regarded as new provided
that it is the very evidence that the petitioner claims
demonstrates his innocence.13

13. The adoption of the modified Amrine definition would
parallel our recognition in Goldblum v. Klem, 510 F.3d 204,
214 (3d Cir. 2007), that sometimes a court must get ahead of
itself and address issues relating to the merits of apparently

15
 Nevertheless, in this case we stop short of applying a
modified Amrine standard because we need not do so in order to
consider Houck‟s affidavits. Instead, we will assume without
deciding that Houck‟s affidavits constitute new evidence that we
may consider on the merits in these proceedings. We can make
this assumption because, after our review of Houck‟s affidavits,
we conclude, as will be seen below, that even taking into
account this evidence he has not demonstrated that no
reasonable juror would convict him after considering the newly
supplemented record. Thus, Houck has not satisfied the Schlup
requirement to open the actual innocence door to allow his
procedurally defaulted claims to be considered on the merits.14

C. The Newly Presented Evidence

Houck submitted four affidavits, i.e., those of Consuella

procedurally barred claims in a determination of whether a
petitioner‟s claims meet the threshold Antiterrorism and
Effective Death Penalty Act of 1996 and abuse-of-the-writ
second petition standards governing whether procedurally
barred claims may be considered.

14. Although Amrine did include a claim that trial counsel
was ineffective by reason of inadequate investigation with
respect to certain witnesses who gave inculpatory evidence
implicating the petitioner but who later recanted their
incriminating testimony, the Court of Appeals did not address
the paradox we identify on this appeal.

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Simpson, Tequila Harris, Jeneen Askqua, and Kelly Edwards
with his traverse, claiming them to be newly discovered
evidence and thus, for our purposes, to be new, reliable
evidence. The affidavits of Simpson, Harris, and Askqua are
nearly identical; each one states that Mt. Zion Christian
Academy, where Houck asserted that he picked up his son on
October 13, 1997, the day of the assault on Freeman, requires
parents/guardians to sign a log book when picking up a student.
In addition, Simpson‟s affidavit states that she saw Houck at the
school with his son on October 13, 1997. She, however, does
not indicate the time of day that she saw Houck. Edwards, who
signed the fourth affidavit, indicated that she had witnessed
Freeman‟s beating and that Houck was not one of his assailants.

D. Houck‟s Newly Presented Evidence Would Not Sway
a Reasonable Juror

The District Court in its order of August 15, 2005,
adopting the magistrate judge‟s report and recommendation as
the opinion of the Court, did not indicate that it had considered
the four affidavits, even though Houck relied on the actual
innocence doctrine in his objections to the report and
recommendation, and the report and recommendation did not
mention them either.15 Accordingly, it would be reasonable for

15. As we indicated above, in the order of August 15, 2005,
adopting the report and recommendations as the opinion of
the Court, the Court set forth that Houck had filed objections
to the report and recommendation but they were “without
merit.”

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us to remand this case to the District Court with instructions to
consider Houck‟s affidavits and then make an analysis of his
claim of actual innocence. Indeed, in his brief on this appeal
Houck suggested this result as a possibility, and, at oral
argument before us in response to our suggestion that a remand
might be appropriate, Houck indicated that he would view that
outcome as a reasonable result on this appeal.

Nevertheless, we have determined not to remand the
matter. To start with, the District Court decided the case
without an evidentiary hearing, and thus that Court was in no
better position to consider the newly presented evidence than we
are.16 Second, though we could remand the matter for a plenary
hearing at which the affiants could testify, we regard the newly
presented evidence as too insubstantial to justify doing so. In
this regard, we are cognizant of the fact that Houck is seeking a
“rare” remedy that is only available in an “extraordinary” case,
Schlup, 513 U.S. at 321, 115 S.Ct. at 864; Hubbard, 378 F.3d at
338, and thus we are reluctant to protract these proceedings and
will address the significance vel non of the four affidavits
ourselves.

1. Simpson says that Houck was at his son‟s school

16. We note that Houck does not claim that he asked the
District Court to conduct an evidentiary hearing on his
petition. In any event, we see no basis to conclude that the
Court abused its discretion in not holding such a hearing and,
as we explain above, we see no reason now to order that it do
so. See Goldblum v. Klem, 510 F.3d 204, 222 (3d Cir. 2007).

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 Simpson‟s affidavit dated 4/5/05 states that on October
13, 1997, she picked up a child at Mt. Zion school and on that
date at an unspecified time she observed Houck at the school
with his son. The affidavit, however, does not explain how she
was able to identify Houck. Moreover, Simpson does not
explain the basis for her ability to identify someone she claims
to have seen more than seven years earlier in what must have
been an uneventful encounter. Of course, the affidavit‟s failure
to indicate the time of day that Simpson saw Houck is a critical
omission because it is entirely possible that Houck picked up his
child and, after dropping him off, joined in the assault on
Freeman. Clearly Simpson‟s affidavit is of limited value as it is
unlikely it would convince a reasonable juror that Houck could
not have been one of Freeman‟s assailants.

2. The affidavits of Jeneen Askqua and Tequila Harris

The affidavits of Jeneen Askqua and Tequila Harris are
of no value at all.17 Both merely state that on October 13, 1997,
the affiant had a child enrolled at the Mt. Zion school and at that
time the school required a person picking up a child to sign a log
book verifying the date and time at which he or she picked up
the child. Neither affidavit even mentions Houck or suggests
that he was at the school on October 13, 1997.18 We also note

17. Harris, who was Houck‟s fiancée, testified at the trial
about what she observed after she returned home on the night
of October 13, 1997, but did not mention the procedures at the
Mt. Zion school.

18. Harris indicates that her child, LaFond Houck, Jr., was

19
that Houck did not submit the log book to the District Court
though he had had many years after his trial before he filed his
petition in the District Court to attempt to obtain it.

Though a reading of the Askqua and Harris affidavits,
and that of Simpson as well, reveals that they explained the
student pick-up procedure at Mt. Zion and Houck‟s traverse
focuses strongly on this procedure, none of the affidavits stated
that Houck signed the book or, if he did, what time he signed it.
We are simply told that there is a log book.19 We do not think
that a reasonable juror would acquit Houck after hearing this
evidence, especially in light of all the other evidence of his guilt.

3. Witness Kelly Edwards says that Houck was not
one of the assailants

Kelly Edwards‟ affidavit describes seeing the attack on
Freeman and indicates that Houck was not one of the attackers.
But the affidavit does not set forth the affiant‟s basis for that
assertion. This is an important omission inasmuch as the
affidavit does not explain how the affiant knew and would have
recognized Houck. Moreover, witnesses at the trial testified that
Freeman‟s assailants wore masks, surely an impediment to the

enrolled at the school but does not say that Houck picked up
the child on that day.

19. At oral argument before us when the whereabouts of the
log book was discussed, Houck speculated that it might be in
the basement of the school. Nevertheless, insofar as we are
aware, Houck has not made any effort to obtain it.

20
assailants‟ identification. If the assailants wore masks, it
reasonably may be asked how did Edwards know that Houck
was not one of them? Clearly, we cannot conclude, by a
preponderance of the evidence, that a reasonable juror would
acquit Houck after hearing Edwards‟ testimony.

IV. CONCLUSION

Houck has argued that his trial counsel was ineffective
and that his appellate counsel compounded the error by failing to
address the issue of the trial counsel‟s ineffectiveness.
However, he did not raise the failings of trial counsel and
appellate counsel during post-conviction relief proceedings in
the Pennsylvania state courts with respect to the procedurally
barred matters that he wishes the federal courts to consider.
Nevertheless, Houck now asks us to excuse his procedural
default based on the strength of newly presented evidence
demonstrating his actual innocence. We have examined that
evidence and do not find it sufficient to invoke the rare and
extraordinary remedy that Houck seeks, and accordingly, we
will affirm the order of the District Court dated August 15,
2005, and entered on August 16, 2005, denying his petition for a
writ of habeas corpus.

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