Sistrunk v. Rozum

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 09-2495
_____________

EDWARD SISTRUNK,

Appellant

v.

GERALD ROZUM;
THE DISTRICT ATTORNEY OF THE
COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2:06-cv-05630)
District Judge: Hon. John R. Padova

Submitted under Third Circuit LAR 34.1(a)
October 28, 2011

Before: SLOVITER, GREENAWAY, JR. and ALDISERT,
Circuit Judges.
 (Filed: March 20, 2012)

Teri B. Himebaugh, Esq.
220 Stallion Lane
Schwenksville, PA 19473

Attorney for Appellant

Molly Selzer Lorber, Assistant District Attorney
Thomas W. Dolgenos, Chief, Federal Litigation
Ronald Eisenberg, Deputy District Attorney, Law Division
Joseph E. McGettigan, III, First Assistant District Attorney
R. Seth Williams, District Attorney
Philadelphia District Attorney’s Office
Three South Penn Square
Philadelphia, PA 19107-3499

Attorneys for Appellees
____________

OPINION OF THE COURT
____________

ALDISERT, Circuit Judge.

This appeal seeks review of a denial of a petition for
habeas corpus by Edward Sistrunk, an inmate in
Respondents’ custody. After pursuing and exhausting his
state court avenues for appeal, Sistrunk sought habeas relief
from the United States District Court for the Eastern District
of Pennsylvania on the basis of newly discovered evidence of
his “actual innocence.” The District Court concluded that the
Pennsylvania state courts’ disposition of Sistrunk’s appeal

2
was not contrary to, nor an unreasonable application of,
clearly established federal law, and denied his petition. We
will affirm.

The certificate of appealability (“COA”) limits our
review to a single issue: whether Sistrunk’s habeas petition
was timely filed according to 28 U.S.C. § 2244(d)(1)(D). By
sheer counting of calendar days, it is undisputed that
Sistrunk’s petition was filed long after his one-year timeliness
period expired. But because the Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”) provides several avenues for
petitioners to satisfy timeliness, Sistrunk’s argument requires
us to determine whether he is entitled to statutory tolling or
different types of equitable tolling that might save his claim.
Specifically, Sistrunk contends that he is entitled to: (1)
statutory tolling on the basis of uncovering new, exculpatory
evidence; (2) equitable tolling due to government witness
tampering; or (3) equitable tolling because he is actually
innocent.

We conclude that Sistrunk does not qualify for these
tolling exceptions. Sistrunk’s delays are inexcusable, his
evidence is not “new,” and even if we permitted equitable
tolling for actual innocence, Sistrunk’s proofs of “actual
innocence” fall short. We will, therefore, affirm the District
Court’s judgment.

I.
A.
In the early morning hours of July 23, 1993, Edward
Sistrunk used his automobile horn and headlamps to harass a
car driven by Julmaine Moody on a residential road in

3
Philadelphia, Pennsylvania. 1 Both cars pulled over. An
altercation between the cars’ occupants broke out, but ceased
abruptly when a passenger in Moody’s car recognized a
passenger in Sistrunk’s car as an acquaintance. All reentered
their respective vehicles, and the cars returned to the
roadway. Sistrunk then positioned his moving car alongside
Moody’s, drew a revolver, aimed at a passenger in Moody’s
car with whom he had had a heated exchange, and fired.
Missing its intended mark, the bullet struck the unarmed and
pregnant Moody in the head, killing her.

Sistrunk evaded capture for three months until his
arrest in North Carolina. Multiple witnesses identified
Sistrunk as the shooter, including Sistrunk’s intended victim,
David Snyder. Out of the many people who implicated
Sistrunk in the murder, one witness of particular significance
here, Gregory Anderson, gave a statement to police and
testified at a preliminary hearing on January 6, 1994, that he
was in Sistrunk’s car at the time of the murder and that
Sistrunk was the murderer. Anderson disappeared before trial
and therefore did not testify, but Sistrunk’s defense counsel
successfully argued to admit Anderson’s hearing testimony at
trial. The trial court found as a fact that all witnesses agreed
Sistrunk was the shooter.

On May 18, 1995, the court sentenced Sistrunk to life
imprisonment for murdering Moody. In addition, the court

1
AEDPA requires us to presume that the state courts’ factual
findings are valid and binding, absent clear and convincing
evidence to the contrary. See 28 U.S.C. § 2254(e)(1). We thus
relate the relevant facts as found by the Pennsylvania state
courts.

4
sentenced Sistrunk to concurrent imprisonment terms for
possession of an instrument of crime, reckless endangerment,
and simple assault. The Pennsylvania Superior Court affirmed
Sistrunk’s sentence on July 19, 1996. The Pennsylvania
Supreme Court then denied Sistrunk’s petition for allowance
of appeal on December 11, 1996. His conviction became final
on March 11, 1997, when Sistrunk’s deadline for filing a
petition for certiorari in the United States Supreme Court
passed. See 28 U.S.C. § 2101(c); Kapral v. United States, 166
F.3d 565, 575 (3d Cir. 1999).

B.
Sistrunk filed a petition for relief under the
Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa.
Cons. Stat. Ann. §§ 9541-9546, on December 11, 1997,
contending that his appellate counsel was ineffective for
failing to challenge the effectiveness of his trial counsel. The
PCRA court dismissed Sistrunk’s petition because Sistrunk
had already litigated the issues on direct appeal. The
Pennsylvania Superior Court then affirmed this dismissal on
June 19, 2000.

Sistrunk filed a second PCRA petition on June 26,
2002, contending that newly discovered evidence entitled him
to a new trial or evidentiary hearing. Sistrunk alleged that he
had uncovered evidence proving that another person had
confessed to shooting Moody. Sistrunk claimed to have first
heard on April 29, 2002, that Damon Rodriguez—now
deceased—had told Manuel Rodriguez in 1993 that Damon
had driven the car on the night of the murder and had shot
Moody. The PCRA court dismissed this petition as untimely
on July 9, 2003. The Superior Court affirmed this dismissal
on January 26, 2005. The Pennsylvania Supreme Court then

5
denied Sistrunk’s petition for allowance of appeal on October
4, 2005.

On August 18, 2006, Sistrunk filed a third PCRA
petition, asking the PCRA court to vacate his conviction
based on more newly discovered evidence of his actual
innocence. In this petition, Sistrunk alleged that his attorney
received a letter from Gregory Anderson—Sistrunk’s
cousin—on June 22, 2006, admitting to perjuring himself at
Sistrunk’s preliminary hearing by testifying that Sistrunk was
the shooter. Anderson further claimed that police
investigators coerced him into giving false testimony,
specifically against Sistrunk, by threatening to charge
Anderson with conspiracy. After testifying to Sistrunk’s
detriment at the preliminary hearing and then failing to appear
at trial, Sistrunk claimed that Anderson felt the need to finally
clear his conscience.

C.
This third PCRA petition pended in Pennsylvania state
court when Sistrunk filed his federal petition, on December
22, 2006. In it, Sistrunk raised two claims for relief based on
newly discovered evidence of innocence: (1) the Damon
Rodriguez confession, which Sistrunk learned about on April
29, 2002; and (2) the Gregory Anderson letter, which Sistrunk
received on June 22, 2006. On July 5, 2007, Magistrate Judge
Hey issued a Report and Recommendation, advising
dismissal of both claims. In an Order-Memorandum filed on
October 31, 2007, the District Court for the Eastern District
of Pennsylvania adopted the Recommendation to dismiss
Sistrunk’s Rodriguez claim, but, because Sistrunk’s third
PCRA petition still pended, the District Court stayed the
Anderson claim. On October 30, 2008, the District Court

6
recommitted the claim to Magistrate Judge Hey for a
Supplemental Report and Recommendation.

On February 24, 2009, Magistrate Judge Hey
recommended that Sistrunk’s Anderson claim be dismissed as
time-barred. The magistrate judge concluded that: Sistrunk’s
conviction became final on March 11, 1997; Sistrunk’s
federal petition was filed on December 22, 2006, seven years
past AEDPA’s time limit, see 28 U.S.C. § 2244(d)(1); the
Anderson letter was not “newly discovered evidence” under
§ 2244(d)(1)(D), and thus did not create a new one-year
limitations period; Sistrunk’s third PCRA petition did not toll
the AEDPA limitations period; Sistrunk was not entitled to
equitable tolling; and no COA should issue.

Sistrunk filed his objections with the District Court on
March 5, 2009. The District Court concluded that none of
Sistrunk’s objections had merit, affirmed the magistrate
judge’s denial of a COA, and dismissed Sistrunk’s habeas
petition with prejudice on April 21, 2009. Sistrunk then filed
an application for a COA with this Court under 28 U.S.C.
§ 2253(c)(1), which we granted on March 7, 2011.

II.
The District Court had jurisdiction under 28 U.S.C.
§ 2254(a). As discussed below in Part III, we have
jurisdiction under 28 U.S.C. §§ 1291 and 2253(c).
We apply a mixed standard of review. We scrutinize
jurisdictional questions and legal conclusions under a plenary
standard of review. See Lambert v. Blackwell, 387 F.3d 210,
231 (3d Cir. 2004). On the merits, however, “a federal court
is limited to deciding whether a conviction violated the
Constitution, law, or treaties of the United States.” Estelle v.

7
McGuire, 502 U.S. 62, 67-68 (1991). “[A] state court’s
interpretation of state law . . . binds a federal court sitting in
habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
Under AEDPA, moreover, we must deny the writ unless the
petitioner shows that the state court conviction unreasonably
applied clearly established federal law, was contrary to
clearly established federal law, or was based on an
“objectively unreasonable” determination of the facts in light
of the evidence. See 28 U.S.C. § 2254(d); Williams v. Taylor,
529 U.S. 362, 409-410 (2000).

III.
Before turning to Sistrunk’s substantive arguments, we
address briefly—and ultimately dismiss—the government’s
contention that we lack jurisdiction because Sistrunk’s habeas
petition does not state a constitutional claim. This argument
attacks our jurisdiction on two levels. First, the government
contends that the absence of a constitutional claim renders the
COA defective, barring us from considering Sistrunk’s
claims. Second, the government argues that Sistrunk’s
petition points only to his imprisonment-while-actually-
innocent as a constitutional harm. Because, in the
government’s view, a freestanding claim of innocence is not a
proper “basis for federal habeas relief absent an independent
constitutional violation occurring in the state trial,” Albrecht
v. Horn, 485 F.3d 103, 121 (3d Cir. 2007) (citing Herrera v.
Collins, 506 U.S. 390, 400 (1993)), Sistrunk’s petition—even
if it were timely—would lack the requisite underlying
“independent constitutional violation” needed for our
jurisdiction.

We conclude that our exercise of jurisdiction is proper.
First, the United States Supreme Court’s opinion in Gonzalez

8
v. Thaler, 132 S. Ct. 641 (2012), destroys the government’s
attack on the COA. Even a defective COA does not thwart
our jurisdiction. Rather, “[o]nce a judge has made the
determination that a COA is warranted”—which has
happened here—“the COA has fulfilled [its] gatekeeping
function.” Id. at 650. No further scrutiny of the COA is
necessary. See id. at 652 (“[Section] 2253(c)(3) is a
nonjurisdictional rule . . . .”).

Second, we need not address whether a freestanding
claim of actual innocence would be cognizable on federal
habeas review because that is not all that Sistrunk’s petition
offers. 2 Sistrunk’s claims of innocence, rather, expressly

2
Neither this Court nor the Supreme Court has ever held that
a freestanding claim of innocence merits habeas relief. See,
e.g., Han Tak Lee v. Glunt, 667 F.3d 397, 403 n.5 (3d Cir.
2012) (reserving the issue expressly while permitting the
petitioner’s claim to proceed on due process grounds); United
States v. Davies, 394 F.3d 182, 191 n.8 (3d Cir. 2005)
(highlighting without ruling on the petitioner’s actual
innocence claim). Other courts have discussed the issue and
reached divergent conclusions. See, e.g., Souter v. Jones, 395
F.3d 577, 599 (6th Cir. 2005) (permitting equitable tolling for
a “credible showing of actual innocence”); Cousin v. Lensing,
310 F.3d 843, 849 (5th Cir. 2002) (rejecting an actual
innocence equitable tolling claim). Indeed, the Supreme Court
noted in discussing whether actual innocence implicates the
Constitution that “[w]hether such a federal right exists is an
open question. [Courts] have struggled with it over the years,
in some cases assuming, arguendo, that it exists while also
noting the difficult questions such a right would pose and the
high standard any claimant would have to meet.” Dist. Att’ys

9
incorporate separate constitutional violations. Sistrunk states
in his petition that he “was denied his Fourteenth and Sixth
Amendment rights,” not only because he is allegedly
innocent, but also because newly discovered evidence shows
that witnesses colluded to keep the identity of the real
murderer a secret and one witness—Gregory Anderson—
perjured himself due to government coercion. These claims
are probative of innocence, to be sure, but they also implicate
sufficiently Sistrunk’s right to due process. Indeed, “a
conviction obtained through use of false evidence, known to
be such by representatives of the State, must fall under the
Fourteenth Amendment.” Napue v. Illinois, 360 U.S. 264,
269 (1959); see Lambert v. Blackwell, 387 F.3d 210, 242 (3d
Cir. 2004) (stating that the government may not knowingly
use perjured testimony at trial). “The same result obtains
when the State, although not soliciting false evidence, allows
it to go uncorrected when it appears.” Napue, 360 U.S. at 269;
see United States v. Agurs, 427 U.S. 97, 103 (1976) (“[T]he
Court has consistently held that a conviction obtained by the
knowing use of perjured testimony is fundamentally unfair.”);
Maxwell v. Roe, 628 F.3d 486, 506 (9th Cir. 2010) (granting
habeas relief based on an actual innocence claim for a
conviction stemming in part from perjured testimony).
Moreover, the teachings of Brady v. Maryland, 373 U.S. 83,
87 (1963), require prosecutors to disclose any benefits that
are given to a witness, including any possible lenient
treatment in a given case. Although the veracity of Sistrunk’s
allegations may be in question, the constitutional violations
they encompass comprise an integral and unavoidable part of
Sistrunk’s new-evidence-of-innocence claims: on the way to

Office for the Third Judicial Dist. v. Osborne, 129 S. Ct.
2308, 2321 (2009) (citations omitted).

10
demonstrating his innocence, Sistrunk’s new evidence would
show also that the government violated Sistrunk’s due
process rights. Such a showing would unquestionably
establish one or more “independent constitutional violations”
and therefore would grant us jurisdiction to review the merits
of Sistrunk’s petition if—and only if—it is timely. 3 We turn
now to address that question.

IV.
There can be no dispute that Sistrunk’s petition would
be time-barred without AEDPA’s tolling exceptions.
Sistrunk’s conviction became final on March 11, 1997. See
28 U.S.C. § 2244(d)(1). He had until one year from that date
to file a habeas petition. Id. § 2244(d)(1)(A). Sistrunk did not
file his federal petition, however, until December 22, 2006,
many years too tardy. Sistrunk then rushed to raise three
tolling arguments, any one of which would salvage his
otherwise-barred petition. He contends that he is entitled to:
(1) statutory tolling of his entire petition under § 2244(d)(2)
for the time during which his state postconviction review
pended; (2) equitable tolling because of the discovery of new
evidence; or (3) equitable tolling because he is actually
innocent. We ultimately reject each, and will affirm the
District Court’s judgment.

A.
Sistrunk contends first that his petition is subject to
AEDPA’s express statutory tolling provision, which permits
tolling for the time during which a properly filed application

3
As discussed infra, because we conclude that Sistrunk’s
petition is not timely, we do not reach the merits of his claims
to determine whether such a violation actually occurred.

11
for state postconviction review is pending in state courts. See
28 U.S.C. § 2244(d)(2); Swartz v. Meyers, 204 F.3d 417, 420
(3d Cir. 2000). Sistrunk’s application was indeed
“pending”—he filed a new petition for review in the state
PCRA court within 60 days of receiving the letter. The issue
here is whether the application was “properly filed.”
Although AEDPA permits a tardy state court filing upon the
discovery of new evidence, see 28 U.S.C. § 2244(d)(1)(D),
Sistrunk’s contention depends on whether the Anderson letter
fits within AEDPA’s definition of “new” evidence: the date
on which the “factual predicate” of the evidence was known.
We hold that it does not.

The District Court concluded that Sistrunk’s petition
for state review was not properly filed because the Anderson
letter did not constitute newly discovered evidence under
§ 2244(d)(1)(D). Rather, the District Court held, Sistrunk
knew of Anderson’s perjury no later than January 1994, over
a decade before he supposedly uncovered this evidence.

Sistrunk contends that this holding was in error,
because he did not learn of the factual predicate underlying
Anderson’s letter until June 22, 2006, when his attorney
received it. His knowledge of his own innocence
notwithstanding, Sistrunk insists that he could not have
introduced evidence about Anderson’s initial reticence to
come forward, the perjury of a key witness, police
misconduct, or witness tampering until his receipt of
Anderson’s revelations. 4 The government responds that the

4
Assuming Anderson’s letter succeeds in tolling Sistrunk’s
time to file, Sistrunk also contends that this letter permits him
to bootstrap the Rodriguez claim into his petition. See Sweger

12
“facts” of Sistrunk’s innocence and Anderson’s perjury were
long ago determined, and the appearance of a new witness to
testify to that fact does not restart the limitations period.

Because the Anderson letter does not fit within
AEDPA’s definition of “new” evidence, we agree with the
District Court that Sistrunk’s petition was improperly filed,
and thus, cannot toll AEDPA’s limitations period. Evidence
becomes “known” on “the date on which the factual predicate
of the claim or claims presented could have been discovered
through the exercise of reasonable diligence.” 28 U.S.C.
§ 2244(d)(1)(D). Here, the PCRA court found that Sistrunk
not only could have known, but actually did know of the vital
facts underlying both the Anderson letter and Rodriguez
affidavit—i.e., Damon Rodriguez was the real shooter and
Gregory Anderson perjured himself—long before the filing of
his habeas petition. See App. 00092. This finding by the state
court binds us. See Warren v. Kyler, 422 F.3d 132, 136 (3d
Cir. 2005) (“‘[I]t is not the province of a federal habeas court
to reexamine state-court determinations on state-law
questions.’” (quoting Estelle, 502 U.S. at 67-68)). Because
evidence that is “previously known, but only newly available”
does not constitute “newly discovered evidence,” United
States v. Jasin, 280 F.3d 355, 362 (3d Cir. 2002), we will not
construe the evidence of innocence Sistrunk offers as “new.”
Similarly, to the extent that the Anderson letter introduced

v. Chesney, 294 F.3d 506, 520 (3d Cir. 2002) (holding that
tolling applies to the entire petition so long as the state
proceeding attacks the same judgment as the habeas petition
does). Because we deny Sistrunk’s tolling claim related to the
Anderson letter, his attempt to revive his barred contentions
concerning the Rodriguez affidavit also fails.

13
new evidence of the reasons behind Anderson’s perjury,
“evidence known but unavailable at trial does not constitute
‘newly discovered evidence’ within the meaning of Rule 33.”
Id.

B.
Sistrunk next contends that the government’s attempt
to actively mislead him with respect to his Rodriguez
affidavit claim entitles him to equitable tolling. Because
Sistrunk cannot show both (1) extraordinarily burdensome
circumstances as well as (2) reasonable diligence in
investigating the claim, see Schlueter v. Varner, 384 F.3d 69,
78 (3d Cir. 2004), we hold that he cannot avail himself of
equitable tolling.

The District Court rejected this contention because
Sistrunk knew of Rodriguez’s guilt and Anderson’s perjury
and yet did nothing about these facts for twelve years, placing
his case far outside the bounds of “reasonable diligence.”

Sistrunk, seeking to construct an unstated declaration
of what the court meant but did not say, contends that he was
“actively misled” by the PCRA court. According to Sistrunk,
although the PCRA court dismissed his entire petition as
untimely, it did not mean to affix the label “untimely” to all
of the claims within the petition, but meant instead to dismiss
his affidavit claim on the merits. Because the court’s alleged
misstating led Sistrunk to believe his claim was dismissed as
untimely, he had thought that a federal habeas petition would
be futile. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005).
After discovering the “error” in 2006, Sistrunk then
“diligently” filed his federal petition.

14
 The government responds that reinventing language in
a judicial opinion—assuming arguendo that the opinion was
mistaken—provides no grounds for equitable tolling. 5 The
government contends, moreover, that reasonable diligence
cannot mean that a habeas petitioner may “sit quietly by,
knowing there are multiple witnesses to his version of events,
and do nothing to present this evidence to any court for years
on end.” Gov’t Br. at 39; cf. Schlup v. Delo, 513 U.S. 298,
332 (1995) (holding that courts “may consider how the timing
of the submission and the likely credibility of the affiants bear
on the probable reliability of that evidence” when considering
claims of innocence).

Both the Supreme Court and this Court agree with the
District Court that Sistrunk’s claims do not qualify for
equitable tolling. AEDPA does not provide additional
justifications for tolling its one-year time limit beyond the
specific instances listed in § 2244(d). Although we have
recognized rare situations in which equity permits tolling, see
Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (holding that
AEDPA’s time limitations are “subject to equitable tolling in
appropriate cases”); Miller v. N.J. State Dep’t of Corr., 145
F.3d 616, 617 (3d Cir. 1998) (holding that equitable tolling
may only occur when a petitioner has been extraordinarily
prevented from asserting his rights), this is not one of those
situations.

As we have explained, “[t]here are no bright lines in
determining whether equitable tolling is warranted in a given

5
The government is correct that the PCRA court indeed
rejected Sistrunk’s Rodriguez claim as untimely. See App.
00026.

15
case.” Pabon v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011).
Nevertheless, “courts must be sparing in their use of equitable
tolling,” Seitzinger v. Reading Hosp. & Medical Ctr., 165
F.3d 236, 239 (3d Cir. 1999), and should do so “only when
the principles of equity would make the rigid application of a
limitation period unfair.” Miller, 145 F.3d at 618 (internal
quotation marks and citation omitted). The Supreme Court
has provided guidance as to when the “principles of equity”
permit equitable tolling: “[A] petitioner is entitled to
equitable tolling only if he shows (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Holland, 130 S. Ct. at 2562-2563 (internal quotation marks
and citation omitted). This conjunctive standard requires
showing both elements before we will permit tolling. See
Schlueter, 384 F.3d at 78.

Here, it is readily apparent that Sistrunk cannot meet
the Holland standard, as he has shown neither diligence nor
extraordinarily burdensome circumstances. As for diligence,
Sistrunk was in the car on the night of the shooting with three
other people, one of whom—Damon Rodriguez—was the
supposed killer. One passenger, Gregory Anderson, testified
against Sistrunk. In the intervening years, Sistrunk made no
effort to get Anderson to recant his testimony or to get the
other passengers to testify. As the PCRA court concluded,
Sistrunk (a) knew of both Rodriguez’s guilt and Anderson’s
perjury and (b) did nothing about either for 12 years. When a
petitioner has knowledge of his innocence and of witnesses
who might testify to it, “[m]ere excusable neglect is not
sufficient” to show diligence. Miller, 145 F.3d at 619.
Sistrunk waited far too long to possibly claim that he has
diligently pursued this claim. See Pace, 544 U.S. at 418-419

16
(holding that a five-month delay demonstrated a lack of
diligence).

Moreover, even if we held that Sistrunk were diligent,
he has not been extraordinarily burdened or prevented from
pressing his claim. We have a high standard for
“extraordinary circumstances.” See, e.g., Pabon, 654 F.3d at
400 (holding that a defendant’s inability to speak English and
the lack of Spanish language legal materials or interpreters
constituted extraordinary circumstances). Even assuming that
the PCRA court dismissed Sistrunk’s claim on the merits, and
not for timeliness reasons, misreading a court opinion is not
an “extraordinary circumstance [that] stood in his way and
prevented timely filing.” Holland, 130 S. Ct. at 2562-2563
(citations omitted).

Sistrunk needed to show both diligence and
extraordinary circumstances to succeed on his equitable
tolling argument. He can show neither. As a result, we
conclude that the District Court correctly dismissed Sistrunk’s
first equitable tolling claim.

III.
Finally, Sistrunk contends that he is entitled to
equitable tolling on the separate ground that he is introducing
evidence of “actual innocence,” a claim that should permit
him to clear any procedural hurdles to obtaining a new
evidentiary hearing on his innocence. We disagree.
Regardless of whether we adopt the contention that Sistrunk’s
actual innocence might permit equitable tolling, we hold that
Sistrunk has not shown that the evidence he seeks to submit

17
demonstrates that he is actually innocent. We therefore will
affirm the District Court’s dismissal of Sistrunk’s petition. 6

Sistrunk contends that the evidence he now offers—the
Anderson letter and the Rodriguez affidavit—satisfies the
Supreme Court’s standard for actual innocence: that no
reasonable juror would have voted to find Sistrunk guilty had
these pieces of evidence been available at trial. See Bousley
v. United States, 523 U.S. 614, 623 (1998) (“‘Actual
innocence’ means factual innocence, not mere legal
insufficiency.” (citation omitted)). Sistrunk then argues that
this evidence of innocence entitles him to equitable tolling.
The government responds that, even if we were to hold that a
legitimate actual innocence claim could permit equitable
tolling, Sistrunk’s case falls far short of “actual innocence.”

We conclude that Sistrunk is not entitled to equitable
tolling for actual innocence because he cannot show that he
is, in fact, innocent. 7 Proving actual innocence based on new
evidence requires the petitioner to demonstrate (1) new
evidence (2) that is reliable and (3) so probative of innocence
that no reasonable juror would have convicted the petitioner.
Schlup, 513 U.S. at 324, 327; see also House v. Bell, 547
U.S. 518, 536-537 (2006). All three Schlup factors are

6
The District Court dismissed this claim entirely on the
ground that Sistrunk has not been diligent. Because Sistrunk’s
claim, as he crafts it, would trump the diligence requirement
from above, we proceed to discuss it in greater detail.
7
We do not decide whether a petitioner’s actual innocence
might permit equitable tolling because, even if it could,
Sistrunk does not meet the preliminary requirement of
demonstrating his innocence.

18
necessary for Sistrunk to prevail. See House, 547 U.S. at 536-
537. He fails each.

First, as discussed, Sistrunk’s evidence is not “new.”
Second, even if it were, it is not reliable. The Pennsylvania
PCRA court’s factual finding that Rodriguez’s affidavit is
unreliable binds us, and Sistrunk has not shown clear and
convincing evidence to the contrary. See Werts v. Vaughn,
228 F.3d 178, 196 (3d Cir. 2000). The Anderson letter, too, is
not reliable—it comes nearly a decade too tardy from another
prisoner, who is related to Sistrunk and admits to having lied
once before. Cf. Taylor v. Illinois, 484 U.S. 400, 414 (1988)
(“It is . . . reasonable to presume that there is something
suspect about a defense witness who is not identified until
after the 11th hour has passed.”); Dobbert v. Wainwright, 468
U.S. 1231, 1233-1234 (1984) (“Recantation testimony is
properly viewed with great suspicion. It . . . is very often
unreliable . . . , and most often serves merely to impeach
cumulative evidence rather than to undermine confidence in
the accuracy of the conviction.”); Landano v. Rafferty, 856
F.2d 569, 572 (3d Cir. 1988) (“Courts have historically
viewed recantation testimony with great suspicion.”). Third,
Sistrunk’s new evidence simply cannot be evaluated as so
probative of his innocence that no reasonable juror could have
convicted him. Schlup sets a supremely high bar. Neither the
recantation of a witness who did not even testify at trial nor
the second-hand retelling of a jailhouse confession can clear
it. There were several eyewitnesses to the crime, all of whom
implicated Sistrunk at trial. Adding Sistrunk’s offered
evidence into the mix would still permit a reasonable juror to
vote to convict. Sistrunk thus cannot meet Schlup’s standard
for actual innocence and cannot avail himself of equitable
tolling on that basis.

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 V.
We hold that Sistrunk’s petition is time-barred, and is
subject to neither statutory nor equitable tolling. We will
therefore AFFIRM the District Court’s judgment.

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