Sistrunk v. Rozum

Decision Date20 March 2012
Docket NumberNo. 09–2495.,09–2495.
Citation674 F.3d 181
PartiesEdward SISTRUNK, Appellant v. Gerald ROZUM; the District Attorney of the County of Philadelphia; the Attorney General of the State of Pennsylvania.
CourtU.S. Court of Appeals — Third Circuit


Teri B. Himebaugh, Esq., Schwenksville, PA, 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, Philadelphia, PA, for Appellees.

Before: SLOVITER, GREENAWAY, JR. and ALDISERT, Circuit Judges.


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 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.


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 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 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).


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 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.


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 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.


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. McGuire, 502 U.S. 62, 67–68, 112 S.Ct. 475, 116 L.Ed.2d 385 (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, 126 S.Ct. 602, 163 L.Ed.2d 407 (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, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).


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...

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