Gerald Teagle v. David Diguglielmo, Supt. Sci Graterford

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2587
GERALD TEAGLE,
Appellant
v.
DAVID DIGUGLIELMO, SUPT. SCI GRATERFORD;
DISTRICT ATTORNEY, COUNTY OF PHILADELPHIA;
ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-07-cv-02805)
District Judge: Honorable Stewart Dalzell
(Opinion Filed: July 8, 2009)
Argued June 11, 2009
Before: McKEE, HARDIMAN, and VAN ANTWERPEN, Circuit Judges.
Cheryl J. Sturm, Esq. (Argued)
387 Ring Road
Chadds Ford, PA 19317
Counsel for Appellant
John W. Goldsborough, Esq. (Argued)
Three South Penn Square
Philadelphia, PA 19107

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The parties did not include the state court Notes of Testimony in the appendix,1
and we have been unable to procure them on our own. As the parties do not take issue
with the District Court’s summary of the trial testimony, we derive our discussion of that
testimony from the District Court’s opinion.
2
Counsel for Appellees
OPINION OF THE COURT
VAN ANTWERPEN, Circuit Judge.
Gerald Teagle appeals from the final order of the United States District Court for
the Eastern District of Pennsylvania denying his petition for a writ of habeas corpus. The
sole question certified to us on appeal from the order denying habeas relief is whether
Teagle is entitled to equitable tolling of the Antiterrorism and Effective Death Penalty
Act of 1996’s (“AEDPA”) statute of limitations on the basis of his contention of actual
innocence. Because Teagle fails to establish a valid claim of actual innocence, we will
affirm without deciding whether such a claim can equitably toll AEDPA’s statute of
limitations.
I.
On May 12, 1983, following a four-day bench trial in Pennsylvania state court,
Appellant Gerald Teagle and co-defendant John Hunter were convicted for the first
degree murder of Marvin York. At trial, the defendants admitted that they shot and1
killed York but testified that the killing was in self-defense as they had seen York make a

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3
move for his gun before they shot him. The Commonwealth presented testimony from
York’s longtime friend, Konrad Jett. Jett testified that he was approaching the passenger
side of York’s car when he saw Teagle and Hunter, with guns drawn, walk up to the
driver’s side, where York was seated, and each fire four to six shots at York at point
blank range. Jett then ran to the driver’s side of the car, pushed York into the passenger
seat, and began to drive to a hospital, getting about four blocks before being stopped by
police. Jett testified that he did not know of any incidents of violence involving York and
that York was not carrying a gun on the day he was killed. The Commonwealth also
called a police officer who testified that no weapons were found on York’s person, in
York’s car, or elsewhere in the vicinity of the crime scene. Another officer testified that,
immediately after the shooting, he saw Jett get into the driver’s side of York’s car and
drive away; the officer stated that, before he pulled it over, he did not observe any objects
thrown from the car.
Teagle and Hunter testified that York, on the day he was killed, had beaten them
with a gun and threatened to kill them if they did not repay him for drugs that he had
given them earlier. They claimed that, immediately before they shot York, they were
approaching his car to tell him that they needed more time to raise the money they owed
him. Teagle and Hunter said that, as they approached, they saw York reach for his
weapon and, believing he intended to kill them, they drew their weapons and shot him
multiple times. Teagle testified that as he approached York’s car he had a gun in his

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pocket, that the gun had a round in the chamber, and that the gun was “cocked,” i.e.,
ready to be fired. Teagle also noted that he knew York always carried a weapon and that,
when driving, York kept his weapon under his seat.
Teagle was convicted and, on September 20, 1984, was sentenced to life
imprisonment. On November 8, 1985, the Pennsylvania Superior Court affirmed the trial
court’s judgment on direct appeal. On August 15, 1986, and February 12, 1997, Teagle
filed unsuccessful petitions for state postconviction collateral relief. On June 28, 2004,
Teagle filed his third petition for state postconviction relief, asserting claims similar to
those presented in the habeas petition at issue. On August 25, 2005, the petition was
dismissed as untimely; this decision was affirmed by the Pennsylvania Superior Court.
The Pennsylvania Supreme Court denied allocatur on March 7, 2007. On July 5, 2007,
Teagle filed the petition for habeas corpus that is the subject of the instant appeal.
According to Teagle’s habeas petition, on March 23, 2004, Jett approached
Teagle’s sister at a funeral and stated that he wanted to clear his conscience about the
testimony he gave at her brother’s trial. Teagle’s sister relayed this information to
Appellant’s attorney, Cheryl Sturm, who arranged for a private investigator to interview
Jett. According to Ms. Sturm’s investigator, Jett was interviewed on May 17, 2004, and
stated that York, on the day he was killed, announced that he was going to kill Teagle and
Hunter because he gave them heroin to sell and they had disrespected him by not paying
for it. Jett further stated that, at the time of the shooting, he saw Teagle and Hunter

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Jett’s children were in York’s car at the time of the shooting.2
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approaching York’s car from different directions before they shot York and that, after the
shooting, he found a gun in York’s lap, which he “passed off to one of the guys on the
corner” before driving away. Jett claimed that he lied at trial because he “didn’t want to
make [York] look bad. . . . I was angry and wanted to see [Teagle and Hunter] burn.
They killed my friend and almost killed my children.” Jett stated that he was not able to2
see whether York brandished the weapon at Teagle and Hunter before he was shot.
Teagle’s habeas petition also includes statements from Anthony Eure and Mikal
Muhammad that corroborate Teagle’s and Hunter’s testimony that York, a few hours
before he was shot, had pistol whipped and threatened to kill them. Eure and Muhammad
also noted that York had a reputation for violence. Eure asserted that he told Teagle’s
trial counsel that York beat and threatened to kill Teagle and Hunter, but that the lawyer
never took his statement or called him to testify.
The District Court denied the habeas petition on the grounds that it was time-
barred under the AEDPA’s statute of limitations, 28 U.S.C. § 2244(d)(1), finding that
Teagle was not entitled to statutory tolling under § 2244(d)(2) because the state court
rejected his third postconviction relief petition as untimely. The District Court also found
that, even assuming such an argument could be grounds for equitable tolling of the
AEDPA’s statute of limitations, Teagle failed to establish his actual innocence.
II.

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One of Teagle’s main arguments on appeal is that the District Court erred in3
finding that he was not entitled to statutory tolling under § 2244(d)(2), which provides
that a “properly filed application for State post-conviction relief” tolls § 2244(d)(1)’s one-
year limitations period for the time during which the properly filed application is pending.
As this issue is outside the scope of the certificate of appealability, we may not consider
it. See Villot v. Varner, 373 F.3d 327, 337 n.13 (3d Cir. 2004). While we have the
authority to expand the scope of the certificate of appealability, we refuse to do so here
because reasonable jurists could not debate the District Court’s conclusion that an
application for state postconviction relief is not “properly filed” under § 2244(d)(2) when
it has been deemed untimely by the state courts. See Allen v. Siebert, 552 U.S. 3, 4 (2007)
(“Because [the habeas petitioner’s] petition for state postconviction relief was rejected as
untimely by the [state] courts, it was not ‘properly filed’ under § 2244(d)(2).”); Pace v.
DiGuglielmo, 544 U.S. 408, 414 (2005) (“When a postconviction petition is untimely
under state law, ‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” (quoted
reference omitted; alteration in original)). As noted in Pace, it would have been advisable
for defense counsel to have filed “a ‘protective’ petition in federal court[,] asking the
federal court to stay and abey the federal habeas proceedings until state remedies [were]
exhausted.” Pace, 544 U.S. at 416 (citing Rhines v. Weber, 544 U.S. 269, 278 (2005)).
This is so because, given the time elapsed between Teagle’s conviction and the filing date
of the third application for state postconviction relief, and the fact that Teagle’s second
application for state postconviction relief was dismissed as untimely, defense counsel
should have been aware that timeliness was at issue.
6
We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. The District
Court issued a certificate of appealability as to whether Teagle is entitled to equitable
tolling in light of his actual innocence argument. We exercise plenary review over the3
District Court’s refusal to equitably toll the AEDPA’s statute of limitations. Urcinoli v.
Cathel, 546 F.3d 269, 272 (3d Cir. 2008).
III.
Teagle argues that the one year statute of limitations should be equitably tolled
based on the extraordinary circumstance of his actual innocence. While other Circuits

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Compare, e.g., David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003) (“[D]efendants4
who may be innocent are constrained by the same explicit statutory or rule-based
deadlines as those against whom the evidence is overwhelming . . . .”), with Souter v.
Jones, 395 F.3d 577, 599 (6th Cir. 2005) (“[E]quitable tolling of [AEDPA’s] one-year
limitations period based on a credible showing of actual innocence is appropriate.”).
7
have debated the issue, we have not yet decided whether a claim of actual innocence may4
equitably toll AEDPA’s statute of limitations. McKeever v. Warden SCI-Graterford, 486
F.3d 81, 84 n.5 (3d Cir. 2007). We need not do so to resolve the instant case because,
even assuming that a viable claim of actual innocence could equitably toll the limitations
period, tolling would be appropriate only if Teagle met the standard for such a claim, i.e.,
that he offered “new reliable evidence” establishing that “it is more likely than not that no
reasonable juror would have found [him] guilty beyond a reasonable doubt.” Schlup v.
Delo, 513 U.S. 298, 324, 327 (1995); see also Hubbard v. Pinchak, 378 F.3d 333, 338-40
(3d Cir. 2004) (describing Schlup and its progeny). The Supreme Court has emphasized
that this standard “is demanding and permits review only in the extraordinary case.”
House v. Bell, 547 U.S. 518, 538 (2006) (internal quotation marks omitted); see also
Sweger v. Chesney, 294 F.3d 506, 523-24 (3d Cir. 2002) (describing the burden a
petitioner must meet to establish actual innocence as “extremely high”).
Teagle supports his claim of actual innocence with the statements from Jett, Eure,
and Muhammad, which we find insufficient to meet the Schlup standard. Jett’s affidavit
recants his trial testimony, essentially admitting that the bulk of such testimony was
perjury. Such suspicious and untrustworthy evidence does not, in the absence of

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Both statements describe eyewitness accounts of York’s beating and threatening5
Teagle and Hunter hours before they shot him. Eure asserts that he told Teagle’s trial
counsel about what he saw, but that counsel did not follow up on the information.
8
additional corroborating evidence or circumstances, meet the standard of reliability
contemplated by Schlup. See Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir. 1988)
(“Courts have historically viewed recantation testimony with great suspicion.”); see also
Commonwealth v. Henry, 706 A.2d 313, 321 (Pa. 1997) (“Recantation testimony is
extremely unreliable. When the recantation involves an admission of perjury, it is the
least reliable form of proof.” (internal citations omitted)). The other two statements not
only present reliability concerns but contain information that is not “new,” as it was
available at trial and defense counsel chose not to present it. Goldblum v. Klem, 5105
F.3d 204, 226 n.14 (3d Cir. 2007) (“Evidence is not ‘new’ if it was available at trial, but a
petitioner ‘merely chose not to present it to the jury.’” (quoting Hubbard v. Pinchak, 378
F.3d 333, 340 (3d Cir. 2004)).
Furthermore, even assuming that the three affidavits constituted new and reliable
evidence, they fail to establish that it is more likely than not that no reasonable juror
would have found Teagle guilty beyond a reasonable doubt. All three affidavits state that
York was a violent person and had publicly beaten and threatened to kill Teagle and
Hunter in the hours preceding his death. While this corroborates the defendants’ trial
testimony, it also would allow a reasonable juror to conclude that Teagle had a strong
motive for murdering York. Jett’s affidavit corroborates the defendants’ claim that York

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was armed at the time he was killed but does not indicate which man was the first to
brandish a firearm. Even under these assumed facts, it would not be unreasonable for a
juror to conclude that Teagle—who by his own admission was carrying a loaded, cocked
firearm when approaching a man who had earlier beaten and threatened to kill him—was
the first to act.
IV.
For the foregoing reasons, we will affirm the District Court’s order denying habeas
relief.

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