Joseph D. Marcy v. Superintendent Phoenix Sci

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-1977
______________
JOSEPH D. MARCY,
Appellant
v.
SUPERINTENDENT PHOENIX SCI;
THE DISTRICT ATTORNEY OF THE COUNTY OF
LUZERNE;
THE ATTORNEY GENERAL OF THE STATE OF
PENNSYLVANIA
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 3-17-cv-00411)
District Judge: Honorable Robert D. Mariani
Argued
January 17, 2024
Before: HARDIMAN, MATEY, and CHUNG,
Circuit Judges.
(Filed: July 30, 2024)

-- 1 of 22 --

2
Tadhg Dooley
David R. Roth [ARGUED]
Wiggin & Dana
One Century Tower
265 Church Street
New Haven, CT 06510
Erik Fredericksen
Adela Lilollari
Thaddeus Talbot
Yale Law School
127 Wall Street
New Haven, CT 06511
Counsel for Plaintiff-Appellant
Ronald Eisenberg
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
James L. McMonagle, Jr. [ARGUED]
Luzerne County Office of District Attorney
200 N River Street
Wilkes-Barre, PA 18711
Counsel for Defendant-Appellees

-- 2 of 22 --

3
OPINION OF THE COURT
MATEY, Circuit Judge.
Thirteen years ago, a Pennsylvania jury convicted
Joseph Marcy of raping his five-year-old daughter, D.M. Years
after testifying against her father, D.M. recanted some of her
testimony in a state postconviction relief hearing. Marcy now
petitions for a writ of habeas corpus, arguing that due process
demands his release. But no matter how Marcy frames his
claim, Teague v. Lane, 489 U.S. 288 (1989), bars its
application here. So we will affirm the District Court’s order
dismissing his petition.
I.
A.
D.M. lived with Marcy’s mother, Michele Pardini. In
June 2009, Pardini discovered D.M., then five years old,
“touching herself inappropriately and behaving in sexual
manners.” App. 287. “[C]oncerned,” she called the Luzerne
County Children and Youth Services, and caseworker Holly
Jones responded the same day. App. 287. Jones spoke with
D.M. and asked the child how she learned that “touching her
private parts felt good.” App. 287. D.M. responded, “[b]ecause
daddy likes to do it. . . . Daddy likes to touch my private parts.”
App. 287. D.M. told Jones of “various sexual acts her father
made her perform including oral sex and vaginal sex. She went
on to describe him using his hands and his mouth in these sex
acts” and how she was “forced to perform oral sex on her

-- 3 of 22 --

4
father.” App. 287–88.1 Alarmed, Jones arranged for D.M. to
speak with Debbie Guziejka, an investigator with the County’s
Children and Youth Services, and D.M. repeated the same
story: that her father “would touch her on different parts of her
body.” App. 384. She detailed specific acts, and she discussed
times where “she told daddy no, but he wouldn’t stop.” App.
385.
The caseworkers at Luzerne County took D.M. to the
Children’s Advocacy Center of Northeast Pennsylvania, a
nonprofit organization staffing clinicians and investigators.
During her visit to the Center, D.M. spoke with Kristen Fetcho,
a child forensic investigator, and told her the same details she
shared with the County caseworkers. D.M. then met with Dr.
Michael Rogan, a board-certified family practice physician.
His examination revealed signs of chronic irritation, evidence
of “more than an acute event such as like a diaper rash” and
consistent with the conclusion “that the child had been sexually
assaulted.” App. 335.
When D.M. testified at trial nearly two years later, her
story stayed the same. She detailed repeated sexual assaults
and told the jury—just as she had told Jones, Guziejka, and
Fetcho—that she asked her father to stop, and he refused. And
she testified that she complained to her mother, who refused to
believe her. After three hours of deliberation, the jury returned
a unanimous conviction on all five counts in the indictment:
rape of a child, two counts of involuntary deviate sexual
intercourse with a child, aggravated indecent assault of a child,
and assault to a person less than thirteen. Marcy was sentenced
1 At trial, Jones testified that D.M. was “very matter of
fact” when she explained these events. App. 291.

-- 4 of 22 --

5
to 20 to 40 years’ incarceration.
Shortly after sentencing, Marcy moved for a new trial.
His motion advanced general arguments about insufficient
evidence, erroneous evidentiary rulings, and his “belie[f]” that
the sentence was “excessive and unreasonable.” App. 633. The
court denied the motion as moot after Marcy also filed a direct
appeal. On appeal, Marcy argued that the trial court made an
erroneous evidentiary ruling regarding reputation testimony. In
both his (mooted) motion for a new trial and his direct appeal,
Marcy never claimed that D.M. fabricated her testimony. The
Superior Court of Pennsylvania affirmed his conviction, and
Marcy did not appeal to the Pennsylvania Supreme Court.
B.
Marcy’s first premature state petition for postconviction
relief did not mention false testimony. A second premature
petition checked boxes seeking relief due to “[a] violation of
the Constitution” and “[i]neffective assistance of counsel,” and
requested an evidentiary hearing. App. 646. He did not check
the box indicating “exculpatory evidence that has subsequently
become available.” App. 646. Nor did his second petition state
D.M. had changed her story. Instead, between two accounts of
a juror who allegedly proclaimed Marcy innocent,2 was a piece
2 These accounts, written by family acquaintances,
describe an unidentified juror in the parking lot who stated, “in
tears, smoking a cigarette, . . . that Mr. Marcy was innocent.”
App. 662. According to both accounts, the juror also said he
was “sorry” about “the outcome of the trial and verdict.” App.
662. The authors said they “believe[d] that [the] Juror was
pressured into saying guilty.” App. 665. Marcy never raised
these claims in his later filings.

-- 5 of 22 --

6
of paper dated February 2012 from a person named Kimberly
Marth.3 See App. 663 (“Marth note”). Addressed “[t]o whom
it may concern,” the Marth note said, “I am writing this letter
in light of things told to me and several other people that,
[D.M.] had not told the truth in her testimony at trial against
her father” and “that certain acts of the abuse in fact did not
happen at all.” App. 663.4 Because Marcy filed these petitions
before his conviction became final, the postconviction court
dismissed them without prejudice.
After Marcy’s conviction became final, the
postconviction court sua sponte reinstated Marcy’s second
untimely petition and appointed counsel to supplement
Marcy’s previous filings. That produced a supplemental
petition—now drafted with help from counsel—that recycled
Marcy’s prior arguments about erroneous evidentiary rulings,
ineffective assistance, and other errors unrelated to recantation
but omitted the Marth note.
Another year passed before Marcy again supplemented
his postconviction filings, now asking for relief based on “[t]he
unavailability at the time of trial of exculpatory evidence that
has subsequently become available and would have changed
the outcome of the trial if it had been introduced.” App. 684
3 Marth’s identity, and her connection to D.M., is not
explained in the record. Neither Marcy’s filings, nor the
Pennsylvania court decisions, discuss Marth beyond references
to the note. In this appeal, Marcy makes one mention of Marth
serving as D.M.’s “caretaker” without describing the origin,
scope, or length of that relationship. Opening Br. 10.
4 The Marth note did not specify which acts of abuse
were false. Nor did it explain the basis of Marth’s suggestion
that D.M. did not testify with complete candor.

-- 6 of 22 --

7
(quoting 42 Pa. C.S. § 9543 (a)(2)(vi)). Marcy’s newest filing
focused on a new interview D.M. provided to a private
investigator.5 That led to a postconviction relief hearing where
D.M., now eleven years old, testified that Marcy “did not do
it.”6 App. 712. Recognizing this answer marked a sharp break
from D.M.’s trial testimony, Marcy’s counsel asked D.M. how
the Judge was “supposed to know” which story was true. App.
713. D.M. answered, “I don’t know.” App. 713. The
Commonwealth asked D.M. how she knew of specific sexual
5 In that interview, according to Marcy, D.M. “recanted
significant portions of her previous trial testimony, indicating
that [Marcy] did not, at any time, have vaginal or anal sex with
her.” App. 684. But at the postconviction relief hearing,
Marcy’s attorney asked D.M. if she remembered “maybe a year
or two ago talking to an older man . . . about what happened or
didn’t happen.” App. 711. D.M. said, “Yes, I recall.” App. 711.
But when asked if she recalled “telling the man . . . that [the
abuse] didn’t happen,” D.M. twice responded, “No.” App. 712.
Either way, Marcy—like the Marth note—did not claim that
D.M.’s entire testimony was false, or that the abuse never
happened.
6 When D.M. testified at Marcy’s postconviction relief
hearing, she was living with her new adoptive mother, Kelly
Gronka. Gronka’s brother was dating Marcy’s mother, Michele
Pardini, at that time.
At the postconviction hearing, D.M. also testified that
Gronka allowed her to talk on the phone with the imprisoned
Marcy despite a no-contact order. And that she overheard
phone calls between Gronka and Marcy, where they said they
loved each other. And that Pardini moved in with D.M. and
Gronka, where Pardini “talked about [Marcy]” and told D.M.
“how much she missed” Marcy. App. 717.

-- 7 of 22 --

8
acts and physiological effects at such a young age. Again, D.M.
repeatedly responded: “I don’t know.”7 App. 713–16.
Still, the Court of Common Pleas found D.M.’s
recantation testimony “credible,” App. 741, vacated Marcy’s
conviction, and granted him a new trial. On appeal, the
Superior Court vacated that decision because Marcy “had
knowledge of the victim’s recantation in 2012 and did not raise
it until 2014,” and so waived his challenge. App. 771. The
Pennsylvania Supreme Court declined to review that decision.
With Marcy’s direct proceedings finalized, he filed this
petition seeking release because his conviction was “secured
by false evidence or testimony” in violation of due process.
App. 79. The District Court concluded Marcy’s recantation
claim was time-barred and denied the petition. Marcy
appealed, and we granted a certificate of appealability limited
to “his claim that his conviction and continued incarceration in
light of [D.M.’s] recantation violates his due process rights.”
7 See App. 714 (“Q: So how would you know that there
would be naked people on a computer if you didn’t actually see
it? A: I don’t know.”); App. 714 (“Q: So how did you know
about that hand motion? A: I don’t know.”); App. 714 (“Q:
Then can you explain to the Court, why was it that you would
have lied about something like that? A: Don’t know.”); App.
715 (“Q: How did you know at that age that a pickle would go
in someone’s mouth? A: I don’t know. Q: Did someone tell
you to say that? A: No. Q: Did you see that someplace? A:
No.”); App. 716 (“Q: Well, how did you know to say that your
dad would only touch you when your mom was gone? A: I
don’t know.”).

-- 8 of 22 --

9
App. 28.8
II.
A federal court can order the release of a state prisoner
through a writ of habeas corpus “only on the ground that he is
in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. § 2254(a). Habeas relief has
8 The District Court had jurisdiction under 28 U.S.C.
§ 2254 and we have jurisdiction under 28 U.S.C. §§ 1291 and
2253(c). We review the District Court’s legal determinations
de novo. Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007).
Because the postconviction relief court found D.M.’s
recantation testimony “credible,” App. 741, it is “presumed to
be correct” in this proceeding, absent clear and convincing
contrary evidence, 28 U.S.C. § 2254(e)(1); see also Vickers v.
Superintendent Graterford SCI, 858 F.3d 841, 849–50 & n.9
(3d Cir. 2017).
The parties dispute whether Marcy procedurally
defaulted on his constitutional claim. But we need not decide
that issue. “An application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(2); see also Duncan v. Morton,
256 F.3d 189, 203 n.6 (3d Cir. 2001) (“The parties now dispute
whether [Petitioner] has exhausted this claim for purposes of
his federal habeas petition. Because this claim is clearly
without merit, we decline to address the parties’ exhaustion
arguments.”) (citing 28 U.S.C. § 2254(b)(2)). We adopt that
course here and address only the merits.

-- 9 of 22 --

10
always been limited,9 and the Supreme Court has explained
9 At common law, final convictions were unreviewable
through the writ of habeas corpus, so long as the court of
conviction had jurisdiction. See Brown v. Davenport, 596 U.S.
118, 128–29 (2022); see also Ex parte Watkins, 28 U.S. (3 Pet.)
193, 203 (1830) (Federal courts “have no power to examine the
proceedings on a writ of error, and it would be strange, if, under
colour of a writ to liberate an individual from unlawful
imprisonment, we could substantially reverse a judgment
which the law has placed beyond our control.”); 3 William
Blackstone, Commentaries *407 (“The writ of error only lies
upon matter of law arising upon the face of the proceedings; so
that no evidence is required to substantiate or support it; there
being no method of reversing an error in the determination of
facts, but by an attaint, or a new trial, to correct the mistakes of
the former verdict.”). The Habeas Corpus Act of 1867
extended the writ to state prisoners but “did not empower the
federal courts on habeas corpus to redetermine the merits of
federal questions—even constitutional questions—which did
not go to the jurisdiction of the committing court.” Paul M.
Bator, Finality in Criminal Law and Federal Habeas Corpus
for State Prisoners, 76 Harv. L. Rev. 441, 481 (1963); see also
Judiciary Act of February 5, 1867, ch. 28, § 1, 14 Stat. 385,
385.
Then, “[i]n 1953,” the Supreme Court “abruptly
changed course and decided that federal courts could grant a
writ of habeas corpus simply because they disagreed with a
state court’s judgment.” Edwards v. Vannoy, 593 U.S. 255, 278
(2021) (Thomas, J., concurring) (citation omitted). This
“greatly expanded writ of habeas corpus,” Desist v. United
States, 394 U.S. 244, 262 (1969) (Harlan, J., dissenting),

-- 10 of 22 --

11
that federal courts ordinarily may not apply a new rule of law
retroactively to grant a writ. See, e.g., Teague, 489 U.S. at 310.
That is because “applying ‘constitutional rules not in existence
at the time a conviction became final seriously undermines the
principle of finality which is essential to the operation of our
criminal justice system.’” Edwards v. Vannoy, 593 U.S. 255,
263 (2021) (quoting Teague, 489 U.S. at 309). So while “[a]
new rule of criminal procedure applies to cases
on direct review, . . . . a new rule of criminal procedure
ordinarily does not apply retroactively to overturn final
convictions on federal collateral review.” Id. at 262.
Marcy argues that his continued incarceration for a
conviction resulting from testimony recanted after trial violates
the Constitution, no matter how that testimony was introduced
or whether any state actor knew it to be false. Simply stated,
Marcy argues he has a right to be free from continued
conviction obtained by credibly recanted testimony, regardless
of the government’s knowledge of the testimony’s falsity. And
he argues that this right existed at the time of his conviction.
But neither the Supreme Court nor this Court have ever so held,
and Teague bars a retroactive application of Marcy’s claimed
triggered questions about the relief federal courts could grant
when applying new constitutional procedures to old criminal
convictions, see generally Edwards, 593 U.S. at 278 (Thomas,
J. concurring). After several decades of the resulting “atextual
and ad hoc approach,” id. at 279 (Thomas, J., concurring),
Congress stepped in with the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), which “filled in” the
gaps left by the Act “by creating a comprehensive system for
addressing federal habeas claims brought by state prisoners,”
id. at 280 (Thomas, J., concurring).

-- 11 of 22 --

12
right as a novel rule of criminal procedure.10
A.
A rule 11 is new “if the result was not dictated by
precedent existing at the time the defendant’s conviction
became final.” Teague, 489 U.S. at 301; see also Graham v.
Collins, 506 U.S. 461, 467 (2004). To ensure that habeas
proceedings “cannot be used as a vehicle to create new
constitutional rules of criminal procedure,” Teague, 489 U.S.
at 316, a novel rule cannot be applied retroactively to cases on
collateral review unless it is “substantive.” Whorton v.
10 Teague is “[a] threshold question in every habeas
case.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994). While “not
‘jurisdictional’ in the sense that [federal courts] . . . must raise
and decide the issue sua sponte,” Collins v. Youngblood, 497
U.S. 37, 41 (1990) (emphasis omitted), Teague may be applied
by a federal court even if not argued by the government, see
Caspari, 510 U.S. at 389. Although the Commonwealth failed
to raise Teague until prompted by this Court in supplemental
briefing, we will apply Teague here.
11 Marcy’s alleged right is founded in substantive due
process—his conviction is unconstitutional “regardless of the
fairness of the procedures used” by the state. Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quotations
omitted). But whether the right is substantive or procedural for
due process is unrelated to whether the proposed rule is one of
substance or one of procedure for the purposes of Teague. See,
e.g., Goeke v. Branch, 514 U.S. 115, 117–20 (1995)
(recognizing that a new substantive due process right was
barred as a new procedural rule under Teague).

-- 12 of 22 --

13
Bockting, 549 U.S. 406, 416 (2007). 12 Meaning it “places
12 Teague’s distinction between procedural and
substantive rules followed a period after Brown v. Allen, 344
U.S. 443 (1953), when the habeas “haystack just grew too
large,” and courts struggled to determine when constitutional
decisions from collateral review of criminal cases could be
retroactively applied. Edwards, 593 U.S. at 288–89 (Gorsuch,
J., concurring). Teague sought shelter from the sea of
“incompatible rules and inconsistent principles” identified by
those raising the alarm, Desist, 394 U.S. at 258 (Harlan, J.,
dissenting), and to “return the writ to its original station” by
withholding “newly recognized rules of criminal procedure”
from final criminal judgments, Edwards, 593 U.S. at 291, 290
(Gorsuch, J., concurring). In this way, Teague refocused courts
to the traditional understanding of the writ as a limited tool of
review and retreated from the misguided project of deciding
retroactivity case-by-case. See Linkletter v. Walker, 381 U.S.
618, 629 (1965); see also Paul J. Mishkin, Foreword: The High
Court, the Great Writ, and the Due Process of Time and Law,
79 Harv. L. Rev. 56, 66 (1965) (“[T]he establishment and
application of a power of prospective limitation produces sharp
and recurrent conflict with the symbolic ideal reflected in the
Blackstonian concept . . . .”). The decision also reoriented
collateral habeas review toward to the classical judicial role not
to “pronounce a new law, but . . . maintain and expound the old
one.” 1 Blackstone, Commentaries *69. Asking whether a
judgment “shall ‘apply’ retroactively [] presupposes a view of
our decisions as creating the law, as opposed
to declaring what the law already is. Such a view is contrary to
that understanding of ‘the judicial Power.’” Am. Trucking
Ass’ns, Inc. v. Smith, 496 U.S. 167, 201 (1990) (Scalia, J.,
concurring) (citing U.S. Const., Art. III, § 1).

-- 13 of 22 --

14
certain kinds of primary, private individual conduct beyond the
power of the criminal law-making authority to proscribe,”
Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401
U.S. 667, 692 (1971)) (quotation marks omitted), or
“prohibit[s] imposition of a certain type of punishment for a
class of defendants because of their status or offense,” Sawyer
v. Smith, 497 U.S. 227, 241 (1990).13 We first look at the legal
landscape at the time Marcy’s conviction became final 14 to
determine whether his alleged right was “dictated” by the
existing precedent at that time. Teague, 489 U.S. at 301
(emphasis omitted). “[A] rule is new unless, at the time the
conviction became final, the rule was already ‘apparent to all
reasonable jurists.’” Edwards, 593 U.S. at 265 (quoting
13 See also Schriro v. Summerlin, 542 U.S. 348, 353
(2004) (describing “substantive” rules under Teague as those
that “alter[] the range of conduct or the class of persons that the
law punishes”); Bousley v. United States, 523 U.S. 614, 620–
21 (1998) (Substantive rules “hold[] that a . . . statute does not
reach certain conduct” or “make conduct criminal.”); Saffle v.
Parks, 494 U.S. 484, 495 (1990) (Substantive rules
“decriminalize a class of conduct [or] prohibit the imposition
of . . . punishment on a particular class of persons.”).
A second exception for “watershed rules of criminal
procedure,” Teague, 489 U.S. at 311, has never been applied
by the Supreme Court “in the 32 years since Teague,”
Edwards, 593 U.S. at 258–59. And the Supreme Court has only
identified one pre-Teague rule that would have qualified as a
“watershed” rule: the right to counsel recognized in Gideon v.
Wainwright, 372 U.S. 335 (1963).
14 Marcy’s conviction became final on August 27, 2012.
But because Marcy’s proposed rule is novel, see infra Section
II.A.1–3, this date does not affect our analysis.

-- 14 of 22 --

15
Lambrix v. Singletary, 520 U.S. 518, 528 (1997)). Marcy
cannot clear this threshold hurdle.
1.
The Supreme Court has never recognized Marcy’s
alleged right to be released from a conviction involving
recanted testimony where no state actor knew about the falsity
of the statements. Start with Mooney v. Holohan, where the
habeas petitioner contended that due process was violated
where “the sole basis of his conviction was perjured
testimony,” which was “knowingly used” by the prosecution.
294 U.S. 103, 110 (1935). The Supreme Court agreed, finding
that where “a state has contrived a conviction . . . through a
deliberate deception” using “testimony known to be perjured,”
the government violates due process. Id. at 112. There, the
focus was on the government’s unjust actions, a
“contrivance . . . inconsistent with the rudimentary demands of
justice.” Id. Pyle v. Kansas reiterated that a habeas petitioner’s
claims that “his imprisonment resulted from perjured
testimony, knowingly used by the State authorities”
sufficiently alleged a due process violation. 317 U.S. 213, 216
(1942). But Hysler v. Florida emphasized that habeas
petitioners “cannot, of course, contend that mere recantation of
testimony is in itself ground for invoking the Due Process
Clause against a conviction.” 315 U.S. 411, 413 (1942)
(emphasis added). Rather, recantation claims require proof that
“responsible officials knowingly used false testimony.” Id.
(emphasis added). None of these cases turned on mere falsity:
the key was that the state knew of the falsehood and used it
anyway.

-- 15 of 22 --

16
2.
For over fifty years, this Court has followed the
requirement that the government have knowledge of
testimony’s falsity for the defendant to raise a viable due
process claim. See United States ex rel. Almeida v. Baldi, 195
F.2d 815, 820–21 (3d Cir. 1952) (citing Mooney as the
“controlling authority. . . . for seventeen years”). Swimming
against that tide, Marcy points to a single case: Curran v.
Delaware, 259 F.2d 707 (3d Cir. 1958). But Curran simply
applied the existing principle that a conviction based on the
government’s knowing use of false testimony is
unconstitutional. See id. at 712–13 (collecting state-knowledge
cases, including Mooney, Baldi, and Pyle). In Curran, the
petitioners argued that the state detective lied on the witness
stand, pointing out that “[t]he record le[ft] no doubt that [his]
testimony was untrue.” Id. at 710. While the “knowledge of
such perjury” could not be “brought home to the prosecuting
officers,” we held that “the knowingly false testimony” of a
state actor violated due process. Id. at 712–13.15
15 A conclusion adopted by the Supreme Court in Napue
v. Illinois, where, citing Baldi, the Court held a due process
violation “obtains when the State, although not soliciting false
evidence, allows it to go uncorrected when it appears.” 360
U.S. 264, 269 (1959); see also id. (“[A] conviction obtained
through use of false evidence, known to be such by
representatives of the State, must fall under the Fourteenth
Amendment.”) (citing Curran, 259 F.2d at 707). Leading to the
famous formulation of the right recognized in Brady v.
Maryland, that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process

-- 16 of 22 --

17
And in Smith v. United States, the petitioner, like
Marcy, argued “that the [g]overnment witnesses were not
telling the truth” but failed to “allege any facts to show the
[g]overnment knowingly used false testimony at the trial.” 358
F.2d 683, 684 (3d Cir. 1966). We called government
knowledge a “matter[] of substance” and concluded its
“absence constitute[d] a fatal defect” in the petitioner’s perjury
argument. Id. Smith followed earlier decisions of this Court
rejecting petitions that claimed perjury but failed “to show the
knowing and intentional use of [that] perjury by the
prosecution.” United States ex rel. Helwig v. Maroney, 271
F.2d 329, 332 (3d Cir. 1959); see also id. (“[T]he burden is
upon the appellant to prove such perjury and that it was
knowingly and intentionally used by the prosecution.”).16
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.”
373 U.S. 83, 87 (1963). Brady now governs those kinds of
challenges, see, e.g., Dennis v. City of Phila., 19 F.4th 279,
291–92 (3d Cir. 2021), which explains why decisions like
Curran and Smith v. United States, 358 F.2d 683 (3d Cir.
1966), have all but disappeared from the federal reporters.
Curran foreshadowed an entirely different rule than the one
Marcy suggests.
16 District courts have long relied on Smith to dismiss
habeas petitions that fail to show just that. See, e.g., Hauls v.
Meyers, No. Civ. A. 03-4866, 2004 WL 73902, at *8 (E.D. Pa.
Jan. 14, 2004) (dismissing habeas petition that “fail[ed] to
show that the government knowingly used [perjured]
testimony to its benefit”); United States v. Sanders, 3 F. Supp.
2d 554, 567 (M.D. Pa. 1998) (citing Smith for the proposition

-- 17 of 22 --

18
Marcy has not shown (or even argued) that any
government actor knew (or could have known) Marcy’s
daughter would change parts of her story after trial. Curran and
Smith, therefore, cannot ground Marcy’s claim as he
suggests.17 In sum, his requested rule is not “dictated” by our
precedent. Teague, 489 U.S. at 301 (emphasis omitted).
3.
Nor do the two outlying decisions Marcy cites from the
Second and Ninth Circuits—Sanders v. Sullivan, 863 F.2d 218
(2d Cir. 1988) and Maxwell v. Roe, 628 F.3d 486 (9th Cir.
2010), cert. denied, 565 U.S. 1138 (2012)—show a rule
“apparent to all reasonable jurists.” Edwards, 593 U.S. at
that the “government must knowingly use perjured testimony
to warrant relief under [28 U.S.C.] § 2255”); Rivera v. Gov’t
of V.I., No. 31-1973, 1973 WL 354140, at *1 (D.V.I. July 5,
1973) (“The majority rule . . . is that the petition must allege
that the prosecuting attorney knowingly offered perjurious
testimony of a material nature.”); United States ex rel.
Cornitcher v. Myers, 253 F. Supp. 763, 764 (E.D. Pa. 1966)
(“The essence of the offensive conduct is conviction through
contrivance, and it follows that there must be an allegation and
proof that the prosecutor knew the testimony to be false.”)
(citing Smith, 358 F.2d at 683).
17 Marcy also mentioned Lee v. Superintendent
Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015), at oral argument,
but that case dealt with “flawed forensic evidence” or “other
junk science.” Gimenez v. Ochoa, 821 F.3d 1136, 1143–44 (9th
Cir. 2016) (citation omitted). Unsurprisingly, Lee did not even
cite Curran.

-- 18 of 22 --

19
265. 18 The Sanders panel found a constitutional violation
without evidence of prosecutorial knowledge, but it also
conceded that “many jurisdictions,” including this Court,
reached the opposite holding and required evidence “that the
18 And they place Marcy on the wrong side of an eight-
to-two circuit split. See Smith, 358 F.2d at 684 (dismissing
habeas petition because it failed to “allege any facts to show
the [g]overnment knowingly used false testimony at the trial”);
United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980) (“[F]or
perjury by a witness to constitute grounds for relief appellant
would have to show that the [g]overnment knowingly used the
perjured testimony.”); Burks v. Egeler, 512 F.2d 221, 226 (6th
Cir. 1975) (“A requirement of state involvement [is] a
prerequisite to finding constitutional error . . . .”); United
States ex rel. Burnett v. Illinois, 619 F.2d 668, 674 (7th Cir.
1980) (“It is the knowing and intentional use of [perjured]
testimony by the prosecuting authorities that is a denial of due
process of law.”) (citation omitted); Lindhorst v. United States,
658 F.2d 598, 601 (8th Cir. 1981) (dismissing habeas petition
because “appellant failed to establish the government’s
knowing use of the perjured testimony”); Graham v. Wilson,
828 F.2d 656, 659 (10th Cir. 1987) (“In our habeas corpus
consideration of the introduction of false or mistaken
testimony, the question of error turns not on the witness’
knowledge of falsity, but on the government’s knowledge.”);
Smith v. Wainwright, 741 F.2d 1248, 1257 (11th Cir. 1984)
(requiring evidence “that the prosecutor or the police officers
knew that the testimony of one of the [witnesses] was false”);
Hodge v. Huff, 140 F.2d 686, 689 (D.C. Cir. 1944) (rejecting
perjury argument because “[t]here is nothing in the record to
support or even to suggest bad motive, or misconduct upon the
part of the prosecution”).

-- 19 of 22 --

20
prosecutor knowingly used perjured testimony.” 863 F.2d at
222 & n.2 (citing Smith, 358 F.2d at 683).19 The Sanders panel
also lacked the guidance of Teague, decided less than three
months later. When the case returned to the Second Circuit, the
state raised Teague, and the new panel concluded “that the rule
of Sanders I falls squarely within one of the exceptions to the
retroactivity doctrine,” the “application of ‘watershed rules of
criminal procedure.’” Sanders v. Sullivan, 900 F.2d 601, 606–
07 (2d Cir. 1990) (Sanders II)). But that reasoning is now
foreclosed by Edwards because “[t]he watershed exception is
moribund.” Edwards, 593 U.S. at 272.; id. at 267 (noting that,
with the exception of Gideon, “[t]he Court has never identified
any other pre-Teague or post-Teague rule as watershed.
None.”).
The Ninth Circuit’s decision in Maxwell is similarly
unhelpful to Marcy. The panel held that “a conviction based on
uncorrected false material evidence . . . is a violation of a
defendant’s due process rights under the Fourteenth
19 Sanders struggles to find footing to steady its lack of
a state-actor-knowledge rule in pre-Brady cases of perjury by
state actors. See Sanders, 863 F.3d at 222–23 (purporting to
find “precedent for this rule” in Kyle v. United States, 266 F.2d
670, 672 (2d Cir. 1959) (perjury of a postal inspector), Smith
v. United States, 223 F.2d 750, 754 (5th Cir. 1955) (perjury of
government agent at sentencing hearing), and Curran, 259
F.2d at 707). It also found inspiration in “the spirit of the
Constitution.” Id. at 225. And it leaned heavily on Justice
Douglas’s dissenting opinion in Durley v. Mayo, 351 U.S. 277,
290–91 (1956). See id. at 223. A point the Second Circuit later
acknowledged when it declined to follow Sanders. See Drake
v. Portuondo, 321 F.3d 338, 345 n.2 (2d Cir. 2003).

-- 20 of 22 --

21
Amendment.” 628 F.3d at 507. But Maxwell relied on Sanders
and cases involving knowing government actors. See id. at 506
(citing United States v. Young, 17 F.3d 1201, 1203–04 (9th Cir.
1994) (perjury of police officer); Hall v. Dir. of Corr., 343 F.3d
976, 980 (9th Cir. 2003) (per curiam) (perjury by jailhouse
informant after “police threatened to kill him and his mother if
he did not lie”); Killian v. Poole, 282 F.3d 1204, 1208–09 (9th
Cir. 2002) (citing Young to find government knowledge
immaterial)).
To sum up: one outlier case (and another that relied on
it) from outside of this Circuit that is inconsistent with our
precedent does not establish a rule “apparent to all reasonable
jurists.” Edwards, 593 U.S. at 265. Leaving Marcy without any
meaningful support, let alone the broad and clear consensus of
cases needed to circumvent Teague’s bar against applying new
rules to Marcy’s petition.20
20 Marcy offers an alternative framing of his proposed
right: that he is “actually innocent,” making his continued
incarceration a violation of due process. While arguably
beyond the question certified for appeal, this contention fails
regardless. The Supreme Court has “repeatedly left that [issue]
unresolved, while expressing considerable doubt that any
claim based on alleged ‘actual innocence’ is constitutionally
cognizable.” In re Davis, 557 U.S. 952, 955 (2009) (Scalia, J.,
dissenting); see also Dist. Att’y’s Off. for Third Jud. Dist. v.
Osborne, 557 U.S. 52, 71 (2009) (“We have struggled with [the
actual-innocence claim] 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.”). Whatever the

-- 21 of 22 --

22
B.
Marcy faces a second hurdle: his proposed rule can
circumvent Teague’s nonretroactivity principle only if it is
“substantive,” meaning it “prohibit[s] imposition of a certain
type of punishment for a class of defendants because of their
status or offense,” Sawyer v. Smith, 497 U.S. 227, 241 (1990),
or changes the “range of conduct or the class of persons that
the law punishes,” Schriro v. Summerlin, 542 U.S. 348, 353
(2004) (citation omitted). Marcy’s proposed rule falls outside
these “extremely narrow” corridors. Id. at 352. It does not
change what conduct can be criminalized, nor does it remove
Marcy from a class of punishable offenders. It seeks instead to
“regulate only the manner of determining the defendant’s
culpability,” and is therefore a procedural rule that cannot be
applied retroactively. Id. at 353.
* * *
For these reasons, we will affirm the District Court’s
order denying Marcy’s petition.
contours of such a right, it would entail an “extraordinarily
high” burden of proof—one so high that no petitioner in our
Court nor the Supreme Court has ever met it. See Herrera v.
Collins, 506 U.S. 390, 417 (1993). Marcy does not buck that
trend. The Commonwealth offered other evidence outside of
D.M.’s initial testimony, and her recantation leaves
unexplained a host of incriminating facts (including D.M.’s
other statements to adults and D.M.’s graphic and specific
knowledge). So Marcy’s alternative right is insufficiently
grounded to survive Teague.

-- 22 of 22 --