Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-24-2003

Hussmann v. Vaughn
Precedential or Non-Precedential: Non-Precedential

Docket 01-1724




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Recommended Citation
"Hussmann v. Vaughn" (2003). 2003 Decisions. Paper 628.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/628


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                                                                 NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                       No: 01-1724
                                      _____________

                                  JOSEPH HUSSMANN,

                                               Appellant

                                              v.


                             DONALD T. VAUGHN;
                          THE DISTRICT ATTORNEY OF
                        THE COUNTY OF PHILADELPHIA;
                          THE ATTORNEY GENERAL OF
                         THE STATE OF PENNSYLVANIA

                                      ____________

                    Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Civil Action No.99-cv-04512)
                   District Judge: Honorable Louis Charles Bechtle
                                   _______________

                                 Argued on March 4, 2003

              Before: ROTH, BARRYand FUENTES CIRCUIT JUDGES

                               (Opinion filed: April 24, 2003)

Harvey R. Meltzer, Esquire (Argued)
354 Eisenhower Parkway
P.O. Box 21
Livingston, New Jersey 07039

      Attorney for Appellant
Marilyn F. Murray (Argued)
 Assistant District Attorney
Thomas W. Dolgenos
 Chief, Federal Litigation
Ronald Eisenberg
 Deputy District Attorney
 Law Division
Arnold H. Gordon
 First Assistant District Attorney
Lynn Abraham
 District Attorney
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102

       Attorney for Appellees
                                     ________________

                                         OPINION
                                     ________________

ROTH, Circuit Judge:

       On December 10, 1980, Joseph Hussmann was convicted of two counts of second

degree murder, criminal conspiracy, and arson for his role in an arson-for-hire scheme.

The jury found that Hussmann had offered Burton Smith $500 to $600 to burn down

Hussmann’s house at 4340 Elizabeth Street in Philadelphia in order that Hussmann might

receive $25,000 in insurance money. Smith in turn recruited Richard Hahn to help and

offered Hahn half of his proceeds from the arson. Richard Hahn and Kevin Higgins, an

employee of Hussmann, were killed in the fire. Smith suffered extensive burns and

amputation of several fingers. Smith was arrested and, in exchange for a reduced

sentence, divulged Hussmann’s insurance fraud plan.

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       On July 20, 1999, we granted Hussmann’s petition to file a second or successive

habeas petition under 28 U.S.C. § 2244. On September 9, 1999, Hussmann filed his

petition, raising twelve claims. On March 2, 2001, the District Court dismissed the

petition as time barred and found no probable cause to issue a certificate of appealability.

Hussmann appealed and applied to us for a certificate of appealability. On June 12, 2001,

we granted a certificate of appealability to address the following issues: (1) Can petitioner

demonstrate actual innocence, (2) Is there an “actual innocence” exception to AEDPA’s

statute of limitations provided in 28 U.S.C. § 2244(d)(1), and (3) If petitioner’s claim is

not time-barred, is it procedurally defaulted.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and §2253 (c)(1)(A).

We exercise plenary review over the District Court’s legal conclusions. See Johnson v.

Rosemeyer, 

(3d Cir. 1997).

       First, Hussmann claims that he has demonstrated “actual innocence” and should be

granted appropriate relief. Hussmann asserts this contention under 28 U.S.C. §

2244(b)(2)(A) which provides that, if the second petition asserts a claim that was not

previously presented, the claim must be dismissed unless the claim is predicated on newly

discovered evidence that clearly establishes the prisoner’s innocence.

       To prevail on this contention, Hussmann must persuade us that, in light of the new

evidence, no juror, acting reasonably, would not have voted to find him guilty beyond a

reasonable doubt. Sweger v. Chesney, 

, 522 (3d Cir. 2002) citing Cristin v.



                                                 3
Brennan, 

, 420 (3d Cir. 2002). Further, Hussmann must support his

allegations with new reliable evidence that was not presented at trial. See Schlup v. Delo,

, 324 (1995).

       Hussmann claims he can demonstrate his actual innocence based on affidavits of

two of his fellow prison inmates. The two affidavits, dated 1994 and 1996, are from

Joseph Hahn, brother of one of the victims in the fire, and Stephen Lathrop. The affiants

attest to their knowledge of unlawful influence over the trial judge and over Burton Smith,

who was a key witness for the government. Joseph Hahn attests that he visited Burton

Smith in the hospital and that Smith told him that he and Richard Hahn were asked to burn

down Hussmann’s Elizabeth Street home by someone who had a grudge against

Hussmann. Lathrop attests that he had a conversation with Burton Smith and that Smith

told him that Hahn threatened and coerced Smith into falsely testifying against Hussmann.

       The reliability of these affidavits is extremely dubious. They are based on

information that cannot be affirmed because Richard Hahn and the trial judge have both

died. Hussmann himself acknowledges that the affidavits are unreliable, stating that he

can understand why a court would be skeptical about them. Moreover, these unreliable

statements do not demonstrate Hussmann’s actual innocence but merely impeach Smith’s

credibility.

       Because Hussmann has failed to establish his actual innocence or to convince us

that a reasonable juror would not have voted to find him guilty beyond a reasonable doubt,

                                             4
based on the information contained in the two new affidavits, we find no basis for a

contention of actual innocence, as required by 28 U.S.C. § 2244(b)(2)(A).

       In view of the fact that we conclude that Hussmann has no basis to assert a claim of

actual innocence, we will not go on to consider the remaining two questions certified:

Whether there is there an “actual innocence” exception to AEDPA’s statute of limitations

and whether, if Hussmann’s claim is not time-barred, it is procedurally defaulted.

       For the foregoing reasons, we will affirm the District Court’s judgment, dismissing

the petition.




                                             5
TO THE CLERK:


    Please file the foregoing Opinion.




                                         By the Court,




                                          /s/ Jane R. Roth
                                                         Circuit Judge




                                            6