Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-30-2007

Goldblum v. Klem
Precedential or Non-Precedential: Precedential

Docket No. 06-1138




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                                           PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                            No. 06-1138


                  CHARLES J. GOLDBLUM,

                                                  Appellant

                                v.

    EDWARD J. KLEM, Superintendent, SCI Mahanoy;
   DISTRICT ATTORNEY OF ALLEGHENY COUNTY,
  PENNSYLVANIA; and THE ATTORNEY GENERAL OF
     THE COMMONWEALTH OF PENNSYLVANIA

        On Appeal from the United States District Court
           for the Western District of Pennsylvania
                      (No. 04-cv-00520)
         District Judge: Honorable Arthur J. Schwab

                       Argued June 8, 2007

   BEFORE: SMITH and GREENBERG, Circuit Judges, and
               POLLAK, District Judge*

                  (Filed:   November 30, 2007)




*Honorable Louis H. Pollak, Senior Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting by
designation.
David Rudovsky (argued)
Kairys, Rudovsky, Messing & Feinberg
718 Arch Street, Suite 501 South
Philadelphia, PA 19106

Lee Markovitz
310 Grant Street, Grant Building
Suite 1220
Pittsburgh, PA 15219

   Attorneys for Appellant

Stephen A. Zappala, Jr.
District Attorney
Michael W. Streily
Deputy District Attorney
Ronald M. Wabby, Jr. (argued)
Assistant District Attorney
Office of the District Attorney
436 Grant Street
401 Allegheny County Courthouse
Pittsburgh, PA 15219

   Attorneys for Appellees


                  OPINION OF THE COURT


GREENBERG, Circuit Judge.

                      I. INTRODUCTION

       This matter is before the court on Charles J. Goldblum’s
appeal from the denial of his second petition for a writ of habeas
corpus. Goldblum, who is currently serving a life sentence
following his conviction for first-degree murder, filed his second
petition after receiving our authorization to do so under 28
U.S.C. § 2244(b)(3)(A). The district court, in adopting a
magistrate judge’s Report and Recommendation, dismissed the

                                2
second petition based on Goldblum’s failure to satisfy the
requirements applicable to second petitions under 28 U.S.C. §
2244(b)(4) and its predecessor, the abuse-of-the-writ doctrine,
which as we will discuss, was implicated because Goldblum
filed his first habeas corpus application before the enactment of
the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”).

        Goldblum believes that the magistrate judge erred in three
ways: she (1) was required to conduct an evidentiary hearing to
determine whether he abused the writ; (2) applied the wrong
legal standard under the “cause” element of the abuse-of-the-
writ doctrine; and (3) wrongly found that Goldblum is not
“actually innocent” of the murder for which he has been
convicted, which actual innocence would have excused his
noncompliance with the procedures ordinarily required for
habeas corpus proceedings to avoid his petition being barred by
the abuse-of-the-writ doctrine. We find Goldblum’s arguments
unpersuasive and thus will affirm the order of the district court,
thereby upholding the dismissal of his second habeas
application.




            II. FACTS AND PROCEDURAL HISTORY

       The events and procedural history leading up to this
appeal are quite complicated and lengthy. We therefore will
discuss them only as they relate to this appeal.

       A.     The Underlying Convictions

        At Goldblum’s Pennsylvania state-court trial on charges
of murder, arson, and insurance fraud, the prosecution put forth
the following facts. In 1974, Clarence Miller met George
Wilhelm. At that time, they discussed Wilhelm’s interest in
purchasing land in North Carolina on which Wilhelm planned to
search for semiprecious stones and gemstones. Miller
discovered that the land that Wilhelm was interested in
purchasing was federal forest land and was not for sale. Miller,

                                3
however, told Wilhelm that he would use his “political
connections” to assist him to purchase the land. Miller,
however, did not have these so-called “political connections.”
Instead, he devised a scheme to defraud Wilhelm in which he
planned to tell Wilhelm that he would work out a special
political deal with the help of a United States senator to obtain
the government-owned land.1

       Miller contacted Thaddeus Dedo and Goldblum to assist
him in executing this fraud. Dedo, under Goldblum’s guidance,
impersonated an actual member of the senator’s staff, Ken
Manella, and made several phone calls to Wilhelm confirming
the deal leading Wilhelm to give Miller a series of payments
totaling approximately $20,000 for the consideration to put
through the purchase. In exchange, Miller gave Wilhelm fake
deeds to land in North Carolina that Goldblum apparently
drafted.

        The scheme began to unravel when Wilhelm went to the
senator’s office to meet with “Ken Manella.” Wilhelm
immediately became suspicious that he had been defrauded
when the real Ken Manella appeared. Wilhelm reported his
suspicions to the Federal Bureau of Investigation. The FBI,
however, terminated its investigation when Goldblum and Miller
persuaded Wilhelm to withdraw his complaint in exchange for
Goldblum’s and Miller’s promise that Wilhelm would get his
money back. Wilhelm did withdraw it by asserting to the FBI
that his complaint was a hoax.

       The plot then thickened as the money to repay Wilhelm
was not readily available. In order to raise the money, Wilhelm
agreed with Goldblum to participate in an insurance fraud
scheme in which Wilhelm would set fire to a restaurant
Goldblum leased and operated, but Goldblum’s parents owned.
In return, Goldblum was to pay Wilhelm $3,500 in addition to
the money taken from him in the land fraud. The restaurant



       1
        There is not the slightest suggestion in the record that the
senator or anyone on his staff had any involvement in the scheme.

                                 4
burned to the ground as a result of arson on November 30, 1975.
Goldblum paid Wilhelm $100, but when no one paid Wilhelm
the remaining money, Wilhelm, who surely was not short of
nerve, began pressing Goldblum for payment and threatening
him that he would go to the authorities.

        Goldblum, understandably in view of Wilhelm’s previous
contact with the FBI, obviously took Wilhelm’s threats seriously
for on February 8, 1976, he told Miller that he intended to beat
Wilhelm up to discourage him from pressing him for the debt
payment or going to the authorities. Miller agreed to assist in
this plan by luring Wilhelm to the top floor of a parking garage
in exchange for $50 and Miller did so by telling Wilhelm that
Goldblum had the money he was due. On February 9, 1976, the
three of them, with Wilhelm driving, Miller sitting in the front
passenger seat, and Goldblum sitting in the back seat behind the
driver, drove to the top floor of a parking garage in downtown
Pittsburgh.

        This case revolves around what happened next, a matter
in some dispute. Miller contended at Goldblum’s trial that
Goldblum struck Wilhelm in the back of the head with a wrench
and Wilhelm fell out the car, at which time Goldblum began
stabbing him with a grass shear blade and Wilhelm fell over a
wall. Goldblum, on the other hand, claims that Miller and
Wilhelm got into a fight while in the car, leading to the stabbing,
following which Wilhelm opened his door to the car and fell to
the ground, at which time Miller flipped him over the wall. In
any event, Goldblum and Miller left the scene together and
agreed that they would say that they only had seen Wilhelm
earlier in the evening, but they were not with him at the time of
the murder.

       Wilhelm was found later that night, crying for help.
When police arrived at the scene, Wilhelm said to them,
“Clarence Miller did this to me.” Wilhelm died a few hours
later. The police arrested Miller and when he, in turn, implicated
Goldblum, police arrested Goldblum as well. Goldblum was
released on bail. The police, however, fortunately engaged in a
surveillance of Goldblum, during which he was observed

                                 5
arranging for Miller’s murder with an undercover detective.
Consequently, they arrested Goldblum on a charge for that new
offense and returned him to jail.

       The authorities filed a complaint against Goldblum in the
Court of Common Pleas of Allegheny County charging him with
murder and voluntary manslaughter of Wilhelm, criminal
conspiracy in relation to the fraudulent land deal, and arson and
criminal solicitation to commit arson of the restaurant.2 They
also charged Miller in the stabbing death of Wilhelm.

       Goldblum proceeded to trial. The prosecution argued that
Goldblum killed Wilhelm with the motive to silence him
regarding the arson that they had committed. Goldblum, on the
other hand, argued that he was not guilty of anything.3 The
defense focused on Miller’s obviously suspect credibility, as he
was the prosecution’s central witness, as well as the physical
evidence that, according to Goldblum, tended to establish that
Miller did the stabbing. In particular, Goldblum’s attorney
argued to the jury that while blood was found on Miller’s
overcoat, no blood was found on Goldblum’s clothes. He also
introduced circumstantial evidence relating to the pattern of the
blood spatter on the dashboard of the car that the three men had
occupied, which suggested that the person sitting to the right of
Wilhelm, i.e., Miller, not the person in the back seat, i.e.,


       2
         The allegations relating to the plan to murder Miller were
not part of Goldblum’s subsequent indictment. It is unclear from
the record if the Commonwealth ever charged Goldblum in the
scheme to murder Miller. Moreover, the assistant district attorney
at oral argument was unaware if the district attorney had brought
charges against Goldblum in the Miller scheme or, if there had
been such charges, whether Goldblum had been convicted of them.
       3
        Goldblum’s trial attorney wanted to argue that Goldblum
was, at most, guilty of involuntary manslaughter based on his
presence at the scene of the murder and his failure to prevent Miller
from stabbing Wilhelm. Though the trial judge agreed that that
argument advanced a viable defense, Goldblum did not want to
pursue it and, on the record, waived the presentation of the defense.

                                 6
Goldblum, did the stabbing. His attorney also introduced into
evidence Wilhelm’s dying declaration that “Clarence Miller did
this to me.”

        The court instructed the jury both on the theory that
Goldblum was guilty of murder in the first degree for the direct
assault and the theory that he was an accomplice to murder in the
first degree. On August 30, 1977, a jury found Goldblum guilty
of murder in the first degree for the death of Wilhelm, as well as
conspiracy to commit theft by deception, arson, and criminal
solicitation to commit arson.4 The court did not ask the jury to
determine whether Goldblum directly participated in the assault
or was an accomplice to Miller’s action, and the jury did not
make a finding on this point. The court sentenced Goldblum to
life in prison on the murder conviction and an additional 15 to 30
years imprisonment for the other offenses.

       Goldblum was unsuccessful on his direct appeal during
which he argued that Miller suffered from organic brain damage
that impacted on his ability to distinguish fact from fiction. See
Commonwealth v. Goldblum, 

(Pa. Super. Ct.
1980) (Superior Court affirming convictions except conspiracy
count), rev’d in part, 

(Pa. 1982) (Supreme Court
reversing Superior Court on conspiracy count and affirming
other convictions). The state courts similarly denied his petition
for post-conviction relief.

       B.     Goldblum’s First Federal Habeas Corpus Petition

        Goldblum subsequently sought relief in the federal courts,
filing his first petition for a writ of habeas corpus in the district
court on July 14, 1989. In that petition, he presented the
following two claims:

       1.     Whether the denial of [Goldblum’s] pretrial
              application for psychiatric examination of



       4
       At a separate trial, a jury convicted Miller of first-degree
murder as an accomplice.

                                  7
              the prosecution’s only eyewitness [Miller],
              coupled with the denial of his motion for [a]
              new trial based on after discovered
              evidence providing a basis for attacking the
              credibility of that witness, together denied
              [Goldblum] due process under the
              Fourteenth Amendment.

       2.     Whether the admission into evidence of the
              out-of-court declarations of Wilhelm that
              [Goldblum] had participated in the land
              fraud and that Wilhelm had participated in
              the arson of Goldblum’s restaurant deprived
              him of his right to confront the witnesses
              against him guaranteed by the Sixth and
              Fourteenth Amendments to the United
              States Constitution.

The district court denied his petition on the merits, following
which on Goldblum’s appeal we affirmed the order of the
district court without a published opinion on November 26,
1991. Goldblum v. Fulcomer, 

(3d Cir. 1991)
(table). The Supreme Court denied Goldblum’s application for a
writ of certiorari on April 27, 1992. Goldblum v. Fulcomer, 

, 

(1992).

       C.     Back to the State Courts

        After the completion of the unsuccessful habeas corpus
proceedings, Goldblum returned to the state courts, this time
filing a petition for post-conviction relief under the Post-
Conviction Relief Act (“PCRA”) on January 12, 1996, wherein
he raised a litany of issues, including the discovery of evidence
relating to forensic proof of blood spatter, Miller’s alleged post-
trial confessions, and ineffective assistance of counsel relating to
the failure of his trial attorney to investigate evidence pertaining
to the blood spatter and present the expert testimony of Dr. Cyril




                                 8
Wecht,5 a forensic pathologist, who would have testified that
based on the physical evidence Goldblum could not have been
the assailant. In support of this physical evidence theory,
Goldblum filed Dr. Wecht’s affidavit in which he “concluded to
a reasonable degree of medical certainty that Mr. Goldblum was
not the individual who inflicted the fatal stab wounds to Mr.
Wilhelm.” App. at 21. Dr. Wecht based this conclusion
substantially on the location of the blood spatter on the
dashboard, as well as the lack of blood on Goldblum’s clothes.
In addition, Goldblum submitted two other expert witnesses’
affidavits expressing opinions similar to those of Dr. Wecht.
Goldblum subsequently added a claim to his petition that his trial
attorney was ineffective for failing to object to the trial court’s
instruction on accomplice liability.

       On February 12, 1997, the state court dismissed the
petition without holding an evidentiary hearing, finding that all
of the claims Goldblum raised either had been litigated
previously or were too old to be considered. On Goldblum’s
appeal, the Superior Court affirmed, concluding that all his
claims were waived, previously litigated, or meritless, except the
claim that his trial attorney was ineffective for failing to call Dr.
Wecht as a witness at the trial. The Superior Court remanded
the case to the trial court for an evidentiary hearing solely on that
issue.

        The trial court held an evidentiary hearing on October 18,
October 19, and December 19, 2000. The first witness was
Goldblum’s trial attorney, H. David Rothman. Rothman testified
that he did not conduct an investigation with respect to the blood
spatter evidence because “the police did not photograph or
preserve the blood spatters that were found on the dashboard of
Mr. Wilhelm’s car.” He had not consulted a pathologist before
the trial because he believed, based on the literature he had seen,
that the evidence that could be developed would have been



       5
        Dr. Wecht was the coroner of Allegheny County when
Wilhelm was murdered in 1976 but he was not involved in this
case at the time of the murder and did not supervise it.

                                 9
unreliable. Therefore, Rothman argued at trial, without the aid
of expert testimony, that based on the circumstantial physical
evidence showing that the blood spatter went in the direction of
Miller, Miller was the killer.

         Dr. Wecht testified next, and on direct examination, he
expounded upon his affidavit. On cross-examination, however,
he conceded that there were other possible factual scenarios that
would explain the pattern of the blood spattering.6 The court
refused to take testimony from the other forensic experts who
would have supported Dr. Wecht’s opinion, and also would not
take the testimony of an expert in police investigation who was
critical of the lack of photographs of the dashboard and an
attorney who would have testified as to the actions Goldblum’s
trial attorney should have taken to investigate this case.

        The Commonwealth presented a rebuttal witness, Toby
Wolson, a forensic biologist employed by the Miami-Dade
Florida Police Department, who was testifying independently
from that relationship as a forensic consultant. Wolson testified
that the limited description of the blood spatter prevented both
Dr. Wecht and him from reaching a reliable conclusion as to the
identity of the assailant. Detective Ron Freeman had been the
only witness at the trial who explained the location of the blood
spatter. Freeman testified at the trial that:

       When I saw there were a small line of blood
       droplets, and it was not a lot of blood there, but
       they were discernable droplets and they started on
       the – toward the driver’s side was the largest spot,
       and then they descended into smaller circles, and
       each circle has what is called ‘a tail’ and the ‘tail’
       was facing toward the passenger side of the
       automobile and that indicated that blood came
       from left to right, as I faced it or traveled from the
       driver’s side of the automobile to the passenger’s



       6
        We will discuss the testimony of Dr. Wecht in greater detail
later. See infra at 43-47.

                                 10
       side of the automobile.

       On August 22, 2001, the state court issued an opinion and
order denying Goldblum PCRA relief, holding:

       [T]his Court is mindful that no photographs or
       other evidence of the blood stain existed. The
       testimony of both Dr. Wecht and Mr. Wolson was
       premised on the fact that Detective Freeman’s
       brief description [at the trial] of the blood stain
       was accurate. A review of the testimony presented
       indicated that both experts were hesitant to declare
       their findings absolute without being able to see
       the blood stain in question. Although the experts
       did make tentative findings, their testimony
       essentially amounted to speculation due to their
       inability to make conclusive findings.

App. at 265-66. The court explained its decision to exclude the
other potential witnesses on the basis that the limited scope of
the remand did not give it authority to hear that testimony.

        Goldblum appealed, but on October 24, 2002, the
Superior Court affirmed the denial of PCRA relief, concluding
that due to the “fundamentally inconclusive” nature of Dr.
Wecht’s testimony, the court could not conclude that the
outcome of the trial would have been different had Dr. Wecht
testified at the trial. 

The Superior Court also found
that the PCRA court’s decision to limit the testimony based on
the scope of the remand was proper. Subsequent petitions for an
allowance of appeal in the Supreme Court of Pennsylvania,
Commonwealth v. Goldblum, 

(Pa. 2003), and for
a writ of certiorari with the United States Supreme Court,
Goldblum v. Pennsylvania, 

, 

(2004), were denied.

       D.     Goldblum’s Second Federal Habeas Corpus
              Petition and Appeal

       On February 26, 2004, Goldblum filed a motion with us

                                 11
seeking authorization under 28 U.S.C. § 2244(b)(3) to file a
second petition for a writ of habeas corpus, which we granted on
March 29, 2004. Goldblum promptly filed his second
application for a writ of habeas corpus in the district court on
April 2, 2004, asserting the following claims as recast before the
magistrate judge:

       1.     Trial counsel (as well as successor state
              counsel) were ineffective for failing to
              investigate, preserve and produce vital
              scientific evidence of blood spatter that
              would have proven that the
              Commonwealth’s principal witness,
              Clarence Miller, was the person who
              stabbed and killed the victim, Mr. Wilhelm.

       2.     Trial counsel (as well as successor state
              counsel) was ineffective for failing to object
              to the state trial court’s erroneous and
              prejudicial instruction regarding accomplice
              liability. Specifically, there was no
              objection to (a) the trial court’s failure to
              instruct the jury that it could not find
              [Goldblum] as an accomplice unless they
              found beyond a reasonable doubt that
              [Goldblum] acted with the specific intent to
              kill in acting as an accomplice or (b) the
              trial court’s instruction to the jury that
              Clarence Miller was an accomplice of
              [Goldblum].

       3.     The trial court’s instruction to the jury on
              accomplice liability was constitutionally
              flawed and deprived [Goldblum] of due
              process of law.

       4.     The Commonwealth’s loss and/or
              destruction of the investigative files was
              done intentionally and with the purpose of
              depriving [Goldblum] of evidence that

                                12
              would support his legal claims, including
              his claim of innocence, all in violation of
              [Goldblum’s] right to due process of law.

       5.     Newly discovered evidence regarding the
              Commonwealth’s principal witness,
              Clarence Miller, provides strong proof that
              [Goldblum] is innocent of the crime of
              murder and that the conviction was based
              on perjured testimony. Mr. Miller has
              admitted stabbing the victim and, while he
              continues to insist that [Goldblum] was also
              involved, his admissions to a Warden and
              the State Attorney General are entirely
              inconsistent with his trial testimony, and are
              supportive of [Goldblum’s] claims of
              innocence. In these circumstances, this
              evidence provides grounds for a new trial
              on grounds of due process of law.

       6.     The state courts failed to provide
              [Goldblum] with a full and fair post-
              conviction hearing on these claims and
              thereby denied him due process of law.

Appellant’s br. at 29.

        On October 28, 2005, a magistrate judge to whom the
district court assigned the matter, without holding an evidentiary
hearing, issued a Report and Recommendation dismissing
Goldblum’s second application for a writ of habeas corpus on
the procedural ground that it did not satisfy the requirements for
second petitions. Based on our opinion in In re Minarik, 

(3d Cir. 1999), in which we discussed the retroactivity
of the AEDPA’s gatekeeping provision, the magistrate judge
examined Goldblum’s second application under both section
2244 of the AEDPA and its predecessor, the abuse-of-the-writ
doctrine. She began with her analysis under the AEDPA




                                13
standard found in 28 U.S.C. § 2244(b),7 and recommended
dismissal of Goldblum’s six claims because Goldblum either
had presented them in his first habeas corpus application, thus
requiring their dismissal under section 2244(b)(1), or he had not
presented them, and the claims did not rely on a new rule of
constitutional law or meet the two-part standard of section
2244(b)(2)(B).




       7
        Under section 2244(b)(4), the court must dismiss the claims
in the second petition unless they meet the substantive standard
under section 2244(b), which states:

       (b)(1) A claim presented in a second or successive
       habeas corpus application under section 2254 that
       was presented in a prior application shall be
       dismissed.

       (2) A claim presented in a second or successive
       habeas corpus application under section 2254 that
       was not presented in a prior application shall be
       dismissed unless–

       (A) the applicant shows that the claim relies on a
       new rule of constitutional law, made retroactive to
       cases on collateral review by the Supreme Court, that
       was previously unavailable; or

       (B)(i) the factual predicate for the claim could not
       have been discovered previously through the
       exercise of due diligence; and

       (ii) the facts underlying the claim, if proven and
       viewed in light of the evidence as a whole, would be
       sufficient to establish by clear and convincing
       evidence that, but for constitutional error, no
       reasonable factfinder would have found the applicant
       guilty of the underlying offense.

                                14
        The magistrate judge next analyzed the claims under the
pre-AEDPA standard “to determine if there [was] a conflict”
between pre- and post-ADEA standards in which event the
claims, if any, the pre-AEDPA regime did not bar would have to
be addressed on their merits in order to circumvent “a
retroactivity issue” with respect to the application of the AEDPA
. We discuss this retroactivity problem in detail below. The
magistrate judge set forth the abuse-of-the-writ standard
discussed in Minarik, 

, in which we concluded that
there is an abuse of the writ precluding claims presented in
second petitions unless (a) petitioner establishes “cause” for not
including the claim in the first petition and “prejudice,” or (b)
there would be a “fundamental miscarriage of justice” if the
claim is not reviewed on its merits. She held that Goldblum did
not establish “cause” for his failure to present his first claim
(ineffective assistance of counsel relating to the blood spatter
evidence) in the original habeas corpus petition, nor was there a
fundamental miscarriage of justice as there was no physical
evidence depicting the blood spatter which would have allowed
counsel to pursue the defense. She gave a presumption of
correctness to the PCRA court’s factual findings, rebuttable only
by clear and convincing evidence under 28 U.S.C. § 2254(e)(1),
with respect to the state court’s conclusion as to the
speculativeness of Dr. Wecht’s testimony.

        The magistrate judge also refused to grant Goldblum an
evidentiary hearing under 28 U.S.C. § 2254(e)(2), as she found
that the state court had developed the factual basis of his claims
sufficiently in conducting a lengthy hearing on the issue of
ineffective assistance and the state-court record included
extensive exhibits. She further concluded that even if Dr.
Wecht’s testimony had been introduced at trial, it certainly was
not “outcome determinative” in light of the overwhelming
evidence of guilt implicating Goldblum in the murder, and thus,
there was no miscarriage of justice.

       The magistrate judge concluded with respect to the
second and third claims (ineffective assistance of counsel
relating to his failure to object to the jury instruction regarding
accomplice liability), that there was no “cause” as the law

                                 15
governing the instruction was known at the time that Goldblum
filed his original habeas corpus petition. Nor was there a
“miscarriage of justice” in which the alleged error “probably
resulted in the conviction of one who is actually innocent” as the
jury charge sufficiently informed the jury that specific intent was
required to convict for first-degree murder on accomplice
liability.

       Similarly, as to the fifth claim (Miller’s admissions), the
magistrate judge found that there was no “actual prejudice” as
Miller’s out-of-court declaration, which we will describe below,
did not exonerate Goldblum. In fact, Miller continues to assert
that Goldblum participated in the killing, although Miller now
admits that he, too, inflicted some of the wounds. The
magistrate judge also recommended dismissal of Goldblum’s
fourth and sixth claims for similar reasons, but we need not
elaborate on this reasoning as this appeal does not focus on these
claims.

       Based on her conclusions that neither the AEDPA nor the
pre-AEDPA abuse-of-the-writ doctrine permitted Goldblum’s
second application, the magistrate judge recommended that the
court dismiss Goldblum’s second petition and that a certificate
of appealability (“COA”) not be issued. On December 13, 2005,
the district court issued an order adopting the magistrate judge’s
Report and Recommendation as the opinion of the court,
dismissing the petition for a writ of habeas corpus, and denying
the COA.

       Goldblum appealed on January 12, 2006. On November
6, 2006, we issued a COA limited to the following question:

       [W]hether the District Court erred in concluding
       that Goldblum’s habeas petition constitutes an
       abuse of the writ, as Goldblum has shown that
       reasonable jurists would debate not only whether
       the District Court was correct in that procedural
       ruling but also whether his petition states a valid
       constitutional claim. See Slack v. McDaniel, 

, 484, 

, 1604 

.

        Goldblum’s central arguments on this appeal are that the
magistrate judge, and thus the district court, erred in the
following three ways: she (1) was required to conduct an
evidentiary hearing to determine whether Goldblum abused the
writ; (2) applied the wrong legal standard under the “cause”
element of the abuse-of-the-writ doctrine; and (3) wrongly found
that Goldblum is not actually innocent of the murder for which
he has been convicted, thus excusing his procedural
noncompliance under the abuse-of-the-writ doctrine.




     III. JURISDICTION AND STANDARD OF REVIEW

       The district court had jurisdiction pursuant to 28 U.S.C.
§§ 2241 and 2254(a). Upon issuing a limited COA on
November 6, 2006, “on the question whether the District Court
erred in concluding that Goldblum’s habeas petition constitutes
an abuse of the writ,” we have jurisdiction over the appeal of
that specific issue pursuant to 28 U.S.C. §§ 1291 and 2253.

       It is appropriate at this time to comment on the scope of
the COA that we issued. The district court, by adopting the
magistrate judge’s Report and Recommendation as the opinion
of the court, dismissed Goldblum’s second habeas application on
the procedural ground that the AEDPA and its predecessor, the
abuse-of-the-writ doctrine, barred his petition. It did not reach
the merits of Goldblum’s constitutional claims, nor did it have
the authority to do so until it first determined whether
Goldblum’s application satisfied section 2244’s requirements.
See Benchoff v. Colleran, 

, 816 (3d Cir. 2005). At
times, the magistrate judge was compelled to address some
issues relating to the merits of Goldblum’s claims inasmuch as
they were implicated in the determination of whether
Goldblum’s claims met the threshold AEDPA and abuse-of-the-
writ second petition standards, particularly his claims of actual
innocence. This inquiry, however, does not take from our
conclusion that the district court, by adopting the Report and

                               17
Recommendation, dismissed the second petition on procedural
grounds.

       Thus, we reiterate that on November 6, 2006, we issued a
COA:

       [O]n the question whether the District Court erred
       in concluding that Goldblum’s habeas petition
       constitutes an abuse of the writ, as Goldblum has
       shown that reasonable jurists would debate not
       only whether the District Court was correct in that
       procedural ruling but also whether his petition
       states a valid constitutional claim. See Slack v.
       McDaniel, 

, 484, 

,
       1604 (2000).

It was certainly within our discretion to grant the limited COA
under 28 U.S.C. § 2253(c)(3), inasmuch as the district court in
the first instance should make a merits analysis of a habeas
corpus petition if one is to be made.

       Goldblum, nevertheless, contends in his brief that we
“granted the COA on the abuse of the writ question as well as
the validity of the constitutional claims.” Appellant’s br. at 7
n.2. He urges that “no remand is necessary as the evidence of
ineffectiveness of counsel cannot be disputed.” 

       Goldblum misunderstands our COA. It is clear that we
issued our COA only “on the question whether the District Court
erred in concluding that Goldblum’s habeas petition constitutes
an abuse of the writ.” Though we also stated that the question
was whether “Goldblum has shown that reasonable jurists would
debate not only whether the District Court was correct in that
procedural ruling but also whether his petition states a valid
constitutional claim,” that language in no way suggests that we
granted a COA on the merits of the constitutional issues.
Rather, Slack v. McDaniel, 

, 484, 

,
1604 (2000), required us to make that finding as it held:




                                18
       When the district court denies a habeas petition on
       procedural grounds without reaching the prisoner’s
       underlying constitutional claim, a COA should
       issue when the prisoner shows, at least, that jurists
       of reason would find it debatable whether the
       petition states a valid claim of the denial of a
       constitutional right and that jurists of reason would
       find it debatable whether the district court was
       correct in its procedural ruling.

 The purpose of this rule is to effectuate judicial efficiency as it
would be a waste of the courts’ and the litigants’ resources to
grant a COA on a procedural issue without a preliminary review
of the underlying claims, for if the claims are obviously without
merit and dismissal of the petition inevitably would be the result
even if the petitioner overcame the procedural hurdles facing
him, then further review of the procedural issue would be
pointless. For this reason, we must make a preliminary review
of the underlying claims even if we are granting a COA on the
procedural issue only. But certainly in such situations we are not
granting review of the merits of the petition, and should we find
in favor of the applicant on the procedural issue, we would
remand the matter to the district court to address the merits of
the case.

        Thus, in this case where we granted a COA only on the
issue of whether Goldblum abused the writ and because “[w]e
may not consider issues on appeal that are not within the scope
of the [COA],” we will not consider the merits of the underlying
constitutional claims. See Villot v. Varner, 

, 337
n.13 (3d Cir. 2004); see also 3d Cir. L.A.R. 22.1(b). If we were
to find in favor of Goldblum on the procedural issue, we would
remand the case to the district court to consider the merits of the
substantive claims. Of course, to the extent that we must take a
preliminary look at the merits of the claims in the context of the
abuse-of-the-writ determination, we will do so. See In re
Williams, 

, 282 (4th Cir. 2003) (“While this
determination [under section 2244] may entail a cursory glance
at the merits–for example, an applicant cannot show that he
would not have been convicted ‘but for constitutional error’

                                19
without adequately alleging some constitutional violation–the
focus of the inquiry must always remain on the § 2244(b)(2)
standards.”) .

       We review district court rulings on the abuse-of-the-writ
doctrine de novo. See Zayas v. INS, 

, 252 (3d Cir.
2002). We review the district court’s decision to deny an
evidentiary hearing for abuse of discretion. See Schriro v.
Landrigan, 

, 1939 (2007).




                        IV. DISCUSSION

       A.     Legal Framework of Second Applications Under
              the Abuse-of-the-Writ Standard and the AEDPA

        Prior to the enactment of the AEDPA in 1996, the
“doctrine of abuse of the writ define[d] the circumstances in
which federal courts decline to entertain a claim presented for
the first time in a second or successive petition for a writ of
habeas corpus.” McCleskey v. Zant, 

, 470, 

, 1457 (1991). When Goldblum filed his first federal
habeas petition in 1991, the law encompassed the abuse-of-the-
writ doctrine, which provided that a petitioner could prosecute
another such petition only if he could “(1) show cause for, and
prejudice from, the omission of his new claim or claims from his
earlier petition (i.e., that his proceeding would not constitute an
‘abuse of the writ’), or (2) demonstrate ‘actual innocence.’”

.

       The Supreme Court in McCleskey discussed the meaning
of “cause” and “prejudice” prongs, and the “narrow exception”
of “actual innocence,” as well as the burden-shifting framework
when the abuse-of-the-writ doctrine is raised.

       When a prisoner files a second or subsequent
       application, the government bears the burden of
       pleading abuse of the writ. The government
       satisfies this burden if, with clarity and

                                20
       particularity, it notes petitioner’s prior writ history,
       identifies the claims that appear for the first time,
       and alleges that petitioner has abused the writ. The
       burden to disprove abuse then becomes
       petitioner’s. To excuse his failure to raise the
       claim earlier, he must show cause for failing to
       raise it and prejudice therefrom as those concepts
       have been defined in our procedural default
       decisions. The petitioner’s opportunity to meet the
       burden of cause and prejudice will not include an
       evidentiary hearing if the district court determines
       as a matter of law that petitioner cannot satisfy the
       standard. If petitioner cannot show cause, the
       failure to raise the claim in an earlier petition may
       nonetheless be excused if he or she can show that a
       fundamental miscarriage of justice would result
       from a failure to entertain the claim.

, 111 S.Ct. at 1470 (internal
quotation marks and citations omitted).

         “Cause” requires “a showing of some external
impediment preventing counsel from constructing or raising the
claim.” 

111 S.Ct. at 1472 (internal quotation marks
and citation omitted). “[T]he question is whether petitioner
possessed, or by reasonable means could have obtained, a
sufficient basis to allege a claim in the first petition and pursue
the matter through the habeas process.” 

111 S.Ct. at
1472. Accordingly, “[i]f what petitioner knows or could
discover upon reasonable investigation supports a claim for
relief in a federal habeas petition, what he does not know is
irrelevant. Omission of the claim will not be excused merely
because evidence discovered later might also have supported or
strengthened the claim.” 

petitioner has established cause, he must show
actual prejudice resulting from the errors of which he
complains.” 

111 S.Ct. at 1470 (internal quotation
marks and citation omitted). “Actual prejudice” means “not
merely that the errors at [] trial created a possibility of prejudice,

                                  21
but that they worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.”
United States v. Frady, 

, 170, 

, 1596
(1982). See also Fischetti v. Johnson, 

, 155 (3d Cir.
2004).

        Even if a petitioner cannot show cause and prejudice, “the
failure to raise the claim in an earlier petition may nonetheless be
excused if he or she can show that a fundamental miscarriage of
justice would result from a failure to entertain the claim.”

, 111 S.Ct. at 1470. A court,
however, should exercise this authority only in a “narrow class
of cases,” i.e., in “extraordinary instances when a constitutional
violation probably has caused the conviction of one innocent of
the crime.” 

111 S.Ct. at 1470. “To establish the
requisite probability, the petitioner must show that it is more
likely than not that no reasonable juror would have convicted
him in light of the new evidence.” Schlup v. Delo, 

, 327, 

, 867 (1995).

        In 1996, when the AEDPA became effective Congress
changed the rules governing second petitions. The AEDPA
instituted a “gatekeeping mechanism” which imposed strict
procedural requirements and significantly altered the substantive
showing an applicant had to make in order to proceed on new
claims in a second petition.8 In Benchoff, 

, we set



       8
        We have held that the AEDPA gatekeeping scheme did
more than “simply put in statutory form what McCleskey had
already defined as abuse of the writ.” 

.
Instead, rather than supplanting the abuse-of-the-writ doctrine, to
which the Supreme Court has referred as “a complex and evolving
body of equitable principles informed and controlled by historical
usage, statutory developments, and judicial decisions,” Felker v.
Turpin, 

, 664, 

, 2340 (1996), the
AEDPA built on the doctrine. See 

. In this
regard, “the abuse of writ doctrine retains viability as a means of
determining when a petition should be deemed ‘second or
successive’ under the statute,” Benchoff , 404 F.3d at 817, and vice

                                22
forth the new procedural and substantive requirements which
govern second or successive habeas petitions under the AEDPA.
As a procedural matter, section 2244(b)(3)(A) requires a
prospective applicant, before he may file a second or successive
application in the district court, to “move in the appropriate court
of appeals for an order authorizing the district court to consider
the application.” A three-judge panel of the court of appeals
may grant the motion authorizing the district court to consider
the application “only if it determines that the application makes a
prima facie showing that the application satisfies the
requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(B),
(C). The court of appeals should make its determination no later
than 30 days after the filing of the motion, 

2244(b)(3)(D), and the decision “shall not be appealable and
shall not be the subject of a petition for rehearing or for a writ of
certiorari.” 

2244(b)(3)(E).

       Section 2244(b)(2) requires that the court of appeals deny
a motion to file a second or successive habeas petition unless:

       (A) the applicant shows that the claim relies on a
       new rule of constitutional law, made retroactive to
       cases on collateral review by the Supreme Court,
       that was previously unavailable; or

       (B)(i) the factual predicate for the claim could not
       have been discovered previously through the
       exercise of due diligence; and

       (ii) the facts underlying the claim, if proven and
       viewed in light of the evidence as a whole, would
       be sufficient to establish by clear and convincing
       evidence that, but for constitutional error, no
       reasonable factfinder would have found the
       applicant guilty of the underlying offense.



versa inasmuch as the terms of the AEDPA inform judicial
consideration with respect to abuse-of-the-writ inquiries. See

.

                                 23


2244(b)(2).

        If the court of appeals determines that the procedural
requirements for a second or successive petition have been met,
the applicant then is permitted to file the second or successive
application with the district court. But section 2244(b)(4) makes
it clear that before a district court may consider the merits of the
application, the petition must satisfy the substantive
requirements for it. As we put it in 

,
“[t]hese substantive gatekeeping provisions were intended to
reduce the universe of cases in which a habeas petition may go
forward on a second or successive petition.” In this regard, a
district court “shall dismiss any claim presented in a second or
successive application that the court of appeals has authorized to
be filed unless the applicant shows that the claim satisfies the
requirements of [section 2244(b)(2)].” 28 U.S.C. § 2244(b)(4).
We have made it clear that “[u]nless both the procedural and
substantive requirements of § 2244 are met, the District Court
lacks authority to consider the merits of the petition.” 

.

        In 

, we were asked to determine
whether section 2244’s gatekeeping provisions have an
“impermissible retroactive effect” in cases in which the applicant
filed his first petition prior to the AEDPA’s enactment and he
filed his second petition after the AEDPA’s enactment. Guided
by the Supreme Court opinions in Landgraf v. USI Film
Products, 

, 

(1994), and Lindh v.
Murphy, 

, 

(1997), we concluded
that, “[i]n those cases where a prisoner in state custody had a
right to prosecute a second or successive petition prior to
AEDPA’s passage, but would be deprived of that right by these
new gatekeeping provisions, . . . applying the AEDPA standard
would have a ‘genuine retroactive effect’ because it would attach
a new and adverse consequence to pre-AEDPA conduct–the
prosecution of the original proceeding.” 

.

       We distinguished AEDPA’s new procedural requirements
from its substantive requirements. We decided that the

                                 24
procedural requirement–that an applicant first must seek
authorization from a court of appeals before filing a second
petition under 28 U.S.C. § 2244(b)(3)(A)–applied retroactively
as it was a rule of procedure that did not “attach new legal
consequences to events completed before its enactment.”

(quoting 

,
117 S.Ct. at 2059). However, with respect to the new
substantive requirements, we found that if an applicant,

       can show that he would have been entitled to
       pursue his second petition under pre-AEDPA law,
       then the Landgraf default rule prohibits applying
       AEDPA’s new substantive gatekeeping provisions
       to bar his claims. In the absence of such a
       showing, however, applying those standards to [an
       applicant] results in no genuine retroactive effect,
       and the AEDPA standard must be applied under
       the Supreme Court’s holding in Lindh that
       AEDPA’s habeas corpus amendments apply
       generally to cases filed after its effective date.

Therefore we concluded that

       anyone seeking to file a second or successive
       petition under 28 U.S.C. § 2254 after April 24,
       1996, must move in the appropriate Court of
       Appeals for an order authorizing the District Court
       to consider the application. When such a motion is
       filed by a petitioner whose previous petition was
       filed before that date, the Court of Appeals must
       apply the substantive gatekeeping standards of 28
       U.S.C. § 2244(b) as amended by AEDPA unless
       such application would bar a second or successive
       petition that could have been considered by the
       District Court under the law existing at the time
       the previous petition was filed.

                                25
        Thus, in this case, there is no question that the AEDPA’s
procedural gatekeeping requirements for a court of appeals’
authorization apply and have been satisfied. We apply the
substantive gatekeeping standard of 28 U.S.C. § 2244(b),
“unless such application would bar a second or successive
petition that could have been considered by the District Court
under the law existing at the time the previous petition was
filed.” 

. Here, the district court by
adopting the Report and Recommendation as the opinion of the
court, concluded that both the substantive requirements of the
AEDPA and the pre-AEDPA abuse-of-the-writ doctrine bar
Goldblum’s claims. But, as we previously discussed, we
granted a COA only with respect to the abuse-of-the-writ
inquiry. Thus, under Minarik, should we agree with the district
court that Goldblum’s claims would be barred under the pre-
AEDPA abuse-of-the-writ doctrine, the AEDPA would not have
a genuine retroactive effect and we would affirm the district
court’s decision barring his claims under the AEDPA. As we
will discuss, we do reach this conclusion.

       B.     Goldblum’s Arguments

              1.     Goldblum’s Right to an Evidentiary
                     Hearing

        Goldblum’s attorney at the oral argument before us said
that all he was asking for was a hearing. Goldblum believes that
he is entitled to a district court evidentiary hearing for two
reasons: (1) we already found that Goldblum made a “prima
facie showing” as to section 2244(b)(2)’s substantive
requirements; and (2) the state court did not permit him to
develop the record fully. We find these arguments unpersuasive
for the reasons that follow.

       Goldblum first argues that our determination that he has
made a “prime facie showing” under section 2244, thus allowing
him to file his second petition, somehow required that the district
court hold an evidentiary hearing in making its threshold
determination under 28 U.S.C. § 2244(b)(4). Appellant’s br. at
17. More specifically, he states,

                                26
       This Court, based on specific factual allegations,
       permitted [Goldblum] to file a successor habeas
       petition under 28 U.S.C. §2244(b)(3)(A)(prima
       facie case that petitioner had either cause and
       prejudice to excuse failure to raise issues earlier or
       a demonstration of actual innocence). The district
       court nevertheless denied Goldblum an evidentiary
       hearing on these fully supported allegations and,
       on this incomplete record, ruled that Goldblum had
       ‘abused’ the writ.

        In reaching this conclusion, Goldblum misunderstands
our gatekeeping role in authorizing the filing of second or
successive petitions under the AEDPA. Though it well may be
that we have made neither the meaning of “prima facie showing”
under section 2244(b)(3)(A) nor how that meaning impacts the
district court’s section 2244 obligations clear, many other courts
of appeals have. Courts often have cited Bennett v. United
States, 

(7th Cir. 1997), as an instructive opinion in
this field. In Bennett, the Court of Appeals for the Seventh
Circuit held:

       By ‘prima facie showing’ we understand (without
       guidance in the statutory language or history or
       case law) simply a sufficient showing of possible
       merit to warrant a fuller exploration by the district
       court.[9] All that we usually have before us in



       9
         “[S]ufficient showing of possible merit” in this context
does not refer to the merits of the claims asserted in the petition.
Rather, it refers to the merits of a petitioner’s showing with respect
to the substantive requirements of 28 U.S.C. § 2244(b)(2). The
merits of the claims in a second petition may not be considered by
the district court until the application clears the “two gates” erected
under section 2244, that of the court of appeals and that of the
district court. In In re Turner, 

, 228 n.2 (3d Cir.
2001), we suggested that under Bennett an applicant may have to

                                  27
       ruling on such an application, which we must do
       under a tight deadline (see 28 U.S.C. §
       2244(b)(3)(D)), is the application itself and
       documents required to be attached to it, consisting
       of the previous motions and opinions in the case.
       We do not usually have a response from the
       government, though such a response is authorized.
       7th Cir. R. 22.2(c).[10] If in light of the documents
       submitted with the application it appears
       reasonably likely that the application satisfies the
       stringent requirement for the filing of a second or
       successive petition, we shall grant the application.
       The grant is, however, it is important to note,
       tentative in the following sense: the district court
       must dismiss the motion that we have allowed the
       applicant to file, without reaching the merits of the
       motion, if the court finds that the movant has not


make a “prima facie showing” that his underlying habeas corpus
claim has merit during the pre-filing authorization stage. We did
not perceive fully at that time what the court meant in Bennett, as
other courts subsequently have explained that case, and today we
conclude that the “prima facie showing” under section 2244 refers
merely to the pre-filing substantive requirements of section
2244(b)(2). See 

(“[T]he ‘showing of
possible merit’ alluded to in Bennett relates to the possibility that
the claims in a successive application will satisfy the stringent
requirements for the filling of a second or successive petition, not
the possibility that the claims will ultimately warrant a decision in
favor of the applicant.”) (internal quotation marks and citations
omitted).
       10
         We have similar rules. See 3d Cir. L.A.R. 22.5(a) (stating
that an application for authorization to file a second or successive
petition must be accompanied by the proposed new petition, all
prior petitions; copies of the docket entries; copies of all magistrate
judge reports, district court opinions, and orders disposing of prior
petitions; and any other relevant documents); 3d Cir. L.A.R.
22.5(d) (“Any response to the application must be filed within 7
days of the filing of the application with the clerk.”).

                                  28
       satisfied the requirements for the filing of such a
       motion. 28 U.S.C. § 2244(b)(4). The movant
       must get through two gates before the merits of the
       motion can be considered.

. At least seven other courts of
appeals have adopted this interpretation of “prima facie
showing.” See In re Lott, 

, 432-33 (6th Cir. 2004);

; In re Holladay, 

,
1173-74 (11th Cir. 2003); Bell v. United States, 

,
128 (2d Cir. 2002); Reyes-Requena v. United States, 

, 898-99 (5th Cir. 2001); Thompson v. Calderon, 

, 925 (9th Cir. 1998); Rodriguez v. Superintendent, Bay State
Corr. Ctr., 

, 273 (1st Cir. 1998), overruled on other
grounds by Bousley v. United States, 

, 

(1998). Today, we join them in adopting the meaning of
“prima facie showing” discussed in Bennett.

        In light of these principles, it is clear that Congress did
not intend to bind the district court in any way by a court of
appeals’ preliminary examination of the substantive
requirements under section 2244(b)(2), except to the extent that
if a court of appeals finds that a petitioner has made a prima
facie showing, the district court is obligated to conduct an
independent gatekeeping inquiry under section 2244(b)(4). This
limited effect of a court of appeals’ initial determination is
required because a court of appeals should make its
determination within an extremely tight deadline and on the
basis of a limited inquiry; thus, it is clear that Congress did not
intend that the court of appeals’ preliminary authorization
determine how a district court conduct its subsequent analysis.
The district court will need to make a more extensive inquiry
under section 2244(b)(4) and it “must conduct a thorough review
to determine if the motion conclusively demonstrates that it does
not meet AEDPA’s second or successive motion requirements,”

(internal quotation marks and
citation omitted). But a court of appeals is obliged only to make
a preliminary determination as to whether a petitioner has made
a “prima facie showing” with respect to those same
requirements, i.e., whether the petition makes “a sufficient

                                29
showing of possible merit to warrant a fuller exploration by the
district court,” 

. Nevertheless,
notwithstanding a district court’s obligation to make an
independent gatekeeping inquiry, a district court does not face a
requirement that it always conduct an evidentiary hearing in
undertaking this more thorough review. Rather, the decision of
whether or not to hold an evidentiary hearing is within the
district court’s discretion. See 

.

       Goldblum also contends that he is entitled to an
evidentiary hearing under section 2254(e)(2) because the state
court did not permit him to develop the record fully as the court
precluded the testimony of two forensic experts who would have
provided expert opinions similar to those of Dr. Wecht. Under
28 U.S.C. § 2254(e)(2),

       [i]f the applicant has failed to develop the factual
       basis of a claim in State court proceedings, the
       court shall not hold an evidentiary hearing on the
       claim unless the applicant shows that--

       (A) the claim relies on-- (i) a new rule of
       constitutional law, made retroactive to cases on
       collateral review by the Supreme Court, that was
       previously unavailable; or (ii) a factual predicate
       that could not have been previously discovered
       through the exercise of due diligence; and

       (B) the facts underlying the claim would be
       sufficient to establish by clear and convincing
       evidence that but for constitutional error, no
       reasonable factfinder would have found the
       applicant guilty of the underlying offense.11



       11
         While an argument can be made that section 2254(e)
should not apply at all in these circumstances because section 2244
requires a mere threshold determination that does not involve the
merits of the claims, section 2254(e) makes clear that it applies in
all proceedings “instituted by an application for a writ of habeas

                                30
        Thus, under section 2254(e)(2), if an applicant has
developed the factual basis of his claims in the state court, he is
not entitled to a federal evidentiary hearing. Furthermore, even
if the factual basis is not sufficiently developed, a petitioner
must demonstrate that his case falls within the very limited
circumstances listed in section 2254(e)(2)(A) and (B), and only
then is the district court permitted under the AEDPA, though not
required, to grant an evidentiary hearing. See Campbell v.
Vaughn, 

, 286-87 (3d Cir. 2000). We reiterate that
the decision to grant an evidentiary hearing is “left to the sound
discretion of district courts.” 

.
Additionally, the Supreme Court has made clear that “an
evidentiary hearing is not required on issues that can be resolved
by reference to the state court record,” as “[i]f district courts
were required to allow federal habeas applicants to develop even
the most insubstantial factual allegations in evidentiary hearings,
district courts would be forced to reopen factual disputes that
were conclusively resolved in the state courts.” 

(internal quotation marks and citation omitted). With these
principles in mind, we review Goldblum’s evidentiary hearing
contention.

       We disagree with Goldblum that the factual basis of his
claims was not developed sufficiently in the state-court
proceedings. The state court conducted a three-day evidentiary
hearing in which it heard the testimony of Goldblum’s trial
attorney, Mr. Rothman, his forensic expert, Dr. Wecht, and the
Commonwealth’s rebuttal forensic expert, Mr. Wolson. The
matter was on remand to the PCRA court on the sole issue of the
potential impact of Dr. Wecht’s testimony on the jury had it been
presented at trial. The state court on the remand permitted Dr.
Wecht to testify unimpeded with respect to his opinions. The
court, however, did not permit testimony from two other experts
who Goldblum planned to introduce to buttress Dr. Wecht’s
findings because their testimony exceeded the scope of the



corpus by a person in custody pursuant to the judgment of a State
court.” A determination under section 2244, while not on the
merits of the claims, falls within this language.

                                31
remand, although it did admit their affidavits. We conclude that
the testimony of Dr. Wecht in conjunction with the affidavits of
the proposed experts sufficiently established the factual basis of
Goldblum’s claims such that the issues he presented in his
habeas corpus petition “can be resolved by reference to the state
court record.” 

. Thus, Goldblum was not entitled to a
district court evidentiary hearing.

         Moreover, even if the state court should have regarded
the remand as broader in scope so that it permitted the other
experts to testify, a conclusion that the state courts did not reach,
it is clear that the experts’ opinions would have suffered from
the same fatal flaw as Dr. Wecht’s–the lack of photographs or
other physical evidence depicting the blood stains would have
made their testimony “tentative” and “essentially amount[ing] to
speculation,” as the state court concluded.12 Thus, their
testimony likely would have been excluded for, under
Pennsylvania law, a court only must entertain expert testimony
that would “assist the trier of fact to understand the evidence or
to determine a fact in issue,” P A. R. E VID. 702, and relevant
evidence “may be excluded if its probative value is outweighed .
. . by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” P A. R. E VID. 403. The
state standards are similar to those followed in the district courts.
Here, after concluding that Dr. Wecht’s findings were unreliable,
it would have been completely appropriate for the court to have
explained its discretion in precluding cumulative expert
testimony on the basis that it would not have been helpful to it in
understanding the evidence or determining a fact in issue.13


       12
         Of course, on appeal the Superior Court upheld the state
trial court’s limitation of the scope of the remand. We address the
point from an inquiry as to whether the record was developed
sufficiently for our analysis. We certainly do not review the
conclusion of the state courts on state law.
       13
         In a related point, Goldblum argues that because he was
not permitted to develop the state-court record fully, the magistrate
judge erred by applying the presumption of correctness to the state
court’s factual findings under 28 U.S.C. § 2254(e)(1), particularly

                                 32
       Even if we agreed with Goldblum that he has been denied
the opportunity to develop the factual record through no fault of
his own, and therefore section 2254(e)(2) did not preclude an
evidentiary hearing, such a finding does not necessarily entitle
him to one. See 

. Rather, it merely



in reaching the conclusion that Dr. Wecht’s testimony was
speculative. Under 28 U.S.C. § 2254(e)(1),

       In a proceeding instituted by an application for a writ
       of habeas corpus by a person in custody pursuant to
       the judgment of a State court, a determination of a
       factual issue made by a State court shall be presumed
       to be correct. The applicant shall have the burden of
       rebutting the presumption of correctness by clear and
       convincing evidence.

As discussed above, we find that Goldblum sufficiently developed
the state-court record, and, thus, we find no error in the magistrate
judge’s decision to apply the presumption of correctness to the
state court’s factual findings.

        Nevertheless, in an attempt to rebut this presumption,
Goldblum’s attorney emphasized at oral argument that the
Commonwealth “conceded” in its Answer to Goldblum’s “Motion
for Leave of Court to Serve Respondents with Request for
Production of Documents,” dated October 29, 2004, that Detective
Freeman provided a “detailed description” of the blood spatter.
We, however, do not see how this is relevant as the
Commonwealth’s categorization of the evidence is not binding on
the views of the experts or the court. Detailed or not, the
Commonwealth’s expert and the court found that the officer’s
recollection was not sufficient evidence on which an expert could
base his conclusion, and in the absence of photographs, the opinion
is unreliable. The Commonwealth’s alleged “concession” does not
change this determination, and, certainly, it does not constitute
clear and convincing evidence that would rebut the presumption as
to the correctness of the state court’s evaluation of Dr. Wecht’s
opinion.

                                 33
means that while a hearing is not prohibited under section
2254(e)(2), the district court still retains the discretion to grant a
hearing or not. See 

(“In cases where
an applicant for federal habeas relief is not barred from
obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the
decision to grant such a hearing rests in the discretion of the
district court.”); 

. “In exercising that
discretion, courts focus on whether a new evidentiary hearing
would be meaningful, in that a new hearing would have the
potential to advance the petitioner’s claim.” 

. For example, in Campbell we discussed the case of
Cardwell v. Greene, 

, 338 (4th Cir. 1998) (internal
quotation marks and citation omitted), in which the court held
that an evidentiary hearing was permissible under section
2254(e)(2) because it was the state’s fault that the factual record
was incomplete, but concluded that it was within the district
court’s discretion to deny an evidentiary hearing as the petitioner
“ha[d] failed to forecast any evidence beyond that already
contained in the record that would help his cause, or otherwise to
explain how his claim would be advanced by an evidentiary
hearing.”

        Likewise, in this case, the magistrate judge did not abuse
her discretion in refusing to grant Goldblum a new evidentiary
hearing, even if one was permitted under section 2254(e)(2).
Goldblum does not have any evidence beyond that already
contained in the state-court record that would help his cause.
While the state court did not permit two of Goldblum’s experts
to testify, their affidavits are part of the state-court record
submitted to the district court. Essentially then, Goldblum seeks
an evidentiary hearing on the sole ground that he has two more
experts, whose affidavits were before the district court, who will
present testimony echoing that of Dr. Wecht. The “bolstering”
testimony of the other experts does not have potential to advance
Goldblum’s claims as such testimony cannot overcome the fatal
flaw found by the state court, the magistrate judge, and the
district court–that absent forensic evidence confirming the
distribution of the blood stains, their findings are inconclusive
and unreliable. It would not be prudent to hold an evidentiary
hearing to reach a conclusion already inevitably reached, and,

                                 34
thus, the magistrate judge certainly did not abuse her discretion
in refusing to hear such duplicative testimony on an issue that
could readily “be resolved by reference to the state court record.”

.

        Goldblum makes two additional arguments related to this
point. First, Goldblum contends that “the district court could not
fairly adjudicate the claims of actual innocence” because it failed
to consider the experts’ affidavits that would confirm and bolster
Dr. Wecht’s findings. Appellant’s br. at 23. To the contrary, the
Report and Recommendation demonstrates that the magistrate
judge did consider the affidavits. See App. at 48 (“Indeed, Dr.
Wecht’s affidavit, and the affidavits of other forensic experts, do
appear to make a strong case . . . .”). However, she agreed with
the PCRA court that these affidavits were not probative in light
of the finding that the lack of physical evidence depicting the
blood stains made their opinions “indeterminate.”

       Second, Goldblum believes that the magistrate judge
applied “the wrong standard in determining whether Dr. Wecht’s
testimony supported a claim of actual innocence” as, according
to Goldblum, the testimony need not “unequivocally” or
“absolutely” exonerate him, but an expert “need only present
opinions to a reasonable degree of certainty.” Appellant’s br. at
25-26. Goldblum has confused the standard governing the
admissibility of expert testimony at trial under Federal Rules of
Evidence 702 and 703 with the high burden that he must meet to
excuse his failure to raise his claim in his first habeas petition
under the abuse-of-the-writ doctrine. The district court properly
concerned itself only with the latter point.

              2.     “Cause” under the Abuse-of-the-Writ
                     Doctrine

       Goldblum argues as well that the court “did not properly
apply the pre-AEDPA abuse of the writ standard.” 

The
magistrate judge found that Goldblum did not establish “cause”
for omission of the blood spatter claim from the first petition
because failure to exhaust remedies is not a sufficient excuse.
Likewise, she found that the failure to present the claims with

                                35
respect to the improper instruction on accomplice liability was
not excusable as the law governing the instruction was known at
the time of the first petition.

        Goldblum, however, believes that there is “cause” for
failing to present his claims in his first petition so long as the
claim was not withheld for “manipulative purposes” or was not
“deliberately withheld . . . in order to secure an opportunity to
pursue unnecessary, and thus vexatious, successive litigation.”

that in his case there “was no such ‘manipulative
purpose’ or attempt at vexatious litigation” as “[t]here is no
evidence that [he] had actual knowledge of his claim (as neither
he nor anyone on his behalf had considered or investigated the
claim) or that he deliberately withheld the claim to seek some
unfair advantage in a second habeas proceeding.” 

Moreover, he argues that since his blood spatter claim “would
have resulted in a ‘mixed petition’ and thereby would have been
subject to dismissal pursuant to Rose v. Lundy, 

,

(1982), there was no abuse of the process, and
surely no deliberate attempt to gain any litigation advantage.”
Appellant’s br. at 22.

        We conclude that Goldblum misstates the law.
Specifically, the Supreme Court has rejected the “good faith
‘deliberate abandonment’ standard” preferred by the dissent in

, 111 S.Ct. at 1477 (Marshall, J.,
dissenting), and instead has made clear that “[a]buse of the writ
is not confined to instances of deliberate abandonment.” 

111 S.Ct. at 1467. The Court concluded that deliberate
action is but one example of conduct that would disentitle a
petitioner from relief under the abuse-of-the-writ doctrine,
stating:

       [A] petitioner may abuse the writ by failing to raise
       a claim through inexcusable neglect. Our recent
       decisions confirm that a petitioner can abuse the
       writ by raising a claim in a subsequent petition that
       he could have raised in his first, regardless of
       whether the failure to raise it earlier stemmed from
       a deliberate choice.

                                36


111 S.Ct. at 1468. Thus, it is clear that the Supreme
Court in McCleskey held that a court does not have to find that a
petitioner had a “manipulative purpose” or acted with
“deliberateness” in withholding a claim from a prior petition in
order for the court to reject the petitioner’s contention that he
had “cause” under the abuse-of-the-writ doctrine for failing to
present the claim in his first petition when he files a subsequent
petition. See United States v. Barrett, 

, 49 (1st Cir.
1999) (holding that “[w]hether or not [petitioner’s] failure to
[include the claims in the first petition] was intentional is of no
moment” under McCleskey); Saahir v. Collins, 

,
119 (5th Cir. 1992) (finding petitioner abused the writ because
he “should have known” about the legal theories he failed to
advance in his first habeas petition); Campbell v. Blodgett, 

, 520 (9th Cir. 1992) (“To justify this costly litigation
strategy [of permitting second habeas petitions], be it deliberate
choice, procedurally-constrained decision, or neglect, a
petitioner must show cause for the omission and prejudice
therefrom.”).

        Goldblum’s reliance on the term “manipulative
purpose[],” in McCleskey is not meritorious as the term is in no
way inconsistent with the Court’s clear holding that
deliberateness is not required to establish cause. Put in its proper
context, the Court, in discussing the costs of federal collateral
litigation, stated, “habeas corpus review may give litigants
incentives to withhold claims for manipulative purposes and may
establish disincentives to present claims when evidence is fresh.”

, 111 S.Ct. at 1469. This
statement does not inject a deliberateness requirement into the
abuse-of-the-writ jurisprudence, but instead offers one of many
examples of conduct that would bar relief.

       We similarly reject Goldblum’s argument that we should
excuse his failure to include the blood spatter claim in his first
habeas corpus petition because the validity of the claim had not
been litigated in the state courts and would have resulted in a
“mixed petition” under Rose v. Lundy, 

, 

. We encountered this precise issue in Benchoff. There, we
determined that “Rose v. Lundy requires a petitioner to either

                                37
fully exhaust all claims prior to filing a petition or to raise both
exhausted and unexhausted claims in the first habeas petition.”

. In a case in which an applicant
chose the latter course, the petition would be dismissed without
prejudice and the applicant then properly could refile the petition
once all of the claims are exhausted and the refiled petition
would not constitute a second or successive petition. 

concluded that failure to exhaust a claim “is not an excuse
for [the petitioner’s] failure to raise the claim in his first
petition.” 

see also 

, 120 S.Ct.
at 1605 (“A petition filed after a mixed petition has been
dismissed under Rose v. Lundy before the district court
adjudicated any claims is to be treated as ‘any other first
petition’ and is not a second or successive petition.”). As in
Benchoff, Goldblum’s choice to withhold his blood spatter claim
from his first habeas corpus petition while he exhausted it in
state court rather than following the procedure prescribed by
Rose and its progeny bars this claim under the abuse-of-the-writ
doctrine.

              3.     “Actual Innocence” under the Abuse-of-
                     the-Writ Doctrine

                     a.      The new evidence

        Goldblum contends that even if he has not established
“cause” and “prejudice” under the abuse-of-the-writ doctrine, he
has demonstrated his “actual innocence,” and thus the district
court’s dismissal of his second petition was a “miscarriage of
justice.” Goldblum faces a very high burden with respect to this
assertion. The Supreme Court has instructed us that our
authority to excuse the failure to present a claim in the first
petition, absent “cause” and “prejudice,” only should be
exercised in a “narrow class of cases,” i.e., in “extraordinary
instances when a constitutional violation probably has caused the
conviction of one innocent of the crime.” McCleskey, 499 U.S.
at 

. “To establish the requisite probability,
the petitioner must show that it is more likely than not that no
reasonable juror would have convicted him in light of the new
evidence.” 

, 115 S.Ct. at 867.

                                38
        In Hubbard v. Pinchak, 

, 340 (3d Cir. 2004),
cert. denied, 

, 

(2005), we set forth a
two-step inquiry a court must take in deciding a claim of actual
innocence. First, a court must decide “whether the [petitioner]
has presented new reliable evidence . . . not presented at trial.”

marks and citation omitted). With respect
to this inquiry, the Supreme Court has held:

       [A] substantial claim that constitutional error has
       caused the conviction of an innocent person is
       extremely rare. To be credible, such a claim
       requires a petitioner to support his allegations of
       constitutional error with new reliable
       evidence–whether it be exculpatory scientific
       evidence, trustworthy eyewitness accounts, or
       critical physical evidence–that was not presented at
       trial. Because such evidence is obviously
       unavailable in the vast majority of cases, claims of
       actual innocence are rarely successful.

, 115 S.Ct. at 865 (internal citations
omitted). Thus, “[w]ithout any new evidence of innocence, even
the existence of a concededly meritorious constitutional violation
is not in itself sufficient to establish a miscarriage of justice that
would allow a habeas court to reach the merits of a barred
claim.” 

115 S.Ct. at 861.

        Second, only if a petitioner first puts forth new evidence
not considered by the jury does a court ask “whether it is more
likely than not that no reasonable juror would have convicted
him in light of the new evidence.” 

. In
making this second inquiry, a court “must consider all the
evidence, old and new, incriminating and exculpatory, without
regard to whether it would necessarily be admitted under rules of
admissibility that would govern at trial,” and “assess how
reasonable jurors would react to the overall, newly supplemented
record.” House v. Bell, 

, 2077, 2078 (2006)
(internal quotation marks and citation omitted). The Supreme
Court repeatedly has emphasized that



                                 39
       [t]he meaning of actual innocence . . . does not
       merely require a showing that a reasonable doubt
       exists in the light of the new evidence, but rather
       that no reasonable juror would have found the
       defendant guilty. It is not the district court’s
       independent judgment as to whether reasonable
       doubt exists that the standard addresses; rather the
       standard requires the district court to make a
       probabilistic determination about what reasonable,
       properly instructed jurors would do. Thus, a
       petitioner does not meet the threshold requirement
       unless he persuades the district court that, in light
       of the new evidence, no juror, acting reasonably,
       would have voted to find him guilty beyond a
       reasonable doubt.

, 115 S.Ct. at 868. [T]he petitioner
should be allowed to pass through the gateway and argue the
merits of his underlying claims” only “if a petitioner    ...
presents evidence of innocence so strong that a court cannot
have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless constitutional
error.” 

115 S.Ct. at 861.

        As applied to the case before us, the precedents we have
cited establish that it was Goldblum’s obligation to put forth
“new reliable evidence . . . not presented at trial,” 

(internal quotation marks and citation omitted), such
as “exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.” 

, 115 S.Ct. at 865. Goldblum points to two pieces of
evidence that he regards as “new reliable evidence” that
demonstrate his innocence: (1) a leading expert in blood spatter
evidence, Dr. Wecht, who did not testify at the trial with respect
to the blood spatter evidence, has offered his opinion that Miller,
and not Goldblum, murdered Wilhelm; and (2) Miller confessed
to a member of the State Board of Pardons and the attorney
general of Pennsylvania that he participated along with
Goldblum in the actual murder. While we have serious doubts



                                40
whether Dr. Wecht’s opinion constitutes either “new” 14 or
“reliable” evidence, or whether Miller’s confession is “reliable,”
we will assume for the purposes of this appeal that he has
satisfied step one of the two-step “actual innocence” inquiry. Of
course, the reliability of the evidence certainly should and will
be considered in step two of the analysis in which we must
predict the likely impact of the new evidence on the jury.

        We find that these circumstances do not present the
“extraordinary instance[]” where “it is more likely than not that
no reasonable juror would have convicted [Goldblum] in light of
the new evidence.” 

, 115 S.Ct. at 867
(emphasis added). This high standard supplies the basis by
which we are bound to judge this case and Goldblum’s showing,
for the reasons we will discuss, falls short.

        Goldblum points to seven pieces of evidence presented at
the trial which he believes “demonstrated that this was a one-
man assault, and the evidence pointed strongly towards Miller.”
Appellant’s br. at 9. First, he points to the dying declaration that
Wilhelm made to the police wherein he stated, “Clarence Miller
did this to me.” 15 Second, he distinguishes the small spot found
on his shirt cuff that no witness identified positively as blood
with the excessive blood found on Miller’s clothes. Third, he
believes that the defensive cuts on Wilhelm’s hands and multiple
cuts and slashes on his torso, front, back, head and face, show


       14
         Evidence is not “new” if it was available at trial, but a
petitioner “merely chose not to present it to the jury.” 

. In that situation, the choice not to present the
evidence “does not open the gateway.” 

not
contend that Dr. Wecht was not willing and able to testify at
Goldblum’s trial as to his opinion. Rather, the record shows that
Goldblum’s attorney chose not to obtain an expert opinion for the
trial.
       15
         This dying declaration clearly has two reasonable
interpretations. It is equally reasonable to believe that Wilhelm
could have been saying that Miller stabbed him or that Miller,
though not stabbing him, set him up for his demise.

                                41
that this was a one-person attack on a moving target. Fourth, he
alleges that there was no forensic evidence supporting Miller’s
contention that Goldblum began the assault by hitting Wilhelm
in the back of his head with a wrench. Fifth, Miller had fresh
scratches on his forearms and wrists 14 hours after the homicide
while Goldblum did not have any scratches. Sixth, black vinyl
gloves recovered from the scene were stained with Wilhelm’s
blood and had hairs consistent with Miller’s arm hair. Finally,
the blood spatter indicated that the blood was cast off in a left to
right movement, suggesting that the killer was in the front
passenger seat.16

        All of this evidence was presented to the jury. As we
have stated, now Goldblum raises two new pieces of evidence
which he believes support his claim of innocence: expert
testimony supporting his argument to the jury that the blood
spatter demonstrated that the killer sat in the front passenger
seat, and Miller’s confession to a member of the State Board of
Pardons and the attorney general of Pennsylvania that he and
Goldblum were involved directly in the murder. Essentially



       16
          Goldblum also has brought to our attention a letter dated
January 14, 1994, from the state trial judge supporting his
application for clemency, and an affidavit dated June 17, 1998,
from the trial prosecutor in which he indicates that in light of new
information unavailable to him at the time of trial (he does not
indicate what the new information is), he has “come to the very
firm conclusion that Charles Goldblum had nothing to do with the
murder of George Wilhelm other than being a frightened witness
to that murder and an accessory after the fact.” While these
documents are noteworthy, they are not evidence inasmuch as they
merely offer personal feelings about the case presented decades
after the trial and have no bearing in these proceedings given the
context of this case. Rather, the two letters would be material in an
attempt to obtain executive clemency, a type of proceeding not
constrained by established rules of judicial procedure. Of course,
we are not implying that if Goldblum seeks executive clemency or,
for that matter a parole, the deciding authority should consider the
letters as it is not our function to pass on that point.

                                 42
then, the question comes down to this: In the context of a
reasonable juror’s review of all of the evidence, is the expert
blood spatter evidence and Miller’s confession so persuasive and
exculpatory that all 12 members of a jury who voted to convict
Goldblum of first-degree murder now would change their minds
to the end that it is more likely than not that none of them would
vote to convict? 17 The answer to that question is undoubtedly
no.

        We start with our examination of Dr. Wecht’s expert
opinion. Dr. Wecht, an expert in forensic pathology, submitted
an affidavit wherein he “concluded to a reasonable degree of
medical certainty that Mr. Goldblum was not the individual who
inflicted the fatal stab wounds to Mr. Wilhelm.” App. at 21. He
based this opinion on a number of factors, though predominantly
on his finding that the blood spatter on the dashboard
demonstrated that the person in the front seat to the right of
Wilhelm, i.e., Miller, inflicted the stab wounds. Additionally, he
considered the lack of blood found on Goldblum’s clothes in
contrast to Miller’s heavily stained clothes, Miller’s blood-
stained gloves found at the crime scene, and Wilhelm’s dying
declaration.

        On direct examination at the PCRA remand hearing, Dr.
Wecht repeated his conclusion and elaborated on the bases for
his opinion. He opined that it was “highly implausible” that
Goldblum inflicted the wounds on Wilhelm given that blood was
not found on Goldblum’s clothes. 

Additionally, he
testified that the gloves found near the scene stained with
Wilhelm’s blood contained arm or hand hairs consistent with



       17
         We set forth this sentence in the form of all 12 members
of the jury reaching a different result because Schlup speaks in
term of “no” reasonable juror voting to convict in light of the new
evidence. Actually, we are confident that no reasonable juror who
voted to convict would not vote to convict after considering the
new evidence. Thus, by our framing of the inquiry we do not
intend to imply that some jurors might change their minds but some
would not.

                                43
Miller’s but not Goldblum’s. Also, Dr. Wecht found relevant
that Miller was observed the day after the murder with fresh
scratches on his arms and face, but no such scratches were found
on Goldblum. Most significantly, Dr. Wecht opined that the
blood spatter “cast off,” with the “tails” moving from left to
right as found on the dashboard, “are entirely consistent with and
buttress and support the conclusion” that Miller inflicted the
wounds as he was sitting in the front passenger seat next to
Wilhelm, rather than by Goldblum who sat in the rear driver’s-
side seat. 

        Cross-examination, however, significantly undermined
the definitiveness and reliability of Dr. Wecht’s opinion. In fact,
Dr. Wecht conceded that he could not “rule out” the possibility
that the blood came from Goldblum who got it on his hand when
“he was exiting the vehicle.” 

Moreover, he testified
that he even could not be certain that the spattered blood was
Wilhelm’s as it never was tested to ascertain whose blood it was.
He also conceded that someone in the back seat could have
caused the formation of the blood spatter by reaching over to the
front seat. Goldblum, of course, was sitting in the back seat. Dr.
Wecht agreed that the circumstance that Goldblum was wearing
two layers of clothing could explain the lack of blood found on
him.

        As we have indicated, the Commonwealth called a
forensic consultant, Toby Wolson, to respond to Dr. Wecht’s
testimony. Wolson found that because the description of the
blood spatter was “limited,” he was prevented from making “a
more reliable interpretation of the cause or nature of that
particular pattern.” 

He opined that there were “other
types of situations that may create [the] patterns” that Detective
Freeman described besides cast off. 

He concluded
that there was “[n]ot enough documentation to say which was
the most likely cause of [the] pattern,” as the spatter could have
come from stab wounds made by someone reaching over the
front seat or from defensive hand wounds from the victim. 

He opined that, in light of the lack of documentation, no
expert could reach any conclusion that was anything more than
“hypothetical,” 

to a conclusion as to who may

                                44
have done and created the pattern on the dashboard and window
is impossible.” 

He found that “due to the insufficient
documentation,” he could not “tell you if it was the person
sitting in the front seat or back seat.” 

With respect to
the dying declaration, he opined that it “is open to interpretation
as to what it really means,” and that the hair found on the bloody
gloves was not reliable as facial and body hairs, as opposed to
head and pubic hair, do not provide for a reliable forensic
evaluation. 

        In light of this evidence, we are satisfied that Dr. Wecht’s
expert testimony regarding the blood spatter would not have had
an appreciable, let alone heavy, impact on a reasonable juror in
this case for four reasons. First, Goldblum’s trial attorney
presented circumstantial evidence regarding the blood spatter
suggesting that the person in the front passenger seat, Miller, did
the stabbing. Indeed, Goldblum argued at trial that the weapon
with which Wilhelm was stabbed was withdrawn in a horizontal
motion, splashing a trail of blood horizontally across the
dashboard from the left to right towards the passenger seat. We
are satisfied that an expert opinion which merely recasts this
circumstantial evidence, that was well within the grasp of a
reasonable juror without the aid of an expert, would not have a
significant influence on a reasonable juror.

        Second, the reliability of Dr. Wecht’s opinions is certainly
suspect and a reasonable juror would not give enough weight to
them to change his or her mind as to Goldblum’s guilt. As Chief
Justice Roberts wrote in his dissent in House, “the new evidence
is not simply taken at face value; its reliability has to be tested.”

(Roberts. C.J., dissenting). It is clear
that the absence of photographs depicting the blood spatter, even
if it does not preclude Dr. Wecht from offering an expert
opinion, certainly casts doubt on the reliability of that opinion.
The Commonwealth’s expert, Mr. Wolson, testified that a
number of different scenarios could have caused the blood
spatter formation that Detective Freeman described, and, without
further documentation, any opinion as to the explanation for the
pattern of the blood spatter was mere speculation. Moreover,



                                 45
Dr. Wecht on cross-examination conceded that the evidence of
blood spatter did not rule out the Commonwealth’s theory.

        Third, Dr. Wecht’s conclusion that Goldblum did not
directly participate in the murder was partially the result of his
personal view of non-forensic evidence, such as Wilhelm’s
dying declaration, already before the jury. We do not see how
Dr. Wecht’s opinion on these particular matters, which in
actuality do not seem to require a great amount of scientific
expertise (if any at all) and were clearly comprehensible by the
jury at the trial, dispositively would have influenced them.18

       Lastly, the Commonwealth tried the case on the alternate
theory that Goldblum was an accomplice to the murder. Because
the jury did not make a specific finding as to whether Goldblum
was guilty as an accomplice or for committing the actual
stabbing, even if a jury believed Dr. Wecht’s speculative
testimony on the significance of the blood spatter, we see no
reason why it would have reached a different result.19 For these


       18
         It is not clear to us why the experts were permitted to give
their views of the significance of the dying declaration.
       19
         Goldblum contends that “[t]he state courts were . . . wrong
in ruling that the expert testimony would not have led to a different
result (and did not show innocence) on the theory that even if
Miller was the person who stabbed Wilhelm to death, Goldblum
could still have been convicted as an accomplice.” Appellant’s br.
at 26. He argues that “[i]t is impossible to determine whether the
jury found [him] guilty as the stabber or as an accomplice . . . [and
that] it must be assumed that the jury found that he directly
inflicted the mortal wounds.” 

on this contention to
argue that “[i]t is fundamental that a verdict cannot be sustained
where a jury may have decided on one of two grounds, one of
which would be impermissible,” citing Yates v. United States, 

, 

(1957), on this point.

      We need not linger on this point because in United States v.
Syme, 

, 144 (3d Cir. 2002), we indicated that we
follow the rule that “[w]hen a criminal defendant appeals a

                                 46
reasons, we conclude that a reasonable juror would not have
given significant weight to Dr. Wecht’s speculative expert
testimony in the sense that the testimony would have affected the
juror’s result.

       We now discuss the second piece of new evidence,
Miller’s confession. In a deposition on June 7, 1999, Richard
Gigliotti, at the time the warden of the Butler County Jail and a
member of the Pennsylvania Board of Pardons, testified that on
April 29, 1999, about a week before Goldblum’s Board of
Pardons’ hearing, he, along with the attorney general of
Pennsylvania, met with Miller at the Western Penitentiary and
asked him questions about Goldblum’s case. Preliminarily,
Miller told them that Goldblum was “the mastermind” behind
the land fraud. App. at 326. Miller also mentioned the arson but
Gigliotti could not give specific details regarding that aspect of
the case. Eventually, Miller told Gigliotti that he no longer



conviction in which the prosecution presented more than one
theory of guilt and the jury returned a general verdict . . . a
reviewing court should assume that the jury convicted on the
factually sufficient theory and should let the jury verdict stand.”
Though there is an exception in cases “if the indictment or the
district court’s jury instructions are based on an erroneous
interpretation of law or contain a mistaken description of the law,”

the exception is not applicable here.

       In applying Syme, we point out that Dr. Wecht’s testimony
merely would have been additional evidence that in no way could
have undermined the Commonwealth’s accomplice theory of guilt.
We will not by the use of some tortured logic confine Syme so that
it does not apply here. We also observe that this case is a
particularly appropriate one in which to apply Syme because even
though the Goldblum jury obviously could not have considered
Miller’s confession made long after Goldblum’s trial to a member
of the State Board of Pardons and the attorney general of
Pennsylvania, Goldblum is using the confession, which at a
minimum supports an accomplice theory of guilt, as a basis for his
actual innocence argument.

                                47
“denied direct involvement in the actual stabbing of [Wilhelm],”
but rather “he now openly admits his involvement along with
Goldblum’s involvement in the stabbing and murder of the
victim.” 

Specifically, Gigliotti testified that
Miller told him that “Goldblum was sitting in the back seat and
inflicted the first wound by coming over the shoulder of . . .
Wilhelm and stabbing him in, in the lower chest or stomach
area.” 

testified that Miller told him “Goldblum
definitely started the stabbing and then he took the blade from
Goldblum or Goldblum handed him the blade and Miller
continued the stabbing,” but Miller did not have a “clear
recollection” as to how many times each of them stabbed
Wilhelm. 

        Based on this testimony, Goldblum argues that “[w]hile
Miller continues to claim that Goldblum also took part in the
stabbing, this dramatic change of testimony is further substantial
evidence of the innocence.” Appellant’s br. at 36. We disagree.
After all, Miller’s statement to Giglotti, rather than exonerating
Goldblum, implicates him in the murder. At the very most,
Miller’s statement further impeaches his credibility, but this
effect is not significant. When assessing this type of new
evidence, we should “consider how the timing of the submission
and the likely credibility of the affiants bear on the probable
reliability of that evidence.” 

, 115 S.Ct.
at 870. Here, there already was considerable evidence before the
jury that Miller’s testimony was not credible. Among other
impeachment evidence, it was presented to the jury that he lied
to the police when he initially denied his involvement and then
later admitted that he had lured Wilhelm into the garage.
Miller’s different version of the events would not significantly
further harm his already strongly impeached testimony. The fact
that Miller may have decided to “come clean” more than 20
years after Goldblum’s criminal trial, if he did so, is not
persuasive. Moreover, while we do not understand why Miller
would have had a motive to lie to Gigliotti, we equally do not
understand why he would have a new motive to tell the truth at
that late date. Such evidence does not carry great weight.




                               48
        In sum, mere cumulative impeachment evidence, along
with Dr. Wecht’s expert testimony and all of the evidence
presented at trial, is not “so strong” that we do not have
“confidence in the outcome of the trial” such that “no reasonable
juror could have found [Goldblum] guilty.” 

, 

, 868 (emphasis added). Applying
what Chief Justice Roberts said in his dissent in House, “[t]he
question is not whether [Goldblum] was prejudiced at his trial
because the jurors were not aware of the new evidence, but
whether all the evidence, considered together, proves that
[Goldblum] was actually innocent, so that no reasonable juror
would vote to convict him.” 

(Roberts,
C.J., dissenting). While Goldblum may have been prejudiced by
his failure to present this new evidence, even with it he simply
cannot meet the stringent burden that applies to our review.

        A comparison of two recent cases, the Supreme Court
opinion in House, 

, and our opinion in Albrecht v.
Horn, 

(3d Cir. 2007), reinforces our conclusion. In

, the defendant was convicted of the
murder of Carolyn Muncey in spite of his contention at trial that
Mrs. Muncey’s husband committed the murder. The results of a
testing that the FBI ran on Mrs. Muncey’s nightgown and panties
and defendant’s jeans were central to the prosecutor’s case. 

Specifically, at trial the prosecution presented evidence
that semen consistent with the defendant’s was found on Mrs.
Muncey’s nightgown and panties, and small bloodstains
consistent with her blood were found on the defendant’s jeans.
The prosecution argued, and the jury apparently believed, that
the defendant committed or attempted to commit a sexual assault
on Mrs. Muncey and killed her when she resisted.

       The defendant sought habeas corpus relief asserting
claims of ineffective assistance of counsel and prosecutorial
misconduct. 

The government argued that the claims
were procedurally defaulted because the defendant did not raise
them in his first post-conviction proceeding in the state court.
The defendant responded that he had new evidence that
undermined the semen and blood evidence the prosecution
introduced at trial, and thus, his procedural default should be

                               49
excused under the “actual innocence” theory. The Supreme
Court agreed with the defendant.

      The defendant introduced three key pieces of new
evidence. First, he presented new DNA testing showing that the
semen found on Mrs. Muncey’s nightgown and panties came
from her husband and not from him. 

The Court
concluded that this new evidence cast doubt on the sexual
motive presented by the prosecution at trial and removed key
physical evidence linking the defendant to the crime. 

        Second, the defendant presented the expert testimony of a
forensic pathologist who testified that the blood found on the
defendant’s pants “was chemically too degraded, and too similar
to blood collected during the autopsy, to have come from Mrs.
Muncey’s body on the night of the crime.” 

The
defendant also presented evidence revealing that the blood vials
from the autopsy were packed in a cardboard box with the
defendant’s pants during the transport of the evidence to the FBI,
in violation of proper procedure, and that roughly a vial and a
half of the blood samples spilled during the transport. 

found that “the evidentiary disarray surrounding the
blood” along with the expert’s testimony “would prevent
reasonable jurors from placing significant reliance on the blood
evidence.” 

       Third, the defendant supplied evidence from people who
knew the Munceys, suggesting that the other main suspect in the
case, Mr. Muncey, regularly abused his wife, as well as
testimony that Mr. Muncey confessed to the murder around the
time of the defendant’s trial and that Mr. Muncey had the
opportunity to commit the crime. 

The Court
found that while “[t]he evidence pointing to Mr. Muncey is by
no means conclusive” and “[i]f considered in isolation, a
reasonable jury might well disregard it,” “[i]n combination . . .
with the challenges to the blood evidence and the lack of motive
with respect to [the defendant], the evidence pointing to Mr.
Muncey likely would reinforce other doubts as to [the
defendant’s] guilt.” 

                               50
       Based predominantly on these three pieces of evidence,
the Court concluded that while “[t]his is not a case of conclusive
exoneration” and some of the evidence “still support[s] an
inference of guilt,” “the central forensic proof connecting [the
defendant] to the crime–the blood and the semen–has been
called into question, and [the defendant] has put forward
substantial evidence pointing to a different suspect.” 

As we pointed out in Albrecht, with respect to 

, “[t]he new DNA evidence effectively destroyed the
theory of rape as the motive for the murder,” and “[w]ithout the
blood evidence, [the defendant] did not have a motive, but the
victim’s husband did.” Thus, the Supreme Court found that
“although the issue is close,” this was “the rare case where, had
the jury heard all the conflicting testimony, it is more likely than
not that no reasonable juror would lack reasonable doubt.”

.

        In contrast to House, in 

, we
found that a defendant, who was convicted of first-degree
murder, two counts of second-degree murder, and arson for
causing the death of his wife, mother, and daughter by setting
the family home on fire, did not present new evidence
establishing his “actual innocence” that would have permitted
him to proceed with his habeas corpus petition despite the
forfeiture of his state habeas corpus claims on procedural
grounds. At trial, the crux of the prosecution’s case was that an
act of arson caused the fire and the identity of the arsonist could
be inferred from the violence and hostility the defendant had
directed toward his wife in the months before the fire, including
recent threats of burning down the house. As evidence that the
fire was the product of arson, the prosecution introduced the
testimony of a fire expert who opined that based on the char
patterns, the arsonist started the fire by igniting gasoline that had
been poured on the floor. The defendant, on the other hand,
while admitting that he abused his wife, argued that a cigarette
left to smolder in an upholstered chair accidentally started the
fire.

      The defendant sought habeas corpus relief, arguing “that
new developments in fire science prove his claim of actual

                                 51
innocence,” thereby excusing the procedural default of his state
habeas corpus claims. 

In particular, the defendant
presented the testimony of a fire protection engineer who opined
that “all of the observations relied on by [the prosecution’s fire
expert] to support his conclusion that the fire was set in the
kitchen using gasoline . . . are now understood to be equally
consistent with an accidental fire that resulted in full room
involvement.” 

Thus, he believed “that the fire
could have been accidental in origin,” as “fire-scene evidence of
an accidental fire that has reached full room involvement is
indistinguishable from the evidence seen after an incendiary fire
that likewise affected the full room.” 

        A critical issue before us was whether “in light of [the]
new evidence . . . ‘it is more likely than not that no reasonable
juror would have found petitioner guilty beyond a reasonable
doubt.’” 

(quoting 

, 115 S.Ct.
at 867). We held that the defendant had not satisfied his burden.
First, we pointed out that the defense expert’s opinion did not
rule out the possibility that the fire was set intentionally, as
concluded by the prosecution’s expert at trial.

        Second, we compared the case to the circumstances
before the Supreme Court in House. In House, the new evidence
undermined the original evidence pointing to the identity of the
murderer and the motive for the murder. On the other hand, the
new evidence in Albrecht merely “raised questions about the
alleged incendiary nature of the fire, while identity and motive . .
. were established by other evidence,” and “[t]he substantial
remainder of the Commonwealth’s case has not been discredited
and provides ample evidence of guilt.” 

defense expert’s testimony “did nothing to undermine the
Commonwealth’s damaging evidence of [the defendant’s]
pattern of hostility and violence toward [his wife], his attempt to
purchase gasoline to put in a can the day before the fire, the
immediate discovery of the empty hydraulic oil can in the trunk
of his car that tested positive for gasoline, and his numerous
threats to burn down the house and do further harm to his wife.”

we found that the testimony of the defendant’s
new expert did not carry much weight because his testimony
was similar to the trial testimony of another defense expert that
the jury apparently rejected, and even of the testimony of the
prosecution’s expert, who though he testified at trial that the fire
was ignited with gasoline, on extensive cross-examination
testified as to some facts that supported the defense’s theory.
Based on this analysis of the testimony, we found that the
defendant “cannot exploit the new scientific knowledge here,
assuming for the sake of argument that it is new, because of
ample other evidence of guilt” such that we could not “conclude
that, had the jury heard all the conflicting testimony, it is more
likely than not that no reasonable juror viewing the record as a
whole would lack reasonable doubt.” 

       The teaching of House and Albrecht surely is that an
actual innocence inquiry is fact intensive and we painstakingly
have made such an inquiry here. We find that the new evidence
put forth in this case is much more in line with the evidence in
Albrecht than the evidence in House. In House, the new
scientific blood and semen evidence removed the alleged sexual
motive presented to the jury at trial and suggested that the
defendant was not even at the scene of the murder, just as the
defense argued at trial. As the Supreme Court concluded, “the
central forensic proof connecting [the defendant] to the crime . .
. has been called into question.” 

. The
case before us is significantly different. In our case, the blood
spatter evidence and Miller’s confession do not detract from
Goldblum’s motive for the murder, as it is clear that he still had
a motive to relieve himself of the debt due Wilhelm and
eliminate Wilhelm’s threats of reporting his illegal activities to
the authorities. Additionally, the new evidence does not remove
Goldblum from the scene of the murder. In fact, Miller’s
confession puts him there as a participant which, of course, is
what the prosecution contended at the trial.

       In contrast to the new evidence in House, the new
evidence in our case is materially indistinguishable from the
evidence in Albrecht. First, the evidence here and in Albrecht
did not eliminate the possibility that the crime occurred as set

                                 53
forth by the prosecution at trial. Like the fire expert’s opinion in
Albrecht that did not eliminate the possibility that the defendant
intentionally set the fire as the prosecution argued at trial, Dr.
Wecht similarly conceded that his opinion left open the
possibility that Goldblum, who sat in the back seat, could have
done the stabbing.

        Second, like the expert testimony in Albrecht, Dr.
Wecht’s testimony would not carry significant weight with the
jury. The defense in this case put forth strong circumstantial
evidence at trial that the blood spatter demonstrated that the
front-seat passenger did the stabbing and it argued for adoption
of this theory to the jury. There is no indication that expert
testimony on this point would lead to a different conclusion.
Additionally, as demonstrated by the cross-examination of Dr.
Wecht at the PCRA hearing and the convincing testimony of the
Commonwealth’s expert, Mr. Wolson, Dr. Wecht’s opinions are
subject to significant impeachment grossly undermining his
conclusions. We are convinced that a reasonable juror would
reach the same conclusion that we reach.

       Finally, like the evidence in Albrecht with respect to the
facts of that case, the new evidence here does not undermine
evidence of Goldblum’s motive to kill Wilhelm, nor does it
remove him from the scene of the murder. At the very most, if
the jury had believed the new evidence, while there would have
been a question how Wilhelm’s killing unfolded, the new
evidence would not have absolved Goldblum from the
commission of the crime. After all, he initiated the scheme to
lure Wilhelm to the parking garage, was present at the murder
scene, had a strong motive to kill Wilhelm to cover up other
crimes that he had committed and eliminate the debt he owed,
conspired with Miller to create an alibi, and attempted to hire an
assassin to kill Miller, the prosecution’s main eyewitness, after
being arrested for the murder. The new evidence did nothing to
undermine this very damaging evidence. In light of the
foregoing, we simply cannot conclude that no reasonable juror
would vote to convict Goldblum even considering the new
evidence.



                                 54
                     b.      The jury instruction on accomplice
                             liability

         There is yet one more issue on this appeal. The Supreme
Court in Schlup stated that the actual innocence standard
requires the court “to make a probabilistic determination about
what reasonable, properly instructed jurors would do.” 

, 115 S.Ct. at 868 (emphasis added). In this
regard, Goldblum asserts in his habeas corpus petition that his
trial attorney was ineffective for failing to object to the jury
charge on accomplice liability. While, as we already have
explained, we do not make an ultimate determination of the
merits of the case, we must evaluate the instruction to decide if it
was erroneous, and assuming it to have been incorrect, if its
correction, in conjunction with the allegedly new evidence,
would change the jurors’ minds as to Goldblum’s guilt.

      The trial court judge gave the following instruction
concerning accomplice liability:

               Now running through this case is the legal
       question of an accomplice. A person may be guilty
       of a crime although he did not commit the specific
       offense. This occurs when he acts as an
       accomplice of the one who commits the crime. A
       person is an accomplice or legally accountable for
       the conduct of another when he: 1. With intent of
       promoting or facilitating the commission of a
       crime he aids or agrees or attempts to aid such
       other person in planning or committing the crime
       or he solicits such other person to commit the
       crime.

              Now, in order to find a person guilty as an
       accomplice, the evidence must be established
       beyond a reasonable doubt of a shared criminal
       intent with the other person. That is, both persons
       must intend that the criminal act occur.




                                55
        Now, what does that mean? By ‘shared
criminal intent’ we mean that both men, to be
found guilty, even though only one committed the
act, both intended that the specific crime, which
was completed, was intended. An example
follows: If two men specifically agree that they are
going to kill another man, and one man holds him
and the other man shoots him, they are both guilty
of first degree murder because one was an
accomplice in the holding and the man who fired
the shot, of course, is guilty of first degree murder
because he inflicted the wound.

         Another example of accomplice, in the law,
is this: If two men agree to rob a bank and one man
stands outside as the lookout and another man goes
in, and the man who is inside the bank shoots and
kills a teller, they are both guilty of first degree
murder, including the man standing out front,
because he was an accomplice who was actively
aiding the man who was inside the bank
performing the robbery and both men should be
guilty of first degree murder because of a shared
criminal intent to commit that specific crime.

       Now, an accomplice is one who knowingly
and voluntarily cooperates or aids another in
committing a crime. He is not merely a passive
bystander who happens to observe an illegal act
and does not participate in it. Nor is he someone
who sees a crime being committed and fails to
report it to the police. Instead, an accomplice is
someone who knowingly, voluntarily and
purposely joins with someone else in the
performance of that specific crime.

        Now, the Commonwealth of Pennsylvania
contends that the defendant, Charles Goldblum,
either killed George Wilhelm himself or was an
accomplice with Clarence Miller in that killing.

                         56
       Most significantly the judge later instructed the jury on
application of accomplice liability to the specific facts of the
case:

               In addition, if you find that evidence
       established beyond a reasonable doubt that Charles
       Goldblum was an accomplice with Clarence Miller
       in the intentional killing of George Wilhelm, you
       may find the defendant guilty of first degree
       murder. In that event, you have to conclude that
       both Goldblum and Miller intended to kill George
       Wilhelm when they took him up there [to the
       parking garage] and that Goldblum was an
       accomplice with Miller in the killing of Mr.
       Wilhelm. So, in that event, if you find that the
       defendant intentionally killed George Wilhelm,
       you may find him guilty of first degree murder. If
       you find that he was an accomplice in such a
       killing, as I have defined that, you may also. On
       the other hand, if you find that the evidence has
       failed to establish beyond a reasonable doubt that
       George Wilhelm on the night in question, or failed
       to establish that Charles Goldblum was an
       accomplice with Clarence Miller in the intentional
       killing of George Wilhelm, you must find the
       defendant not guilty of first degree murder.
       (Emphasis added.)

         Goldblum believes the instruction was “plainly
erroneous” as it did not require the Commonwealth to prove that
Goldblum had the specific intent to kill, which is an element of
first-degree murder under Pennsylvania law. Appellant’s br. at
31-32. Specifically, he takes issue with (1) the “shared intent”
language in the first instruction which he contends misled the
jury into believing that he need not have his own specific intent
to kill, i.e., the flaw in the robbery example, and (2) the
suggestion in the second instruction that a finding that he is an
accomplice compels the jury to conclude that he had the specific
intent to kill, which he argues “places the proverbial cart before
the horse.” 

The Commonwealth believes that,

                                57
overall, the instruction was accurate and that any error in it was
overcome by the charge as a whole. In this regard, the
Commonwealth argues that the instruction, when read in its
entirety, made it clear that the jury needed to find that Goldblum
possessed the intent to murder Wilhelm in order to find him
liable as an accomplice.

        Laying aside the fact that Goldblum does not contend that
his trial attorney objected to this aspect of the charge at the trial,
and the inference that we can draw from the absence of an
objection that he saw no prejudice from the charge, we
independently agree with the Commonwealth. It is well-settled
that under Pennsylvania law a defendant cannot be convicted of
first-degree murder as an accomplice “unless the Commonwealth
proves that he harbored the specific intent to kill.” Smith v.
Horn, 

, 410 (3d Cir. 1997). “The Commonwealth
need not prove that the defendant actually performed the killing,
but it must prove he intended for the killing to occur.” 

omitted). “In considering whether the jury
instruction in this case adequately convey[s] this critical feature
of Pennsylvania homicide law, we focus initially on the language
that is claimed to be erroneous, but we must review this portion
of the instructions in the context of the charge as a whole.”
Bronshtein v. Horn, 

, 710 (3d Cir. 2005) (internal
quotation marks, citation, and footnote omitted), cert. denied,

(2006). “The proper inquiry is whether there is a
reasonable likelihood that the jury has applied the challenged
instructions in a way that violates the Constitution.” 

we must determine when reviewing the challenged portion
of the instructions in the context of the charge as a whole,
whether there is a reasonable likelihood that the jury convicted
Goldblum of first-degree murder without finding beyond a
reasonable doubt that he intended the killing of Wilhelm.

       Goldblum directs us to two cases: Smith, 

,
and Laird v. Horn, 

(3d Cir. 2005), cert. denied, 

(2006), both arising from state court convictions. We
decided in both cases that the jury charge on accomplice liability
lacked the critical instruction that the jury must find that the



                                 58
defendant had the specific intent to kill. Those cases, however,
are clearly distinguishable from the one before us.

       In Smith, Smith and another individual, Alston, entered a
pharmacy with the intention of robbing it, and in the course of
the robbery, a fatal gunshot wound was inflicted to the head of a
person named Sharp. 

. Smith was tried
on the homicide charge. 

instructions on homicide
included the following language:

       [I]f . . . you find that Smith and Alston were
       accomplices of each other, then it is not important
       for you to determine which one actually pulled the
       trigger that brought about the killing of Richard
       Sharp, if you find beyond a reasonable doubt that
       one of the two did so and were [sic] acting as the
       accomplice of each other at the time. In order,
       however, to find Clifford Smith to be guilty, you
       need not conclude, as I said, that he was the actor;
       that is, if I can use the word ‘shooter,’ but he was,
       nevertheless, acting as an accomplice of Alston
       and it was his intent of promoting or facilitating
       that act and the killing was done in furtherance of
       the robberies, if you so find, then he would be
       guilty as though he were the actual perpetrator . . . .

(emphasis added). The court continued:

       If, and I emphasize this, you find that one was the
       accomplice of the other and that one of the two
       actually performed the killing, you, the jurors, need
       not agree on the role or roles played by the
       respective parties; that is, by this defendant and his
       accomplice, if you find that that was the position
       of both, provided that each of you is satisfied that
       the crime was actually perpetrated by the
       defendant or by the accomplice of the defendant.

The court then instructed the jury on
first-degree murder:

                                 59
       [T]he elements of first degree murder are the
       unlawful killing of anther person done
       intentionally . . . plus malice . . . . If these
       elements have been established beyond a
       reasonable doubt, you may, on the theory that one
       was the perpetrator and the other the accomplice,
       find Clifford Smith guilty of murder in the first
       degree . . . .

these instructions, the jury convicted Smith of the
first-degree murder charge. 

        The case came before us on an appeal after the district
court denied a petition for habeas corpus. Smith argued that “the
jury was incorrectly instructed that if it found beyond a
reasonable doubt that one of the men had the specific intent to
kill, and that Smith intended to commit the robbery that resulted
in the killing, this would be sufficient to convict Smith of first-
degree murder.” 

We agreed with Smith, finding that
“[a] fair reading of the jury instructions . . . permitted the jury to
convict Smith of murder in the first degree without first finding
beyond a reasonable doubt that Smith intended that Sharp be
killed.” 

Specifically, we were concerned with the
fact that the charge repeatedly used the word “accomplice” in
isolation, without indicating whether the trial court was using the
word in reference to the robbery, the killing, or both. 

12. “The charge thus blurred the distinction between
‘accomplice in the robbery’ and ‘accomplice in the killing,’
leading the jury to believe that an accomplice for one purpose is
an accomplice for all purposes . . . [and] allowed Smith to be
convicted of first-degree murder if the jury found that either he
or his accomplice in the robbery intended to kill Sharp.” 

        Likewise, in Laird, Laird and a co-defendant met a third
man at a bar, following which the three men left together shortly
after the bar closed. 

. The third man was
found dead the following evening. 

the co-
defendant jointly were tried for the murder, as well as related
charges including kidnaping, aggravated assault, unlawful

                                 60
restraint, false imprisonment, conspiracy, and possession of an
instrument of crime. 

While both admitted to their
participation in the kidnaping and being present when the victim
was killed, they pointed their fingers at each other claiming that
the other defendant inflicted the fatal wounds. 

426.

        At trial, the court gave an instruction on accomplice
liability which included the charge that a defendant

       is an accomplice . . . if with the intent of promotion
       or facilitating commission of a crime he solicits, or
       commands or encourages or requests the other
       person to commit it or if he aids, agrees to aid, or
       attempts to aid the other person in planning the
       crime or committing the crime . . . . You may find
       the defendant guilty of a particular crime on the
       theory that he was an accomplice so long as you
       are satisfied beyond a reasonable doubt that the
       crime was committed and the defendant was an
       accomplice of the person who committed it.

The court then gave the following instruction on
first-degree murder:

       You may find a defendant guilty of first degree
       murder if you are satisfied that the following four
       elements have been proved beyond a reasonable
       doubt: First, that Anthony Milano is dead. Second,
       that a defendant or an accomplice of the defendant
       killed him. Third, that the killing was with
       specific intent to kill. And, fourth, that the killing
       was with malice as I have defined that term for
       you. A killing is with specific intent to kill if it is
       willful, deliberate, and premeditated; that is, if it is
       committed by a person who has a fully informed
       intent to kill and is conscious of his own intent.

both Laird and the co-defendant admitted to
participating in the kidnaping but denied having the intent to kill
the victim or helping the other kill him, Laird argued in his
habeas corpus petition that the instruction on accomplice
liability, which consistently referred only to “an accomplice” of
“a crime,” allowed the jury to convict him of first-degree murder
even though he did not possess an intent to kill. 

the case indistinguishable from Smith, concluding that “[g]iven
the court’s instruction on accomplice liability, the jury could
easily have convicted Laird of first degree murder based on his
conspiring with [the co-defendant] to kidnap or assault [the
victim] even if jurors were not convinced beyond a reasonable
doubt that Laird intended to kill him.” 

         The facts before us and the instruction on accomplice
liability are clearly distinguishable from both those in Smith and
Laird. In those cases, we found the instructions on accomplice
liability constitutionally inadequate because they allowed the
jury to conclude that, as we put it in 

, “an
accomplice for one purpose is an accomplice for all purposes.”
Such an inference in those cases was quite misleading because
the defendants either admitted or the evidence was strong that
they participated in a related crime that immediately preceded
the killings, i.e., Smith in the robbery and Laird in the kidnaping
and assault. Thus, we were concerned that the failure of the
court to refer specifically to the killing when discussing
accomplice liability allowed the jury to conclude that a finding
of accomplice liability on the related crime compelled a finding
of accomplice liability on the killing. Such a conclusion would
not have been correct for a conviction for first-degree murder as
an accomplice requires the Commonwealth to prove that a
defendant “harbored the specific intent to kill.” 

.

       This appeal does not present a similar problem. It is clear
here that the trial court’s instruction on accomplice liability
refers only to the killing of Wilhelm and not to a related crime.
This conclusion is inescapable for two reasons. First, the
Commonwealth did not allege that Goldblum committed a crime
immediately before the killing, such as robbery or kidnaping,

                                62
although it did charge that he committed crimes much earlier.
Thus, the jury could not have drawn a reasonable inference
allowing it to tag Goldblum as an accomplice in a related crime
and then improperly extended that finding to Wilhelm’s killing.

        Second, contrary to the instructions in Smith and Laird,
the instruction here on accomplice liability specifically stated
that Goldblum was charged as an accomplice to the murder and
did not use the word “accomplice” in isolation. For instance,
after the state court gave the general instruction on accomplice
liability it stated, “Now, the Commonwealth of Pennsylvania
contends that the defendant, Charles Goldblum, either killed
George Wilhelm himself or was an accomplice with Clarence
Miller in that killing.” Likewise, as we already have indicated,
the judge later instructed the jury on application of accomplice
liability to the specific facts of the case, as follows:

               In addition, if you find that evidence
       established beyond a reasonable doubt that Charles
       Goldblum was an accomplice with Clarence Miller
       in the intentional killing of George Wilhelm, you
       may find the defendant guilty of first degree
       murder. In that event, you have to conclude that
       both Goldblum and Miller intended to kill George
       Wilhelm when they took him up there [to (the
       parking garage]) and that Goldblum was an
       accomplice with Miller in the killing of Mr.
       Wilhelm. So, in that event, if you find that the
       defendant intentionally killed George Wilhelm,
       you may find him guilty of first degree murder. If
       you find that he was an accomplice in such a
       killing, as I have defined that, you may also. On
       the other hand, if you find that the evidence has
       failed to establish beyond a reasonable doubt that
       George Wilhelm on the night in question, or failed
       to establish that Charles Goldblum was an
       accomplice with Clarence Miller in the intentional
       killing of George Wilhelm, you must find the
       defendant not guilty of first degree murder.
       (Emphasis added.)

                               63
It is difficult to understand how the court could have made the
charge clearer on the required intent element of the case and, in
the circumstances, we have no doubt that a reasonable juror
would understand that he must find that Goldblum intended for
the killing to occur, as opposed merely to finding that Goldblum
had an intent to commit some related crime, in order to find
Goldblum liable as an accomplice to the murder.

        In the end, we find in considering the charge as whole as,
of course, we should do, there is no reasonable likelihood that
the jury convicted Goldblum of first-degree murder without
finding beyond a reasonable doubt that he intended that Wilhelm
be killed. While the robbery example in the charge was
incorrect, we conclude that the remainder of the charge was
entirely accurate and sufficiently explained to the jury that it had
to find that Goldblum intended the killing to find him liable
under the theory of accomplice liability. The robbery example
could not mislead the jury because, as explained above, the case
had nothing to do with a robbery or any other related crime that
immediately proceeded the killing.

        We recognize that if the facts in this case were akin to
those in Smith and Laird, we might have reached a different
result based on this instruction. But we are obligated to decide
the case based on the facts before us. We emphasize that the
trial court repeatedly told the jury that it needed to find that
Goldblum intended to kill Wilhelm if it was to find him liable as
an accomplice. For these reasons, we do not conclude that
Goldblum’s argument–that the instructions put the “cart before
the horse”–is convincing. In reviewing the charge as a whole,
we conclude that there is not a reasonable likelihood that the jury
convicted Goldblum as an accomplice without first finding that
he had a specific intent to kill.

        Lastly, Goldblum takes issue with the “shared intent”
language which he contends misled the jury into believing that
he need not have his own specific intent to kill. Goldblum asserts
that “shared intent” suggests that intent of one actor may be
attributed to another. Such an interpretation contradicts the
reasonable understanding of that phrase, as well as the court’s

                                 64
specific instructions informing the jury otherwise. The court
could not have made it any more obvious that “a shared criminal
intent with the other person” means that “both persons must
intend that the criminal act occur” and that “both men, to be
found guilty, even though only one committed the act, both
intended that the specific crime, which was completed, was
intended.” Additionally, we on several occasions have held that
a properly formulated “shared intent” charge accurately stresses
the need to find a specific intent for the purposes of accomplice
liability, see 

; Everett v. Beard,

, 513 (3d Cir. 2002), as has the Supreme Court of
Pennsylvania, see, e.g., Commonwealth v. Cox, 

,
550-51 (Pa. 2004); Commonwealth v. Rife, 

, 408-
09 (Pa. 1973); Commonwealth v. Wilson, 

, 721
(Pa. 1972).

        In sum, based on this record, we cannot conclude that no
reasonable juror would not have voted to convict Goldblum of
first-degree murder in light of the new evidence, even if the
instructions on accomplice liability had been completely
accurate. Plainly put, there is just too much evidence here
establishing Goldblum’s guilt and, overall, the charge was not
misleading. In particular, there is convincing evidence that
Goldblum and Miller orchestrated a plan to lure Wilhelm to the
parking garage. Goldblum admitted to being at the crime scene.
He had a motive to kill Wilhelm inasmuch as Wilhelm knew of
Goldblum’s involvement in the land fraud scheme and the arson,
and demanded payment of his debt. Moreover, after the assault
Goldblum and Miller agreed to lie to the police in order to
provide each with an alibi. They then left the scene together.
After being taken into custody, Goldblum sought to hire an
assassin to kill Miller, the Commonwealth’s chief witness. In
light of this evidence, we simply cannot conclude that the new
evidence would have led any juror not to vote to convict
Goldblum. For this reason, Goldblum has not established his
“actual innocence” and the district court correctly denied his
second application for a writ of habeas corpus.




                               65
                          V. CONCLUSION

       For the foregoing reasons, we will affirm the district
court’s order of December 13, 2005, denying the petition for a
writ of habeas corpus.




Pollak, J., dissenting:




       I believe Charles Goldblum is entitled to a federal
evidentiary hearing to develop the record on the allegations
before us. A brief recapitulation of the case’s relevant
procedural history may help clarify why this concern prevents
me from joining the court’s opinion.

        In 1976, Goldblum, sitting in the back seat of a parked
car, allegedly stabbed George Wilhelm, sitting in the driver’s
seat, while Clarence Miller looked on from the passenger seat.
Goldblum was convicted of first-degree murder and voluntary
manslaughter in 1977, pursuant to a jury trial in the Court of
Common Pleas of Allegheny County, Pennsylvania; he was
sentenced to life in prison for the murder and 15-30 years’
imprisonment for other offenses. Miller was, as this court
characterizes him, “the prosecution’s central witness” at the trial.
In 1989, after Goldblum had exhausted his appeals and state
post-conviction remedies, the United States District Court for the




                                66
Western District of Pennsylvania denied his first habeas
petition.20

        Goldblum applied in 1996 for relief in state court under
Pennsylvania’s Post-Conviction Relief Act (“PCRA”). The
Allegheny County Court of Common Pleas (as the “PCRA
court”) denied the petition without an evidentiary hearing.
However, the Superior Court remanded the case for a hearing on
one of Goldblum’s claims: whether Goldblum’s trial counsel
was ineffective for failing to investigate “blood spatter”
evidence or present testimony from Dr. Cyril Wecht, a forensic
expert who, primarily on the basis of the “blood spatter”
evidence, would have testified that Goldblum did not kill
Wilhelm. On remand, the PCRA court took testimony from Dr.
Wecht and the state’s rebuttal expert, Toby Wolson. Deciding
that the remand was “strictly confined to the issue of Dr.
Wecht’s testimony,” the PCRA court declined to hear the
proffered testimony of other forensic experts who submitted
affidavits on Goldblum’s behalf. Commonwealth v. Goldblum,
No. CC 76021267, slip. op. at 6 (Allegheny County Ct. C.P.
Aug. 22, 2001). The PCRA court again dismissed Goldblum’s
claims. In 2002, the Superior Court affirmed.

       In 2004, upon receiving permission from this court to do
so, Goldblum filed a second federal habeas petition in the
Western District of Pennsylvania alleging claims different from
those in the first petition.21 In 2005, the Magistrate Judge
recommended that this petition be dismissed because, in the


       20
         The petition raised two claims: (1) whether Goldblum was
denied due process by the trial court’s failure to require a pre-trial
psychiatric examination of Miller or to grant a new trial based on
evidence attacking Miller’s credibility, and (2) whether the trial
court violated Goldblum’s right to confront witnesses by admitting
certain out-of-court declarations by the dying victim.
       21
          The claims underlying the second petition include
ineffective assistance of counsel for failure to investigate or present
exculpatory “blood spatter” evidence, and violation of due process
through a faulty jury instruction on accomplice liability.

                                  67
Magistrate Judge’s view, the petition did not overcome the
jurisdictional constraints on second or successive habeas
petitions, as set forth in 28 U.S.C. § 2244 and under the “abuse-
of-the-writ” standard, which require a showing of “actual
innocence” or “cause and prejudice.” 22 See In re Minarik, 

, 600 (3d Cir. 1999).

       En route to recommending dismissal of the habeas
petition, the Magistrate Judge denied an evidentiary hearing on
whether Goldblum could overcome the jurisdictional constraints.
Addressing this issue, the Magistrate Judge stated that the
“threshold question” before the court is “whether the habeas
petitioner ‘has failed to develop the factual basis of his [sic]
claim in State court proceedings.’” Magistrate Judge’s Report



       22
          As the court explains, because Goldblum filed his first
petition in 1991, prior to AEDPA, we must apply the “abuse-of-
the-writ” standard. To determine whether the “substantive
gatekeeping provisions” of § 2244(b)(2) would have a “genuine
retroactive effect,” we must determine whether the petitioner “can
show that he would have been entitled to pursue his second petition
under pre-AEDPA law.” In re Minarik, 

, 602
(3d Cir. 1999). If so, then the gatekeeping provisions of
§ 2244(b)(2) are inapplicable, and the “abuse-of-the-writ” standard
governs the showing a petitioner must make to establish federal
jurisdiction over a successive petition. See 

standard, Goldblum may overcome the
jurisdictional constraints against a second petition with a showing
of “actual innocence,” a concept delineated in Schlup v. Delo, 

(1998). The “actual innocence” showing under this
standard establishes that the petitioner’s application falls within
“the narrow class of cases . . . implicating a fundamental
miscarriage of justice.” McCleskey v. Zant, 

, 494
(1991) (alterations omitted). This showing is somewhat less
demanding than the “actual innocence” showing a petitioner who
has been sentenced to death must make to establish that, absent any
other constitutional violation, his execution would violate the
Eighth Amendment.           See 

(distinguishing Herrera v. Collins, 

(1993)).

                                68
and Recommendation (“R & R”) at 47 n.21 (quoting 28 U.S.C.
§ 2254(e)(2)). In explaining the denial of an evidentiary hearing,
the Magistrate Judge ruled that: (1) the state court record was
complete with respect to whether Goldblum’s petition satisfied
the “abuse-of-the-writ” standard; and (2) whether or not
Goldblum’s petition was fully developed in state court, the
decision to hold a hearing lay within her discretion and, in this
case, there was no need for one. The District Court summarily
adopted the Magistrate Judge’s report and recommendation and
dismissed Goldblum’s habeas petition.

       Before us now is the question whether the District Court
had, and should have exercised, authority to adjudicate the
claims underlying Goldblum’s second habeas petition,
notwithstanding the jurisdictional constraints of 28 U.S.C.
§ 2244 and the “abuse-of-the-writ” doctrine. See 

. Specifically, we must determine whether Goldblum
has made a showing of “cause and prejudice” or “actual
innocence” under the pre-AEDPA standard, as required to
establish federal jurisdiction over a second habeas petition
raising claims different from an earlier petition filed prior to
AEDPA. See 

the court’s view that the question is
jurisdictional in nature.23

        I cannot, however, join the court because, in my view, an
adequate answer to this question cannot be derived from the
record before this court. Goldblum is entitled to an evidentiary
hearing to determine whether the District Court has jurisdiction
on the ground that a fundamental miscarriage of justice is at
stake.24 This hearing would include evidence that the


       23
          See Benchoff v. Colleran, 

, 815 (3d Cir.
2005) (holding that “whether [a petitioner’s] habeas petition was
‘second or successive’ within the meaning of 28 U.S.C. § 2244(b)
. . . implicates both our appellate jurisdiction and the District
Court’s subject matter jurisdiction”).
       24
         I am persuaded that a hearing is required to determine
whether Goldblum can establish “actual innocence” sufficient to
permit the filing of his second petition. I therefore find it

                               69
Commonwealth’s key witness confessed to participation in the
murder and testimony from highly credentialed forensic experts
who believe Goldblum is innocent.

       I respectfully dissent because, without this hearing, any
conclusion as to our subject matter jurisdiction lacks an adequate
basis. First, with respect to whether AEDPA forecloses an
evidentiary hearing for Goldblum, I will point to certain
“principles” announced by the court which, in my judgment,
require significant modification. Next, I will take issue with the
court’s view that the evidentiary hearing held by the PCRA court
obviated any need for a District Court evidentiary hearing.25




                 I. The court’s “principles”

       My disagreement with the court derives, in substantial
measure, from the “principles” the court identifies and relies
upon to determine whether the District Court erred in not



unnecessary to consider whether the District Court properly denied
a hearing on Goldblum’s “cause and prejudice” allegation.
       25
           Though I find it inappropriate to further evaluate
Goldblum’s allegations without the benefit of an adequate record,
one aspect of the court’s analysis requires comment. In holding
that Goldblum failed to establish his claims, the court appeals to
House v. Bell, 

(2006), where a petitioner’s
procedural default was excused by the likelihood of his innocence,
and Albrecht v. Horn, 

(3d Cir. 2007), where it was
not. In each of these cases, the district court conducted evidentiary
hearings on the petitioner’s innocence claim. The appellate courts
in House and Albrecht reviewed in detail the district courts’
determinations. This thorough review would have been impossible
without drawing upon the rich evidentiary records that the federal
district courts developed after full and fair hearings on an issue of
federal jurisdiction. In my view, the records in House and Albrecht
provide a marked contrast to the record before us.

                                 70
holding an evidentiary hearing. The court frames the standards
governing Goldblum’s contention as follows:

      Goldblum . . . contends that he is entitled to an
      evidentiary hearing under section 2254(e)(2) because the
      state court did not permit him to develop the record fully
      as the court precluded the testimony of two forensic
      experts who would have provided expert opinions similar
      to those of Dr. Wecht. Under 28 U.S.C. § 2254(e)(2),

                    [i]f the applicant has failed to develop the
                    factual basis of a claim in State court
                    proceedings, the court shall not hold an
                    evidentiary hearing on the claim unless the
                    applicant shows that--

                    (A) the claim relies on – (i) a new rule of
                    constitutional law, made retroactive to cases
                    on collateral review by the Supreme Court,
                    that was previously unavailable; or (ii) a
                    factual predicate that could not have been
                    previously discovered through the exercise
                    of due diligence; and

                    (B) the facts underlying the claim would be
                    sufficient to establish by clear and
                    convincing evidence that but for
                    constitutional error, no reasonable
                    factfinder would have found the applicant
                    guilty of the underlying offense.

              Thus, under section 2254(e)(2), if an applicant has
      developed the factual basis of his claims in the state court,
      he is not entitled to a federal evidentiary hearing.
      Furthermore, even if the factual basis is not sufficiently
      developed, a petitioner must demonstrate that his case
      falls within the very limited circumstances listed in
      section 2254(e)(2)(A) and (B), and only then is the
      district court permitted under the AEDPA, though not
      required, to grant an evidentiary hearing. See Campbell v.

                               71
       Vaughn, 

, 286-87 (3d Cir. 2000). We
       reiterate that the decision to grant an evidentiary hearing
       is “left to the sound discretion of district courts.” Schriro,
       127 S.Ct. [1933,] 1939 [2007]. Additionally, the
       Supreme Court has made clear that “an evidentiary
       hearing is not required on issues that can be resolved by
       reference to the state court record,” as “[i]f district courts
       were required to allow federal habeas applicants to
       develop even the most insubstantial factual allegations in
       evidentiary hearings, district courts would be forced to
       reopen factual disputes that were conclusively resolved in
       the state courts.” 

(internal quotation marks
       and citation omitted).

The court then notes its position that “section 2254(e) makes
clear that it applies in all proceedings ‘instituted by an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State court,’” (quoting 28 U.S.C.
§ 2254(e)(1)), and goes on to state: “with these principles in
mind, we review Goldblum’s evidentiary hearing contention.”
Thereupon the court identifies the respects in which, measured
against the “principles” stated by the court, Goldblum’s
contention comes up short.

       A.

       The first of the court’s “principles” that I believe is an
inapposite statement of the law is the court’s pronouncement —
after quoting 28 U.S.C. § 2254(e)(2) — as follows: “Thus,
under section 2254(e)(2), if an applicant has developed the
factual basis of his claims in the state court, he is not entitled to a
federal evidentiary hearing.” 26 Section 2254(e)(2) does not



       26
         The court’s further analysis, quoted above, makes clear
that, by this statement, it means that § 2254(e)(2) precludes a
hearing for Goldblum. The court concludes from this analysis that
§ 2254(e)(2) forecloses a hearing because Goldblum’s allegations
were developed in the state court record: “Even if we agreed with
Goldblum that he has been denied the opportunity to develop the

                                  72
speak in terms to the situation to which the court refers — the
situation in which “an applicant has developed the factual basis
of his claims in the state court.” Section 2254(e)(2) speaks in
terms to the obverse situation — the situation in which the
applicant has, as the statute puts it, “failed to develop the factual
basis of a claim in State court proceedings,” with the result that
the applicant is barred from an evidentiary hearing in the district
court unless the applicant can satisfy the very demanding
requirements of subsections (A) and (B). There is no rule —
whether of formal logic, or of semantics, or of statutory
construction — which would require that § 2254(e)(2)’s
preclusion of a federal evidentiary hearing for the applicant who
“has failed to develop the factual basis of a claim in State court
proceedings” should bar a federal evidentiary hearing for the
applicant who has been able to present the factual basis of his
claims in a state court.

        To be sure, in most of the situations in which the
applicant has been able to present the elements of his claim in a
state court, it is unlikely that a further evidentiary hearing will be
needed. But there are occasional circumstances where a
supplementary federal evidentiary hearing may be called for —
e.g., where the state court’s hearing, while encompassing the
factual basis of a claim, was not “full and fair.” Townsend v.
Sain, 

, 313 (1963); see also Randy Hertz and James
S. Liebman, Federal Habeas Corpus Practice and Procedure
§ 20.3e (5th ed. 2005) (identifying instances of unfair hearings).
And § 2254(e)(2) is not a bar to such a hearing. “In cases where
an applicant for federal habeas relief is not barred from
obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2), the
decision to grant such a hearing rests in the discretion of the
district court.” Schriro v. Landrigran, 

, 1937
(2007).

       B.



factual record through no fault of his own, and therefore section
2254(e)(2) did not preclude an evidentiary hearing, such a finding
does not necessarily entitle him to one” (emphasis added).

                                 73
        What I think to be the court’s second mis-stated
“principle” follows right after the first: “Furthermore, even if the
factual basis is not sufficiently developed [in a state court], a
petitioner must demonstrate that his case falls within the very
limited circumstances listed in section 2254(e)(2)(A) and (B),
and only then is the district court permitted under the AEDPA,
though not required, to grant an evidentiary hearing.” The
court’s formulation omits a crucial point. Section 2254(e)(2)
bars a federal evidentiary hearing for a habeas petitioner who has
not made a sufficient factual demonstration in a state court only
when the inadequacy of the state court demonstration was the
fault of the petitioner. See Williams v. Taylor, 

,
429-37 (2000).

       C.

        The court, in my view, runs counter to circuit precedent in
advancing a third “principle”: “[S]ection 2254(e) makes clear
that it applies in all proceedings ‘instituted by an application for
a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court’” (quoting 28 U.S.C. § 2254(e)(1)).
This court ruled, in Cristin v. Brennan, 

, 413
(3d Cir. 2002), cert. denied, 

(2002), that “[s]ection
2254(e)(2) was not intended to govern all evidentiary hearings.”
In Cristin, the district court held an evidentiary hearing on
whether a habeas petitioner’s allegation of “actual innocence”
was sufficient to excuse a procedural default, thus allowing the
court to reach the petition’s merits. Section 2254(e)(2), which
applies when an applicant “has failed to develop the factual basis
of a claim in State court proceedings,” would, if applicable, have
foreclosed the hearing. The Cristin court, determining that it
was proper for the district court to hold a hearing, concluded that
“the plain meaning of § 2254(e)(2)’s introductory language does
not preclude federal hearings on excuses for procedural default
at the state level.” Id.; accord Holloway v. Horn, 

,
716 (3d Cir. 2004) (applying Cristin).

       A contrary interpretation of § 2254(e)(2), as the Cristin
court recognized with respect to evidentiary hearings on whether
a prisoner’s procedural default precludes a federal court from

                                74
adjudicating his habeas petition, 

, would
severely handicap federal courts seeking to determine their
subject matter jurisdiction.27 The Supreme Court instructs that
allegations of “actual innocence” made for the purpose of
excusing procedural default or a successive petition, are
“procedural, rather than substantive” because the “claim of
innocence does not by itself provide a basis for relief.” Schlup v.
Delo, 

, 315 (1995). That is, the claim of innocence
“is a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim decided on the
merits.” 

v. Collins, 

, 404
(1993)). State courts have no institutional interest in developing
records on this issue of federal procedure. Cristin recognizes
that it is therefore “unreasonable” to require a habeas petitioner
to rely solely on the state record in attempting to pass through
this gateway:

       [S]ometimes a petitioner will develop facts in state court that later
       prove relevant to excusing a procedural default during federal
       proceedings. These occurrences, however, are coincidental, for it
       is rare that a state court intentionally provides a forum in which the



       27
          Moreover, as the Cristin court also recognized, a contrary
interpretation of § 2254(e)(2) would not further AEDPA’s aims.
The “clear purpose” of the provision is “to encourage litigants to
pursue claims in state court prior to seeking federal collateral
review.” Duncan v. Walker, 

, 181 (2001). With
respect to evidentiary hearings to establish cause and prejudice or
a miscarriage of justice, the Cristin court noted that it was
“unaware of how permitting . . . the opportunity to develop facts on
this issue of federal law would in any way impugn our ‘respect for
state procedural rules’ or diminish the importance federal courts
must place on ‘conceptions of comity and of the importance of
finality in state criminal litigation.’” 

(quoting Coleman v. Thompson, 

, 747 (1991)); see
also 

(“[T]he question of when and how defaults in
compliance with state procedural rules can preclude our
consideration of a federal question is itself a federal question.”
(quoting Johnson v. Mississippi, 

, 587 (1988)).

                                     75
       petitioner can develop facts that might one day excuse his
       procedural default. It would be unreasonable to require a
       petitioner to rely on such coincidences to receive an evidentiary
       hearing on his procedural default.

n.13.

       Although Cristin concerned an issue of procedural
default, its observations are no less apt with respect to hearings
on a prisoner’s second habeas petition. Following Cristin, I
conclude that the bar on evidentiary hearings in § 2254(e)(2) is
inapplicable where a petitioner seeks a hearing to establish a
showing of “actual innocence” under Schlup. Indeed, as
addressed below, the inadequacy of the state court record in this
case precisely illustrates the concerns that animate Cristin.




         II. The District Court’s abuse of discretion

       As § 2254(e)(2) does not foreclose a hearing to determine
whether there is federal subject matter jurisdiction over
Goldblum’s second petition, I turn to the question whether a
hearing is necessary. The court believes not, holding that
Goldblum’s allegations “can be resolved by reference to the state
court record.” This record consists of an evidentiary hearing
held by the state PCRA court on the narrow issue “whether trial
counsel was ineffective for failing to present the expert
testimony of Dr. Cyril Wecht” at Goldblum’s 1977 trial.
Commonwealth v. Goldblum, No. 174 WDA 2001, slip op. at 1
(Pa. Super. Ct. Oct. 24, 2002). In my view, the evidence
adduced at that state court hearing is inadequate for evaluating
the federal question before us, and, in adopting the Magistrate
Judge’s report and recommendation that Goldblum’s habeas
petition should be dismissed without an evidentiary hearing, the
District Court abused its discretion by failing to require a
hearing.

      While the PCRA court’s evidentiary hearing was oriented
toward a “narrow issue on remand,” 

the District Court

                                 76
was obligated to address whether Goldblum’s showing of “actual
innocence” was sufficient to overcome the jurisdictional
constraints on his second petition. This entails an in-depth
assessment of whether the evidence, “old and new,” House v.
Bell, 

, 2077 (2006) (describing the Schlup
standard), that the petitioner presents would, in the aggregate,
support a conclusion “that it is more likely than not that no
reasonable juror would have convicted him in the light of the
new evidence.” 

. The facts underlying
the “actual innocence” allegation are considered “‘in light of all
the evidence, including that alleged to have been illegally
admitted (but with due regard to any unreliability of it) and
evidence tenably claimed to have been wrongly excluded or to
have become available only after the trial.’” 

(quoting
Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on
Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). In
making the determination, “the district court is not bound by the
rules of admissibility that would govern at trial.” 

       The evidence Goldblum proffers is highly relevant to
such a determination. As the court recognizes, Goldblum offers
new evidence to support his “actual innocence” allegation,
including:

       (1) [A] leading expert in blood spatter evidence, Dr.
       Wecht, who did not testify at the trial with respect to the
       blood spatter evidence, has offered his opinion that
       Miller, and not Goldblum, murdered Wilhelm; and (2)
       [evidence that] Miller confessed to a member of the State
       Board of Pardons and the attorney general of
       Pennsylvania that he participated along with Goldblum in
       the actual murder.

Goldblum also proffers as new evidence the submissions from
the three other forensic experts who have opined that Goldblum
did not commit the stabbing. Additionally, the court identifies
evidence that was already in the record that Goldblum contends
is relevant to his “actual innocence” allegation:



                                77
       First, he points to the dying declaration that Wilhelm
       made to the police wherein he stated, “Clarence Miller
       did this to me.” Second, he distinguishes the small spot
       found on his shirt cuff that no witness identified
       positively as blood with the excessive blood found on
       Miller’s clothes. Third, he believes that the defensive
       cuts on Wilhelm’s hands and multiple cuts and slashes on
       his torso, front, back, head and face, show that this was a
       one-person attack on a moving target. Fourth, he alleges
       that there was no forensic evidence supporting Miller’s
       contention that Goldblum began the assault by hitting
       Wilhelm in the back of his head with a wrench. Fifth,
       Miller had fresh scratches on his forearms and wrists 14
       hours after the homicide while Goldblum did not have
       any scratches. Sixth, black vinyl gloves recovered from
       the scene were stained with Wilhelm’s blood and had
       hairs consistent with Miller’s arm hair. Finally, the blood
       spatter indicated that the blood was cast off in a left to
       right movement, suggesting that the killer was in the front
       passenger seat.

(Footnotes omitted). Also of relevance to Goldblum’s “actual
innocence” allegation, as Goldblum contends and the court
addresses elsewhere in its opinion, is the jury instruction at
Goldblum’s 1977 trial, which presented the jury with a mistaken
example of accomplice liability.28



       28
          The court’s analysis of the jury instruction is tangential to
whether Goldblum’s petition merits a hearing, but I take issue with
it. The court, having concluded that it could do so without an
evidentiary hearing, needed to address whether the erroneous jury
instruction increases the likelihood that “in light of all the
evidence,” 

, “it is more likely than not that
no reasonable juror would have convicted [the defendant].” 

As the court recognizes, this “actual innocence” question is
before the court, but the petitioner’s underlying constitutional
claims are not. Yet, addressing the significance of the jury
instruction, the court relies on cases concerning whether an
instruction was so flawed that it is a due process violation in itself.

                                  78
       In light of this evidence, the facts elicited at the PCRA
court’s evidentiary hearing are clearly inadequate to determine




       It appears to me that, if that constitutional issue were to be
addressed, the jury instruction could not be squared with due
process. Under Pennsylvania law, to be found guilty of first degree
murder — either as the primary actor or as an accomplice — one
must have a specific intent to kill the victim. See Smith v. Horn,

, 410 (3d Cir. 1997). Yet one of the trial court’s
examples of accomplice liability illustrated a situation where there
was no such specific intent:

       If two men agree to rob a bank and one man stands outside as the
       lookout and another man goes in, and the man who is inside the bank
       shoots and kills a teller, they are both guilty of first degree murder,
       including the man standing out front, because he was an accomplice
       who was actively aiding the man who was inside the bank performing
       the robbery and both men should be guilty of first degree murder
       because of a shared criminal intent to commit that specific crime.

R & R at 55-56 (quoting Tr. 3434-36). Here, the trial court
suggests that the lookout — who had no intent to kill — could be
found guilty of first degree murder. This example is particularly
likely to have confused Goldblum’s jury in light of the facts of the
case, as it is uncontested that Miller and Goldblum were involved
in a shared criminal enterprise prior to the killing. I am therefore
unable to accept the court’s conclusion that the trial court’s flawed
example was cured by the rest of the instruction (the language of
which is not, to say the least, a model of clarity).
        But the question whether the accomplice liability instruction
was unconstitutional is far different from the question this court is
called upon to address. Any confusion this instruction may have
caused the jury, even if failing to rise to the level of a substantive
constitutional violation, is appropriately considered in determining
whether a petitioner has made a showing of “actual innocence”
under Schlup. Given the significance of the error, I find the jury
instruction highly relevant to whether any reasonable juror would
convict Goldblum in light of the evidence now before the court.

                                 79
whether “it is more likely than not that no reasonable juror
would have convicted” Goldblum. 

. The
PCRA court heard from Dr. Wecht, but declined to take
testimony from three other well-credentialed forensic experts
prepared to testify that the fatal stab wounds were not inflicted
by Goldblum.29 Moreover, the PCRA court, in making its


       29
          The experts ready to testify for Goldblum have strong
credentials. Dr. Michael Baden is the Director of the Forensic
Science Unit of the New York State Police, and has been “an
expert consultant in numerous cases including the death of John
Belushi, the recent reinvestigation into the death of Medgar Evers
and the Congressional investigations of the deaths of President
John F. Kennedy and Dr. Martin Luther King.” See Affidavit of Dr.
Michael Baden and Barbara C. Wolf, M.D.; Appendix (“App.”)
305-06. Dr. Henry C. Lee, Director of the Forensic Research
Training Center in Connecticut, see App. 291, has worked on high-
profile cases, including the O. J. Simpson trial, the William
Kennedy Smith rape trial, the Jon Benet Ramsey homicide
investigation, the Value Jet accident investigation, and police
shooting investigations in New York and New Jersey. See
curriculum vitae of Dr. Henry C. Lee, available at
http://www.drhenrylee.com/about/dr_lee_cv_resume.pdf.          Dr.
Herbert L. MacDonell, an expert on blood spatter analysis, is a
founder of the Bloodstain Evidence Institute, author of “over one
hundred original papers on both analytical chemistry and forensic
science,” and former President of the International Association for
Identification. Affidavit of Dr. Herbert L. MacDonnell; App. 296-
97.
        These experts’ examinations led them to conclude that
Goldblum did not do the fatal stabbing. See Laboratory Report and
Affidavit of Henry C. Lee, Ph.D.; App. 287-95 (“[I]t is my opinion
to a reasonable degree of forensic certainty on the basis of the
evidence available that Goldblum was not the individual who
inflicted the fatal stab wounds to Mr. Wilhelm.”); Affidavit and
Forensic Report of Dr. Herbert L. MacDonnell; App. 296-304
(concurring “completely” with the affidavit of Dr. Henry C. Lee
and noting that “the absence of photographs does not prevent
general conclusions from being drawn based upon the description

                                80
factual determinations, does not appear to have considered the
affidavits of these other experts. In its opinion evaluating
Goldblum’s ineffective assistance claim, the PCRA court
expressly addresses only Dr. Wecht’s testimony at the
evidentiary hearing, Toby Wolson’s rebuttal testimony, and the
trial court jury instruction on accomplice liability. The PCRA
court makes no mention of the submissions of Goldblum’s other
experts insofar as they pertain to the merits of the ineffective
assistance claim. See Goldblum, No. CC 76021267, slip. op. at
3-5. Turning to whether it erred in failing to permit Goldblum to
call witnesses other than Dr. Wecht, the PCRA court states:

       [T]he Superior Court’s opinion [remanding for an
       evidentiary hearing] indicates that their review was
       strictly confined to the issue of Dr. Wecht’s testimony and
       remanded on that basis alone. The court will not permit
       the defendant to conduct a hearing on issues which the
       Superior Court has deliberately excluded from its opinion
       and order of remand. Had the Superior Court indicated
       that the additional witnesses were to be addressed at an
       evidentiary hearing, this Court would have done so.

See 

at 6. Affirming the PCRA court’s decision to
exclude these experts, the Superior Court made plain its position
that submissions by other experts were irrelevant to the issue
before them: “This Court did not remand for a hearing on the
impact of other potential defense witnesses that were not called
at trial.” Goldblum, No. 174 WDA 2001, slip op. at 11. In view
of the narrow scope of the Superior Court’s remand, the PCRA
court very likely did not err, as a matter of state law, in
excluding the defense experts other than Wecht and in
disregarding their submissions. However, without this evidence,
the PCRA court’s evidentiary hearing fails to illuminate whether



of the bloodstains as was reported in this case”); Affidavit of Dr.
Michael Baden and Barbara C. Wolf, M.D.; App. 307 (“[I]t is our
opinion to a reasonable degree of medical certainty on the basis of
evidence available that Goldblum was not the individual who
inflicted the fatal stab wounds to Mr. Wilhelm.”).

                                81
Goldblum makes a sufficient showing of “actual innocence.”
Thus, as a matter of federal law, the limited hearing conducted
by the PCRA court fails to provide an adequate basis for
determining whether there is subject matter jurisdiction over
Goldblum’s second habeas petition.

        Despite this manifest inadequacy, the District Court, in
adopting the Magistrate Judge’s report and recommendation,
subscribed to the Magistrate Judge’s conclusion that an
evidentiary hearing was not called for. In making her
determination, the Magistrate Judge indicated that the exercise
of her discretion “is informed by Townsend v. Sain . . . , which
sets forth the following bases for holding an evidentiary
hearing”:

       (1) [T]he merits of the factual dispute were not resolved
       in the state hearing; (2) the state factual determination is
       not fairly supported by the record as a whole; (3) the
       fact-finding procedure employed by the state court was
       not adequate to afford a full and fair hearing; (4) there is a
       substantial allegation of newly discovered evidence; (5)
       the material facts were not adequately developed at the
       state-court hearing; or (6) for any reason it appears that
       the state trier of fact did not afford the habeas applicant a
       full and fair fact hearing.

Magistrate Judge’s Memorandum Order of May 11, 2005
(“Mem. Order”) at 3-4 (quoting 

);
Appendix (“App.”) 70-71. The Magistrate Judge concluded that
“[n]one of the Townsend factors require that a hearing be held
here” and that “[i]n fact, the state court record appears to be
complete, and to have provided petitioner a full and fair
opportunity to litigate his claims.” 

App. 71.




                                 82
        This determination cannot be reconciled with the record.30
The PCRA court did not conduct a hearing on Miller’s
confession — the very sort of “substantial allegation of newly
discovered evidence” that, within the framework the Magistrate
Judge endorses, would require an evidentiary hearing. Mem.
Order at 3 (quoting 

); App. 70. The
court, in its opinion, concludes that this new evidence, “at the
very most, . . . further impeaches [Miller’s] credibility, but this
effect is not significant.” I appreciate that Miller’s recital that he
participated in killing Wilhelm does not exculpate Goldblum,
who, according to Miller, was a co-participant. But if Miller
were available to testify at an evidentiary hearing, cross-
examination might shed added light on the asserted participation.
Possibly it would reveal that Goldblum stabbed initially, but not
deeply, and then stopped; or that Miller lured Wilhelm to meet in
the parked car so that Goldblum could beat him, but that only
Miller had stabbed Wilhelm. Or, on the other hand, cross-
examination might strengthen the state’s insistence that
Goldblum played a willing role in Wilhelm’s murder. The point
is that, without an evidentiary hearing in which Miller is required
to answer questions, one can hardly be sure that the confession’s
impairment of Miller’s credibility “is not significant.”

        The court says that it “do[es] not understand why [Miller]
would have a new motive to tell the truth at that late date.”
According to Warden Richard Gigliotti, to whom Miller
confessed, Miller “states that he has made peace with Jesus
Christ and that he has no reason to lie because he knows due to
his health that he probably will not be alive for very many
years.” Deposition of Richard Gigliotti; App. 330. This surely
is a plausible motive, one that could account for a disposition to
tell the truth now — just as the prospect of a murder conviction
could account for a decision to lie at Goldblum’s trial. This
concern notwithstanding, Miller’s confession, considered in light



       30
         As the Magistrate Judge made this factual determination
without conducting an evidentiary hearing, the determination is
subject to plenary review. See Richardson v. Penn. Bd. of
Probation and Parole 

, 287 n.3 (3rd Cir. 2005).

                                 83
of the record, including the victim’s dying declaration —
“Clarence Miller did this to me” — and evidence of a one-person
attack, still could establish that no reasonable juror would have
voted to convict Goldblum.

       Furthermore, contrary to the Magistrate Judge’s
determination, the record also contains “material facts” that
“were not adequately developed in the state-court hearing,”
which — again, within the framework the Magistrate Judge
purports to adopt — would require a federal evidentiary hearing.
Mem. Order at 3 (quoting 

); App. 70.
The PCRA court declined to consider submissions from
Goldblum’s experts other than Dr. Wecht, or to take testimony
from those experts. Yet these submissions contain forensic
reasons for believing that Goldblum is innocent and,
significantly, reasons why a sound forensic assessment of
Goldblum’s innocence is possible based on the evidence
available. 31 The court balances the experts’ assessments
— which, Wecht apart, were not developed in an evidentiary
hearing — against the strength of Toby Wolson’s rebuttal
testimony, which was developed in an evidentiary hearing, and
concludes that testimony from these experts would be “tentative”



       31
           In their submissions, two of Goldblum’s experts, Drs.
Baden and Wecht, take direct issue with Toby Wolson’s conclusion
that, without blood spatter photographs, forensically sound
judgments as to Goldblum’s innocence are not possible. Dr. Wecht
further asserts that, had he been permitted to present surrebuttal
testimony at the PCRA court’s evidentiary hearing, he would have
testified that “firm, reliable and trustworthy conclusions[] can be
drawn from the description of the blood spatter given at trial.”
Affidavit of Dr. Cyril H. Wecht; App. 286. These conclusions are
consistent with the Commonwealth’s statement to the District
Court that “the testimony of Detective Freeman [at Goldblum’s
trial] adequately addressed the issue of blood on the dashboard”
and that, “although actual close-up photographs were not taken,
there is no prejudice to the petitioner.” Commonwealth’s Answer
to Petitioner’s Motion for Leave of Court to Serve Respondents
with Request for Production of Documents at 7; App. 80.

                                84
and “amounting to speculation” (quoting Goldblum, No. CC
76021267, slip. op. at 5. Given the credentials of the experts, the
court’s confident assumption of the non-persuasiveness of
testimony not before the court strikes me, with all respect, as
unwarranted.

        Without a federal evidentiary hearing, the court must rely
on factual determinations that were developed from an
inadequate hearing and, I believe, are significantly weakened by
the record when viewed in its entirety. Goldblum proffers a
wealth of evidence supporting his allegations. But no court —
state or federal — has held a hearing adequate to address this
evidence; I therefore believe the District Court abused its
discretion in failing to do so.32



       32
          Schriro, relied on by the court, does not support denial of
a hearing. In Schriro, the Court addressed whether a district court
abused its discretion by denying an evidentiary hearing on a
petitioner’s underlying habeas claim. 

.
The Court considered how AEDPA, by enhancing the level of
deference accorded to state court judgments, affects the
determination whether to grant an evidentiary hearing on the
constitutional merits of a habeas claim. With respect to that issue,
the Court held that “if the record refutes the applicant’s factual
allegations or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.” 

. Schriro
thus holds that an evidentiary hearing is inappropriate when a
petitioner’s substantive claim could not provide a basis for relief
under § 2254. That holding thus refines the Court’s prior guidance
that a district court has authority to conduct a hearing “where an
applicant for a writ of habeas corpus alleges facts which, if proved,
would entitle him to relief.” Townsend v. Sain, 

, 312
(1963) (emphasis added). This court has applied Schriro
accordingly. See Taylor v. Horn, __F.3d__, No. 04-9016, 

(3d Cir. Sept. 20, 2007) (affirming, pursuant to
Schriro, a district court’s denial of an evidentiary hearing because
the record refuted the petitioner’s factual allegations, rendering a
further evidentiary hearing on the merits of the petitioner’s
constitutional claim unnecessary).

                                 85
                         III. Conclusion:




        The law entitles Goldblum to an evidentiary hearing. I
would remand this case to the District Court with an order to
conduct a hearing on whether the petitioner has made a showing
of “actual innocence” sufficient to establish subject matter
jurisdiction over his habeas petition. I would do so because
Schlup and Cristin afford Goldblum such protections —
protections whose importance is powerfully illustrated by the
circumstances presented by this case.33


         Unlike the petitioner in Schriro, Goldblum asserts facts that,
if true, would entitle him to the relief he seeks. Also in contrast to
the petitioner in Schriro, the relief in immediate question is not
habeas relief, but the grant of an evidentiary hearing that bears on
the procedural question whether the District Court has jurisdiction
to adjudicate the habeas application. Cristin, not Schriro, is the
apposite authority.
       33
         Footnote 16 of the court’s opinion refers to the written
statements of two persons who have expressed grave doubts that
the jury which found Goldblum guilty of murder reached a
supportable verdict. In the two numbered paragraphs that follow,
an attempt is made to place the statements in a somewhat broader
context and to provide somewhat more extended excerpts from the
statements:

       1. On January 14, 1994, the Honorable Donald E. Ziegler,
the judge who presided at Goldblum’s trial (Judge Ziegler served
on the Allegheny County Court of Common Pleas before
appointment to the federal bench), wrote to the Pennsylvania Board
of Pardons in support of Goldblum’s application for clemency.
Among the grounds for clemency urged by Judge Ziegler were the
following:

             First, Mr. Goldblum has provided persuasive evidence that he
       may be serving time for committing an arson and witnessing
       [emphasis in original] a homicide. Mere presence at the scene of a

                                  86
       crime does not constitute evidence of complicity in a homicide. . . .

              Although the jury chose to believe Clarence Miller, and
       convict Mr. Goldblum of murder, I have been troubled for years by
       the dying declaration of the murder victim: “Clarence — Clarence
       Miller did this to me.” It is a moral and legal precept that a person is
       presumed to speak the truth when he is faced with death. The victim
       knew he was dying and he never mentioned the name of Charles
       Goldblum. In short, the murder conviction was based on the
       testimony of Miller and the jury’s apparent dislike for Mr. Goldblum.

              In my opinion, Mr. Miller’s testimony was suspect and quite
       frankly, if I was the factfinder, I would have rejected as unpersuasive
       much of the testimony of this individual.

Letter of the Honorable Donald E. Ziegler to the Pennsylvania
Board of Pardons; App. 310.

       2. On June 17, 1998, F. Peter Dixon, the lawyer who, some
two decades earlier, served for several years in the Office of the
Allegheny County District Attorney and, according to his own
estimate, “prosecuted approximately 100 homicide cases,”
executed an affidavit in which he stated:

              I was the trial prosecutor in the case of Commonwealth of
       Pennsylvania v. Charles J. “Zeke” Goldblum . . . and the companion
       case of Commonwealth of Pennsylvania v. Clarence Miller. These
       two cases concerned primarily the murder of George Wilhelm in
       downtown Pittsburgh on February 10, 1976.

              The case of Commonwealth v. Charles Goldblum was the
       most prominent case in my career as a lawyer. It was also the most
       factually complex and most difficult to understand of any case I have
       ever been involved with.

             I have recently been exposed to information concerning this
       case which was not available to me at the time of trial. This
       information is contained in various affidavits and in Goldblum’s

                                 87
       statement, all of which is part of the record in Mr. Goldblum’s
       present post-conviction litigation.

              Seeing this new information caused me to go back and
       carefully review and study the trial transcript in this matter.

              Based on my review of the trial and the information which has
       been available since the trial, I have come to the very firm conclusion
       that Charles Goldblum had nothing to do with the murder of George
       Wilhelm other than being a frightened witness to that murder and an
       accessory after the fact. . . .

               Despite my best efforts in trying these cases, a miscarriage of
       justice has occurred.

Affidavit of F. Peter Dixon; App. 312-13.

        I agree with the court that these statements of opinion are
“not evidence.” For me it therefore follows that the District Court
had no obligation to factor the Ziegler and Dixon statements into
its assessment of whether to hold an evidentiary hearing. My view
that it was error — an abuse of discretion — on the part of the
District Court to decline to conduct an evidentiary hearing does not
depend on the Ziegler and Dixon statements.
        On the other hand, I am bound to say that, given Judge
Ziegler’s and Mr. Dixon’s special perspectives and formal
responsibilities with respect to Goldblum’s trial, the views the trial
judge and trial prosecutor have expressed seem to me to add further
impetus to what I conceive to be the duty of the federal courts to
give careful scrutiny, pursuant to an evidentiary hearing, to
Goldblum’s claims.

                                 88