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Third Circuit: No Categorical Ban on Reliability of Recantations as New Evidence

On Christmas Eve 1982, someone shot and killed Herbert Allen in Philadelphia. Several so-called witnesses said it was Gerald Howell, and a jury convicted him of second-degree murder and robbery, even though no evidence tied Howell to the crime. He was sentenced to life in prison.

After losing all his appeals and avenues for relief under Pennsylvania’s Postconviction Relief Act (“PCRA”), one of the witnesses, Kenneth Parnell, swore in a notarized affidavit to Howell’s lawyer, the court, and others that he killed Allen. Howell then filed another PCRA motion, and it was denied on the basis that Howell could have discovered the real killer had he acted with “due diligence.” His appeals were summarily denied.

Howell then filed a habeas corpus petition under 28 U.S.C. § 2254 in the U.S. District Court for the Eastern District of Pennsylvania in 2005. He claimed that Parnell’s recantation and confession rendered him “actually innocent” of the offense. The district court, however, denied his petition as time-barred, and the Third Circuit denied a certificate of appealability (“COA”), saying that Parnell’s affidavit wasn’t enough to open the door after the one-year deadline expired.

Following the U.S. Supreme Court’s decision in McQuiggin v. Perkins, 569 U.S. 383 (2013), Howell filed a motion under Federal Rule of Civil Procedure 60(b)(6) to reopen his § 2254 petition. McQuiggin ruled that a showing of actual innocence is an “exception” to the one-year deadline for filing a § 2254 petition. The district court denied relief, finding that McQuiggin’s change in law wasn’t an “extraordinary circumstance” for Rule 60 relief.

But then this view changed. In Satterfield v. D.A. of Phila., 872 F.3d 152 (3d Cir. 2017), the Third Circuit ruled that “if a petitioner can make a showing of actual innocence, McQuiggin’s change in law is almost certainly an exceptional circumstance” for Rule 60 relief. Howell filed another Rule 60(b)(6) motion, with even more affidavits of witnesses recanting their testimony against him.

Once again, the district court denied relief, this time saying that Parnell “had nothing to lose” by recanting and confessing to the crime, because he was already serving a life sentence for another crime. This time, the Third Circuit granted a COA and ruled that the district court improperly imposed a “categorical” ban on Parnell’s confession as unreliable evidence.

Typically, the district court’s denial of a Rule 60(b)(6) motion is reviewed on appeal for an abuse of discretion, giving deference to the district court’s decision. However, the Court explained that it “reviews de novo [or anew and without deference to the district court] whether a petitioner’s evidence is sufficient to satisfy the Schlup v. Delo standard for showing actual innocence to gain relief under” Rule 60(b)(6). 

In Schlup v. Delo, 513 U.S. 298 (1995), the Supreme Court established the standard for showing actual innocence to gain relief under Rule 60(b)(6): First, the evidence must be “new” and “reliable.” Second, the district court must be “persuaded” that “no juror, acting reasonably, would have voted to find [the petitioner] guilty beyond a reasonable doubt.” Satterfield ruled that if a Rule 60 motion can show this, the district court can reopen the habeas case.

While the Third Circuit has repeatedly said that recantations are “suspicious” as new evidence, the district court’s categorical ban on any recantation or confession as unreliable evidence went too far, the Court said. A totality of the circumstances here showed Howell’s new evidence may have had merit. The recanted testimony was the only evidence against Howell, and Parnell’s life sentence was later reduced to time served and he was released in 2019 (meaning he had something to lose by confessing to a new crime).

“In declaring the recantations here to be unreliable simply because they are recantations, the District Court’s Schlup analysis went astray,” the Court said. “The substance of the several affidavits is troubling enough that an evidentiary hearing is warranted.”

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Related legal case

Howell v. Superintendent Albion SCI

 

 

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