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Edward Sistrunk v. Gerald Rozum; the District Attorney of the

March 20, 2012

EDWARD SISTRUNK, APPELLANT
v.
GERALD ROZUM; THE DISTRICT ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA



On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2:06-cv-05630) District Judge: Hon. John R. Padova

The opinion of the court was delivered by: Aldisert, Circuit Judge.

PRECEDENTIAL

Submitted under Third Circuit LAR 34.1(a) October 28, 2011

Before: SLOVITER, GREENAWAY, JR. and ALDISERT, Circuit Judges.

OPINION OF THE COURT

This appeal seeks review of a denial of a petition for habeas corpus by Edward Sistrunk, an inmate in Respondents' custody. After pursuing and exhausting his state court avenues for appeal, Sistrunk sought habeas relief from the United States District Court for the Eastern District of Pennsylvania on the basis of newly discovered evidence of his "actual innocence." The District Court concluded that the Pennsylvania state courts' disposition of Sistrunk's appeal was not contrary to, nor an unreasonable application of, clearly established federal law, and denied his petition. We will affirm.

The certificate of appealability ("COA") limits our review to a single issue: whether Sistrunk's habeas petition was timely filed according to 28 U.S.C. § 2244(d)(1)(D). By sheer counting of calendar days, it is undisputed that Sistrunk's petition was filed long after his one-year timeliness period expired. But because the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") provides several avenues for petitioners to satisfy timeliness, Sistrunk's argument requires us to determine whether he is entitled to statutory tolling or different types of equitable tolling that might save his claim. Specifically, Sistrunk contends that he is entitled to: (1) statutory tolling on the basis of uncovering new, exculpatory evidence; (2) equitable tolling due to government witness tampering; or (3) equitable tolling because he is actually innocent.

We conclude that Sistrunk does not qualify for these tolling exceptions. Sistrunk's delays are inexcusable, his evidence is not "new," and even if we permitted equitable tolling for actual innocence, Sistrunk's proofs of "actual innocence" fall short. We will, therefore, affirm the District Court's judgment.

I.

A.

In the early morning hours of July 23, 1993, Edward Sistrunk used his automobile horn and headlamps to harass a car driven by Julmaine Moody on a residential road in Philadelphia, Pennsylvania.*fn1 Both cars pulled over. An altercation between the cars' occupants broke out, but ceased abruptly when a passenger in Moody's car recognized a passenger in Sistrunk's car as an acquaintance. All reentered their respective vehicles, and the cars returned to the roadway. Sistrunk then positioned his moving car alongside Moody's, drew a revolver, aimed at a passenger in Moody's car with whom he had had a heated exchange, and fired. Missing its intended mark, the bullet struck the unarmed and pregnant Moody in the head, killing her.

Sistrunk evaded capture for three months until his arrest in North Carolina. Multiple witnesses identified Sistrunk as the shooter, including Sistrunk's intended victim, David Snyder. Out of the many people who implicated Sistrunk in the murder, one witness of particular significance here, Gregory Anderson, gave a statement to police and testified at a preliminary hearing on January 6, 1994, that he was in Sistrunk's car at the time of the murder and that Sistrunk was the murderer. Anderson disappeared before trial and therefore did not testify, but Sistrunk's defense counsel successfully argued to admit Anderson's hearing testimony at trial. The trial court found as a fact that all witnesses agreed Sistrunk was the shooter.

On May 18, 1995, the court sentenced Sistrunk to life imprisonment for murdering Moody. In addition, the court sentenced Sistrunk to concurrent imprisonment terms for possession of an instrument of crime, reckless endangerment, and simple assault. The Pennsylvania Superior Court affirmed Sistrunk's sentence on July 19, 1996. The Pennsylvania Supreme Court then denied Sistrunk's petition for allowance of appeal on December 11, 1996. His conviction became final on March 11, 1997, when Sistrunk's deadline for filing a petition for certiorari in the United States Supreme Court passed. See 28 U.S.C. § 2101(c); Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999).

B.

Sistrunk filed a petition for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. ยงยง 9541-9546, on December 11, 1997, contending that his appellate counsel was ineffective for failing to challenge the effectiveness of his trial counsel. The PCRA court dismissed Sistrunk's petition because Sistrunk had already litigated the issues ...


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