Davis was sentenced to life imprisonment after a conviction for first-degree 1

murder in a Pennsylvania court in 1981. See R & R. This is not Davis’s first federal

habeas petition. See id. at 1–5 (setting forth procedural history in detail). The Court of

Appeals, on July 8, 2005, granted Davis’s request to file a second or successive petition,

stating that Davis had “made a prima facie showing that applying [the] AEDPA’s

gatekeeping procedures for a second or successive petition would be unduly retroactive as

to him because he may be able to establish cause and prejudice for his failure to assert

previously his claim of a violation of Brady.” In re James Davis, No. 05-2787 (3d Cir.

June 16, 2005). The Court of Appeals also stated: “The District Court will determine de

novo all issues, including timeliness, exhaustion, procedural default, and cause and

prejudice.” Id.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JAMES DAVIS,

Plaintiff,

v.

SUPT. JAMES T. WYNDER, et al., 

Defendants.

CIVIL ACTION

No. 05-3865

MEMORANDUM/ORDER

August 21, 2007

Petitioner James Davis filed a pro se Petition for Writ of Habeas Corpus, see

Docket No. 1, and I referred the case to United States Magistrate Judge Peter B. Scuderi

for a report and recommendation (R & R). See Docket No. 7; see also 28 U.S.C. §

636(b)(1)(B); E.D. Pa. Local R. Civ. P. 72.1(I)(b).1

Case 2:05-cv-03865-LP Document 19 Filed 08/22/07 Page 1 of 6
 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 2

104-132, 110 Stat. 1214.

 As discussed in the text, infra, Davis’s rationale for challenging the R & R’s 3

recommendation that his petition be dismissed as an abuse of the writ is the same as the

rationale he relies on in challenging the recommendation that his petition be dismissed as

untimely under the AEDPA—in both respects, he argues that he has made a credible

showing of actual innocence. In the text, infra, I consider and reject Davis’s argument in

the context of the AEDPA-timeliness issue. Because the same analysis applies, there is

no need to engage in a separate discussion of the same argument as applied to the abuseof-the-writ issue. Rather, the petitioner’s objection on the abuse-of-the-writ issue is

overruled for the same reasons stated in the text, infra, in overruling the objection on the

AEDPA-timeliness issue.

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Judge Scuderi recommends that Davis’s petition be dismissed for the alternative

reasons that (a) it is untimely under the AEDPA and (b) it is an abuse of the writ. See 2

R & R 12 (Docket No. 14). Davis has filed timely objections, see Docket No. 16, and I

therefore review the objected-to portions of the R & R de novo. 28 U.S.C. § 636(1)(b). 

Having reviewed the R & R, petitioner’s objections, the Commonwealth’s response to

petitioner’s objections, see Docket No. 17, and petitioner’s reply, see Docket No. 18, I

agree with Judge Scuderi that the petition should be dismissed as untimely under the

AEDPA or, in the alternative, as an abuse of the writ. Therefore, after setting forth 3

Davis’s objections and my reasons for concluding that they are without merit, I will

approve and adopt the R & R.

Davis’s objections do not challenge the R & R’s conclusion that his petition was

filed outside of the AEDPA’s one-year time limitation. See R & R 6–8; 28 U.S.C. §

2244(d). Rather, Davis argues that the R & R erred in determining that he was not

entitled to have the AEDPA time limitation equitably tolled. See Petr.’s Objs. ¶ 2, 4, 29;

Case 2:05-cv-03865-LP Document 19 Filed 08/22/07 Page 2 of 6
 Davis closely paraphrases the standard stated in Schlup v. Delo, 513 U.S. 298 4

(1995) for establishing that “a constitutional violation has probably resulted in the

conviction of one who is actually innocent.” Schlup, 513 U.S. at 327 (defining

requirements for avoiding AEDPA procedural bar on successive habeas petitions via

“gateway” claim of actual innocence).

Schlup established that actual innocence can provide a basis for avoiding the 5

AEDPA’s procedural bar on successive habeas petitions. See supra note 4. The Third

Circuit has not decided if this rule should also apply to the procedural bar arising from the

AEDPA’s time limitation provisions. See Horning v. Lavan, 197 Fed. App’x 90, 93 (3d

Cir. 2006) (stating that the Third Circuit “ha[s] yet to hold that the AEDPA statute of

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cf. R & R 10. 

The R & R found equitable tolling inapplicable because Davis had not met any of

the three alternative conditions identified by the Third Circuit as sufficient to justify such

relief: “(1) if the defendant has actively misled the plaintiff; (2) if the plaintiff has in

some extraordinary way been prevented from asserting his rights; or (3) if the plaintiff has

timely asserted his rights, but has mistakenly done so in the wrong forum.” R & R 8–9

(citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999)); accord Satterfield v. Johnson,

434 F.3d 185, 195 (3d Cir. 2006). In his objections, Davis does not attempt to fit his

claim into one of these three categories, but claims instead that he is entitled to equitable

tolling of the AEDPA time limitation on the basis of a showing of actual innocence, i.e., a

showing that, in the light of “new facts,” “it is more likely than not that no reasonable

juror or fact-finder would have found the Petitioner guilty beyond a reasonable doubt.” 

Petr.’s Objs. ¶ 11–12. It is not clear under the law of the Third Circuit whether a 4

credible claim of actual innocence, standing alone, can provide a “gateway” to bypass the

AEDPA’s time limitation. However, assuming arguendo that equitable tolling would be 5

Case 2:05-cv-03865-LP Document 19 Filed 08/22/07 Page 3 of 6
limitations can be equitably tolled on the basis of actual innocence” and noting that the

question was “expressly reserved” in United States v. Davies, 394 F.3d 182, 191 n.8 (3d

Cir. 2005)).

 A nonprecedential opinion recently issued by a Tenth Circuit panel aptly 6

describes the shortcomings of a similar argument made to that court. See O’Boyle v.

Ortiz, No. 06-1214, 2007 WL 2083743, at *2 (10th Cir. July 23, 2007) (“[The petitioner]

confuses theoretical innocence with actual innocence. Most of his ‘new’ evidence is

really speculation about what might be shown if certain tests were performed on physical

evidence in the case. Such speculation is insufficient to meet the . . . burden to produce

new evidence from which we could conclude it is more likely than not that no reasonable

juror would have convicted him.” (internal quotation marks omitted) (citing Schlup); cf.

Arthur v. Allen, 459 F.3d 1310, 1310–11 (11th Cir. 2006) (per curiam) (stating, in

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applied upon a credible showing of actual innocence, Davis’s objection lacks merit

because Davis has come forward with no evidence that he is actually innocent. See

R & R 9 (“Petitioner makes only a bald assertion of innocence, unsupported by any new

evidence.”).

Davis bases his claim of actual innocence on his assertion that certain forensic

testing records exist, and that those records would demonstrate that another man

committed the crime for which Davis is incarcerated. Davis further claims that the

Commonwealth unconstitutionally withheld these test results from him, in violation of

Brady v. Maryland, 373 U.S. 83 (1963). It is true that this allegation is of the type that, if

substantiated, would present a strong case for equitable relief—notwithstanding the many

years separating Davis’s conviction from his current petition. However, in this case,

Davis has not substantiated his allegation. Aside from pure speculation, Davis provides

no reason to believe that the forensic tests he describes were even performed—let alone

that the results of the purported tests are as Davis describes them. 

6

Case 2:05-cv-03865-LP Document 19 Filed 08/22/07 Page 4 of 6
analogous factual context, that a request for discovery in habeas proceedings must include

“specific allegations” providing “reason to believe that the petitioner may, if the facts are

fully developed, be able to demonstrate that he is entitled to relief” (internal quotation

marks omitted)).

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The Third Circuit “ha[s] cautioned . . . that courts should be sparing in . . .

applying equitable tolling,” doing so “only in the rare situation where it is demanded by

sound legal principles as well as the interests of justice.” LaCava v. Kyler, 398 F.3d 271,

275 (3d Cir. 2005) (internal quotation marks omitted); cf. Satterfield, 434 F.3d at 195

(“Equitable tolling is available only when the principle of equity would make the rigid

application of a limitation period unfair.” (internal quotation marks omitted)). Because

Davis’s claim of actual innocence is based on his own speculation as to what evidence

might have existed, and he has provided no objective reasons supportive of the contention

that this evidence actually does exist, Davis cannot establish entitlement to equitable

tolling. His petition therefore must be dismissed as untimely under 28 U.S.C. § 2244(d).

Accordingly, upon consideration of petitioner James Davis’s petition for a writ of

habeas corpus, the Report and Recommendation of United States Magistrate Judge Peter

B. Scuderi, petitioner’s objections thereto, and the Commonwealth’s response, and for the

reasons stated in the Report and Recommendation and in the discussion above, it is

hereby ORDERED that:

1. The petitioner’s objections are OVERRULED; 

2. The Report and Recommendation is APPROVED and ADOPTED; 

3. The Petition for Writ of Habeas Corpus is DISMISSED as untimely;

Case 2:05-cv-03865-LP Document 19 Filed 08/22/07 Page 5 of 6
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4. There is no probable cause to issue a certificate of appealability; and

5. The Clerk of the Court shall mark this case closed for statistical purposes.

BY THE COURT:

/s/ Louis H. Pollak

_______________

Pollak, J.

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