2007 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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.
2

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
3

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-thewrit 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,
There is not the slightest suggestion in the record that the 1

senator or anyone on his staff had any involvement in the scheme.

4

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
5

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
The allegations relating to the plan to murder Miller were 2

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.

Goldblum’s trial attorney wanted to argue that Goldblum 3

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

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. They 2

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. The 3

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.,
At a separate trial, a jury convicted Miller of first-degree 4

murder as an accomplice. 

7

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. The court did not ask the jury to 4

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, 427 A.2d 258 (Pa. Super. Ct.

1980) (Superior Court affirming convictions except conspiracy

count), rev’d in part, 447 A.2d 234 (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
8

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, 950 F.2d 722 (3d Cir. 1991)

(table). The Supreme Court denied Goldblum’s application for a

writ of certiorari on April 27, 1992. Goldblum v. Fulcomer, 503

U.S. 1005, 112 S.Ct. 1760 (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 PostConviction 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 posttrial 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
Dr. Wecht was the coroner of Allegheny County when 5

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

Wecht, a forensic pathologist, who would have testified that 5

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
We will discuss the testimony of Dr. Wecht in greater detail 6

later. See infra at 43-47.

10

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. The court 6

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
11

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. Id. at 280. 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, 825 A.2d 637 (Pa. 2003), and for

a writ of certiorari with the United States Supreme Court,

Goldblum v. Pennsylvania, 540 U.S. 1119, 124 S.Ct. 1067

(2004), were denied. 

D. Goldblum’s Second Federal Habeas Corpus 

 Petition and Appeal

On February 26, 2004, Goldblum filed a motion with us
12

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
13

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 postconviction 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, 166

F.3d 591 (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
Under section 2244(b)(4), the court must dismiss the claims 7

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

standard found in 28 U.S.C. § 2244(b), and recommended 7

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). 
15

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, 166 F.3d 591, 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
16

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, 529

U.S. 473, 484, 120 S.Ct. 1595, 1604 (2000).
17

App. at 3.

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, 404 F.3d 812, 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-thewrit 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
18

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, 529 U.S. 473, 484, 120 S.Ct. 1595,

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.” Id. at 29. 

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, 529 U.S. 473, 484, 120 S.Ct. 1595,

1604 (2000), required us to make that finding as it held:
19

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, 373 F.3d 327, 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, 330 F.3d 277, 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’
20

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, 311 F.3d 247, 252 (3d Cir.

2002). We review the district court’s decision to deny an

evidentiary hearing for abuse of discretion. See Schriro v.

Landrigan, 127 S.Ct. 1933, 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, 499 U.S. 467, 470, 111

S.Ct. 1454, 1457 (1991). When Goldblum filed his first federal

habeas petition in 1991, the law encompassed the abuse-of-thewrit 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.’” 

Minarik, 166 F.3d at 600.

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
21

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.

McCleskey, 499 U.S. at 494-95, 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.” Id. at 497, 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.” Id. at 498, 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.” Id.

“Once the petitioner has established cause, he must show

actual prejudice resulting from the errors of which he

complains.” Id. at 494, 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,
We have held that the AEDPA gatekeeping scheme did 8

more than “simply put in statutory form what McCleskey had

already defined as abuse of the writ.” Zayas, 311 F.3d at 257.

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, 518 U.S. 651, 664, 116 S.Ct. 2333, 2340 (1996), the

AEDPA built on the doctrine. See Zayas, 311 F.3d at 257. 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

but that they worked to his actual and substantial disadvantage,

infecting his entire trial with error of constitutional dimensions.” 

United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596

(1982). See also Fischetti v. Johnson, 384 F.3d 140, 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.” 

McCleskey, 499 U.S. at 494-95, 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.” Id. at 494, 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, 513 U.S.

298, 327, 115 S.Ct. 851, 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. In Benchoff, 404 F.3d 812, we set 8
versa inasmuch as the terms of the AEDPA inform judicial

consideration with respect to abuse-of-the-writ inquiries. See

Zayas, 311 F.3d at 257. 

23

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, id. at §

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.” Id. at § 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.
24

Id. at § 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 Minarik, 166 F.3d at 600,

“[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.” Benchoff,

404 F.3d at 816. 

In Minarik, 166 F.3d at 600, 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, 511 U.S. 244, 114 S.Ct. 1483 (1994), and Lindh v.

Murphy, 521 U.S. 320, 117 S.Ct. 2059 (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.” Minarik, 166 F.3d at

600. 

We distinguished AEDPA’s new procedural requirements

from its substantive requirements. We decided that the
25

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.” 

Minarik, 166 F.3d at 599-600 (quoting Lindh, 521 U.S. at 320,

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. 

Id. at 602. 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. 

Id. at 609.
26

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.” Minarik, 166 F.3d at 609. 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 preAEDPA 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, 
“[S]ufficient showing of possible merit” in this context 9

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, 267 F.3d 225, 228 n.2 (3d Cir.

2001), we suggested that under Bennett an applicant may have to

27

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.

Id. at 15. 

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, 119 F.3d 468 (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. All that we usually have before us in [9]
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 Williams, 330 F.3d at 282 (“[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).

We have similar rules. See 3d Cir. L.A.R. 22.5(a) (stating 10

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

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). If in light of the documents [10]

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
29

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.

Bennett, 119 F.3d at 469-70. At least seven other courts of

appeals have adopted this interpretation of “prima facie

showing.” See In re Lott, 366 F.3d 431, 432-33 (6th Cir. 2004);

Williams, 330 F.3d at 281-82; In re Holladay, 331 F.3d 1169,

1173-74 (11th Cir. 2003); Bell v. United States, 296 F.3d 127,

128 (2d Cir. 2002); Reyes-Requena v. United States, 243 F.3d

893, 898-99 (5th Cir. 2001); Thompson v. Calderon, 151 F.3d

918, 925 (9th Cir. 1998); Rodriguez v. Superintendent, Bay State

Corr. Ctr., 139 F.3d 270, 273 (1st Cir. 1998), overruled on other

grounds by Bousley v. United States, 523 U.S. 614, 118 S.Ct.

1604 (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,”

Reyes-Requena, 243 F.3d at 899 (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
While an argument can be made that section 2254(e) 11

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

showing of possible merit to warrant a fuller exploration by the

district court,” Bennett, 119 F.3d at 469. 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 Schriro, 127 S.Ct. at 1940.

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
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

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, 209 F.3d 280, 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. at 1939. 

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.” Id. at 1940

(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
Of course, on appeal the Superior Court upheld the state 12

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.

In a related point, Goldblum argues that because he was 13

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

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.” Id. at 1940. 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. Thus, their 12

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,” PA. R. EVID. 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.” PA. R. EVID. 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
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

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 Campbell, 209 F.3d at 287. Rather, it merely
34

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 Schriro, 127 S.Ct. at 1937 (“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.”); Campbell, 209 F.3d at 287. “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.” Campbell, 209 F.3d

at 287. For example, in Campbell we discussed the case of

Cardwell v. Greene, 152 F.3d 331, 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,
35

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.” 

Schriro, 127 S.Ct. at 1940. 

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.” Id. at 21. 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
36

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.” 

Id. He argues 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.” Id. at 21-22. 

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, 455 U.S. 509,

102 S.Ct. 1198 (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

McCleskey, 499 U.S. at 506, 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.” Id. at

489, 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. 
37

Id. at 489, 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, 178 F.3d 34, 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, 956 F.2d 115,

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, 997

F.2d 512, 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.” 

McCleskey, 499 U.S. at 491-92, 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, 455 U.S. 509, 102 S.Ct.

1198. We encountered this precise issue in Benchoff. There, we

determined that “Rose v. Lundy requires a petitioner to either
38

fully exhaust all claims prior to filing a petition or to raise both

exhausted and unexhausted claims in the first habeas petition.” 

Benchoff, 404 F.3d at 820. 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. Id. Thus,

we concluded that failure to exhaust a claim “is not an excuse

for [the petitioner’s] failure to raise the claim in his first

petition.” Id. at 819; see also Slack, 529 U.S. at 487, 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-ofthe-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 494, 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, 513 U.S. at 327, 115 S.Ct. at 867. 
39

In Hubbard v. Pinchak, 378 F.3d 333, 340 (3d Cir. 2004),

cert. denied, 543 U.S. 1070, 125 S.Ct. 910 (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.” 

Id. (internal quotation 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. 

Schlup, 513 U.S. at 324, 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.” Id. at 316, 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.” Hubbard, 378 F.3d at 340. 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, 126 S.Ct. 2064, 2077, 2078 (2006)

(internal quotation marks and citation omitted). The Supreme

Court repeatedly has emphasized that
40

[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.

Schlup, 513 U.S. at 329, 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.” Id. at 316, 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,” Hubbard, 378

F.3d at 340 (internal quotation marks and citation omitted), such

as “exculpatory scientific evidence, trustworthy eyewitness

accounts, or critical physical evidence.” Schlup, 513 U.S. at

324, 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
Evidence is not “new” if it was available at trial, but a 14

petitioner “merely chose not to present it to the jury.” Hubbard,

378 F.3d at 340. In that situation, the choice not to present the

evidence “does not open the gateway.” Id. Goldblum does 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. 

This dying declaration clearly has two reasonable 15

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

whether Dr. Wecht’s opinion constitutes either “new” or 14

“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.” Schlup, 513 U.S. at 327, 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 oneman 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.” Second, he distinguishes the small spot found 15

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
Goldblum also has brought to our attention a letter dated 16

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

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
We set forth this sentence in the form of all 12 members 17

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 thatsome jurors might change their minds but some

would not.

43

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? The answer to that question is undoubtedly 17

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 bloodstained 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. Id. at 129. Additionally, he

testified that the gloves found near the scene stained with

Wilhelm’s blood contained arm or hand hairs consistent with
44

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’sside seat. Id. at 132.

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.” Id. at 160. 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.” Id. at 212. He opined that there were “other

types of situations that may create [the] patterns” that Detective

Freeman described besides cast off. Id. at 215. 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. Id. at

218. He opined that, in light of the lack of documentation, no

expert could reach any conclusion that was anything more than

“hypothetical,” id., and “coming to a conclusion as to who may
45

have done and created the pattern on the dashboard and window

is impossible.” Id. at 219. 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.” Id. at 226. 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. Id. at 228.

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.” 

House, 126 S.Ct. at 2088 (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,
It is not clear to us why the experts were permitted to give 18

their views of the significance of the dying declaration.

Goldblum contends that “[t]he state courts were . . . wrong 19

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.” Id. He builds 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, 354

U.S. 298, 77 S.Ct. 1064 (1957), on this point.

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

Syme, 276 F.3d 131, 144 (3d Cir. 2002), we indicated that we

follow the rule that “[w]hen a criminal defendant appeals a

46

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. For these 19
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,”

id. at 145, 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

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
48

“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.” Id. at 327-28. 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.” Id. He also 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. Id. at 328-29.

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.” Schlup, 513 U.S. at 332, 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.
49

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.” Schlup, 513 U.S. at

316, 329, 115 S.Ct. at 861, 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.” House, 126 S.Ct. at 2087 (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, 126 S.Ct. 2064, and our opinion in Albrecht v.

Horn, 485 F.3d 103 (3d Cir. 2007), reinforces our conclusion. In

House, 126 S.Ct. at 2068, 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. Id.

at 2072. 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. Id. at 2075. 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
50

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. Id. at 2078-79. 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. Id. at

2079. 

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.” Id. at 2080. 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. Id. The

Court 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.” Id. at 2083. 

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. Id. at 2083-84. 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.” Id. at 2085.
51

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.” Id. at 2086. 

As we pointed out in Albrecht, with respect to House, 485 F.3d

at 125, “[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.” 

House, 126 S.Ct. at 2086. 

In contrast to House, in Albrecht, 485 F.3d at 120-21, 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
52

innocence,” thereby excusing the procedural default of his state

habeas corpus claims. Id. at 120. 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.” Id. at 120-21. 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.” Id. at 124. 

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.’” Id. at 121 (quoting Schlup, 513 U.S. at 327, 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.” Id. Specifically, the

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.” 

Id. 
53

Finally, 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.” Id. at 126. 

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.” House, 126 S.Ct. at 2086. 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
54

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.
55

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.” Schlup,

513 U.S. at 329, 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.
56

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.
57

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.” Id. at 33-35. The Commonwealth believes that,
58

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, 120 F.3d 400, 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.” Id.

(internal citations 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, 404 F.3d 700, 710 (3d Cir. 2005) (internal

quotation marks, citation, and footnote omitted), cert. denied,

126 S.Ct. 1320 (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.” Id. Thus,

here 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, 120 F.3d 400,

and Laird v. Horn, 414 F.3d 419 (3d Cir. 2005), cert. denied, 126

S.Ct. 1143 (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
59

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, 120 F.3d at 404. Smith was tried

on the homicide charge. Id. The jury 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 . . . .

Id. at 405 (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.

Id. (emphasis added). The court then instructed the jury on

first-degree murder:
60

[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 . . . .

Id. Relying on these instructions, the jury convicted Smith of the

first-degree murder charge. Id. at 406.

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 firstdegree murder.” Id. at 409. 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.” Id. at 411. 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. Id. at 411-

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.” Id. at

412. 

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. Laird, 414 F.3d at 421. The third man was

found dead the following evening. Id. Laird and the codefendant jointly were tried for the murder, as well as related

charges including kidnaping, aggravated assault, unlawful
61

restraint, false imprisonment, conspiracy, and possession of an

instrument of crime. Id. at 422. 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. Id. at 422, 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.

Id. at 426. 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.

Id.
62

Because 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. Id. We found

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.” Id. at 427. 

 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 Smith, 120 F.3d at 412, “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.” Smith, 120 F.3d

at 410. 

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,
63

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.)
64

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
65

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 Bronshtein, 404 F.3d at 711-12; Everett v. Beard,

290 F.3d 500, 513 (3d Cir. 2002), as has the Supreme Court of

Pennsylvania, see, e.g., Commonwealth v. Cox, 863 A.2d 536,

550-51 (Pa. 2004); Commonwealth v. Rife, 312 A.2d 406, 408-

09 (Pa. 1973); Commonwealth v. Wilson, 296 A.2d 719, 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.
66

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
 The petition raised two claims: (1) whether Goldblum was 20

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. 

 The claims underlying the second petition include 21

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

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. In 2005, the Magistrate Judge 21

recommended that this petition be dismissed because, in the
 As the court explains, because Goldblum filed his first

22

petition in 1991, prior to AEDPA, we must apply the “abuse-ofthe-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, 166 F.3d 591, 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 id. 

Under this standard, Goldblum may overcome the

jurisdictional constraints against a second petition with a showing

of “actual innocence,” a concept delineated in Schlup v. Delo, 513

U.S. 298 (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, 499 U.S. 467, 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 Schlup, 513 U.S. at 313-17

(distinguishing Herrera v. Collins, 506 U.S. 390 (1993)). 

68

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 “abuseof-the-writ” standard, which require a showing of “actual

innocence” or “cause and prejudice.” See In re Minarik, 166 22

F.3d 591, 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
See Benchoff v. Colleran, 404 F.3d 812, 815 (3d Cir.

23

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”). 

 I am persuaded that a hearing is required to determine 24

whether Goldblum can establish “actual innocence” sufficient to

permit the filing of his second petition. I therefore find it

69

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 Minarik, 166

F.3d at 602. 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 id. I share 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. This hearing would include evidence that the 24
unnecessary to consider whether the District Court properly denied

a hearing on Goldblum’s “cause and prejudice” allegation. 

 Though I find it inappropriate to further evaluate 25

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, 126 S. Ct. 2064 (2006), where a petitioner’s

procedural default was excused by the likelihood of his innocence,

and Albrecht v. Horn, 485 F.3d 103 (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

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
71

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.
The court’s further analysis, quoted above, makes clear 26

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

Vaughn, 209 F.3d 280, 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.” Id. at 1940 (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.” Section 2254(e)(2) does not 26
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

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, 372 U.S. 293, 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, 127 S. Ct. 1933, 1937

(2007).

B.
74

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, 529 U.S. 420,

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, 281 F.3d 404, 413

(3d Cir. 2002), cert. denied, 537 U.S. 897 (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, 355 F.3d 707,

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
 Moreover, as the Cristin court also recognized, a contrary 27

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, 533 U.S. 167, 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.’” Cristin, 281 F.3d at 417

(quoting Coleman v. Thompson, 501 U.S. 722, 747 (1991)); see

also id. at 415 (“[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, 486 U.S. 578, 587 (1988)). 

75

adjudicating his habeas petition, see 281 F.3d at 415-17, would

severely handicap federal courts seeking to determine their

subject matter jurisdiction. The Supreme Court instructs that 27

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, 513 U.S. 298, 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.” Id. (quoting Herrera v. Collins, 506 U.S. 390, 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
76

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. 

Cristin, 281 F.3d at 416 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,” id. at 12, the District Court
77

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, 126 S. Ct. 2064, 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.” Schlup, 513 U.S. at 327. 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.’” Id. at 328 (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.” Id. at 327. 

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:
 The court’s analysis of the jury instruction is tangential to 28

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,” Schlup, 513 U.S. at 328, “it is more likely than not that

no reasonable juror would have convicted [the defendant].” Id. at

327. 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

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
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,

120 F.3d 400, 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

In light of this evidence, the facts elicited at the PCRA

court’s evidentiary hearing are clearly inadequate to determine
 The experts ready to testify for Goldblum have strong 29

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 highprofile 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

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whether “it is more likely than not that no reasonable juror

would have convicted” Goldblum. Schlup, 513 U.S. at 327. 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. Moreover, the PCRA court, in making its 29
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.”).

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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 id., slip op. 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
82

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 Townsend, 372 U.S. at 313);

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.” Id. at 4; App. 71. 
As the Magistrate Judge made this factual determination 30

without conducting an evidentiary hearing, the determination is

subject to plenary review. See Richardson v. Penn. Bd. of

Probation and Parole 423 F.3d 282, 287 n.3 (3rd Cir. 2005). 

83

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 Townsend, 372 U.S. at 313); 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, crossexamination 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, crossexamination 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
 In their submissions, two of Goldblum’s experts, Drs.

31

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

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 Townsend, 372 U.S. at 313); 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. The court balances the experts’ assessments 31

— 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”
Schriro, relied on by the court, does not support denial of 32

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. See 127 S. Ct. at 1939-40.

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.” Id. at 1940. 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, 372 U.S. 293, 312

(1963) (emphasis added). This court has applied Schriro

accordingly. See Taylor v. Horn, __F.3d__, No. 04-9016, 2007

WL 2728668 (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

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
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.

 Footnote 16 of the court’s opinion refers to the written 33

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

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
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