2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-17-2010

Houck v. Stickman

Precedential or Non-Precedential: Precedential

Docket No. 05-4580

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 05-4580

______________

LAFOND JAMES HOUCK,

 Appellant

 

v.

WILLIAM STICKMAN, Superintendent SCI-Pitts;

THE DISTRICT ATTORNEY OF THE COUNTY OF 

ALLEGHENY;

THE ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA

______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 04-00507)

Honorable Arthur J. Schwab, District Judge

______________

Argued October 4, 2010

BEFORE: SCIRICA, JORDAN, and GREENBERG, Circuit

Judges
2

(Filed: November 17, 2010)

______________

Mary Gibbons (argued)

600 Mule Road

Toms River, NJ 08757-0000

 Attorney for appellant

Stephen A. Zappala, Jr.

District Attorney

Michael W. Streilly

Deputy District Attorney

Rusheen R. Pettit (argued)

Ronald M. Wabby, Jr.

Amy L. Fitzpatrick

Office of the District Attorney

436 Grant Street

401 Allegheny County Courthouse

Pittsburgh, PA 15219-0000

 Attorneys for appellees

______________

OPINION OF THE COURT

______________

GREENBERG, Circuit Judge.

I. INTRODUCTION
3

This matter comes on before this Court on an appeal from 

an August 15, 2005 order of the District Court entered August 

16, 2005, denying appellant LaFond James Houck‟s petition for 

a writ of habeas corpus and adopting as the opinion of the Court 

a report and recommendation of a magistrate judge dated June 

21, 2005, recommending that the Court deny the petition. The 

magistrate judge filed her report and recommendation after 

respondents, officers of the Commonwealth of Pennsylvania, the 

appellees on this appeal, filed an answer to Houck‟s petition and 

Houck, in turn, filed a traverse to the answer. The magistrate 

judge, and thus the District Court, predicated a portion of the 

opinion on Houck‟s failure to present certain claims in the 

Pennsylvania state courts, an omission causing the magistrate 

judge, and thus the District Court, to determine that they were 

barred from considering those claims on their merits. Houck 

appealed and we granted a certificate of appealability on the 

following issue: “whether [Houck‟s] procedural default should 

be excused on the basis of newly presented evidence of his 

actual innocence.” Thus, we deal only with that issue and do not

review the opinion‟s disposition of the issues not procedurally 

barred on their merits.

II. FACTS

On the afternoon of October 13, 1997, two masked men 

dressed in black attacked Andre Freeman while he was sitting 

inside his car at Grove Place, a residential area in the Hill 

District of Pittsburgh. After the assailants dragged Freeman 

from his car, beat him and threatened him with a firearm, they 
4

forced him into the trunk of their own car, a red Ford Taurus. 

Freeman, however, would not fit in the trunk, so the assailants 

lowered the Taurus‟s back seat thus allowing part of Freeman‟s 

body to protrude into the car‟s passenger compartment. 

Fortunately there were witnesses to the attack who called the 

police and told them what they had seen.

Later in the evening of the same day two Pittsburgh 

police officers noticed a red Taurus matching the eye witnesses‟ 

description and consequently the officers followed the Taurus. 

Eventually its operator, Houck, drove the Taurus into a gas 

station and parked. There was one passenger, Charlie Turner, in 

the Taurus. After seeing the officers, Turner began walking 

away from the gas station, dropping a gun and a black pullover 

as he walked. When an officer pursued Turner he fled but the 

police overtook and captured him. The police recovered the 

gun and pullover and, in addition, in their search of Turner at the 

time of his arrest, they found a mask in his right sock.

Subsequently, the police officers found Freeman, who 

was partially in the trunk and partially in the Taurus‟s back seat, 

a position made possible because, as we have explained, the rear 

seat of the Taurus was folded down enabling Freeman to 

protrude from the trunk into the back seat. Freeman, who was 

bloody, told the officers that he had been shot.

A gas station attendant approached the officers and 

pointed to a black Pontiac Grand Prix parked at the gas station. 

One of the officers approached the Grand Prix and found 

Houck, who was wearing a bloody white T-shirt and had a black 

sweater in his lap, inside. The officers also found a gun nearby. 
5

The police then arrested and searched Houck, finding a mask in 

his pants pocket.1 

Charges to which Houck pleaded not guilty were filed 

against him arising from the events we have described, and a 

jury trial at which Houck testified and maintained his innocence 

ensued. 2 Houck explained that during the late afternoon of 

October 13, 1999, he picked up his son at his school, the Mt. 

Zion Christian Academy, and then took him home. Houck 

testified that the blood on his T-shirt was not from an assault on 

Freeman but was from his role in breaking up a fight between 

his fiancée‟s mother and the mother‟s boyfriend. Houck also 

testified that after that fight, Turner and two other men in the 

Taurus picked him up and, after Houck and Turner dropped the 

two other men off, he and Turner went to the gas station where 

the police arrested him. Houck claimed that he was unaware of 

the assault on Freeman and did not know that Freeman was in 

the Taurus when he, Houck, was in that car.

Notwithstanding Houck‟s denials, the jury convicted him 

of kidnapping, aggravated assault, carrying a firearm without a 

 

1. Houck claims that the item retrieved from his pocket was a 

skullcap.

2. At the trial the prosecution introduced evidence that after the 

police took Houck to a police station and gave him his Miranda

rights, he made an oral confession that a detective recorded on 

paper. Though the defense argued that Houck had not given the 

statement and pointed out that he had not signed it, the Court 

allowed the statement to be used at the trial.
6

license, reckless endangerment, and criminal conspiracy. 

Ultimately the state trial court sentenced him on the various 

charges to a cumulative indeterminate term of 15 to 30 years 

incarceration. Houck then appealed.

Houck asserts that he asked his appellate counsel, who 

had not been his trial counsel, to pursue several issues on the 

appeal of his state conviction, including his trial counsel‟s 

incompetency in failing to investigate fully Houck‟s alibi but he 

failed to do so. In particular, Houck believed that trial counsel 

should have examined the student log book at his son‟s school

because Houck believed that it would have shown that he had 

been picking up his son at the time of the assault on Freeman.3 

Moreover, Houck thought that witnesses who had been at the 

school could confirm his assertion about having picked up his 

 

3. In Houck‟s brief on this appeal he indicates that after 

respondents “raised the issue of procedural default in their 

Answer to the petition/ amended petition [he] filed a Traverse, 

attaching exhibits which established that he had requested by 

letter to his original appellate counsel, that these very issues of 

trial counsel‟s ineffectiveness be raised on appeal.” Appellant‟s 

br. at 10. Houck‟s pinpoint citation supporting this statement is 

to appendix at 136 but that page does not support his assertion. 

Houck‟s traverse, however, refers to Houck‟s trial counsel‟s 

failure to discover the log book and it makes clear that Houck 

asked his original appellate counsel to raise some issues of trial 

counsel‟s incompetency. In the circumstances, we will assume 

that Houck made a request to appellate counsel to pursue the log 

book issue on appeal.
7

son. Appellate counsel, however, did not pursue this ineffective 

assistance of counsel issue, focusing instead on other matters, 

including a different ineffective assistance of trial counsel claim. 

On Houck‟s appeal, the Pennsylvania Superior Court affirmed 

the judgment of conviction and sentence, and the Pennsylvania 

Supreme Court denied further discretionary review. 

Houck then sought post-conviction relief under 

Pennsylvania‟s Post-Conviction Relief Act. His petition, 

however, did not address his trial counsel‟s failure to investigate 

his alibi or his appellate counsel‟s failure to raise that issue on 

the direct appeal, though it did address other ineffective 

assistance of counsel claims with respect to his counsel on direct 

appeal. Houck‟s petition was unsuccessful both in the state trial 

and appellate courts.

Houck then filed a petition for a writ of habeas corpus in 

the District Court. Houck‟s federal habeas corpus petition 

advanced six claims,4and he later filed an amended petition 

 

4. In the petition Houck claimed:

Appellate counsel gave ineffective assistance for failing 

to raise the claim that trial counsel gave ineffective 

assistance for improperly advising appellate [sic] not to

present character testimony;

Appellate counsel gave ineffective assistance for failing 

to argue that trial counsel gave ineffective assistance 

for failing to request an instruction that the defense witness 

had no duty to contact the police or district attorney‟s [sic];

Appellate counsel gave ineffective assistance for failing 

to argue that the trial court erred, over objection, in 
8

asserting five additional claims.5 The relevant claims for our 

purposes all assert that Houck‟s trial counsel failed to gather 

evidence that would have supported his defense. Houck 

asserted that his counsel had been ineffective and, in this regard, 

cited Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 

 

allowing hearsay testimony to be presented;

Trial counsel was ineffective in failing to call alibi 

witness Tracy . . . ;

Trial counsel was ineffective in failing to investigate alibi 

defense . . . ;

Trial counsel was ineffective for failing to investigate the 

crime scene.

App. at 30-36.

5. In the amended petition Houck claimed trial counsel was 

ineffective for:

Failure to investigate all the facts necessary to formulate 

a plausible alibi defense;

Failure to investigate and/or interview potential witness 

Everett Carmack;

Failure to go to scene of crime to locate potential 

eyewitnesses;

Failure to investigate and use available 

corroborating/rebuttal evidence;

Failure to investigate medical records and circumstances 

surrounding 

statements of Andre Freeman.

App. at 38-75.
9

(1984).

Respondents opposed the petition, arguing that Houck 

had not exhausted certain claims in the state courts and, 

therefore, those claims were procedurally defaulted. Houck 

filed a traverse admitting those claims had been defaulted, but 

arguing that this default should be excused because his attorney 

on his direct appeal from the conviction and sentence had failed 

to raise these claims despite Houck‟s explicit request that he do 

so. Accordingly, Houck relied on the “cause and prejudice 

exception” to the procedural default rule as authority for the 

Court to entertain his defaulted claims. The Supreme Court 

explained that exception in Coleman v. Thompson, 501 U.S. 

722, 750, 111 S.Ct. 2546, 2565 (1991), as follows: “In all cases 

in which a state prisoner has defaulted his federal claims in state 

court pursuant to an independent and adequate state procedural 

rule, federal habeas review of the claims is barred unless the 

prisoner can demonstrate cause for the default and actual 

prejudice as a result of the alleged violation of federal law . . . .” 

The Supreme Court then went on to explain that an attorney‟s 

ignorance or inadvertence is not cause but: “Attorney error that 

constitutes ineffective assistance of counsel is cause . . . .” Id. at 

753-54, 111 S.Ct. at 2566-67. To support his assertion of 

counsel‟s ineffectiveness, Houck attached his correspondence 

with his original appellate counsel.6

 

6. As we indicated above, see supra n.3, we cannot be sure that 

the correspondence included a request that his counsel pursue an 

alibi defense but we will assume that it did.
10

Although Houck in his traverse to the answer to the 

petition did not explicitly argue that his procedural default 

should be excused because of new evidence of actual innocence, 

he did attach several new affidavits that he obviously intended 

to establish that he was innocent of the offenses for which the 

jury had convicted him. In the circumstances, we regard his 

claim of actual innocence on which we granted the certificate of 

appealability as preserved for review in this Court. See Hubbard 

v. Pinchak, 378 F.3d 333, 337 (3d Cir. 2004).

The District Court referred Houck‟s petition to a 

magistrate judge, who concluded that certain claims had not 

been exhausted in the state courts and thus were barred. The 

magistrate judge rejected Houck‟s argument regarding the 

“cause and prejudice exception” to the procedural default 

doctrine, but did not consider whether evidence of Houck‟s 

actual innocence excused his procedural default in the state 

courts. This omission was understandable inasmuch as Houck 

did not explicitly raise an actual innocence claim in his petition 

or his traverse. The magistrate judge rejected Houck‟s 

remaining claims on the merits. 7

 

7. The magistrate judge questioned whether appellate counsel 

was ineffective, but noted that even assuming that he was 

ineffective Houck should have presented that claim in his postconviction relief proceedings in the state courts. See Murray v. 

Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 2645-46 (1986) 

(“Ineffective assistance of counsel . . . is cause for a procedural 

default. However, we think that the exhaustion doctrine . . . 

generally requires that a claim of ineffective assistance be 

presented to the state courts as an independent claim before it 
11

Houck filed objections to the magistrate judge‟s report 

and recommendation in which he contended that the District 

Court should excuse his default because he had presented new 

evidence of actual innocence.8 Houck cited Schlup v. Delo, 513 

U.S. 298, 115 S.Ct. 851 (1995), in support of his position. In its 

order of August 15, 2005, the District Court found Houck‟s 

objections “to be without merit” and adopted the magistrate 

judge‟s report and recommendation without discussing Houck‟s 

assertion of actual innocence. This appeal and our grant of a 

certificate of appealability followed.9

The District Court had jurisdiction under 28 U.S.C. § 

2254 and we have jurisdiction over the District Court‟s final 

order under 28 U.S.C. §§ 1291, 2253. We are exercising 

plenary review on this appeal as the District Court in this 

procedural default case did not conduct an evidentiary hearing. 

See Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007); Duncan 

v. Morton, 256 F.3d 189, 196 (3d Cir. 2001).

 

 

may be used to establish cause for a procedural default.”).

8. His claim of actual innocence in his objections reinforces our 

determination to regard that claim as preserved for our 

consideration.

9. Houck filed a motion for reconsideration in the District Court 

on August 29, 2005, which the Court denied on September 9, 

2005. He has not appealed from the September 9, 2005 order.
12

III. DISCUSSION

A. Excusing Default Based on Evidence of Actual 

Innocence

A district court ordinarily cannot grant a petition for a 

writ of habeas corpus arising from a petitioner‟s custody under a 

state court judgment unless the petitioner first has exhausted his 

available remedies in state court. 28 U.S.C. § 2254(b). 

However, there is a narrow class of cases in which, in order to 

avoid a fundamental miscarriage of justice, evidence of a 

petitioner‟s actual innocence can excuse his failure to exhaust 

his state court remedies. McCleskey v . Zant, 499 U.S. 467, 

494, 111 S.Ct. 1454, 1470 (1991); Hubbard, 378 F.3d at 338.10 

A case in which a petitioner seeks to excuse his procedural 

default by advancing a claim of actual innocence is known as a 

“gateway” case. See, e.g., Albrecht, 485 F.3d at 122. In a 

gateway case the court initially examines the question of 

whether a petitioner‟s procedural default should be excused, 

thereby allowing him to present evidence of a constitutional 

violation that infected his original trial. In this case the 

constitutional violation that Houck sought to advance was that 

he had had ineffective assistance of counsel in the state courts. 

Thus, we are not dealing here with a “freestanding” claim of 

innocence case in which a petitioner advances a claim of 

 

10. The Supreme Court in House v. Bell, 547 U.S. 518, 536, 126 

S.Ct. 2064, 2076 (2006), characterized a claim of actual 

innocence as a “specific rule to implement” the cause and 

prejudice exception to the procedural default bar.
13

innocence by itself as a basis for granting him habeas corpus 

relief.

In an actual innocence gateway case a petitioner must 

demonstrate two things before his procedural default will be 

excused. First, a petitioner must present new, reliable evidence 

that was not presented at trial. Schlup, 513 U.S. at 324, 115 

S.Ct. at 865. Second, a petitioner must show by a 

preponderance of the evidence, “that it is more likely than not 

that no reasonable juror would have convicted him in the light of

the new evidence.” Id. at 327, 115 S.Ct. at 867.11

B. What is new evidence

In Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 

1997), a case on which respondents heavily rely, the Court said 

that “evidence is new only if it was not available at trial and 

could not have been discovered earlier through the exercise of 

due diligence.”12 Respondents urge that we use this definition 

 

11. The Supreme Court explained in House v. Bell, 547 U.S. 

518, 538, 126 S.Ct. 2064, 2078 (2006), that the actual innocence 

gateway “requires the federal court to assess how reasonable 

jurors would react to the overall, newly supplemented record.”

12. In United States v. Davies, 394 F.3d 182, 191 n.8 (3d Cir. 

2005), we indicated that new evidence does not necessarily 

mean “newly discovered” evidence and may mean “newly 

presented” evidence. Nevertheless, in that case we did “not 

weigh in . . . on the „newly presented‟ versus „newly discovered‟ 

issues” because we did not need to do so.
14

and conclude that Houck did not tender new evidence in the 

District Court as he could have discovered his newly presented 

affidavit evidence for use at the trial through the exercise of due 

diligence. Houck is almost compelled to agree in part with 

respondents because in his petition in the District Court he 

claimed that his trial counsel was ineffective because he should 

have discovered and then presented this evidence at the trial. Of 

course, if this evidence had not been reasonably available before 

trial, trial counsel would not have been ineffective for failing to 

discover it and Houck‟s underlying ineffective assistance claim 

should have failed as, indeed, it did, though for jurisdictional 

and procedural reasons.

Yet arguably it is unfair to a petitioner to apply the 

Amrine statement of the law in cases in which the petitioner 

claims that he had had ineffective assistance of counsel by 

reason of his attorney not discovering exculpatory evidence 

when the petitioner is relying on that very evidence as being the 

evidence of actual innocence in a gateway case to reach the 

ineffective assistance of counsel claim. As we have indicated, 

the rule that Amrine sets forth requires a petitioner, such as 

Houck, in effect to contend that his trial counsel was not 

ineffective because otherwise the newly presented evidence 

cannot be new, reliable evidence for Schlup purposes.

We are not the first Court to recognize the petitioner‟s 

dilemma in the situation that we have described, for the Court of 

Appeals for the Seventh Circuit in Gomez v. Jaimet indicated 

that: “Particularly in a case where the underlying constitutional 

violation claimed is the ineffective assistance of counsel 

premised on a failure to present evidence, a requirement that 
15

new evidence be unknown to the defense at the time of trial 

would operate as a roadblock to the actual innocence gateway.” 

350 F.3d 673, 679-80 (7th Cir. 2003). The Gomez Court dealt 

with the problem by regarding evidence as new even if it was 

not newly discovered as long as it was “not presented to the trier 

of fact . . . . ” Id. at 680. Consequently, the Gomez Court 

indicated that a court can evaluate newly presented evidence in 

making a determination of whether the evidence is strong 

enough to establish the petitioner‟s actual innocence. Id. 

We believe, however, that Gomez‟s definition of “new” 

may be too expansive as it seems to go beyond what is needed to 

remedy the particular problem that that Court identified because 

it is not anchored to a claim that there had been ineffective 

assistance of counsel by reason of counsel‟s failure to present 

evidence of the petitioner‟s innocence. On the other hand, the 

Amrine definition of what is new evidence may be too narrow as 

its adoption would mean that evidence that was not discovered 

by an ineffective counsel could not be new evidence even 

though the petitioner was relying on that very failure as the basis 

for his claim. Overall we are inclined to accept the Amrine

definition of new evidence with the narrow limitation that if the 

evidence was not discovered for use at trial because trial counsel 

was ineffective, the evidence may be regarded as new provided 

that it is the very evidence that the petitioner claims 

demonstrates his innocence.13

 

13. The adoption of the modified Amrine definition would 

parallel our recognition in Goldblum v. Klem, 510 F.3d 204, 

214 (3d Cir. 2007), that sometimes a court must get ahead of 

itself and address issues relating to the merits of apparently 
16

Nevertheless, in this case we stop short of applying a 

modified Amrine standard because we need not do so in order to 

consider Houck‟s affidavits. Instead, we will assume without 

deciding that Houck‟s affidavits constitute new evidence that we 

may consider on the merits in these proceedings. We can make 

this assumption because, after our review of Houck‟s affidavits, 

we conclude, as will be seen below, that even taking into 

account this evidence he has not demonstrated that no 

reasonable juror would convict him after considering the newly 

supplemented record. Thus, Houck has not satisfied the Schlup

requirement to open the actual innocence door to allow his 

procedurally defaulted claims to be considered on the merits.14 

C. The Newly Presented Evidence

Houck submitted four affidavits, i.e., those of Consuella 

 

procedurally barred claims in a determination of whether a 

petitioner‟s claims meet the threshold Antiterrorism and 

Effective Death Penalty Act of 1996 and abuse-of-the-writ 

second petition standards governing whether procedurally 

barred claims may be considered.

14. Although Amrine did include a claim that trial counsel 

was ineffective by reason of inadequate investigation with 

respect to certain witnesses who gave inculpatory evidence 

implicating the petitioner but who later recanted their 

incriminating testimony, the Court of Appeals did not address 

the paradox we identify on this appeal.
17

Simpson, Tequila Harris, Jeneen Askqua, and Kelly Edwards 

with his traverse, claiming them to be newly discovered 

evidence and thus, for our purposes, to be new, reliable 

evidence. The affidavits of Simpson, Harris, and Askqua are 

nearly identical; each one states that Mt. Zion Christian 

Academy, where Houck asserted that he picked up his son on 

October 13, 1997, the day of the assault on Freeman, requires 

parents/guardians to sign a log book when picking up a student. 

In addition, Simpson‟s affidavit states that she saw Houck at the 

school with his son on October 13, 1997. She, however, does 

not indicate the time of day that she saw Houck. Edwards, who 

signed the fourth affidavit, indicated that she had witnessed 

Freeman‟s beating and that Houck was not one of his assailants.

D. Houck‟s Newly Presented Evidence Would Not Sway 

a Reasonable Juror

The District Court in its order of August 15, 2005, 

adopting the magistrate judge‟s report and recommendation as 

the opinion of the Court, did not indicate that it had considered 

the four affidavits, even though Houck relied on the actual 

innocence doctrine in his objections to the report and 

recommendation, and the report and recommendation did not 

mention them either.15 Accordingly, it would be reasonable for 

 

15. As we indicated above, in the order of August 15, 2005, 

adopting the report and recommendations as the opinion of 

the Court, the Court set forth that Houck had filed objections 

to the report and recommendation but they were “without 

merit.”
18

us to remand this case to the District Court with instructions to 

consider Houck‟s affidavits and then make an analysis of his 

claim of actual innocence. Indeed, in his brief on this appeal 

Houck suggested this result as a possibility, and, at oral 

argument before us in response to our suggestion that a remand 

might be appropriate, Houck indicated that he would view that 

outcome as a reasonable result on this appeal.

Nevertheless, we have determined not to remand the 

matter. To start with, the District Court decided the case 

without an evidentiary hearing, and thus that Court was in no 

better position to consider the newly presented evidence than we 

are.

16

 Second, though we could remand the matter for a plenary 

hearing at which the affiants could testify, we regard the newly 

presented evidence as too insubstantial to justify doing so. In 

this regard, we are cognizant of the fact that Houck is seeking a 

“rare” remedy that is only available in an “extraordinary” case, 

Schlup, 513 U.S. at 321, 115 S.Ct. at 864; Hubbard, 378 F.3d at 

338, and thus we are reluctant to protract these proceedings and 

will address the significance vel non of the four affidavits 

ourselves.

1. Simpson says that Houck was at his son‟s school

 

16. We note that Houck does not claim that he asked the 

District Court to conduct an evidentiary hearing on his 

petition. In any event, we see no basis to conclude that the 

Court abused its discretion in not holding such a hearing and, 

as we explain above, we see no reason now to order that it do 

so. See Goldblum v. Klem, 510 F.3d 204, 222 (3d Cir. 2007).
19

Simpson‟s affidavit dated 4/5/05 states that on October 

13, 1997, she picked up a child at Mt. Zion school and on that 

date at an unspecified time she observed Houck at the school 

with his son. The affidavit, however, does not explain how she 

was able to identify Houck. Moreover, Simpson does not 

explain the basis for her ability to identify someone she claims 

to have seen more than seven years earlier in what must have 

been an uneventful encounter. Of course, the affidavit‟s failure 

to indicate the time of day that Simpson saw Houck is a critical 

omission because it is entirely possible that Houck picked up his 

child and, after dropping him off, joined in the assault on 

Freeman. Clearly Simpson‟s affidavit is of limited value as it is 

unlikely it would convince a reasonable juror that Houck could 

not have been one of Freeman‟s assailants.

2. The affidavits of Jeneen Askqua and Tequila Harris

The affidavits of Jeneen Askqua and Tequila Harris are 

of no value at all.17 Both merely state that on October 13, 1997, 

the affiant had a child enrolled at the Mt. Zion school and at that 

time the school required a person picking up a child to sign a log 

book verifying the date and time at which he or she picked up 

the child. Neither affidavit even mentions Houck or suggests 

that he was at the school on October 13, 1997.18 We also note 

 

17. Harris, who was Houck‟s fiancée, testified at the trial 

about what she observed after she returned home on the night 

of October 13, 1997, but did not mention the procedures at the 

Mt. Zion school. 

18. Harris indicates that her child, LaFond Houck, Jr., was 
20

that Houck did not submit the log book to the District Court 

though he had had many years after his trial before he filed his 

petition in the District Court to attempt to obtain it. 

Though a reading of the Askqua and Harris affidavits, 

and that of Simpson as well, reveals that they explained the 

student pick-up procedure at Mt. Zion and Houck‟s traverse 

focuses strongly on this procedure, none of the affidavits stated 

that Houck signed the book or, if he did, what time he signed it. 

We are simply told that there is a log book.19 We do not think 

that a reasonable juror would acquit Houck after hearing this 

evidence, especially in light of all the other evidence of his guilt.

3. Witness Kelly Edwards says that Houck was not 

one of the assailants

Kelly Edwards‟ affidavit describes seeing the attack on 

Freeman and indicates that Houck was not one of the attackers. 

But the affidavit does not set forth the affiant‟s basis for that 

assertion. This is an important omission inasmuch as the 

affidavit does not explain how the affiant knew and would have 

recognized Houck. Moreover, witnesses at the trial testified that 

Freeman‟s assailants wore masks, surely an impediment to the 

 

enrolled at the school but does not say that Houck picked up 

the child on that day.

19. At oral argument before us when the whereabouts of the 

log book was discussed, Houck speculated that it might be in 

the basement of the school. Nevertheless, insofar as we are 

aware, Houck has not made any effort to obtain it.
21

assailants‟ identification. If the assailants wore masks, it 

reasonably may be asked how did Edwards know that Houck 

was not one of them? Clearly, we cannot conclude, by a 

preponderance of the evidence, that a reasonable juror would 

acquit Houck after hearing Edwards‟ testimony. 

IV. CONCLUSION

Houck has argued that his trial counsel was ineffective 

and that his appellate counsel compounded the error by failing to

address the issue of the trial counsel‟s ineffectiveness. 

However, he did not raise the failings of trial counsel and 

appellate counsel during post-conviction relief proceedings in 

the Pennsylvania state courts with respect to the procedurally 

barred matters that he wishes the federal courts to consider. 

Nevertheless, Houck now asks us to excuse his procedural 

default based on the strength of newly presented evidence 

demonstrating his actual innocence. We have examined that 

evidence and do not find it sufficient to invoke the rare and 

extraordinary remedy that Houck seeks, and accordingly, we 

will affirm the order of the District Court dated August 15, 

2005, and entered on August 16, 2005, denying his petition for a 

writ of habeas corpus.