PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 20-1977

______________

JOSEPH D. MARCY,

Appellant

v.

SUPERINTENDENT PHOENIX SCI;

THE DISTRICT ATTORNEY OF THE COUNTY OF 

LUZERNE;

THE ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

(D.C. No. 3-17-cv-00411)

District Judge: Honorable Robert D. Mariani

Argued

January 17, 2024

Before: HARDIMAN, MATEY, and CHUNG,

Circuit Judges.

(Filed: July 30, 2024)
2

Tadhg Dooley

David R. Roth [ARGUED]

Wiggin & Dana

One Century Tower

265 Church Street

New Haven, CT 06510

Erik Fredericksen

Adela Lilollari

Thaddeus Talbot

Yale Law School

127 Wall Street

New Haven, CT 06511

Counsel for Plaintiff-Appellant

Ronald Eisenberg

Office of Attorney General of Pennsylvania

1600 Arch Street

Suite 300

Philadelphia, PA 19103

James L. McMonagle, Jr. [ARGUED]

Luzerne County Office of District Attorney

200 N River Street

Wilkes-Barre, PA 18711

Counsel for Defendant-Appellees
3

OPINION OF THE COURT

MATEY, Circuit Judge.

Thirteen years ago, a Pennsylvania jury convicted 

Joseph Marcy of raping his five-year-old daughter, D.M. Years 

after testifying against her father, D.M. recanted some of her 

testimony in a state postconviction relief hearing. Marcy now 

petitions for a writ of habeas corpus, arguing that due process 

demands his release. But no matter how Marcy frames his 

claim, Teague v. Lane, 489 U.S. 288 (1989), bars its 

application here. So we will affirm the District Court’s order

dismissing his petition.

I.

A.

D.M. lived with Marcy’s mother, Michele Pardini. In 

June 2009, Pardini discovered D.M., then five years old, 

“touching herself inappropriately and behaving in sexual 

manners.” App. 287. “[C]oncerned,” she called the Luzerne 

County Children and Youth Services, and caseworker Holly 

Jones responded the same day. App. 287. Jones spoke with 

D.M. and asked the child how she learned that “touching her 

private parts felt good.” App. 287. D.M. responded, “[b]ecause 

daddy likes to do it. . . . Daddy likes to touch my private parts.”

App. 287. D.M. told Jones of “various sexual acts her father 

made her perform including oral sex and vaginal sex. She went 

on to describe him using his hands and his mouth in these sex 

acts” and how she was “forced to perform oral sex on her 
4

father.” App. 287–88.1 Alarmed, Jones arranged for D.M. to 

speak with Debbie Guziejka, an investigator with the County’s 

Children and Youth Services, and D.M. repeated the same 

story: that her father “would touch her on different parts of her 

body.” App. 384. She detailed specific acts, and she discussed 

times where “she told daddy no, but he wouldn’t stop.” App.

385.

The caseworkers at Luzerne County took D.M. to the 

Children’s Advocacy Center of Northeast Pennsylvania, a 

nonprofit organization staffing clinicians and investigators. 

During her visit to the Center, D.M. spoke with Kristen Fetcho, 

a child forensic investigator, and told her the same details she 

shared with the County caseworkers. D.M. then met with Dr. 

Michael Rogan, a board-certified family practice physician. 

His examination revealed signs of chronic irritation, evidence

of “more than an acute event such as like a diaper rash” and 

consistent with the conclusion “that the child had been sexually 

assaulted.” App. 335.

When D.M. testified at trial nearly two years later, her 

story stayed the same. She detailed repeated sexual assaults

and told the jury—just as she had told Jones, Guziejka, and 

Fetcho—that she asked her father to stop, and he refused. And 

she testified that she complained to her mother, who refused to 

believe her. After three hours of deliberation, the jury returned 

a unanimous conviction on all five counts in the indictment: 

rape of a child, two counts of involuntary deviate sexual 

intercourse with a child, aggravated indecent assault of a child, 

and assault to a person less than thirteen. Marcy was sentenced 

1 At trial, Jones testified that D.M. was “very matter of 

fact” when she explained these events. App. 291.
5

to 20 to 40 years’ incarceration.

Shortly after sentencing, Marcy moved for a new trial. 

His motion advanced general arguments about insufficient 

evidence, erroneous evidentiary rulings, and his “belie[f]” that 

the sentence was “excessive and unreasonable.” App. 633. The 

court denied the motion as moot after Marcy also filed a direct 

appeal. On appeal, Marcy argued that the trial court made an 

erroneous evidentiary ruling regarding reputation testimony. In 

both his (mooted) motion for a new trial and his direct appeal, 

Marcy never claimed that D.M. fabricated her testimony. The 

Superior Court of Pennsylvania affirmed his conviction, and 

Marcy did not appeal to the Pennsylvania Supreme Court.

B.

Marcy’s first premature state petition for postconviction 

relief did not mention false testimony. A second premature 

petition checked boxes seeking relief due to “[a] violation of 

the Constitution” and “[i]neffective assistance of counsel,” and 

requested an evidentiary hearing. App. 646. He did not check 

the box indicating “exculpatory evidence that has subsequently 

become available.” App. 646. Nor did his second petition state 

D.M. had changed her story. Instead, between two accounts of 

a juror who allegedly proclaimed Marcy innocent,2 was a piece 

2 These accounts, written by family acquaintances, 

describe an unidentified juror in the parking lot who stated, “in 

tears, smoking a cigarette, . . . that Mr. Marcy was innocent.” 

App. 662. According to both accounts, the juror also said he 

was “sorry” about “the outcome of the trial and verdict.” App.

662. The authors said they “believe[d] that [the] Juror was 

pressured into saying guilty.” App. 665. Marcy never raised 

these claims in his later filings.
6

of paper dated February 2012 from a person named Kimberly 

Marth.3 See App. 663 (“Marth note”). Addressed “[t]o whom 

it may concern,” the Marth note said, “I am writing this letter 

in light of things told to me and several other people that, 

[D.M.] had not told the truth in her testimony at trial against 

her father” and “that certain acts of the abuse in fact did not 

happen at all.” App. 663.4 Because Marcy filed these petitions 

before his conviction became final, the postconviction court 

dismissed them without prejudice.

After Marcy’s conviction became final, the 

postconviction court sua sponte reinstated Marcy’s second 

untimely petition and appointed counsel to supplement 

Marcy’s previous filings. That produced a supplemental 

petition—now drafted with help from counsel—that recycled 

Marcy’s prior arguments about erroneous evidentiary rulings, 

ineffective assistance, and other errors unrelated to recantation

but omitted the Marth note.

Another year passed before Marcy again supplemented 

his postconviction filings, now asking for relief based on “[t]he 

unavailability at the time of trial of exculpatory evidence that 

has subsequently become available and would have changed 

the outcome of the trial if it had been introduced.” App. 684

3 Marth’s identity, and her connection to D.M., is not 

explained in the record. Neither Marcy’s filings, nor the 

Pennsylvania court decisions, discuss Marth beyond references 

to the note. In this appeal, Marcy makes one mention of Marth 

serving as D.M.’s “caretaker” without describing the origin, 

scope, or length of that relationship. Opening Br. 10.

4 The Marth note did not specify which acts of abuse 

were false. Nor did it explain the basis of Marth’s suggestion 

that D.M. did not testify with complete candor.
7

(quoting 42 Pa. C.S. § 9543 (a)(2)(vi)). Marcy’s newest filing

focused on a new interview D.M. provided to a private 

investigator.5 That led to a postconviction relief hearing where

D.M., now eleven years old, testified that Marcy “did not do 

it.”6 App. 712. Recognizing this answer marked a sharp break 

from D.M.’s trial testimony, Marcy’s counsel asked D.M. how 

the Judge was “supposed to know” which story was true. App.

713. D.M. answered, “I don’t know.” App. 713. The

Commonwealth asked D.M. how she knew of specific sexual 

5 In that interview, according to Marcy, D.M. “recanted 

significant portions of her previous trial testimony, indicating 

that [Marcy] did not, at any time, have vaginal or anal sex with 

her.” App. 684. But at the postconviction relief hearing, 

Marcy’s attorney asked D.M. if she remembered “maybe a year 

or two ago talking to an older man . . . about what happened or 

didn’t happen.” App. 711. D.M. said, “Yes, I recall.” App. 711. 

But when asked if she recalled “telling the man . . . that [the 

abuse] didn’t happen,” D.M. twice responded, “No.” App. 712.

Either way, Marcy—like the Marth note—did not claim that 

D.M.’s entire testimony was false, or that the abuse never 

happened. 6 When D.M. testified at Marcy’s postconviction relief 

hearing, she was living with her new adoptive mother, Kelly 

Gronka. Gronka’s brother was dating Marcy’s mother, Michele 

Pardini, at that time.

At the postconviction hearing, D.M. also testified that 

Gronka allowed her to talk on the phone with the imprisoned 

Marcy despite a no-contact order. And that she overheard 

phone calls between Gronka and Marcy, where they said they 

loved each other. And that Pardini moved in with D.M. and 

Gronka, where Pardini “talked about [Marcy]” and told D.M. 

“how much she missed” Marcy. App. 717.
8

acts and physiological effects at such a young age. Again, D.M. 

repeatedly responded: “I don’t know.”7 App. 713–16.

Still, the Court of Common Pleas found D.M.’s

recantation testimony “credible,” App. 741, vacated Marcy’s 

conviction, and granted him a new trial. On appeal, the

Superior Court vacated that decision because Marcy “had 

knowledge of the victim’s recantation in 2012 and did not raise 

it until 2014,” and so waived his challenge. App. 771. The 

Pennsylvania Supreme Court declined to review that decision.

With Marcy’s direct proceedings finalized, he filed this

petition seeking release because his conviction was “secured 

by false evidence or testimony” in violation of due process. 

App. 79. The District Court concluded Marcy’s recantation 

claim was time-barred and denied the petition. Marcy 

appealed, and we granted a certificate of appealability limited 

to “his claim that his conviction and continued incarceration in 

light of [D.M.’s] recantation violates his due process rights.” 

7 See App. 714 (“Q: So how would you know that there 

would be naked people on a computer if you didn’t actually see 

it? A: I don’t know.”); App. 714 (“Q: So how did you know 

about that hand motion? A: I don’t know.”); App. 714 (“Q: 

Then can you explain to the Court, why was it that you would 

have lied about something like that? A: Don’t know.”); App.

715 (“Q: How did you know at that age that a pickle would go 

in someone’s mouth? A: I don’t know. Q: Did someone tell 

you to say that? A: No. Q: Did you see that someplace? A: 

No.”); App. 716 (“Q: Well, how did you know to say that your 

dad would only touch you when your mom was gone? A: I 

don’t know.”).
9 

App. 28.8

II. 

A federal court can order the release of a state prisoner 

through a writ of habeas corpus “only on the ground that he is 

in custody in violation of the Constitution or laws or treaties of 

the United States.” 28 U.S.C. § 2254(a). Habeas relief has 

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

§ 2254 and we have jurisdiction under 28 U.S.C. §§ 1291 and 

2253(c). We review the District Court’s legal determinations 

de novo. Albrecht v. Horn, 485 F.3d 103, 114 (3d Cir. 2007). 

Because the postconviction relief court found D.M.’s 

recantation testimony “credible,” App. 741, it is “presumed to 

be correct” in this proceeding, absent clear and convincing 

contrary evidence, 28 U.S.C. § 2254(e)(1); see also Vickers v. 

Superintendent Graterford SCI, 858 F.3d 841, 849–50 & n.9 

(3d Cir. 2017). 

The parties dispute whether Marcy procedurally 

defaulted on his constitutional claim. But we need not decide 

that issue. “An application for a writ of habeas corpus may be 

denied on the merits, notwithstanding the failure of the 

applicant to exhaust the remedies available in the courts of the 

State.” 28 U.S.C. § 2254(b)(2); see also Duncan v. Morton, 

256 F.3d 189, 203 n.6 (3d Cir. 2001) (“The parties now dispute 

whether [Petitioner] has exhausted this claim for purposes of 

his federal habeas petition. Because this claim is clearly 

without merit, we decline to address the parties’ exhaustion 

arguments.”) (citing 28 U.S.C. § 2254(b)(2)). We adopt that 

course here and address only the merits. 
10 

always been limited,9 and the Supreme Court has explained 

9 At common law, final convictions were unreviewable 

through the writ of habeas corpus, so long as the court of 

conviction had jurisdiction. See Brown v. Davenport, 596 U.S. 

118, 128–29 (2022); see also Ex parte Watkins, 28 U.S. (3 Pet.) 

193, 203 (1830) (Federal courts “have no power to examine the 

proceedings on a writ of error, and it would be strange, if, under 

colour of a writ to liberate an individual from unlawful 

imprisonment, we could substantially reverse a judgment 

which the law has placed beyond our control.”); 3 William 

Blackstone, Commentaries *407 (“The writ of error only lies 

upon matter of law arising upon the face of the proceedings; so 

that no evidence is required to substantiate or support it; there 

being no method of reversing an error in the determination of 

facts, but by an attaint, or a new trial, to correct the mistakes of 

the former verdict.”). The Habeas Corpus Act of 1867 

extended the writ to state prisoners but “did not empower the 

federal courts on habeas corpus to redetermine the merits of 

federal questions—even constitutional questions—which did 

not go to the jurisdiction of the committing court.” Paul M. 

Bator, Finality in Criminal Law and Federal Habeas Corpus 

for State Prisoners, 76 Harv. L. Rev. 441, 481 (1963); see also 

Judiciary Act of February 5, 1867, ch. 28, § 1, 14 Stat. 385, 

385. 

Then, “[i]n 1953,” the Supreme Court “abruptly 

changed course and decided that federal courts could grant a 

writ of habeas corpus simply because they disagreed with a 

state court’s judgment.” Edwards v. Vannoy, 593 U.S. 255, 278 

(2021) (Thomas, J., concurring) (citation omitted). This 

“greatly expanded writ of habeas corpus,” Desist v. United 

States, 394 U.S. 244, 262 (1969) (Harlan, J., dissenting), 
11 

that federal courts ordinarily may not apply a new rule of law 

retroactively to grant a writ. See, e.g., Teague, 489 U.S. at 310. 

That is because “applying ‘constitutional rules not in existence 

at the time a conviction became final seriously undermines the 

principle of finality which is essential to the operation of our 

criminal justice system.’” Edwards v. Vannoy, 593 U.S. 255, 

263 (2021) (quoting Teague, 489 U.S. at 309). So while “[a] 

new rule of criminal procedure applies to cases 

on direct review, . . . . a new rule of criminal procedure 

ordinarily does not apply retroactively to overturn final 

convictions on federal collateral review.” Id. at 262. 

Marcy argues that his continued incarceration for a 

conviction resulting from testimony recanted after trial violates 

the Constitution, no matter how that testimony was introduced 

or whether any state actor knew it to be false. Simply stated, 

Marcy argues he has a right to be free from continued 

conviction obtained by credibly recanted testimony, regardless 

of the government’s knowledge of the testimony’s falsity. And

he argues that this right existed at the time of his conviction.

But neither the Supreme Court nor this Court have ever so held, 

and Teague bars a retroactive application of Marcy’s claimed 

triggered questions about the relief federal courts could grant 

when applying new constitutional procedures to old criminal 

convictions, see generally Edwards, 593 U.S. at 278 (Thomas, 

J. concurring). After several decades of the resulting “atextual 

and ad hoc approach,” id. at 279 (Thomas, J., concurring), 

Congress stepped in with the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA), which “filled in” the 

gaps left by the Act “by creating a comprehensive system for 

addressing federal habeas claims brought by state prisoners,” 

id. at 280 (Thomas, J., concurring). 
12 

right as a novel rule of criminal procedure.10

A. 

A rule 11 is new “if the result was not dictated by 

precedent existing at the time the defendant’s conviction 

became final.” Teague, 489 U.S. at 301; see also Graham v. 

Collins, 506 U.S. 461, 467 (2004). To ensure that habeas 

proceedings “cannot be used as a vehicle to create new 

constitutional rules of criminal procedure,” Teague, 489 U.S. 

at 316, a novel rule cannot be applied retroactively to cases on 

collateral review unless it is “substantive.” Whorton v. 

10 Teague is “[a] threshold question in every habeas 

case.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994). While “not 

‘jurisdictional’ in the sense that [federal courts] . . . must raise 

and decide the issue sua sponte,” Collins v. Youngblood, 497 

U.S. 37, 41 (1990) (emphasis omitted), Teague may be applied 

by a federal court even if not argued by the government, see

Caspari, 510 U.S. at 389. Although the Commonwealth failed 

to raise Teague until prompted by this Court in supplemental 

briefing, we will apply Teague here. 

11 Marcy’s alleged right is founded in substantive due 

process—his conviction is unconstitutional “regardless of the 

fairness of the procedures used” by the state. Cnty. of 

Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quotations 

omitted). But whether the right is substantive or procedural for 

due process is unrelated to whether the proposed rule is one of 

substance or one of procedure for the purposes of Teague. See, 

e.g., Goeke v. Branch, 514 U.S. 115, 117–20 (1995) 

(recognizing that a new substantive due process right was 

barred as a new procedural rule under Teague).
13 

Bockting, 549 U.S. 406, 416 (2007). 12 Meaning it “places 

12 Teague’s distinction between procedural and 

substantive rules followed a period after Brown v. Allen, 344 

U.S. 443 (1953), when the habeas “haystack just grew too 

large,” and courts struggled to determine when constitutional 

decisions from collateral review of criminal cases could be 

retroactively applied. Edwards, 593 U.S. at 288–89 (Gorsuch, 

J., concurring). Teague sought shelter from the sea of 

“incompatible rules and inconsistent principles” identified by 

those raising the alarm, Desist, 394 U.S. at 258 (Harlan, J., 

dissenting), and to “return the writ to its original station” by 

withholding “newly recognized rules of criminal procedure” 

from final criminal judgments, Edwards, 593 U.S. at 291, 290 

(Gorsuch, J., concurring). In this way, Teague refocused courts 

to the traditional understanding of the writ as a limited tool of 

review and retreated from the misguided project of deciding 

retroactivity case-by-case. See Linkletter v. Walker, 381 U.S. 

618, 629 (1965); see also Paul J. Mishkin, Foreword: The High 

Court, the Great Writ, and the Due Process of Time and Law, 

79 Harv. L. Rev. 56, 66 (1965) (“[T]he establishment and 

application of a power of prospective limitation produces sharp 

and recurrent conflict with the symbolic ideal reflected in the 

Blackstonian concept . . . .”). The decision also reoriented 

collateral habeas review toward to the classical judicial role not 

to “pronounce a new law, but . . . maintain and expound the old 

one.” 1 Blackstone, Commentaries *69. Asking whether a 

judgment “shall ‘apply’ retroactively [] presupposes a view of 

our decisions as creating the law, as opposed 

to declaring what the law already is. Such a view is contrary to 

that understanding of ‘the judicial Power.’” Am. Trucking 

Ass’ns, Inc. v. Smith, 496 U.S. 167, 201 (1990) (Scalia, J., 

concurring) (citing U.S. Const., Art. III, § 1).
14 

certain kinds of primary, private individual conduct beyond the 

power of the criminal law-making authority to proscribe,” 

Teague, 489 U.S. at 311 (quoting Mackey v. United States, 401 

U.S. 667, 692 (1971)) (quotation marks omitted), or 

“prohibit[s] imposition of a certain type of punishment for a 

class of defendants because of their status or offense,” Sawyer 

v. Smith, 497 U.S. 227, 241 (1990).13 We first look at the legal 

landscape at the time Marcy’s conviction became final 14 to 

determine whether his alleged right was “dictated” by the 

existing precedent at that time. Teague, 489 U.S. at 301

(emphasis omitted). “[A] rule is new unless, at the time the 

conviction became final, the rule was already ‘apparent to all 

reasonable jurists.’” Edwards, 593 U.S. at 265 (quoting 

13 See also Schriro v. Summerlin, 542 U.S. 348, 353 

(2004) (describing “substantive” rules under Teague as those 

that “alter[] the range of conduct or the class of persons that the 

law punishes”); Bousley v. United States, 523 U.S. 614, 620–

21 (1998) (Substantive rules “hold[] that a . . . statute does not 

reach certain conduct” or “make conduct criminal.”); Saffle v. 

Parks, 494 U.S. 484, 495 (1990) (Substantive rules 

“decriminalize a class of conduct [or] prohibit the imposition 

of . . . punishment on a particular class of persons.”). 

A second exception for “watershed rules of criminal 

procedure,” Teague, 489 U.S. at 311, has never been applied 

by the Supreme Court “in the 32 years since Teague,” 

Edwards, 593 U.S. at 258–59. And the Supreme Court has only 

identified one pre-Teague rule that would have qualified as a 

“watershed” rule: the right to counsel recognized in Gideon v. 

Wainwright, 372 U.S. 335 (1963). 

14 Marcy’s conviction became final on August 27, 2012.

But because Marcy’s proposed rule is novel, see infra Section 

II.A.1–3, this date does not affect our analysis. 
15 

Lambrix v. Singletary, 520 U.S. 518, 528 (1997)). Marcy 

cannot clear this threshold hurdle. 

1.

The Supreme Court has never recognized Marcy’s 

alleged right to be released from a conviction involving 

recanted testimony where no state actor knew about the falsity 

of the statements. Start with Mooney v. Holohan, where the 

habeas petitioner contended that due process was violated 

where “the sole basis of his conviction was perjured 

testimony,” which was “knowingly used” by the prosecution. 

294 U.S. 103, 110 (1935). The Supreme Court agreed, finding 

that where “a state has contrived a conviction . . . through a 

deliberate deception” using “testimony known to be perjured,” 

the government violates due process. Id. at 112. There, the 

focus was on the government’s unjust actions, a 

“contrivance . . . inconsistent with the rudimentary demands of 

justice.” Id. Pyle v. Kansas reiterated that a habeas petitioner’s 

claims that “his imprisonment resulted from perjured 

testimony, knowingly used by the State authorities” 

sufficiently alleged a due process violation. 317 U.S. 213, 216 

(1942). But Hysler v. Florida emphasized that habeas 

petitioners “cannot, of course, contend that mere recantation of 

testimony is in itself ground for invoking the Due Process 

Clause against a conviction.” 315 U.S. 411, 413 (1942) 

(emphasis added). Rather, recantation claims require proof that 

“responsible officials knowingly used false testimony.” Id.

(emphasis added). None of these cases turned on mere falsity: 

the key was that the state knew of the falsehood and used it 

anyway.
16 

2. 

For over fifty years, this Court has followed the 

requirement that the government have knowledge of 

testimony’s falsity for the defendant to raise a viable due 

process claim. See United States ex rel. Almeida v. Baldi, 195 

F.2d 815, 820–21 (3d Cir. 1952) (citing Mooney as the 

“controlling authority. . . . for seventeen years”). Swimming 

against that tide, Marcy points to a single case: Curran v. 

Delaware, 259 F.2d 707 (3d Cir. 1958). But Curran simply 

applied the existing principle that a conviction based on the 

government’s knowing use of false testimony is 

unconstitutional. See id. at 712–13 (collecting state-knowledge 

cases, including Mooney, Baldi, and Pyle). In Curran, the 

petitioners argued that the state detective lied on the witness 

stand, pointing out that “[t]he record le[ft] no doubt that [his] 

testimony was untrue.” Id. at 710. While the “knowledge of 

such perjury” could not be “brought home to the prosecuting 

officers,” we held that “the knowingly false testimony” of a 

state actor violated due process. Id. at 712–13.15

15 A conclusion adopted by the Supreme Court in Napue 

v. Illinois, where, citing Baldi, the Court held a due process 

violation “obtains when the State, although not soliciting false 

evidence, allows it to go uncorrected when it appears.” 360 

U.S. 264, 269 (1959); see also id. (“[A] conviction obtained 

through use of false evidence, known to be such by 

representatives of the State, must fall under the Fourteenth 

Amendment.”) (citing Curran, 259 F.2d at 707). Leading to the 

famous formulation of the right recognized in Brady v. 

Maryland, that “the suppression by the prosecution of evidence 

favorable to an accused upon request violates due process 
17

And in Smith v. United States, the petitioner, like

Marcy, argued “that the [g]overnment witnesses were not 

telling the truth” but failed to “allege any facts to show the 

[g]overnment knowingly used false testimony at the trial.” 358 

F.2d 683, 684 (3d Cir. 1966). We called government 

knowledge a “matter[] of substance” and concluded its 

“absence constitute[d] a fatal defect” in the petitioner’s perjury 

argument. Id. Smith followed earlier decisions of this Court

rejecting petitions that claimed perjury but failed “to show the 

knowing and intentional use of [that] perjury by the 

prosecution.” United States ex rel. Helwig v. Maroney, 271 

F.2d 329, 332 (3d Cir. 1959); see also id. (“[T]he burden is 

upon the appellant to prove such perjury and that it was 

knowingly and intentionally used by the prosecution.”).16

where the evidence is material either to guilt or to punishment, 

irrespective of the good faith or bad faith of the prosecution.” 

373 U.S. 83, 87 (1963). Brady now governs those kinds of 

challenges, see, e.g., Dennis v. City of Phila., 19 F.4th 279, 

291–92 (3d Cir. 2021), which explains why decisions like 

Curran and Smith v. United States, 358 F.2d 683 (3d Cir. 

1966), have all but disappeared from the federal reporters. 

Curran foreshadowed an entirely different rule than the one 

Marcy suggests.

16 District courts have long relied on Smith to dismiss 

habeas petitions that fail to show just that. See, e.g., Hauls v. 

Meyers, No. Civ. A. 03-4866, 2004 WL 73902, at *8 (E.D. Pa. 

Jan. 14, 2004) (dismissing habeas petition that “fail[ed] to 

show that the government knowingly used [perjured] 

testimony to its benefit”); United States v. Sanders, 3 F. Supp. 

2d 554, 567 (M.D. Pa. 1998) (citing Smith for the proposition 
18 

Marcy has not shown (or even argued) that any 

government actor knew (or could have known) Marcy’s 

daughter would change parts of her story after trial. Curran and 

Smith, therefore, cannot ground Marcy’s claim as he 

suggests.17 In sum, his requested rule is not “dictated” by our 

precedent. Teague, 489 U.S. at 301 (emphasis omitted). 

3. 

Nor do the two outlying decisions Marcy cites from the 

Second and Ninth Circuits—Sanders v. Sullivan, 863 F.2d 218 

(2d Cir. 1988) and Maxwell v. Roe, 628 F.3d 486 (9th Cir. 

2010), cert. denied, 565 U.S. 1138 (2012)—show a rule 

“apparent to all reasonable jurists.” Edwards, 593 U.S. at 

that the “government must knowingly use perjured testimony 

to warrant relief under [28 U.S.C.] § 2255”); Rivera v. Gov’t 

of V.I., No. 31-1973, 1973 WL 354140, at *1 (D.V.I. July 5, 

1973) (“The majority rule . . . is that the petition must allege 

that the prosecuting attorney knowingly offered perjurious 

testimony of a material nature.”); United States ex rel. 

Cornitcher v. Myers, 253 F. Supp. 763, 764 (E.D. Pa. 1966) 

(“The essence of the offensive conduct is conviction through 

contrivance, and it follows that there must be an allegation and 

proof that the prosecutor knew the testimony to be false.”) 

(citing Smith, 358 F.2d at 683). 

17 Marcy also mentioned Lee v. Superintendent 

Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015), at oral argument, 

but that case dealt with “flawed forensic evidence” or “other 

junk science.” Gimenez v. Ochoa, 821 F.3d 1136, 1143–44 (9th 

Cir. 2016) (citation omitted). Unsurprisingly, Lee did not even 

cite Curran. 
19 

265. 18 The Sanders panel found a constitutional violation 

without evidence of prosecutorial knowledge, but it also 

conceded that “many jurisdictions,” including this Court, 

reached the opposite holding and required evidence “that the 

18 And they place Marcy on the wrong side of an eightto-two circuit split. See Smith, 358 F.2d at 684 (dismissing 

habeas petition because it failed to “allege any facts to show 

the [g]overnment knowingly used false testimony at the trial”); 

United States v. Jones, 614 F.2d 80, 82 (5th Cir. 1980) (“[F]or 

perjury by a witness to constitute grounds for relief appellant 

would have to show that the [g]overnment knowingly used the 

perjured testimony.”); Burks v. Egeler, 512 F.2d 221, 226 (6th 

Cir. 1975) (“A requirement of state involvement [is] a 

prerequisite to finding constitutional error . . . .”); United 

States ex rel. Burnett v. Illinois, 619 F.2d 668, 674 (7th Cir. 

1980) (“It is the knowing and intentional use of [perjured] 

testimony by the prosecuting authorities that is a denial of due 

process of law.”) (citation omitted); Lindhorst v. United States, 

658 F.2d 598, 601 (8th Cir. 1981) (dismissing habeas petition 

because “appellant failed to establish the government’s 

knowing use of the perjured testimony”); Graham v. Wilson, 

828 F.2d 656, 659 (10th Cir. 1987) (“In our habeas corpus 

consideration of the introduction of false or mistaken 

testimony, the question of error turns not on the witness’ 

knowledge of falsity, but on the government’s knowledge.”); 

Smith v. Wainwright, 741 F.2d 1248, 1257 (11th Cir. 1984) 

(requiring evidence “that the prosecutor or the police officers 

knew that the testimony of one of the [witnesses] was false”);

Hodge v. Huff, 140 F.2d 686, 689 (D.C. Cir. 1944) (rejecting 

perjury argument because “[t]here is nothing in the record to 

support or even to suggest bad motive, or misconduct upon the 

part of the prosecution”). 
20 

prosecutor knowingly used perjured testimony.” 863 F.2d at 

222 & n.2 (citing Smith, 358 F.2d at 683).19 The Sanders panel 

also lacked the guidance of Teague, decided less than three 

months later. When the case returned to the Second Circuit, the 

state raised Teague, and the new panel concluded “that the rule 

of Sanders I falls squarely within one of the exceptions to the 

retroactivity doctrine,” the “application of ‘watershed rules of 

criminal procedure.’” Sanders v. Sullivan, 900 F.2d 601, 606–

07 (2d Cir. 1990) (Sanders II)). But that reasoning is now 

foreclosed by Edwards because “[t]he watershed exception is 

moribund.” Edwards, 593 U.S. at 272.; id. at 267 (noting that, 

with the exception of Gideon, “[t]he Court has never identified 

any other pre-Teague or post-Teague rule as watershed. 

None.”). 

The Ninth Circuit’s decision in Maxwell is similarly 

unhelpful to Marcy. The panel held that “a conviction based on 

uncorrected false material evidence . . . is a violation of a 

defendant’s due process rights under the Fourteenth 

19 Sanders struggles to find footing to steady its lack of 

a state-actor-knowledge rule in pre-Brady cases of perjury by 

state actors. See Sanders, 863 F.3d at 222–23 (purporting to 

find “precedent for this rule” in Kyle v. United States, 266 F.2d 

670, 672 (2d Cir. 1959) (perjury of a postal inspector), Smith 

v. United States, 223 F.2d 750, 754 (5th Cir. 1955) (perjury of 

government agent at sentencing hearing), and Curran, 259 

F.2d at 707). It also found inspiration in “the spirit of the 

Constitution.” Id. at 225. And it leaned heavily on Justice 

Douglas’s dissenting opinion in Durley v. Mayo, 351 U.S. 277, 

290–91 (1956). See id. at 223. A point the Second Circuit later 

acknowledged when it declined to follow Sanders. See Drake 

v. Portuondo, 321 F.3d 338, 345 n.2 (2d Cir. 2003). 
21 

Amendment.” 628 F.3d at 507. But Maxwell relied on Sanders

and cases involving knowing government actors. See id. at 506 

(citing United States v. Young, 17 F.3d 1201, 1203–04 (9th Cir. 

1994) (perjury of police officer); Hall v. Dir. of Corr., 343 F.3d 

976, 980 (9th Cir. 2003) (per curiam) (perjury by jailhouse 

informant after “police threatened to kill him and his mother if 

he did not lie”); Killian v. Poole, 282 F.3d 1204, 1208–09 (9th 

Cir. 2002) (citing Young to find government knowledge 

immaterial)). 

To sum up: one outlier case (and another that relied on 

it) from outside of this Circuit that is inconsistent with our 

precedent does not establish a rule “apparent to all reasonable 

jurists.” Edwards, 593 U.S. at 265. Leaving Marcy without any 

meaningful support, let alone the broad and clear consensus of 

cases needed to circumvent Teague’s bar against applying new 

rules to Marcy’s petition.20 

20 Marcy offers an alternative framing of his proposed 

right: that he is “actually innocent,” making his continued 

incarceration a violation of due process. While arguably 

beyond the question certified for appeal, this contention fails 

regardless. The Supreme Court has “repeatedly left that [issue] 

unresolved, while expressing considerable doubt that any 

claim based on alleged ‘actual innocence’ is constitutionally 

cognizable.” In re Davis, 557 U.S. 952, 955 (2009) (Scalia, J., 

dissenting); see also Dist. Att’y’s Off. for Third Jud. Dist. v. 

Osborne, 557 U.S. 52, 71 (2009) (“We have struggled with [the 

actual-innocence claim] over the years, in some cases 

assuming, arguendo, that it exists while also noting the 

difficult questions such a right would pose and the high 

standard any claimant would have to meet.”). Whatever the 
22 

B. 

Marcy faces a second hurdle: his proposed rule can 

circumvent Teague’s nonretroactivity principle only if it is 

“substantive,” meaning it “prohibit[s] imposition of a certain 

type of punishment for a class of defendants because of their 

status or offense,” Sawyer v. Smith, 497 U.S. 227, 241 (1990), 

or changes the “range of conduct or the class of persons that 

the law punishes,” Schriro v. Summerlin, 542 U.S. 348, 353 

(2004) (citation omitted). Marcy’s proposed rule falls outside 

these “extremely narrow” corridors. Id. at 352. It does not 

change what conduct can be criminalized, nor does it remove 

Marcy from a class of punishable offenders. It seeks instead to 

“regulate only the manner of determining the defendant’s 

culpability,” and is therefore a procedural rule that cannot be 

applied retroactively. Id. at 353.

* * * 

For these reasons, we will affirm the District Court’s 

order denying Marcy’s petition. 

contours of such a right, it would entail an “extraordinarily 

high” burden of proof—one so high that no petitioner in our 

Court nor the Supreme Court has ever met it. See Herrera v. 

Collins, 506 U.S. 390, 417 (1993). Marcy does not buck that 

trend. The Commonwealth offered other evidence outside of 

D.M.’s initial testimony, and her recantation leaves 

unexplained a host of incriminating facts (including D.M.’s 

other statements to adults and D.M.’s graphic and specific 

knowledge). So Marcy’s alternative right is insufficiently 

grounded to survive Teague.