PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 15-3755

___________

PATRICK COLEMAN,

 Appellant

v.

SUPERINTENDENT GREENE SCI; THE DISTRICT 

ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE 

ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA 

__________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania

(D.C. No. 2-14-cv-01683)

District Judge: Honorable Stewart Dalzell

___________

Submitted Under Third Circuit L.A.R. 34.1(a)

September 19, 2016

Before: MCKEE, Chief Judge,

* HARDIMAN, and 

RENDELL, Circuit Judges.

 

* Chief Judge Theodore A. McKee’s term as Chief 

Judge ended on September 30, 2016.
2

(Filed:January 5, 2017)

Michael Wiseman, Esq.

P.O. Box 120

Swarthmore, PA 19081 

Counsel for Appellant

Max C. Kaufman, Esq.

Philadelphia County Office of District Attorney 

3 South Penn Square

Philadelphia, PA 19107 

Counsel for Appellees

____________

OPINION

____________

HARDIMAN, Circuit Judge.

This appeal involves a petition for writ of habeas 

corpus that was dismissed as untimely under the AntiTerrorism and Effective Death Penalty Act (AEDPA), Pub. L. 

No. 104-132, 110 Stat. 1214. Despite his tardy filing, 

Appellant Patrick Coleman claims that it was a fundamental 

miscarriage of justice to deny him his day in court. Because 

Coleman cannot satisfy the actual innocence requirement of 

the fundamental miscarriage of justice exception to AEDPA,

we will affirm.

I

Coleman was tried along with several other defendants 

for his involvement in a gang-related shooting that occurred 
3

at Tobin’s Inn Restaurant on August 10, 1989. See Coleman 

v. Folino, 2015 WL 6379296, at *1 (E.D. Pa. Oct. 21, 2015).

The month-long trial included 76 witnesses for the 

Commonwealth, only one of whom testified as to Coleman’s 

involvement in the shooting. Id. Coleman was convicted of 

first-degree murder, two counts of aggravated assault, 

criminal conspiracy, and possession of an instrument of a 

crime. Id. at *1–2. Significantly for purposes of this appeal, 

Coleman was acquitted of violating the Pennsylvania Corrupt 

Organizations Act (PCOA), 18 Pa. Cons. Stat. § 991. Id. at

*2. The Pennsylvania Superior Court affirmed Coleman’s

convictions, and he did not seek review by the Pennsylvania 

Supreme Court. Id.

Two years after Coleman’s convictions became final, 

the Pennsylvania Supreme Court held that the PCOA did not 

apply to an individual’s participation in a wholly illegitimate 

enterprise. Commonwealth v. Besch, 674 A.2d 655, 655 (Pa. 

1996).1 Had Besch been the law when Coleman was tried, he

could not have been charged with a PCOA violation because 

the gang to which he belonged was wholly illegitimate. 

Coleman, 2015 WL 6379296, at *3. Coleman failed to raise a 

 

1 Two months after Besch, apparently in response to 

that decision, “the [Pennsylvania] General Assembly 

amended the [PCOA’s] definition of the term ‘enterprise’ 

explicitly making clear that the statute targets both legitimate 

and wholly illegitimate enterprises.” Commonwealth v. 

Williams, 936 A.2d 12, 18 (Pa. 2007); see also 18 Pa. C.S. 

§ 911(h)(3). The Pennsylvania Supreme Court later ruled that 

Besch was not a “new rule of law” and was retroactive to 

cases on collateral review. Kendrick v. Dist. Att’y of Phila. 

Cty., 916 A.2d 529, 531 (Pa. 2007). 
4

claim under Besch when he twice sought post-conviction 

relief under Pennsylvania’s Post Conviction Relief Act 

(PCRA), 42 Pa. Cons. Stat. § 9541.

Coleman’s PCRA petitions—a pro se petition filed in 

2002 and a counseled petition filed in 2007—sought 

reinstatement of his appellate rights based on ineffective 

assistance of counsel. Coleman claimed his attorney had 

agreed to appeal his conviction to the Pennsylvania Supreme 

Court but failed to do so. Both petitions were denied.

In 2014, Coleman filed a petition for writ of habeas 

corpus in the United States District Court for the Eastern 

District of Pennsylvania. Coleman argued that he was denied 

due process because the evidence introduced against his codefendants was unfairly imputed to him. The Magistrate 

Judge recommended that Coleman’s petition be dismissed as 

untimely under AEDPA, which imposes a one-year statute of 

limitation on applications for writs of habeas corpus.

Although Coleman conceded his petition was filed well 

outside that period, he asserted that his claim should be 

considered under the fundamental miscarriage of justice 

exception and principles of equitable tolling.

The District Court dismissed the petition with 

prejudice. The Court found that Coleman did not meet the 

requirements of the fundamental miscarriage of justice 

exception because he could not prove he was actually 

innocent. Nevertheless, the Court concluded that “reasonable 

jurists could disagree as to whether a conviction arising from 

a twenty-eight day trial where seventy-six witnesses were 

called and only one testified as to Coleman’s participation in 

the Tobin’s Inn Shooting can be considered a fundamental 

miscarriage of justice.” Coleman, 2015 WL 6379296, at *6. 
5

Accordingly, the Court issued a certificate of appealability 

“on the sole issue of whether the [fundamental miscarriage of 

justice exception] applies to this matter and therefore excuses 

Coleman’s untimely filing of his petition.” Id.

II

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

§§ 2241 and 2254. We have appellate jurisdiction to review

the certified issue under 28 U.S.C. § 2253. “Our review of the 

timeliness of a federal habeas application is plenary.”

Hartmann v. Carroll, 492 F.3d 478, 480 (3d Cir. 2007).

III

AEDPA imposes a one-year statute of limitation “to an 

application for a writ of habeas corpus by a person in custody 

pursuant to the judgment of a State Court.” 28 U.S.C. 

§ 2244(d)(1). Because Coleman’s final judgment was entered 

before Congress adopted AEDPA, Coleman had until April 

23, 1997 to apply for federal habeas relief. See Long v. 

Wilson, 393 F.3d 390, 394 n.4 (3d Cir. 2004). Coleman 

concedes, as he must, that his petition was untimely.

Coleman argues that his petition was subject to the 

fundamental miscarriage of justice exception to AEDPA. This 

exception “is grounded in the ‘equitable discretion’ of habeas 

courts to see that federal constitutional errors do not result in 

the incarceration of innocent persons.” Herrera v. Collins, 

506 U.S. 390, 404 (1993). The exception may overcome 

procedural default rules such as the timing requirements of 28 

U.S.C. § 2244(d)(1). See McQuiggin v. Perkins, 133 S. Ct. 

1924, 1931–32 (2013) (citing cases). And it “seeks to balance 

the societal interests in finality, comity, and conservation of 
6

scarce judicial resources with the individual interest in justice 

that arises in the extraordinary case.” Schlup v. Delo, 513 

U.S. 298, 324 (1995). 

The fundamental miscarriage of justice exception is 

narrow. The Supreme Court has applied it “to a severely 

confined category: cases in which new evidence shows ‘it is 

more likely than not that no reasonable juror would have 

convicted [the petitioner].’” McQuiggin, 133 S. Ct. at 1933 

(alteration in original) (quoting Schlup, 513 U.S. at 329). Put 

differently, the exception is only available when a petition 

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 1936 (quoting Schlup, 513 U.S. at 

316). In Schlup, the Supreme Court emphasized that 

“[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.” 

513 U.S. at 316. 

Coleman “cannot and does not argue that his habeas 

petition presented a claim of factual actual innocence.” 

Coleman Br. 27. Instead, he argues that the actual innocence

requirement noted by the Supreme Court in Schlup and 

McQuiggin is merely dicta. As such, he suggests we can (and 

should) excuse his late filing, claiming he suffered a 

fundamental miscarriage of justice because the (later) invalid 

PCOA charge rendered his trial unfair, even though he was 

acquitted of that charge.

We disagree with Coleman’s characterization of the

actual innocence requirement. A dictum is “a statement in a 
7

judicial opinion that could have been deleted without 

seriously impairing the analytical foundations of the holding.” 

United States v. Mallory, 765 F.3d 373, 381 (3d Cir. 2014)

(citation omitted). As we shall explain, the actual innocence 

requirement formed the basis of the Supreme Court’s holding

in McQuiggin.

The Supreme Court “granted certiorari to resolve a 

Circuit conflict on whether AEDPA’s statute of limitations 

can be overcome by a showing of actual innocence.” 

McQuiggin, 133 S. Ct. at 1930. The Court answered in the 

affirmative, “hold[ing] that actual innocence, if proved, 

serves as a gateway through which a petitioner may pass 

whether the impediment is a procedural bar . . . or[] . . . 

expiration of the statute of limitations.” Id. at 1928. As noted 

above, the Court emphasized repeatedly throughout its 

opinion that this exception is rare: “[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.” Id. (alteration in original) 

(quoting Schlup, 513 U.S. at 329); see also id. at 1933 (“The 

miscarriage of justice exception, we underscore, applies to a 

severely confined category: cases in which new evidence 

shows ‘it is more likely than not that no reasonable juror 

would have convicted [the petitioner].’” (quoting Schlup, 513 

U.S. at 329)); id. at 1935 (“To invoke the miscarriage of 

justice exception to AEDPA’s statute of limitations, we 

repeat, a petitioner ‘must show that it is more likely than not 

that no reasonable juror would have convicted him in the light 

of the new evidence.’” (quoting Schlup, 513 U.S. at 327)); id. 

at 1936 (“The gateway should open only when a petition 

presents ‘evidence of innocence so strong that a court cannot 
8

have confidence in the outcome of the trial unless the court is 

also satisfied that the trial was free of nonharmless 

constitutional error.’” (quoting Schlup, 513 U.S. at 316)). 

These statements—when combined with the absence of any 

language in the Court’s opinion to the contrary—convince us 

that the actual innocence requirement was essential to the 

Court’s holding.2

Because Coleman failed to present a claim of actual 

innocence, we hold that his habeas petition was untimely 

under AEDPA. In doing so, we adhere to the Supreme 

Court’s guidance in McQuiggin: the fundamental miscarriage 

of justice exception applies only in cases of actual innocence.

133 S. Ct. at 1928. To avoid the statutory time bar, a

petitioner must “persuade[] 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.” Id.

 

2 Even if the Court’s actual innocence requirement 

were dicta, “we [will] not idly ignore considered statements 

the Supreme Court makes in dicta.” In re McDonald, 205 

F.3d 606, 612 (3d Cir. 2000). “To ignore what we perceive as 

persuasive statements by the Supreme Court is to place our 

rulings, and the analysis that underlays them, in peril.” Galli 

v. N.J. Meadowlands Comm’n, 490 F.3d 265, 274 (3d Cir. 

2007). So even if we found the Court’s analysis of the actual 

innocence requirement to be dicta, we would reach the same 

result.
9

IV

For the reasons stated, we will affirm the District 

Court’s order dismissing Coleman’s petition for writ of 

habeas corpus.