PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3416

_____________

DAVID JOSEPH MUNCHINSKI

v.

HARRY WILSON, Warden of the State Correctional 

Institute of Fayette; 

ATTORNEY GENERAL OF THE STATE OF 

PENNSYLVANIA,

 Appellants

_____________

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No. 2-07-cv-01712

Magistrate Judge: The Honorable Lisa P. Lenihan

Argued June 27, 2012

Before: SMITH and JORDAN, Circuit Judges
2

RAKOFF, Senior District Judge

(Filed: September 11, 2012)

Noah Geary [ARGUED]

Suite 225

Washington Trust Building

Washington, PA 

Counsel for Appellee

Gregory J. Simatic [ARGUED]

Office of Attorney General of Pennsylvania

Appeals & Legal Services Section

564 Forbes Avenue

6

th Floor

Pittsburgh, PA 

Counsel for Appellant

________________ 

 OPINION

________________ 

SMITH, Circuit Judge.

 



The Honorable Jed S. Rakoff, United States Senior 

District Judge for the United States District Court for the 

Southern District of New York, sitting by designation.
3

In 1986, David Munchinski was convicted of two 

counts of first-degree homicide and two counts of 

second-degree homicide arising out of a pair of murders 

that occurred in 1977 in Bear Rocks, Pennsylvania (the 

“Bear Rocks Murders” or the “murders”). In the years 

following his conviction, Munchinski discovered that 

prosecutors had withheld from his counsel almost a 

dozen articles of exculpatory evidence. After 

unsuccessfully petitioning for post-conviction relief 

several times in state and federal court, Munchinski filed 

a second or successive habeas petition pursuant to 28 

U.S.C. §§ 2244 & 2254(d) in the United States District 

Court for the Western District of Pennsylvania. 

Munchinski argued that the Pennsylvania Superior Court

unreasonably applied Brady v. Maryland, 373 U.S. 83 

(1963), when it declined to grant Munchinski postconviction relief based on several articles of exculpatory 

evidence that were unlawfully withheld by the 

prosecution. 

The District Court found some of Munchinski‟s 

claims untimely under 28 U.S.C. § 2244(d)(1)(D), but 

equitably tolled the statute of limitations for a subset of 

those claims. The District Court next concluded that 

Munchinski had procedurally defaulted certain claims. 

The District Court excused his procedural default, 

finding that applying the procedural default doctrine to 

Munchinski‟s petition would effect a fundamental 

miscarriage of justice. Finally, the District Court agreed 
4

with Munchinski that the state court had unreasonably 

applied Brady. The District Court granted Munchinski‟s 

petition. 

Warden Harry Wilson and the Pennsylvania 

Attorney General (collectively, the “Commonwealth”) 

appeal from the District Court‟s judgment. The 

Commonwealth concedes that it cannot “make a 

compelling argument” that the Superior Court properly

applied Brady given the nature of the evidence that was 

withheld. Oral Arg. Tr. 4:8-9. We agree. The scope of 

the Brady violations here is staggering, and the Superior 

Court failed to appreciate the aggregate impact of the 

withheld evidence. 

In apparent recognition of that reality, the 

Commonwealth limits its appeal to three issues: (1) 

whether the District Court erred by equitably tolling the 

statute of limitations in § 2244(d)(1)(D); (2) whether the 

District Court erred by excusing Munchinski‟s supposed 

procedural default on the basis of a fundamental 

miscarriage of justice; and (3) whether Munchinski has 

produced sufficient evidence “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,” 28 U.S.C. 

§ 2244(b)(2)(B)(ii). 

We conclude: (1) that the District Court 

appropriately tolled the statute of limitations; (2) that 
5

Munchinski did not procedurally default his claims; and 

(3) that Munchinski has demonstrated his actual 

innocence by clear and convincing evidence, as is 

required by § 2244(b)(2)(B)(ii). “Section 2254(d) 

reflects the view that habeas corpus is a guard against 

extreme malfunctions in the state criminal justice 

systems, not a substitute for ordinary error correction 

through appeal.” Harrington v. Richter, --- U.S. ---, 131 

S. Ct. 770, 786 (2011) (internal quotation marks 

omitted). Like the District Court, we see precisely such 

an “extreme malfunction[ ]” in this case. Consequently, 

we will affirm the judgment of the District Court granting 

Munchinski a writ of habeas corpus pursuant to 

§ 2254(d)(1).

I.

On December 2, 1977, Pennsylvania State Police 

found the bodies of two men in and around a cabin 

owned by Raymond Gierke in Bear Rocks, located in 

Fayette County, Pennsylvania.1 These two bodies were 

later identified as those of Gierke and James Peter 

Alford.

 

1

The parties have not produced the trial testimony and 

other evidence that was actually presented at trial. We 

take the facts as recited by the Pennsylvania Superior 

Court in its adjudication of Munchinski‟s state court 

petition for post-conviction relief.
6

The police notified Fayette County Deputy 

Coroner Jack Powell, who transported the bodies from 

the crime scene in order to conduct autopsies. Autopsies 

were conducted that same day by pathologist Dr. Sava 

Radisavljevic (“Dr. Sava”). On December 9, 1977, Dr. 

Sava delivered his autopsy report to the Fayette County 

Coroner‟s Office. A week later, he delivered addenda to 

his report.2 The report and the addenda made clear that 

Gierke and Alford were shot multiple times at close 

range and died from their gunshot wounds. The report 

and addenda also suggested that both Gierke and Alford 

had been anally raped prior to the murders. 

The Pennsylvania State Police assigned Trooper 

Montgomery Goodwin as the lead investigating officer in 

the case. Trooper Goodwin worked with Corporal 

Robert Mangiacarne over the course of the next five 

years investigating the murders. Though Trooper 

Goodwin and Corporal Mangiacarne identified several 

suspects, they lacked sufficient evidence to file charges 

until 1982.

A.

At some point within the period of 1980 and 1981, 

Richard Bowen, a convicted burglar and forger 

incarcerated in state prison in Greensburg, Pennsylvania, 

 

2 Dr. Sava died on December 19, 1977, two days after the 

addenda were delivered to the coroner‟s office.
7

contacted the Pennsylvania State Police claiming 

knowledge of the Bear Rocks Murders. The precise 

dates of the conversations between Bowen and the police 

remain unknown and the exact nature of those 

conversations remains unclear. What is certain is that 

Bowen‟s statements were inconsistent and contradictory. 

Two of these inconsistencies are most remarkable for our 

purposes: (1) Bowen initially implicated only Leon 

Scaglione, the man who was eventually tried and 

convicted along with Munchinski; and (2) Bowen at first 

stated that he did not enter Gierke‟s home during the 

shootings and did not directly witness the murders.

There were numerous changes in Bowen‟s account 

of the murders; at some point Bowen‟s story changed 

such that he was a direct witness to the shootings, which 

he claimed were committed by Scaglione as well as 

Munchinski in a drug-related dispute.3 On October 22, 

1982, Munchinski and Scaglione were charged with two 

counts of criminal homicide in violation of 18 Pa. Cons. 

Stat. Ann. § 2501(a), and two counts of criminal 

conspiracy to commit homicide in violation of 18 Pa. 

Cons. Stat. Ann. § 903.

Munchinski and Scaglione were tried jointly in 

 

3

Even this fact was not consistent in Bowen‟s various 

accounts. Initially, Bowen claimed that the murders were 

“a contract hit, [and] that a doctor or a lawyer paid 

him[.]” Munchinski App‟x 197.
8

April 1983 (the “First Trial”). At this trial, the 

Commonwealth relied principally on Bowen‟s purported 

eyewitness testimony. Bowen testified that he directly 

witnessed Munchinski and Scaglione commit the 

murders. Specifically, Bowen testified that Gierke and 

Alford were raped by Scaglione and Munchinski, 

respectively, and that the two victims were murdered 

almost immediately thereafter. Bowen‟s trial testimony 

was markedly different from the stories he reportedly 

told police when he first approached them as a potential 

witness. Bowen‟s testimony was also at odds with 

certain facts that were elicited at trial. For example, 

Bowen claimed that he drove Scaglione and Munchinski 

to the site of the murders in Scaglione‟s lime green Ford 

Gran Torino. Scaglione, however, did not purchase that 

Gran Torino until almost six months after the murders.

The Commonwealth also presented testimony from 

Lori Lexa and Deborah Sue Dahlmann. Lexa and 

Dahlmann, acquaintances well before their involvement 

in this case, claimed that Munchinski and Scaglione were 

with them in a bar in January 1978, and that Munchinski 

and Scaglione admitted to committing the murders. 

Dahlmann‟s ex-husband Ed Wiltrout, however, was a 

prime suspect in the Bear Rocks murders; unbeknownst 

to Munchinski, at least one witness claimed to police that 

Wiltrout was one of the shooters. Munchinski was 

unable at trial to cross-examine Dahlmann with the 

witness statement implicating Wiltrout because the report 
9

documenting that statement had not been produced. The 

Commonwealth relied exclusively on testimony from 

Bowen, Lexa, and Dahlmann to link Munchinski to the 

crime, presenting no physical evidence linked to 

Munchinski.

On April 12, 1983, the First Trial ended with a 

hung jury and the declaration of a mistrial. The 

Commonwealth dropped the conspiracy charges against 

Munchinski and severed Munchinski‟s case from 

Scaglione‟s case. In October 1986, the Commonwealth 

retried Scaglione. During his trial, Scaglione admitted to 

committing the murders. Scaglione testified that 

Munchinski had no involvement in the murders, but that 

Scaglione had committed the crimes with an associate 

named Homer Stewart who allegedly resembled 

Munchinski. Scaglione was convicted of two counts of 

first degree homicide and two counts of second degree 

homicide.

In November 1986, the Commonwealth retried 

Munchinski (the “Retrial”). The Commonwealth‟s case 

still consisted solely of witness testimony allegedly 

linking Munchinski to the murders. The Commonwealth 

again elicited testimony from Bowen, Lexa, and 

Dahlmann, which was largely consistent with their 

testimony from the First Trial. The Commonwealth also 

introduced testimony from two additional sources: (1) 

Bernard Furr, another acquaintance of Dahlmann‟s, who 

repeated a story very similar to Dahlmann‟s about an 
10

alleged confession in January 1978; and (2) Harold 

Thomas, who testified that Munchinski confessed while 

in jail in 1983.

During the Retrial, Munchinski sought to introduce 

Scaglione‟s testimony from his October 1986 retrial, 

where he implicated Stewart and exonerated Munchinski. 

Scaglione declined to testify, invoking his Fifth 

Amendment right against self-incrimination. Munchinski 

requested that the court grant Scaglione use immunity, 

but the court refused. Additionally, the trial court ruled 

that Scaglione‟s prior testimony was inadmissible under 

Pennsylvania law. As a result, Munchinski was unable to 

introduce any exculpatory testimony from Scaglione. 

In his closing arguments, then-Assistant District 

Attorney Ralph Warman stated to the jury: “did you hear 

anyone testify that Bowen received anything other than 

immunity? No . . . does that bolster his testimony to 

indicate that Bowen was there?” Munchinski App‟x 42. 

This argument misled the jury. Unbeknownst to the jury 

and Munchinski, prosecutors in Fayette County had 

reached a leniency agreement with Bowen, whereby 

prosecutors in Westmoreland County would act leniently 

against Bowen in his ongoing parole revocation hearings 

in exchange for Bowen‟s testimony against Munchinski. 

The Commonwealth failed to turn over to Munchinski 

documents evidencing this leniency agreement.

Munchinski was found guilty of two counts of 
11

first-degree homicide and two counts of second-degree 

homicide. On June 15, 1987, Munchinski was sentenced 

to two consecutive life sentences, one for each of the first 

degree murder convictions. Munchinski received no 

additional penalties for the two second degree 

convictions.4

On July 14, 1987, Munchinski appealed from the 

judgment of sentence. On November 30, 1990, the 

Pennsylvania Superior Court affirmed. Commonwealth 

v. Munchinski, 585 A.2d 471, 476 (Pa. Super. Ct. 1990). 

Munchinski then sought allocatur from the Pennsylvania 

Supreme Court. That court denied review on November 

13, 1991.

B.

In November 1991, while imprisoned in 

Oklahoma, Bowen asked to speak with the Federal 

 

4 Munchinski argued on appeal that his convictions were 

multiplicitous, and that he could not be convicted of two 

counts of first degree murder and two counts of second 

degree murder in connection with Gierke‟s and Alford‟s 

murders. On appeal, the Pennsylvania Superior Court 

held that by declining to impose an additional sentence 

for the second degree murder convictions, the trial court 

had effectively merged the first degree and second degree 

counts for each of the two murders. See Commonwealth 

v. Munchinski, 585 A.2d 471, 479 (Pa. Super. Ct. 1990).
12

Bureau of Investigation (“FBI”) about the Bear Rocks 

Murders. Bowen was soon contacted by FBI Special 

Agent Matthew Schneck. In talking with Agent Schneck, 

Bowen recanted his trial testimony, saying that “he was 

not involved in any fashion with Scaglione or 

Munchinski in the . . . killings of Alford and Gierke.” 

Munchinski App‟x 42. 

Munchinski was soon made aware of Bowen‟s 

statement to Special Agent Schneck. On April 4, 1992, 

in response to Bowen‟s recantation, Munchinski deposed 

Bowen. Bowen testified that he fabricated his trial 

testimony, and admitted that he was not in Pennsylvania 

on the night of the murders. Bowen claimed that police 

and prosecutors had threatened him. If he did not testify 

against Munchinski and Scaglione, Bowen said, “they 

would have someone come along and say that they were 

present and that I had done the shootings.” Bowen Dep. 

13:7-9. Bowen maintained that Scaglione admitted to 

committing the murders, but that Scaglione “never did 

mention [Munchinski‟s] name.” Id. at 21:15. 

Bowen also explained why his fabricated account 

of the murders changed over time. Specifically, he 

testified that he would rehearse his story with Trooper 

Goodwin, and that Goodwin would give him instructions:

A: [Trooper Goodwin] asked me about 

the story, and I went over it, you 

know, a couple different times. And 
13

then, he started with “No, this is what 

happened”--you know--“and we have 

witnesses to verify this.” And, he 

started in with the [sic] I was driving 

the car and I told him, you know 

“[y]ou‟re crazy. You people can‟t 

prove none [sic] of this.” “We got 

witnesses.” And then, he started with 

a--he pulled a warrant out of hand--I 

never did see if it was signed or what 

it said--but he was reading on that 

where all he had to do is sign my 

name and I would be charged in the 

murder.

* * *

Q: And, whenever this occurred, did 

Trooper Goodwin tell you that he 

wanted you to give him a different 

story?

A: He told me the story, and then he said 

if I didn‟t go along with that, then I 

would be charged in the homicide.

Id. at 23:11-22, 24:4-9. Notably, Trooper Goodwin was 

responsible for the change between Bowen‟s first 

account, when he claimed that he remained in the car, to 

his later accounts, when he claimed that he went into the 
14

cabin and directly witnessed the murders.5 Bowen 

claimed that he changed this part of his story because 

Trooper Goodwin “said that they had to have [him] in the 

house.” Id. at 61:16-17.

Bowen further testified about how he prepared for 

trial with former District Attorney Gerald Solomon, the 

lead prosecutor during the First Trial:

Q: And, did [Solomon] tell you what to 

say?

A: Yes.

Q: Did you tell him that you were not 

present at the killings?

A: He knew I wasn‟t. Yes, I told him 

 

5

In 1988, years after Munchinski‟s arrest, Trooper 

Goodwin was convicted of third-degree murder of a man 

who was seen dancing with his wife. See Munchinski 

App‟x 44. Trooper Goodwin was sentenced to a 10-20 

year prison sentence, and was ultimately released on 

parole in 2008, after serving nearly 20 years in prison. 

See id.; Former State Trooper Out of Prison, Tribune 

Democrat, May 23, 2008, available at http://tribunedemocrat.com/local/x519164954/Former-state-trooperout-of-prison/print (last visited August 30, 2012).
15

that. I said, I--it was just a “I can‟t do 

this, man. This ain‟t right.” And, 

it‟s--you know “[t]his is done all the 

time. We know they did it. We just--

we have to put somebody there to say 

they seen them.”

Q: And, that‟s what he told you?

A: Yes.

Q: And, he knew that you weren‟t there?

A: Yes, he did.

Id. at 42:7-20.

Finally, Bowen described how he came to know so 

many details about the murders. He explained that 

Trooper Goodwin showed him several photos of the 

crime scene, and even took him to the scene and pointed 

out where the bodies were found. Bowen also confirmed 

that Trooper Goodwin gave him details about Scaglione‟s 

lime green Gran Torino, and pressed him to include that 

information in his testimony; apparently neither of them 

was aware that Scaglione had not purchased his lime 

green Gran Torino until well after the murders.

On April 16, 1992, only a few weeks after 

Bowen‟s deposition, Munchinski filed his first petition 

for relief under the Pennsylvania Post-Conviction Relief 
16

Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq.

(the “PCRA I” petition). The PCRA I petition sought 

relief based on two articles of newly-discovered 

evidence: (1) a September 1982 report from Trooper 

Goodwin (the “Goodwin Report”) that was intentionally 

edited to conceal a reference to a recorded statement 

made by Bowen; and (2) Bowen‟s sworn deposition 

testimony. PCRA petitions are generally assigned to the 

judge who presided over a petitioner‟s trial. In this case, 

however, the judge who had presided over the First Trial 

and the Retrial had retired from the bench, so the PCRA I 

petition was assigned to Judge William J. Franks of the 

Court of Common Pleas of Fayette County. 

Judge Franks held an evidentiary hearing 

concerning both of Munchinski‟s evidentiary claims. 

Former prosecutors Solomon and Warman testified at the 

hearing about the Goodwin Report. Warman, the 

Commonwealth‟s lead prosecutor during the Retrial, 

admitted that he intentionally edited the Goodwin Report 

to remove a paragraph referencing a recorded statement 

from Bowen, and spliced together the paragraphs before 

and after the removed text in order to conceal the 

removal. Warman testified that he intentionally removed 

the relevant paragraph because no statement from Bowen 

was ever transcribed or recorded and that the reference 

would be “misleading.” Solomon, who was Warman‟s 

supervisor during the Retrial, corroborated Warman‟s 

testimony.
17

Judge Franks credited Warman‟s and Solomon‟s 

account, finding that Bowen‟s statement was never 

recorded. Nonetheless, troubled by Warman‟s 

intentional modification of the Goodwin Report, Judge 

Franks ordered an in camera review of all of the 

Pennsylvania State Police investigative files related to the 

Bear Rocks Murders, including several additional files 

relating to Bowen. Judge Franks ordered the 

Commonwealth to turn over all documents that he 

deemed discoverable. The Commonwealth, however, 

failed to turn over several critical articles of evidence to 

the PCRA I court for its in camera review, rendering that 

review incomplete.

As to Bowen‟s deposition testimony, Munchinski 

called Bowen to testify and recant his trial testimony. 

Bowen, however, invoked his Fifth Amendment right 

against self-incrimination. Judge Franks granted Bowen 

use immunity for his testimony. At the hearing, Bowen 

disavowed his deposition testimony and reaffirmed his 

testimony from the Retrial.6 Bowen subsequently 

 

6

In 1995, Munchinski filed a private criminal complaint 

against Bowen for perjury during his civil deposition. 

Munchinski‟s complaint was dismissed, however, on the 

ground that Judge Franks had granted Bowen use 

immunity for his testimony at the evidentiary hearing. 

See Commonwealth ex rel. Munchinski v. Bowen, No. 

1706 Pittsburgh 1995, at *1-2 (Pa. Super. Ct. filed Apr. 
18

committed suicide.

Munchinski also adduced testimony from Kenneth 

Knight, an acquaintance of Bowen‟s from prison. Knight 

testified that Bowen admitted that he was in Oklahoma at 

the time of the murders, and that he lied under oath 

during the Retrial. Further, Knight testified that he had 

personally introduced Bowen to Scaglione and 

Munchinski in March 1978, long after the Bear Rocks 

Murders, when all four of them were incarcerated 

together in Westmoreland County Jail.

On August 5, 1993, based on the limited Brady

violations that were known and alleged at the time, Judge 

Franks dismissed Munchinski‟s PCRA I petition. 

Munchinski appealed this decision. On December 11, 

1995, the Pennsylvania Superior Court affirmed the 

dismissal of the PCRA I petition. Munchinski sought 

review by the Pennsylvania Supreme Court. That Court 

denied allocatur on August 30, 1996.

 

16, 1996) (unpublished memorandum). Judge Feudale, 

who presided over the PCRA III proceedings, found this 

troubling—the prosecution apparently threatened Bowen 

with perjury charges if he did not retract his recantation, 

but then Bowen was granted use immunity, and 

protection from any resulting perjury charges, if he 

reaffirmed his prior testimony. Although we understand 

Judge Feudale‟s concern, it has no bearing on the issues 

before us now.
19

On January 6, 1998, Munchinski filed his first 

habeas petition under 28 U.S.C. § 2254. The United 

States District Court for the Western District of 

Pennsylvania dismissed the petition as untimely on 

September 30, 1998. Munchinski appealed the dismissal 

of his petition to this court (the “Appeal”).

On May 12, 2000, while the Appeal was pending 

before this court, Munchinski filed a second PCRA 

petition pro se. That petition raised additional Brady

claims based on allegedly withheld evidence that 

Munchinski discovered while his first federal habeas 

petition was pending. Six days later, on May 18, 2000, 

that pro se petition was dismissed because Munchinski 

was still represented by counsel. On July 27, 2000, 

Munchinski refiled his petition through counsel (the 

“PCRA II” petition).

The PCRA II court never reached the merits of 

Munchinski‟s Brady claims. Rather, based on a 

misunderstanding of Pennsylvania law, Judge Franks 

erroneously concluded that the PCRA II court lacked 

jurisdiction over Munchinski‟s petition because the 

Appeal remained pending in federal court. Judge Franks 

stated:

After full review of the Petition and record, 

this Court finds that an appeal was filed to 

the United States Court of Appeals for the 

Third Circuit and is still pending. This 
20

Court has no jurisdiction. Defendant is not 

entitled to post-conviction collateral relief, 

and further proceedings would serve no 

legitimate purpose. Pa. R. Crim. P. section 

1507(a).

Order Dismissing PCRA II Pet., August 24, 2000, 

Munchinski v. Wilson, No. 07-cv-1712, ECF No. 21-12.7 

After disclaiming jurisdiction, Judge Franks stated 

that Munchinski could appeal within thirty days from the 

date of the court‟s order. Perhaps knowing that the 

Appeal would be resolved imminently, Munchinski 

declined to appeal the PCRA II Court‟s decision. 

Instead, he heeded Judge Frank‟s implicit suggestion and 

waited to re-file his petition after the Appeal was 

decided, when the state court could properly exercise 

jurisdiction over his petition. On January 24, 2001, we 

decided the Appeal, affirming the dismissal of 

 

7 On August 3, 2000, Judge Franks issued an order 

stating that the PCRA II court “ha[d] no jurisdiction” 

over the petition. Order, August 24, 2000, Munchinski v. 

Wilson, No. 07-cv-1712, ECF No. 21-11. This order did 

not formally dismiss Munchinski‟s petition, but noted 

that the court would dismiss his petition for lack of 

jurisdiction unless Munchinski could provide “an 

appropriate response.” When no appropriate response

was filed, Judge Franks dismissed Munchinski‟s petition 

on August 24, 2000.
21

Munchinski‟s first habeas petition. 

C.

1.

On March 21, 2001, less than sixty days after we 

decided the Appeal, Munchinski filed his third PCRA 

petition (the “PCRA III” petition). In the interim, former 

prosecutors Warman and Solomon had each been 

elevated to the bench of the Court of Common Pleas of 

Fayette County. This led all the sitting judges of the 

Court of Common Pleas of Fayette County to recuse 

themselves from the matter. The Administrative Office 

of Pennsylvania Courts assigned the PCRA III Petition to 

Judge Barry Feudale of the Court of Common Pleas of 

Northumberland County.8 Additionally, because of 

allegations of misconduct made against First Assistant 

District Attorney John Kopas, who represented the 

Commonwealth during the PCRA I proceedings, the 

Commonwealth‟s case was taken over by the 

Pennsylvania Attorney General‟s Office.

 

8

Judge Feudale was elected to the Court of Common 

Pleas of Northumberland County in 1987. He became 

that court‟s President Judge in 1995, and took senior 

status in 1998. In 2004, after issuing his opinion in this 

case, Judge Feudale was appointed as a visiting Senior 

Judge of the Commonwealth Court of Pennsylvania.
22

The PCRA III petition raised several Brady claims. 

Munchinski twice moved to amend that petition to 

include additional claims based on evidence he 

uncovered after filing the PCRA III petition. Both of 

these motions were granted. In sum, Munchinski raised 

Brady claims based on the following eleven articles of 

material exculpatory evidence that were allegedly 

suppressed by the Commonwealth, in addition to the 

Goodwin Report that was the subject of the PCRA I 

petition:

1. Sava Addendum: an addendum to Alford‟s 

autopsy report from Dr. Sava indicating that 

the semen sample taken from Alford‟s 

rectum was of blood type “A.” Munchinski 

is of blood type “B.”9 Munchinski App‟x 

167.

2. Parole Revocation Documents: a set of 

documents related to Bowen‟s 1983 parole 

revocation hearings evidencing a previouslyundisclosed leniency agreement between 

 

9 Dr. Sava does note that cross-contamination from 

Alford‟s own semen could not “be entirely ruled out” 

based on the low number of spermatozoa found in 

Alford‟s rectum. As the District Court noted, however, 

even if the collected sperm was from Alford, that fact by 

itself would cast further doubt on Bowen‟s testimony that 

Munchinski raped Alford.
23

Bowen, the Westmoreland County District 

Attorney‟s Office, and the Fayette County 

District Attorney‟s Office. Munchinski 

App‟x 168-71.

3. Bates Report: a January 7, 1978 report from 

Trooper George F. Bates discussing an 

interview with a witness who stated that 

Bowen had left Pennsylvania for Oklahoma 

on December 1, which, if referring to 

December 1, 1977, would have been the day 

before the murders. Munchinski App‟x 158.

4. Goodwin/Powell Report: a December 20, 

1977 report from Goodwin in which Deputy 

Coroner Powell stated his belief that the anal 

intercourse to which Alford was subjected 

took place 24 hours prior to his death, 

thereby inconsistent with Bowen‟s account 

of the murders. Commonwealth App‟x 218.

5. Powell Addendum: a typewritten summary 

of a phone call from Deputy Coroner Powell 

reaffirming his belief, recorded in the 

Goodwin/Powell Report, that Alford was 

subjected to anal intercourse “at least 24 

hours” prior to his murder. Commonwealth 

App‟x 219.

6. Mangiacarne/Carbone Report: a December 
24

16, 1980 report from Corporal Mangiacarne 

describing an interview with Elizabeth 

Carbone. Carbone related a detailed 

confession given to her that implicated Ed 

Wiltrout, Commonwealth witness 

Dahlmann‟s ex-husband. Commonwealth 

App‟x 220.

7. Kinch Report: a December 19, 1977 report 

from Trooper Robert Kinch describing nail 

scrapings and other biological evidence that 

had been taken from Alford. The existence 

of this evidence was not disclosed to 

Munchinski before the First Trial or the 

Retrial. Commonwealth App‟x 221.

8. Dunkard/Proud Report: a December 5, 1977 

report from Trooper Edward Dunkard 

relating a discussion with Delores Proud, a 

dispatcher for the Mount Pleasant, 

Pennsylvania Police Department. 

According to the report, Proud received a 

call at approximately 2:32 A.M. on 

December 2, 1977, from a telephone 

operator who allegedly received a call from 

Gierke claiming that he had been shot. 

Proud also received a call requesting an 

ambulance approximately 18 minutes after 

Gierke‟s call. The call was from Bonnie 

Blackson, who had discovered Alford‟s 
25

body.10 Commonwealth App‟x 223. The 

timing of these calls was inconsistent with 

the account provided by Bowen.

9. Veil/Mangello Report: a June 23, 1986 

report from Trooper Richard Veil describing 

an interview with inmate Robert Lee 

Mangello, in which Mangello indicated that 

the Bear Rocks Murders were committed by 

Scaglione, Joseph Lucy, and a third, 

unnamed man. Commonwealth App‟x 216.

10.Madden/Lucy Report: an October 15, 1986 

report from Trooper William F. Madden 

describing an interview with Lucy, in which 

Lucy denied Mangello‟s accusations. Lucy 

claimed that Mangello himself was a direct 

witness of the Bear Rocks Murders. 

Commonwealth App‟x 217.

 

10 Although the caller did not identify himself on the 

phone, blood found on the phone in Gierke‟s cabin was 

matched to Gierke‟s blood type. The PCRA III Court 

and the District Court proceeded on the assumption that 

the call was placed by Gierke. Based on that assumption, 

the timing of these calls could be said to conflict with the 

account provided by Bowen, who suggested at one point 

during trial that Gierke was shot in the head, which 

would of course make it unlikely that Gierke would make 

a later phone call.
26

11.Bates II Report: a second copy of the Bates 

Report that was marked-up, allegedly by the 

Commonwealth. Notably, the passage “and 

BOWEN left on the 1st of December” was 

highlighted. Munchinski App‟x 159.

Judge Feudale held several days of hearings on the 

PCRA III petition. The parties presented testimony from 

Judge Franks, who had presided over the PCRA I 

petition. Judge Franks testified that, had he been aware 

of the Bates Report, the Goodwin/Powell Report, and the 

Mangiacarne/Carbone Report (i.e., had Kopas produced 

the entire prosecution file as per his order, rather than 

intentionally withholding material evidence from his in 

camera review), he may well have granted relief on 

Munchinski‟s PCRA I petition. See Munchinski App‟x 

112.

Judge Feudale also heard testimony from Warman 

and Trooper Goodwin about the recorded statement 

referenced in the Goodwin Report, that the PCRA I court 

concluded did not exist. Trooper Goodwin, who was at 

the time “serving a 10-20 year [prison] sentence for the 

murder of a man involved with his estranged wife,” 

Munchinski App‟x 44, testified that he personally 

observed Warman recording Bowen‟s statement on a tape 

recorder. Goodwin confirmed that the whole purpose of 

speaking with Bowen was to get a recorded statement, 

noting that without a recording “[h]e could change his 

story.” Munchinski App‟x 96. 
27

Trooper Goodwin commented that he drafted his 

report the day after Bowen made his statement, and that 

his report was thus a timely recording of the discussion 

with Bowen. Finally, Trooper Goodwin noted that his 

report, including the reference to the recording, was 

approved by his supervisor, who was also present when 

Bowen made his statement. Trooper Goodwin noted that 

his supervisor would not have approved his report had 

such an important fact been incorrect.

Warman maintained that Bowen‟s statement was 

never tape recorded. Throughout the proceedings, 

Warman was openly hostile to questions. When asked 

why he did not approach the Court before editing the 

Goodwin Report, he responded that “he didn‟t have to.” 

Munchinski App‟x 102. When asked why he didn‟t 

obtain a written statement from Bowen, he replied: 

“Why would I want to do that? That‟s a police job, not 

mine.” Id. at 103. When counsel suggested that a 

written statement may have been a good idea because 

Bowen could simply disappear before trial, Warman 

responded “[t]hat wouldn‟t be [his] problem”11 because 

 

11 Though the audio recording of the PCRA III 

proceedings was not produced to our court and has no 

bearing on the merits of the instant appeal, Judge Feudale 

noted that when Warman made this statement, “there was 

a collective and audible gasp from the crowded 

courtroom.” Munchinski App‟x 103 n.3. Judge Feudale 
28

he was “not the investigator . . . . We don‟t go out and do 

that kind [o]f thing.” Id. at 103-04. Warman admitted 

that if a police officer had altered the report, the officer 

might be guilty of tampering with evidence, but 

maintained that his conduct was permissible because he 

was a prosecutor, not a police officer. Id. at 104. 

In addition to hearing testimony about the alleged 

recorded statement, Judge Feudale heard testimony from 

Kopas about his conduct during the PCRA I proceedings. 

Kopas acknowledged that he confirmed to the PCRA I 

court, “[a]s an Officer of the Court,” that he submitted 

the entire police file to Judge Franks for in camera 

review. Munchinski App‟x 108. He could not explain 

why the files he turned over “included none of the eleven 

pieces of exculpatory evidence at issue.” Id. Throughout 

the hearing, Kopas was evasive. Kopas repeatedly 

responded to questions by stating that he could not or did 

not recall the requested information. Judge Feudale 

noted that in contrast to his statements during the PCRA I 

hearings, Kopas‟s testimony in the PCRA III hearings 

was couched in “equivocal language.” Id.

Finally, based on the Kinch Report‟s references to 

several articles of physical evidence that were never 

submitted for laboratory testing, the PCRA III Court 

 

also noted that “the comment and response was unlike 

anything [he had] perceived in [his] 15 years on the 

bench.” Id.
29

ordered testing of all evidence still in existence. The test 

results were inconclusive, and were matched either to the 

victims or an unidentifiable male.

On October 1, 2004, Judge Feudale filed a 

strongly-worded 114-page opinion thoroughly analyzing 

the merits of the PCRA III petition, and granting 

Munchinski‟s petition.12 At the outset of his opinion, 

Judge Feudale remarked on the nature of the Brady

claims in this case:

As a general observation, in the past 

seventeen years we have presided over 

numerous PCRA petitions, both counseled 

and uncounseled. Incantations of 

prosecutorial/police misconduct, corruption 

and perjury along with utterances of 

egregious and outrageous [sic], often 

appeared formulaic, and were ostensibly an

elevation of form over substance. At a 

minimum, the circumstances surrounding 

these homicides, and the subsequent events 

involving the principal cast of characters in 

 

12 Judge Feudale granted the Commonwealth leave to 

retry Munchinski if the Commonwealth produced a copy 

of the recorded statement referenced in the Goodwin 

Report within ten days of the court‟s order. If the 

Commonwealth could not produce the recorded 

statement, Munchinski was to be released.
30

this tragic drama lend themselves to the term 

extraordinary.

Munchinski‟s App‟x 40.

 The PCRA III court concluded that: (1) despite 

the PCRA I Court‟s conclusion to the contrary, the 

recorded statement referred to in the omitted paragraph 

of the Goodwin Report did exist, and was intentionally 

withheld by prosecutors; (2) even if no recorded 

statement existed, Warman‟s intentional editing of the 

Goodwin Report violated Brady; (3) Kopas intentionally 

committed prosecutorial misconduct in violation of 

Brady when he failed to turn over the entire police file, as 

ordered during the PCRA I proceedings; (4) Solomon 

and Warman both committed prosecutorial misconduct 

and numerous Brady violations leading up to and during 

the First Trial and the Retrial; and (5) Warman 

intentionally misled the jury during the Retrial when he 

stated that all Bowen received in exchange for his 

testimony was immunity, because he was aware that 

Bowen also received leniency as to a number of 

probation and parole violations in Westmoreland County. 

The PCRA III court also concluded that the 

evidence withheld by prosecutors was material under 

Brady, and granted Munchinski‟s petition. The court 

concluded that Warman, Solomon, and Kopas all 

engaged in serious and intentional prosecutorial 

misconduct. Judge Feudale declined to refer the former 
31

prosecutors to the Judicial Conduct Board or for possible 

criminal charges because such a referral was not “within 

the clear ambit of relief set forth in Section 9546 of the 

[PCRA].” Munchinski App‟x 33. 

In a footnote to his order, Judge Feudale 

excoriated Warman, Solomon, and Kopas, stating that 

their “actions ill served the victims, their families, the 

defendant and citizens of Fayette County,” and 

suggesting that the outcome of the case was “a reflection 

of the ongoing foundation of prosecutorial misconduct by 

the former prosecutors.” Munchinski App‟x 32. Judge 

Feudale commented that in his “17 years as a judge, 

while [he has] handled numerous PCRA‟s [sic], and 

granted collateral relief, this is the first time [he has] 

granted a request for new trial/discharge.” Id. Judge 

Feudale closed by characterizing the matter before him as 

“an extraordinary case” and expressing the hope “that [it] 

is not replicated[.]” Id. at 33.

2.

On October 8, 2004, the Commonwealth appealed 

from the PCRA III court‟s grant of relief to Munchinski. 

On December 14, 2005, the Pennsylvania Superior Court 

issued a nonprecedential and unsigned memorandum 

opinion reversing the PCRA III court. Because the 

Superior Court‟s opinion is the focus of our review, we 

will subject it to painstaking analysis. Unfortunately, 

though the Superior Court‟s opinion is lengthy, its 
32

reasoning is opaque. The memorandum is confusing, and 

at times internally inconsistent. As best we can 

understand, the Superior Court concluded that certain 

articles of evidence listed in the PCRA III petition as 

undisclosed by the prosecution were not raised on a 

timely basis, and thus could not be raised as independent 

claims. Nonetheless, because some of Munchinski‟s 

claims were timely, the court concluded that it was 

required to consider all of the evidence raised in the 

PCRA III petition. In analyzing the merits of 

Munchinski‟s Brady claims, the court considered each 

article of evidence in isolation, never considering the 

aggregate materiality of all of the withheld evidence. 

The Superior Court began its opinion with a 

discussion of the jurisdictional restrictions on courts 

reviewing a PCRA petition, noting that “Pennsylvania 

courts have no jurisdiction to address claims in an 

untimely PCRA petition no matter how serious the 

assertions raised therein[.]” App‟x 113. Munchinski 

argued that his petition was timely under Pennsylvania‟s 

“after-discovered evidence exception.” App‟x 116-18; 

42 Pa. Cons. Stat. Ann. § 9545(b)(2) (after-discovered 

evidence exception). The Superior Court suggested that 

some of Munchinski‟s claims were filed beyond the 

sixty-day limitations period for after-discovered 

evidence. 

Significantly, the Court‟s analysis did not end 

there. Up to this point in the opinion, the Superior Court 
33

had not considered the articles of evidence that were 

discovered between the filing of Munchinski‟s PCRA II 

petition and his PCRA III petition. Munchinski 

discovered a report of Sergeant George Fayouk‟s 

interview of Richard Bowen between February 20, 2003 

and March 10, 2003. The court concluded that 

Munchinski “asserted the claims based thereon within 

sixty days of its discovery. Thus all such claims are 

timely.” App‟x 133. Additionally, the court noted that 

Munchinski timely raised the Veil/Mangello Report and 

the Madden/Lucy Report. As such, the court “agree[d] 

with the third PCRA court that Munchinski raised 

cognizable Brady claims.” App‟x 139.

In a critical paragraph, the Superior Court stated:

We shall address the Commonwealth‟s 

contentions [that the alleged Brady 

violations did not concern “material” 

evidence] seriatim. Before doing so, 

however, we must resolve the question of 

whether the procedural irregularities of this 

case preclude us from considering all of the 

evidence in the certified record. We 

conclude that we cannot confine our analysis 

only to newly acquired evidence that was 

timely presented. Rather, the distinction that 

must be made is whether a particular claim

is timely and whether that claim is supported 

by sufficient evidence of record, no matter 
34

when that evidence was acquired. Because 

the PCRA‟s timing restrictions are 

jurisdictional, this Court lacks authority to 

affirm an order granting relief predicated on 

an untimely claim merely because certain 

timely presented after-discovered evidence 

tends to support that claim. Conversely, 

however, a timely asserted claim cannot be 

found to be invalid simply because part of 

the evidence that supports the PCRA court‟s 

ruling was submitted too late to form the 

basis of an entirely separate claim. In short, 

we cannot review the PCRA court‟s rulings 

on a diminished record. 

App‟x 148-49. 

The Superior Court proceeded to reach the merits 

of all of the articles of evidence cited in the PCRA III 

petition, with the exception of the recorded statement 

referenced in the Goodwin Report—an issue that was 

“previously litigated” by the PCRA I court. The Superior 

Court reiterated its conclusion that it was required to 

consider the merits as to all of the individual articles of 

evidence, including those articles that would have been 

untimely if raised separately:

Nevertheless, the third PCRA court‟s grant 

of relief did not rely only on the eleven 

pieces of purported newly-discovered 
35

evidence, which were untimely asserted. 

We must therefore discuss all of the 

evidence on which that court relied in 

granting relief. See Santiago, 654 A.2d at 

1070 (holding that an appellate court must 

evaluate the significance of suppressed 

evidence pursuant to Brady in relation to the 

record as a whole). As noted above, there is 

a distinction to be made between a claim 

that is untimely under the PCRA and a 

timely claim predicated on evidence that has 

been presented too late to create a separate 

issue. 

App‟x 162-63. 

The relationship between the court‟s discussion of 

the timeliness of Munchinski‟s claims and its discussion 

of the merits of Munchinski‟s claims is unclear. Nothing 

in the opinion suggests that the court‟s ruling on the 

merits was in the alternative. Indeed, the opinion 

suggests the opposite—that under Pennsylvania law, the 

court was required to consider all of the evidence listed 

in Munchinski‟s petition, even if some of that evidence 

would have been untimely in a separate petition. At all 

events, the Superior Court reversed the PCRA III court 

and dismissed the PCRA III petition. Munchinski sought 

review from the Pennsylvania Supreme Court, but on 

February 8, 2007, that court denied allocatur.
36

3.

On December 15, 2007, Munchinski filed the 

instant habeas petition in the United States District Court 

for the Western District of Pennsylvania. The District 

Court concluded that this petition was a “second or 

successive petition” within the meaning of 28 U.S.C. § 

2244(b), and transferred jurisdiction over the case to this 

court pursuant to 28 U.S.C. § 1631. On November 5, 

2009, we concluded that Munchinski presented “a prima 

facie showing that his petition contain[ed] newly 

discovered evidence” as required under § 2244(b), and 

transferred jurisdiction over the petition back to the 

District Court.

On August 5, 2011, the Magistrate Judge to whom 

this matter was assigned issued a thorough 80-page 

opinion granting Munchinski‟s habeas petition. Aware 

of the arguments over whether Munchinski had properly 

complied with state and federal procedural requirements, 

the District Court first considered whether Munchinski‟s 

petition was timely under the Antiterrorism and Effective 

Death Penalty Act of 1996, Pub. L. No. 104-132, 110 

Stat. 1214 (1996), which requires that claims based on 

newly-discovered evidence be filed within one year of 

the discovery of that evidence. The court found that the 

majority of the eleven articles of newly-discovered 

evidence, with the exception of the Veil/Mangello 

Report, the Madden/Lucy Report, and the Bates Report 

II, were raised beyond the one year statute of limitations 
37

in § 2244(d)(1)(D). 

Though untimely, the District Court equitably 

tolled the one-year statute of limitations for the majority 

of these articles of evidence, with the exception of the 

Sava Addendum, the Parole Revocation Documents, and 

the Goodwin Report, which were discovered prior to the 

filing of the PCRA I petition. The court reasoned that the 

uncertainty in the Pennsylvania State Courts surrounding 

parallel petitions for post-conviction relief in both state 

and federal courts was a sufficiently extraordinary 

circumstance to justify equitable tolling given “the 

general diligence exhibited by [Munchinski] throughout 

this ordeal[.]” Commonwealth App‟x 40.

The court then considered whether Munchinski 

had procedurally defaulted his claims. The court appears 

to have assumed that there was procedural default. The 

bulk of the court‟s analysis focused on whether default 

could be excused. The court acknowledged that a 

procedural default can be excused for one of two reasons: 

(1) if a petitioner can show cause for the default and 

prejudice resulting therefrom; or (2) if enforcing the 

procedural default rule would effect a fundamental 

miscarriage of justice. 

The court declined to consider whether 

Munchinski had shown cause and prejudice, because “he 

so clearly qualifies for the second exception to the 

procedural default rule—i.e., failing to allow his claims 
38

to proceed would result in a fundamental miscarriage of 

justice.” Commonwealth App‟x 46. Specifically, the 

court concluded that a fundamental miscarriage of justice 

would occur because “he has show[n] by „clear and 

convincing evidence that, but for constitutional error, no 

reasonable factfinder would have found the applicant 

guilty of the underlying offense.‟” Commonwealth 

App‟x 46 (quoting 28 U.S.C. § 2244(b)(2)(B)(ii)).

Finally, the District Court reached the merits of 

Munchinski‟s Brady claims. The District Court 

concluded that the Superior Court unreasonably applied 

Brady in violation of 28 U.S.C. § 2254(d)(1), because the 

court analyzed the materiality of the withheld evidence 

individually, rather than collectively. See Kyles v. 

Whitley, 514 U.S. 419, 437-38 (1995). The court further 

concluded that Munchinski‟s new evidence demonstrated 

that no reasonable juror would have found him guilty 

under the high standard required of a habeas petitioner 

filing a second or successive petition under 28 U.S.C. 

§ 2244(b)(2). The District Court granted Munchinski 

habeas relief, permitting the Commonwealth 120 days 

from the filing of its order in which it could retry 

Munchinski. The District Court also ruled that it would 

stay its order if either party chose to appeal. On 

September 2, 2011, the Commonwealth timely appealed.

II.

The Commonwealth raises three arguments on 
39

appeal: (1) that the District Court erred by equitably 

tolling AEDPA‟s one-year statute of limitations; (2) that 

Munchinski procedurally defaulted certain claims, and 

the District Court erred by excusing the default on the 

grounds of fundamental miscarriage of justice grounds; 

and (3) that Munchinski failed to demonstrate his actual 

innocence under the high standard required by 

§ 2244(b)(2)(B)(ii). The District Court had jurisdiction 

over Munchinski‟s petition pursuant to 28 U.S.C. 

§§ 2241 & 2254. We have jurisdiction over this appeal 

pursuant to 28 U.S.C. §§ 1291 & 2253. 

A.

1.

Under AEDPA, “[a] 1-year period of limitation 

shall apply 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). For a petitioner 

asserting claims based on newly-discovered evidence, the 

limitations period generally will begin to run on “the date 

on which the factual predicate of the claim or claims 

presented could have been discovered through the 

exercise of due diligence.” Id. § 2244(d)(1)(D). AEDPA 

provides that the one-year limitation period is subject to 

“statutory tolling”: “[t]he time during which a properly 

filed application for State post-conviction or other 

collateral review with respect to the pertinent judgment 

or claim is pending shall not be counted toward any 
40

period of limitation under this subsection.” Id.

§ 2244(d)(2).

AEDPA‟s statute of limitations must be applied 

“on a claim-by-claim basis.” Fielder v. Varner, 379 F.3d 

113, 118 (3d Cir. 2004). The District Court divided the 

alleged Brady violations into three separate groups based 

on “the date on which the factual predicate of the claim 

. . . presented could have been discovered through the 

exercise of due diligence.” Id. § 2244(d)(1)(D).13 For 

 

13 The District Court, citing Fielder, considered each 

article of evidence as giving rise to a separate Brady

claim with an independent statute of limitations. 

Consequently, the District Court reasoned that certain 

Brady claims could be timely under § 2244(d), while 

other claims might well be untimely. We agree that this 

is the correct approach when considering a petition 

alleging multiple Brady violations. For most purposes, 

courts must analyze Brady allegations by evaluating “the 

undisclosed evidence item by item[.]” Kyles, 514 U.S. at

437 n.10. Only after that initial item-by-item analysis do 

we “evaluate its cumulative effect for purposes of 

materiality[.]” Id. Thus, while each alleged Brady

violation bears on the materiality of other alleged 

violations, each violation constitutes a separate claim that 

must be analyzed independently in other respects. As 

such, we must independently consider whether each

alleged Brady violation is timely under § 2244(d). 
41

each group, the District Court properly applied a two-step 

analysis to determine whether the claims were timely 

under § 2244(d)(1). First, the court considered whether 

more than one year had elapsed between the date on 

which the relevant evidence could have been discovered

through the exercise of due diligence. If more than one 

year had elapsed, the court then considered whether the 

group of claims was entitled to statutory tolling pursuant 

to § 2244(d)(2).

The Group 1 claims are based on the 

Veil/Mangello Report, the Madden/Lucy Report, and the 

Bates II Report. This evidence was discovered on March 

10, 2003, while the PCRA III petition was pending.14 

The instant habeas petition was filed on December 15, 

2007. More than one year lapsed from the date of 

discovery until the date Munchinski‟s habeas petition 

 

Because the Commonwealth has conceded that the 

Superior Court unreasonably applied Brady, a point 

which appears to be beyond dispute, we do not consider 

whether, even if certain Brady violations were raised 

beyond § 2244‟s one-year statute of limitations, they can 

nonetheless be considered as part of the cumulative 

materiality analysis required by Kyles. 

14 The Commonwealth has not alleged that this evidence 

“could have been discovered” any earlier, within the 

meaning of § 2244(d)(1)(D).
42

was filed, rendering the Group 1 claims untimely under 

§ 2244(d)(1). 

On April 15, 2003, however, Munchinski filed his 

PCRA III petition in Pennsylvania state court. The 

Superior Court found that the Brady violations in Group 

1 were properly filed. Thus, from April 15, 2003 until 

February 8, 2007, when the Pennsylvania Supreme Court 

denied Munchinski‟s request for allocatur, there was a 

properly filed PCRA petition pending in the state court 

system. As a result, Munchinski is entitled to statutory 

tolling for this period pursuant to § 2244(d)(2). This 

means that the statute of limitations for the Group 1 

claims ran from March 10, 2003 until April 15, 2003, and 

then from February 8, 2007 until December 15, 2007. 

Cumulatively, these periods are shorter than one year. 

The Group 1 claims are therefore timely under § 2244.

The Group 2 claims are based on the Goodwin 

Report, the Sava Report, and the Parole Revocation 

Documents. This evidence was discovered prior to the 

filing of Munchinski‟s PCRA I petition. Given that we 

previously held these claims untimely in Munchinski‟s 

first habeas petition, Munchinski v. Price, 254 F.3d 1078 

(3d Cir. 2001) (unpublished), the District Court 

concluded that these claims are also untimely in the 

instant petition. We agree, and conclude that the Group 2 

claims are untimely under § 2244(d).

Finally, the Group 3 claims are based on: (1) the 
43

Bates Report; (2) the Goodwin/Powell Report; (3) the 

Powell Addendum; (4) the Mangiacarne/Carbone Report; 

(5) the Dunkard/Proud Report; and (6) the Kinch Report. 

This evidence was discovered at an unspecified time in 

2000, while Munchinski‟s appeal from the denial of his 

first federal habeas petition was pending before this 

court. The District Court concluded that the Bates 

Report was discovered on or before May 12, 2000, when 

Munchinski filed his pro se PCRA II petition referencing 

the Bates Report. Again, well over a year elapsed 

between the discovery of the report and the filing of the 

instant habeas petition; that particular claim is thus 

untimely under § 2244(d)(1). The court credited 

Munchinski‟s assertion that the remaining evidence in 

Group 3 was discovered between July 27, 2000 and 

August 24, 2000. Using the July 27, 2000 date as the 

date of discovery, the Group 3 claims are also untimely 

under § 2244(d)(1). 

Nor are the Group 3 claims entitled to statutory 

tolling under § 2244(d)(2). The PCRA II court dismissed 

the PCRA II petition, first for being filed pro se, and 

second for lack of jurisdiction. As such, the petition was 

never “properly filed” within the meaning of 

§ 2244(d)(2). See Artuz v. Bennett, 531 U.S. 4, 8 (2000). 

Similarly, the Superior Court reviewing Munchinski‟s 

PCRA III petition concluded that the Brady allegations 

premised on the evidence in Group 3 were not raised 

within 60 days of the date of discovery, as required by 
44

Pennsylvania law.15 As such, the PCRA III petition was 

also not “properly filed” within the meaning of 

§ 2244(d)(2). Thus, the Group 3 claims are untimely 

under § 2244(d).

2.

Though the Group 2 and 3 claims are untimely 

under § 2244(d), the Supreme Court has held that 

§ 2244(d) “is not „jurisdictional‟” and does not set forth 

“an inflexible rule requiring dismissal . . . [whenever the] 

clock has run.” Day v. McDonough, 547 U.S. 198, 205, 

208 (2006). Rather, “§ 2244(d) is subject to equitable 

tolling in appropriate cases.” Holland v. Florida, --- U.S. 

---, 130 S. Ct. 2549, 2560 (2010). 

The decision to equitably toll § 2244(d) “must be 

made on a case-by-case basis.” Id. at 2563 (quoting 

Baggett v. Bullitt, 377 U.S. 360, 375 (1964)). “In each 

case, there is a need for „flexibility,‟ „avoiding 

mechanical rules,‟ and „awareness . . . that specific 

circumstances, often hard to predict in advance, could 

warrant special treatment in an appropriate case.” Pabon 

v. Mahanoy, 654 F.3d 385, 399 (3d Cir. 2011) (quoting 

Holland, 130 S. Ct. at 2563). There are “no bright lines 

in determining whether equitable tolling is warranted in a 

 

15 As we note in Part II.B, infra, the court nevertheless

concluded for other reasons that it had to consider that 

evidence in its merits analysis.
45

given case.” Id. Rather, equitable tolling is appropriate 

when “principles of equity would make the rigid 

application of a limitation period unfair.” Miller v. N.J. 

State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir. 1998)

(alterations omitted).

Generally speaking, a petitioner is entitled to 

tolling if he shows: (1) “„that some extraordinary 

circumstance stood in his way‟ and prevented timely 

filing”; and (2) that “he has been pursuing his rights 

diligently.” Id. at 2562 (quoting Pace v. DiGuglielmo, 

544 U.S. 408, 418 (2005)).16 Initially, we agree with the 

 

16 It is worth noting that “a growing chorus” of our sister 

circuits have recognized “an equitable exception to 

AEDPA‟s limitation period in extraordinary cases . . . in 

which the petitioner has made a credible and compelling 

showing of his actual innocence[.]” Rivas v. Fischer, ---

F.3d ---, 2012 WL 2686117, at *32 (2d Cir. July 9 2012); 

see also Perkins v. McQuiggin, 670 F.3d 665, 675 (6th 

Cir. 2012) (holding that there is an “actual innocence” 

exception to § 2244(d)); San Martin v. McNeil, 633 F.3d 

1257, 1267-68 (11th Cir. 2011) (same); Lee v. Lampert, 

653 F.3d 929, 934 (9th Cir. 2011) (en banc) (same); 

Lopez v. Trani, 628 F.3d 1228, 1230-31 (10th Cir. 2010) 

(same). But see Escamilla v. Jungwirth, 426 F.3d 868, 

871-72 (7th Cir. 2005) (holding that there is no “actual 

innocence” exception to § 2244(d)); Cousin v. Lensing, 

310 F.3d 843, 849 (5th Cir. 2002) (same); David v. Hall, 
46

District Court that the Group 2 claims are not eligible for 

equitable tolling. The parties do not object to this 

conclusion. The Commonwealth‟s argument focuses on 

the Group 3 claims. The District Court concluded that 

the Group 3 claims were eligible for equitable tolling 

because the PCRA II court‟s erroneous dismissal of the 

PCRA II petition constitutes an extraordinary 

circumstance, and because Munchinski diligently 

pursued his rights despite his circumstances. 

(a)

The Commonwealth first challenges the District 

Court‟s conclusion that there were extraordinary 

circumstances that prevented Munchinski from timely 

filing the instant habeas petition. When the facts 

allegedly constituting an extraordinary circumstance are 

not in dispute, “a District Court‟s decision on the 

question whether a case is sufficiently „extraordinary‟ to 

justify equitable tolling should be reviewed de novo.” 

 

318 F.3d 343, 347 (1st Cir. 2003) (same). Because we 

conclude that Munchinski has shown diligence and 

extraordinary circumstances, however, we agree with the 

District Court that he is entitled to equitable tolling on 

that basis. We thus do not consider whether an “actual 

innocence” exception to § 2244(d) exists.
47

Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005).17

The extraordinary circumstances prong requires 

that the petitioner “in some extraordinary way be[ ] 

prevented from asserting his or her rights.” Brown v. 

Shannon, 322 F.3d 768, 773 (3d Cir. 2003). “One . . . 

potentially extraordinary situation is where a court has 

misled a party regarding the steps that the party needs to 

take to preserve a claim.” Brinson, 398 F.3d at 230. 

That is precisely what happened here. The facts before 

us are remarkably similar to those in Urcinoli v. Cathel, 

546 F.3d 269, 273 (3d Cir. 2008). In both cases, a court 

erroneously dismissed pending petitions amidst 

confusion over recent caselaw. In both cases, the court 

implicitly suggested steps that the petitioner should take 

to present the same claims in the future. In Urcinoli, the 

court dismissed a so-called “mixed” habeas petition 

containing both exhausted and unexhausted claims, and 

implicitly suggested that the petitioner refile the same 

petition without the allegedly unexhausted claims. As we 

noted, however, if the petitioner refiled the petition, those 

claims would have been untimely because the one-year 

limitation in § 2244(d) had already passed. Id. So too 

 

17 Brinson suggested that a de novo standard of review 

should apply, but declined to decide the issue. In Taylor 

v. Horn, 504 F.3d 416, 427 (3d Cir. 2007), however, we 

applied a de novo standard, and implicitly adopted 

Brinson.
48

here, the PCRA II court erroneously dismissed the PCRA 

II petition for lack of jurisdiction because of 

Munchinski‟s pending federal appeal. In so doing, the 

court implied that Munchinski could reassert his claims 

once the federal appeal was resolved. Munchinski did 

precisely that, but the Superior Court concluded that such 

claims had become untimely. 

We thus conclude, as we did in Urcinoli, that the

PCRA II court‟s dismissal of Munchinski‟s pending 

petition, with its implicit suggestion that Munchinski 

refile once his federal appeal was resolved, was 

sufficiently misleading as to constitute an extraordinary 

circumstance because “it later operate[d] to prevent 

[Munchinski] from pursuing his rights.” Id. at 275.

(b)

The diligence required of a habeas petitioner 

seeking equitable tolling “is reasonable diligence, not 

maximum feasible diligence.” Holland, 130 S. Ct. at 

2565 (internal quotation marks and citations omitted). 

The Commonwealth argues that by failing to appeal the 

PCRA II court‟s erroneous dismissal of his petition, 

Munchinski did not demonstrate the “reasonable 

diligence” necessary to permit equitable tolling. 

We have not addressed the appropriate standard of 

review for a District Court‟s determination that a habeas 

petitioner demonstrated reasonable diligence. Whether a 
49

petitioner‟s diligence was “reasonable” under the 

circumstances of the case seems a much more factintensive inquiry than whether a set of undisputed facts 

constitutes an “extraordinary circumstance” as a matter 

of law. As such, Brinson‟s reasons for de novo review of 

a district court‟s extraordinary circumstances analysis 

may not apply to its diligence analysis in all cases. See, 

e.g., Rivas v. Fischer, --- F.3d ---, 2012 WL 2686117, at 

*21 (2d Cir. July 9, 2012) (reviewing district court‟s 

diligence analysis for clear error). Indeed, when 

reviewing a district court‟s determination that a petitioner 

demonstrated “reasonable diligence in the circumstances” 

under § 2244(d)(1)(D), we apply a clear error standard. 

Wilson v. Beard, 426 F.3d 653, 660-61 (3d Cir. 2005). 

We need not decide this issue, however, because we 

conclude that Munchinski demonstrated reasonable 

diligence even under a de novo standard.

The diligence requirement “does not demand a 

showing that the petitioner left no stone unturned.” 

Ramos-Martinez v. United States, 638 F.3d 315, 324 (1st 

Cir. 2011). Rather, “[t]o determine if a petitioner has 

been [reasonably] diligent in pursuing his petition, courts 

consider the petitioner‟s overall level of care and caution 

in light of his or her particular circumstances.” Doe v. 

Busby, 661 F.3d 1001, 1013 (9th Cir. 2011); see also 

Schlueter v. Varner, 384 F.3d 69, 74 (3d Cir. 2004) 

(“Due diligence . . . require[s] reasonable diligence in the 

circumstances.”). In other words, the diligence inquiry 
50

is fact-specific and depends on the circumstances faced 

by the particular petitioner; there are no bright line rules 

as to what conduct is insufficient to constitute reasonable 

diligence. If a petitioner “did what he reasonably thought 

was necessary to preserve his rights . . . based on 

information he received . . . , then he can hardly be 

faulted for not acting more „diligently‟ than he did.” 

Holmes v. Spencer, 685 F.3d 51, 65 (1st Cir. 2012).

Over the past several decades, Munchinski has 

vigorously pursued relief in state and federal courts. He 

has filed five petitions for post-conviction relief, all 

raising substantial and difficult questions about his 

conviction. He filed the PCRA II petition very soon after 

discovering the Bates Report, though the petition was 

mistakenly dismissed by the court. He followed the 

PCRA II court‟s implicit suggestion and filed his PCRA

III petition within a month of our dismissal of the 

Appeal, when the alleged jurisdictional issue had been 

resolved. Throughout this process, he continued to 

collect evidence. He presented this evidence in his 

PCRA III petition—if the PCRA II court had been 

correct about the jurisdictional issue, this evidence would 

have been timely presented under 42 Pa. Cons. Stat. Ann. 

§ 9545(b)(2). Under the circumstances, we conclude that 

Munchinski was reasonably diligent.

Munchinski‟s conduct is comparable to that of the 

petitioner in Mathis v. Thaler, 616 F.3d 461 (5th Cir. 

2010). In that case, the petitioner was simultaneously 
51

pursuing post-conviction relief in state and federal courts. 

Just like the PCRA II court, the state court erroneously 

dismissed the pending state court petition based on its 

understanding of Texas‟s so-called “two-forum rule,” 

which prohibited state courts from exercising jurisdiction 

over a state court petition while a federal petition was 

pending. The Texas state courts subsequently clarified 

the two-forum rule in Ex parte Soffar, 143 S.W. 3d 804, 

807 (Tex. Crim. Ct. App. 2004), permitting review of a 

state court petition if the federal petition was stayed. 

Soon after the Soffar decision, the petitioner again 

sought relief in the state courts. The Fifth Circuit 

concluded that the petitioner “exhibited a pattern of 

diligently pursuing his rights in state and federal court, 

despite procedural difficulties. . . . Far from sleeping on 

his rights, [the petitioner] sought relief in multiple 

tribunals in an effort to raise his . . . claim. Under the 

circumstances, [the petitioner‟s] actions were more than 

reasonably diligent.” Mathis, 616 F.3d at 474. We reach 

the same conclusion here, and agree with the District 

Court that in view of the extraordinarily difficult 

circumstances that Munchinski faced, he demonstrated 

reasonable diligence in pursuing his rights.

The Commonwealth argues that Munchinski‟s 

failure to appeal from the PCRA II court‟s dismissal of 

his petition precludes him from showing reasonable 

diligence. We disagree. Although with the benefit of 

hindsight, an appeal may have been prudent, equitable 
52

tolling does not require the “maximum feasible 

diligence.” Holland, 130 S. Ct. at 2565. What the 

diligence inquiry requires is reasonable diligence under 

the circumstances of a particular case. 

The PCRA II court interpreted Pennsylvania state 

law as precluding jurisdiction over a PCRA petition 

while Munchinski‟s federal appeal remained pending. 

As the District Court noted, at that time the Pennsylvania 

Supreme Court had yet to issue its ruling in 

Commonwealth v. Whitney, 817 A.2d 473 (Pa. 2003), 

which clarified that Pennsylvania state courts do maintain 

jurisdiction over a PCRA petition despite a pending 

federal petition. As such, when the PCRA II court 

dismissed Munchinski‟s petition, it was not clear that the 

court had erred. The Pennsylvania Supreme Court‟s case 

law could be read (as it was by the PCRA II court) to 

disclaim jurisdiction over a PCRA petition while a 

federal petition was pending. There then existed no case 

law that might clearly indicate to Munchinski that the 

PCRA II court had erred. Given the uncertainty 

surrounding the issue, we do not think it was 

unreasonable for Munchinski to choose to credit the 

PCRA II court‟s interpretation of Pennsylvania 

procedural law, and heed its implicit suggestion that he 

wait to refile his claims once this court resolved his 

federal appeal. 

As we have observed, the diligence inquiry is 

contextual. Here, Munchinski made almost every effort 
53

to seek timely post-conviction relief in both the state and 

federal systems. He simply chose to follow the implicit 

suggestion from the PCRA II court rather than appeal its 

decision. He did not “sleep[ ] on his rights.” Mathis, 616 

F.3d at 474. Nor did he simply misread a court opinion. 

See Sistrunk v. Rozum, 674 F.3d 181, 190 (3d Cir. 2012) 

(holding that “misreading a court opinion” was not a 

sufficient basis to permit equitable tolling). He did 

exactly what the PCRA II court implicitly suggested, 

doing “what he reasonably thought was necessary to 

preserve his rights . . . based on information he 

received[.]” Holmes, 685 F.3d at 65. Under these 

circumstances, the “principles of equity would make the 

rigid application of a limitation period unfair.” Miller, 

145 F.3d at 618 (alterations omitted). We thus conclude 

that Munchinski was reasonably diligent under the 

circumstances in pursuing his rights.

Because we conclude that Munchinski faced 

extraordinary circumstances and demonstrated 

reasonable diligence in pursuit of his rights, we agree 

with the District Court that he is entitled to equitable 

tolling. The District Court was correct in deciding to toll 

the statute of limitations as to his Group 3 claims from 

August 24, 2000, when Munchinski‟s PCRA II petition 

was dismissed,18 until February 8, 2007, when the 

 

18 It is unclear why the District Court only tolled § 2244 

starting on August 24, 2000, when his PCRA II petition 
54

Pennsylvania Supreme Court denied allocatur over the 

Superior Court‟s dismissal of his PCRA III petition. 

With this period equitably tolled, Munchinski‟s Group 3 

claims, with the exception of his claim based on the 

Bates Report, are timely. As such, the District Court 

could properly consider the Group 1 and Group 3 claims, 

again with the exception of the claim based on the Bates 

Report.

B.

Even if a claim is timely under § 2244, a federal 

court “may not conduct habeas corpus review of a claim 

which a petitioner has procedurally defaulted in state 

court.” Lark v. Sec’y Pa. Dep’t of Corr., 645 F.3d 596, 

611 (3d Cir. 2011). Grounded in principles of comity 

and federalism, the procedural default doctrine prevents a 

federal court sitting in habeas from reviewing a state 

 

was dismissed, as opposed to July 27, 2000, when the 

PCRA II petition was filed. Certainly, the alleged 

extraordinary circumstance here, the PCRA II court‟s 

erroneous dismissal of Munchinski‟s petition along with 

the suggestion that Munchinski wait to refile his petition 

once the Appeal was resolved, did not occur until August 

24, 2000. But for this circumstance, the PCRA II petition 

may well have been “properly filed, and Munchinski may 

have been entitled to statutory tolling under § 2244(d)(2). 

Munchinski has not raised this argument on appeal, 

however, and it does not affect our judgment.
55

court decision that rests on a state law ground “that is 

sufficient to support the judgment,” when that state law 

ground “is independent of the federal question and 

adequate to support the judgment.” Coleman v. 

Thompson, 501 U.S. 722, 729 (1991). In such situations, 

“resolution of any independent federal ground for the 

decision could not affect the judgment and would 

therefore be advisory.” Id.

As the Supreme Court noted in Coleman, “[i]t is 

not always easy for a federal court to apply the 

[procedural default] doctrine. State court opinions will, 

at times, discuss federal questions at length and mention 

a state law basis for decision only briefly.” Id. at 732. A 

state court can still “look to federal law for guidance or 

as an alternative holding while still relying on an 

independent and adequate state ground” as long as it 

states “„clearly and expressly that [its decision] is . . . 

based on bona fide separate, adequate, and independent 

grounds.‟” Id. at 733 (quoting Michigan v. Long, 463 

U.S. 1032, 1041 (1983)). In certain situations, however, 

it may be “difficult to determine if the state law 

discussion is truly an independent basis for decision[,]” 

and thus whether there has been a procedural default. Id.

at 732. 

To account for this difficulty, the Supreme Court 

has instructed federal courts to “presume that there is no 

independent and adequate state ground for a court 

decision . . . when the adequacy and independence of any 
56

possible state law ground is not clear from the face of the 

opinion. Id. at 735 (citation and internal quotation marks 

omitted). In order to overcome this presumption, “the 

last state court to which the petitioner presented his 

federal claims . . . [must] clearly and expressly rely on an 

independent and adequate state ground[.]” Id. 

The District Court held that Munchinski 

procedurally defaulted his Group 3 claims. The court 

concluded that the Superior Court relied on an 

independent and adequate state law ground, namely the 

sixty-day statute of limitations in § 9545(b)(2), to dismiss 

the Group 3 claims. Only then did the court consider 

whether or not to excuse the procedural default, 

ultimately excusing the default on fundamental 

miscarriage of justice grounds. We do not reach the 

latter question because we disagree with the District 

Court as to the former; we conclude that the Superior 

Court did not “clearly and expressly” rely on a state law 

ground sufficient to support its judgment, and thus that 

there was no procedural default.

The Commonwealth argues that there was in fact a 

procedural default, and directs us to the portions of the 

opinion discussing the timeliness of the Group 3 claims. 

See Commonwealth App‟x 117-23. Admittedly, there is 

language in the court‟s opinion suggesting that these 

claims, considered in isolation, are untimely under 

§ 9545(b)(2). But the opinion immediately follows that 

discussion with the disclaimer that its “analysis does not 
57

end here, however.” Id. at 123. 

The remainder of the Superior Court‟s opinion is 

difficult to understand, and at times seems almost selfcontradictory. The Superior Court apparently concluded

that the Group 3 claims were “submitted too late to form 

the basis of an entirely separate claim.” Id. at 149. 

Nonetheless, “a timely asserted claim cannot be found to 

be invalid simply because part of the evidence that 

supports the PCRA court‟s ruling was submitted too late 

to form the basis of an entirely separate claim.” Id. 

Consequently, the court concluded that it could not 

“review the PCRA court‟s rulings on a diminished 

record[,]” and reached the merits of all of Munchinski‟s 

Brady claims. Id.

In other words, the court concluded that even 

though the Group 2 and Group 3 claims were untimely if 

presented independently, it was required to consider the 

materiality of all of the alleged suppressed evidence 

because Munchinski did present timely Brady claims via

Group 1. Though the Superior Court does not explain 

why it was required to reach the merits as to all of 

Munchinski‟s Brady claims, it cites a Pennsylvania 

Supreme Court case to support its conclusion. As such, 

this conclusion appears to result from an interpretation of

state law, and is not properly before us. The only issue 

we must consider is whether the Superior Court‟s earlier 

statements regarding the Group 2 and 3 claims provide an 

independent and adequate state court ground sufficient to 
58

support its judgment. 

The Superior Court concluded that despite “the 

procedural irregularities of this case,” it was required to 

address the federal question as to all of Munchinski‟s 

Brady claims. The court could not then have relied 

exclusively on its procedural rulings to resolve the Group 

2 and Group 3 claims. Indeed, the court repeats several 

times, using mandatory language, that it was required to 

reach the merits of all of Munchinski‟s claims, stating: 

(1) that it “cannot confine [its] analysis only to newly 

acquired evidence that was timely presented,” Id. at 148; 

(2) that “a timely asserted claim cannot be found to be 

invalid simply because part of the evidence that supports 

the PCRA court‟s ruling was submitted too late to form 

the basis of an entirely separate claim,” Id. at 149; (3) 

that it “cannot review the PCRA court‟s ruling on a 

diminished record,” Id.; and (4) that it “must therefore 

discuss all of the evidence on which that court relied on 

granting relief,” Id. at 162. 

Despite Munchinski‟s procedural error, the 

Superior Court concluded that it was required to consider 

the materiality of all of the evidence raised in the PCRA 

III petition. Logically speaking, the procedural ruling 

was not sufficient to support the court‟s judgment. That 

is, the court could not avoid analyzing the merits of 

Munchinski‟s Group 3 claims on the basis of their 

timeliness. Indeed, the court specifically rejected that 

possibility. See id. at 148 (“We conclude that we cannot
59

confine our analysis only to newly acquired evidence that 

was timely presented [under § 9545(b)(2)].” (emphasis 

added)).

This is not a case where addressing “any 

independent federal ground for the decision could not 

affect the judgment and would therefore be advisory.” 

Coleman, 501 U.S. at 729. Munchinski‟s habeas petition 

was directed at the Superior Court‟s Brady analysis of the 

Group 1 and Group 3 claims—an analysis implicating 

federal law that the Superior Court apparently believed it 

was required to conduct. If we disagree with the 

Superior Court‟s application of federal law, and we do, 

the Superior Court‟s judgment cannot be sustained. See 

Smith v. Freeman, 892 F.2d 331, 336-37 (3d Cir. 1989) 

(holding that there was no procedural default even 

though a petition was possibly untimely, because the 

procedural error was not sufficient to support the state 

court‟s judgment; the state court determined that it was 

“bound under Pennsylvania law to reach the merits” 

despite any procedural error). As such, federalism and 

comity do not prevent us from considering the evidence 

giving rise to the Group 3 claims.

When pressed on this point at argument, the 

Commonwealth argued that the Court‟s discussion of the 

federal issues were simply alternative grounds for its 

judgment. To be sure, a state court can speak to a federal 

issue in the alternative, so long as it is clear from the face 

of the opinion that the state law ruling is sufficient to 
60

support its judgment. See Coleman, 501 U.S. at 733. 

Here, however, the state law ruling was not sufficient to 

support its judgment—the court‟s Brady analysis was

necessary to its holding. An issue that is necessary to the 

court‟s judgment cannot be “an alternative basis” for the 

ruling. Without the analysis of federal law, the Superior 

Court could not have reached the conclusion that it 

reached.

Even if it were possible to read the discussion of 

federal law as an alternative basis for the court‟s holding, 

we do not think that the opinion is sufficiently clear to 

overcome the presumption against procedural default. 

The Superior Court did not “clearly and expressly” rely 

on state procedural law as grounds for its judgment. As 

stated above, there is language in the opinion suggesting 

that Munchinski‟s procedural error was not a sufficient 

basis to support its judgment. The Superior Court did not 

indicate that its discussion of federal law was merely an 

alternative basis for its holding. Because “the adequacy 

and independence of any possible state law ground is not 

clear from the face of the opinion,” Coleman, 501 U.S. at 

735, we conclude that the District Court erred by 

concluding that Munchinski‟s Group 3 claims were 

procedurally defaulted. Absent any procedural default, 

the District Court did not err when it included the Group 

3 claims in its merits analysis.

C.
61

Because the instant habeas petition is a second or 

successive petition, Munchinski must also demonstrate 

“by clear and convincing evidence that, but for 

constitutional error, no reasonable factfinder would have 

found the applicant guilty of the underlying offense.” 28 

U.S.C. § 2244(b)(2)(B)(ii). Other courts have referred to 

this statute as requiring a “gateway” showing of actual 

innocence. See, e.g., United States v. MacDonald, 641 

F.3d 596, 611-12 (4th Cir. 2011).

1.

The Commonwealth argues that Munchinski has 

failed to prove by clear and convincing evidence that no 

reasonable juror could vote to convict him in light of his 

newly-discovered evidence. We generally review the 

District Court‟s “probability determination that no 

reasonable juror would convict de novo.” Gomez v. 

Jaimet, 350 F.3d 673, 679 (7th Cir. 2003); see also 

Sweger v. Chesney, 294 F.3d 506, 522 (3d Cir. 2002).

At the Retrial, the Commonwealth built an 

elaborate theory of the case. It argued that the murders 

were drug related—that Munchinski, Scaglione, and 

Bowen drove to Gierke‟s cabin in a lime green Gran 

Torino in order to resolve a drug dispute. The 

Commonwealth presented a straightforward timeline of 

events, arguing that over the course of a few hours that 

night, Scaglione raped Gierke, Munchinski raped Alford, 

and then almost immediately afterwards, Gierke and 
62

Alford were shot. The Commonwealth‟s theory was 

supported exclusively by Bowen‟s testimony. Indeed, 

the Commonwealth concedes as much in its briefing 

before this court. See Commonwealth Br. 41 

(“Appellants acknowledge that Bowen‟s testimony was 

central to the prosecution case.”).

We acknowledge that mere impeachment evidence 

is generally not sufficient to show actual innocence by 

clear and convincing evidence. Cf. Sawyer v. Whitley, 

505 U.S. 333, 349 (1992). Munchinski‟s newlydiscovered evidence, however, is not mere impeachment 

evidence. Rather, Munchinski‟s evidence clearly and 

convincingly shows that the murders could not have 

happened as the Commonwealth proposed at trial. See 

Keith v. Bobby, 551 F.3d 555, 558 (6th Cir. 2009) 

(differentiating between habeas petitions premised on 

mere impeachment evidence, and petitions based on 

“new evidence that . . . directly contradicted the 

government‟s case in chief”). The Powell Report and the 

Goodwin/Powell Report both suggest that the 

Commonwealth‟s timeline is inconsistent with the 

physical evidence from the autopsy.19 The Bates Report 

 

19 The Commonwealth points to credibility issues 

concerning some of the new evidence that Munchinski 

raises in his habeas petition, arguing that Munchinski 

cannot surpass § 2244(b)(2)(B)(ii)‟s high standard when 

his proffered evidence has credibility problems. 
63

II suggests that Bowen, the only witness who could 

provide any details supporting the Commonwealth‟s 

theory of the case, was not even in Pennsylvania the 

night of the murders, and makes clear that the police 

were aware of this fact. 

Besides Bowen‟s testimony, the only evidence 

linking Munchinski to the murders was (1) testimony 

from Lexa, Dahlmann, and Furr, three acquaintances who 

 

Certainly, when analyzing the record for actual 

innocence purposes, “the court must give due regard to 

any unreliability of the evidence, and may have to make 

some credibility assessments[.]” MacDonald, 641 F.3d 

at 612-13 (citations and internal quotation marks 

omitted). There are minor credibility issues with some of 

Munchinski‟s evidence. For example, Powell claimed at 

the PCRA III hearings that he never stated that the rapes 

occurred at least 24 hours prior to the murders. The task 

of weighing the credibility of Munchinski‟s new 

evidence, however, would ultimately lie with the jury. 

The jury would have to determine whether to credit 

Powell‟s PCRA testimony, over two decades after the 

initial autopsy, or two statements made soon after the 

autopsies, and recorded by police officers with no 

motivation to misstate the facts. Our role is not to weigh

the credibility of each witness; rather, we must consider 

all of the relevant evidence and account for any 

credibility issues in our analysis.
64

testified that Munchinski confessed to them in a bar in 

January 1978; and (2) testimony from Thomas, a 

jailhouse informant who claimed that Munchinski 

confessed to him in jail. The Mangiacarne/Carbone 

Report provided the jury evidence that Dahlmann, Lexa, 

and Furr had a motivation to fabricate Munchinski‟s 

supposed confession, to keep Dahlmann‟s ex-husband 

Wiltrout from being implicated in the crime. While 

Munchinski was aware that Wiltrout was a suspect in the 

murders early in the investigation, he could not 

effectively cross-examine Dahlmann, Lexa, and Furr 

about Wiltrout absent any evidence that Wiltrout was a 

serious subject of the investigation. The 

Mangiacarne/Carbone Report would have made clear to 

the jury that if the murders were not attributed to 

Munchinski, Wiltrout would be high on the list of 

potential suspects.

Again, the Mangiacarne/Carbone Report does 

more than just impeach Dahlmann, Lexa, and Furr. The 

report presents an alternative theory that better fits the 

verifiable facts of the case than the Commonwealth‟s 

theory. Carbone‟s account suggested that Wiltrout and at 

least one acquaintance travelled to Bear Rocks for a drug 

deal. At some point, the drug deal went bad and Wiltrout 

shot Alford and Gierke. Commonwealth App‟x 220. 

There was no inconsistency between this account and 

Powell‟s statements concerning the timing of the rapes.

The fact that Carbone‟s account supported a theory of the 
65

case that better fit with other recovered evidence is a 

critical point. In House v. Bell, 547 U.S. 518 (2006), the

Supreme Court found that the petitioner made a gateway 

showing of actual innocence in part because the 

petitioner‟s newly-discovered evidence identified an 

alternate suspect and supported a more appropriate theory 

of the case. See id. at 548-53. 

The Commonwealth would essentially be asking 

the jury to convict based on: (1) an implausible theory of 

the case inconsistent with other evidence in the record; 

(2) self-serving testimony from three acquaintances 

whose testimony kept Dahlmann‟s ex-husband from 

becoming a target in the investigation; and (3) testimony 

from a jailhouse informant. Critically, the jury would be 

left without a theory of the case to explain the actual 

murder itself—testimony from Dahlmann, Lexa, Furr, 

and Thomas was limited to what happened after the

murders, and did not provide the jury with a detailed 

account of what actually transpired in Bear Rocks.

On the other hand, Munchinski would have offered 

the jury alternative theories of the case without the 

problematic inconsistencies in Bowen‟s account. 

Considering all of the evidence that would have been 

presented to the jury, Munchinski has clearly and 

convincingly demonstrated that but for the 

Commonwealth‟s Brady violations, no reasonable juror 

could rationally believe beyond a reasonable doubt that

Munchinski committed the Bear Rocks Murders. 
66

The Commonwealth‟s case against Munchinski 

was always close, even without the critical pieces of 

evidence that the Commonwealth unlawfully suppressed. 

When the jury at the First Trial was presented with 

virtually the same evidence, they could not reach a 

verdict. Giving “due regard to any unreliability of” 

Munchinski‟s new evidence, we are satisfied that 

Munchinski has made a truly persuasive demonstration of 

his “actual innocence.” Schlup v. Delo, 513 U.S. 298, 

328 (1995). When all of the evidence is considered as a 

whole, we are convinced that no reasonable juror could 

rationally vote to convict. We thus conclude that 

Munchinski has made a gateway showing of actual 

innocence, under the clear and convincing evidence 

standard required under § 2244(b)(2)(B)(ii).

2.

The Commonwealth also argues that Munchinski 

has not “support[ed] his allegations of constitutional error 

with new reliable evidence.” Schlup, 513 U.S. at 324. 

The Commonwealth concedes that Munchinski has 

presented “new” evidence, but argues that Munchinski‟s 

evidence is not “reliable” within the meaning of Schlup. 

Commonwealth Br. at 36 (“Although Munchinski 

presented new evidence, nothing about this evidence 

indicates that it is particularly reliable.”). We review de 

novo whether a petitioner‟s evidence is sufficient to 
67

satisfy Schlup. See McCoy v. Norris, 125 F.3d 1186, 

1190 (8th Cir. 1997); see also Sweger, 294 F.3d at 522.

20

In Schlup, the Supreme Court emphasized that a 

petitioner asserting actual innocence in a second or 

successive habeas petition based on newly-discovered 

 

20 We have not had occasion in this circuit to definitively 

determine whether § 2244(b)(2)(B)(ii) incorporates all of 

the “features of the standards spelled out in [ ] preAEDPA decisions . . . [that] oblige[ ] the prisoner to 

proffer some new evidence in support of his habeas 

corpus claim.” MacDonald, 641 F.3d at 612. We have 

previously held that AEDPA “built on,” rather than 

supplanted, the “abuse-of-the-writ” doctrine that 

preceded AEDPA. See Goldblum v. Klem, 510 F.3d 204, 

216 & n.8 (3d Cir. 2007). Though Goldblum does not 

explicitly resolve the question at issue here—

whether§ 2244(b)(2)(B)(ii) incorporates Schlup‟s 

requirement of new and reliable evidence—it does 

suggest that AEDPA did nothing to displace that 

requirement from Schlup. Consequently, we are inclined 

to agree with the Fourth Circuit that § 2244(b)(2)(B)(ii) 

incorporates Schlup, and that a petitioner filing a second 

or successive petition must provide new and reliable 

evidence in support of his or her claims. See 

MacDonald, 641 F.3d at 612. Because this issue has not 

been briefed by the parties, however, we will not address 

it here. 
68

evidence must rely on “reliable evidence-whether it be 

exculpatory scientific evidence, trustworthy eyewitness 

accounts, or critical physical evidence[.]” Schlup, 513

U.S. at 324. The Commonwealth argues that because all 

of Munchinski‟s evidence merely attacks Bowen‟s 

credibility, his evidence does not fit within the categories 

of permissible evidence cited in Schlup, and thus cannot 

be “reliable.”

Schlup‟s three categories are not an exhaustive list 

of the types of evidence that can be “reliable.” Indeed, 

the Supreme Court‟s own decision in House, 547 U.S. at 

548-53, suggests that other types of evidence can pass the 

high bar set by Schlup. In House, the Supreme Court 

spent a large portion of its analysis on evidence that 

implicated another suspect. Id. This evidence is very 

similar to the evidence raised by Munchinski—the 

petitioner‟s evidence implicates other suspects and casts 

serious doubts on the viability of the Commonwealth‟s 

theory of the case. Moreover, Munchinski has presented 

evidence that is reliable under Schlup. The Powell 

Report and the Goodwin/Powell Report are “exculpatory 

scientific evidence” because both suggest that Alford had 

been raped “at least 24 hours prior” to his death. 

When pressed about these two articles of evidence 

at oral argument, the Commonwealth argued that even 

though they might appear to be reliable, they are in fact 

not reliable because they conflicted with Powell‟s 

testimony during the PCRA proceedings. The 
69

Commonwealth argued that because Powell later 

disavowed the claims in the Powell Report and the 

Goodwin/Powell Report, that those reports cannot be 

reliable. Schlup, however, does not require a habeas 

court to play the role of the jury and weigh all potentially 

countervailing evidence when considering whether a 

particular article of evidence is reliable. That weighing 

exercise is undertaken when the court considers whether 

any reasonable juror would vote to convict based on all 

of the evidence in the record. We conclude that the 

Goodwin/Powell Report and the Powell Report are 

“reliable,” within the meaning of Schlup. 

Similarly, the Bates Report II and the 

Dunkard/Proud Report are “reliable” evidence within the 

meaning of Schlup. The former is a police report relating 

an interview of someone with direct personal knowledge 

of Bowen‟s whereabouts. The latter is a police report 

relating an interview with a police dispatcher. Although 

neither is a sworn affidavit, both reports document what 

were, at the time, non-controversial facts that were 

recorded by the police themselves. We believe that the 

particular context surrounding these reports sufficiently

guarantee their reliability in this case. Nothing in the 

record suggests that either the police or the declarants 

had any reason to misstate the facts in either of these 

reports at the time the reports were created. 

The Commonwealth is correct that mere 

impeachment evidence is generally not sufficient to 
70

satisfy the Schlup standard. See Sawyer, 505 U.S. at 349. 

But like the Powell Report and the Goodwin/Powell 

Report, both the Bates Report II and the Dunkard/Proud 

Report are not merely impeachment evidence. As such, 

they call into question the Commonwealth‟s entire theory 

of the case. Indeed, the prosecution appears to have 

recognized this, by highlighting the portion of the Bates 

Report II suggesting that Bowen had left for Oklahoma 

prior to the murders. Munchinski provides the type of 

evidence required of a second or successive petition 

under § 2244(b)(2)(B)(ii). 

Based on all of this evidence, we conclude that 

Munchinski has “present[ed] new, reliable evidence that 

was not presented at trial.” Houck v. Stickman, 625 F.3d 

88, 93 (3d Cir. 2010) (citation omitted). Assuming that 

§ 2244(b)(2)(B)(ii) incorporates Schlup‟s requirement 

that a petitioner support his or her constitutional claims 

with new and reliable evidence, we are thus satisfied that 

Munchinski has presented evidence that satisfied 

Schlup‟s high standard.

III.

The Commonwealth restricted its appeal to three

issues: (1) whether the District Court erred by equitably 

tolling the statute of limitations for Munchinski‟s Group 

3 claims; (2) whether the District Court erred by excusing 

the procedural default of his Group 3 claims; and (3) 

whether Munchinski has made a gateway showing of 
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actual innocence under § 2244(b)(2)(B)(ii). We will 

affirm the judgment of the District Court, although we 

depart from its reasoning. See Ross v. Dist. Att’y of the 

Cnty. of Allegheny, 672 F.3d 198, 213 n.12 (3d Cir. 

2012) (noting that we can affirm on an alternative basis). 

First, we agree with the District Court that 

Munchinski was entitled to equitable tolling for his 

Group 3 claims. Second, we conclude that Munchinski 

did not procedurally default his claims, and thus that 

there was no need to decide whether to excuse his alleged 

default. Finally, we conclude that Munchinski has 

shown, by clear and convincing evidence, that no 

reasonable juror would vote to convict him based on all 

of the evidence that should have been introduced at trial, 

absent the Commonwealth‟s constitutional violations. 

We also conclude that Munchinski has introduced new 

and reliable evidence in support of the constitutional 

claims in his second or successive petition. We 

acknowledge that both the Supreme Court and Congress 

have set a high standard for second or successive habeas 

petitions that “permits review only in the „extraordinary‟ 

case.” House, 547 U.S. at 538 (internal quotation marks 

omitted) (quoting Schlup, 513 U.S. at 327). 

“Extraordinary” is how Judge Feudale characterized this 

case when it was before him at the PCRA III stage, and 

“extraordinary” is how we view it for second or 

successive habeas purposes.

Though our reasoning differs from that of the 
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District Court, we ultimately agree with that court that 

the procedural irregularities of this case do not preclude 

us from reaching the merits of Munchinski‟s argument 

that the Superior Court unreasonably applied Brady as to 

his Group 1 and Group 3 claims—an argument that has 

been expressly and rightly conceded by the 

Commonwealth. It seems that the Commonwealth‟s 

decision to appeal the District Court‟s judgment may 

have been motivated by considerations external to this 

particular case, because it is difficult to discern any 

significant justification on this record for continuing to 

defend what is now acknowledged by all to be a badly 

tainted and highly suspect conviction. We will affirm the 

judgment of the District Court granting Munchinski a 

writ of habeas corpus pursuant to § 2254(d)(1). The 

Commonwealth must either release Munchinski or retry 

him within 120 days of our opinion.