Joseph Hussmann v. Donald T. Vaughn

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No: 01-1724
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JOSEPH HUSSMANN,
Appellant
v.
DONALD T. VAUGHN;
THE DISTRICT ATTORNEY OF
THE COUNTY OF PHILADELPHIA;
THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No.99-cv-04512)
District Judge: Honorable Louis Charles Bechtle
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Argued on March 4, 2003
Before: ROTH, BARRYand FUENTES CIRCUIT JUDGES
(Opinion filed: April 24, 2003)
Harvey R. Meltzer, Esquire (Argued)
354 Eisenhower Parkway
P.O. Box 21
Livingston, New Jersey 07039
Attorney for Appellant

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Marilyn F. Murray (Argued)
Assistant District Attorney
Thomas W. Dolgenos
Chief, Federal Litigation
Ronald Eisenberg
Deputy District Attorney
Law Division
Arnold H. Gordon
First Assistant District Attorney
Lynn Abraham
District Attorney
Office of District Attorney
1421 Arch Street
Philadelphia, PA 19102
Attorney for Appellees
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OPINION
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ROTH, Circuit Judge:
On December 10, 1980, Joseph Hussmann was convicted of two counts of second
degree murder, criminal conspiracy, and arson for his role in an arson-for-hire scheme.
The jury found that Hussmann had offered Burton Smith $500 to $600 to burn down
Hussmann’s house at 4340 Elizabeth Street in Philadelphia in order that Hussmann might
receive $25,000 in insurance money. Smith in turn recruited Richard Hahn to help and
offered Hahn half of his proceeds from the arson. Richard Hahn and Kevin Higgins, an
employee of Hussmann, were killed in the fire. Smith suffered extensive burns and
amputation of several fingers. Smith was arrested and, in exchange for a reduced
sentence, divulged Hussmann’s insurance fraud plan.

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On July 20, 1999, we granted Hussmann’s petition to file a second or successive
habeas petition under 28 U.S.C. § 2244. On September 9, 1999, Hussmann filed his
petition, raising twelve claims. On March 2, 2001, the District Court dismissed the
petition as time barred and found no probable cause to issue a certificate of appealability.
Hussmann appealed and applied to us for a certificate of appealability. On June 12, 2001,
we granted a certificate of appealability to address the following issues: (1) Can petitioner
demonstrate actual innocence, (2) Is there an “actual innocence” exception to AEDPA’s
statute of limitations provided in 28 U.S.C. § 2244(d)(1), and (3) If petitioner’s claim is
not time-barred, is it procedurally defaulted.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and §2253 (c)(1)(A).
We exercise plenary review over the District Court’s legal conclusions. See Johnson v.
Rosemeyer, 117 F. 3d 104 (3d Cir. 1997).
First, Hussmann claims that he has demonstrated “actual innocence” and should be
granted appropriate relief. Hussmann asserts this contention under 28 U.S.C. §
2244(b)(2)(A) which provides that, if the second petition asserts a claim that was not
previously presented, the claim must be dismissed unless the claim is predicated on newly
discovered evidence that clearly establishes the prisoner’s innocence.
To prevail on this contention, Hussmann must persuade us that, in light of the new
evidence, no juror, acting reasonably, would not have voted to find him guilty beyond a
reasonable doubt. Sweger v. Chesney, 294 F. 3d 506, 522 (3d Cir. 2002) citing Cristin v.

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Brennan, 281 F. 3d 404, 420 (3d Cir. 2002). Further, Hussmann must support his
allegations with new reliable evidence that was not presented at trial. See Schlup v. Delo,
513 U.S. 298, 324 (1995).
Hussmann claims he can demonstrate his actual innocence based on affidavits of
two of his fellow prison inmates. The two affidavits, dated 1994 and 1996, are from
Joseph Hahn, brother of one of the victims in the fire, and Stephen Lathrop. The affiants
attest to their knowledge of unlawful influence over the trial judge and over Burton Smith,
who was a key witness for the government. Joseph Hahn attests that he visited Burton
Smith in the hospital and that Smith told him that he and Richard Hahn were asked to burn
down Hussmann’s Elizabeth Street home by someone who had a grudge against
Hussmann. Lathrop attests that he had a conversation with Burton Smith and that Smith
told him that Hahn threatened and coerced Smith into falsely testifying against Hussmann.
The reliability of these affidavits is extremely dubious. They are based on
information that cannot be affirmed because Richard Hahn and the trial judge have both
died. Hussmann himself acknowledges that the affidavits are unreliable, stating that he
can understand why a court would be skeptical about them. Moreover, these unreliable
statements do not demonstrate Hussmann’s actual innocence but merely impeach Smith’s
credibility.
Because Hussmann has failed to establish his actual innocence or to convince us
that a reasonable juror would not have voted to find him guilty beyond a reasonable doubt,

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based on the information contained in the two new affidavits, we find no basis for a
contention of actual innocence, as required by 28 U.S.C. § 2244(b)(2)(A).
In view of the fact that we conclude that Hussmann has no basis to assert a claim of
actual innocence, we will not go on to consider the remaining two questions certified:
Whether there is there an “actual innocence” exception to AEDPA’s statute of limitations
and whether, if Hussmann’s claim is not time-barred, it is procedurally defaulted.
For the foregoing reasons, we will affirm the District Court’s judgment, dismissing
the petition.

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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge

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