Gerald Howell v. Superintendent Albion Sci

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-1780
_____________
GERALD HOWELL,
Appellant
v.
SUPERINTENDENT ALBION SCI; ATTORNEY
GENERAL PENNSYLVANIA
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-05-cv-02843)
District Judge: Hon. Juan R. Sanchez
_______________
Argued
June 17, 2020
Before: JORDAN, MATEY, and ROTH, Circuit Judges.
(Filed: October 21, 2020)
_______________

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Sean E. Andrussier
Farrah Bara
Ethel Hylton
Mark Rothrock
Spencer Scheidt [ARGUED]
Duke University School of Law
210 Science Drive
Box 90360
Durham, NC 27708
Counsel for Appellant
Max C. Kaufman
David Napiorski [ARGUED]
Philadelphia County Office of District Attorney
13th Floor
3 South Penn Square
Philadelphia, PA 19107
Counsel for Appellees
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Herbert Allen was shot and killed on Christmas Eve,
1982. Although next to no physical evidence was recovered
from the crime scene, Gerald Howell was arrested for the
murder. His arrest and later conviction at trial were based on
witness testimony. Fast forward to today, however, and three
of the prosecution’s witnesses from the trial have recanted
their testimony. A fourth died long ago because he was
prepared to testify against another witness the

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Commonwealth relied on, Kenneth Parnell, who appeared at
Howell’s preliminary hearing but later confessed to Allen’s
murder himself. Based on the recantations and Parnell’s
confession, Howell now asserts a claim of actual innocence
and seeks to set aside the District Court’s dismissal of his
untimely habeas petition.
The District Court ruled that the recantations were
categorically unreliable and thus not an appropriate basis for
habeas relief. That was error. Although recantations are
generally looked upon with suspicion, they are not subject to
a categorical rejection, and, indeed, the recantations in this
case cast significant doubt on Howell’s conviction,
particularly when considered together with Parnell’s
confession. Although the hurdle for actual-innocence relief
on an otherwise time-barred habeas claim is very high, it is
possible that Howell can clear it. We will accordingly vacate
the order denying his motion under Federal Rule of Civil
Procedure 60(b)(6) to set aside the earlier dismissal of his
habeas petition and will remand to the District Court for an
evidentiary hearing on his new evidence, so that a more
complete record can be developed upon which to decide the
Rule 60(b)(6) motion.
I. BACKGROUND
On the evening of December 24, 1982, police officers
responded to a report of a shooting in the vicinity of 11th and
Huntingdon Streets in Philadelphia and found Herbert Allen
lying face down in his blood between two cars. He was taken
to a hospital and pronounced dead shortly thereafter. Except
for the blood stain, the police found no physical evidence at
the scene.

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A few weeks later, Gerald Howell was arrested for the
murder. At a preliminary hearing, the Commonwealth
presented the testimony of Kenneth Parnell, an acquaintance
of Howell’s. Parnell testified that on the night of the murder,
he was walking with a friend when they happened to meet
Howell. The three of them walked on together and, at some
point, saw Allen. Parnell said that Howell went over to Allen
and started “scuffling” with him. (App. at 389.) According
to Parnell, Howell then pulled out a gun, shot Allen in the
chest, and took his watch and wallet. Based on that
testimony, the court was satisfied that there was enough
evidence to send the case to trial.
When the time for trial arrived, however, Parnell did
not testify. Instead, the prosecution’s main witnesses were
Karla Hearst, Darryl Workman, and Arlene Williams. Two
additional witnesses – Cheryl Jones and Warren Wright –
were called in rebuttal.
Hearst testified that on the evening of the murder, she
was outside her house with her cousin and Jones when she
heard a gunshot. She ran to the corner of Huntingdon and
Sartain streets and saw a man with a gun in his hand running
west on Huntingdon. She said she recognized him as Howell
and noted that he was wearing a beige jacket. After she went
and looked at Allen’s body, she went to Allen’s father’s
house to report the shooting.
Darryl Workman testified that on the night of the
shooting he was smoking marijuana with Parnell and Howell
in the vicinity of the crime scene. According to Workman,
they started walking, and Howell, who had caught sight of

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Allen, said “I’m going to get him.” (App. at 227.) Parnell
and Workman kept walking while Howell confronted Allen
and shot him. Workman said that, after the shooting, Howell
“went in [Allen’s] pockets and ran up Huntingdon Street.”
(App. at 227.) Workman also testified that when he saw
Howell again after the shooting, Howell showed him a
handgun, as well as a “Mason ring” he had taken from Allen.
(App. at 248.) On cross-examination, numerous
inconsistencies in Workman’s testimony were exposed. For
example, in his original statement to police, he claimed that
he was walking alone on Huntingdon Street when he heard
the gunshot, that Parnell was on the other side of the street,
and that he did not know who the shooter was. Confronted at
trial with those changes to his story, Workman said he had
lied in his original statement.
During its case-in-chief, the Commonwealth also
called Arlene Williams. She testified that, the morning after
the shooting, Howell visited her and told her that he had shot
someone on Huntingdon Street, and he showed her the .22
caliber gun he had used. She further testified that Howell told
her he had taken a Masonic ring from Allen, and he showed
the ring to her.
Cheryl Jones was called in rebuttal and largely
confirmed Karla Hearst’s testimony. She was with Hearst,
heard a gunshot, and then saw a man fleeing from the
direction of the sound, though she did not recognize him. She
corroborated Hearst’s statement that the man was wearing a
beige jacket, and she also said he was wearing black and
white Adidas shoes. A beige jacket and pair of black and
white Adidas were recovered from Howell on the day of his
arrest.

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Also in its rebuttal case, the Commonwealth called
Warren Wright to the witness stand. He claimed to be
acquainted with Howell. He said that he had encountered
Howell at a party the same night as the shooting. According
to Wright, Howell asked if the police were still around the
crime scene and said he wanted to know because he “just got
a dead body.” (App. at 348.) Wright also testified
inconsistently regarding his whereabouts at the time of the
shooting, alternately saying he was at the scene and then
denying he was there.1
Howell testified in his own defense. He claimed that
he, his sister, and his mother had all gone to a toy store that
evening to buy a toy for his niece for Christmas. That
testimony was corroborated by his sister and mother, who
said they were at the store until approximately 8:15 p.m. and
then went to a diner to eat. Howell admitted to being at the
party where Wright claimed to have met him but claimed he
spoke only to Parnell while there.
The jury ultimately convicted Howell of robbery and
second-degree murder. He was sentenced to life
imprisonment and then began his long journey through the
appellate and collateral review processes. After failing to
1 The prosecution called additional witnesses. Some
police officers testified about the investigation and the lack of
physical evidence. The medical examiner testified, and,
though not a ballistics expert, opined that the bullet that killed
Allen was a .22. Allen’s father testified that his son belonged
to a Masonic organization and had a ring with a symbol of
that organization on it.

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overturn his convictions on direct appeal, Howell filed his
first collateral attack under Pennsylvania’s Post Conviction
Relief Act (“PCRA”). It was denied, and that denial was
affirmed by the Superior Court. The Pennsylvania Supreme
Court refused him permission to appeal further. There were
then additional state-court collateral proceedings, none of
which achieved the relief Howell sought. That was so even
though, in 1999, Parnell confessed to Allen’s murder, and
Howell attached a copy of that written and sworn confession
to the PCRA petition he filed that year.2 The petition was
dismissed as time-barred and not containing new evidence
because, the PCRA appeal court said, Howell knew at the
time of trial that Parnell had committed the murder.3
2 In 1999, Parnell wrote several letters in which he
confessed to murdering Allen. He sent them to Howell’s
former post-conviction counsel, to a judge on the Court of
Common Pleas, and to various other people. In the letters, he
said that, while high, he had attempted to collect drug money
from Allen and ended up killing him. He said he then made
up a story pinning the murder on Howell and had his friends
corroborate it. Parnell also claimed that he was thereafter
arrested for another shooting, which he committed because
the victim was telling people what he had done to Allen.
Parnell signed a notarized affidavit containing his confession.
3 The Pennsylvania Superior Court’s nothing-new-here
rationale is curious. The court concluded that Howell “knew
Parnell’s identity at the time of trial in 1983” and “attempted
to implicate Parnell in the crime in his examination of
witnesses.” (Supp. App. at 10.) It thus ruled that Parnell’s
confession was not “a fact that was unknown to [Howell]
[which] could not have been ascertained by the exercise of
due diligence.” (Supp. App. at 9.) But seeking to create

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After the dismissal of his final PCRA petition, Howell
filed a habeas petition in federal court in 2005. The District
Court dismissed it as time-barred. We denied a certificate of
appealability, concluding that, even assuming that a showing
of actual innocence could excuse untimeliness, Parnell’s
affidavit alone was insufficient to make such a showing and
thus relief was unwarranted.
In May of 2014, Howell tried again, filing a motion to
reopen the habeas judgment, based on the Supreme Court’s
decision in McQuiggin v. Perkins, 569 U.S. 383 (2013). That
case held that a showing of actual innocence provides an
equitable exception to AEDPA’s statute of limitations. Id. at
392. Howell argued that he was actually innocent and that
McQuiggin constituted a change in law entitling him to relief
under Federal Rule of Civil Procedure 60(b)(6). 4 This time,
his claim of innocence was supported not only by Parnell’s
confession, but also by the more recent recantation of Arlene
Williams. In August 2009, Williams signed a notarized
affidavit recanting her trial testimony. She swore that,
contrary to her trial testimony, Howell never visited her on
the morning after the murder, that he did not confess to the
reasonable doubt at trial is a far cry from knowing who
actually committed the crime in question. And the confession
from Parnell – a confession that didn’t exist in 1983 – was in
fact new when it was presented to the PCRA court.
4 That rule states, “the court may relieve a party or its
legal representative from a final judgment, order, or
proceeding for… any other reason that justifies relief.” Fed.
R. Civ. P. 60(b)(6).

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murder, and that he never showed her a gun or a ring. She
stated that she had lied because the police told her that, if she
didn’t implicate Howell, they would charge Parnell for the
crime. She had wanted to protect Parnell because he is the
father of her child.
The District Court denied Howell’s motion, ruling that
the change in the law caused by McQuiggin “does not provide
the extraordinary circumstance necessary to afford relief
under Rule 60(b).” (App. at 121.) In the alternative, the
Court denied the motion on the merits, stating that the
evidence Howell proffered was insufficiently reliable to meet
the standard for proving actual innocence.
A few years later, we came to a different conclusion
about whether McQuiggin opened the door to relief under
Rule 60(b)(6). In Satterfield v. District Attorney of
Philadelphia, 872 F.3d 152 (3d Cir. 2017), we said that “if a
petitioner can make a showing of actual innocence,
McQuiggin’s change in law is almost certainly an exceptional
circumstance” entitling a petitioner to relief under Rule
60(b)(6). Id. at 163. That prompted Howell to again move
for Rule 60(b)(6) relief, and this time he added two more
recantations in support, from Karla Hearst and Cheryl Jones.
Both Hearst and Jones provided affidavits in which they
claimed that the fleeing man they saw on the night of the
murder was actually Parnell. They stated that they had lied at
trial out of fear of Parnell and due to police coercion.
The District Court again denied relief. It decided that
Parnell’s confession was unreliable because, when he
authored it, he was serving a term of life without parole and
so “had nothing to lose by confessing.” (App. at 6.) The

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Court said that the Supreme Court’s ruling in Montgomery v.
Louisiana, 136 S. Ct. 718 (2016), that juveniles could not
constitutionally receive a life sentence (Parnell was a juvenile
when convicted) did not make the confession more reliable
because Parnell had not reaffirmed his confession after that
ruling.5 The Court also rejected the Hearst and Jones
affidavits out of hand, concluding that they were “nothing
more than highly suspect recantation evidence.” (App. at 4.)
In the Court’s view, the timing of the affidavits was
suspicious too, since they had been authored in 2014 but were
only presented years later.
Howell next turned to us for a certificate of
appealability and we granted it, limited to the issue of
“whether [he] ha[d] made a sufficient showing of innocence
to be entitled to relief based on the Supreme Court’s decision
in” McQuiggin “and, therefore, whether the District Court
was correct in its procedural ruling.” 6 (App. at 7.)
5 In Miller v. Alabama, 567 U.S. 460 (2012), the
Supreme Court held that sentencing juveniles to mandatory
life in prison without the possibility of parole violated the
Eighth Amendment’s prohibition against cruel and unusual
punishments. Id. at 479. The Court subsequently made that
ruling retroactive, and thus applicable to previously convicted
defendants such as Parnell, in Montgomery v. Louisiana, 136
S. Ct. 718 (2016).
6 We have required litigants to obtain a certificate of
appealability to appeal from all rulings in the context of Rule
60(b) motions in habeas actions, whether they are “true” Rule
60(b) motions or are unauthorized second or successive
habeas petitions. See Morris v. Horn, 187 F.3d 333, 339 (3d

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II. DISCUSSION7
The overarching question in this case is whether
Howell has made a sufficient showing of actual innocence to
gain relief under Rule 60(b)(6) – relief that would serve as a
gateway past the procedural default of his having untimely
filed his habeas petition, thus allowing the petition to be
considered. In Schlup v. Delo, 513 U.S. 298 (1995), the
Supreme Court established the analytical framework for
addressing such a question.8 The required showing is usually
Cir. 1999). We have also recognized that “the vitality of [the
holding in Morris] is undermined somewhat by the Supreme
Court’s decision in Harbison v. Bell,” see Wilson v. Sec’y Pa.
Dep’t of Corr., 782 F.3d 110, 115 (3d Cir. 2015), where the
Supreme Court stressed that 28 U.S.C. § 2253(c)(1)(A)
“governs final orders that dispose of the merits of a habeas
corpus proceeding,” 556 U.S. 180, 183 (2009). Nevertheless
we have declined “to revisit [the] decision in Morris,”
Wilson, 782 F.3d at 115, and the Supreme Court subsequently
assumed without deciding that a certificate of appealability is
required to appeal from a district court’s disposition of a
habeas petitioner’s Rule 60(b) motion, see Buck v. Davis, 137
S. Ct. 759, 772 n.* (2017). As Harbison, Wilson, and Buck
have not resolved this issue, Morris remains the law of this
Circuit.
7 The District Court had subject matter jurisdiction
pursuant to 28 U.S.C. §§ 2241 and 2254. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
8 Ordinarily, we review a denial of a Rule 60(b)(6)
motion for abuse of discretion. Satterfield, 872 F.3d at 158.

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discussed as having two steps: first, the petitioner must
present “new reliable evidence” of actual innocence,9 id. at
324; and then, second, that evidence must “persuade[] the
district court that … no juror, acting reasonably, would have
voted to find [the petitioner] guilty beyond a reasonable
doubt.” Satterfield, 872 F.3d at 163 (quoting McQuiggin, 569
U.S. at 386). If a petitioner meets that Schlup standard, relief
under Rule 60(b)(6) is warranted, and the habeas petition can
be considered on the merits despite a procedural default,
“unless the totality of equitable circumstances ultimately
weigh heavily in the other direction.” Id.
But “[w]e review de novo whether a petitioner’s evidence is
sufficient to satisfy Schlup.” Munchinski v. Wilson, 694 F.3d
308, 337 (3d Cir. 2012); see also Houck v. Stickman, 625
F.3d 88, 93 (3d Cir. 2010) (reviewing district court’s rulings
regarding actual innocence de novo because no evidentiary
hearing was conducted). That is consistent with the well-
settled rule that we have plenary review of the application of
legal standards to facts. See In re 15375 Mem’l Corp., 589
F.3d 605, 616 (3d Cir. 2009) (stating that an “application of
law to fact” is “subject to plenary review because it is,
essentially, a conclusion of law”).
9 “In this context, actual innocence refers to factual
innocence, not legal insufficiency.” Reeves v. Fayette SCI,
897 F.3d 154, 160 (3d Cir. 2018). The analysis is thus “not
limited to the existing record[,]” and consideration of “any
admissible evidence” is proper. Bousley v. United States, 523
U.S. 614, 624 (1998).

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As just noted, the first step under Schlup is the proffer
of “new reliable evidence” pertaining to the petitioner’s
claim. Schlup, 513 U.S. at 324. That step thus contains two
sub-parts: the evidence must be both “new” and “reliable.”
Neither party here disputes that Howell’s evidence is new.
The question is whether it is reliable, and the District Court
said no, it is not.
In Reeves v. Fayette SCI, 897 F.3d 154 (3d Cir.
2018), we explained that, “[a]s part of the reliability
assessment of the first step [of the analysis under Schlup], the
[district] court may consider how the timing of the
petitioner’s submission and the likely credibility of the
witnesses bear on the probable reliability of that evidence, as
well as the circumstances surrounding the evidence and any
supporting corroboration.” Id. at 161 (internal quotation
marks and alterations omitted). The District Court here,
however, did not take into account those or any other
considerations while assessing the reliability of Howell’s
evidence. Rather than undertaking an individualized analysis
of the proffered evidence, the Court dismissed the
recantations on a categorical basis. Specifically, it rejected
the Williams affidavit because “the general suspicion of
recantation testimony rendered [it] unreliable.” (App. at 4.)
It similarly dismissed the Hearst and Jones affidavits as
“nothing more than highly suspect recantation evidence[.]”
(App. at 6.) The Court went on to note two additional reasons
for questioning those latter affidavits – that they were made in
2014 but not presented to the court for “approximately four
years[,]” and that they were “nearly identical[.]” (App. at 6.)
The Court also discounted Parnell’s confession. As
before noted, Parnell wrote several letters from prison in 1999

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confessing to the murder of Allen. He later swore to his
confession in an affidavit. But the District Court concluded
that the confessions were unreliable because Parnell was
serving a life sentence and thus had nothing to lose by
confessing to an additional murder. It further determined that
the Supreme Court’s decision in Montgomery, holding that a
sentence of life without parole is unconstitutional if imposed
on juveniles, did not change that conclusion even though it
potentially rendered Parnell eligible for relief. That was so,
the Court reasoned, because Howell provided no evidence
that Parnell actually obtained relief under Montgomery and
because Parnell had not reaffirmed his confession after
Montgomery.
The District Court was quite right that “[c]ourts have
historically viewed recantation testimony with great
suspicion.” Landano v. Rafferty, 856 F.2d 569, 572 (3d Cir.
1988). As a general matter, a recantation in the absence of
corroborating evidence or circumstances will probably fall
short of the standard of reliability contemplated by Schlup.
But that does not mean that recantation evidence is to be
categorically rejected. On the contrary, “there are no
categorical limits on the types of evidence that can be
offered” under Schlup. Hyman v. Brown, 927 F.3d 639, 660
(2d Cir. 2019). Like any other form of evidence, recantations
should be analyzed on an individual and fact-specific basis,
taking into account the non-exclusive factors outlined in
Reeves.
In declaring the recantations here to be unreliable
simply because they are recantations, the District Court’s
Schlup analysis went astray. And the added reasons provided
for rejecting the Hearst and Jones affidavits – namely their

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late submission and similarity – also give cause for concern.
While it is true that four years elapsed between the execution
of the affidavits and their presentation to a federal court, and
true too that such a delay may cut against a finding of
reliability, Reeves, 897 F.3d at 161, Howell did present the
various affidavits to state courts in PCRA petitions shortly
after obtaining them. Moreover, Howell seeks relief based on
the 2017 change in law brought about by our decision in
Satterfield, which corrected the District Court’s
misunderstanding that McQuiggin could not constitute
extraordinary circumstances to permit relief under Rule
60(b)(6). Even armed with new recantation evidence, Howell
needed that course correction in the law to have a hope for
relief. Thus, the delay in presenting the evidence to a federal
court is not as suspicious as it might at first seem. Nor does
the “identical” nature of the Jones and Hearst affidavits
necessarily cut against their credibility, as the District Court
concluded. One plausible reason that the affidavits are so
similar is that they are both telling the truth.
The substance of the several affidavits is troubling
enough that an evidentiary hearing is warranted. Not only did
Jones and Hearst recant their testimony condemning Howell,
they also implicated Parnell – an alternative suspect who has
confessed to the crime under oath and who was convicted of
another shooting around the same time as Allen’s murder. 10
Williams’s recantation also obliquely implicates Parnell when
it says that she lied about Howell to protect Parnell from
prosecution for Allen’s murder.
10 Parnell’s associates murdered Workman to prevent
him from testifying against Parnell at Parnell’s murder trial.
State v. Lumumba, 601 A.2d 1178, 1179 (App. Div. 1992).

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We do not suggest that the available evidence is all in
Howell’s favor. There are aspects of Jones’s original trial
testimony that were corroborated. For example, she testified
that the person she saw fleeing wore a beige jacket and black
and white Adidas sneakers, and Howell had articles of
clothing matching that description. Yet allowing for a more
informed consideration of the competing versions of Jones’s
account, and the sworn statements given by other surviving
witnesses, is precisely why an evidentiary hearing should be
held. Evidence such as the Jones, Hearst, and Williams
affidavits, if credited, “undermine[s] the [trial] evidence
pointing to the identity of the [perpetrator] and the motive for
the [crime,]” and can thus “suffice to show actual innocence.”
Reeves, 897 F.3d at 161 (alterations in original) (quoting
Goldblum v. Klem, 510 F.3d 204, 233 (3Cir. 2007)). When
they are combined, their effect becomes more potent and the
need to assess them with care grows, particularly since
physical evidence in the case was practically nonexistent and
so much rides on the testimony of these witnesses.
Parnell’s confession is also obviously significant and,
as buttressed by the recantation of other witnesses, deserves
another look as well. That is especially so since Howell
argues that one of the reasons given by the District Court for
rejecting the confession appears to be mistaken. The Court
said Parnell was in prison for life anyway and thus had
nothing to lose by confessing, but Howell asserts that on
October 17, 2017, Parnell’s sentence was reduced to 33 years
to life and that Parnell was released from prison on
September 6, 2019. So the possibility that he did in fact
receive meaningful relief under Montgomery and does have
something to lose by confessing to an additional murder

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warrants additional exploration. It is nevertheless true, as the
District Court observed, that Parnell has not reaffirmed his
confession in the aftermath of Montgomery. That, however,
is a further reason to conduct an evidentiary hearing, rather
than a reason not to. Parnell should be brought in and placed
under oath again so that he can reaffirm his confession if he
chooses to, or can change his story once more.
In sum, Parnell’s confession corroborates the Jones,
Williams, and Hearst affidavits. And the multiple
recantations may themselves be mutually corroborating
evidence, with each one having the potential to bolster the
reliability of the others. On remand, the District Court should
evaluate the interlocking corroboration to determine whether
the evidence Howell presents is sufficiently reliable and
persuasive under Schlup for a gateway showing of actual
innocence. It should be helpful to hear the live testimony of
Hearst, Williams, Jones, and Parnell in order to judge their
credibility on the stand, rather than only through their
affidavits. Such a hearing would also give the parties the
opportunity to supplement the record as necessary, aiding the
District Court in its analysis. 11
11 Nothing we have said here is meant to suggest how
the Court should assess the reliability of the new evidence or
ultimately decide Howell’s Rule 60(b)(6) motion. The
foregoing discussion is provided simply to demonstrate that
not only is recantation evidence not categorically unreliable,
but, in this particular case, it has sufficient facial plausibility
to warrant an evidentiary hearing. We leave it to the District
Court in the first instance to determine whether Howell’s new
evidence is reliable, whether he has satisfied the second step

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III. CONCLUSION
For the foregoing reasons, we will vacate the order
denying Howell’s Rule 60(b)(6) motion and will remand to
the District Court for an evidentiary hearing on the reliability
of his new evidence.
of the Schlup analysis, and whether the totality of the
equitable circumstances weigh heavily against granting relief.

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