Frank Hubbard v. Steven Pinchak

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
No. 00-5150
FRANK HUBBARD,
Appellant
v.
STEVEN PINCHAK; THE ATTORNEY
GENERAL OF THE STATE OF NEW
JERSEY; PETER VERNIERO
On Appeal from the United States
District Court for the District of New
Jersey
(D.C. Civil No. 97-cv-03717)
District Judge: Hon. Jerome B. Simandle
Argued May 5, 2004
Before: SLOVITER and FUENTES,
Circuit Judges, and POLLAK, District
Judge*
(Filed: August 5, 2004)
Mary Gibbons (Argued)
Toms River, New Jersey 08757
Attorney for Appellant
Peter C. Harvey
Attorney General of New Jersey
Trenton, New Jersey 08625
Linda K. Danielson (Argued)
Deputy Attorney General
Of Counsel and on Brief
Division of Criminal Justice
Appellate Bureau
Trenton, New Jersey 08625
Attorneys for Appellees
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Frank M. Hubbard seeks
a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He procedurally defaulted
his claims in the state courts. He seeks to
overcome the procedural default by
asserting his “actual innocence,” Bousley
v. United States, 523 U.S. 614, 623
(1998); Schlup v. Delo, 513 U.S. 298, 327
(1995), a claim that the District Court
rejected. We must therefore examine the
scope and contours of the claim of actual
innocence as a gateway to consideration of
the merits of petitioner’s habeas claim
notwithstanding the procedural default.
* Hon. Louis H. Pollak, Senior
Judge, United States District Court for
the Eastern District of Pennsylvania,
sitting by designation.

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FACTS
On June 22, 1981 in Camden, New
Jersey, David O’Neal1 was killed by a
gunshot wound to the face. Thereafter, the
State of New Jersey indicted Hubbard on
six felony counts, including murder,
robbery, conspiracy to commit robbery,
and firearms violations. Hubbard pled not
guilty to all counts. Also charged as
defendants were John Monroe, who
entered a guilty plea in exchange for a
thirty-year sentence, and Stanley Banks,
who was a fugitive at the time of trial.
Monroe testified at trial to the
details of the crimes pursuant to a plea
agreement with the prosecutor. He stated
that he, Hubbard, and Banks met at his
residence where they discussed robbing
O’Neal, that he assumed Hubbard had a
gun because he observed a bulge in
Hubbard’s front, that Hubbard showed him
a gold watch to sell to O’Neal, and that, at
Hubbard’s direction, Banks drove to
O’Neal’s. When they arrived, Hubbard
handed O’Neal the gold watch, pulled his
revolver and, when O’Neal reached for his
own gun, Hubbard shot O’Neal in his face.
Hubbard and Banks returned to their
vehicle and Monroe ran home.
Lore lie Truluck , Mon roe’s
girlfriend, testified that she, Monroe,
Hubbard, and Banks drove to O’Neal’s
place of residence intending to rob him,
that the men went into the residence while
she remained in the vehicle and did not
witness anything related to their entry, but
that she saw Hubbard and Banks run back
to the vehicle, and that Hubbard instructed
someone to drive and wrapped the gun in
a towel. Truluck’s account was consistent
with Monroe’s subsequent testimony.
Gary Hammon, the lone eyewitness
who was not involved in the incident, also
testified. Hammon lived “[r]ight across
from” O’Neal and although he did not see
the shooting itself, he testified that there
were three perpetrators involved, all of
whom he saw conversing with each other,
and two of whom he saw knock on
O’Neal’s door. Hammon testified that all
the men were black, and that there was a
shorter man who was “[f]ive foot
something” and a taller man who was “six
foot something” or “six foot two.” Trial
Tr. at 14-15 (Apr. 22, 1982). Hammon
testified that when O’Neal opened the
door, one of the two men shot him. All
three men fled without entering O’Neal’s
residence. He did not get a good look at
any of their faces.
The jury found Hubbard guilty of
felony murder and robbery, and not guilty
of the handgun possession charges. On
July 6, 1982, the state court sentenced
Hubbard to life imprisonment with a 25-
year parole ineligibility on the felony
murder charge, and a 20-year concurrent
term on the robbery count.
1 The victim’s name appears
throughout the record as either “O’Neal”
or “O’Neil.” We will conform to the
District Court’s spelling and use
“O’Neal” herein.

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There was no testimony linking any
gun, putatively the murder weapon, to
Hubbard and no forensic evidence linking
him to the victim or the scene of the crime.
Hubbard had filed a Bill of Alibi
Particulars before the grand jury charged
him in which he stated he was in Atlantic
City, New Jersey on the night of the crime,
which took place in Camden, New Jersey.
PROCEDURAL HISTORY
This matter has traveled up and
down the state courts of New Jersey, and it
is unnecessary to recount the full details
here. We will limit the facts to the
proceedings necessary to decide this
appeal from the District Court’s order
denying Hubbard’s petition for a writ of
habeas corpus. Hubbard filed two separate
petitions for post-conviction relief (PCR)
in the state courts – the first in August
1988, and the second in May 1994. Both
were dismissed as untimely, and therefore
were procedurally barred by New Jersey
state law. Although the Appellate
Division of the New Jersey Superior Court
agreed that the claims raised in Hubbard’s
second PCR petition were time barred, it
nevertheless stated that it “carefully
reviewed each of the seven [claims] and
[is] satisfied that there is no basis to grant
[Hubbard] relief.” App.II at 209.
On July 28, 1997, Hubbard filed a
pro se petition for habeas corpus relief in
the District Court, raising seven claims
that he had set forth in his second PCR
petition. They are:
(1) that the indictment
against him was based on
the perjurious testimony of
the arresting detectiv e
before the grand jury; (2)
that his sentence does not
comply with New Jersey
sentencing criteria; (3) that
the trial court improperly
deprived him of his right to
cross-examine one of the
state’s witnesses; (4) that
the police violated his Fifth
Amendment right to counsel
by ignoring his request for
an attorney during custodial
interrogation; (5) that the
trial court gave a prejudicial
s u p p l e m e n t a l j u r y
instruction on the law of
accomplices; (6) that the
trial court impro perly
a d m i t t e d c e r t a i n
photographs into evidence;
and (7) that his trial counsel
p r o v i d e d i n e f f e c t i v e
assistance.
App.I at 3.
The District Court dismissed two of
the grounds raised by Hubbard for
substantive reasons and they are not at
issue in this appeal. The District Court
denied the requested writ of habeas corpus
on the five other claims because of
Hubbard’s procedural default, stating,
“Petitioner has not argued that he is
innocent of the crime for which the jury
convicted him,” App.I at 10, and

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concluded, “Not having shown cause for
his procedural default below or actual
innocence of the crimes for which he was
convicted, Grounds One, Three, Four, Six
and Seven of petitioner’s habeas corpus
petition are not cognizable in this court.”
App.I at 11.
Hubbard then filed a pro se motion
of reconsideration of the District Court’s
denial of habeas relief. In response to this
motion, the District Court held that
although the motion for reconsideration
was timely filed,
[Petitioner] does not raise
any factual or legal point
overlooked by this Court.
Petitioner challenges this
Court’s statement that he
d id n o t r a i se a c t u al
innocence as an issue in his
petition, but offers no
evidence that he did raise
such an issue without
procedural default, and also
offers no evidence that he is
actually innocent for the
charges he is presently
incarcerated for. Mr.
Hubbard’s petition was
denied on [the five relevant
grounds] due to procedural
default, so even if he had
demonstrated some issue of
actual innocence here, it
would not have changed this
Court’s earlier denial of his
application.
App.I at 26 (emphasis added).
We issued a certificate of
appealability on the issue “whether the
District C ou rt p ro pe rly r ejecte d
Appellant’s attempt to overcome the
procedural default of claims #1, #3, #4, #6
and #7 by asserting his ‘actual
innocence.’” Appellant’s Br. at 2. We
have jurisdiction to review the denial of
the habeas writ under 28 U.S.C. §§ 1291 &
2253.
DISCUSSION
I.
The State contends that Hubbard’s
allegation of actual innocence is not
properly before this court because it
appeared “[f]or the first time in his motion
for reconsideration of the [D]istrict
[C]ourt’s opinion.” Appellee’s Br. at 15.2
H u b b a r d ’ s m o t i o n f o r
reconsideration as well as his habeas
petition were filed pro se. We have
previously stated that a petitioner’s
2 At oral argument the State
conceded, “The whole issue of timing is
an academic issue because in the first
instance, there is no viable claim of
actual innocence,” and that if such a
viable claim were made even in a motion
for reconsideration, in the interest of
justice the District Court would have had
to address it. Tape of Oral Argument
(May 5, 2004).

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failure to specifically
articulate his claim as one of
“actual innocence” should
not preclude review of the
merits of his claim. [The
petitioner] clearly argued
that the government could
not satisfy the factual
prerequisites of a . . .
conviction. When properly
viewed through the more
forgiving lens used to
construe pro se habeas
petitions, we conclude that
the claim of “actual
innocence” was properly
before the District Court.
United States v. Garth, 188 F.3d 99, 108
(3d Cir. 1999).
This case presents a similar
situation. Among the grounds Hubbard
raised in his habeas petition were
“ineffective trial counsel” who “did
nothing in [his] defense” and that the
“whole trial was a mockery.” App.II at 5.
In response to the State’s claim of the
procedural bars, Hubbard stated that
“[f]ederal review is necessary to prevent a
fundamental miscarriage of justice,” and
that there was “a reasonable probability”
that but for counsel’s unprofessional errors
“the results of the proceedings would have
been different.” Supp. App. at 125, 127.
When viewed through a “more
forgiving lens” that does not require
petitioners to “specifically articulate”
claims of actual innocence, Garth, 188
F.3d at 108, this language in the pro se
petition and traverse was sufficient to
preserve Hubbard’s actual innocence
claim. In fact, he pled not guilty, and he
filed a Bill of Alibi Particulars placing him
in Atlantic City at the moment of the
crime, which occurred in Camden. We
therefore reject the State’s argument that
Hubbard’s claim of actual innocence is not
properly before us.
II.
As the Supreme Court reiterated
this past term, a federal court will
ordinarily not entertain a procedurally
defaulted constitutional claim in a petition
for habeas corpus “[o]ut of respect for
fin ality, comity, and the orderly
administration of justice.” Dretke v.
Haley, 124 S. Ct. 1847, 1849 (2004). This
is a reflection of the rule that “federal
courts will not disturb state court
judgments based on adequate and
independent state law pro cedura l
grounds.” Id. at 1852; see Wainwright v.
Sykes, 433 U.S. 72, 81 (1977). The
principal exception to this general rule
precluding federal review of habeas claims
that have been procedurally defaulted is
for petitioners who can show “cause and
prejudice” for the procedural default or
that a “miscarriage of justice” will occur
absent review. Cristin v. Brennan, 281
F.3d 404, 414 (3d Cir. 2002). An
allegation of “actual innocence,” if
credible, is one such “miscarriage of
justice” that enables courts to hear the
merits of the habeas claims.

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The petitioner in Schlup v. Delo,
513 U.S. 298 (1995), the leading case on
the “actual innocence” doctrine, had made
both an assertion of constitutional error at
trial and a claim of innocence. The
Supreme Court stated that because of the
assertion of constitutional error, his
conviction was not “entitled to the same
degree of respect as one. . . that is the
product of an error free trial.” Id. at 316.
The Court continued,
Without any new evidence
of innocence, even the
existence of a concededly
meritorious constitutional
violation is not in itself
sufficient to establish a
miscarriage of justice that
would allow a habeas court
to reach the merits of a
barred claim. However, if a
petitioner . . . presents
evidence of innocence so
strong that a court cannot
have confidence in the
outcome of the trial unless
the court is also satisfied
that the trial was free of
nonharmless constitutional
error, the petitioner should
be allowed to pass through
the gateway and argue the
merits of his underlying
claims.
Id. Hubbard relies on this precedent as the
basis for us to “pass through the gateway”
to the merits of his habeas claims. As we
explained in our decision in Cristin, 281
F.3d at 412, a “fundamental miscarriage of
justice” will remove the bar on claims that
have been procedurally defaulted, and
actual innocence will show such a
fundamental miscarriage of justice.
Because the cause and prejudice
exception to the procedural bar for
defaulted claims is itself based on
equitable considerations, the Supreme
Court has made clear that the actual
innocence exception to the unreviewability
of procedurally defaulted claims should be
applied only in the rarest of cases. See
Dretke, 124 S. Ct. at 1852. As it explained
in Dretke:
[I]t is precisely because the
various exceptions to the
procedural default doctrine
are judge-made rules that
courts as their stewards
must exercise restraint,
adding to or expanding them
only when necessary. To
hold otherwise would be to
license district courts to
riddle the cause and
prejudice standard with ad
hoc exceptions whenever
they perceive an error to be
“clear” or departure from
the rules expedient. Such an
approach, not the rule of
restraint adopted here,
would have the unhappy
effect of prolonging the
pendency of federal habeas
applications as each new
exception is tested in the

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courts of appeals.
Id. at 1853.
In Dretke, the Court, applying the
restraint that it cautioned for the lower
courts, declined to decide the issue that
had divided the courts of appeals –
whether to extend the actual innocence
exception to procedural default of
cons titut i o n a l claim s cha llengin g
noncapital sentencing error. Instead, it
avoided the issue by holding that “a
federal court faced with allegations of
actual innocence, whether of the sentence
or of the crime charged, must first address
all nondefaulted claims for comparable
relief and other grounds for cause to
excuse the procedural default.” Id. at
1852. We see no ground for avoidance
that was available to the District Court in
this case.3 It therefore met head on, and
rejected, Hubbard’s allegation of actual
innocence as a vehicle to open the gateway
3 The Appellate Division of the
New Jersey Superior Court stated that in
addition to Hubbard’s PCR claims being
procedurally barred, they provided no
basis for relief. Hubbard’s counsel urges
us to consider this ruling to be an
“alternative ruling” that we can review
despite the procedural default ruling.
Appellant’s Br. at 15 n.11. At oral
argument, Hubbard’s counsel argued that
the District Court in this case failed first
to consider alternative grounds for relief
urged by the respondent, grounds that
might obviate any need to reach the
actual innocence question, citing Dretke,
124 S. Ct. at 1849.
There are several reasons the state
court’s “alternative” ruling does not
obviate the need to reach the actual
innocence question. First, a state
procedural bar functions as an adequate
and independent state ground which
precludes federal review. Harris v. Reed,
489 U.S. 255, 264 n.10 (1989) (“a state
court need not fear reaching the merits of
a federal claim in an alternative holding,”
as “[b]y its very definition, the adequate
and independent state ground doctrine
requires the federal court to honor a state
holding that is a sufficient basis for the
state court’s judgment, even when the
state court also relies on federal law.”).
Second, in Dretke the alternative habeas
claim the Supreme Court referred to was
an ineffective assistance of counsel claim
that had not been procedurally barred.
Should the petitioner in Dretke have
prevailed on this habeas claim, the actual
innocence question regarding the
procedurally defaulted claims could have
been avoided. In the instant case, all
habeas claims on appeal have been
procedurally defaulted. Third, Hubbard
acknowledges that “the issue of
procedural default, vel non, lies outside
the scope of the certificate of
appealability issued here.” Appellant’s
Br. at 15 n.11. For these reasons, we
decline to view the state court’s comment
regarding the merits as a basis on which
we can avoid the actual innocence
question.

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to review of his procedurally defaulted
claims. We conclude that we are required
to do the same.4
III.
A petitioner who is asserting his
“actual innocence of the underlying crime
. . . must show ‘it is more likely than not
that no reasonable juror would have
convicted him in light of the new
evidence’ presented in his habeas
petition.” Calderon v. Thompson, 523
U.S. 538, 559 (1998) (quoting Schlup, 513
U.S. at 327). In Schlup, the Supreme
Court stated that claims of actual
innocence are rarely successful because
the necessary evidence is unavailable in
the vast majority of cases. 513 U.S. at
324. The Court explained that petitioner
must support his allegations of
constitutional error with
new reliable evidence –
whether it be exculpatory
s c i e n t i f i c e v i d e n c e ,
trustworthy eyewitness
accounts, or critical physical
evidence – that was not
presented at trial.
Id. We must therefore consider both
whether Hubbard has presented “new
reliable evidence . . . not presented at
trial,” and, if so, whether it is more likely
than not that no reasonable juror would
have convicted him in light of the new
evidence.
The only evidence that Hubbard
asserts is “new” is what he terms as “his
own sworn testimony.” Appellant’s Br. at
18. Hubbard did include in his Bill of
Alibi Particulars, which he filed as a
matter of record before indictment, a
statement that places him too far from the
city where the crime was committed to
have participated in it. However, Hubbard
did not give this testimony during the trial
even though he was available to do so.
Counsel does not suggest that this piece of
evidence was excluded from the record
before the jury that convicted Hubbard. A
defendant’s own late-proffered testimony
is not “new” because it was available at
trial. Hubbard merely chose not to present
it to the jury. That choice does not open
the gateway.
In Glass v. Vaughn, 65 F.3d 13 (3d
Cir. 1995), petitioner, who was convicted
of first degree murder notwithstanding his
alibi that he was not even at the scene
when the killing occurred, sought to
overcome his procedural default of his
post traumatic stress disorder by claiming
actual innocence. Citing Schlup, we
rejected the actual innocence claim,
concluding that petitioner had not shown
that it is more likely than not that no
rational juror would have voted to convict
him in light of the evidence that he went to
the murder scene armed and had earlier
behaved violently to the victim.
4 We exercise plenary review over
the District Court’s legal conclusion and
review its findings of fact for clear error.
Cristin, 281 F.3d at 409.

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Hubbard’s proffered testimony fails
to change or clarify the facts presented at
trial. At trial the strongest evidence against
Hubbard was the testimony of Monroe and
Truluck, his accomplices who were there
when O’Neal was shot, and the evidence
of Hammon, albeit not specific as to
Hubbard’s identity. Mr. Wilson,
Hubbard’s uncle, testified as a State
witness that Hubbard called him three
weeks after the incident to tell him he
“was involved in a murder trial that he
didn’t commit.” Trial Tr. at 83 (Apr. 28,
1982). Hubbard’s trial counsel informed
the trial court that he would not call “Mr.
Wilson as a witness to support
[Hubbard’s] alibi defense.” Supp. App. at
11.
Hubbard called no witnesses.
Hubbard’s defense wa s prese nted
primarily by his trial counsel’s summation
to the jury, which stated, “Our whole
position throughout this case is we weren’t
there, weren’t there when it happened so
as a result we can’t be guilty.” Trial Tr. at
134 (Apr. 29, 1982). He referred to
several other pieces of evidence from
which the jury could have inferred that
Hubbard was not at the scene of the crime,
such as Hubbard’s denial of the indictment
and any involvement in the crime, the
height difference between Hubbard (who
is 5’9”) and the perpetrator who Hammon
testified was 6’ or 6’2”, the lack of
fingerprints, and the unexamined handprint
on the storm door of O’Neal’s house. In a
sworn statement supporting his habeas
petition, Hubbard essentially alleges the
same facts, raising questions such as
“[W]hat part I took in this crime? Was I at
the scene, around the corner? Was I in
another city?” App.II at 9. As this
information is not new, it cannot qualify as
the kind of new evidence contemplated by
the Supreme Court, such as “exculpatory
scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence.”
Schlup, 513 U.S. at 324.
Hubbard’s counsel attempts to
show Hubbard’s claim of actual innocence
is reliable because “[a]part from the
testimony of Monroe and Truluck –
rejected by the jury – there is no evidence
of his guilt of the murder charge. Given
the absence of any evidence in support of
his guilt under a felony-murder theory, the
record is barren of any inconsistency with
the actual innocence claim that he now
timely puts forward.” Appellant’s Br. at
18. We find this argument unpersuasive.
There is no basis for Hubbard’s
statement that the jury rejected the
testimony of Monroe and Truluck.
Although the jury acquitted Hubbard of the
weapons charge – testified to by Monroe
and Truluck – it convicted him on the
robbery and murder charges, which were
also testified to by Monroe and Truluck.
To the extent that the jury conviction
suggests anything, it suggests that it
believed part and disbelieved part of their
testimony. However, it is wholly
inappropriate for this court to glean from
the bare fact of a partial conviction that
certain witnesses’ testimony is not to be
believed. Further, the lack of forensic
evidence linking Hubbard to the crime

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does not bolster the credibility of
Hubbard’s claim of innocence because it
was this same record that the jury
reviewed en route to convicting him.
The “new” evidence Hubbard puts
forth in alleging actual innocence is
nothing more than a repackaging of the
record as presented at trial. Therefore he
cannot logically meet the more likely than
not “that no rational juror would have
voted to convict” standard. See Glass, 65
F.3d at 17. To allow Hubbard’s own
testimony that he proffers (supported by no
new evidence) to open the gateway to
federal review of claims that have been
procedurally defaulted under state law
would set the bar for “actual innocence”
claimants so low that virtually every such
claimant would pass through it. This
would stand in stark contrast to the caveat
of the Supreme Court to exercise restraint
and require a “strong showing of actual
innocence,” and its observation that
“[g]iven the rarity of such evidence, in
virtually every case, the allegation of
actual innocence has been summarily
rejected.” Calderon, 523 U.S. at 558-59
(internal quotation marks and citation
omitted). We thus conclude that
Hubbard’s allegation of actual innocence
is insufficient to allow review of his
defaulted claims.
Having so decided, we agree with
the District Court’s January 31, 2000
opinion that “[n]ot having shown cause for
his procedural default below or actual
innocence of the crimes for which he was
convicted, [the procedurally defaulted
claims] of petitioner’s habeas corpus
petition are not cognizable in this court.”
App.I at 11.5
5 Some of the language in the
District Court’s June 14, 2002 opinion
regarding Hubbard’s motion for
reconsideration is troubling. The Court
stated:
Petitioner challenges this
Court’s statement that he
did not raise actual
innocence as an issue in his
petition, but offers no
evidence that he did raise
such an issue without
procedural default, and
also offers no evidence that
he is actually innocent for
the charges he is presently
incarcerated for. Mr.
Hubbard’s petition was
denied on [some of his
claims] due to procedural
default, so even if he had
demonstrated some issue of
actual innocence here, it
would not have changed
this Court’s earlier denial
of his application.
App.I at 26. This seems to be a clear
misapprehension of the law, although
during oral argument counsel for the
state urged this court to view it as a
“poor choice of words.” If Hubbard had
demonstrated some “issue of actual
innocence,” the District Court would

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CONCLUSION
For the reasons set forth above, we
will affirm the decision of the District
Court that it was foreclosed from
reviewing the procedurally defaulted
claims on the ground that the allegation of
actual innocence is insufficiently strong to
overcome the “State’s interests in actual
finality . . . .” Calderon, 523 U.S. at 557.
have been required to consider
Hubbard’s habeas application differently.
However, this statement does not detract
from the District Court’s denial of the
habeas petition on the ground that there
was no “coherent argument as to his
actual innocence.” App.I at 11. Further,
the District Court gave no indication in
its opinion denying habeas that it
misapprehended the “actual innocence”
law, and in fact the Court discussed the
gateway correctly at some length. App.I
at 8-11.

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