Dowling v. Wetzel et al

OCR transcription for search; preserved printed pages are authoritative

Case 3:15-cv-00220-JKM-KS Document 84 Filed 02/26/26 Page1of 28

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 7

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KEVIN BRIAN DOWLING, : No. 3:15-CV-0022 _ @
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(Judge Munley) & zo z

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JOHN E. WETZEL, et al., 2 Zz

Respondents
MEMORANDUM

Presently before the Court is Petitioner Kevin Dowling’s motion for
transfer of evidence. (Doc. 59). In his motion, Petitioner requests that rope
and fiber evidence be transferred from the York County Court of Common
Pleas and the West Manchester Police Department to Microtrace LLC to
allow his retained expert to “accurately determine [its] composition.” Id. at
4. For the reasons that follow, the Court will GRANT Petitioner's motion

and CERTIFY its Order for interlocutory appeal.

I. Background

Petitioner Kevin Dowling is a state prisoner convicted in April 1998 of
robbery, criminal attempt to commit rape, and indecent assault. Petitioner
was also separately sentenced to death by second trial in November 1998

for murdering the victim. Com. v. Dowling, No. 744 MDA 2013, 2014 WL

10915493, at *1 (Pa. Super. Ct. July 9, 2014). The Pennsylvania Superior

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Court affirmed Petitioner's noncapital convictions on July 1, 1999. Com. v.
Dowling, 742 A.2d 202 (Pa. Super. Ct. 1999). The Pennsylvania Supreme
Court affirmed Petitioner's capital conviction on direct appeal. Dowling,
2014 WL 10915493, at *1. Before affirming, however, the Supreme Court
remanded Petitioner's capital case to the trial court on July 10, 2001, to
permit an evidentiary hearing on Petitioner's allegations of ineffective
assistance of counsel. Id: (Doc. 81-3). On November 9, 2001, Petitioner
filed a pro se PCRA petition in his noncapital case, in which, as in his
capital case, he asserted ineffective assistance of counsel claims. See
Dowling, 2014 WL 10915493, at *1.

In August 2002, the trial court held a joint evidentiary hearing on all of
Petitioner’s ineffective assistance of counsel claims. Id. Notably, however,
it did not consolidate his two cases. Id. On April 2, 2004, the trial court
issued an opinion in which it found Petitioner’s ineffective assistance of
counsel claims—both those alleged in his capital direct appeal and in his
noncapital PCRA petition—to lack merit. (Doc. 65-1, at 365-99). It then
issued a Pennsylvania R.A.P. 1925(a) opinion in Petitioner’s capital appeal
in which it “incorporate[d] herein by reference” its opinion “finding failure to

establish ineffective assistance of counsel.” (Doc. 80-3). The trial court did

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not, however, enter a final order denying relief in Petitioner’s noncapital

PCRA case. Com. v. Dowling, 883 A.2d 570, 575 n.4 (Pa. 2005).

On September 29, 2005, the Pennsylvania Supreme Court affirmed
Petitioner’s capital conviction and death sentence. Id. at 579. In its
opinion, the Supreme Court explained that Petitioner had improperly
asserted certain claims on capital appeal related solely to his noncapital
conviction. Id. at 575. In denying those claims, the Supreme Court
indicated that it had examined the noncapital case record and “discovered
that the record did not contain any clear disposition of [Petitioner's] PCRA
petition, much less an order definitively disposing of that petition.” Id. at
575 n.4. The Supreme Court consequently entered a per curiam order
directing the trial court to “enter a final order disposing of [the] petition in
the [noncapital] case so that [Petitioner] has the opportunity to appeal the
disposition to the Superior Court.” Id; (Doc. 80-1).

But the trial court did not enter a final order or otherwise immediately
dispose of Petitioner's PCRA case. It instead permitted the Federal
Community Defender Office for the Eastern District of Pennsylvania to
enter an appearance in February 2006 and then granted Petitioner an

extension of time to file an Amended Petition. (Doc. 65-1, at 628-29; Doc.

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78-1). Petitioner filed his Amended Petition approximately sixteen months
after the Supreme Court entered its per curiam order. (Doc. 78-2).

In his Amended Petition, Petitioner presented multiple claims not
included in his original petition, including claims that rope and fiber
evidence found in his vehicle were insufficiently challenged at trial because
of prosecutorial misconduct and ineffective assistance of counsel. (See
Doc. 78-2, at 47-52, 102-108). “Thereafter, over a six-year period,

- [Petitioner] filed a plethora of motions, including motions for discovery,
recusal, and mandamus, and the case was reassigned to two different
judges.” Dowling, 2014 WL 10915493, at *2. Relevant to the present
motion, Petitioner moved the trial court on August 5, 2008, to permit him to
engage in an array of discovery related to “counsel’s failure to challenge
the unreliable forensic [rope and fiber] evidence.” (Doc. 65-1, at 667-69).
The trial court summarily denied Petitioner's request on January 19, 2010.
Id. at 680-81.

After years of additional litigation, Petitioner filed a motion to recuse
the entire York County Court of Common Pleas bench. (Doc. 78-5). On
August 31, 2012, the Supreme Court reassigned Petitioner’s noncapital

PCRA case to the Honorable Robert J. Eby. (Doc. 78-16). After assuming

Petitioner's PCRA case, Judge Eby ordered the parties to provide a

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summary of “procedural issues requiring the attention of the Court, with a
suggested method of resolution for those issuesJ.]” (Doc. 78-17).

In its summary, the Commonwealth argued that the Supreme Court's
2005 per curiam order required the trial court to view Petitioner’s Amended
Petition not as an amendment to his original petition but instead as an
improper serial petition over which it lacked jurisdiction. (See Doc. 78-20,
at 11-16). Judge Eby agreed with the Commonwealth, dismissed the
Amended Petition, and deemed moot “all PCRA Petitions and related filings
docketed with this Court after September 29, 2005[.]” (Doc. 78-22, at 5).

The Superior Court affirmed Judge Eby’s dismissal on appeal. Com.
v. Dowling, 2014 WL 10915493 at *3. The Superior Court concluded that
the Supreme Court’s per curiam order constituted a “directive to the PCRA
court to enter an order disposing of the petition,” which “cannot be
construed to any extent as permission for [Petitioner] to start filing new
motions and petitions.” Jd. For this reason, it determined that Petitioner's
“oost-2005 filings [were] untimely serial PCRA petitions over which the trial
court had no jurisdiction.” Id. The Supreme Court denied Petitioner's
petition for allowance of an appeal on January 21, 2015. Com. v. Dowling,

108 A.3d 34 (Pa. 2015).

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On January 26, 2015, Petitioner filed a federal petition for writ of
habeas corpus. (Doc. 1). Therein, Petitioner included Claims II.A and V.B,
which substantively mirror his relevant state court ineffective assistance of
counsel and prosecutorial misconduct claims. (See id. at 35-36, 92—114).
On August 21, 2015, Petitioner filed a motion for federal discovery. (Doc.
20). Respondents opposed Petitioner's motion and asserted that most of
his claims were procedurally defaulted. (Doc. 27 at 5). On April 11, 2016,
the Court granted Petitioner’s motion in part, including his request for
discovery related to Claims II.A and V.B. (Doc. 37, at 5-7).

On July 15, 2025, Petitioner filed the motion to transfer evidence
presently before the Court. (Doc. 59). In his motion, Petitioner contends
that, although his expert examined “rope and cordage slides and
paperfolds in the custody of the West Manchester Police Department”
onsite, the examination was rendered insufficient by “less-than-optimal
conditions in the room where the inspection took place, including the lack of
sufficient lighting and risk of contamination of the evidence due to dust and
debris.” Id. at 4. Petitioner argues that, for his expert to “properly advise
counsel about the validity of the state’s expert testimony at trial,” the
evidence must be transferred to Microtrace LLC’s laboratory for forensic

examination. Id.

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On July 29, 2025, the Court ordered the parties to brief whether the

rope and fiber evidence Petitioner seeks to further develop can “be legally

considered” in his case. (Doc. 61, at 6) (citing Shoop v. Twyford, 596 U.S.
811, 820 (2022)). In his briefing, Petitioner contends that the doctrine of
procedural default does not provide a bar to the Court’s consideration of
the rope and fiber evidence he seeks to develop “because the jurisdictional
bar the state court invoked is not adequate as a matter of federal law” and
because “he did not fail to develop the factual basis” of his claims in state
court. (Doc. 65, at 11-20) (quoting 28 U.S.C. § 2254(e)(2)).

Respondents maintain that Petitioner's claims are procedurally
defaulted because his Amended Petition was dismissed as an improper
serial PCRA petition and “courts have routinely held that Pennsylvania’s
statute of limitations for PCRA petitions is an adequate and independent
state procedural rule.” (Doc. 71, at 11) (citation omitted). Respondents
also contend that Petitioner failed to develop the factual basis of his claims

in state court. (See id. at 15-17).

ll. Discussion

Because a federal court “‘may never needlessly prolong a habeas
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case, particularly given the need to promote the finality of state

i

convictions,” it must “before facilitating the development of new evidence,

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determine that it could be legally considered in the prisoner’s case.”
Twyford, 596 U.S. at 820 (citation omitted). For the rope and fiber
evidence Petitioner seeks to develop to be deemed admissible and
therefore eligible for legal consideration in his federal habeas case,
Petitioner must overcome three legal barriers.

First, Petitioner must demonstrate that Claims II.A and V.B are not
barred from federal review by the doctrine of procedural default. Second,
Petitioner must demonstrate that the evidence is admissible under 28
U.S.C. § 2254(e)(2). Third, Petitioner must demonstrate good cause for
discovery as required by Rule 6(a) of the Rules Governing Section 2254
Cases in the United States District Courts.

A. The doctrine of procedural default does not bar federal review
of Claims II.A and V.B.

To demonstrate that the rope and fiber evidence he seeks to develop
in support of Claims II.A and V.B may be legally considered on federal
habeas review, Petitioner must first demonstrate that those claims were
fairly presented to the state court and are not precluded by the doctrine of
procedural default. Twyford, 596 U.S. at 820.

In most circumstances, a federal district court may not consider the

merits of a petitioner’s habeas claim unless he has “exhausted the

remedies available” in state court. See 28 U.S.C. § 2254(b)(1)(A);
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O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “The exhaustion

requirement is satisfied only if the petitioner can show that he fairly
presented the federal claim at each level of the established state-court

system for review.” Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004).

To “fairly present” a claim for exhaustion purposes, the petitioner must
advance “a federal claim’s factual and legal substance to the state courts in
a manner that puts them on notice that a federal claim is being asserted.”

Bennett v. Superintendent Graterford SCI, 886 F.3d 268, 280 (3d Cir. 2018)

(quoting McCandless v. Vaughn, 172 F.3d 255, 261 (3d. Cir. 1999)).

Where a petitioner has fairly presented a federal claim but a “state
court refuses to hear [the claim] because of a violation of state procedural
rules, a federal habeas court is barred by the procedural default doctrine
from considering the claim[], unless the habeas petitioner can show ‘cause’

for the default and ‘prejudice’ attributable thereto.” Johnson v. Pinchak,

386 F.3d 551, 556 (3d. Cir. 2004) (citations omitted). “Any procedural
default, however, must rest on ‘adequate and independent’ state law
grounds.” Id.

As for the independency requirement, “[a] state procedural ground
will not bar federal habeas relief if the state law ground is so ‘interwoven

with federal law’ that it cannot be said to be independent of the merits of a

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petitioner's federal claims.” Id. (citing Coleman v. Thompson, 501 U.S.

722, 801 (1991). As for the adequacy requirement, it “is intended both to
ensure that state courts do not insulate disfavored claims from federal
review, ahd to ensure that federal habeas review is not barred unless
vetitioners have fair notice of the steps they must take to avoid default.”

Campbell v. Burris, 515 F.3d 172, 179 (3d. Cir. 2008). Whether a state

court’s procedural ruling is adequate to bar federal review is “itself a

question of federal law.” Cruz v. Arizona, 598 U.S. 17, 26 (quoting Beard v.

Kindler, 558 U.S. 53, 60 (2009)).

“Ordinarily, a violation of a state procedural rule that is ‘firmly
established and regularly followed’. . . will be adequate to foreclose review
of a federal claim.” Id. (citation omitted). “Nevertheless, in ‘exceptional
cases,’ a ‘generally sound rule’ may be applied in a way that ‘renders the
state ground inadequate to stop consideration of a federal question.” Id.
(citation omitted) In “the rarest of situations,” the denial of a claim in state
court may be based on “an unforeseeable and unsupported state-court
decision on a question of state procedure” that does not preclude review.
Id. (citation omitted). When a state court forecloses relief based ona
procedural ruling that is “unforeseeable,” federal review is not barred

because ‘[nJovelty in procedural requirements cannot be permitted to

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thwart review. . . applied for by those who, in justified reliance upon prior
decisions, seek vindication in state courts of their federal constitutional
rights.” Id. (citation omitted).

Here, Petitioner easily satisfies the fair presentation requirement.
Petitioner argued in his state court Amended Petition that the
Commonwealth engaged in prosecutorial misconduct during its closing
argument by lying “about the forensic evidence that had been presented,
implying that the rope in Petitioner’s car and the fibers found on it were
‘exactly the same’ as the rope and fibers that had been used to tie up [the
victim] in the gallery, when the actual testimony confirmed that the ropes
and fibers were merely consistent with one another.” (Doc. 78-2, at 51—
52) (emphasis removed). He also alleged that trial counsel ineffectively
challenged the Commonwealth’s rope and fiber evidence. Id. at 102—03.
Petitioner reasserted these same arguments on appeal and now presents
parallel arguments in his federal petition. (See Doc. 1, at 35-36, 99-101;
Doc. 19-1 at 74, 104-07).

Whether Petitioner's claims are barred by the procedural default
doctrine presents a more difficult question. Respondents contend that
Petitioner’s claims are barred from federal review because, by affirming the

PCRA court’s dismissal of those claims, “the state court relied on one of the

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most recognized and followed procedural bars: lack of jurisdiction to
address an untimely PCRA petition.” (Doc. 71, at 8). According to
Respondents, once “the Supreme Court directed the PCRA court to
perform the ministerial act of formally denying [Petitioner's] PCRA petition,”
“the PCRA court was restricted to entering a final order,” which rendered
the six-years of litigation that followed post-Supreme Court per curiam
order jurisdictionally invalid. Id. at 10.

Because the Supreme Court’s order stripped the PCRA court of its
ability to act in any way other than entering a final order denying relief,
Respondents argue that the Superior Court accurately determined based
on an independent and adequate interpretation of state procedural law that
Petitioner's Amended Petition constituted an untimely serial petition. See
id. at 11-13 (collecting cases in which the PCRA statute-of-limitations has
been held an independent and adequate ground upon which habeas relief
may be denied).

In contrast, Petitioner argues that the Superior Court’s procedural
ruling is inadequate and does not preclude federal review of his claims. He
contends that because his PCRA petition “was pending up until it was
formally dismissed by Judge Eby’s final order of March 28, 2013{,]” the

PCRA court properly allowed him to amend his petition and relate his filing

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back to the timing of his original petition. (See Doc. 65, at 12-14). He
argues ‘“[t]he state court’s interpretation of its own rules (to decide that it
lacked jurisdiction to permit any amendment of Petitioner’s timely, pending,
initial PCRA petition before issuing a final order) was novel, unforeseeable,
and unsupported by those very rules.” (Doc. 65, at 12).

The Court agrees with Petitioner. The PCRA requires that a
petitioner file his PCRA petition “within one year of the date the judgment
becomes final” or else be time-barred from doing so. 42 PA. CONS STAT.

§ 9545(b). The PCRA’s “timeliness requirements are mandatory and
jurisdictional in nature,” which means that “no court may properly disregard
or alter them in order to reach the merits of the claims raised in a PCRA

petition that is filed in an untimely manner.” Com. v. Murray, 753 A.2d 201,

203 (Pa. 2000).

But Pennsylvania Rule of Criminal Procedure 905(A) runs parallel to
the PCRA’s timeliness requirement. Rule 905(A) vests trial courts with the
“discretion to permit the amendment of a pending, timely-filed post-
conviction petition” and mandates amendment be “freely allowed to achieve

substantial justice.” Com. v. Crispell, 193 A.3d 919, 929 (Pa. Super. Ct.

2018) (quoting Com. v. Flanagan, 854 A.2d 489, 499-500 (Pa. 2004)); Pa.

R. Crim. P. 905(A). To determine whether a trial court may permit

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amendment under Rule 905(A), Pennsylvania courts examine whether an

order has been entered in the case “that ends the litigation or disposes of

the entire case.” Com. v. Harper, 890 A.2d 1078, 1081 (Pa. Super. Ct.
2006). Before a final order has been entered, the trial court must “treat the
subsequent petition for post-conviction relief as an amendment to the first

timely filed petition, even if there is substantial time between the two

filings.” Com. v. Gamble, No. 2944 EDA 2019, 2012 WL 2395949, at *4

(Pa. Super. Ct. June 8, 2021).

Only once a trial court enters a final order disposing of an original
PCRA petition does it lose discretion to permit anendment under Rule
905(A) and are all petitions filed thereafter rendered independently subject
to the PCRA’s timeliness provisions. Crispell, 193 A.3d at 929; Flanagan,
854 A2d at 604 (citation omitted). Superior Court precedent expressly
provides, that where a final order has not been entered disposing of a
petitioner's original petition, a PCRA court’s jurisdictional analysis is “flawed
as a matter of law” where it treats a petitioner's “amended petition as a
serial, post-conviction petition.” Crispell, 193 A.3d at 929.

Further relevant, 42 PA. CONS STAT. § 5505 grants trial courts the
power to “modify or rescind any order . . . notwithstanding the prior

termination of any term of court, if no appeal from such order has been

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taken or allowed.” 42 PA. CONS STAT. § 5505. Though Section 5505
places a 30-day cap on a trial court’s power to modify or rescind a final

order, its cap is inapplicable to interlocutory orders. Com. v. Harper, 890

A.2d 1078, 1081 (Pa. Super. Ct. 2006); Com. v. Nicodemus, 636 A.3d

1118, 1120 (Pa. Super. Ct. 1993) (“This statutory provision applies only to
final Orders. The provision of this statute does not apply to interlocutory
Orders.”). Section 5505 applies in PCRA cases with equal force as it does

in other state court litigation. See Harper, 890 A.2d at 1081; Com. v.

Stoffa, No. 912 WDA 2020, No. 913 WDA 2020, 2021 WL 2473891, at *5
(Pa. Super. Ct. June 16, 2021).
In Petitioner’s case, the Pennsylvania Supreme Court determined in
its opinion affirming Petitioner's capital conviction that the trial court’s order
denying his original, timely petition in his noncapital case was an
interlocutory order, not a final order:
the record [does] not contain any clear disposition of [Petitioner’s]
PCRA petition, much less an order definitively disposing of that
petition. Under these circumstances, we feel compelled to direct
the trial court to enter a final order disposing of [Petitioner's]
PCRA petition in the robbery case so [he] has the opportunity to
appeal that disposition to the Superior Court.

Dowling, 883 A.2d at 575 n.4. Despite the Supreme Court's directive,

however, the trial court did not immediately enter a final order but instead

permitted Petitioner to amend his petition and to continue litigating for the
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next six years. Dowling, 2014 WL 10915493, at *2. Because a final order
had not been entered when Petitioner filed his Amended Petition in 2007,
“firmly established and regularly followed” Pennsylvania law required his
Amended Petition be treated as “an amendment to [his] first timely filed
petition,” not as one independently subjected to the PCRA’s timeliness
provisions. (Doc. 65-1, at 629; Doc. 78-22, at 5); Gamble, 2012 WL
2395949, at *4; Crispell, 193 A.3d at 929.

By affirming Judge Eby’s dismissal, however, the Superior Court did
not adhere to firmly established and regularly followed law. It instead
reached the novel conclusion that the Supreme Court’s 2005 per curiam
order stripped the PCRA court of its discretion to permit amendment under
Rule 905(A) and rendered Petitioner’s Amended Petition an untimely, serial

petition “over which the [PCRA] court had no jurisdiction.” See Dowling,

2014 WL 10915493 at *3. But the Superior Court’s procedural ruling is
inadequate to preclude federal review of Petitioner's Claims II.A and V.B for
two reasons. Cruz, 598 U.S. at 26.

First, it is evident that the Superior Court added novel procedural
nuance to the “firmly established and regularly followed” rule that
amendments made to petitions ina PCRA case prior to the entrance of a

final order relate back to the petitioner’s original, timely petition and are not

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independently subjected to the PCRA’s timeliness provisions. E.g.,
Gamble, 2012 WL 2395949, at *4; Crispell, 193 A.3d at 929. Before the

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Superior Court’s opinion in this case, no Pennsylvania case held there to

be an exception to that rule in scenarios where the Supreme Court orders
the trial court to convert its interlocutory order denying PCRA relief into a
final order but where it does not comply with the order before it allows
amendment. The Superior Court’s announcement of novel procedural
nuance is inadequate to preclude federal review. Burris, 515 F.3d at 179.
Second, the Superior Court expanded the scope of Supreme Court
reach over cases pending before the inferior courts ina novel way by
concluding that the Supreme Court held the authority to strip the trial court
of jurisdiction over Petitioner's PCRA case notwithstanding that the
Supreme Court itself lacked appellate jurisdiction over Petitioner’s

noncapital case.

Pennsylvania appellate courts have “long recognized that the entry

of judgment is a jurisdictional matter.” Johnson the Florist, Inc. v. TEDCO

Const. Corp., 657 A.2d 511, 514 (Pa. Super. Ct. 1995). Although the

appellate jurisdictional requirement sometimes results in judicial

inefficiency, appellate courts do not regularly assume jurisdiction to review

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trial court action in cases where a judgment is lacking. See Zitney v.

Appalachian Timber Prods., Inc., 72 A.3d 281, 285 (Pa. Super. Ct. 2013).

Because the appellate courts mandate judgment as a jurisdictional
prerequisite, the “firmly established and regularly followed” appellate
practice in cases where a party seeks pre-judgment judicial review is for

the appellate court to enter an order requiring the party to praecipe the trial

court for a final judgment to permit appeal. E.g., Satiro v. Maninno, 237
A.3d 1145, 1146 n.1 (Pa. Super. Ct. 2020) (“In a Per Curiam Order. . . this
Court directed Appellant to praecipe the trial court prothonotary to enter
judgment on the decision of the trial court to avoid quashal of his appeal.”):

Harris v. Felouzis, 331 A.3d 919, 923 n.2 (Pa. Super. Ct. 2025) (permitting

an appeal to move forward only after Appellant’s praecipe for judgment).
The Supreme Court did not order a party to praecipe the PCRA court for a
final order in this case, perhaps because no party had filed an appeal in
Petitioner's noncapital case. Instead, the Supreme Court directly ordered
the trial court to divest itself of jurisdiction and did so despite lacking
appellate jurisdiction over Petitioner's PCRA case. (Doc. 78-2).

By failing to question or analyze whether the Supreme Court had the
authority to mandate trial court action in this way, the Superior Court

affirmed, at least implicitly, that the Supreme Court can mandate trial court

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action even in cases where no party has filed a notice of appeal, where a

final order has not been entered, and where it does not hold appellate

jurisdiction over the case. See Dowling, 2014 WL 10915493 at*3. The
Superior Court's implicit expansion of Supreme Court reach is equally
inadequate to preclude federal review of Petitioner's Claims.

In sum, the Court finds that, by affirming Judge Eby’s dismissal of
Petitioner's PCRA case, the Superior Court (1) added novel nuance to
PCRA timeliness procedure otherwise “firmly established and regularly
followed” and (2) premised its opinion on a novel understanding of the
ability of the Supreme Court to command inferior court action in cases
where it lacks appellate jurisdiction. As a result, the Court concludes that
the Superior Court’s rejection of Petitioner's claims was premised on an
inadequate procedural ruling, which renders Petitioner's Claims II.A and

V.B not barred by the doctrine of procedural default.’

1 At this juncture, the Court makes no determination as to whether
Petitioner fairly presented any other claim presented in his federal habeas
petition to the state court, nor whether the doctrine of procedural default
precludes federal examination of any claim aside from Claims II.A and V.B
on grounds independent from those discussed herein.

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B. Section 2254(e)(2) does not bar Petitioner from developing
evidence in support of Claims II.A and V.B.

Petitioner must next demonstrate that the rope and fiber evidence he
seeks to develop is admissible under 28 U.S.C. § 2254(e)(2). Section
2254(e)(2) provides that where an “applicant has failed to develop the
factual basis of a claim in State court proceedings, the court shall not hold
an evidentiary hearing on the claim” unless certain exceptions are satisfied,
one of which being where the “factual predicate [] could not have been
previously discovered through the exercise of due diligence” and where
“the facts underlying the claim would be sufficient 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. § 2254(e)(2).

The United States Supreme Court has interpreted “evidentiary
hearing” as used in Section 2254 expansively to mean that, in cases where
an “applicant has failed to develop the factual basis of a claim in State court
proceedings,” a district court may not admit or review any “new evidence

for any purpose”—not just evidence produced at an evidentiary hearing—

unless Section 2254(e)(2)’s requirements are satisfied. Shinn v. Ramirez,

596 U.S. 366, 389 (2022).

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Section 2254’s limitation on the introduction of new evidence is not

applicable, however, where the applicant is not at fault for lack of

evidentiary development in state court. Williams v. Taylor, 529 U.S. 420,
432 (2000). A petitioner has not “failed to develop the factual basis of a
claim” where he, for example, “was diligent in his efforts to develop [a]

claim in state court by filing a motion for access to evidence” and requests

an evidentiary hearing on his claims. Han Take Lee v. Glunt, 667 F.3d
397, 406 (3d. Cir. 2012); 28 U.S.C. § 2254(e)(2).

Respondents argue that Petitioner was not diligent in his efforts to
develop the rope and fiber evidence before the state court because he did
not seek “access [to] the rope and fiber evidence” until he began to pursue
“his untimely serial PCRA petition’ nearly “11 years after he was charged
and years after the 2002 PCRA evidentiary hearing and the 2004 PCRA
court opinion that rejected his PCRA claims.” (Doc. 71 at 16-17). But
Section 2254(e)(2) does not require that a petitioner act with diligence at
any specific point in time before the state court. But even were that not the
case, Petitioner did not “fail[] to develop the factual basis” of his Claims in
state court, which means that Section 2254(e)(2) due diligence requirement

is not trigged in the first place.

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Petitioner filed a motion seeking rope and fiber evidence discovery in
support of his prosecutorial misconduct and ineffective assistance of
counsel claims on August 5, 2008. (Doc. 65-1, at 667-69). The trial court
summarily denied his request without explanation on January 19, 2010. Id.
at 680-81. Petitioner again moved for discovery in support of his claims
and for an evidentiary hearing in support on June 17, 2015. (Doc. 78-23).
Included in Petitioner's renewed request was an explicit request that “his
expert Skip Palenik, Microtrace LLC” be granted access to the rope and
fiber evidence. Id. at 7-8. Based on its determination that the Supreme
Court’s per curiam order precluded further litigation, the trial court again
summarily denied Petitioner's motion on October 15, 2015. (Doc. 78-24).
Petitioner’s efforts fall squarely within the category of efforts that preclude a
showing of fault under Section 2254(e)(2). See Glunt, 667 F.3d at 406.
Consequently, Section 2254(e)(2) does not bar his request to have the
rope and fiber evidence transferred to Microtrace LLC.

C. Petitioner has shown good cause in support of his motion for
transfer of evidence.

The final hurdle Petitioner must overcome is to show good cause for
discovery under Rule 6(a) of the Rules Governing Section 2254 Cases. -
Rule 6(a) provides that “[a] judge may, for good cause, authorize a party to

_ conduct discovery under the Federal Rules of Civil Procedure and may limit
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the extent of discovery.” Third Circuit case law requires a habeas petitioner
“satisfy the ‘good cause’ standard by setting forth specific factual
allegations which, if fully developed, would entitle him or her to the writ.”

Williams v. Beard, 637 F.3d 195, 209 (3d. Cir. 2011) (citations omitted).

The Court previously found good cause for Petitioner to engage in a
wide range of rope and fiber evidence discovery in this matter, and it
continues to find good cause now. (See Doc. 37, at 5-7). Petitioner first
alleges in his federal habeas petition that the Commonwealth violated his
Sixth and Fourteenth Amendment rights by, among other actions,
“mispresent[ing] the forensic evidence that had been presented, implying
that the rope in Petitioner’s car and fibers found on it were ‘exactly the
same’ as the rope and fibers that had been used to tie up [the victim.]”
(Doc. 1, at 35). When examining whether prosecutorial misconduct
violates due process, the reviewing court must “examine the prosecutor's
offensive actions in context and in light of the entire trial, assessing the
severity of the conduct, the effect of the curative instructions, and the

quantum of evidence against the defendant.” Moore v. Morton, 255 F.3d

95, 107 (3d Cir. 2001). The Court concludes that Petitioner has

demonstrated good cause because his allegation of prosecutorial

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misconduct, under the facts alleged, would be the type to entitle him to
habeas relief.

Petitioner next asserts that trial counsel violated the Sixth
Amendment by ineffectively challenging the Commonwealth's rope and
fiber expert, which resulted in the prosecution being “able to argue to the
jury that the rope found at the scene was the same as the rope purportedly
found in [his] car.” (Doc. 1 at 99-100). To establish ineffective assistance
of counsel, a petitioner must show that his counsel's representation “fell
below an objective standard of reasonableness and that such defective

performance caused [him] prejudice.” Strickland v. Washington, 466 U.S.

668, 687-88 (1984). Petitioner has also demonstrated good cause under
this theory of relief.

lll. Certification for Interlocutory Appeal

The Court next turns to whether this matter should be certified for
interlocutory appeal. To certify a non-final order for interlocutory appeal
under 28 U.S.C. § 1292(b), a district court must conclude that the “order
involves a controlling question of law as to which there is a substantial
ground for difference of opinion and [where] an immediate appeal from the

order may materially advance the ultimate termination of this litigation.”

CFPB v. Navient Corp., 522 F. Supp. 3d 107, 113 (M.D. Pa. Feb. 26, 2021)

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(citations omitted). Where no party has requested that an order be

certified, “a district court may certify an interlocutory order for appeal under

28 U.S.C. § 1292(b) sua sponte.” Guinan v. A.|. duPont Hosp. for Children,
No. 09-0228, 2009 WL 2877595, at *2 (E.D. Pa. Aug. 28, 2009) (collecting
cases).

The Court concludes that each Section 1292(b) element supports
certification. Under the first element, a controlling question of law is “at the
very least every order which, if erroneous, would-be reversible error on final
appeal” and one “serious to the conduct of the litigation, either practically or

legally.” Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3d. Cir. 1974).

The Court’s determinations as to the inadequacy of the Superior Court’s
procedural ruling, the inapplicability of Section 2254(e)(2), and the
oresence of good cause under Rule 6(a) of the Rules Governing Section
2254 Cases each constitute controlling questions of law because AEDPA
bars record expansion in all but the rare habeas case and evidentiary
development and record expansion, if permitted improperly, will result in

reversible error. E.g., Mothershead v. Wofford, No. C21-5186 MJP, 2022

WL 2755929, at *1 (W.D. Wash. July 14, 2022) (certifying for interlocutory

appeal where Section 2254(e)(2) was deemed inapplicable).

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Under the second element, “a substantial ground for difference of
opinion exists where ‘the circuits are in dispute on the question and the
court of appeals of the circuit has not spoken on the point, if complicated
questions arise under foreign law, or if novel and difficult questions of first

impression are presented.” Couch v. Telescope, Inc., 611 F.3d 629, 633

(9th Cir. 2010) (quoting Federal Procedure, Lawyers Edition § 3:212
(2010)).

As under Section 1292(b)’s first element, the Court’s determination
that Petitioner is permitted to engage in evidentiary development and
record expansion in support of his claims is a determination subject to a
“substantial ground for difference of opinion” because AEDPA prohibits
those acts in federal habeas cases in all but the rarest of circumstances.
28 U.S.C. § 1292(b). The Court’s decision was also made without circuit
guidance and constitutes a first-impression analysis of whether the
Superior Court promulgated a novel procedural ruling. Element two
therefore supports certification.

Section 1292(b)’s third element also supports certification because
certification will materially advance the ultimate termination of this litigation.
Under the current trajectory of litigation as guided by this Memorandum,

Petitioner’s rope and fiber evidence will be transferred to the custody of

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Microtrace LLC. After discovery has concluded, a federal evidentiary
hearing on at least some of his claims may be warranted because the state
court denied Petitioner’s request for an evidentiary hearing on an

inadequate state ground. See Wilson v. Beard, 426 F.3d 653, 665 (3d. Cir.

2005); Morris v. Beard, 633 F.3d 185, 196 (3d. Cir. 2011); (Doc. 78-24).
Following these steps, the Court will make merits rulings on multiple claims
that it has deemed not barred by the procedural default doctrine and while
analyzing certain facts developed solely before the federal court.

Each of these steps are atypical in federal habeas cases and will
significantly delay the ultimate resolution of this case. Were the Third
Circuit to disagree with the Court’s determinations, however, these steps
will likely be deemed unnecessary. Certification therefore supports
AEDPA’s goal of furthering expedited resolution in federal habeas cases.

See Rhines v. Weber, 544 U.S. 269, 276 (2005) (citation omitted).

Having found all three of Section 1292(b)’s elements to weigh in favor
of certification, the Court will exercise its discretion and certify its order
granting Petitioner's motion to transfer evidence for interlocutory appeal.

IV. Conclusion
The Court concludes that Petitioner's Claims II.A and V.B are not

barred by the doctrine of procedural default, by Section 2254(e)(2)'s

2/

Case 3:15-cv-00220-JKM-KS Document 84 _ Filed 02/26/26 Page 28 of 28

statutory limitations on the development of new evidence in federal court,
or by Rule 6(a) of the Rules Governing Section 2254 Cases. As a result, it
will grant Petitioner's motion to transfer evidence and certify this matter for

interlocutory appeal. A separate Order shall follow.

Date: alauli

United/States Distfict Court

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