GURDINE v. LANE et al

Filing 16

ORDER THAT PETITIONER'S MOTION TO AMEND(DOC. NO. 13) IS DENIED. IT IS FURTHER ORDERED THAT THE ORDER GRANTING PETITIONER'S MOTION FOR EXTENSION OF TIME TO FILE A TRAVERSE (DOC. NO. 12) STILL STANDS. PETITIONER SHALL FILE SAID TRAVERS NO LATER THAN 7/6/17 SIGNED BY MAGISTRATE JUDGE LINDA K. CARACAPPA ON 6/13/17. 6/14/17 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
LAMAR GURDINE,
Petitioner,

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v.
JAY LANE, et al.
Respondents,

CIVIL ACTION

NO. 16-5458

MEMORANDUM
Presently before the court is petitioner’s motion to amend his habeas petition to
include “the following claim of Actual Innocence.” See Motion to Amend, 6/9/07. Although
petitioner motions to have “the following claim of actual innocence” amended to the habeas
petition, petitioner fails to elaborate which claim of actual innocence he is in fact wishing to add
to the habeas petition.
A review of the petitioner’s pending PCRA petition in state court shows that
petitioner has raised a claim of actual innocence in the pending second PCRA petition. In
petitioner’s pending PCRA petition, petitioner argues that he is innocent of the crimes of
attempted murder, aggravated assault and related charges against Officer Michael Maresca. See
16-cv-5458, Doc. 14-2, Memo. of Law, 2/10/17. Petitioner argues that Officer Maresca
committed perjury when making false statements at trial. Id. Petitioner claims that Officer
Maresca testified that petitioner was facing the officer when petitioner attempted to shoot Officer
Maresca. Petitioner claims that the medical records show that petitioner was shot in the lowerback and right calf, thus, Officer Maresca’s testimony that petitioner was facing the officer was
contradicted by incontrovertible physical facts, rendering Officer Maresca’s testimony unreliable
and proving petitioner’s claim of actual innocence. Id.

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Assuming petitioner is attempting to now raise that same claim of actual
innocence before this court, the motion to amend is denied for several reasons.
The Federal Rules of Civil Procedure apply to motions to amend habeas corpus
motions. See United States v. Duffus, 174 F.3d 333, 336 (3d Cir.1999), cert. denied, 528 U.S.
866 (1999) (citing Riley v. Taylor, 62 F.3d 86, 89 (3d Cir.1995)). Rule 15(a) provides that a
party may amend his pleading once as a matter of course at any time before a responsive
pleading is filed. Id.; Fed.R.Civ.P. 15(a). A responsive pleading has already been filed in the
instant matter. Rule 15(a) permits a party to amend the complaint after a responsive pleading has
been filed only by stipulation or leave of the court, but requires that such leave “be freely granted
when justice so requires.” Fed.R.Civ.P. 15(a). Although Rule 15 states that leave to amend
should be freely given, the court has discretion to deny a request to amend if it is apparent from
the record that: (1) the moving party has demonstrated undue delay, bad faith, or dilatory
motives; (2) the amendment would be futile; or (3) the amendment would prejudice the other
party. See, e.g., Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002). The
“question of undue delay requires [that the court] focus on the movant's reasons for not
amending sooner” and, “[w]hen a party fails to take advantage of previous opportunities to
amend, without adequate explanation, leave to amend is properly denied.” See Arthur v. Maersk,
Inc., 434 F.3d 196, 204 (3d Cir.2006). In addition, an amendment to a habeas application will be
considered futile when the claims are subject to a procedural default or lack arguable merit.
Riley v. Taylor, 62 F.3d 86, 91 (1995) (permitting amendment of habeas application where the
new claims had arguable merit and appeared to have been fully exhausted and not the subject of
a procedural default).
Petitioner has demonstrated undue delay. In the instant matter petitioner offers no

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explanation for the delay in bringing this alleged claim of actual innocence in his habeas petition.
Petitioner’s claim relies upon the alleged perjury of Officer Maresca at trial. Petitioner has been
aware of Officer Maresca’s testimony and the medical evidence that pertained to petitioner’s
gunshot wounds since trial. This is not new evidence. Petitioner raised this claim in his pending
second PCRA petition, but failed to raise it with this court until the instant motion to amend.
Petitioner has failed to offer any reason for his delay in not raising this claim on direct appeal, or
in his first PCRA petition, the instant habeas petition, or in any amended habeas petition prior to
a responsive pleading being filed in this matter.
Additionally, we find this amendment to a habeas application would be
considered futile because petitioner’s actual innocence claim lacks arguable merit.
The Supreme Court has never held that “a prisoner may be entitled to habeas
relief based on a freestanding claim of actual innocence.” See McQuiggin v. Perkins, 133 S.Ct.
1924, 1931, (2013) ( “We have not resolved whether a prisoner may be entitled to habeas relief
based on a freestanding claim of actual innocence.”); see also Herrara v. Collins, 506 U.S. 390,
404, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (“claim of ‘actual innocence’ is not itself a
constitutional claim”); Sistrunk v. Rozum, 674 F.3d 181, 187 n. 2 (3d Cir.2012) (“Neither this
Court nor the Supreme Court has ever held that a freestanding claim of innocence merits habeas
relief.”). Nevertheless, a valid claim of actual innocence may serve as a “gateway” to allow a
federal court to consider the merits of a separate constitutionally-based claim that would
otherwise be barred for procedural or timeliness reasons. Herrara, 506 U.S. at 404; McQuiggin,
133 S.Ct. at 1928 (“actual innocence, if proved, serves as a gateway through which a petitioner
may pass whether the impediment is a procedural bar ... or ... expiration of the statute of
limitations”).

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Thus, petitioner’s claim of actual innocence does not entitle petitioner to relief as
a freestanding claim. If actual innocence was established it would only allow petitioner to
proceed with an underlying constitutional claim. However, petitioner cannot meet the threshold
to now raise an actual innocence claim.
Proving actual innocence based on new evidence requires the petitioner to
demonstrate (1) new evidence (2) that is reliable and (3) so probative of innocence that no
reasonable juror would have convicted the petitioner. Schlup v. Delo, 513 U.S. 298, 324 (1995).,
327, 115 S.Ct. 851; see also House v. Bell, 547 U.S. 518, 536–537, 126 S.Ct. 2064, 165 L.Ed.2d
1 (2006).
Petitioner fails to provide any new evidence. As explained supra, Officer
Maresca’s testimony and the medical evidence that pertained to petitioner’s gunshot wounds
have been known and available to petitioner since petitioner’s trial. This evidence is not new.
Additionally, petitioner has failed to prove that Officer Maresca’s testimony and
the medical evidence is so probative of innocence that no reasonable juror would have convicted
petitioner. Schulp, 513 U.S. at 324. A review of the notes of testimony show that Officer
Maresca testified that petitioner was facing the officer, Officer Maresca started to shoot, and then
petitioner started to run away, yelped and fell. Officer Maresca testified as follows:
A:

Q:
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I see my partner fall, I think he’s hit. By this time I’m getting ready to get
out of my vehicle and at that time [petitioner] turns and points his weapon
at me.
Okay. What happens when he turns and points his weapon at you?
I start shooting.
Okay. What, if anything, does [petitioner] do?
[Petitioner], he yelps and he drops. He started to run and---yeah, he yelps.
He starts to move, he throws his gun, and drops.

See 16-cv-5458, Doc. No. 11, Ex. 1 N.T. 2/9/09, at 46-47. The notes of testimony from Officer
Maresca are not in conflict with the medical evidence as petitioner now alleges. Thus, petitioner
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cannot prove that alleged new evidence is highly probative of innocence.
Consequently, for the reasons discussed supra, petitioner’s motion to amend is
DENIED.
ORDER
AND NOW, this 13th day of June, 2017, upon consideration of Petitioner’s
Motion to Amend (Doc. No. 13), IT IS HEREBY ORDRED that said motion is DENIED.
IT IS FURTHER ORDERED that this court’s June 6, 2017 order granting
petitioner’s motion for extension of time to file a traverse (Doc. 12, addressing Doc. 10) still
stands. Petitioner shall file said traverse no later than July 6, 2017.
BY THE COURT:

/S LINDA K. CARACAPPA
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LINDA K. CARACAPPA
UNITED STATES CHIEF MAGISTRATE JUDGE

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