                                         PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                        No. 15-3755
                        ___________

                    PATRICK COLEMAN,
                                Appellant
                            v.

    SUPERINTENDENT GREENE SCI; THE DISTRICT
 ATTORNEY OF THE COUNTY OF PHILADELPHIA; THE
ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                         __________

     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
                (D.C. No. 2-14-cv-01683)
       District Judge: Honorable Stewart Dalzell
                      ___________

         Submitted Under Third Circuit L.A.R. 34.1(a)
                    September 19, 2016

    Before: MCKEE, Chief Judge,* HARDIMAN, and
              RENDELL, Circuit Judges.

     *
        Chief Judge Theodore A. McKee’s term as Chief
Judge ended on September 30, 2016.
                  (Filed: January 5, 2017)

Michael Wiseman, Esq.
P.O. Box 120
Swarthmore, PA 19081
      Counsel for Appellant

Max C. Kaufman, Esq.
Philadelphia County Office of District Attorney
3 South Penn Square
Philadelphia, PA 19107
      Counsel for Appellees
                      ____________

                         OPINION
                       ____________

HARDIMAN, Circuit Judge.

       This appeal involves a petition for writ of habeas
corpus that was dismissed as untimely under the Anti-
Terrorism and Effective Death Penalty Act (AEDPA), Pub. L.
No. 104-132, 110 Stat. 1214. Despite his tardy filing,
Appellant Patrick Coleman claims that it was a fundamental
miscarriage of justice to deny him his day in court. Because
Coleman cannot satisfy the actual innocence requirement of
the fundamental miscarriage of justice exception to AEDPA,
we will affirm.

                              I

       Coleman was tried along with several other defendants
for his involvement in a gang-related shooting that occurred



                              2
at Tobin’s Inn Restaurant on August 10, 1989. See Coleman
v. Folino, 2015 WL 6379296, at *1 (E.D. Pa. Oct. 21, 2015).
The month-long trial included 76 witnesses for the
Commonwealth, only one of whom testified as to Coleman’s
involvement in the shooting. Id. Coleman was convicted of
first-degree murder, two counts of aggravated assault,
criminal conspiracy, and possession of an instrument of a
crime. Id. at *1–2. Significantly for purposes of this appeal,
Coleman was acquitted of violating the Pennsylvania Corrupt
Organizations Act (PCOA), 18 Pa. Cons. Stat. § 991. Id. at
*2. The Pennsylvania Superior Court affirmed Coleman’s
convictions, and he did not seek review by the Pennsylvania
Supreme Court. Id.

       Two years after Coleman’s convictions became final,
the Pennsylvania Supreme Court held that the PCOA did not
apply to an individual’s participation in a wholly illegitimate
enterprise. Commonwealth v. Besch, 674 A.2d 655, 655 (Pa.
1996).1 Had Besch been the law when Coleman was tried, he
could not have been charged with a PCOA violation because
the gang to which he belonged was wholly illegitimate.
Coleman, 2015 WL 6379296, at *3. Coleman failed to raise a
       1
         Two months after Besch, apparently in response to
that decision, “the [Pennsylvania] General Assembly
amended the [PCOA’s] definition of the term ‘enterprise’
explicitly making clear that the statute targets both legitimate
and wholly illegitimate enterprises.” Commonwealth v.
Williams, 936 A.2d 12, 18 (Pa. 2007); see also 18 Pa. C.S.
§ 911(h)(3). The Pennsylvania Supreme Court later ruled that
Besch was not a “new rule of law” and was retroactive to
cases on collateral review. Kendrick v. Dist. Att’y of Phila.
Cty., 916 A.2d 529, 531 (Pa. 2007).




                               3
claim under Besch when he twice sought post-conviction
relief under Pennsylvania’s Post Conviction Relief Act
(PCRA), 42 Pa. Cons. Stat. § 9541.

       Coleman’s PCRA petitions—a pro se petition filed in
2002 and a counseled petition filed in 2007—sought
reinstatement of his appellate rights based on ineffective
assistance of counsel. Coleman claimed his attorney had
agreed to appeal his conviction to the Pennsylvania Supreme
Court but failed to do so. Both petitions were denied.

        In 2014, Coleman filed a petition for writ of habeas
corpus in the United States District Court for the Eastern
District of Pennsylvania. Coleman argued that he was denied
due process because the evidence introduced against his co-
defendants was unfairly imputed to him. The Magistrate
Judge recommended that Coleman’s petition be dismissed as
untimely under AEDPA, which imposes a one-year statute of
limitation on applications for writs of habeas corpus.
Although Coleman conceded his petition was filed well
outside that period, he asserted that his claim should be
considered under the fundamental miscarriage of justice
exception and principles of equitable tolling.

        The District Court dismissed the petition with
prejudice. The Court found that Coleman did not meet the
requirements of the fundamental miscarriage of justice
exception because he could not prove he was actually
innocent. Nevertheless, the Court concluded that “reasonable
jurists could disagree as to whether a conviction arising from
a twenty-eight day trial where seventy-six witnesses were
called and only one testified as to Coleman’s participation in
the Tobin’s Inn Shooting can be considered a fundamental
miscarriage of justice.” Coleman, 2015 WL 6379296, at *6.



                              4
Accordingly, the Court issued a certificate of appealability
“on the sole issue of whether the [fundamental miscarriage of
justice exception] applies to this matter and therefore excuses
Coleman’s untimely filing of his petition.” Id.

                               II

       The District Court had jurisdiction under 28 U.S.C.
§§ 2241 and 2254. We have appellate jurisdiction to review
the certified issue under 28 U.S.C. § 2253. “Our review of the
timeliness of a federal habeas application is plenary.”
Hartmann v. Carroll, 492 F.3d 478, 480 (3d Cir. 2007).

                               III

       AEDPA imposes a one-year statute of limitation “to an
application for a writ of habeas corpus by a person in custody
pursuant to the judgment of a State Court.” 28 U.S.C.
§ 2244(d)(1). Because Coleman’s final judgment was entered
before Congress adopted AEDPA, Coleman had until April
23, 1997 to apply for federal habeas relief. See Long v.
Wilson, 393 F.3d 390, 394 n.4 (3d Cir. 2004). Coleman
concedes, as he must, that his petition was untimely.

       Coleman argues that his petition was subject to the
fundamental miscarriage of justice exception to AEDPA. This
exception “is grounded in the ‘equitable discretion’ of habeas
courts to see that federal constitutional errors do not result in
the incarceration of innocent persons.” Herrera v. Collins,
506 U.S. 390, 404 (1993). The exception may overcome
procedural default rules such as the timing requirements of 28
U.S.C. § 2244(d)(1). See McQuiggin v. Perkins, 133 S. Ct.
1924, 1931–32 (2013) (citing cases). And it “seeks to balance
the societal interests in finality, comity, and conservation of




                               5
scarce judicial resources with the individual interest in justice
that arises in the extraordinary case.” Schlup v. Delo, 513
U.S. 298, 324 (1995).

        The fundamental miscarriage of justice exception is
narrow. The Supreme Court has applied it “to a severely
confined category: cases in which new evidence shows ‘it is
more likely than not that no reasonable juror would have
convicted [the petitioner].’” McQuiggin, 133 S. Ct. at 1933
(alteration in original) (quoting Schlup, 513 U.S. at 329). Put
differently, the exception is only available when a petition
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.” Id. at 1936 (quoting Schlup, 513 U.S. at
316). In Schlup, the Supreme Court emphasized that
“[w]ithout 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.”
513 U.S. at 316.

       Coleman “cannot and does not argue that his habeas
petition presented a claim of factual actual innocence.”
Coleman Br. 27. Instead, he argues that the actual innocence
requirement noted by the Supreme Court in Schlup and
McQuiggin is merely dicta. As such, he suggests we can (and
should) excuse his late filing, claiming he suffered a
fundamental miscarriage of justice because the (later) invalid
PCOA charge rendered his trial unfair, even though he was
acquitted of that charge.

       We disagree with Coleman’s characterization of the
actual innocence requirement. A dictum is “a statement in a



                                6
judicial opinion that could have been deleted without
seriously impairing the analytical foundations of the holding.”
United States v. Mallory, 765 F.3d 373, 381 (3d Cir. 2014)
(citation omitted). As we shall explain, the actual innocence
requirement formed the basis of the Supreme Court’s holding
in McQuiggin.

        The Supreme Court “granted certiorari to resolve a
Circuit conflict on whether AEDPA’s statute of limitations
can be overcome by a showing of actual innocence.”
McQuiggin, 133 S. Ct. at 1930. The Court answered in the
affirmative, “hold[ing] that 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.” Id. at 1928. As noted
above, the Court emphasized repeatedly throughout its
opinion that this exception is rare: “[A] petitioner does not
meet the threshold requirement unless he persuades the
district court that, in light of the new evidence, no juror,
acting reasonably, would have voted to find him guilty
beyond a reasonable doubt.” Id. (alteration in original)
(quoting Schlup, 513 U.S. at 329); see also id. at 1933 (“The
miscarriage of justice exception, we underscore, applies to a
severely confined category: cases in which new evidence
shows ‘it is more likely than not that no reasonable juror
would have convicted [the petitioner].’” (quoting Schlup, 513
U.S. at 329)); id. at 1935 (“To invoke the miscarriage of
justice exception to AEDPA’s statute of limitations, we
repeat, a petitioner ‘must show that it is more likely than not
that no reasonable juror would have convicted him in the light
of the new evidence.’” (quoting Schlup, 513 U.S. at 327)); id.
at 1936 (“The gateway should open only when a petition
presents ‘evidence of innocence so strong that a court cannot




                               7
have confidence in the outcome of the trial unless the court is
also satisfied that the trial was free of nonharmless
constitutional error.’” (quoting Schlup, 513 U.S. at 316)).
These statements—when combined with the absence of any
language in the Court’s opinion to the contrary—convince us
that the actual innocence requirement was essential to the
Court’s holding.2

        Because Coleman failed to present a claim of actual
innocence, we hold that his habeas petition was untimely
under AEDPA. In doing so, we adhere to the Supreme
Court’s guidance in McQuiggin: the fundamental miscarriage
of justice exception applies only in cases of actual innocence.
133 S. Ct. at 1928. To avoid the statutory time bar, a
petitioner must “persuade[] the district court that, in light of
the new evidence, no juror, acting reasonably, would have
voted to find him guilty beyond a reasonable doubt.” Id.




       2
          Even if the Court’s actual innocence requirement
were dicta, “we [will] not idly ignore considered statements
the Supreme Court makes in dicta.” In re McDonald, 205
F.3d 606, 612 (3d Cir. 2000). “To ignore what we perceive as
persuasive statements by the Supreme Court is to place our
rulings, and the analysis that underlays them, in peril.” Galli
v. N.J. Meadowlands Comm’n, 490 F.3d 265, 274 (3d Cir.
2007). So even if we found the Court’s analysis of the actual
innocence requirement to be dicta, we would reach the same
result.




                               8
                           IV

      For the reasons stated, we will affirm the District
Court’s order dismissing Coleman’s petition for writ of
habeas corpus.




                           9
