                                                         NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT
                         _____________

                             No. 13-3920
                            _____________

                     DOUGLAS PAUL WRIGHT,

                                                        Appellant

                                   v.

SUPERINTENDENT SOMERSET SCI; DISTRICT ATTORNEY YORK COUNTY;
             ATTORNEY GENERAL PENNSYLVANIA



             On Appeal from the United States District Court
                for the Western District of Pennsylvania
                  (District Court No.: 3-05-cv-00024)
               District Judge: Honorable Kim R. Gibson


                      Argued on January 23, 2015


         Before: RENDELL, SMITH and KRAUSE, Circuit Judges


                    (Opinion filed: February 5, 2015)
Aaron J. Fickes, Esq. (ARGUED)
Schnader Harrison Segal & Lewis
750 9th Street, N.W.
Suite 550
Washington, DC 20006

Carl A. Solano, Esq.
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103

            Counsel for Appellant



James E. Zamkotowicz, Esq. (ARGUED)
York County Office of District Attorney
45 North George Street
York, PA 17401

            Counsel for Appellees Superintendent Somserset SCI, District Attorney
            York County, and Attorney General Pennsylvania




                                          2
                                      O P I N I O N*



RENDELL, Circuit Judge:

       Douglas Wright appeals the District’s Court denial of his habeas petition, which

asserts a freestanding claim of actual innocence under 28 U.S.C. § 2254. Wright

challenges his third-degree murder conviction1 for causing the death of his son, Donovan

Wright, who displayed symptoms consistent with shaken baby syndrome.2 Wright argues

that new medical evidence undermines the expert evidence on which he was convicted as

to the causes and timing of his son’s injuries. We conclude that, even assuming a

freestanding claim of actual innocence is cognizable under § 2254, Wright cannot meet

the “extraordinarily high” standard of proof required for such a claim. On that basis, we

will affirm the District Court’s denial of Wright’s habeas petition.


*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  At oral argument, the appellees argued that because Wright was convicted of third-
degree murder and not first-degree murder, less evidence is required to uphold Wright’s
conviction. Third-degree murder is defined by statute as any murder not of the first or
second degree. 18 Pa. Cons. Stat. § 2502(c). Under Pennsylvania law, third-degree
murder is a killing done with legal malice but without the specific intent to kill required
in first-degree murder. Commonwealth v. Kellam, 719 A.2d 792, 797 (Pa. Super. Ct.
1998). Because this argument was raised for the first time at oral argument, it is waived.
See Pichler v. UNITE, 542 F.3d 380, 396 n.19 (3d Cir. 2008); Montrose Med. Grp.
Participating Sav. Plan v. Bulger, 243 F.3d 773, 783 (3d Cir. 2001).
2
  Both Wright and Donovan’s mother were charged with first-degree murder under the
theory that Donovan was a victim of shaken baby syndrome, and the government sought
the death penalty against them both. Donovan’s mother negotiated a plea agreement for
involuntary manslaughter that required her to testify against Wright. The government
dropped its attempt to seek the death penalty against Wright after jury selection.
                                             3
                                 I.       BACKGROUND

       Donovan Wright was born on December 28, 1995, to Wright and April Klinedinst.

Donovan displayed abnormal behavior in the days leading up to his hospitalization on

May 12, 1996. From May 2 to 6, several people, including Klinedinst, Wright’s mother,

and Klinedinst’s co-workers, noticed a red dot in Donovan’s eye and that his eyes “flew

to the side,” seemed “wandering” or “detached,” and would “go up in the corner.”

(A146, A216.) On May 10, a friend, Wanda Rill,3 watched Donovan, and he screamed

and cried for five hours. Donovan “took in a deep breath and stiffened his body” when

picked up, and his eyes were crossed. (A102.)4 On May 11, Donovan would not wake

up after prompting by Klinedinst, and Wright’s mother noticed that Donovan was

lethargic and unable to focus his eyes.

       On May 12, 1996, Wright watched Donovan from 11:00 am to 7:00 pm, while

Klinedinst was working. Donovan ate little and slept during the day.5 Later that night,

Wright and Klinedinst took Donovan to Wright’s mother’s home to babysit. Donovan

was asleep in his car seat, but while they were driving, Klinedinst saw brown chunks

mixed with saliva coming from Donovan’s mouth and heard him making grunting noises.

When Donovan was removed from his car seat, Wright’s mother was concerned with


3
  Donovan and Klinedinst lived in a homeless shelter, during which time Klinedinst
developed a friendship with a woman staying there, Wanda Rill, and her four children.
Rill and Klinedinst watched each other’s children at the shelter and after Klinedinst,
Donovan, and Wright moved to an apartment in March 1996. Rill’s children displayed
violent behavior and sometimes watched Donovan without supervision.
4
  After Rill babysat, Klinedinst noticed a general change in Donovan’s behavior.
5
  Donovan also bumped his head while in the shower with Wright, although according to
Wright, Donovan did not suffer any injury.
                                            4
how Donovan’s head flopped and insisted that he be taken to the hospital. Emergency

room personnel discovered leg and rib fractures that were three to six weeks old; subdural

hematomas that were at least two weeks old; and skull fractures that could not be

precisely dated, but likely occurred at the same time as the earlier hematomas. 6 Donovan

never recovered from his injuries and died on August 5, 1997.

      At trial, treating and expert medical witnesses testified that Donovan was injured

during episodes of physical abuse for as long as several weeks before May 12, 1996.7

The government sought to prove that Wright committed both the past abuse and an

assault on Donovan on May 12, 1996, that caused Donovan’s death.8 Wright attempted

to show that Klinedinst or others who cared for Donovan caused his earlier injuries and

that Donovan’s episode on May 12 was caused by a re-bleed of his preexisting

hematomas, eliciting testimony through two expert witnesses.9 Although the jury


6
  A “subdural hematoma” is a collection of blood on the surface of the brain. See
MedlinePlus, U.S. National Library of Medicine, National Institutes of Health,
http://www.nlm.nih.gov/medlineplus/ency/article/000713.htm (last visited Feb. 5, 2015).
7
  The government had six medical witnesses testify. The thrust of their testimony was
that there was recent bleeding on Donovan’s brain, which was likely caused by an injury
that occurred within hours of Donovan being taken to the emergency room. Furthermore,
Donovan had retinal hemorrhages, which were a symptom of shaken baby syndrome, as
well as macular detachment, which likely resulted from a significant force to Donovan’s
head by shaking or a direct impact, causing unresponsiveness within minutes or hours.
8
  The government’s case against Wright was circumstantial. There were no witnesses
who saw Wright abusing Donovan, and some witnesses described him as a loving father.
9
  Dr. John Adams, an expert in forensic pathology, testified that there was no evidence of
shaking. Adams testified that Donovan’s injuries did not necessarily originate in the
hours before he was taken to the emergency room because his bleeding on the brain could
be caused by a re-bleed either of older injuries or caused by minimal new trauma. Dr.
Jan Leestma, an expert in pathology and neuropathology, testified that Donovan’s
macular separation could have stemmed from causes other than shaking and that the
bleeding on Donovan’s brain could have been a spontaneous re-bleed of an earlier injury.
                                            5
acquitted Wright of first-degree murder, they did convict him of third-degree murder and

lesser included charges. Wright was sentenced to 20-40 years in prison, the statutory

maximum sentence.

       Wright was unsuccessful on direct appeal and sought post-conviction relief. In

Wright’s first petition under the Pennsylvania Post Conviction Relief Act (“PCRA”), he

argued that Dr. James McManaway, an ophthalmologist who testified for the

government, testified inconsistently in a later trial. In an evidentiary hearing,

McManaway testified that his opinions had not changed and that he would have testified

in Wright’s trial the same way. McManaway’s differing statements were based on the

difference in the two children’s outcomes—Donovan died, while the infant in the other

case made a “remarkable neurologic recovery.” (A1002.) The PCRA court treated this

claim as one for newly discovered evidence, and it denied the petition.10

       Wright filed a second PCRA petition arguing that newly discovered exculpatory

information disproved the government’s theory of the crime. Wright introduced an

expert report from Dr. John Plunkett, a forensic pathologist, which focused on changes in

the medical understanding of shaken baby syndrome and infant head injury between 1998

and 2007. The PCRA court concluded that, as a pathologist, Plunkett lacked the

expertise to give an opinion grounded in other disciplines, such as ophthalmology,

neurology, radiology, or pediatrics, or on behalf of the entire medical community.

Furthermore, Plunkett’s testimony was not new evidence that would have changed the


10
  The Superior Court agreed, and the Pennsylvania Supreme Court and the Supreme
Court declined to hear the case.
                                              6
 outcome of the trial because it was similar to the testimony offered by defense experts

 Adams and Leestma.11

        After Wright’s second PCRA petition was denied, Wright amended his habeas

 petition to assert a claim of actual innocence. The District Court12 concluded that the

 second PCRA court’s conclusion—that Plunkett’s testimony was not new evidence—was

 reasonable under AEDPA. The District Court stated, “Plunkett’s testimony is not

 evidence of actual innocence, but rather of reasonable doubt. Evidence that impeaches

 the Commonwealth’s case by positing other possible ways Donovan could have been

 injured is not the same as evidence that would exclude Wright as a suspect or prove that

 Donovan did not die as a result of the injuries inflicted on him.” (A51.)

        On March 18, 2014, this Court granted Wright’s application for a certificate of

 appealability13 on the issue of whether a claim of freestanding actual innocence is

 cognizable in a petition filed pursuant to 28 U.S.C. § 2254, and, if so, whether Wright has

 met the applicable standard.

                                   II.    DISCUSSION

A.      Standard of Review

        We review Wright’s actual innocence claim de novo. Under the Antiterrorism and

 Effective Death Penalty Act (“AEDPA”), if the state court did not reach the merits of the



 11
    The Superior Court affirmed, and the Pennsylvania Supreme Court denied Wright’s
 petition for allowance of appeal.
 12
    The District Court adopted the Magistrate Judge’s Report and Recommendation in full.
 13
    The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 2241, and this Court
 has jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253.
                                              7
 federal claim, then it is reviewed de novo. See Cone v. Bell, 556 U.S. 449, 472 (2009).14

 Here, Wright’s actual innocence claim was never “adjudicated on the merits” in the state

 court proceedings. See Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009). The first

 PCRA proceeding discussed Wright’s claim with regard to McManaway’s inconsistent

 testimony as a claim for relief on the grounds of newly discovered exculpatory evidence

 under 42 Pa. Cons. Stat. § 9543—a different basis than a federal freestanding claim of

 actual innocence. The second PCRA proceeding also considered the Plunkett evidence

 under the newly discovered evidence standard.15

B.      Cognizability of Freestanding Claim of Actual Innocence

        Currently, the Supreme Court treats actual innocence as a gateway for

 consideration of procedurally defaulted claims. See McQuiggin v. Perkins, 133 S. Ct.

 1924 (2013); Schlup v. Delo, 513 U.S. 298, 327-29 (1995) (requiring a showing “that it is

 14
    In contrast, when a federal claim has been adjudicated on the merits by the state court,
 the federal court may only grant habeas relief if the state court’s decision as to the federal
 claim was “(1) . . . contrary to, or involved an unreasonable application of, clearly
 established Federal law, as determined by the Supreme Court of the United States; or
 (2) . . . based on an unreasonable determination of the facts in light of the evidence
 presented in the State court proceeding.” 28 U.S.C. § 2254(d). In either case, the state
 court’s relevant factual determinations are presumed to be correct unless the petitioner
 rebuts this presumption by clear and convincing evidence. Id. § 2254(e)(1).
 15
    The appellees argue that, if Wright’s actual innocence claim is not entitled to AEDPA
 deference, then Wright has not properly exhausted his actual innocence claim. This
 argument is unavailing. Even if Wright did not “fairly present[]” his actual innocence
 claim to the state courts in a manner that put them on notice that a federal claim was
 being asserted, Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010); Bronshtein v. Horn,
 404 F.3d 700, 725 (3d Cir. 2005), that procedural default would be excused if Wright had
 a meritorious actual innocence claim. See Mize v. Hall, 532 F.3d 1184, 1195 n.9 (11th
 Cir. 2009) (“[I]f a petitioner in fact has a freestanding actual innocence claim, he would
 be entitled to have all his procedural defaults excused as a matter of course under the
 fundamental miscarriage of justice exception.”). Therefore, we will assess the merits of
 Wright’s claim despite any failure to exhaust.
                                               8
more likely than not that no reasonable juror would have convicted [the petitioner] in the

light of the new evidence”). The Supreme Court has not yet recognized the existence of a

freestanding claim of actual innocence. See McQuiggin, 133 S. Ct. at 1931; cf. In re

Davis, 557 U.S. 952 (2009).

       In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme Court explained that

“[c]laims of actual innocence based on newly discovered evidence have never been held

to state a ground for federal habeas relief absent an independent constitutional violation

occurring in the underlying state criminal proceeding.” Id. at 400. The petitioner in

Herrera was not entitled to habeas relief because he did not seek excusal of a procedural

error; rather, he argued that newly discovered evidence showed that his conviction was

factually incorrect. Id. at 404-05. However, the Herrera Court left open the possibility

of a freestanding claim of actual innocence (particularly in the capital context):

              We may assume, for the sake of argument in deciding this case, that
       in a capital case a truly persuasive demonstration of “actual innocence”
       made after trial would render the execution of a defendant unconstitutional,
       and warrant federal habeas relief if there were no state avenue open to
       process such a claim. But because of the very disruptive effect that
       entertaining claims of actual innocence would have on the need for finality
       in capital cases, and the enormous burden that having to retry cases based
       on often stale evidence would place on the States, the threshold showing for
       such an assumed right would necessarily be extraordinarily high.

Id. at 417 (emphasis added). Ultimately, the petitioner did not make a sufficient showing

of innocence because the affidavits he submitted raised credibility issues more

appropriate for a jury. Id. at 418-19.16


16
   In House v. Bell, 547 U.S. 518 (2006), the Supreme Court held that the petitioner had
stated a Schlup gateway claim because the central forensic proof connecting him to the
                                              9
       Our Court has issued two opinions that have addressed discredited expert

testimony, particularly regarding fire science, as a means of proving actual innocence.

Neither support Wright’s actual innocence claim. See Han Tak Lee v. Glunt, 667 F.3d

397 (3d Cir. 2012); Albrecht v. Horn, 485 F.3d 103 (3d Cir. 2007). In Albrecht, we

concluded that the petitioner could not succeed on either a Schlup gateway claim or a

Herrera actual innocence claim.17 Like the new expert evidence presented here, there

was some similarity to the testimony of another defense expert that was argued to the

jury. Furthermore, the new expert’s opinion was indecisive because he could not rule out

that the fire had been intentionally set. Id. at 125. In Han Tak Lee, we remanded the

petitioner’s case so he could engage in discovery on his due process claim—that his

conviction was predicated on what new scientific evidence has proven to be

fundamentally unreliable expert testimony. Id. at 402, 404-05. We did not address Lee’s

alternative actual innocence argument: “Lee’s allegations, if proven, would be sufficient

to establish a due process violation. Therefore, we need not decide whether Lee’s

allegations meet the ‘extraordinarily high’ threshold for granting federal habeas relief

based on a freestanding claim of actual innocence.” Id. at 403 n.5 (emphasis added)




crime had been called into question, and he had put forward evidence pointing to a
different suspect. Id. at 554. The Supreme Court declined to decide whether the
petitioner’s freestanding innocence claims were cognizable but concluded that “Herrera
requires more convincing proof of innocence than Schlup,” a standard the petitioner
could not meet. Id. at 555.
17
   Albrecht asserted that the unreliable expert testimony would have constitutional
significance if it resulted in a fundamentally unfair trial. We discounted this argument
because the fire science was reliable at the time of trial. Id. at 122 n.6.
                                             10
 (citing Herrera, 506 U.S. at 417). The result in Han Tak Lee is distinguishable because

 Lee’s claims were based on a due process violation, not a claim of actual innocence.

C.      Merits of Actual Innocence Claim

        We conclude that, even if a freestanding claim of actual innocence is cognizable,

 the merits of Wright’s actual innocence claim do not satisfy the Schlup gateway standard,

 much less the “extraordinarily high” standard required by Herrera. We agree with the

 District Court that Plunkett’s report and testimony are not persuasive evidence of actual

 innocence because they do not show a paradigm shift in understanding shaken baby

 syndrome that undermines the medical evidence presented at trial.

        At the time of Wright’s trial in July 1998, it was widely understood that shaking

 alone could cause the injuries Donovan presented. However, this understanding was

 questionable by the end of 1998. See Mark Donohoe, Evidence-Based Medicine and

 Shaken Baby Syndrome, Part I: Literature Review, 1966-1998, 24 Am. J. Forensic Med.

 & Pathology 239, 241 (2003). By 2007, Wright argues, it was widely accepted that

 injuries by shaking would not result in the brain injuries Donovan exhibited.18

        Wright uses Plunkett’s expert report to demonstrate how, under these new

 medical understandings, he could not be convicted on the basis that Donovan died as a

 result of shaken baby syndrome caused by trauma sustained on May 12, 1996. However,

 Plunkett has conceded that his opinions are not universally accepted by the scientific

 community. As a pathologist, Plunkett lacks the expertise to give an opinion on behalf of

 18
   Wright relies on several recent decisions where courts have also deemed shaken baby
 syndrome evidence to be unsupportable. See, e.g., Del Prete v. Thompson, 10 F. Supp.
 3d 907, 957 n.10 (N.D. Ill. 2014); State v. Edmunds, 746 N.W.2d 590, 596 (Wis. 2008).
                                             11
the entire medical community, as recognized by the PCRA court. Plunkett has also been

criticized as being biased against findings of child abuse. See Robert M. Reece, The

evidence base for shaken baby syndrome: Response to editorial from 106 doctors, 328

BMJ 1316, 1316 (2004).

      Wright argues that Donovan’s injuries can be explained as having occurred before

May 12, demonstrating his innocence.19 Plunkett’s report argues that Donovan’s brain

injury occurred weeks or months prior to May 12, as demonstrated by Donovan’s

lethargy and decreased eating beginning on May 10. With respect to the new or fresh

blood found on Donovan’s brain, Plunkett argues that new medical findings show that the

fresh blood need not be a result of recent trauma. However, this does not exonerate

Wright. Although recent trauma may not be the sole explanation for the brain bleeding, it

remains a possible cause. Furthermore, the jury was already presented with the theory

that the medical evidence did not support an injury on May 12 from Adams and Leestma;

both experts testified that Donovan’s bleeding on the brain could have causes other than a

new injury, such as a re-bleed either of older injuries or caused by minimal new trauma.

Therefore, this evidence has less probative value as to Wright’s innocence.

      Wright also challenges the conclusions of ophthalmologist McManaway that

Donovan’s macular detachment was the result of such vigorous force that a child could

be expected to have “immediate neurologic abnormalities and rapid loss of


19
  Wright also makes the argument that the times provided by the experts overlap with
periods during which others were caring for Donovan, such as Wright’s mother and
Wanda Rill. This argument, however, does not demonstrate that Wright was convicted
based on unreliable expert testimony.
                                           12
consciousness” within ten minutes to an hour. (A501.) Plunkett now asserts that macular

detachment can occur spontaneously or from causes other than shaking, due to

intracranial pressure, and that a lucid interval occurs in a fatal head injury. (A1100.)

Although McManaway’s and Plunkett’s conclusions as to the timing of Donovan’s

injuries contradict each other, no evidence disproves McManaway’s conclusions, and the

jury has already considered Plunkett’s conclusion, through Leestma’s testimony, that

macular detachment can have causes other than shaking.

       Wright’s expert testimony has not persuasively shown that he is actually innocent

of the death of his son. This case is not like Han Tak Lee, where new developments in

fire science have refuted many of the older scientific theories underlying arson

investigation. Instead, Wright has presented evidence why the jury should have believed

his trial experts, rather than the government’s. There is no evidence that the

government’s experts would agree with Plunkett or otherwise change their testimony

from 1998. We cannot conclude that Wright is actually innocent where two differing, but

supported, medical opinions exist as to the cause and timing of Donovan’s death.

Accordingly, we will affirm the denial of Wright’s habeas petition.




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