                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2008

Tice v. Wilson
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2502




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Recommended Citation
"Tice v. Wilson" (2008). 2008 Decisions. Paper 1260.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1260


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                                                       NOT PRECEDENTIAL


               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                              _________

                             No. 06-2502
                             _________


                       JAMES ROBERT TICE,

                                           Appellant

                                    v.

   HARRY E. WILSON, Warden; THE DISTRICT ATTORNEY OF THE
COUNTY OF ERIE, PENNSYLVANIA; THE ATTORNEY GENERAL OF THE
             COMMONWEALTH OF PENNSYLVANIA




            On Appeal from the United States District Court
               for the Western District of Pennsylvania
                       (D. C. No. 03-cv-00009E)
               District Judge: Hon. Sean J. McLaughlin




               Submitted under Third Circuit LAR 34.1(a)
                          on January 18, 2008


    Before: SCIRICA, Chief Judge, BARRY and ROTH, Circuit Judges

                         (Filed: May 7, 2008)


                            OPINION
ROTH, Circuit Judge:

       James Robert Tice appeals the District Court’s order dismissing in part his petition

for a writ of habeas corpus. We will affirm the order because Tice has failed to show a

miscarriage of justice sufficient to overcome the procedural default of his claim for relief.

I. Background and Procedural History

       At a bench trial in the Court of Common Pleas of Erie County, Pennsylvania, Tice was

convicted of two sets of charges, one related to acts of molestation occurring between May

13 and August 8, 1997 (case number 3207), and the second to such acts occurring from

August 9 to 11, 1997 (case number 3206). The dates in question reflect instances in which

Tice was alleged to have committed sexual acts with his niece when staying at his sister

Karen’s house while he was on approved leave from Hermitage House, the juvenile facility

where he resided at the time.

       Of relevance to this appeal, in the present habeas petition, Tice raises ineffective

assistance of counsel claims, which were not presented to the state courts. Tice argues that

his trial counsel was ineffective in part for failing to obtain the records from Hermitage

House concerning the dates on which Tice was released on home visits. These records

indicate that Tice spent the weekend of August 9-11, 1997, at his sister Judy’s house, and the

weekends of June 13-15, 1997, and July 25-27, 1997, at Karen’s. As such, the Hermitage

House records suggested that Tice could not have committed the crimes charged in case 3206




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because he was not at Karen’s on the weekend of August 9-11, 1997, when the molestation

supposedly occurred.

          Following an evidentiary hearing, at which both of Tice’s sisters testified, and the

preparation of a Report and Recommendation by the Magistrate Judge, the District Court

granted Tice’s habeas petition with respect to case 3206 but denied it as to case 3207.1 The

District Court found that Tice’s claims for relief had been procedurally defaulted because he

had not brought those claims before the state court. The District Court then considered

whether failure to review Tice’s claims would result in a fundamental miscarriage of justice,

such that his claims, although defaulted, could nonetheless be reviewed. The District Court

concluded that no such miscarriage of justice would result with respect to Tice’s claim for

relief from his conviction in case 3207 because the Hermitage House records did not

sufficiently establish Tice’s innocence with respect to those charges.2


      1
    The District Court actually held two evidentiary hearings on Tice’s claims. The First
Report and Recommendation recommended that Tice’s habeas petition be denied as to both
charges. In his subsequent objections, Tice included affidavits from both of his sisters that
bolstered the reliability of the Hermitage House records. The District Court then held a
second evidentiary hearing, after which the Magistrate Judge issued a Second Report and
Recommendation.
  2
    In so doing, the District Court rejected Tice’s argument that the testimony of a pediatric
urologist, Dr. Justine Schober, concerning the age of the various injuries to the victim
supported his innocence. The District Court found that Dr. Schober’s testimony about the
age of those injuries was “less than precise” and that, because Dr. Schober testified that one
injury was undated and, according to the Hermitage House records, Tice had been at the
victim’s house in June and July, an assault by Tice as charged in case 3207 was not
precluded. The District Court accordingly rejected Tice’s claim that Dr. Schober’s testimony
established that someone other than Tice had committed the crimes and noted that the fact
that someone other than Tice could have assaulted the victim did not exonerate him.

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       Tice timely appealed the District Court’s order.         We granted a certificate of

appealability on the issue of whether Tice has established a miscarriage of justice with regard

to case number 3207 (the charges related to May 13 through August 8, 1997) sufficient to

overcome the procedural default of his ineffectiveness claim.

II. Jurisdiction and Standard of Review

       We have jurisdiction over Tice’s timely appeal under 28 U.S.C. §§ 1291 and 2253.

We exercise plenary review over the District Court’s determination of the procedural default

issue. Hull v. Kyler, 190 F.3d 88, 97 (3d Cir. 1999).

       The claims raised by Tice in his habeas petition that are of relevance to the issue on

appeal were procedurally defaulted. A federal court generally will not review a procedurally

defaulted constitutional claim raised in a petition for a writ of habeas corpus. Hubbard v.

Pinchak, 378 F.3d 333, 338 (3d Cir. 2004) (citations omitted). There is an exception to this

rule, however, where the petitioner “can show cause and prejudice for the procedural default

or that a miscarriage of justice will occur absent review. An allegation of ‘actual innocence,’




The District Court also rejected Tice’s assertion that he was entitled to relief because the
Hermitage House records could have been used to impeach the victim’s testimony. The
victim testified that Tice had assaulted her over a period of eighteen months, whereas the
records indicate that he could not have assaulted her over such a period. The District Court
found that this information was “not sufficiently at odds with the eleven-year-old victim’s
testimony to offer any real impeachment value.” The District Court also concluded that
establishing the inaccuracy of the victim’s memory regarding the time frame of the alleged
abuse did not meet the “fundamental miscarriage of justice” standard.

                                              4
if credible is one such ‘miscarriage of justice’ that enables courts to hear the merits of the

habeas claims.” Id. (internal quotations omitted).

        In Schlup v. Delo, the Supreme Court held that, to overcome a procedural default

based on a claim of actual innocence, a habeas petitioner must show that “a constitutional

violation has probably resulted in the conviction of one who is actually innocent.” 513 U.S.

298, 327 (1995). The petitioner must show that, in light of new evidence of innocence, “it

is more likely than not that no reasonable juror would have convicted him.” Id. Tying the

miscarriage of justice exception to the petitioner’s innocence ensures that the exception will

“be applied in the extraordinary case” and “extend relief to those who [are] truly deserving.”

Id. at 321.

III. Analysis

        We agree with the District Court that, with respect to case number 3207, Tice has

failed to show that, in light of the new evidence, it is more likely than not that no reasonable

juror would have convicted him of the offenses charged.

        In case number 3207, Tice was charged regarding acts occurring between May and

August 1997. The new evidence (in particular the Hermitage House reports) indicates that

Tice was only at the victim’s home on the weekends of June 13-15, 1997, and July 25-27,

1997.

        This evidence, in view of the additional evidence presented at trial, does not establish

a likelihood that no reasonable juror would have convicted Tice of the offenses charged in



                                               5
case number 3207. The dates on which Tice stayed at the victim’s home, as shown by the

new evidence, still fall within the time frame in which the charged activities occurred. The

victim herself testified that Tice had assaulted her. We agree with the District Court that the

fact that Tice had not visited her as often as she stated in her testimony would have been of

little impeachment value, given that the jury was well aware she was an eleven-year-old girl

testifying as to events that had occurred about two years earlier.

        Nor does the new evidence render Dr. Schober’s testimony as to the dates of the

victim’s injuries supportive of Tice’s innocence. At trial, Dr. Schober testified that, during

her September 1997 examination of the victim, she identified three injuries, one of which

was “probably older than six months,” one that was “under seventy-two hours . . . or a few

weeks old,” and another that could not be dated. This testimony does not, even in light of

the Hermitage House records, establish that no reasonable juror would likely have convicted

Tice.   Dr. Schober’s testimony regarding the age of the injuries was admittedly and

understandably imprecise.     This testimony is not inconsistent with the new evidence

regarding what dates Tice was at the victim’s home and therefore could have committed the

crimes charged, as testified to by the victim herself.

        Tice has not shown that it is more likely than not that no reasonable juror would have

convicted him even in light of the new evidence. As such, he failed to establish his actual

innocence for purposes of the fundamental miscarriage of justice standard, and we cannot




                                              6
overlook his procedural default and reach the merits of his ineffective assistance of justice

claim.

IV. Conclusion

         For the reasons set forth above, we will affirm the order of the District Court.




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