govinfo:USCOURTS-paed-2_14-cv-04574-0

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF PENNSYLV ANIA 
 
 
 
IV AN HILL, 
 Petitioner, 
 
v. 
 
JOSEPH TERRA, THE DISTRICT ATTORNEY 
OF THE COUNTY OF PHILADELPHIA, THE 
ATTORNEY GENERAL OF THE STATE OF 
PENNSYLV ANIA, 
 Respondents. 
 
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No. 2:14-cv-4574 
 
 
O P I N I O N 
Motion for Relief under Rule 60(b), ECF No. 50 – Denied 
Motion to Admit Affidavits, ECF No. 115 – Dismissed 
Motion to Withdraw Request for Evidentiary Hearing, ECF No. 121 – Dismissed 
 
Joseph F. Leeson, Jr. June 16, 2026 
United States District Judge 
 
I. INTRODUCTION 
Petitioner Ivan Hill is a Pennsylvania state prisoner serving a sentence of life in prison 
without the possibility of parole. He is imprisoned for first-degree murder and possession of an 
instrument of crime (PIC). Hill filed a Petition for a writ of habeas corpus, which the Court 
denied. He filed a Rule 60(b) Motion following the Court’s adoption of the Report and 
Recommendation denying his habeas Petition. Hill seeks to amend his habeas Petition to raise a 
freestanding actual innocence claim, based upon his gateway actual innocence claim presented in 
his original Petition. For the following reasons, the Court denies Hill’s Rule 60(b) Motion. 
 
 
 

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II. BACKGROUND 
The trial court, the Pennsylvania Superior Court, and the Report and Recommendation 
(“R&R”) prepared by the Honorable Magistrate Judge Carol Sandra Moore Wells, provide the 
facts of this case as follows: 
On October 27, 1999, at approximately 11:00 p.m., the body of Tyree Turner was 
found in his car on Broad Street in Philadelphia. The victim had been shot in the 
back with a 9 mm luger firearm. Monique Lee testified that defendant Ivan Hill, 
co-defendant Antonio McKenzie and herself were at McKenzie’s store on 13th and 
Courtland Streets in Philadelphia. After about ten minutes, the three of them moved 
outside of the store and were conversing with a group of friends. Approximately 
fifteen to twenty minutes later the victim, Tyree Turner, was seen driving down 
Courtland Street towards Old York Road when an unknown individual stopped him 
about a half block away from McKenzie’ s store. The victim remained in his car 
while speaking with this individual. Monique Lee testified that McKenzie and the 
defendant then walked over to the victim’s car and began speaking with him[.] Ten 
minutes later, Ms. Lee heard gunshots. Another witness, Ms. Roslyn Johnson, a 
friend of both the defendant and co- defendant, testified that as she was walking 
home up Courtland Street she saw the defendant standing in the middle of the street 
talking to the victim who was still in his car. The defendant then began running and 
shooting at the victim ’s car. By this time, co -defendant McKenzie was across the 
street getting in his car with Monique Lee. The two of them drove away and tried 
to find the defendant who had fled on foot. They found the defendant at a 
Walgreen’s Drug Store where the defendant and co -defendant McKenzie had a 
conversation and then separated once again. 
 
Officer Cassidy was one of the first to arrive on the scene. Upon arrival, the officer 
saw a vehicle that had a broken window on the rear driver ’s side, the entire rear 
window was shattered and there were several bullet holes in the vehicle. The officer 
then went to the front of the car and found the victim lying unconscious on the 
driver’s seat. The cause of death was multiple gunshot wounds. 
Commw. v. Hill, No. 0477 2/2, 2001 WL 36043756, at *1 (Phila. C.P. Mar. 27, 2001); see also 
Commw. v. Hill, No. 799 EDA 2001, at 1–2 (Pa. Super. Ct. Jan. 29, 2002); see also R&R 2, ECF 
No. 40. 
About one month later, on November 26, 1999, Hill was arrested and charged with 
murder, possessing an instrument of crime (PIC), and criminal conspiracy in connection with the 
death of Turner. See Hill, 2001 WL 36043756, at *1. On December 7, 1999, Antonio McKenzie, 

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Hill’s cousin, was arrested for the same crimes. See id. n.2. Hill’s trial began on December 19, 
2000. See id. at *1. 
On December 20, 2000, Sharon Millsaps, who lived in the area of the shooting, and was 
friends with McKenzie and Hill, testified that she saw “Skeet”—Hill’s purported nickname —
shooting a 0.9 millimeter gun into the back of a car on the night of the shooting. See Hill Trial Tr. 
12/20/00 at 113:14–114:16, ECF No. 20-2. 
On December 21, 2000, McKenzie’s girlfriend, Monique Lee, testified at the trial that she 
heard McKenzie say to Hill, “I told you not to shoot him.” Tr. 12/21/00 at 39:17–41:16, ECF No. 
20-3. Also on December 21, 2000, Roslyn Johnson, who knew Hill, testified that she saw Hill 
shoot into the decedent’s car, while McKenzie was “across the street” “between 13th and 
Camac[.]” Tr. 12/21/00 at 126:22–127:24, ECF No. 20-4. 
“On December 22, 2000, [Hill] was [found guilty and] sentenced by [the Court of 
Common Pleas] to life imprisonment for murder in the first degree and a concurrent term of one 
(1) to two (2) years imprisonment for the PIC bill.”1 Hill, 2001 WL 36043756, at *1. Hill filed 
post-sentence motions on December 26, 2000. See id. The trial court denied the post-sentence 
motions on February 7, 2001. See id. 
On March 27, 2001, the trial court rejected Hill’s ineffective assistance claim, finding that 
Hill could not show that failing to request severance prejudiced him because McKenzie’s 
statements would come in as a co-conspirator statement, and that the evidence was sufficient to 
support the guilty verdict. See Hill, 2001 WL 36043756, at *1. The trial court noted that the 
“overwhelming” evidence diminished Hill’s ineffective assistance of counsel claim: 
 
1 McKenzie was acquitted of first-degree murder, PIC, and criminal conspiracy. See Hill, 
2001 WL 36043756, at *1 n.2. 

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Among the witnesses who testified, Monique Lee and Roslyn Johnson placed [Hill] 
at the scene of the crime. Ms. Johnson[ ,] who knew [Hill] also testified she 
witnessed [Hill] standing in the middle of Courtland Street in plain view running 
and shooting at the victim ’s car. The physical evidence shows several bullet holes 
in the victim’s vehicle - the rear window, the rear driver’s side and the trunk. 
Id.; see also App. 2 to Mem. in support of Pet. (“App.”) 181, ECF No. 20- 7. Regarding Hill’s 
sufficiency of the evidence challenge, the trial court found: 
The evidence shows that defendant [Hill] approached the victim’s car, spoke with 
the victim and then began shooting at the victim ’s car several times. Eyewitnesses 
unequivocally identified defendant and placed the defendant at the scene where 
they saw him shoot at the victim’s car while the victim was a captive in the car with 
nowhere to run. The defendant acted with a specific intent to kill by firing 
numerous shots at the victim, including shooting him in the back. Therefore, the 
defendant was properly convicted of first degree murder under the laws of the 
Commonwealth. 
Hill, 2001 WL 36043756, at *1. 
On March 7, 2001, Hill filed an appeal of the trial court’s denial of his post-sentence 
motions in the Pennsylvania Superior Court. See App. 182–95, ECF Nos. 20-7, 20-8. The 
Pennsylvania Superior Court affirmed Hill’s judgment of sentence on January 29, 2002. See Hill, 
No. 799 EDA 2001, at *1, see also App. 196–201, ECF No. 20-8. Hill petitioned for allowance 
of appeal to the Pennsylvania Supreme Court on February 27, 2002, but the Pennsylvania 
Supreme Court denied the petition for allowance of appeal on August 20, 2002. See Commw. v. 
Hill, 806 A.2d 859 (Pa. 2002) (table). 
On March 5, 2003, Hill filed his first Post Conviction Relief Act (“PCRA”) petition. See 
App. 202–12, ECF No. 20-8. The PCRA court denied his petition on January 23, 2004. See App. 
213–15, ECF No. 20-8. 
 
2 Hill presented evidence from his state court case, as well as new evidence, in an 
Appendix to his Memorandum in support of his Petition. See Mem. in support of Pet., ECF No. 
20. 

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On September 1, 2004, McKenzie, imprisoned for a separate offense, signed an affidavit 
admitting that he was guilty of murdering Turner. See McKenzie Aff., App. 220, ECF No. 20-8, 
see also App. 229, ECF No. 20-9; see also ECF No. 115-1. The affidavit said, relevantly: 
1. I was involved in the killing of a young man and for which I am absolutely guilty 
of the murder. 
2. I have kept this hidden for a long time but as I get closer to God in my faith I can 
not hide this any longer especially when an innocent person is in prison for the 
murder. 
3. I would like to talk to a state trooper in the Commonwealth of Penna., in 
confidence, and ask that one be designated to interview me. I will explain exactly 
what I am referencing when I say that I am guilty of killing a young man, and that 
another individual has been charged with this murder. 
4. I cannot be true to my faith and hide this any longer. 
5. I will explain what happened, and how the killing took place. 
Id. 
On February 2, 2005, Hill filed a second PCRA petition based on McKenzie’s affidavit, 
arguing that it was newly discovered evidence. See App. 216–25, ECF No. 20-8. Hill maintained 
that he received McKenzie’s affidavit from Hill’s mother on January 5, 2005, and did not become 
aware of its contents until that day. See id. at 218. On May 12, 2005, the PCRA court dismissed 
Hill’s second PCRA petition, explaining: 
Pursuant to 42 Pa. C.S. § 9545(b) (as amended, effective January 16, 1996), your 
second or subsequent petition for post conviction relief is untimely filed. While you 
allege new evidence ‘in the form of an affidavit from your acquitted co-defendant’ 
claiming he was responsible for the murder, not you, this affidavit is not ‘ new 
evidence.’ Accordingly, your claim does not fall within the exception to the time 
bar. [See] Commw. v. Abu-Jamal, 833 A.2d 719, 733–735 ( Pa. 2003) cert. denied 
Abu-Jamal v. Pennsylvania., 541 U.S. 1048 (2004). 
App. 226, ECF No. 20-8.
3 
 
3 Abu-Jamal held as follows: “[a] petitioner cannot establish the after-discovered evidence 
exception merely by alleging that possible ineffective assistance of counsel claims were 
unknown to the petitioner and could not have been discovered until after present counsel 
reviewed the petitioner’s file.” 833 A.2d at 733–34 (citation omitted). 

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McKenzie was murdered on February 29, 2008. See Mem. 13, ECF No. 20; see also 
Rasheed Thomas Aff. ¶ 8, App. 231, ECF No. 20-9. 
Hill filed a pro se Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on 
July 31, 2014, in the above-captioned action. See Pet., ECF No. 1. His Petition was filed more 
than one year after his judgment of conviction became final, but he asserted that the factual 
predicate of his claim was not discoverable sooner with due diligence. See id. He also suggests 
his actual innocence. See id. The Court appointed the Federal Community Defender Office for 
the Eastern District of Pennsylvania to represent Hill on November 20, 2014. See ECF No. 10. 
Hill filed a Memorandum of Law in support of his Petition on May 29, 2015, in which he 
withdrew some grounds and proceeded on a Bruton-based4 ineffective assistance of counsel 
claim and a gateway actual innocence claim.5 See Mem., ECF No. 20. 
Hill attached numerous affidavits to the Memorandum. See ECF Nos. 20-1–9. The first 
was an April 15, 2015 affidavit from Greg Hill, Hill’s and McKenzie’s uncle, stating that 
McKenzie had confessed to Greg Hill that he murdered Turner. See Greg Hill Aff., App. 232, 
ECF No. 20-9, see also ECF No. 115-3. The second was a May 8, 2015 affidavit from Monique 
Lee providing that McKenzie confessed to her that he killed Turner. See Lee Aff., App. 234–35, 
ECF No. 20-9; see also ECF No. 115-2. Her affidavit was signed, sworn, and notarized, and 
stated, in part: 
“After their trial in 2000, where Ivan [Hill] was convicted of Tyree’s murder and 
Antonio [McKenzie] was acquitted, Antonio confessed to me that his cousin, Ivan, 
 
4 Bruton v. United States, 391 U.S. 123, 126 (1968). 
5 A habeas petitioner may use a claim of actual innocence as a gateway to overcome a 
procedurally defaulted or time-barred habeas claim, to prevent a fundamental miscarriage of 
justice. See 28 U.S.C. § 2244(d)(1) (setting the period of limitation for application of a writ of 
habeas corpus); McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (describing actual innocence as 
a gateway through which a petitioner may pass to overcome a procedural bar such as a statute of 
limitations). 

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was locked up for something he, Antonio, did. He felt terrible about Ivan going to 
jail for a murder he didn’t do. Antonio told me one day that he would come forward 
and tell the truth.” 
Id. 
The third affidavit, dated May 29, 2015, was from Carl Hill, Hill’s and McKenzie’s 
uncle. See Carl Hill Aff., App. 233, ECF No. 20-9; see also ECF No. 115-4. The affidavit 
provided that McKenzie confessed to Carl Hill that he had killed Turner. See id. 
Hill also provided an undated letter, allegedly from McKenzie (called “Tone”) to Hill 
(called “Skeet”) wherein “Tone” confessed to the murder of Turner. See App. 227–28, ECF Nos. 
20-8, 115-5. 
On July 23, 2015, Respondents filed a Response in Opposition. See ECF No. 21. 
On January 6, 2020, Magistrate Judge Carol Sandra Moore Wells issued an R&R 
recommending that the Petition be denied. See R&R, ECF No. 40. She did not address whether 
Hill could demonstrate actual innocence to excuse the untimeliness of his Petition, noting that it 
presented a “difficult procedural question,” id. at 8, and found that the substantive ineffective 
assistance of counsel claim was meritless. See id. The Honorable Petrese Tucker fully adopted 
the R&R on February 22, 2021, and did not issue a certificate of appealability. See ECF No. 49. 
On March 23, 2021, Hill filed a Motion for Relief under Rule 60(b)(6), seeking to amend 
his Petition for a writ of habeas corpus to add a freestanding actual innocence claim. See Rule 
60(b) Mot., ECF No. 50. On March 24, 2021, Hill appealed the Court’s Order adopting the R&R 
to the Third Circuit. See ECF No. 51. The Third Circuit stayed the action on March 30, 2021, 
pending disposition of the Rule 60(b) Motion. See No. 21-1573 (3d Cir.). 
On March 21, 2022, Judge Tucker denied the Rule 60(b) Motion as an unauthorized 
second or successive petition under 28 U.S.C. § 2254. See ECF No. 63. Hill filed a motion to 

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reconsider the Court’s order, alleging that “[t]he Third Circuit makes clear that any amendment 
to raise a new claim at this stage would not constitute a successive habeas [P]etition, as [] Hill 
sought leave to amend his [P]etition before the time to appeal the denial of his first habeas 
[P]etition expired.” Mot. for Reconsideration, ECF No. 64. 
On June 10, 2022, Judge Tucker granted Hill’s motion for reconsideration of the order 
denying the 60(b) Motion after the parties agreed that adding a new claim was not a second or 
successive petition before all appellate remedies had been exhausted. See ECF No. 67 (citing 
United States v. Santarelli, 929 F.3d 95, 104–05 (3d Cir. 2019) (“[A] subsequent habeas petition 
is second or successive if it is filed after the petitioner has expended the one full opportunity to 
seek collateral review that AEDPA ensures, which we interpret in this context as meaning after 
the petitioner has exhausted all of her appellate remedies with respect to her initial habeas 
petition or after the time for appeal has expired.” (internal quotations and citations omitted))). 
On September 1, 2022, the case was reassigned to Judge Brody. See ECF No. 73. On 
January 3, 2024, Judge Brody ordered an evidentiary hearing on the Petition. See ECF Nos. 82–
83. On July 2, 2025, Hill filed a Motion to admit the affidavits of Antonio McKenzie and 
Monique Lee at the evidentiary hearing. See Mot. to Admit, ECF No. 115. Respondents did not 
file a response in opposition to the Motion to admit the affidavits, and the Court considers it 
unopposed. On February 17, 2026, the case was reassigned from Judge Brody to Judge Leeson. 
See ECF No. 120. On February 26, 2026, Hill moved to withdraw his request for an evidentiary 
hearing because defense investigators could not locate Lee for a second interview, presuming she 
would be unavailable to testify. See Mot. to Withdraw, ECF No. 121. Respondents also did not 
file a response in opposition to the Motion to Withdraw, and the Court considers it unopposed 
also. 

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III. LEGAL STANDARDS 
A. Motion for Relief under Rule 60(b) 
“Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of 
his case, under a limited set of circumstances including fraud, mistake, and newly discovered 
evidence.” Gonzalez v. Crosby, 545 U.S. 524, 528 (2005). Rule 60(b) of the Federal Rules of 
Civil Procedure provides: 
On motion and just terms, the court may relieve a party or its legal representative 
from a final judgment, order, or proceeding for the following reasons: 
(1) mistake, inadvertence, surprise, or excusable neglect; 
(2) newly discovered evidence that, with reasonable diligence, could not have been 
discovered in time to move for a new trial under Rule 59(b); 
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or 
misconduct by an opposing party; 
(4) the judgment is void; 
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier 
judgment that has been reversed or vacated; or applying it prospectively is no 
longer equitable; or 
(6) any other reason that justifies relief. 
Fed. R. Civ. P. 60(b). “A motion under Rule 60(b) must be made within a reasonable time—and 
for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the 
date of the proceeding.” Fed. R. Civ. P. 60(c). “[A] district court may only grant relief under Rule 
60(b)(6) in ‘extraordinary circumstances where, without such relief, an extreme and unexpected 
hardship would occur.’” Satterfield v. Dist. Att’y Phila., 872 F.3d 152, 158 (3d Cir. 2017) (citing 
Cox v. Horn, 757 F.3d 113 120 (3d Cir. 2014) (quoting Sawka v. Healtheast, Inc., 989 F.2d 138, 
140 (3d Cir. 1993)). Such extraordinary circumstances rarely exist in habeas cases. See Gonzalez, 
545 U.S. at 535. 
B. Actual Innocence Claims 
Generally, a claim of actual innocence, if proven by new reliable evidence, permits a 
court to review the merits of an otherwise defaulted claim and acts as a gateway for excusing 

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procedurally defaulted or time-barred claims. See House v. Bell, 547 U.S. 518, 554–55 (2006); 
see also McQuiggin, 569 U.S. at 386. Yet, the Supreme Court has never held that a freestanding 
actual innocence claim is cognizable. In Herrera v. Collins, 506 U.S. 390 (1993), the Supreme 
Court held 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 (“This rule is 
grounded in the principle that federal habeas courts sit to ensure that individuals are not 
imprisoned in violation of the Constitution – not to correct errors of fact.”); see also Fielder v. 
Varner, 379 F.3d 113, 122 (3d Cir. 2004); Wright v. Sup’t Somerset SCI, 601 F. App’x 115, 120 
(3d Cir. 2015) (same). Federal habeas courts are statutorily limited in jurisdiction, and may only 
“entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to 
the judgment of a State court only on the ground that he is in custody in violation of the 
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Claims of actual 
innocence are not “independent substantive claim[s].” Mbewe v. Delbalso, No. 16-1074, 2021 
WL 22458, at *20 (W.D. Pa. Jan. 4, 2021) (citing Brian R. Means, FEDERAL HABEAS 
MANUAL § 9B:84, Westlaw (database updated May 2020)). Although the Supreme Court left 
the door open for a future case to state a freestanding actual innocence claim, it has refused to 
resolve the issue because no petitioner has met the high showing to sustain an actual innocence 
claim. See Herrera, 506 U.S. at 417–19 (“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.”); House, 547 U.S. at 554–55 
(refusing, in a capital case, “to answer the question left open in Herrera and hold not only that 

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freestanding innocence claims are possible but also that he has established one. . . [because] 
whatever burden a hypothetical freestanding innocence claim would require, this petitioner has 
not satisfied it”); see also Bruce v. Warden Lewisburg USP, 868 F.3d 170, 183 (3d Cir. 2017) 
(“The Supreme Court has yet to decide whether a prisoner can obtain habeas relief based on 
a freestanding claim of actual innocence, having left the matter open time and again.”) (citation 
omitted) (abrogated on other grounds by Voneida v. Johnson, 88 F.4th 233, 237 (3d Cir. 2023)). 
Actual innocence refers to factual innocence, not legal insufficiency. See Sistrunk v. Rozum, 674 
F.3d 181, 191 (3d Cir. 2012) (citation omitted); see also Reeves v. Fayette SCI, 897 F.3d 154, 160 
(3d Cir. 2018), as amended (July 25, 2018). 
In the Third Circuit, freestanding actual innocence claims, assuming they are cognizable, 
“are to be initially tested against the more relaxed (but still stringent) actual innocence gateway 
standard.” Bruce, 868 F.3d at 184 (citing United States v. Tyler, 732 F.3d 241, 246 (3d Cir. 
2013)). This standard requires a petitioner to “(1) present new, reliable evidence of his 
innocence; and (2) show by a preponderance of the evidence that it is more likely than not that 
no reasonable juror would have convicted him ... in light of the new evidence.” Wallace v. 
Mahanoy, 2 F.4th 133, 151 (3d Cir. 2021); see also Schlup v. Delo, 513 U.S. 298, 324, 327–28 
(1995) (providing the rule to state a gateway actual innocence claim); see also Bousley v. United 
States, 523 U.S. 614, 623 (1998) (internal quotation marks omitted). When analyzing the first 
step, the court “may consider how the timing of [the petitioner’s] submission and the likely 
credibility of the [witnesses] bear on the probable reliability of that evidence,” as well as the 
circumstances surrounding the evidence. Reeves, 897 F.3d at 161 (citing House, 547 U.S. at 537, 
551 (citing Schlup, 513 U.S. at 331–32)). In evaluating the second step— whether it is more 
likely than not no reasonable juror would convict the petitioner—the court “must consider all the 

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evidence, old and new, incriminating and exculpatory, without regard to whether it would 
necessarily be admitted under rules of admissibility that would govern at trial.” Reeves, 897 F.3d 
at 161 (citing House, 547 U.S. at 538 (citing Schlup, 513 U.S. at 327–28)). “[T]o balance the 
societal interests in finality ... and conserv[e] scarce judicial resources with the individual interest 
in justice that arises in the extraordinary case,” Schlup, 513 U.S. at 324, the gateway standard is 
purposefully “demanding” and formulated to ensure that a successful petitioner’s case is “truly 
extraordinary.” House, 547 U.S. at 537–38 (internal quotation marks omitted); see 
also McQuiggin, 569 U.S. at 386 (warning that “tenable actual-innocence gateway pleas are 
rare”). 
“Failure to meet the [actual innocence] gateway standard is sufficient to reject any 
hypothetical freestanding actual innocence claim.” Bruce, 868 F.3d at 184 (citing Albrecht v. 
Horn, 485 F.3d 103, 126 (3d Cir. 2007)). If this standard is met, then the court applies “the 
‘extraordinarily high’ threshold implied in Herrera’s freestanding innocence claim.” Albrecht, 
485 F.3d at 122. See also Herrera, 506 U.S. at 426–27 (O’Connor, J., concurring) (“If the federal 
courts are to entertain claims of actual innocence, their attention, efforts, and energy must be 
reserved for the truly extraordinary case.”). 
IV. ANALYSIS 
The Court denies Hill’s Rule 60(b) Motion. Hill seeks to amend his habeas Petition “to 
raise a stand-alone claim that his actual innocence constitutes a basis upon which the Court may 
issue a writ of habeas corpus.” Rule 60(b) Mot. 2. According to Hill, “[t]he equities of [his] case 
constitute extraordinary circumstances that merit Rule 60(b) relief from judgment so that the 
Court can consider a stand-alone actual innocence claim.” Id. at 4. Hill argues that (1) if the 
Court does not review his actual innocence claim, there is a risk of a miscarriage of justice 

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because an innocent person (Hill) “would be imprisoned for the rest of his life without the 
possibility of parole;” (2) courts have recognized a freestanding actual innocence claim, 
including courts in the Ninth Circuit; (3) “Hill’s actual innocence has not been reviewed by any 
Court;” and (4) “the parties have already fully briefed [] Hill’s actual innocence to this Court.” 
Id. at 4–6. 
Although Hill presented the 2004 McKenzie affidavit before a Pennsylvania state court 
with his second PCRA petition, he did not present the 2015 Lee and Hill affidavits, nor the 
undated “Tone” and “Skeet” letter, before a Pennsylvania state court on PCRA review. “Any 
[PCRA] petition invoking an exception [for newly discovered evidence] shall be filed within one 
year of the date the claim could have been presented.” 42 Pa. C.S. § 9545(b)(2). Hill obtained the 
Lee and Hill affidavits in 2015. Eleven years have since passed. Similarly, if McKenzie wrote the 
letter, it would have been ostensibly before February 2008, meaning almost two decades have 
since elapsed. Thus, because the one-year period has passed to bring a PCRA claim based upon 
the Lee and Hill affidavits and the letter, Hill likely could not successfully bring a third PCRA 
claim based upon the alleged newly discovered evidence. This Court is barred from considering 
this evidence for the first time. See Givens v. Kelly, No. 12-365, 2013 WL 1136739, at *5–6 
(W.D. Pa. Mar. 18, 2013) (explaining that the AEDPA barred the district court from considering 
“late produced letters supposedly written by Patrice Rogers wherein she allegedly expresses a 
desire to recant her trial testimony because Petitioner failed to adduce these letters in the PCRA 
proceedings”). Nevertheless, because Hill cannot establish actual innocence, all the evidence is 
addressed. 
Initially, the United States Supreme Court has not yet found a freestanding actual 
innocence claim to be cognizable. See Herrera, 506 U.S. at 400; McQuiggin, 569 U.S. at 386, 

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392; cf. In re Davis, 557 U.S. 952 (2009). Although neither the Supreme Court nor the Third 
Circuit has directly foreclosed the possibility of recognizing a freestanding actual innocence 
claim, no case has met the high standard required to award habeas relief. See Reeves, 897 F.3d at 
160 n.4 (“[T]o the extent [freestanding actual innocence claims] are [cognizable], they are 
assessed under a more demanding standard, since the petitioner’s claim is that his conviction is 
constitutionally impermissible ‘even if his conviction was the product of a fair trial[.]’”). Hill’s 
request to amend his Petition to add a freestanding actual innocence claim is therefore denied 
because a freestanding actual innocence claim is not cognizable. 
To the extent that Hill could bring a freestanding actual innocence claim, the Court notes 
that this is not a case warranting such “truly extraordinary” relief. House, 547 U.S. at 537–38. 
Rather, the evidence he presented does not meet the extremely high burden that would be 
necessary to succeed in a freestanding actual innocence claim. The Court notes that the presented 
affidavits and the letter have credibility issues. See Schlup, 513 U.S. at 331–32 (noting that a 
“court may consider the timing of the submission and the likely credibility of the affiants bear on 
the probable reliability of that evidence”). 
First, the Court considers the McKenzie affidavit and notes that it presents numerous 
credibility issues. The McKenzie affidavit was signed and dated four years after the murder and 
almost four years after Hill’s trial. Furthermore, the court acquitted McKenzie of murder in 2000 
so when he signed the affidavit four year later McKenzie knew he could not be tried again for the 
murder. See Givens, 2013 WL 1136739, at *8 (denying a habeas petition for failing to meet the 
gateway actual innocence standard, and therefore the freestanding standard, and noting that the 
affidavit from the petitioner’s co-defendant suffered from credibility issues because “this 
statement was given by a convicted co-defendant in this crime who only made the statement after 

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he had been sentenced for his participation and therefore had nothing to lose by attempting to aid 
the cause of his co-conspirator raises a significant question as to its reliability”). Finally, it is 
impossible to cross-examine McKenzie, because he was murdered in 2008. See Herrera, 506 
U.S. at 417 (“In the new trial context, motions based solely upon affidavits are disfavored 
because the affiants’ statements are obtained without the benefit of cross-examination and an 
opportunity to make credibility determinations.”). Thus, the McKenzie affidavit is insufficient to 
meet the high burden to sustain a freestanding actual innocence claim. See Thomas v. Sec’y Pa. 
Dep’t of Corr., 495 F. App’x 200, 207 (3d Cir. 2012) (determining that the defendant “cannot 
establish actual innocence based on the hearsay evidence of a deceased witness alone”). 
Additionally, the letter from “Tone” to “Skeet” poses similar credibility issues. It is not 
signed by McKenzie beyond being identified as “Tone,” which calls into question whether 
McKenzie wrote the letter. The letter is also not dated, so it is unclear when it was written. Even 
if McKenzie wrote the letter, he did not sign it under penalty of perjury and cannot be subject to 
cross-examination under oath about the truthfulness of the letter, since he is deceased. Just like 
the affidavit, the letter is insufficient to meet the high burden of a freestanding actual innocence 
claim. See Scott v. Lavan, 190 F. App’x 196, 198–99 (3d Cir. 2006) (concluding that the evidence 
did not support a finding of actual innocence because “[t]he reliability of this evidence is dubious 
[as m]ost of these statements are undated and unsworn, and many of the accounts constitute 
hearsay”). 
Similarly, the Lee and Hill affidavits present credibility issues. They are from 2015: over 
fifteen years after the murder and almost fifteen years after Hill’s trial. The Court likewise views 
all three new affidavits with suspicion. 

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The Lee affidavit is inconsistent with her testimony from the trial. At her trial, Lee 
testified that she heard McKenzie tell Hill, “I told you not to shoot him.” Tr. 12/21/00 at 39:17–
41:16. Her new affidavit contradicts that testimony and maintains that McKenzie admitted to her 
that he did the murder, and Hill did not commit the murder. As such, the Court views her 2015 
affidavit, apparently recanting her trial testimony, with suspicion. See Landano v. Rafferty, 856 
F.2d 569, 572 (3d Cir. 1988) (“Courts have historically viewed recantation testimony with great 
suspicion.”); Tillery v. Clark, No. 20-2675, 2024 WL 6971165, at *7 (E.D. Pa. Sept. 3, 2024), 
report and recommendation adopted, No. 20-2675, 2026 WL 27822 (E.D. Pa. Jan. 5, 2026) 
(citation omitted) (“Unless other evidence or circumstances corroborate the recantation, a 
recantation will normally fail the test of reliability” to satisfy the actual innocence gateway 
standard, and thus not the higher freestanding actual innocence standard). Additionally, Hill has 
been unable to locate and interview Lee to testify at a potential evidentiary hearing, even after 
investigators contacted her over a dozen times. See Mot. to Admit 5–6. There is no way to test 
her credibility, since she could not be subject to cross-examination. The Lee affidavit is thus 
insufficient to meet the burden required to bring a freestanding actual innocence claim. 
The same problem arises with the Gregory and Carl Hill affidavits. Both affidavits are 
based upon McKenzie’s alleged statements to them. Neither Carl nor Gregory Hill has any 
independent evidence apart from McKenzie’s hearsay confessions to them. Both affidavits 
therefore pose the same credibility issues raised above about McKenzie’s confession and fail to 
satisfy the high burden for establishing actual innocence. 

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Moreover, Hill made no effort to bring the new affidavits or the letter before a state court 
on PCRA review.6 He only brings this evidence for the first time before this Court. This Court 
recognizes that “considerations of finality and comity must yield to the fundamental right not to 
be wrongfully convicted.” Satterfield., 872 F.3d at 164 (citing House, 547 U.S. at 536–37). 
However, “[i]n the absence of a strong showing of ‘actual innocence,’ Murray v. Carrier, [477 
U.S. 478, 496 (1986], the State’s interests in actual finality outweigh the prisoner’s interest in 
obtaining yet another opportunity for review.” Calderon v. Thompson, 523 U.S. 538, 557 (1998). 
Since Hill cannot meet the standard for actual innocence, equitable factors do not support 
granting his Rule 60(b) motion. 
In addition to the fact that the letter and affidavits are insufficient to meet the high bar 
required to prevail on a freestanding actual innocence claim, the record shows independent 
evidence of Hill’s guilt. In denying Hill’s ineffective assistance of counsel and sufficiency of the 
evidence claims, the trial court noted that “overwhelming” evidence supported Hill’s guilt. Hill, 
2001 WL 36043756, at *1. For example, the trial court noted that Roslyn Johnson testified that 
she saw Hill shoot into the car where the decedent was located. See id. Witness Sharon Millsaps 
testified the same. See Tr. 12/20/00 at 113:14–114:16. Additionally, the physical evidence 
showed bullet holes in the decedent’s vehicle, where the decedent died from gunshot wounds. 
Hill, 2001 WL 36043756, at *1. Hill provides no evidence to rebut Johnson’s or Millsaps’s 
testimony. Thus, the record provides additional evidence of Hill’s guilt, regardless of the 
presented affidavits and letter. 
 
6 Although Hill presented the 2004 McKenzie affidavit before a Pennsylvania state court 
with his second PCRA petition, he did not present the 2015 Lee and Hill affidavits, nor the 
undated “Tone” and “Skeet” letter, before a Pennsylvania state court on PCRA review. 

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Therefore, the Court denies Hill’s Rule 60(b) Motion.7 
V. CONCLUSION 
For the aforementioned reasons, the Court denies Hill’s Rule 60(b) Motion because a 
freestanding actual innocence claim is not cognizable, Hill has not first presented the new 
evidence before a state court on PCRA review, and the presented affidavits do not meet the high 
burden necessary to award habeas relief in a freestanding actual innocence claim. Since the 
Court denies Hill’s Rule 60(b) Motion, the Court also dismisses the Motion to Admit Affidavits 
and Motion to Withdraw the request for an evidentiary hearing as moot. 
A separate Order follows. 
BY THE COURT: 
 
 /s/ Joseph F. Leeson, Jr.________ 
 JOSEPH F. LEESON, JR. 
 United States District Judge 
 
 
7 A certificate of appealability (“COA”) should only be issued “if the petitioner ‘has made 
a substantial showing of the denial of a constitutional right.’” Tomlin v. Britton, 448 F. App’x 
224, 227 (3d Cir. 2011) (citing 28 U.S.C. § 2253(c)). “Where a district court has rejected the 
constitutional claims on the merits, . . . the petitioner must demonstrate that reasonable jurists 
would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 
v. McDaniel, 529 U.S. 473, 484 (2000). “When the district court denies a habeas petition on 
procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA 
should issue when the prisoner shows, at least, that jurists of reason would find it debatable 
whether the petition states a valid claim of the denial of a constitutional right and that jurists of 
reason would find it debatable whether the district court was correct in its procedural ruling.” Id. 
Out of an abundance of caution, the Court will grant a COA as to Hill’s freestanding actual 
innocence claim only. 

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