Charles J. GOLDBLUM, Appellant v. Edward J. KLEM, Superintendent, SCI Mahanoy; District Attorney of Allegheny County, Pennsylvania; and the Attorney General of the Commonwealth of Pennsylvania, 510 F.3d 204

OPINION OF THE COURT GREENBERG, Circuit Judge. I. INTRODUCTION This matter is before the court on Charles J. Goldblum’s appeal from the denial of his second petition for a writ of habeas corpus. Goldblum, who is currently serving a life sentence following his conviction for first-degree murder, filed his second petition after receiving our authorization to do so under 28 U.S.C. § 2244(b)(3)(A).

The district court, in adopting a magistrate judge’s Report and Recommendation, dismissed the second petition based on Goldblum’s failure to satisfy the requirements applicable to second petitions under 28 U.S.C. § 2244(b)(4) and its predecessor, the abuse-of-the-writ doctrine, which as we will discuss, was implicated because Goldblum filed his first habeas corpus application before the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (“AED-PA”).

Goldblum believes that the magistrate judge erred in three ways: she (1) was required to conduct an evidentiary hearing to determine whether he abused the writ; (2) applied the wrong legal standard under the “cause” element of the abuse-of-the-writ doctrine; and (3) wrongly found that Goldblum is not “actually innocent” of the murder for which he has been convicted, which actual innocence would have excused his noncomplianee with the procedures ordinarily required for habeas corpus proceedings to avoid his petition being barred by the abuse-of-the-writ doctrine.

We find Goldblum’s arguments unpersuasive and thus will affirm the order of the district court, thereby upholding the dismissal of his second habeas application. II. FACTS AND PROCEDURAL HISTORY The events and procedural history leading up to this appeal are quite complicated and lengthy. We therefore will discuss them only as they relate to this appeal. A. The Underlying Convictions At Goldblum’s Pennsylvania state-court trial on charges of murder, arson, and insurance fraud, the prosecution put forth the following facts. In 1974, Clarence Miller met George Wilhelm.

At that time, they discussed Wilhelm’s interest in purchasing land in North Carolina on which Wilhelm planned to search for semiprecious stones and gemstones. Miller discovered that the land that Wilhelm was interested in purchasing was federal forest land and was not for sale. Miller, however, told Wilhelm that he would use his “political connections” to assist him to purchase the land.

Miller, however, did not have these so-called “political connections.” Instead, he devised a scheme to defraud Wilhelm in which he planned to tell Wilhelm that he would work out a special political deal with the help of a United States senator to obtain the government-owned land. Miller contacted Thaddeus Dedo and Goldblum to assist him in executing this fraud.

Dedo, under Goldblum’s guidance, impersonated an actual member of the senator’s staff, Ken Manella, and made several phone calls to Wilhelm confirming the deal leading Wilhelm to give Miller a series of payments totaling approximately $20,000 for the consideration to put through the purchase. In exchange, Miller gave Wilhelm fake deeds to land in North Carolina that Goldblum apparently drafted. The scheme began to unravel when Wilhelm went to the senator’s office to meet with “Ken Manella.” Wilhelm immediately became suspicious that he had been defrauded when the real Ken Manella appeared.

Wilhelm reported his suspicions to the Federal Bureau of Investigation. The FBI, however, terminated its investigation when Goldblum and Miller persuaded Wilhelm to withdraw his complaint in exchange for Goldblum’s and Miller’s promise that Wilhelm would get his money back. Wilhelm did withdraw it by asserting to the FBI that his complaint was a hoax. The plot then thickened as the money to repay Wilhelm was not readily available.

In order to raise the money, Wilhelm agreed with Goldblum to participate in an insurance fraud scheme in which Wilhelm would set fire to a restaurant Goldblum leased and operated, but Goldblum’s parents owned. In return, Goldblum was to pay Wilhelm $3,500 in addition to the money taken from him in the land fraud. The restaurant burned to the ground as a result of arson on November 30, 1975. Gold-blum paid Wilhelm $100, but when no one paid Wilhelm the remaining money, Wilhelm, who surely was not short of nerve, began pressing Goldblum for payment and threatening him that he would go to the authorities.

Goldblum, understandably in Anew of Wilhelm’s previous contact Avith the FBI, obtdously took Wilhelm’s threats seriously for on February 8, 1976, he told Miller that he intended to beat Wilhelm up to discourage him from pressing him for the debt payment or going to the authorities. Miller agreed to assist in this plan by luring Wilhelm to the top floor of a parking garage in exchange for $50 and Miller did so by telling Wilhelm that Goldblum had the money he was due.

On February 9, 1976, the three of them, with Wilhelm driving, Miller sitting in the front passenger seat, and Goldblum sitting in the back seat behind the driver, drove to the top floor of a parking garage in downtown Pittsburgh. This case revolves around what happened next, a matter in some dispute. Miller contended at Goldblum’s trial that Goldblum struck Wilhelm in the back of the head with a wrench and Wilhelm fell out the car, at which time Goldblum began stabbing him with a grass shear blade and Wilhelm fell over a wall.

Goldblum, on the other hand, claims that Miller and Wilhelm got into a fight while in the car, leading to the stabbing, following which Wilhelm opened his door to the car and fell to the ground, at which time Miller flipped him over the wall. In any event, Goldblum and Miller left the scene together and agreed that they would say that they only had seen Wilhelm earlier in the evening, but they were not with him at the time of the murder. Wilhelm was found later that night, crying for help. When police arrived at the scene, Wilhelm said to them, “Clarence Miller did this to me.” Wilhelm died a few hours later.

The police arrested Miller and when he, in turn, implicated Goldblum, police arrested Goldblum as well. Gold-blum was released on bail. The police, however, fortunately engaged in a surveillance of Goldblum, during which he was observed arranging for Miller’s murder with an undercover detective. Consequently, they arrested Goldblum on a charge for that new offense and returned him to jail.

The authorities filed a complaint against Goldblum in the Court of Common Pleas of Allegheny County charging him with murder and voluntary manslaughter of Wilhelm, criminal conspiracy in relation to the fraudulent land deal, and arson and criminal solicitation to commit arson of the restaurant. They also charged Miller in the stabbing death of Wilhelm. Goldblum proceeded to trial. The prosecution argued that Goldblum killed Wilhelm with the motive to silence him regarding the arson that they had committed. Goldblum, on the other hand, argued that he was not guilty of anything.

The defense focused on Miller’s obviously suspect credibility, as he was the prosecution’s central witness, as well as the physical evidence that, according to Gold-blum, tended to establish that Miller did the stabbing. In particular, Goldblum’s attorney argued to the jury that while blood was found on Miller’s overcoat, no blood was found on Goldblum’s clothes.

He also introduced circumstantial evidence relating to the pattern of the blood spatter on the dashboard of the car that the three men had occupied, which suggested that the person sitting to the right of Wilhelm, i.e., Miller, not the person in the back seat, i.e., Goldblum, did the stabbing. His attorney also introduced into evidence Wilhelm’s dying declaration that “Clarence Miller did this to me.” The court instructed the jury both on the theory that Goldblum was guilty of murder in the first degree for the direct assault and the theory that he was an accomplice to murder in the first degree.

On August 30,1977, a jury found Goldblum guilty of murder in the first degree for the death of Wilhelm, as well as conspiracy to commit theft by deception, arson, and criminal solicitation to commit arson. The court did not ask the jury to determine whether Goldblum directly participated in the assault or was an accomplice to Miller’s action, and the jury did not make a finding on this point. The court sentenced Goldblum to life in prison on the murder conviction and an additional 15 to 30 years imprisonment for the other offenses.

Goldblum was unsuccessful on his direct appeal during which he argued that Miller suffered from organic brain damage that impacted on his ability to distinguish fact from fiction. See Commonwealth v. Gold-blum, 287 Pa.Super. 544, 427 A.2d 258 (1980) (Superior Court affirming convictions except conspiracy count), rev’d in part, 498 Pa. 455, 447 A.2d 234 (1982) (Supreme Court reversing Superior Court on conspiracy count and affirming other convictions). The state courts similarly denied his petition for post-conviction relief. B.

Goldblum’s First Federal Habeas Corpus Petition Goldblum subsequently sought relief in the federal courts, filing his first petition for a writ of habeas corpus in the district court on July 14,1989. In that petition, he presented the following two claims: 1. Whether the denial of [Goldblum’s] pretrial application for psychiatric examination of the prosecution’s only eyewitness [Miller], coupled with the denial of his motion for [a] new trial based on after discovered evidence providing a basis for attacking the credibility of that witness, together denied [Goldblum] due process under the Fourteenth Amendment. 2.

Whether the admission into evidence of the out-of-court declarations of Wilhelm that [Goldblum] had participated in the land fraud and that Wilhelm had participated in the arson of Goldblum’s restaurant deprived him of his right to confront the witnesses against him guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The district court denied his petition on the merits, following which on Goldblum’s appeal we affirmed the order of the district court without a published opinion on November 26, 1991. Goldblum v. Fulcomer, 950 F.2d 722 (3d Cir.1991) (table).

The Supreme Court denied Goldblum’s application for a writ of certiorari on April 27, 1992. Goldblum v. Fulcomer, 503 U.S. 1005, 112 S.Ct. 1760, 118 L.Ed.2d 423 (1992). C.

Back to the State Courts After the completion of the unsuccessful habeas corpus proceedings, Goldblum returned to the state courts, this time filing a petition for post-conviction relief under the Post-Conviction Relief Act (“PCRA”) on January 12, 1996, wherein he raised a litany of issues, including the discovery of evidence relating to forensic proof of blood spatter, Miller’s alleged post-trial confessions, and ineffective assistance of counsel relating to the failure of his trial attorney to investigate evidence pertaining to the blood spatter and present the expert testimony of Dr.

Cyril Wecht, a forensic pathologist, who would have testified that based on the physical evidence Goldblum could not have been the assailant. In support of this physical evidence theory, Gold-blum filed Dr. Wecht’s affidavit in which he “concluded to a reasonable degree of medical certainty that Mr. Goldblum was not the individual who inflicted the fatal stab wounds to Mr. Wilhelm.” App. at 21. Dr. Wecht based this conclusion substantially on the location of the blood spatter on the dashboard, as well as the lack of blood on Goldblum’s clothes.

In addition, Goldblum submitted two other expert witnesses’ affidavits expressing opinions similar to those of Dr. Wecht. Goldblum subsequently added a claim to his petition that his trial attorney was ineffective for failing to object to the trial court’s instruction on accomplice liability. On February 12, 1997, the state court dismissed the petition without holding an evidentiary hearing, finding that all of the claims Goldblum raised either had been litigated previously or were too old to be considered.

On Goldblum’s appeal, the Superior Court affirmed, concluding that all his claims were waived, previously litigated, or meritless, except the claim that his trial attorney was ineffective for failing to call Dr. Wecht as a witness at the trial. The Superior Court remanded the case to the trial court for an evidentiary hearing solely on that issue. The trial court held an evidentiary hearing on October 18, October 19, and December 19, 2000. The first witness was Gold-blum’s trial attorney, H. David Rothman.

Rothman testified that he did not conduct an investigation with respect to the blood spatter evidence because “the police did not photograph or preserve the blood spatters that were found on the dashboard of Mr. Wilhelm’s car.” He had not consulted a pathologist before the trial because he believed, based on the literature he had seen, that the evidence that could be developed would have been unreliable. Therefore, Rothman argued at trial, without the aid of expert testimony, that based on the circumstantial physical evidence showing that the blood spatter went in the direction of Miller, Miller was the killer.

Dr. Wecht testified next, and on direct examination, he expounded upon his affidavit. On cross-examination, however, he conceded that there were other possible factual scenarios that would explain the pattern of the blood spattering. The court refused to take testimony from the other forensic experts who would have supported Dr. Wecht’s opinion, and also would not take the testimony of an expert in police investigation who was critical of the lack of photographs of the dashboard and an attorney who would have testified as to the actions Goldblum’s trial attorney should have taken to investigate this case.

The Commonwealth presented a rebuttal witness, Toby Wolson, a forensic biologist employed by the Miami-Dade Florida Police Department, who was testifying independently from that relationship as a forensic consultant. Wolson testified that the limited description of the blood spatter prevented both Dr. Wecht and him from reaching a reliable conclusion as to the identity of the assailant. Detective Ron Freeman had been the only witness at the trial who explained the location of the blood spatter.

Freeman testified at the trial that: When I saw there were a small line of blood droplets, and it was not a lot of blood there, but they were discernable droplets and they started on the — toward the driver’s side was the largest spot, and then they descended into smaller circles, and each circle has what is called ‘a tail’ and the ‘tail’ was facing toward the passenger side of the automobile and that indicated that blood came from left to right, as I faced it or traveled from the driver’s side of the automobile to the passenger’s side of the automobile.

On August 22, 2001, the state court issued an opinion and order denying Gold-blum PCRA relief, holding: [T]his Court is mindful that no photographs or other evidence of the blood stain existed. The testimony of both Dr. Wecht and Mr. Wolson was premised on the fact that Detective Freeman’s brief description [at the trial] of the blood stain was accurate. A review of the testimony presented indicated that both experts were hesitant to declare their findings absolute without being able to see the blood stain in question.

Although the experts did make tentative findings, their testimony essentially amounted to speculation due to their inability to make conclusive findings. App. at 265-66. The court explained its decision to exclude the other potential witnesses on the basis that the limited scope of the remand did not give it authority to hear that testimony. Goldblum appealed, but on October 24, 2002, the Superior Court affirmed the denial of PCRA relief, concluding that due to the “fundamentally inconclusive” nature of Dr.

Wecht’s testimony, the court could not conclude that the outcome of the trial would have been different had Dr. Wecht testified at the trial. Id. at 280. The Superior Court also found that the PCRA court’s decision to limit the testimony based on the scope of the remand was proper. Subsequent petitions for an allowance of appeal in the Supreme Court of Pennsylvania, Commonwealth v. Goldblum, 573 Pa. 689, 825 A.2d 637 (2003), and for a writ of certiorari with the United States Supreme Court, Goldblum v. Pennsylvania, 540 U.S. 1119, 124 S.Ct. 1067, 157 L.Ed.2d 914 (2004), were denied. D.

Goldblum’s Second Federal Habeas Corpus Petition and Appeal On February 26, 2004, Goldblum filed a motion with us seeking authorization under 28 U.S.C. § 2244(b)(3) to file a second petition for a writ of habeas corpus, which we granted on March 29, 2004. Goldblum promptly filed his second application for a writ of habeas corpus in the district court on April 2, 2004, asserting the following claims as recast before the magistrate judge: 1.

Trial counsel (as well as successor state counsel) were ineffective for failing to investigate, preserve and produce vital scientific evidence of blood spatter that would have proven that the Commonwealth’s principal witness, Clarence Miller, was the person who stabbed and killed the victim, Mr. Wilhelm. 2. Trial counsel (as well as successor state counsel) was ineffective for failing to object to the state trial court’s erroneous and prejudicial instruction regarding accomplice liability. Specifically, there was no objection to (

a) the trial court’s failure to instruct the jury that it could not find [Goldblum] as an accomplice unless they found beyond a reasonable doubt that [Goldblum] acted with the specific intent to kill in acting as an accomplice or (

b) the trial court’s instruction to the jury that Clarence Miller was an accomplice of [Gold-blum]. 3. The trial court’s instruction to the jury on accomplice liability was constitutionally flawed and deprived [Goldblum] of due process of law. 4. The Commonwealth’s loss and/or destruction of the investigative files was done intentionally and with the purpose of depriving [Goldblum] of evidence that would support his legal claims, including his claim of innocence, all in violation of [Gold-blum’s] right to due process of law. 5.

Newly discovered evidence regarding the Commonwealth’s principal witness, Clarence Miller, provides strong proof that [Goldblum] is innocent of the crime of murder and that the conviction was based on perjured testimony. Mr. Miller has admitted stabbing the victim and, while he continues to insist that [Goldblum] was also involved, his admissions to a Warden and the State Attorney General are entirely inconsistent with his trial testimony, and are supportive of [Goldblum’s] claims of innocence.

In these circumstances, this evidence provides grounds for a new trial on grounds of due process of law. 6.The state courts failed to provide [Goldblum] with a full and fair post-conviction hearing on these claims and thereby denied him due process of law. Appellant’s br. at 29. On October 28, 2005, a magistrate judge to whom the district court assigned the matter, without holding an evidentiary hearing, issued a Report and Recommendation dismissing Goldblum’s second application for a writ of habeas corpus on the procedural ground that it did not satisfy the requirements for second petitions.

Based on our opinion in In re Minarik, 166 F.3d 591 (3d Cir.1999), in which we discussed the retroactivity of the AEDPA’s gatekeeping provision, the magistrate judge examined Goldblum’s second application under both

section 2244 of the AEDPA and its predecessor, the abuse-of-the-writ doctrine. She began with her analysis under the AEDPA standard found in 28 U.S.C. § 2244(b), and recommended dismissal of Goldblum’s six claims because Goldblum either had presented them in his first habeas corpus application, thus requiring their dismissal under

section 2244(b)(1), or he had not presented them, and the claims did not rely on a new rule of constitutional law or meet the two-part standard of

section 2244(b)(2)(B). The magistrate judge next analyzed the claims under the pre-AEDPA standard “to determine if there [was] a conflict” between pre- and post-ADEA standards in which event the claims, if any, the pre-AEDPA regime did not bar would have to be addressed on their merits in order to circumvent “a retroactivity issue” with respect to the application of the AEDPA. We discuss this retroactivity problem in detail below. The magistrate judge set forth the abuse-of-the-writ standard discussed in Minarik, 166 F.3d 591, in which we concluded that there is an abuse of the writ precluding claims presented in second petitions unless (

a) petitioner establishes “cause” for not including the claim in the first petition and “prejudice,” or (

b) there would be a “fundamental miscarriage of justice” if the claim is not reviewed on its merits. She held that Goldblum did not establish “cause” for his failure to present his first claim (ineffective assistance of counsel relating to the blood spatter evidence) in the original habeas corpus petition, nor was there a fundamental miscarriage of justice as there was no physical evidence depicting the blood spatter which would have allowed counsel to pursue the defense.

She gave a presumption of correctness to the PCRA court’s factual findings, rebuttable only by clear and convincing evidence under 28 U.S.C. § 2254(e)(1), with respect to the state court’s conclusion as to the speculativeness of Dr. Wecht’s testimony. The magistrate judge also refused to grant Goldblum an evidentiary hearing under 28 U.S.C. § 2254(e)(2), as she found that the state court had developed the factual basis of his claims sufficiently in conducting a lengthy hearing on the issue of ineffective assistance and the state-court record included extensive exhibits. She further concluded that even if Dr.

Wecht’s testimony had been introduced at trial, it certainly was not “outcome determinative” in light of the overwhelming evidence of guilt implicating Goldblum in the murder, and thus, there was no miscarriage of justice. The magistrate judge concluded with respect to the second and third claims (ineffective assistance of counsel relating to his failure to object to the jury instruction regarding accomplice liability), that there was no “cause” as the law governing the instruction was known at the time that Goldblum filed his original habeas corpus petition.

Nor was there a “miscarriage of justice” in which the alleged error “probably resulted in the conviction of one who is actually innocent” as the jury charge sufficiently informed the jury that specific intent was required to convict for first-degree murder on accomplice liability. Similarly, as to the fifth claim (Miller’s admissions), the magistrate judge found that there was no “actual prejudice” as Miller’s out-of-court declaration, which we will describe below, did not exonerate Goldblum.

In fact, Miller continues to assert that Goldblum participated in the killing, although Miller now admits that he, too, inflicted some of the wounds. The magistrate judge also recommended dismissal of Goldblum’s fourth and sixth claims for similar reasons, but we need not elaborate on this reasoning as this appeal does not focus on these claims.

Based on her conclusions that neither the AEDPA nor the pre-AEDPA abuse-of-the-writ doctrine permitted Goldblum’s second application, the magistrate judge recommended that the court dismiss Gold-blum’s second petition and that a certificate of appealability (“COA”) not be issued. On December 13, 2005, the district court issued an order adopting the magistrate judge’s Report and Recommendation as the opinion of the court, dismissing the petition for a writ of habeas corpus, and denying the COA. Goldblum appealed on January 12, 2006.

On November 6, 2006, we issued a COA limited to the following question: [Wjhether the District Court erred in concluding that Goldblum’s habeas petition constitutes an abuse of the writ, as Goldblum has shown that reasonable jurists would debate not only whether the District Court was correct in that procedural ruling but also whether his petition states a valid constitutional claim. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000). App. at 3.

Goldblum’s central arguments on this appeal are that the magistrate judge, and thus the district court, erred in the following three ways: she (1) was required to conduct an evidentiary hearing to determine whether Goldblum abused the writ; (2) applied the wrong legal standard under the “cause” element of the abuse-of-the-writ doctrine; and (3) wrongly found that Goldblum is not actually innocent of the murder for which he has been convicted, thus excusing his procedural noncompliance under the abuse-of-the-writ doctrine. III.

JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction pursuant to 28 U.S.C. §§ 2241 and 2254(a). Upon issuing a limited COA on November 6, 2006, “on the question whether the District Court erred in concluding that Gold-blum’s habeas petition constitutes an abuse of the writ,” we have jurisdiction over the appeal of that specific issue pursuant to 28 U.S.C. §§ 1291 and 2253. It is appropriate at this time to comment on the scope of the COA that we issued.

The district court, by adopting the magistrate judge’s Report and Recommendation as the opinion of the court, dismissed Gold-blum’s second habeas application on the procedural ground that the AEDPA and its predecessor, the abuse-of-the-writ doctrine, barred his petition. It did not reach the merits of Goldblum’s constitutional claims, nor did it have the authority to do so until it first determined whether Gold-blum’s application satisfied

section 2244’s requirements. See Benchoff v. Colleran, 404 F.3d 812, 816 (3d Cir.2005). At times, the magistrate judge was compelled to address some issues relating to the merits of Goldblum’s claims inasmuch as they were implicated in the determination of whether Goldblum’s claims met the threshold AED-PA and abuse-of-the-writ second petition standards, particularly his claims of actual innocence. This inquiry, however, does not take from our conclusion that the district court, by adopting the Report and Recommendation, dismissed the second petition on procedural grounds.

Thus, we reiterate that on November 6, 2006, we issued a COA: [Ojn the question whether the District Court erred in concluding that Gold-blum’s habeas petition constitutes an abuse of the writ, as Goldblum has shown that reasonable jurists would debate not only whether the District Court was correct in that procedural ruling but also whether his petition states a valid constitutional claim. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000).

It was certainly within our discretion to grant the limited COA under 28 U.S.C. § 2253(c)(3), inasmuch as the district court in the first instance should make a merits analysis of a habeas corpus petition if one is to be made. Goldblum, nevertheless, contends in his brief that we “granted the COA on the abuse of the writ question as well as the validity of the constitutional claims.” Appellant’s br. at 7 n. 2. He urges that “no remand is necessary as the evidence of ineffectiveness of counsel cannot be disputed.” Id. at 29. Goldblum misunderstands our COA.

It is clear that we issued our COA only “on the question whether the District Court erred in concluding that Goldblum’s habe-as petition constitutes an abuse of the writ.” Though we also stated that the question was whether “Goldblum has shown that reasonable jurists would debate not only whether the District Court was correct in that procedural ruling but also whether his petition states a valid constitutional claim,” that language in no way suggests that we granted a COA on the merits of the constitutional issues. Rather, Slack v.

McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 1604, 146 L.Ed.2d 542 (2000), required us to make that finding as it held: 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.

The purpose of this rule is to effectuate judicial efficiency as it would be a waste of the courts’ and the litigants’ resources to grant a COA on a procedural issue without a preliminary review of the underlying claims, for if the claims are obviously without merit and dismissal of the petition inevitably would be the result even if the petitioner overcame the procedural hurdles facing him, then further review of the procedural issue would be pointless. For this reason, we must make a preliminary review of the underlying claims even if we are granting a COA on the procedural issue only.

But certainly in such situations we are not granting review of the merits of the petition, and should we find in favor of the applicant on the procedural issue, we would remand the matter to the district court to address the merits of the case. Thus, in this case where we granted a COA only on the issue of whether Gold-blum abused the writ and because “[w]e may not consider issues on appeal that are not within the scope of the [COA],” we will not consider the merits of the underlying constitutional claims. See Villot v. Varner, 373 F.3d 327, 337 n. 13 (3d Cir.2004); see also 3d Cir. L.A.R. 22.1(b).

If we were to find in favor of Goldblum on the procedural issue, we would remand the ease to the district court to consider the merits of the substantive claims. Of course, to the extent that we must take a preliminary look at the merits of the claims in the context of the abuse-of-the-writ determination, we will do so. See In re Williams, 330 F.3d 277, 282 (4th Cir.2003) (“While this determination [under

section 2244] may entail a cursory glance at the merits-for example, an applicant cannot show that he would not have been convicted ‘but for constitutional error’ without adequately alleging some constitutional violation-the focus of the inquiry must always remain on the § 2244(b)(2) standards.”). We review district court rulings on the abuse-of-the-writ doctrine de novo. See Zayas v. INS, 311 F.3d 247, 252 (3d Cir.2002). We review the district court’s decision to deny an evidentiary hearing for abuse of discretion. See Schriro v. Lan- drigan, — U.S. -, 127 S.Ct. 1933, 1939, 167 L.Ed.2d 836 (2007). IV.

DISCUSSION A. Legal Framework of Second Applications Under the Abuse-of-the-Writ Standard and the AEDPA Prior to the enactment of the AEDPA in 1996, the “doctrine of abuse of the writ define[d] the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or successive petition for a writ of habeas corpus.” McCleskey v. Zant, 499 U.S. 467, 470, 111 S.Ct. 1454, 1457, 113 L.Ed.2d 517 (1991).

When Goldblum filed his first federal habeas petition in 1991, the law encompassed the abuse-of-the-writ doctrine, which provided that a petitioner could prosecute another such petition only if he could “(1) show cause for, and prejudice from, the omission of his new claim or claims from his earlier petition (i.e., that his proceeding would not constitute an ‘abuse of the writ’), or (2) demonstrate ‘actual innocence.’ ” Minarik, 166 F.3d at 600.

The Supreme Court in McCleskey discussed the meaning of “cause” and “prejudice” prongs, and the “narrow exception” of “actual innocence,” as well as the burden-shifting framework when the abuse-of-the-writ doctrine is raised. When a prisoner files a second or subsequent application, the government bears the burden of pleading abuse of the writ. The government satisfies this burden if, with clarity and particularity, it notes petitioner’s prior writ history, identifies the claims that appear for the first time, and alleges that petitioner has abused the writ. The burden to disprove abuse then becomes petitioner’s.

To excuse his failure to raise the claim earlier, he must show cause for failing to raise it and prejudice therefrom as those concepts have been defined in our procedural default decisions. The petitioner’s opportunity to meet the burden of cause and prejudice will not include an eviden-tiary hearing if the district court determines as a matter of law that petitioner cannot satisfy the standard.

If petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.

McCleskey, 499 U.S. at 494-95, 111 S.Ct. at 1470 (internal quotation marks and citations omitted). “Cause” requires “a showing of some external impediment preventing counsel from constructing or raising the claim.” Id. at 497, 111 S.Ct. at 1472 (internal quotation marks and citation omitted). “[T]he question is whether petitioner possessed, or by reasonable means could have obtained, a sufficient basis to allege a claim in the first petition and pursue the matter through the habeas process.” Id. at 498, 111 S.Ct. at 1472.

Accordingly, “[i]f what petitioner knows or could discover upon reasonable investigation supports a claim for relief in a federal habeas petition, what he does not know is irrelevant.

Omission of the claim will not be excused merely because evidence discovered later might also have supported or strengthened the claim.” Id. “Once the petitioner has established cause, he must show actual prejudice resulting from the errors of which he complains.” Id. at 494, 111 S.Ct. at 1470 (internal quotation marks and citation omitted). “Actual prejudice” means “not merely that the errors at [ ] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v.

Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982). See also Fischetti v. Johnson, 384 F.3d 140, 155 (3d Cir.2004). Even if a petitioner cannot show cause and prejudice, “the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey, 499 U.S. at 494-95, 111 S.Ct. at 1470.

A court, however, should exercise this authority only in a “narrow class of cases,” i.e., in “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” Id. at 494, 111 S.Ct. at 1470. “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup v. Delo, 513 U.S. 298, 327, 115 S.Ct. 851, 867, 130 L.Ed.2d 808 (1995). In 1996, when the AEDPA became effective Congress changed the rules governing second petitions.

The AEDPA instituted a “gatekeeping mechanism” which imposed strict procedural requirements and significantly altered the substantive showing an applicant had to make in order to proceed on new claims in a second petition. In Benchoff, 404 F.3d 812, we set forth the new procedural and substantive requirements which govern second or successive habeas petitions under the AEDPA. As a procedural matter,

section 2244(b)(3)(

A) requires a prospective applicant, before he may file a second or successive application in the district court, to “move in the appropriate court of appeals for an order authorizing the district court to consider the application.” A three-judge panel of the court of appeals may grant the motion authorizing the district court to consider the application “only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(B), (C).

The court of appeals should make its determination no later than 30 days after the filing of the motion, id. at § 2244(b)(3)(D), and the decision “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” Id. at § 2244(b)(3)(E).

Section 2244(b)(2) requires that the court of appeals deny a motion to file a second or successive habeas petition unless: (

A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(

i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Id. at § 2244(b)(2). If the court of appeals determines that the procedural requirements for a second or successive petition have been met, the applicant then is permitted to file the second or successive application with the district court. But

section 2244(b)(4) makes it clear that before a district court may consider the merits of the application, the petition must satisfy the substantive requirements for it.

As we put it in Minarik, 166 F.3d at 600, “[t]hese substantive gatekeeping provisions were intended to reduce the universe of cases in which a habeas petition may go forward on a second or successive petition.” In this regard, a district court “shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of [section 2244(b)(2) ].” 28 U.S.C. § 2244(b)(4).

We have made it clear that “[u]nless both the procedural and substantive requirements of § 2244 are met, the District Court lacks authority to consider the merits of the petition.” Benchoff, 404 F.3d at 816. In Minarik, 166 F.3d at 600, we were asked to determine whether

section 2244’s gatekeeping provisions have an “impermissible retroactive effect” in cases in which the applicant filed his first petition prior to the AEDPA’s enactment and he filed his second petition after the AEDPA’s enactment. Guided by the Supreme Court opinions in Landgraf v. USI Film Products, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), and Lindh v.

Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), we concluded that, “[i]n those cases where a prisoner in state custody had a right to prosecute a second or successive petition prior to AEDPA’s passage, but would be deprived of that right by these new gatekeeping provisions, ... applying the AEDPA standard would have a ‘genuine retroactive effect’ because it would attach a new and adverse consequence to pre-AEDPA conduct-the prosecution of the original proceeding.” Minarik, 166 F.3d at 600. We distinguished AEDPA’s new procedural requirements from its substantive requirements.

We decided that the procedural requirement-that an applicant first must seek authorization from a court of appeals before filing a second petition under 28 U.S.C. § 2244(b)(3)(A)-applied retroactively as it was a rule of procedure that did not “attach new legal consequences to events completed before its enactment.” Minarik, 166 F.3d at 599-600 (quoting Lindh, 521 U.S. at 320, 117 S.Ct. at 2059).

However, with respect to the new substantive requirements, we found that if an applicant, can show that he would have been entitled to pursue his second petition under pre-AEDPA law, then the Landgraf default rule prohibits applying AEDPA’s new substantive gatekeeping provisions to bar his claims. In the absence of such a showing, however, applying those standards to [an applicant] results in no genuine retroactive effect, and the AED-PA standard must be applied under the Supreme Court’s holding in Lindh that AEDPA’s habeas corpus amendments apply generally to cases filed after its effective date. Id. at 602.

Therefore we concluded that anyone seeking to file a second or successive petition under 28 U.S.C. § 2254 after April 24, 1996, must move in the appropriate Court of Appeals for an order authorizing the District Court to consider the application. When such a motion is filed by a petitioner whose previous petition was filed before that date, the Court of Appeals must apply the substantive gatekeeping standards of 28 U.S.C. § 2244(

b) as amended by AEDPA unless such application would bar a second or successive petition that could have been considered by the District Court under the law existing at the time the previous petition was filed. Id. at 609. Thus, in this case, there is no question that the AEDPA’s procedural gatekeeping requirements for a court of appeals’ authorization apply and have been satisfied.

We apply the substantive gatekeeping standard of 28 U.S.C. § 2244(b), “unless such application would bar a second or successive petition that could have been considered by the District Court under the law existing at the time the previous petition was filed.” Minarik, 166 F.3d at 609. Here, the district court by adopting the Report and Recommendation as the opinion of the court, concluded that both the substantive requirements of the AEDPA and the pre-AEDPA abuse-of-the-writ doctrine bar Goldblum’s claims. But, as we previously discussed, we granted a COA only with respect to the abuse-of-the-writ inquiry.

Thus, under Minarik, should we agree with the district court that Gold-blum’s claims would be barred under the pre-AEDPA abuse-of-the-writ doctrine, the AEDPA would not have a genuine retroactive effect and we would affirm the district court’s decision barring his claims under the AEDPA. As we will discuss, we do reach this conclusion. B. Goldblum’s Arguments 1. Goldblum’s Right to an Evidentiary Hearing Goldblum’s attorney at the oral argument before us said that all he was asking for was a hearing.

Goldblum believes that he is entitled to a district court evidentiary hearing for two reasons: (1) we already found that Goldblum made a “prima facie showing” as to

section 2244(b)(2)’s substantive requirements; and (2) the state court did not permit him to develop the record fully. We find these arguments unpersuasive for the reasons that follow. Goldblum first argues that our determination that he has made a “prime facie showing” under

section 2244, thus allowing him to file his second petition, somehow required that the district court hold an evidentiary hearing in making its threshold determination under 28 U.S.C. § 2244(b)(4). Appellant’s br. at 17. More specifically, he states, This Court, based on specific factual allegations, permitted [Goldblum] to file a successor habeas petition under 28 U.S.C. § 2244(b)(3)(A)(prima facie case that petitioner had either cause and prejudice to excuse failure to raise issues earlier or a demonstration of actual innocence).

The district court nevertheless denied Goldblum an evidentiary hearing on these fully supported allegations and, on this incomplete record, ruled that Goldblum had ‘abused’ the writ. to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion. 28 U.S.C. § 2244(b)(4). The movant must get through two gates before the merits of the motion can be considered. Id. at 15. In reaching this conclusion, Goldblum misunderstands our gatekeeping role in authorizing the filing of second or successive petitions under the AEDPA.

Though it well may be that we have made neither the meaning of “prima facie showing” under

section 2244(b)(3)(

A) nor how that meaning impacts the district court’s

section 2244 obligations clear, many other courts of appeals have. Courts often have cited Bennett v. United States, 119 F.3d 468 (7th Cir.1997), as an instructive opinion in this field. In Bennett, the Court of Appeals for the Seventh Circuit held: By ‘prima facie showing’ we understand (without guidance in the statutory language or history or case law) simply a sufficient showing of possible merit to warrant a fuller exploration by the district court.

All that we usually have before us in ruling on such an application, which we must do under a tight deadline (see 28 U.S.C. § 2244(b)(3)(D)), is the application itself and documents required to be attached to it, consisting of the previous motions and opinions in the case. We do not usually have a response from the government, though such a response is authorized. 7th Cir. R. 22.2(c). If in light of the documents submitted with the application it appears reasonably likely that the application satisfies the stringent requirement for the filing of a second or successive petition, we shall grant the application.

The grant is, however, it is important to note, tentative in the following sense: the district court must dismiss the motion that we have allowed the applicant Bennett, 119 F.3d at 469-70. At least seven other courts of appeals have adopted this

interpretation of “prima facie showing.” See In re Lott, 366 F.3d 431, 432-33 (6th Cir.2004); Williams, 330 F.3d at 281-82; In re Holladay, 331 F.3d 1169, 1173-74 (11th Cir.2003); Bell v. United States, 296 F.3d 127, 128 (2d Cir.2002); Reyes-Requena v. United States, 243 F.3d 893, 898-99 (5th Cir.2001); Thompson v. Calderon, 151 F.3d 918, 925 (9th Cir.1998); Rodriguez v. Superintendent, Bay State Core. Ctr., 139 F.3d 270, 273 (1st Cir.1998), overruled on other grounds by Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998).

Today, we join them in adopting the meaning of “pri-ma facie showing” discussed in Bennett. In light of these principles, it is clear that Congress did not intend to bind the district court in any way by a court of appeals’ preliminary examination of the substantive requirements under

section 2244(b)(2), except to the extent that if a court of appeals finds that a petitioner has made a prima facie showing, the district court is obligated to conduct an independent gatekeeping inquiry under

section 2244(b)(4). This limited effect of a court of appeals’ initial determination is required because a court of appeals should make its determination within an extremely tight deadline and on the basis of a limited inquiry; thus, it is clear that Congress did not intend that the court of appeals’ preliminary authorization determine how a district court conduct its subsequent analysis. The district court will need to make a more extensive inquiry under

section 2244(b)(4) and it “must conduct a thorough review to determine if the motion conclusively demonstrates that it does not meet AEDPA’s second or successive motion requirements,” Reyes-Requena, 243 F.3d at 899 (internal quotation marks and citation omitted). But a court of appeals is obliged only to make a preliminary determination as to whether a petitioner has made a “prima facie showing” with respect to those same requirements, i.e., whether the petition makes “a sufficient showing of possible merit to warrant a fuller exploration by the district court,” Bennett, 119 F.3d at 469.

Nevertheless, notwithstanding a district court’s obligation to make an independent gatekeeping inquiry, a district court does not face a requirement that it always conduct an evidentiary hearing in undertaking this more thorough review. Rather, the decision of whether or not to hold an evidentiary hearing is within the distriet court’s discretion. See Schriro, 127 S.Ct. at 1940. Goldblum also contends that he is entitled to an evidentiary hearing under

section 2254(e)(2) because the state court did not permit him to develop the record fully as the court precluded the testimony of two forensic experts who would have provided expert opinions similar to those of Dr. Wecht. Under 28 U.S.C. § 2254(e)(2), [i]f the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that— (

A) the claim relies on — (

i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (

B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. Thus, under

section 2254(e)(2), if an applicant has developed the factual basis of his claims in the state court, he is not entitled to a federal evidentiary hearing. Furthermore, even if the factual basis is not sufficiently developed, a petitioner must demonstrate that his case falls within the very limited circumstances listed in

section 2254(e)(2)(

A) and (B), and only then is the district court permitted under the AEDPA, though not required, to grant an evidentiary hearing. See Campbell v. Vaughn, 209 F.3d 280, 286-87 (3d Cir.2000). We reiterate that the decision to grant an evidentiary hearing is “left to the sound discretion of district courts.” Schri-ro, 127 S.Ct. at 1939.

Additionally, the Supreme Court has made clear that “an evidentiary hearing is not required on issues that can be resolved by reference to the state court record,” as “[i]f district courts were required to allow federal habe-as applicants to develop even the most insubstantial factual allegations in eviden-tiary hearings, district courts would be forced to reopen factual disputes that were conclusively resolved in the state courts.” Id. at 1940 (internal quotation marks and citation omitted). With these principles in mind, we review Goldblum’s evidentiary hearing contention.

We disagree with Goldblum that the factual basis of his claims was not developed sufficiently in the state-court proceedings. The state court conducted a three-day evi-dentiary hearing in which it heard the testimony of Goldblum’s trial attorney, Mr. Rothman, his forensic expert, Dr. Wecht, and the Commonwealth’s rebuttal forensic expert, Mr. Wolson. The matter was on remand to the PCRA court on the sole issue of the potential impact of Dr. Wecht’s testimony on the jury had it been presented at trial. The state court on the remand permitted Dr. Wecht to testify unimpeded with respect to his opinions.

The court, however, did not permit testimony from two other experts who Gold-blum planned to introduce to buttress Dr. Wecht’s findings because their testimony exceeded the scope of the remand, although it did admit their affidavits. We conclude that the testimony of Dr. Wecht in conjunction with the affidavits of the proposed experts sufficiently established the factual basis of Goldblum’s claims such that the issues he presented in his habeas corpus petition “can be resolved by reference to the state court record.” Id. at 1940. Thus, Goldblum was not entitled to a district court evidentiary hearing.

Moreover, even if the state court should have regarded the remand as broader in scope so that it permitted the other experts to testify, a conclusion that the state courts did not reach, it is clear that the experts’ opinions would have suffered from the same fatal flaw as Dr. Wecht’s-the lack of photographs or other physical evidence depicting the blood stains would have made their testimony “tentative” and “essentially amounting] to speculation,” as the state court concluded.

Thus, their testimony likely would have been excluded for, under Pennsylvania law, a court only must entertain expert testimony that would “assist the trier of fact to understand the evidence or to determine a fact in issue,” PA. R. EVID. 702, and relevant evidence “may be excluded if its probative value is outweighed ... by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” PA. R. EVID. 403. The state standards are similar to those followed in the district courts. Here, after concluding that Dr.

Wecht’s findings were unreliable, it would have been completely appropriate for the court to have explained its discretion in precluding cumulative expert testimony on the basis that it would not have been helpful to it in understanding the evidence or determining a fact in issue. Even if we agreed with Goldblum that he has been denied the opportunity to develop the factual record through no fault of his own, and therefore

section 2254(e)(2) did not preclude an evidentiary hearing, such a finding does not necessarily entitle him to one. See Campbell, 209 F.3d at 287. Rather, it merely means that while a hearing is not prohibited under

section 2254(e)(2), the district court still retains the discretion to grant a hearing or not. See Schriro, 127 S.Ct. at 1937 (“In cases where an applicant for federal habeas relief is not barred from obtaining an eviden-tiary hearing by 28 U.S.C. § 2254(e)(2), the decision to grant such a hearing rests in the discretion of the district court.”); Campbell, 209 F.3d at 287. “In exercising that discretion, courts focus on whether a new evidentiary hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner’s claim.” Campbell, 209 F.3d at 287.

For example, in Campbell we discussed the case of Cardwell v. Greene, 152 F.3d 331, 338 (4th Cir.1998) (internal quotation marks and citation omitted), in which the court held that an evidentiary hearing was permissible under

section 2254(e)(2) because it was the state’s fault that the factual record was incomplete, but concluded that it was within the district court’s discretion to deny an evidentiary hearing as the petitioner “ha[d] failed to forecast any evidence beyond that already contained in the record that would help his cause, or otherwise to explain how his claim would be advanced by an evidentiary hearing.” Likewise, in this case, the magistrate judge did not abuse her discretion in refusing to grant Goldblum a new evidentiary hearing, even if one was permitted under

section 2254(e)(2). Goldblum does not have any evidence beyond that already contained in the state-court record that would help his cause. While the state court did not permit two of Goldblum’s experts to testify, their affidavits are part of the state-court record submitted to the district court. Essentially then, Goldblum seeks an evidentiary hearing on the sole ground that he has two more experts, whose affidavits were before the district court, who will present testimony echoing that of Dr. Wecht.

The “bolstering” testimony of the other experts does not have potential to advance Goldblum’s claims as such testimony cannot overcome the fatal flaw found by the state court, the magistrate judge, and the district court-that absent forensic evidence confirming the distribution of the blood stains, their findings are inconclusive and unreliable.

It would not be prudent to hold an evidentiary hearing to reach a conclusion already inevitably reached, and, thus, the magistrate judge certainly did not abuse her discretion in refusing to hear such duplicative testimony on an issue that could readily “be resolved by reference to the state court record.” Schriro, 127 S.Ct. at 1940. Goldblum makes two additional arguments related to this point. First, Gold-blum contends that “the district court could not fairly adjudicate the claims of actual innocence” because it failed to consider the experts’ affidavits that would confirm and bolster Dr. Wecht’s findings.

Appellant’s br. at 23. To the contrary, the Report and Recommendation demonstrates that the magistrate judge did consider the affidavits. See App. at 48 (“Indeed, Dr. Wecht’s affidavit, and the affidavits of other forensic experts, do appear to make a strong case .... ”). However, she agreed with the PCRA court that these affidavits were not probative in light of the finding that the lack of physical evidence depicting the blood stains made their opinions “indeterminate.” Second, Goldblum believes that the magistrate judge applied “the wrong standard in determining whether Dr.

Wecht’s testimony supported a claim of actual innocence” as, according to Goldblum, the testimony need not “unequivocally” or “absolutely” exonerate him, but an expert “need only present opinions to a reasonable degree of certainty.” Appellant’s br. at 25-26. Goldblum has confused the standard governing the admissibility of expert testimony at trial under Federal Rules of Evidence 702 and 703 with the high burden that he must meet to excuse his failure to raise his claim in his first habeas petition under the abuse-of-the-writ doctrine.

The district court properly concerned itself only with the latter point. 2. “Cause” under the Abuse-of-the-Writ Doctrine Goldblum argues as well that the court “did not properly apply the pre-AEDPA abuse of the writ standard.” Id. at 21. The magistrate judge found that Goldblum did not establish “cause” for omission of the blood spatter claim from the first petition because failure to exhaust remedies is not a sufficient excuse.

Likewise, she found that the failure to present the claims with respect to the improper instruction on accomplice liability was not excusable as the law governing the instruction was known at the time of the first petition. Goldblum, however, believes that there is “cause” for failing to present his claims in his first petition so long as the claim was not withheld for “manipulative purposes” or was not “deliberately withheld ... in order to secure an opportunity to pursue unnecessary, and thus vexatious, successive litigation.” Id.

He argues that in his case there “was no such ‘manipulative purpose’ or attempt at vexatious litigation” as “[tjhere is no evidence that [he] had actual knowledge of his claim (as neither he nor anyone on his behalf had considered or investigated the claim) or that he deliberately withheld the claim to seek some unfair advantage in a second habeas proceeding.” Id. at 21-22. Moreover, he argues that since his blood spatter claim “would have resulted in a ‘mixed petition’ and thereby would have been subject to dismissal pursuant to Rose v.

Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), there was no abuse of the process, and surely no deliberate attempt to gain any litigation advantage.” Appellant’s br. at 22. We conclude that Goldblum misstates the law. Specifically, the Supreme Court has rejected the “good faith 'deliberate abandonment’ standard” preferred by the dissent in McCleskey, 499 U.S. at 506, 111 S.Ct. at 1477 (Marshall, J., dissenting), and instead has made clear that “[a]buse of the writ is not confined to instances of deliberate abandonment.” Id. at 489, 111 S.Ct. at 1467.

The Court concluded that deliberate action is but one example of conduct that would disentitle a petitioner from relief under the abuse-of-the-writ doctrine, stating: [A] petitioner may abuse the writ by failing to raise a claim through inexcusable neglect. Our recent decisions confirm that a petitioner can abuse the writ by raising a claim in a subsequent petition that he could have raised in his first, regardless of whether the failure to raise it earlier stemmed from a deliberate choice. Id. at 489, 111 S.Ct. at 1468.

Thus, it is clear that the Supreme Court in McCles-key held that a court does not have to find that a petitioner had a “manipulative purpose” or acted with “deliberateness” in withholding a claim from a prior petition in order for the court to reject the petitioner’s contention that he had “cause” under the abuse-of-the-writ doctrine for failing to present the claim in his first petition when he files a subsequent petition. See United States v.

Barrett, 178 F.3d 34, 49 (1st Cir.1999) (holding that “[wjhether or not [petitioner’s] failure to [include the claims in the first petition] was intentional is of no moment” under McCleskey); Saahir v. Collins, 956 F.2d 115, 119 (5th Cir.1992) (finding petitioner abused the writ because he “should have known” about the legal theories he failed to advance in his first habeas petition); Campbell v.

Blodgett, 997 F.2d 512, 520 (9th Cir.1992) (“To justify this costly litigation strategy [of permitting second habeas petitions], be it deliberate choice, procedurally-constrained decision, or neglect, a petitioner must show cause for the omission and prejudice therefrom.”). Goldblum’s reliance on the term “manipulative purpose[],” in McCleskey is not meritorious as the term is in no way inconsistent with the Court’s clear holding that deliberateness is not required to establish cause.

Put in its proper context, the Court, in discussing the costs of federal collateral litigation, stated, “habeas corpus review may give litigants incentives to withhold claims for manipulative purposes and may establish disincentives to present claims when evidence is fresh.” McCles-key, 499 U.S. at 491-92, 111 S.Ct. at 1469. This statement does not inject a deliberateness requirement into the abuse-of-the-writ jurisprudence, but instead offers one of many examples of conduct that would bar relief.

We similarly reject Goldblum’s argument that we should excuse his failure to include the blood spatter claim in his first habeas corpus petition because the validity of the claim had not been litigated in the state courts and would have resulted in a “mixed petition” under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379. We encountered this precise issue in Ben-choff. There, we determined that “Rose v. Lundy requires a petitioner to either fully exhaust all claims prior to filing a petition or to raise both exhausted and unexhaust-ed claims in the first habeas petition.” Benchoff, 404 F.3d at 820.

In a case in which an applicant chose the latter course, the petition would be dismissed without prejudice and the applicant then properly could refile the petition once all of the claims are exhausted and the refiled petition would not constitute a second or successive petition. Id. Thus, we concluded that failure to exhaust a claim “is not an excuse for [the petitioner’s] failure to raise the claim in his first petition.” Id. at 819; see also Slack, 529 U.S. at 487, 120 S.Ct. at 1605 (“A petition filed after a mixed petition has been dismissed under Rose v.

Lundy before the district court adjudicated any claims is to be treated as ‘any other first petition’ and is not a second or successive petition.”). As in Benchoff, Gold-blum’s choice to withhold his blood spatter claim from his first habeas corpus petition while he exhausted it in state court rather than following the procedure prescribed by Rose and its progeny bars this claim under the abuse-of-the-writ doctrine. 3. “Actual Innocence” under the Abuse-of-the-Writ Doctrine a.

The new evidence Goldblum contends that even if he has not established “cause” and “prejudice” under the abuse-of-the-writ doctrine, he has demonstrated his “actual innocence,” and thus the district court’s dismissal of his second petition was a “miscarriage of justice.” Goldblum faces a very high burden with respect to this assertion.

The Supreme Court has instructed us that our authority to excuse the failure to present a claim in the first petition, absent “cause” and “prejudice,” only should be exercised in a “narrow class of cases,” i.e., in “extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime.” McCleskey, 499 U.S. at 494, 111 S.Ct. at 1470. “To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. at 867. In Hubbard v.

Pinchak, 378 F.3d 333, 340 (3d Cir.2004), cert. denied, 543 U.S. 1070, 125 S.Ct. 910, 160 L.Ed.2d 805 (2005), we set forth a two-step inquiry a court must take in deciding a claim of actual innocence. First, a court must decide “whether the [petitioner] has presented new reliable evidence ... not presented at trial.” Id. (internal quotation marks and citation omitted). With respect to this inquiry, the Supreme Court has held: [A] substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare.

To be credible, such a claim requires a petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful. Schlup, 513 U.S. at 324, 115 S.Ct. at 865 (internal citations omitted).

Thus, “[without 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.” Id. at 316, 115 S.Ct. at 861. Second, only if a petitioner first puts forth new evidence not considered by the jury does a court ask “whether it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Hubbard, 378 F.3d at 340.

In making this second inquiry, a court “must consider all the 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,” and “assess how reasonable jurors would react to the overall, newly supplemented record.” House v. Bell, 547 U.S. 518, 126 S.Ct. 2064, 2077, 2078, 165 L.Ed.2d 1 (2006) (internal quotation marks and citation omitted).

The Supreme Court repeatedly has emphasized that [t]he meaning of actual innocence ... does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do.

Thus, 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.

Schlup, 513 U.S. at 329, 115 S.Ct. at 868. “[T]he petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims” only “if a petitioner ... 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 316, 115 S.Ct. at 861.

As applied to the case before us, the precedents we have cited establish that it was Goldblum’s obligation to put forth “new reliable evidence ... not presented at trial,” Hubbard, 378 F.3d at 340 (internal quotation marks and citation omitted), such as “exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324, 115 S.Ct. at 865. Goldblum points to two pieces of evidence that he regards as “new reliable evidence” that demonstrate his innocence: (1) a leading expert in blood spatter evidence, Dr.

Wecht, who did not testify at the trial with respect to the blood spatter evidence, has offered his opinion that Miller, and not Goldblum, murdered Wilhelm; and

(2) Miller confessed to a member of the State Board of Pardons and the attorney general of Pennsylvania that he participated along with Goldblum in the actual murder. While we have serious doubts whether Dr. Wecht’s opinion constitutes either “new” or “reliable” evidence, or whether Miller’s confession is “reliable,” we will assume for the purposes of this appeal that he has satisfied step one of the two-step “actual innocence” inquiry.

Of course, the reliability of the evidence certainly should and will be considered in step two of the analysis in which we must predict the likely impact of the new evidence on the jury. We find that these circumstances do not present the “extraordinary instance[ ]” where “it is more likely than not that no reasonable juror would have convicted [Goldblum] in light of the new evidence.” Schlup, 513 U.S. at 327, 115 S.Ct. at 867 (emphasis added). This high standard supplies the basis by which we are bound to judge this case and Goldblum’s showing, for the reasons we will discuss, falls short.

Goldblum points to seven pieces of evidence presented at the trial which he believes “demonstrated that this was a one-man assault, and the evidence pointed strongly towards Miller.” Appellant’s br. at 9. First, he points to the dying declaration that Wilhelm made to the police wherein he stated, “Clarence Miller did this to me.” Second, he distinguishes the small spot found on his shirt cuff that no witness identified positively as blood with the excessive blood found on Miller’s clothes.

Third, he believes that the defensive cuts on Wilhelm’s hands and multiple cuts and slashes on his torso, front, back, head and face, show that this was a one-person attack on a moving target. Fourth, he alleges that there was no forensic evidence supporting Miller’s contention that Goldblum began the assault by hitting Wilhelm in the back of his head with a wrench. Fifth, Miller had fresh scratches on his forearms and wrists 14 hours after the homicide while Goldblum did not have any scratches.

Sixth, black vinyl gloves recovered from the scene were stained with Wilhelm’s blood and had hairs consistent with Miller’s arm hair. Finally, the blood spatter indicated that the blood was cast off in a left to right movement, suggesting that the killer was in the front passenger seat. All of this evidence was presented to the jury.

As we have stated, now Goldblum raises two new pieces of evidence which he believes support his claim of innocence: expert testimony supporting his argument to the jury that the blood spatter demonstrated that the killer sat in the front passenger seat, and Miller’s confession to a member of the State Board of Pardons and the attorney general of Pennsylvania that he and Goldblum were involved directly in the murder.

Essentially then, the question comes down to this: In the context of a reasonable juror’s review of all of the evidence, is the expert blood spatter evidence and Miller’s confession so persuasive and exculpatory that all 12 members of a jury who voted to convict Goldblum of first-degree murder now would change their minds to the end that it is more likely than not that none of them would vote to convict? The answer to that question is undoubtedly no. We start with our examination of Dr. Wecht’s expert opinion. Dr.

Wecht, an expert in forensic pathology, submitted an affidavit wherein he “concluded to a reasonable degree of medical certainty that Mr. Goldblum was not the individual who inflicted the fatal stab wounds to Mr. Wilhelm.” App. at 21. He based this opinion on a number of factors, though predominantly on his finding that the blood spatter on the dashboard demonstrated that the person in the front seat to the right of Wilhelm, i.e., Miller, inflicted the stab wounds.

Additionally, he considered the lack of blood found on Goldblum’s clothes in contrast to Miller’s heavily stained clothes, Miller’s blood-stained gloves found at the crime scene, and Wilhelm’s dying declaration. On direct examination at the PCRA remand hearing, Dr. Wecht repeated his conclusion and elaborated on the bases for his opinion. He opined that it was “highly implausible” that Goldblum inflicted the wounds on Wilhelm given that blood was not found on Goldblum’s clothes. Id. at 129.

Additionally, he testified that the gloves found near the scene stained with Wilhelm’s blood contained arm or hand hairs consistent with Miller’s but not Gold-blum’s. Also, Dr. Wecht found relevant that Miller was observed the day after the murder with fresh scratches on his arms and face, but no such scratches were found on Goldblum. Most significantly, Dr.

Wecht opined that the blood spatter “cast off,” with the “tails” moving from left to right as found on the dashboard, “are entirely consistent with and buttress and support the conclusion” that Miller inflicted the wounds as he was sitting in the front passenger seat next to Wilhelm, rather than by Goldblum who sat in the rear driver’s-side seat. Id. at 132. Cross-examination, however, significantly undermined the definitiveness and reliability of Dr. Wecht’s opinion. In fact, Dr.

Wecht conceded that he could not “rule out” the possibility that the blood came from Goldblum who got it on his hand when “he was exiting the vehicle.” Id. at 160. Moreover, he testified that he even could not be certain that the spattered blood was Wilhelm’s as it never was tested to ascertain whose blood it was. He also conceded that someone in the back seat could have caused the formation of the blood spatter by reaching over to the front seat. Goldblum, of course, was sitting in the back seat. Dr.

Wecht agreed that the circumstance that Goldblum was wearing two layers of clothing could explain the lack of blood found on him. As we have indicated, the Commonwealth called a forensic consultant, Toby Wolson, to respond to Dr. Wecht’s testimony. Wolson found that because the description of the blood spatter was “limited,” he was prevented from making “a more reliable

interpretation of the cause or nature of that particular pattern.” Id. at 212. He opined that there were “other types of situations that may create [the] patterns” that Detective Freeman described besides cast off. Id. at 215. He concluded that there was “[n]ot enough documentation to say which was the most likely cause of [the] pattern,” as the spatter could have come from stab wounds made by someone reaching over the front seat or from defensive hand wounds from the victim. Id. at 218.

He opined that, in light of the lack of documentation, no expert could reach any conclusion that was anything more than “hypothetical,” id., and “coming to a conclusion as to who may have done and created the pattern on the dashboard and window is impossible.” Id. at 219. He found that “due to the insufficient documentation,” he could not “tell you if it was the person sitting in the front seat or back seat.” Id. at 226. With respect to the dying declaration, he opined that it “is open to

interpretation as to what it really means,” and that the hair found on the bloody gloves was not reliable as facial and body hairs, as opposed to head and pubic ham, do not provide for a reliable forensic evaluation. Id. at 228. In light of this evidence, we are satisfied that Dr. Wecht’s expert testimony regarding the blood spatter would not have had an appreciable, let alone heavy, impact on a reasonable juror in this case for four reasons.

First, Goldblum’s trial attorney presented circumstantial evidence regarding the blood spatter suggesting that the person in the front passenger seat, Miller, did the stabbing. Indeed, Goldblum argued at trial that the weapon with which Wilhelm was stabbed was withdrawn in a horizontal motion, splashing a trail of blood horizontally across the dashboard from the left to right towards the passenger seat.

We are satisfied that an expert opinion which merely recasts this circumstantial evidence, that was well within the grasp of a reasonable juror without the aid of an expert, would not have a significant influence on a reasonable juror. Second, the reliability of Dr. Wecht’s opinions is certainly suspect and a reasonable juror would not give enough weight to them to change his or her mind as to Goldblum’s guilt. As Chief Justice Roberts wrote in his dissent in House, “the new evidence is not simply taken at face value; its reliability has to be tested.” House, 126 S.Ct. at 2088 (Roberts. C.J., dissenting).

It is clear that the absence of photographs depicting the blood spatter, even if it does not preclude Dr. Wecht from offering an expert opinion, certainly casts doubt on the reliability of that opinion. The Commonwealth’s expert, Mr. Wolson, testified that a number of different scenarios could have caused the blood spatter formation that Detective Freeman described, and, without further documentation, any opinion as to the explanation for the pattern of the blood spatter was mere speculation. Moreover, Dr.

Wecht on cross-examination conceded that the evidence of blood spatter did not rule out the Commonwealth’s theory. Third, Dr. Wecht’s conclusion that Gold-blum did not directly participate in the murder was partially the result of his personal view of non-forensic evidence, such as Wilhelm’s dying declaration, already before the jury. We do not see how Dr. Wecht’s opinion on these particular matters, which in actuality do not seem to require a great amount of scientific expertise (if any at all) and were clearly comprehensible by the jury at the trial, disposi-tively would have influenced them.

Lastly, the Commonwealth tried the case on the alternate theory that Goldblum was an accomplice to the murder. Because the jury did not make a specific finding as to whether Goldblum was guilty as an accomplice or for committing the actual stabbing, even if a jury believed Dr. Wecht’s speculative testimony on the significance of the blood spatter, we see no reason why it would have reached a different result. For these reasons, we con-elude that a reasonable juror would not have given significant weight to Dr.

Wecht’s speculative expert testimony in the sense that the testimony would have affected the juror’s result. We now discuss the second piece of new evidence, Miller’s confession. In a deposition on June 7, 1999, Richard Gigliotti, at the time the warden of the Butler County Jail and a member of the Pennsylvania Board of Pardons, testified that on April 29, 1999, about a week before Goldblum’s Board of Pardons’ hearing, he, along with the attorney general of Pennsylvania, met with Miller at the Western Penitentiary and asked him questions about Goldblum’s case.

Preliminarily, Miller told them that Goldblum was “the mastermind” behind the land fraud. App. at 326. Miller also mentioned the arson but Gigliotti could not give specific details regarding that aspect of the case. Eventually, Miller told Gi-gliotti that he no longer “denied direct involvement in the actual stabbing of [Wilhelm],” but rather “he now openly admits his involvement along with Goldblum’s involvement in the stabbing and murder of the victim.” Id. at 327-28.

Specifically, Gigliotti testified that Miller told him that “Goldblum was sitting in the back seat and inflicted the first wound by coming over the shoulder of ... Wilhelm and stabbing him in, in the lower chest or stomach area.” Id. He also testified that Miller told him “Goldblum definitely started the stabbing and then he took the blade from Goldblum or Goldblum handed him the blade and Miller continued the stabbing,” but Miller did not have a “clear recollection” as to how many times each of them stabbed Wilhelm. Id. at 328-29.

Based on this testimony, Goldblum argues that “[w]hile Miller continues to claim that Goldblum also took

part in the stabbing, this dramatic change of testimony is further substantial evidence of the innocence.” Appellant’s br. at 36. We disagree. After all, Miller’s statement to Gi-gliotti, rather than exonerating Goldblum, implic

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