NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 18-2161 _____________

MARK AQUILINA, Appellant

v.

ATTORNEY GENERAL NEW JERSEY; ADMINISTRATOR OF NEW JERSEY STATE PRISON ______________

Appeal from the United States District Court for the District of New Jersey (District Court No. 2-18-cv-01218) District Judge: Honorable Jose L. Linares ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) May 21, 2020 ______________

Before: McKEE, BIBAS, and NYGAARD, Circuit Judges.

(Opinion filed: September 9, 2020)

_____________________

OPINION* _____________________

* This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.

Mark Aquilina appeals the district court’s dismissal of his petition for habeas relief

under

. Aquilina challenged his judgment of conviction for murder and

related offenses based on an alleged involuntary confession. We granted a certificate of

appealability for his untimely habeas petition due to his claim of actual innocence. For

the reasons that follow, we will affirm the district court.2

Aquilina bases his claim of actual innocence on a medical opinion that his

confession was coerced, which was appended to his Post-Conviction Relief Act

(“PCRA”) petition. In Reeves v. Fayette SCI,3 we considered a § 2254 petition seeking

relief under the actual innocence exception to procedural default set forth in Schlup v.

Delo4 as applied to untimely petitions in McQuiggin v. Perkins.5 We explained in Reeves

that for an untimely petition to be excused under Schlup, “the petitioner must present

new, reliable evidence showing it is more likely than not that no reasonable juror would

have voted to convict him.”6 The psychiatrist’s letter, as noted by the state courts

considering Aquilina’s PCRA petition, did not speak to whether his confession was false

and had no probative value to his factual innocence. Indeed under New Jersey state law,

false confession expert testimony is not admissible as to the ultimate question of guilt or

2 The district court had jurisdiction pursuant to

. We have jurisdiction over this appeal under

and 2253. 3

(3d Cir. 2018). 4

(1995). 5

(2013). 6 Reeves,

(citing Schlup,

). 2 innocence.7 Thus, even if Aquilina’s confession was coerced—an allegation that we do

not take lightly—as to the actual innocence inquiry, the record here would still not justify

granting relief.

Moreover, although the actual innocence standard “does not require absolute

certainty about the petitioner’s guilt or innocence,” we must bear in mind “all the

evidence, old and new,” and the evidence presented at trial was nevertheless sufficient to

allow a reasonable juror to convict Aquilina. 8 Accordingly, we are not here presented

with the “extraordinary” case of “a petition present[ing] evidence of innocence so strong

that a court cannot have confidence in the outcome of the trial . . .”9

For the foregoing reasons, we will affirm the district court’s dismissal of

Aquilina’s habeas petition.

7 State of New Jersey v. Rosales,

(N.J. 2010) (reiterating the principle that “expert witnesses may testify to a witness’s or defendant’s mental disorder and the hypothetical effect of that disorder. Expert witnesses may not, however, render an opinion on the defendant’s veracity or reliability of a confession . . . [which] is a matter in the jury’s exclusive province”) (internal quotation marks and citation omitted); N.J. R. Evid. 702, 703. 8 House v. Bell,

(2006) (internal quotation marks and citation omitted). 9 McQuiggin,

(internal quotation marks and citation omitted). 3