Lambert v. Blackwell

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

12-29-1997

Lambert v. Blackwell

Precedential or Non-Precedential:

Docket 97-1281,97-1283,97-1287

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Filed December 29, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 97-1281, 97-1283 and 97-1287

LISA MICHELLE LAMBERT

v.

CHARLOTTE BLACKWELL, MRS., SUPERINTENDENT;

THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA,

Appellants

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 96-cv-06244)

Argued

October 21, 1997

Before: MANSMANN and GREENBERG, Circuit Judges ,

and ALARCON, Circuit Judge.*

(Filed December 29, 1997)

_________________________________________________________________

*Honorable Arthur L. Alarcon of the United States Court of Appeals for

the Ninth Circuit, sitting by designation.

Peter S. Greenberg, Esquire

(ARGUED)

Christina Rainville, Esquire

Jeannette M. Brian, Esquire

Diane L. Lisowski, Esquire

Schnader, Harrison, Segal & Lewis

1600 Market Street

Suite 3600

Philadelphia, PA 19103

COUNSEL FOR APPELLEE

Richard A. Sprague, Esquire

(ARGUED)

Geoffrey R. Johnson, Esquire

Theodore J. Chylack, Esquire

Joseph R. Podraza, Jr., Esquire

T. Truxtun Hare, Esquire

David S. Lubin, Esquire

Deborah B. Miller, Esquire

Sprague & Sprague

Suite 400, Wellington Bldg.

135 South 19th Street

Philadelphia, PA 19103

Richard A. Sprague, Esquire

Alvin B. Lewis, Jr., Esquire

Edward R. Kennett, Esquire

Sprague & Lewis

The Christopher DeMuth Bldg.

116 East King Street

Lancaster, PA 17602

COUNSEL FOR APPELLEES

2

D. Michael Fisher

Attorney General of Pennsylvania

Jerome T. Foerster

Senior Deputy Attorney General

Appeals and Legal Services Section

Robert A. Graci

Assistant Executive Deputy

Attorney General

Office of Attorney General of

Pennsylvania

Law and Appeals

16th Floor, Strawberry Square

Harrisburg, PA 17120

Daniel E. Lungren

Attorney General of California

1300 I Street, Suite 125

Sacramento, CA 95814

M. Jane Brady

Attorney General of Delaware

820 North French Street

Wilmington, DE 19801

Richard P. Ieyoub

Attorney General of Louisiana

P.O. Box 94095

Baton Rouge, LA 70804-9095

W.A. Drew Edmondson

Attorney General of Oklahoma

2300 North Lincoln Boulevard,

Suite 112

Oklahoma City, OK 73105-4894

3

Charles M. Condon

Attorney General of South Carolina

P.O. Box 11549

Rembert C. Dennis Building

Columbia, SC 29211-1549

COUNSEL FOR AMICUS

APPELLANTS: COMMONWEALTH

OF PENNSYLVANIA, STATE OF

CALIFORNIA, STATE OF

DELAWARE, STATE OF

LOUISIANA, STATE OF

OKLAHOMA, STATE OF

SOUTH CAROLINA

Donna G. Zucker

Assistant District Attorney

Ted McKnight

President, Pennsylvania District

Attorneys Association

1421 Arch Street

Philadelphia, PA 19102-1582

COUNSEL FOR AMICUS CURIAE

PENNSYLVANIA DISTRICT

ATTORNEYS ASSOCIATION

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal we are faced with the onerous task of

determining whether the district court, upon petition for

writ of habeas corpus, erred in granting the unconditional

release of one convicted of first degree murder by a state

trial judge. Under Rose v. Lundy, 455 U.S. 509, 522 (1982),

the district court is required to dismiss a federal habeas

petition filed pursuant to 28 U.S.C. S 2254 which contains

both unexhausted and exhausted claims. Because wefind

the petitioner has not yet pursued her remedies under the

Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat.

Ann. S 9542 et seq. (West 1997 Supp.), her federal habeas

4

petition includes unexhausted claims and, hence, the result

here is dictated by Rose v. Lundy, supra . Thus, we will

remand this case to the district court with an order to

dismiss the petition without prejudice so that the petitioner

can first present her unexhausted claims to the appropriate

Pennsylvania state court.

I.1

Laurie Show became romantically involved with Lisa

Lambert's boyfriend, Lawrence "Butch" Yunkin, for a brief

period in June of 1991. Thereafter, Show incurred the

wrath of Lambert, who accosted Show on several occasions.

On the morning of December 20, 1991, Show was brutally

murdered. Lambert and an accomplice, Tabitha Buck, were

subsequently charged with criminal homicide for the

murder of Show.2 Buck was convicted of second degree

murder by a jury of her peers; Yunkin, in exchange for his

truthful testimony against Lambert, pled guilty to hindering

apprehension.3

_________________________________________________________________

1. We note, as a preliminary matter, that Lambertfiled a motion to

dismiss this appeal on the basis that since the district court found she

was actually innocent of first degree murder, the Double Jeopardy

Clause of the Fifth Amendment bars the Commonwealth's appeal. By

separate order, we will deny this motion. As we make clear in this

opinion, the district court erred in reaching the issue of Lambert's

actual

innocence. Accordingly, we do not give weight to the district court's

factual findings in this appeal. Moreover, we are plainly authorized to

review the final order of the district court in a habeas case pursuant to

28 U.S.C. S 2253(a). Furthermore, a finding of actual innocence, as that

term has come to be used in federal habeas corpus jurisprudence, is not

the equivalent of a finding of not guilty by a jury or by a court at a

bench trial. We find, therefore, that the Double Jeopardy Clause does

not bar the Commonwealth's appeal.

2. At the time of her arrest, Lambert was six months pregnant with

Yunkin's child.

3. Several weeks after Lambert's murder trial was concluded; the

Commonwealth determined that Yunkin had perjured himself at

Lambert's trial. Consequently, Yunkin breached the plea agreement and

the Commonwealth charged him with third degree murder to which he

pled nolo contendere.

5

On July 20, 1992, after a seven-day bench trial in the

Court of Common Pleas of Lancaster County, Pennsylvania,

Lambert was convicted of first degree murder and criminal

conspiracy. Subsequently, Lambert was sentenced to life

imprisonment by the trial court. Lambert, through her trial

counsel, Roy Shirk, Esq., filed a Motion in Arrest of

Judgment and for New Trial, and Additional Reasons for

Post-Trial Motions, raising various allegations of trial error

and prosecutorial misconduct.4 On July 19, 1994, the trial

court issued an Opinion and Order denying Lambert's post-

trial motions. No appeal was taken from this order.

_________________________________________________________________

4. The issues raised in the first set of post-verdict motions filed by Roy

Shirk, Esq., included:

Error to deny defendant's motion for change of venue;

Error to deny defendant's motion for sanctions;

Error to allow Tabitha Buck's statement into evidence;

Error to allow the trier of fact to take notes during trial and

potentially to use them during deliberation;

Error to affirm and read the Commonwealth's points of charge Nos.

3 and 4;

Error not to grant a mistrial when the request for supplemental

discovery of Laura Thomas was not granted;

Error not to grant a mistrial when the request for supplemental

discovery of Hazel Show was not granted;

Error not to grant a mistrial when the request for supplemental

discovery of Richard Kleinhans was not granted;

Error not to grant a mistrial when the prosecution withheld

evidence

that a jergo was discarded and that they were aware of its

location;

Error to qualify Dr. Penades as an expert in forensic pathology

since

he was not board certified;

Error not to grant a mistrial when the prosecution withheld from

discovery a portion of Yunkin's statement of February 4, 1992;

Error not to grant a mistrial when the Assistant District Attorney

asked witness Samuel J. Golub two questions beyond his area of

expertise; and

Insufficient evidence existed to sustain the verdict.

6

Subsequently, Lambert, through new counsel, Jules

Epstein, Esq., filed a Motion for a New Trial based on

allegations of after-discovered evidence5 and ineffective

assistance of trial counsel.6 An evidentiary hearing on the

new motion was conducted over a two-day period in

November of 1994. On March 14, 1995, the state trial court

denied Lambert's motion for post-verdict relief. In June of

1995, Lambert appealed the judgment of sentence imposed

by the state trial court to the Superior Court of

Pennsylvania, raising essentially the same claims regarding

ineffective assistance of trial counsel and after-discovered

evidence.7 A three-judge panel of the Superior Court of

Pennsylvania affirmed the judgment of sentence on January

4, 1996. In her direct appeal to the Pennsylvania Supreme

Court filed on February 2, 1996, Lambert again raised the

same claims.8 Lambert's petition for allowance of appeal

_________________________________________________________________

5. The after-discovered evidence consisted of the testimony of Yunkin in

a court proceeding subsequent to Lambert's trial in which he stated he

was aware of the plans to harm Laurie Show; and, Yunkin's admission

of his involvement in the murder during the plea colloquy, which also

took place subsequent to Lambert's trial, resulting in a plea of nolo

contendere to third degree murder.

6. Lambert alleged trial counsel was ineffective in failing to present

evidence of good character/reputation; failing to present evidence and

witnesses to substantiate her testimony that she had been physically

and psychologically abused by Yunkin; failing to produce evidence that

Commonwealth witness Laura Thomas was on juvenile probation which

was crucial to the credibility determination; presenting a witness who

testified that Laurie Show's claim of date rape against Yunkin was false;

failing to present evidence of bad reputation for the veracity of witness

Laura Thomas; failing to move to suppress Lambert's inculpatory

statement to the police; failing to seek a new trial based upon new

evidence of Yunkin's nolo contendere plea to third degree murder; and,

in failing to impeach Yunkin with his statements to the police that he

knew of the plan to harm the victim before he dropped Lambert and

Buck off at Show's condominium.

7. In her appeal to the Pennsylvania Superior Court, Lambert argued her

counsel was ineffective for failing to introduce evidence of her good

character and of the abuse inflicted upon her by Yunkin; Lambert also

raised the after-discovered evidence of Yunkin's breach of his plea

agreement and perjury.

8. See note 7, supra.

7

was subsequently denied on July 2, 1996. Lambert did not

seek collateral review of any of her claims through the

Pennsylvania Post-Conviction Relief Act.

Lambert instituted the present federal habeas corpus

action by filing a pro se writ of habeas corpus on

September 12, 1996. The district court subsequently

appointed counsel to represent Lambert and directed

counsel to file an amended petition, which they did on

January 3, 1997. Lambert's first amended petition for writ

of habeas corpus incorporated the claims previously

presented to the state courts, but went further, advancing

the following grounds for relief: (1) Lambert was actually

innocent and no credible evidence supported the

prosecution's theory of her guilt or the findings of the state

trial court; (2) the misconduct9 of the prosecution and the

police created a situation of manifest injustice; (3) after-

discovered evidence10 created manifest injustice; and, (4)

trial counsel was ineffective in over 35 separate ways. In its

Answer to the First Amended Petition, the Commonwealth

responded that Lambert was not entitled to federal review

at this time since she had failed to exhaust her state court

remedies and had committed insurmountable procedural

default. In the alternative, the Commonwealth argued that

Lambert's petition should be denied on the merits. Further,

_________________________________________________________________

9. The alleged misconduct includes altering Lambert's statement to the

police; creating a false crime scene photograph to discredit her;

knowingly presenting perjured testimony and failing to take remedial

measures after the perjury was confirmed; knowingly presenting "expert"

testimony that was scientifically incredible while tampering with the

defense's expert; altering evidence and witness statements; failing to

disclose Brady and Giglio evidence; and "losing" other exculpatory

evidence.

10. The after-discovered evidence allegedly consists of alterations of

Lambert's statement; alteration of crime scene evidence; scientific

testing

of clothing worn by Yunkin; photographs of the crime scene which

revealed additional writing in blood by the victim that exculpates

Lambert; autopsy report notes revealing the time of the victim's death;

injuries incurred by the "real" killers, Yunkin and Buck; testing of blood

found on the victim's ring; statements made by Yunkin and Buck to

their friends; and, the subsequent admission by the prosecution that the

primary witness against Lambert--and one of the"real" killers--had

committed perjury at Lambert's trial.

8

the Commonwealth expressly stated in its Answer that it

was not waiving the exhaustion requirement in any manner.11

Despite the Commonwealth's objections to Lambert's

petition on the grounds of exhaustion and procedural

default, the district court determined that it would allow

broad discovery and would conduct an evidentiary hearing

on Lambert's claims of actual innocence and prosecutorial

misconduct while, at the same time, considering the

Commonwealth's procedural claims of exhaustion and

procedural default. The district court denied the

Commonwealth's objection that the evidentiary hearing was

prohibited by the Anti-Terrorism and Effective Death

Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. S 2241

et seq., citing the highly unusual circumstances of this

case. The evidentiary hearing commenced on March 31,

1997, and, after fourteen days of testimony, the district

court entered an order granting the writ, releasing Lambert

from custody, and barring the Commonwealth from

conducting a retrial of Lambert.

The district court issued its Order and Memorandum

Opinion on April 21, 1997.12 Lambert v. Blackwell, 962

F.Supp. 1521 (E.D. Pa. 1997). The court found that the

1995 amendment to the Pennsylvania Post Conviction

Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann.S 9543, which

eliminated the waiver exception for actual innocence or

procedural default (former sections 9543(a)(3)(ii) and (iii)),

left Lambert without a state forum in which to raise her

claims of error. The district court interpreted the

Pennsylvania legislature's elimination of the actual

_________________________________________________________________

11. The district court found, however, that the Commonwealth waived its

exhaustion and procedural default arguments at the evidentiary hearing

when counsel stated that relief was "warranted" in this case. N.T. at

2703, April 16, 1997. In so holding, the district court did not recognize

that the Commonwealth withdrew this concession the very next day. In

any event, the Commonwealth maintains that any acquiescence it may

have made regarding relief did not result in an express waiver of the

exhaustion issue. See also note 28, infra.

12. In finding that Lambert was actually innocent of the murder of

Laurie Show, the district court did not address the third and fourth

grounds raised in Lambert's habeas petition regarding after-discovered

evidence and ineffective assistance of counsel.

9

innocence and procedural default exceptions to waiver "as

an advertent decision after the Supreme Court's decision in

Schlup [v. Delo, 513 U.S. 298 (1995),] to place those issues

squarely into the federal forum." Lambert, 962 F.Supp. at

1553. Thus, the district court concluded that Lambert

exhausted all of the claims presented in her federal habeas

proceeding, with the exception of the after-discovered

evidence which "expand[ed] the degree of the violations"

brought to the attention of the state trial judge or confirmed

Lambert's contention that she is actually innocent. Id.

The court further opined that to the extent there may be

claims which a Pennsylvania court might view as not being

waived, the state proceedings would be ineffective to protect

Lambert's rights if the district court dismissed the petition.

Id. at 1554. Moreover, the court found that if it were to

dismiss this case as a mixed petition pursuant to Rose v.

Lundy, supra, "on the suspicion that perhaps its reading of

the PCRA was wrong," then Lambert would be deemed to

have taken her one bite of the apple under the AEDPA. Id.

Consequently, in order for Lambert to return to federal

court, the district court opined, she would need the

approval of the court of appeals and denial of such

application was unreviewable by the Supreme Court. The

district court felt that under these extraordinary

circumstances, such a result was constitutionally

intolerable.13 Id.

Finally, the district court explained that in such an

extraordinary case, the principles of comity allowed it to

excuse total exhaustion or procedural default in the face of

a manifestly unjust incarceration.14 Id. In any event, the

_________________________________________________________________

13. Subsequent to the issuance of the district court's opinion, we decided

Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997), holding that "when a

prior petition has been dismissed without prejudice for failure to exhaust

state remedies, [authorization from the court] is [not] necessary and the

petitioner may file his petition in the district court as if it were the

first

such filing."

14. At a status conference held on February 13, 1997, prior to the

evidentiary hearing, the court, after articulating its concerns with the

exhaustion issue, opined that the better approach was to analyze the

petitioner's claims under the doctrines of actual innocence and manifest

10

court found that the Commonwealth's concession at the

evidentiary hearing that Lambert was entitled to some relief

effected a waiver of the exhaustion objection.

The Commonwealth filed a timely notice of appeal on

April 22, 1997. We have jurisdiction over this appeal

pursuant to 28 U.S.C. SS 1291 and 2253.15 In a federal

habeas corpus proceeding, we exercise plenary review of the

district court's legal conclusions and apply a clearly

erroneous standard to the court's factual findings. Caswell

v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (citing Bond v.

Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989)).

II.

We note at the outset that the parties do not dispute that

Lambert's petition includes claims which were not

presented to the state court.16 Unlike the district court,

however, we cannot dispense with consideration of the

exhaustion and procedural default claims in favor of

reaching the merits of Lambert's claim of actual innocence.17

_________________________________________________________________

injustice based upon prosecutorial misconduct, which are derived from

the Due Process Clause and not from any statute (such as the PCRA).

The district court thus intimated that it was avoiding the exhaustion

issue by proceeding to a due process analysis. The court further stated

that while it agreed with the general requirements of the AEDPA

regarding evidentiary hearings and unexhausted claims, this case

involved highly unusual circumstances and, thus, those provisions did

not apply.

15. Because the Commonwealth has taken the appeal in this proceeding,

a certificate of appealability is not required as a prerequisite to our

exercising appellate jurisdiction. Fed. R. App. P. 22(b).

16. Lambert argues in her brief, however, that since she has waived the

non-exhausted claims in state court, she has thus exhausted her state

remedies. As explained below, we do not agree with Lambert that the

non-exhausted claims were necessarily waived in state court.

17. We recognize that a panel of this court, on a motion by the

respondents for a stay of Lambert's release pending the appeal,

concluded that the respondents failed to show that they were likely to

succeed in their argument that the petition should be denied because of

Lambert's failure to exhaust her state court remedies. Of course, that

11

Rather, we find that Supreme Court precedent and the

AEDPA mandate that prior to determining the merits of her

petition, we must consider whether Lambert is required to

present her unexhausted claims to the Pennsylvania courts.

We turn, therefore, to a discussion of exhaustion of state

claims under the AEDPA.

A.

It is axiomatic that a federal habeas court may not grant

a petition for a writ of habeas corpus filed by a person

incarcerated from a judgment of a state court unless the

petitioner has first exhausted the remedies available in the

state courts. 28 U.S.C. S 2254(b)(1)(A); Toulson v. Beyer,

987 F.2d 984 (3d Cir. 1993). The exhaustion requirement is

excused, however, where no available state corrective

process exists or the particular circumstances of the case

render the state process ineffective to protect the

petitioner's rights. 28 U.S.C. SS 2254(b)(1)(B)(I) and (ii). A

petitioner will not be deemed to have exhausted the

available state court remedies so long as she has the right

under state law to raise, by any available procedure, the

question presented. 28 U.S.C. S 2254(c). A petitioner who

has raised an issue on direct appeal, however, is not

required to raise it again in a state post-conviction

proceeding. Evans v. Court of Common Pleas, Delaware

County, Pennsylvania, 959 F.2d 1227, 1230 (3d Cir. 1992)

(citing Swanger v. Zimmermann, 750 F.2d 291, 295 (3d Cir.

1984)). Thus, the federal habeas claim must have been

"fairly presented" to the state courts, i.e., it must be the

substantial equivalent of that presented to the state courts.

Id. at 1231 (citations omitted). In addition, the state court

_________________________________________________________________

inherently tentative conclusion, based on a record less complete than

that before us and not reached after the opportunity for the intensive

study available to a merits panel, is not binding on this panel. See Third

Circuit I.O.P. 9.1 (only the holding of a panel in a published opinion is

binding on subsequent panels). See also United States v. Houser, 804

F.2d 565, 568 (9th Cir. 1986). In any event, the motions panel did not

preclude the respondents from raising the exhaustion issue. Rather, it

merely opined that they were not likely to succeed on it. In fact, upon

fuller presentation and consideration, they have succeeded.

12

must have available to it the same method of legal analysis

as that to be employed in federal court. Id. The habeas

petitioner carries the burden of proving exhaustion of all

available state remedies. Toulson, 987 F.2d at 987. The

exhaustion requirement does not foreclose federal relief, but

merely postpones it. Id. at 986.

The Supreme Court has made clear that a section 2254

petition which includes unexhausted as well as exhausted

claims, i.e., a mixed petition, must be dismissed without

prejudice. Rose v. Lundy, 455 U.S. 509, 522 (1982). In

reaching this conclusion, the Court analyzed the policies

underlying section 2254 since it found that Congress's

intent was unclear from the statute or legislative history. Id.

at 516-17. In endorsing rigorous enforcement of the total

exhaustion rule, the Court acknowledged the preference

among federal jurists to allow state courts the initial

opportunity to review and correct alleged violations of

federal constitutional rights. This preference is derived from

principles of comity.18 Id. at 518. The Court further noted

that adoption of a total exhaustion rule causes a reduction

in piecemeal litigation, thereby increasing the likelihood

that all claims will be reviewed in a single proceeding. Id. at

520. Finally, the Court observed that the prisoner's interest

in obtaining speedy relief in federal court on his claims

would not be unreasonably impaired by requiring total

exhaustion. Id. at 520-22. Thus, Lundy teaches that if the

petitioner fails to satisfy the exhaustion requirement prior

to filing a federal habeas petition and none of the

exceptions apply, the federal court is precluded from

granting habeas relief to the petitioner.

_________________________________________________________________

18. The doctrine of comity " `teaches that one court should defer action

on causes properly within its jurisdiction until the courts of another

sovereignty with concurrent powers, and already cognizant of the

litigation, have had an opportunity to pass upon the matter.' " Rose v.

Lundy, 455 U.S. 509, 518 (1982) (quoting Darr v. Burford, 339 U.S. 200,

204 (1950)). Indeed, we opined in Toulson v. Beyer, 987 F.2d 984, 986

(3d Cir. 1993), that requiring exhaustion of state remedies "addresses

federalism and comity concerns by `afford[ing] the state courts a

meaningful opportunity to consider allegations of legal error without

interference from the federal judiciary.' " (Citations omitted.)

13

Five years later, the Supreme Court handed down its

decision in Granberry v. Greer, 481 U.S. 129 (1987). In

Granberry, the district court had dismissed the federal

habeas petition upon the state's motion to dismiss under

Rule 12(b)(6) of the Federal Rules of Civil Procedure. When

the petitioner appealed, the state for the first time

interposed the defense that the petitioner had not

exhausted his state remedies. The petitioner responded by

arguing that the state waived this defense by failing to raise

it in the district court. The Supreme Court granted

certiorari to consider whether the state's failure to raise the

exhaustion defense in the district court constituted a

waiver of that claim in the court of appeals. 481 U.S. at

130.

The Court held in Granberry that where the state has

failed to raise, in the district court, an arguably meritorious

nonexhaustion defense, through inadvertence or otherwise,

the court of appeals may appropriately examine the

nonexhaustion issue anew. Id. at 134. In determining

whether the interests of comity and federalism were better

served by addressing the merits despite non-exhaustion,

the Supreme Court delineated the following standard:

If, for example, the case presents an issue on which an

unresolved question of fact or of state law might have

an important bearing, both comity and judicial

efficiency may make it appropriate for the court to

insist on complete exhaustion to make sure that it may

ultimately review the issue on a fully informed basis.

On the other hand, if it is perfectly clear that the

applicant does not raise even a colorable federal claim,

the interests of the petitioner, the warden, the state

attorney general, the state courts, and the federal

courts will be well served even if the State fails to raise

the exhaustion defense, the district court denies the

habeas petition, and the court of appeals affirms the

judgment of the district court . . . .

Granberry v. Greer, 481 U.S. at 134-35. Thus, we learn

from Granberry that where a state fails to raise a

nonexhaustion defense in the district court, courts of

appeals should consider whether, under the particular facts

and circumstances presented, the interests of justice would

14

be served by addressing the merits of the habeas petition if

it is clear the petitioner has failed to state a colorable

federal claim, or by requiring exhaustion. Id. at 136. We

emphasize, however, our previous holding that Granberry

applies to "any claim before the court of appeals for which

the state neglected to raise non-exhaustion in the district

court." Keller v. Petsock, 853 F.2d 1122, 1128 n.6 (3d Cir.

1988). Clearly that is not the case before us. The

Commonwealth has aggressively asserted the

nonexhaustion defense first in the district court and now

on appeal. Indeed, in our most recent decisions applying

Granberry, the state had failed to raise the nonexhaustion

defense in the district court. See, e.g. , Smith v. Horn, 120

F.3d 400 (3d Cir. 1997); Evans v. Court of Common Pleas,

Delaware County, 959 F.2d 1227 (3d Cir. 1992); Keller v.

Petsock, supra.

Significantly, two changes in the federal habeas statute

are derived from the Supreme Court's decision in

Granberry. First, under the AEDPA, a district court may no

longer infer that a state has waived the nonexhaustion

defense from its failure to invoke the defense expressly.

Gaylor v. Harrelson, 962 F.Supp. 1498, 1499 & n.2 (N.D.

Ga. 1997). The revised statute now requires an express

waiver through counsel in order for the state to have waived

the nonexhaustion defense. 28 U.S.C. S 2544(b)(3). Second,

the AEDPA, in 28 U.S.C. S 2544(b)(2), codifies the holding

in Granberry by conferring upon the district court the

authority to deny a habeas petition on the merits despite

the petitioner's failure to exhaust state remedies. Hoxsie v.

Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied, ___

U.S. ___, 118 S.Ct. 126 (1997) (emphasis added). Standing

alone, section 2544(b)(2) does not provide a standard for

determining when a court should dismiss a petition on the

merits rather than requiring complete exhaustion. Id. Thus,

the court of appeals in Hoxsie read section 2544(b)(2) in

conjunction with Granberry. We read the Granberry test as

whether "it is perfectly clear that the applicant does not

raise even a colorable federal claim." 481 U.S. at 135.

We cannot say that it is perfectly clear that Lambert has

not raised a colorable federal claim. The district court

obviously found substantial merit to Lambert's claims of

15

actual innocence and prosecutorial misconduct. These

claims present unresolved questions of fact and of state law

and, thus, the interests of comity and justice are better

served by requiring complete exhaustion.

We note that section 2544(b)(2) does not provide the

district court with the authority to grant relief on the merits

where the petitioner fails to exhaust state remedies. Thus,

a strict reading of the statute compels us to conclude that

if a question exists as to whether the petitioner has stated

a colorable federal claim, the district court may not

consider the merits of the claim if the petitioner has failed

to exhaust state remedies and none of the exceptions set

forth in sections 2544(b)(1)(B)(I) and (ii) applies. Lambert

argues, in contrast, that Granberry establishes that where

the district court has held a full trial and found a

miscarriage of justice, a failure to exhaust is excused. We

disagree. The particular language in Granberry to which

Lambert refers states:

[I]f a full trial has been held in the district court and it

is evident that a miscarriage of justice has occurred, it

may also be appropriate for the court of appeals to hold

that the nonexhaustion defense has been waived in

order to avoid unnecessary delay in granting relief that

is plainly warranted.

481 U.S. at 135. We note that, unlike in Granberry, the

state has not waived the nonexhaustion defense. Second,

the AEDPA now explicitly requires an express waiver by the

state before waiver will be deemed to have occurred.

Moreover, to accept Lambert's argument would require that

we view Granberry as authorizing a district court to waive

the nonexhaustion defense even though the state has

aggressively asserted that defense at all stages of the

proceedings. This conclusion is irreconcilable, not only with

the express waiver provision in section 2544(b)(3), but also

with common sense. The quoted passage from Granberry

only has meaning when placed in the context of a case in

which the state failed to raise the nonexhaustion defense

before the district court. Given the new express waiver

requirement of the AEDPA, it is doubtful that Granberry

continues to have any import in a situation other than

where the state has expressly waived the nonexhaustion

16

defense. We need not answer this question, however, as the

resolution of the case before us does not require it.

For these reasons, we also reject Lambert's contention

that exhaustion is excused based on the "special

circumstances rule" derived from Supreme Court

jurisprudence, specifically Granberry v. Greer , supra, and

Frisbie v. Collins, 342 U.S. 519 (1952).19 We agree with the

Commonwealth that Granberry relates only to the special

circumstance of the prosecution never having raised the

exhaustion defense prior to appeal so that the Supreme

Court permitted the court of appeals to rule on the merits

of the petition. After enactment of the AEDPA in 1996, 28

U.S.C. S 2254 imposes a duty on the courts to examine the

exhaustion issue and to reject a petition if it raises

unexhausted claims.

Lambert's reliance on Frisbie v. Collins, supra, is likewise

misplaced, as that decision does not support a finding of

exceptional circumstances here.20 In Frisbie, the Supreme

Court reiterated the general rule that the presence of

special circumstances will excuse non-exhaustion. 324 U.S.

at 520-21. Whether such circumstances exist is to be

determined by the district court conducting a factual

appraisal in each particular case. Id. at 521. The Court

refused to discuss the special circumstances found by the

_________________________________________________________________

19. Lambert maintains before us that since she has either raised or

waived all of her claims in state court, she did exhaust her state

remedies. Lambert is equating exhaustion with waiver, however, in that

she argues that since the unexhausted claims have been waived under

Pennsylvania law, after the 1995 amendments to the PCRA, she is

without a mechanism for post-conviction relief. This argument cannot

form the basis of a "special circumstance" excusing her failure to

exhaust since, as we find infra, that review of her unexhausted claims is

not clearly foreclosed under Pennsylvania law.

20. The Commonwealth submits that the so-called "special

circumstances" exception of Frisbie v. Collins, supra, upon which

Lambert relies to excuse nonexhaustion, "is so ill-defined that it must be

considered sui generis" and, in any event, did not survive the AEDPA

amendments to the federal habeas corpus statute. The Commonwealth

describes Frisbie as "a case notably lacking in guidance on the

parameters of the [special circumstances] exception." We agree with the

Commonwealth's analysis of Frisbie.

17

court of appeals for the reason that the circumstances were

so peculiar to the case that "a discussion of them could not

give precision to the `special circumstances' rule."21 Id. at

522.

Recently, we considered the section 2544 exhaustion

requirement with regard to a mixed petition where, as here,

the state asserted the nonexhaustion defense in the district

court. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997).

Acknowledging the Supreme Court's strong presumption in

favor of exhaustion, we also recognized that "in rare cases

exceptional circumstances of peculiar urgency may exist

which permit a federal court to entertain an unexhausted

claim." Id. at 206-07 (citations omitted). We explained that

such circumstances exist where "state remedies are

inadequate or fail to afford a full and fair adjudication of

the federal contentions raised, or where exhaustion in state

court would be `futile.' " Id. at 207 (citations omitted).

Applying this principle in Christy, we declined to find an

exceptional circumstance which would excuse

nonexhaustion. We found the mere risk that the state

courts would not stay the petitioner's execution while his

federal constitutional claims are being litigated did not

amount to an "unusual circumstance." The more

appropriate inquiry, we found, was to focus on the actuality

that state courts will refuse to stay an execution while

federal claims are pending. Id.

Applying our holding in Christy to Lambert's petition, we

turn our attention to the actuality that the state courts

would refuse to entertain Lambert's claims. As we discuss

below, we cannot say with certainty that state review of

Lambert's claims is precluded. Absent clear preclusion, we

do not find any exceptional circumstances which would

warrant consideration of Lambert's unexhausted claims in

federal court.

_________________________________________________________________

21. The petitioner in Frisbie v. Collins alleged that the complaint in the

state court action was defective and, consequently, a faulty warrant was

issued for his arrest. He further contends that he was subsequently

kidnaped by Michigan police in Chicago and brought back to Michigan

for trial in violation of federal constitutional and statutory law. 324

U.S.

at 521 n. 5.

18

Our conclusion is further buttressed by the holding of

our sister court of appeals in O'Guinn v. Dutton , 88 F.3d

1409 (6th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 117 S.Ct.

742 (1997). There the unexhausted claim involved

allegations of prosecutorial misconduct stemming from

Brady violations. The court of appeals found that the state

courts had an important interest in reviewing a serious

constitutional claim involving the conduct of a state

prosecutor in withholding evidence in a state trial in which

the defendant was prosecuted for a violation of state law.

Id. at 1412. Accordingly, the court held that the "interests

of justice and comity [did] not weigh in favor of having [the

federal court] decide the question." Id. at 1413. Having

found that the case did not present any unusual or

exceptional circumstances, the court concluded that the

state courts should address the prosecutorial misconduct

claim in the first instance. Id.

In contrast, we find that the cases cited by Lambert,

Evans v. Court of Common Pleas, supra, and Moore v.

DeYoung, 515 F.2d 437 (3d Cir. 1975), do not support her

argument that special circumstances exist which would

excuse exhaustion. It is true that in Evans we held that

"[e]xhaustion is not a jurisdictional requirement, but rather

a rule of comity, and a federal court may in certain

circumstances decide the merits of a claim despite non-

exhaustion." 959 F.2d at 1231. We elaborated on the

circumstances which would support non-exhaustion: where

the petitioner has no opportunity to obtain relief in a state

court, or where the state corrective process is so deficient

as to render any effort to obtain relief futile. Id. (citing

Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986)).

Citing Granberry v. Greer, supra, we noted further that

non-exhaustion notwithstanding, a district court may deny

a habeas claim on its merits if it appears unequivocally that

the petitioner has not raised even a colorable federal claim.

Id. We thus proceeded to consider the merits of Evans'

claims based on our conclusion that Evans' federal due

process claim was "the substantial equivalent of that

presented to the state courts" and, thus, had been

adequately exhausted. Even though the state failed to raise

the exhaustion defense in state court, we relied on

Granberry for the authority to reach the merits of Evans'

19

claims. We subsequently affirmed the district court's denial

of federal habeas relief. 959 F.2d at 1237.

Unlike Evans, Lambert presents numerous claims which

are not the substantial equivalent of those presented to the

state court in the direct appeal of her murder conviction.

Her petition is more factually analogous to Gibson v.

Scheidemantel, supra. There the petitioner alleged an

ineffective assistance of counsel claim in state court, but he

asserted a different basis for this claim in the state

proceeding than that presented in his federal habeas claim.

Consequently, we held that the petitioner had not

exhausted his claim since the state courts could not be

expected to consider a claim that was never made. 805 F.2d

at 139.

Nor do we find that Lambert's position is supported, as

she contends, by our decision in Moore v. DeYoung, 515

F.2d 437 (3d Cir. 1975). There we acknowledged the

possibility that federal habeas review to enjoin a state

criminal proceeding prior to trial was possible despite non-

exhaustion if "extraordinary circumstances are present." Id.

at 443. In finding that Moore failed to present an

" `extraordinary circumstance' which would warrant pre-

trial, pre-exhaustion habeas corpus relief," we declined to

define the parameters of the "extraordinary circumstances"

exception, holding only that whatever the boundaries may

be, Moore's petition fell outside those limits. 22 Id. at 447.

We noted, however, that manifest shortcomings by the

prosecutor's office and negligence in conducting Moore's

prosecution did not "reveal that quality of delay,

harassment, bad faith or other intentional activity which, in

an appropriate situation, might constitute an `extraordinary

circumstance', justifying pre-exhaustion federal habeas

relief." Id. at 447 n. 12.

_________________________________________________________________

22. In his petition, Moore alleged that the constitutional right to a

speedy trial was so unique that it should bar not only a conviction but

trial as well. This unique quality, Moore contended, constituted an

"extraordinary circumstance." 515 F.2d at 446.

20

B.

Although we discount Lambert's reliance on Granberry,

Frisbie, Evans, and Moore to support a finding of

exceptional circumstances sufficient to excuse

nonexhaustion, our inquiry does not end there. As we

stated earlier, one of the exceptional circumstances in

which courts have dispensed with the exhaustion

requirement is if further state litigation would be futile.

Christy, 115 F.3d at 207. See also Twenty-Sixth Annual

Review of Criminal Procedure, 85 Geo. L. J. 775, 1521 & n.

2755 (1997). In making this determination, courts have

examined the totality of the circumstances surrounding

each petition. Id. at 1521 n. 2755. For example, the Court

of Appeals for the First Circuit found the exhaustion

requirement excused when a recent independent decision

by the highest state court clearly rendered appellate review

futile. Id. (citing Allen v. Attorney General of Maine, 80 F.3d

569, 573 (1st Cir. 1996)). Another court of appeals excused

the exhaustion requirement when it was clear that the

petitioner's claims would be deemed procedurally barred if

presented in the state court. Id. (citing Grey v. Hoke, 933

F.2d 117, 120 (2d Cir. 1991)). Some courts have been

reluctant to apply the futility exception, however, because

it has been criticized for potentially bypassing the state

courts. Id. at 1522 n. 2755 (citations omitted). Most

importantly, we recently applied our jurisprudence to hold

that unless a state court decision exists indicating that a

habeas petitioner is clearly precluded from state court

relief, the federal habeas claim should be dismissed for

nonexhaustion, even if it appears unlikely that the state

will address the merits of the petitioner's claim. Banks v.

Horn, 126 F.3d 206, 211 (3d Cir. 1997) (citing Doctor v.

Walters, 96 F.3d 675, 683 (3d Cir. 1996); Toulson, 987 F.2d

at 988-89; Peoples v. Fulcomer, 882 F.2d 828, 831-32 (3d

Cir. 1989)).

In Banks, we were faced with whether the Pennsylvania

Supreme Court, in death penalty cases, consistently or

regularly bars second or subsequent PCRA petitions which

may not meet the court's criteria for such petitions,

"includ[ing] the existence of `a strong prima facie showing

. . . that a miscarriage of justice may have occurred.' "

21

Banks v. Horn, 126 F.3d at 211 (citing Commonwealth v.

Beasley, 678 A.2d 773, 771 (Pa. 1996), cert. denied, ___

U.S. ___, 117 S.Ct. 1257 (1997)). We concluded, based on

our review of Pennsylvania case law, that the Pennsylvania

Supreme Court had established a practice of reaching the

merits of claims in PCRA petitions in capital cases

notwithstanding the failure of the petitioner to meet the

appropriate procedural requirements. Id. at 212-13.

Because we were not sure that the supreme court would

change this practice after the 1995 amendments to the

PCRA, we found that state review of Bank's unexhausted

claims was not foreclosed. Id. at 214.

In deciding Banks, we relied on Doctor v. Walters, supra,

which involved a defendant who fled during the lunch

recess of his criminal bench trial on the charge of

aggravated assault following the presentation of the

Commonwealth's case. When the defendant failed to return,

the trial court, without informing the defendant, his

counsel, or the Commonwealth, entered a guilty verdict

against Doctor. Upon his capture five years later, Doctor

was sentenced to a term of 49 to 98 months in prison. He

filed a timely direct appeal to the Pennsylvania Superior

Court which quashed the appeal without reaching the

merits based on the fugitive forfeiture rule.23 Both the

Pennsylvania Supreme Court and the United States

Supreme Court also declined to hear his appeals. In his

federal habeas petition, Doctor raised a Sixth Amendment

claim which had not been presented to any Pennsylvania

court. We found that although the Pennsylvania courts

would hold, on collateral review, that Doctor waived the

right to assert his Sixth Amendment claim on procedural

grounds, PCRA review was not clearly foreclosed since

Doctor may be able to show that a " `miscarriage of justice'

warranting `departure from the PCRA's stringent eligibility

requirements' " has occurred. 96 F.3d at 681-82 (citation

omitted).

_________________________________________________________________

23. Rule 1972(6) of the Pennsylvania Rules of Appellate Procedure

permits a Pennsylvania appellate court to quash an appeal because the

appellant is a fugitive. Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.

1996).

22

Likewise, in Toulson v. Beyer, we considered whether it

would be futile to require the petitioner to exhaust his state

remedies first. 987 F.2d at 986. There the defendant was

convicted in a New Jersey court of various non-capital

offenses. After a series of unsuccessful direct appeals to the

New Jersey courts and the denial of his motion for post-

conviction relief by the state trial court, Toulsonfiled a

federal habeas petition containing unexhausted but

procedurally barred claims in addition to exhausted claims.

In examining pertinent New Jersey law, we found that it

was possible that a New Jersey court may allow state

review of otherwise procedurally barred claims based on

one of two statutory exceptions to the procedural bar rule.

987 F.2d at 988. Accordingly, we held that "[b]ecause no

state court has concluded that petitioner is procedurally

barred from raising his unexhausted claims and state law

does not clearly require a finding of default, . .. the district

court should have dismissed the petition without prejudice

for failure to exhaust state remedies." Id. at 989. Thus, our

precedent makes clear that Lambert must exhaust her state

remedies before she can seek federal habeas relief unless

such an attempt would be futile. Doctor, 96 F.3d at 681

(citing Toulson, 987 F.2d at 987).

Futility may be encountered where exhaustion is

impossible due to procedural default, i.e., the state court

refuses to hear the merits of the claim because either (1)

the defendant waived a PCRA claim she could have raised

in an earlier proceeding but failed to do so; or (2) some

other procedural bar exists, such as a statute of

limitations. Doctor, 96 F.3d at 681. Moreover, a federal

habeas court may excuse exhaustion because of a

procedurally barred claim in state court "only when state

law `clearly foreclose[s] state court review of [the]

unexhausted claims.' Toulson, 987 F.2d at 987." Doctor, 96

F.3d at 681. We further explained:

If the federal court is uncertain how a state court

would resolve a procedural default issue, it should

dismiss the petition for failure to exhaust state

remedies even if it is unlikely that the state court

would consider the merits to ensure that, in the

interests of comity and federalism, state courts are

23

given every opportunity to address claims arising from

state proceedings. See Vasquez v. Hillery, 474 U.S.

254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986);

Toulson, 987 F.2d at 987.

Id. We must determine, therefore, whether, in the case

before us, Pennsylvania collateral review is "clearly

foreclosed" such that further state proceedings are futile.

C.

In Pennsylvania, collateral review of a criminal conviction

is available under the Post Conviction Relief Act ("PCRA") of

1995, 42 Pa. Con. Stat. Ann. SS 9541-46 (West 1997 Supp.).24

The scope of the relief provided under the PCRA is limited

to "persons convicted of crimes they did not commit and

persons serving illegal sentences . . .".25 42 Pa. Con. Stat.

Ann. S 9542. Section 9542 further provides that the PCRA

"shall be the sole means of obtaining collateral relief and

encompasses all other common law and statutory remedies

for the same purpose that exist when [the PCRA] takes

effect, including habeas corpus and coram nobis." The

PCRA also imposes several eligibility criteria for relief. First,

the petitioner must plead and prove by a preponderance of

the evidence that she is, at the time relief is granted,

currently serving a sentence of imprisonment, or is on

probation or parole, or is awaiting execution of a death

sentence. 42 Pa. Con. Stat. Ann. S 9543(a)(1). Second, the

petitioner must prove by a preponderance of the evidence

that her conviction or sentence resulted from one or more

of seven categories of claims, only three of which are

relevant. We paraphrase them here:

(1) The petitioner's rights under the Pennsylvania

_________________________________________________________________

24. The PCRA of 1995 became effective on January 16, 1996, and

applies to postconviction petitions filed on or after that date. The PCRA

was subsequently amended by Act No. 1997-33 (H.B. 87), effective June

25, 1997, but the changes are irrelevant to the dispute before us.

25. Because it provides a limited scope of relief, the PCRA of 1995 has

been described as "one of the most restrictive and narrow of all the

modern state postconviction remedies." Donald E. Wilkes, Jr., State

Postconviction Remedies and Relief, App. A, p. 760 (1996 Ed.).

24

Constitution or the Constitution or laws of the United

States were violated which, under the circumstances,

so undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have

taken place.

(2) The petitioner received ineffective assistance of

counsel which, under the circumstances, so

undermined the truth-determining process that no

reliable adjudication of guilt or innocence could have

taken place.

(3) Exculpatory evidence, which was unavailable at

the time of trial, was subsequently discovered and

would have changed the outcome of the trial if it had

been introduced.

42 Pa. Con. Stat. Ann. S 9543(a)(2)(i), (ii), and (vi).

Next, the petitioner must show by a preponderance of the

evidence that the alleged error has not been previously

litigated or waived. 42 Pa. Con. Stat. Ann. S 9543(a)(3). "An

issue will be deemed previously litigated when `the highest

appellate court in which the petitioner could have had

review as a matter of right has ruled on the merits of the

issue,' " Commonwealth v. Morales, 701 A.2d 516, 1997 WL

578289, *1 (Pa. Sept. 17, 1997) (quoting 42 Pa. Con. Stat.

Ann. S 9544(a)(2)), or "it has been raised and decided in a

proceeding collaterally attacking the conviction or

sentence." 42 Pa. Con. Stat. Ann. S 9544(a)(3). In her

federal habeas petition, Lambert advances three claims

which were previously litigated in the direct appeal of her

conviction and sentence. Accordingly, Lambert is not

entitled to postconviction relief on those claims under the

PCRA and has thus exhausted her state remedies as to

these three claims.

Finally, by a preponderance of the evidence, the

petitioner must demonstrate that the failure to litigate an

issue previously was not the result of any rational, strategic

or tactical decision by counsel. 42 Pa. Con. Stat. Ann.

S 9544(a)(4). Neither the contentions of the parties nor the

evidence of record suggests that Lambert's trial counsel

strategically planned to exclude in her direct appeal some

of the claims now raised.

25

Particularly significant to this appeal is the PCRA

provision on waiver, which states, "an issue is waived if the

petitioner could have raised it but failed to do so before

trial, at trial, during unitary review, on appeal or in a prior

state postconviction proceeding." 42 Pa. Con. Stat. Ann.

S 9544(b). In this regard, the Pennsylvania courts have held

"that nearly all claims are waived under the PCRA since

nearly all claims potentially could have been raised on

direct appeal. This applies even if the first-time petitioner

never has obtained appellate review of his conviction."

Commonwealth v. Eaddy, 614 A.2d 1203, 1207-08

(Pa.Super. 1992), appeal denied, 626 A.2d 1155 (Pa. 1993).

Prior to 1995, the PCRA also provided two exceptions to the

waiver rule. If the alleged error either (1) resulted in the

conviction of an innocent person, or (2) did not constitute

a state procedural default barring federal habeas relief,

then the waiver was excused. 42 Pa. Con. Stat. Ann.

SS 9543(a)(3)(ii) and (iii) (West 1988). Neither of these two

exceptions, however, is available to Lambert since her

direct appeal was not final until after the effective date

of the 1995 amendment to the PCRA. While Lambert

maintains and the district court held that elimination of

these two exceptions in the 1995 amendment effectively

bars relief under the PCRA on all claims, we are not

convinced that this is necessarily the case.

In the past, the Pennsylvania Supreme Court has allowed

the petitioner, in limited circumstances, to overcome the

waiver provisions where he has made a strong prima facie

showing that a "miscarriage of justice" may have occurred.

Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988). In

order to prevail under this theory, the petitioner must show

either: "(a) that the proceedings resulting in[the] conviction

were so unfair that a miscarriage of justice occurred which

no civilized society can tolerate, or (b) that [the petitioner]

is innocent of the crimes charged." Commonwealth v.

Szuchon, 633 A.2d 1098, 1100 (Pa. 1993) (citing Lawson,

549 A.2d at 112). In a concurring opinion, Justice

Papadakos provided the following edification on

"miscarriage of justice":

A miscarriage of justice, like prejudice, can only occur

where it is demonstrated that a particular omission or

26

commission was so serious that it undermined the

reliability of the outcome of the proceeding. Where a

conviction can be shown to result from a breakdown in

the adversary process, the conviction rendered is

unreliable. Such a conviction is obviously prejudicial to

the defendant and, if allowed to stand, is a miscarriage

of justice.

Lawson, 549 A.2d at 112 (Papadakos, J., concurring).

Moreover, we noted in Doctor that allegations of a

miscarriage of justice have been permitted to override the

waiver provisions of the PCRA in the context of successive

PCRA petitions, which was the situation in Lawson, supra.

96 F.3d at 682 n. 6. We further noted that the

Pennsylvania courts, however, have not addressed whether

a showing of miscarriage of justice can be applied to

overcome the waiver provisions in an initial PCRA petition.

Id. In Doctor, we refused to find that collateral review was

foreclosed since we concluded that Pennsylvania case law

left open the possibility that a showing of miscarriage of

justice can overcome the waiver provisions in an initial

PCRA petition. Id. We thus concluded that a return to state

court would not be futile. Id. at 683.

In Banks, we reiterated our policy regarding review of

waived or procedurally defaulted claims, which we originally

stated in Toulson and applied in Doctor :

[I]n the absence of a state court decision indicating

that a habeas corpus petitioner is clearly precluded

from state court relief, the district court should dismiss

the claim for failure to exhaust even if it is not likely

that the state court will consider petitioner's claim on

the merits.

126 F.3d at 211. We have applied this policy to all habeas

corpus cases involving state convictions regardless of the

sentence imposed. Whether, in fact, state case law exists

which establishes unequivocally that state relief is

precluded would depend on the particular facts of the case.

Although factually Banks is distinguishable from Lambert's

situation, the general rule of Banks governs our resolution

of this dispute.26 Neither Lambert nor the district court

_________________________________________________________________

26. Lambert argues our decisions in Banks and Doctor are

distinguishable and, therefore, inapposite. Lambert attempts to

27

cites any authority to the contrary. The Commonwealth, on

the other hand, cites several decisions in which

Pennsylvania courts have expressed a willingness to depart

from the PCRA's stringent waiver standards for non-capital,

as well as capital cases, where actual innocence or manifest

injustice is alleged. See Commonwealth v. Moss , 689 A.2d

259, 262 (Pa.Super. 1997) (where there is a strong prima

facie showing that a miscarriage of justice may have

occurred in a rape conviction, court will consider the merits

of a fifth PCRA petition); Commonwealth v. Williams, 660

A.2d 614, 618-19 (Pa.Super. 1995), appeal denied , 674

A.2d 1071 (Pa. 1996) (although the court denied PCRA

_________________________________________________________________

distinguish Doctor on the basis that the petitioner failed to raise in the

state court the legal theory and facts supporting his habeas claim, and

that we were referring to the pre-amendment PCRA when we noted the

availability of a "miscarriage of justice" exception to the waiver rule.

Our

holding in Doctor is clear: Pennsylvania case law leaves "open the

possibility that a showing of miscarriage of justice can overcome the

waiver provisions in an initial PCRA petition." 96 F.3d at 682 n.6. In

reaching this conclusion, we were construing the PCRA as amended in

1995, as evidenced by our citation to the 1996 supplement and the

language of the statute as amended in 1995.

Lambert distinguishes Banks on the basis that it is a death penalty

case with a clearly existing avenue for state court review. In a letter

brief

to the court dated September 30, 1997, Lambert states:

In other words, Banks, Toulson, and Doctor hold only that a

petitioner should be returned to state court to pursue an avenue of

review that clearly exists. The present case presents precisely the

opposite situation. Here, the avenue of state review-- indeed, the

very review opportunity that was available in Toulson and Doctor --

has been permanently blockaded by an explicit act of the

Pennsylvania legislature eliminating the waiver excuses and

advertently sending the cases at issue, including Lambert, to

federal

court where waiver excuses still exist; and the practice in death

sentence cases of ignoring waivers that was available in Banks is

inapplicable.

Further, Lambert states that "where the legislature has advertently

channeled the case at issue to federal court--the district court should

proceed to the cause and prejudice/miscarriage of justice inquiry under

Schlup [v. Delo, 513 U.S. 298 (1995)]." (Citing Carter v. Vaughn, 62 F.3d

591, 595 (3d Cir. 1995)).

28

relief to a defendant who pled nolo contendere to robbery, it

acknowledged that Pennsylvania courts will address the

merits of waived claims upon a showing of manifest

injustice); Commonwealth v. Fiore, 665 A.2d 1185, 1194

(Pa.Super. 1995), appeal denied, 675 A.2d 1243 (Pa. 1996)

(Hoffman, J., concurring, wrote separately "to emphasize

that there are circumstances where a departure from the

PCRA's stringent eligibility requirements is appropriate,

such as where there are extraordinary circumstances or a

miscarriage of justice.").

A showing of ineffective assistance of counsel may also

excuse waiver. Morales, 701 A.2d 516, 1997 WL 578289, *2

(citing Commonwealth v. Christy, 656 A.2d 877, 881 (Pa.),

cert. denied, ___ U.S. ___, 116 S.Ct. 194 (1995)) (ineffective

assistance of counsel could be a basis for post-conviction

relief only if the defendant had a constitutional right to

counsel in the proceeding in which he claimed

ineffectiveness); see also Commonwealth v. Buehl , 658 A.2d

771, 777 (Pa. 1995) (three members of a divided court

interpreted the PCRA to require a defendant claiming

ineffectiveness of counsel to meet a more demanding

standard of prejudice than if he had raised this issue on

direct appeal); Thomas M. Place, Ineffective Assistance of

Counsel Under the Pennsylvania Post Conviction Relief Act,

69 Temple L. Rev. 1389 (1996). Waiver of errors under the

PCRA will be excused for ineffective assistance of counsel if

the defendant had a constitutional right to counsel at the

stage in the proceedings where counsel's ineffectiveness

brought about the waiver. Place, supra, at 1410 (citing

Christy, 656 A.2d at 881) (additional citation omitted).

"Consequently, ineffectiveness of counsel will only excuse

waiver of errors for claims where counsel is ineffective at

trial and on direct appeal." Id. (citing Christy, supra). If the

underlying claim was previously litigated on appeal, post-

conviction relief is not available based on a claim of

ineffective assistance of counsel. Id. (citations omitted).

Moreover, an ineffectiveness claim " `must be raised at the

earliest stage in the proceedings at which the allegedly

ineffective counsel is no longer representing the

[defendant].' " Id. (citing Commonwealth v. Griffin, 644 A.2d

1167, 1170 (Pa. 1994)). Finally, it should be noted that

"[c]ounsel's performance in terms of waiver becomes an

29

issue only in those cases where new counsel represents the

defendant at post-trial motions. If the new counsel does not

preserve the issue of the trial counsel's ineffectiveness in

post-trial motions, the new counsel waives the issue unless

a court determines that post-trial counsel provided

ineffective representation." Id. (footnote omitted).27

Our review of Pennsylvania decisional law leads us to

conclude that it is unclear after the 1995 amendments to

the PCRA whether the Pennsylvania courts would allow a

showing of miscarriage of justice to overcome the waiver

provisions in a non-capital case upon an initial PCRA

petition. Indeed, we have not discovered cases addressing

this issue after the passage of the 1995 amendments.

Accordingly, we cannot say that requiring Lambert to seek

review of her claims in the state courts is futile. 28

_________________________________________________________________

27. Although neither party has addressed the issue of whether

ineffectiveness of counsel excused waiver, the Commonwealth

acknowledged in its letter brief dated September 30, 1997, Pennsylvania

decisional law holding that "PCRA courts will consider claims which

otherwise would be deemed waived when raised under the rubric of

ineffective assistance of counsel." Commonwealth v. K.M., 680 A.2d 1168,

1171 n. 8 (Pa.Super. 1996) (citing Commonwealth v. Griffin, 644 A.2d

1167 (Pa. 1994)). Moreover, it is possible that Lambert could argue in a

PCRA petition that second post-trial counsel provided ineffective

representation in not raising the unexhausted claims in her direct

appeal. Since Lambert is now represented by different counsel, arguably

she would be raising the unexhausted claims at the earliest stage in the

proceedings at which previous counsel provided allegedly ineffective

representation. The uncertainty surrounding the availability of this

exception to the waiver rule further supports dismissal of the habeas

petition to allow the state court the opportunity to rule in the first

instance.

28. We find the district court erred in concluding that the

Commonwealth waived the exhaustion defense when it temporarily

conceded during the evidentiary hearing that Lambert was entitled to

some relief. Considering the circumstances under which the concession

was made, i.e., the Commonwealth was forced to defend the petition on

the merits without the benefit of a ruling on its exhaustion defense prior

to the evidentiary hearing, the fact that the Commonwealth continuously

maintained that Lambert had failed to exhaust her state remedies at all

stages of the proceedings, and the requirement that the waiver be

expressly given, we cannot say the Commonwealth waived the

exhaustion defense.

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III.

In seeking state collateral review of her nonexhausted

claims, Lambert has several options. It is possible that

under 42 Pa. Con. Stat. Ann. S 5103, Lambert may transfer

her federal proceeding to the appropriate Pennsylvania

court. In addition, Lambert may institute a PCRA action

utilizing one or more of the three exceptions to the PCRA

statute of limitations, which allows for the filing of a PCRA

petition at the present time. We discuss these options

briefly.

A.

The Pennsylvania Transfer Statute provides in pertinent

part:

(a) General rule.--If an appeal or other matter is taken

to or brought in a court . . . of this Commonwealth

which does not have jurisdiction of the appeal or other

matter, the court . . . shall not quash such appeal or

dismiss the matter, but shall transfer the record

thereof to the proper tribunal of this Commonwealth,

where the appeal or other matter shall be treated as if

originally filed in the transferee tribunal on the date

when the appeal or other matter was first filed in a

court . . . of this Commonwealth.

42 Pa. Con. Stat. Ann. S 5103(a) (West 1997 Supp.) In the

case of actions originally filed in any United States court,

the statute further provides:

[Section 5103(a)] shall also apply to any matter

transferred or remanded by any United States court for

a district embracing any part of this Commonwealth. In

order to preserve a claim under Chapter 55 (relating to

limitation of time), a litigant who timely commences an

action or proceeding in any United States court for a

district embracing any part of this Commonwealth is

not required to commence a protective action in a court

. . . of this Commonwealth. Where a matter is filed in

any United States court for a district embracing any

part of this Commonwealth and the matter is

dismissed by the United States court for lack of

31

jurisdiction, any litigant in the matter filed may

transfer the matter to a court . . . of this

Commonwealth by complying with the transfer

provisions set forth in [section 5103(b)(2)].

42 Pa. Con. Stat. Ann. S 5103(b)(1) (West 1997 Supp.).

Although the transfer act clearly applies when the

original court lacks jurisdiction over the appeal or other

matter, we believe it may also apply here where the district

court dismisses a federal habeas petition for failure to

exhaust state remedies.29 The language of section 5103(b)(1)

indicates that a purpose of the statute is to prevent the

barring of claims and other matters under the statute of

limitations when the original court lacked jurisdiction over

a matter which was timely filed. Applying the transfer act

under the facts here would be entirely consistent with the

purpose of the statute.

We hasten to add, however, that we are not endorsing the

application of the transfer statute in all federal habeas

actions dismissed for nonexhaustion. Rather, we suggest

that transfer may be appropriate where, as here, the

district court did not originally dismiss the petition for

failure to exhaust state remedies. Instead, the court

prematurely proceeded to adjudicate the merits of the claim

during which the one-year statute of limitations expired.

Under these unique circumstances, the Pennsylvania

transfer statute may apply and any action commenced by

Lambert under the PCRA would be treated as filed on

September 12, 1996, the date on which she filed her

petition for writ of habeas corpus in the district court.

B.

Lambert has yet another option. The 1995 amendment to

the PCRA enacted for the first time a one-year statute of

limitations.30 Since the effective date of the 1995 Act is

_________________________________________________________________

29. When a district court dismisses a federal habeas petition for

nonexhaustion, it nevertheless has jurisdiction. The dismissal is based

on principles of comity afforded state courts.

30. Prior to the 1995 amendment, the PCRA did not contain a

limitations provision for filing a PCRA petition.

32

January 16, 1996, and Lambert's direct appeal wasfinal on

July 2, 1996, under 42 Pa. Con. Stat. Ann. S 9545(b)(1),

she had until July 1, 1997 to file a PCRA petition.31 A literal

reading of section 9545 indicates that by failing tofile a

PCRA petition on or before July 1, 1997, Lambert may now

be barred from filing a PCRA petition on her unexhausted

claims. Section 9545 also contains three exceptions to the

one-year filing requirement. Essentially, the limitations

period will be excused where (1) the petitioner failed to raise

the claim previously due to interference by government

officials with the presentation of the claim in violation of

the constitutions and laws of the United States and

Pennsylvania; (2) the facts upon which the claim is based

were unknown to the petitioner and could not have been

discovered through due diligence; or (3) the claim involves

a constitutional right recognized by the Supreme Court of

the United States or of Pennsylvania subsequent to the

expiration of the statute of limitations and held to apply

retroactively. 42 Pa. Con. Stat. Ann. S 9545(b)(1)(i), (ii), and

(iii). Interestingly, the original version of the bill proposing

the 1995 amendments to the PCRA contained a fourth

exception to the one-year time limit which was eliminated

before final passage. That exception would have allowed a

waiver of the statute of limitations where "[t]here is a

compelling need to address the claim because of a

fundamentally unfair trial, illegal sentence or some other

manifest injustice." H.R. 179-66, 1st Spec. Sess., at 510

(Pa. 1995).32

_________________________________________________________________

31. Section 9545(b) states in relevant part:

(1) Any petition under [the PCRA], including a second or

subsequent petition, shall be filed within one year of the date the

judgment becomes final. . . .

(3) [A] judgment becomes final at the conclusion of direct review,

including discretionary review in the Supreme Court of the United

States and the Supreme Court of Pennsylvania, or at the expiration

of time for seeking the review.

32. The debate on this amendment centered on the concerns of certain

representatives that by providing a "manifest injustice" exception, they

would be opening a Pandora's box for the Pennsylvania appellate courts.

H.R. 179-66, 1st Spec. Sess., at 510 (Pa. 1995). Mr. Piccola argued that

33

The possibility exists that Lambert may be able to plead

and prove one or more of the excuses to the statute of

limitations. For example, Lambert has alleged in her federal

habeas petition that she discovered certain exculpatory

evidence after her conviction for first degree murder.

Moreover, she cites numerous instances of alleged

prosecutorial misconduct which, if proven, may be

sufficient to fall within the first exception of

unconstitutional interference by government officials. We

note that to date, no Pennsylvania court has been asked to

decide under what circumstances it would excuse an

untimely PCRA petition under the new statute of limitations

provision.33 Thus, Lambert may be able to proceed under

the PCRA.

_________________________________________________________________

Pennsylvania case law does not provide guidance on what constitutes

"manifest injustice" and cautioned against passing these words into the

statute without defining them. Id. At 511. He further commented that

the current bill (S.B. 81) contained adequate protection for the criminal

defendant who finds new evidence after trial, as well as in many other

circumstances. Id. The "manifest injustice" amendment was eventually

defeated. Id. at 512. On the other hand, Mr. Thomas, who introduced the

amendment, argued that "the amendment provide[d] a protective

mechanism in situations where there is conduct that does not arise until

way beyond the statutory period," . . . . Id. at 510. He further

commented that "fairness would require that we provide an . . . avenue

of relief, in situations where individuals do not come face to face with

conduct that has resulted in either their incarceration or their harm

beyond that . . . statutory year that is provided for in this particular

bill."

Id. at 510-11. He opined that passage of the bill without the avenue of

review provided in the amendment would cause a disservice to the whole

judicial system. Id. at 511.

33. Under the prior statute which did not contain a statute of

limitations provision, the Pennsylvania courts were lenient in allowing

collateral review after long delays, especially in situations involving

ineffective assistance of counsel. See, e.g., Commonwealth v. Johnson,

532 A.2d 796 (Pa. 1987) (mere delay, standing alone, may not be

sufficient reason to reject PCRA petition summarily); Commonwealth v.

McCabe, 519 A.2d 497 (Pa.Super. 1986) (a PCRA petition filed six years

after the supreme court affirmed denial of his petition to set aside an

illegal sentence was not untimely); Commonwealth v. Taylor, 502 A.2d

195 (Pa.Super. 1985), appeal denied (1986) (unexplained delay in filing

first PCRA petition is a factor to be considered in assessing the merits

of

the claims raised in the petition, but is not a basis for refusing to

consider the claims by reason of laches and waiver).

34

IV.

One final matter bears mention. Each side has brought to

our attention serious factual issues concerning the district

court's finding that Lambert was actually innocent of first

degree murder. In light of our resolution of Lambert's

petition, we need not comment on Lambert's actual

innocence. Indeed, to do so would be to "deprive the state

courts of an `opportunity to correct their own errors, if

any,' " Doctor, 96 F.3d at 683 (citing Toulson, 987 F.2d at

989), by engaging in a premature examination of the verdict

prohibited by Congress under the AEDPA.

We do not, however, diminish the obvious sense of

outrage expressed by the prosecution nor that of the able

district judge who heard and evaluated the evidence

Lambert proffered. Resolution of these difficult questions

must nonetheless await the appropriate forum for the

constitutional balance our forefathers created to remain in

equipoise. Accordingly, we will vacate the order of the

district court granting the petition for writ of habeas corpus

and remand to the district court with the direction to

dismiss the petition without prejudice.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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