Lambert v. Blackwell

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

10-12-2004

Lambert v. Blackwell

Precedential or Non-Precedential: Precedential

Docket No. 03-2282

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PRECEDENTIAL Peter S. Greenberg, Esquire (Argued)

Nancy Winkelman, Esquire

UNITED STATES COURT Jonathan S. Liss, Esquire

OF APPEALS Han Nguyen, Esquire

FOR THE THIRD CIRCUIT Schnader Harrison Segal & Lewis LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Nos. 03-2282, 03-2383

Counsel for Appellant/Cross-Appellee

LISA MICHELLE LAMBERT, Gerald J. Pappert

Attorney General

Appellant William H. Ryan, Jr.

Executive Deputy Attorney General,

v. Criminal Law Division

Amy Zapp (Argued)

CHARLOTTE BLACKWELL Senior Deputy Attorney General,

(ADMINISTRATOR OF THE Capital Litigation Unit

EDNA MAHAN CORRECTIONAL Jerome T. Foerster

FACILITY FOR WOM EN); Senior Deputy Attorney General,

THE ATTORNEY GENERAL OF Appeals and Legal Services Section

THE STATE OF PENNSYLVANIA Office of The Attorney General

16 th Floor, Strawberry Square

Harrisburg, PA 17120

On Appeal from the

United States District Court for the Counsel for Appellee/Cross-Appellant

Eastern District of Pennsylvania

(Dist. Court No. 01-cv-2511)

District Judge: Hon. Anita B. Brody OPINION OF THE COURT

Argued: January 12, 2004

TABLE OF CONTENTS

Before: ALITO, CHERTOFF, and

BECKER, Circuit Judges.

I. BACKGROUND . . . . . . . . . . . . . . 3

A. The Trial . . . . . . . . . . . . . . . . . . 4

(Filed: October 12, 2004)

1. The Commonwealth’s Case 5

2. Lambert’s Case . . . . . . . . . . 9

1

B. Procedural History . . . . . . . . . 14 c. Brady Violation

Concerning the Rope . . 68

II. JURISDICTION AND

STANDARD OF REVIEW . . . . . 18 d. Destruction of

Evidence . . . . . . . . . . . 69

III. DISCUSSION . . . . . . . . . . . . . . . 19

IV. CONCLUSION . . . . . . . . . . . . 69

A. Exhaustion . . . . . . . . . . . . . . . . 20

B. Deference . . . . . . . . . . . . . . . . . 23 CHERTOFF, Circuit Judge.

C. The Merits . . . . . . . . . . . . . . . . 34 Before us, after a lengthy journey

1. The Sweatpants . . . . . . . . . 35 up and down the state and federal justice

systems, is the habeas petition of Lisa

a. Knowing Use of Perjured Michelle Lambert. Lambert is currently

Testimony . . . . . . . . . . 35 serving a life sentence without the

b. “Switching” Evidence . 39 possibility of parole for first degree

murder. Judge Lawrence Stengel of the

2. Evidence of Yunkin’s Court of Common Pleas for Lancaster

Location During the County, Pennsylvania imposed the

Murder . . . . . . . . . . . . . . . . 42 sentence on Lambert after he found

a. Knowing Use of Perjured Lambert guilty at a bench trial held in July

Testimony . . . . . . . . . . 44 of 1992.

b. Suppression of Brady Lambert initially appealed her

Material . . . . . . . . . . . . 49 conviction in the Pennsylvania state

courts, which rejected her claims on direct

3. The “29 Questions” . . . . . . 51 appeal. She thereafter filed a petition for a

4. The Crime Scene writ of habeas corpus in federal district

Photographs . . . . . . . . . . . . 54 court. After holding a hearing over the

course of three weeks, Judge Stewart

5. The Dying Declaration . . . 57 Dalzell of the Eastern District of

6. The DA’s Contact with Pennsylvania found Lambert “actually

Lambert’s Trial Expert . . . 59 innocent” and granted her petition. He

specifically barred any retrial.

7. The River Search . . . . . . . . 65

Lambert was released into the

a. Brady Violation custody of her attorneys on April 16,

Concerning the Pink Bag 1997, but her freedom was short-lived.

and Sneaker . . . . . . . . . 65 Less than a year later, this Court vacated

b. Knowing Use of Perjured the District Court’s judgment due to

Testimony . . . . . . . . . . 67 Lambert’s failure to exhaust her available

state court remedies, namely collateral

2

review pursuant to the Pennsylvania Post her release. But important institutional

Conviction Relief Act (“PCRA”). Lambert concerns also infuse this case. A state

consequently returned to state court, where court and a federal court reached

a PCRA Court (again Judge Stengel) held diametrically opposed conclusions, and

a six-week hearing and determined in a two federal courts took substantially

comprehensive opinion that relief under different views of the state court

the PCRA was not warranted. proceedings. This unusual history

highlights the need to respect the limits of

After the Pennsylvania Superior

federal habeas review, as well as the

Court affirmed the PCRA Court’s

principle of comity that informs that

decision, Lambert not surprisingly re-filed

review. Simply put, a habeas court reviews

her federal habeas petition. Judge Dalzell

a state conviction to determine whether a

held that the state courts’ findings were

state prisoner is in custody in violation of

null and void because they lacked

the Constitution or laws or treaties of the

jurisdiction to hear Lambert’s PCRA

United States; the federal court is not

petition. He then reinstated his findings

mandated to retry the case and substitute

from the 1997 habeas hearing and gave

its own verdict.

the parties a month to request additional

testimony on topics that the Court had not We conclude that the PCRA Court

addressed in 1997. In the meantime, the decision here was indeed entitled to

Commonwealth sought Judge Dalzell’s deference. After carefully reviewing the

recusal. entire record and applying that deference

de novo, we conclude that the PCRA

Judge Dalzell e v e n tually

Court’s determinations were well-

acquiesced to the Commonwealth’s efforts

supported and require that we deny

at recusal, and the case was assigned to

Lambert habeas relief. Put more simply:

Judge Anita Brody of the Eastern District

Lambert’s trial was fair, amply supported,

of Pennsylvania. Judge Brody dismissed

and not infected by material error or

Lambert’s habeas petition afte r

injustice. We will affirm the denial of the

determining, contrary to Judge Dalzell’s

writ by Judge Brody.

ruling, that the PCRA Court’s findings

were not null and void and were entitled to I. BACKGROUND

deference under the Antiterrorism and

At the center of this contentious

Effective Death Penalty Act of 1996

case lies the brutal murder of Laurie

(“AEDPA”). Lambert now appeals from

Show. Show died from knif e

that judgment.

wounds—stabs to her back and slashes to

This case presents a host of her throat—inflicted on her by intruders in

sensitive issues. At one level are the very her home on the morning of December 20,

serious allegations of prosecutorial 1991. She was fifteen years old at the time

misconduct that Lambert argues require of her death.

3

The investigation of Show’s To be sure, the government and

murder quickly zeroed in on three defense agreed on broadly what happened:

individuals: Lisa Michelle Lambert, Yunkin and Lambert were romantically

Tabitha Faith Buck, and Lawrence involved and lived together, but their

Yunkin. The police arrested Lambert and relationship entered an eight-day hiatus

Yunkin on outstanding warrants on the over the summer of 1991. During those

day of Show’s murder. Upon questioning, eight days, Yunkin dated Laurie Show.

they both admitted their involvement in

Lambert and Yunkin eventually

the attack on Show; and they both

resumed their relationship, and there was

implicated Buck.

real animosity between Lambert and

The Lancaster County District Show. So, in July 1991, Lambert devised

Attorney eventually charged Lambert and a plan to enlist the help of several other

Buck with criminal homicide and Yunkin teenagers to humiliate Show by luring her

with hindering apprehension.1 Lambert out of her home, cutting off her hair, and

waived her right to a jury trial, and a tying her up to a pole within the City of

week-long bench trial was held before Lancaster. The plan did not come to

Judge Lawrence Stengel of the Court of fruition because two of the girls involved

Common Pleas for Lancaster County, eventually warned Show.

Pennsylvania.

Months later, on December 19,

A. The Trial 1991, someone called Laurie Show’s

mother, Hazel Show, claiming to be her

It hardly needs to be said that in our

daughter’s guidance counselor. The caller

adversarial system of justice, the opposing

scheduled a meeting with Hazel Show for

parties—in a criminal case, the

7 a.m. the following morning at the

prosecution and defense—typically

principal’s office of Laurie Show’s high

advance two radically different versions of

school.

events. This case is no exception.

The next morning Yunkin,

Lambert, and Buck drove to the

condominium complex where Show’s

1

The District Attorney entered into home was located. They brought with

a plea bargain with Yunkin that them a knife from Yunkin’s and

conditioned the hindering apprehension Lambert’s home and rope and two black

charge on his giving truthful testimony at knit hats that Lambert had purchased the

Lambert’s trial. The Commonwealth previous day at K-Mart. Sometime around

revoked the original plea bargain because, 7 a.m., while Hazel Show was out to

as we explain more fully below, it attend the “meeting” she thought she

determined that Yunkin was not entirely would have with her daughter’s “guidance

truthful. As a result, Yunkin eventually counselor,” Laurie Show was home alone.

pled guilty to third degree murder.

4

Lambert and Buck entered the Show government knowingly use perjured

residence. A struggle ensued during which testimony and suppressed evidence

someone stabbed Show and slit her throat. tending to support her version of events.

We therefore relate in some detail the

Lambert, Buck, and Yunkin (whose

evidence the parties presented at trial and

precise whereabouts during and

the inferences they urged Judge Stengel to

involvement in the melee with Show, as

make from that evidence.

we explain more fully below, was disputed

at trial) drove away from the 1. The Commonwealth’s Case

condominium complex together. The three

The Commonwealth called several

of them devised an alibi, and Yunkin and

witnesses whose testimony tended to show

Lambert dropped Buck off at school.

that Lambert hated Show. Several testified

Lambert and Yunkin then that they heard Lambert say numerous

proceeded to discard evidence from times that she wanted to kill Show. Two

Show’s murder. They washed clothes of Lambert and Yunkin’s neighbors

worn during the murder, put them in a swore, for example, that Lambert

bag, and threw them into a dumpster repeatedly said she wanted to “beat

behind K-Mart. They threw a bag [Show] up” and “get her out of the way

containing, among other things, the knife and kill her.” App. 690, 701.2 Three

and rope into the Susquehanna River. witnesses testified that they heard

Lambert, on at least one occasion, mention

Within these general contours,

slitting Show’s throat.3

however, the government and defense

presented Judge Stengel with diverging Several witnesses related incidents

versions of what happened. The involving Lambert and Show that

Commonwealth argued that Lambert hated occurred during the months leading to

Show and was deeply involved in the

planning and execution of Show’s murder.

Lambert argued that Yunkin and Buck 2

Citations to the Appendix

were to blame and that she tried to prevent (“App.”) refer to the record before Judge

them from murdering Show. Brody. Citations to the Appellate

Our role is not, of course, to Appendix (“Appellate App.”) refer to the

determine the veracity of either account. appendices the parties submitted on appeal

Rather, we are confined to ascertaining to this Court.

whether any constitutional error occurred 3

Laura Thomas, Floyd Thomas

at Lambert’s trial. Yet the parties’ factual (Laura’s father), and Kimona Warner

contentions at trial provide the necessary testified about an incident in the backyard

framework for understanding Lambert’s of the Thomas residence where Lambert

detailed claims of error. Many of her said she was going to “cut” or “slit”

claims involve allegations that the Show’s throat. App. 718-19, 739, 757.

5

Show’s murder. A number of Lambert’s parking lot with some friends, including

cohorts in the thwarted plan to abduct Randy Rodriguez and Jacqueline

Show and tie her up to a pole in Lancaster, Weakland. Weakland testified that as they

for example, testified about the plan. stood talking next to Rodriguez’s truck,

Lambert — who was pregnant —

Others testified about physical

approached Show and began screaming

altercations that occurred between

that Show had ruined her (Lambert) and

Lambert and Show. Hazel Show testified

her (as yet unborn) baby’s life. Rodriguez

about an incident that occurred in July of

testified that Lambert beat Show’s head

1991. While Hazel Show was waiting in

against the cab of his truck. According to

her car to pick up Laurie from her job at

Rodriguez, Lambert said that if she found

the mall, she saw Lambert grab Laurie and

out Show told the police about the

push her into a wall. Hazel Show reported

incident she had “friends that would take

what happened to the police.4

care of” Show and she would kill Show.

Hazel Show also testified that on App. 777. Weakland also testified that

August 20, 1991, Lambert approached Lambert said she was going to kill Show.

Hazel and Laurie while they were out

Hazel Show learned what happened

shopping. Lambert “came up and started

and, despite Lambert’s threats, reported

screaming and yelling all kinds of

the incident to the police that same day.

obscenities and just being very vicious.”

The police did not begin to investigate the

App. 827. One thing Lambert screamed

incident, however, until December 16,

was that sexual relations had occurred

2001. John Bowman, of the East Lampeter

between Yunkin and Laurie Show during

Township Police Department, testified that

their brief relationship. Hazel Show told

he began by contacting Show and

Lambert that Yunkin had raped her

Weakland about the incident. He also

daughter Laurie, and that they might press

called Lambert’s parents to try to find her

charges if Lambert continued to harass

current address, which they were unable to

Laurie. In fact, Laurie Show had made a

provide to him.

report to police on July 31, 1991 that

Yunkin had date raped her. A friend of Yunkin’s, Lawrence

Lamparter, related an encounter he had

Another altercation occurred in the

with Lambert on December 18, 2001, a

parking lot of the East Towne Mall on

couple of days before Show’s murder.

November 22, 1991. Show was in the

Lamparter ran into Lambert at the mall.

She told Lamparter that the police were

4

Sergeant Carl Harnish of the looking for her because she had assaulted

Pennsylvania State Police testified that Show. She also told him that Show was

upon her arrest Lambert admitted that she going to charge Yunkin with rape and that

had physically assaulted Show in July of “she was going to get Laurie.” App. 793.

1991.

6

The Commonwealth called Yunkin Lambert and Buck were not present

to the stand to testify about the events when he arrived to pick them up, so he

surrounding Show’s murder. Yunkin drove around a little. He passed by their

testified that he drove Lambert to K-Mart meeting spot on Oak View Road several

the night before the slaying, on December times before Lambert and Buck showed

19, 1991. He waited in the car while she up and got in the car. As they drove home,

purchased rope and two knit ski hats. Yunkin asked Lambert what happened.

She told him “not to worry about it” and

Lambert woke Yunkin up early the

that she would “tell [him] later if [he]

next morning. According to Yunkin,

needed to know.” App. 258.

Lambert put on a pair of his sweatpants,

one of his flannel shirts, and a “jergo” (a The inhabitant of the apartment

hooded sweatshirt). He testified that below the Shows’, Richard G. Kleinhaus,

Lambert often wore his clothes at the time also testified at the trial. Kleinhaus said

because she was almost seven months that he woke up at around 5:45 a.m. on the

pregnant. morning of Show’s murder. From his

window, he saw Hazel Show leaving the

They drove to pick up Tabatha

complex. Kleinhaus heard the front door

Buck, arriving at her house at

slam above him, followed by a scream and

approximately 6:30 a.m. Yunkin dropped

a thump on the floor of the bedroom. Six

Lambert and Buck off in a wooded area

or eight minutes later, he heard the door

along Oak View Road, a road that ran next

slam again. At that time, around ten or

to the condominium complex where

twelve minutes after seven o’clock, he

Laurie Show lived. Lambert told him to go

looked out the window and saw two

to a nearby McDonald’s restaurant,

people of identical height (approximately

Yunkin testified, and come back in a half

5' 7") exit the stairwell.

hour. Buck told him not to lock the doors

because they might have to make a fast The Commonwealth also elicited

getaway. testimony from Frederick E. Fry, another

resident of the condominium complex. Fry

Yunkin testified that he arrived at

testified that at 7:13 a.m. he was waiting

McDonald’s at 6:50 a.m. and waited for

in his car while he let the engine idle for a

the restaurant to open at 7 a.m. He bought

little while. As he backed his car out, Fry

some food when the McDonald’s opened

saw two individuals to his right. They

and then left to pick up Lambert and

passed in front of his car as he started

Buck. He stayed at McDonald’s for

forward, and he saw that one was a little

approximately fifteen minutes in total.5

shorter and heavier than the other. He

5

A McDonald’s employee

corroborated Yunkin’s testimony. She and 7:15 a.m., and he stayed for

testified that she served Yunkin between 7 approximately fifteen or twenty minutes.

7

estimated that the shorter was found clumps of hair on the floor of the

approximately 5'3" to 5'5" tall and the apartment.

taller was approximately 5'5" to 5' 7" tall.

Dr. Enrique Penades, the doctor

He believed, based on his observations,

who performed the autopsy on Show,

that they were both women.6

described the wounds he observed and

Hazel Show furnished particularly offered opinions as to their cause: several

dramatic testimony. She arrived home at bruises on Show’s head from a blunt

some time between 7:20 and 7:25 a.m., force; three cuts on her back due to stabs

after Laurie Show’s guidance counselor from a knife, one of which penetrated

never showed up for the fictitious meeting through the right lung; two wounds on her

appointment. She found her daughter lying legs, including a cut to her thigh that

on the floor bleeding, and she yelled to her penetrated to her pelvis; twenty one cuts

neighbor downstairs to call 911. There on her hands, probably due to Show’s

was rope tied around Laurie Show’s neck, efforts to grab the knife and hands of her

she testified, so she retrieved a knife from assailant; and a big slashing wound on the

the kitchen to cut it. Laurie Show breathed throat that was the result of at least three

deeply after the rope was cut, and her strokes. He testified that the wounds to

mother held and cradled her. Hazel Show Show’s neck and the deep wound to her

asked who had attacked her, and Laurie back were fatal, and he believed Show

Show answered “Michelle did it.” App. was alive not more than a half hour after

839. Lisa Lambert was also known by her sustaining the wounds.

middle name -- Michelle.

Penades also testified that, despite

Officer Robin Weaver of the East the wounds to Show’s neck, he believed

Lampeter Township Police Department she could say “Michelle did it”; “not in a

testified that at approximately 7:45 a.m. he regular tone but a whispering, mumbling,

and Corporal Jan Fassnacht were the first intelligently [sic] enough for someone

officers to arrive at the crime scene. who is close to this person to understand

Several medical personnel had already what [she] was saying.” App. 143. Dr.

arrived, however, and they were attending Joseph S. Annese, another expert witness

to Laurie Show. Weaver observed a rope for the Commonwealth, also offered his

around Show’s neck and saw wounds on opinion that Show could speak the words

Show’s neck, leg, and hands. He also “Michelle did it” despite the wounds she

sustained.

Yunkin testified that Lambert and

6

At the time of their arrest Yunkin Buck took showers after the three of them

stood at 6'1" and weighed 190 pounds, arrived home that morning. At that point,

Lambert stood at 5'6” and weighed 143 Lambert told him that Buck and Show

pounds, and Buck stood at 5'3" and were wrestling and Show accidentally got

weighed 160 pounds.

8

stabbed in the back, causing a hissing it.7 In the statement, Lambert admitted that

sound as if her lung were punctured. it was her idea to go to Show’s apartment

Lambert said that she and Buck agreed to because she wanted to talk to Show.

slit Show’s throat to put her out of her According to Lambert’s statement, Buck

misery, but she never told Yunkin if they went alone to knock on Show’s door

went through with it. because Show’s mother knew Lambert.

Lambert went into the apartment after she

Yunkin testified that he and

heard someone answer and the door shut,

Lambert washed a bag of clothes that

and she found Buck struggling with Show.

Lambert and Buck had worn that morning

Buck attacked Show with a knife, Lambert

and threw them in a dumpster behind K-

told Solt, and she “just stood there”

Mart. Lambert later told him that she

because she “was so scared.” App. 470.

needed to get rid of another bag, and he

Eventually, Lambert said, she “couldn’t

drove her to the Susquehanna River where

look anymore and I turned away.” Id.

she threw a bag in. They later returned to

the river to get rid of the jergo that 2. Lambert’s Case

Lambert had worn.

Lambert based her case

Several law enforcement officials predominantly on her own testimony,

testified about finding Lambert, Yunkin, during which she admitted several facts

and Buck at a local bowling alley that tending to implicate her in Show’s murder.

night and bringing them in for She admitted to being angry at Show, for

questioning. According to their testimony, example, ostensibly because Show had

Lambert’s story changed a few times over made up rumors about her in order to

the course of questioning. Lambert first create a rift between her and Yunkin.

told the police the alibi story she, Yunkin, Similarly, Lambert conceded that she had

and Buck had devised. said she wanted to kill Show, but she

explained that she only meant it as a figure

Raymond Solt of the Pennsylvania

of speech. She also admitted that on the

State Police eventually took over

morning of Show’s murder she brought

questioning Lambert. After again giving

along a bag containing a knife from her

the alibi story, Solt testified, Lambert

apartment, rope, ski hats, and sunglasses.

admitted to him that the story was false.

But Lambert brought these with her, she

Lambert eventually settled on a version of

testified, because she and Yunkin planned

events in which Buck was largely

on going to cut down a Christmas tree

responsible for Show’s murder. Solt and

later in the day. The ski hats—which

another officer transcribed Lambert’s

statement, and Lambert ultimately signed

7

Lambert testified at trial that the

written statement accurately reflected what

she told Solt.

9

Lambert admitted to purchasing from K- and beat her up enough to put her in the

Mart the night before, along with the hospital. Buck explained that she had

rope—were intended to keep wood chips called Hazel Show and set up a fake

out of their hair. They needed the knife to meeting with Laurie Show’s guidance

cut the small branches off the base of the counselor so that she would not be there

tree so it would fit into the stand. The when they came to attack Show.

sunglasses were necessary to prevent them

Lambert told them that it was a

from getting pinkeye. And the rope was

“stupid” plan because Yunkin would get

for tying up the tree; indeed, Lambert

into almost as much trouble for beating up

testified that she purchased that particular

Show as he would for the rape charge. She

rope because it contained a picture of a

also told them that she did not want to be

man dragging a Christmas tree on its

involved in beating up Show because (at

packaging.

least she believed) Show was pregnant. As

D e s p i t e these seem i n g ly a result, Lambert suggested they do what

inculpatory admissions, Lambert they had planned on doing the previous

maintained that it was Yunkin and Buck summer: cutting off Show’s hair and

who developed the plan to attack Show humiliating her.

and she only learned of the plan the day

Buck and Yunkin eventually

before the attack. Moreover the plan, as

agreed, and the three of them settled on

far as she knew, never involved murdering

accosting Show as she left her apartment

Show.

and cutting her hair off. Thus, Lambert

During the week leading to Show’s testified, she put a pair of scissors in the

murder, Lambert testified, Yunkin bag containing the tools for cutting down

repeatedly told her and Buck that he was the Christmas tree: the knife, ski hats, and

nervous that Show was going to press rape rope.

charges against him. Yunkin and Buck

Yunkin and Lambert picked up

told Lambert that they had a plan to “get”

Buck early the next morning. During the

Show that would “keep her mouth shut.”

car ride to Show’s home, Buck looked

App. 1037. But they would not tell her

through the bag containing the knife, ski

exactly what their plan was.

hats, and rope and found that the scissors

The night before Show’s murder, were missing. Buck told Lambert that they

Lambert and Yunkin went to Buck’s could use the knife instead of scissors, and

house. There, Yunkin again expressed his she cut off a piece of her own hair to

fear that Show would put him in jail by demonstrate. Buck also cut off a piece of

accusing him of rape. Buck and Yunkin the rope, explaining that they could use it

then told Lambert about their plan. to tie Show’s hands and feet together.

They had decided to go to Show’s Yunkin developed a cough as they

house, knock on her door, pull her outside, approached the entrance to Show’s

10

condominium complex, and he decided to from Show, but the knife (which she saw

go to McDonald’s to get a drink. Lambert “bounce” off Show’s back) came close to

and Buck went on to Show’s apartment her face. Next, she pulled Show away

without him; Buck carried the knife and from Buck. At that point, she heard a

rope. “whooshing” sound (due apparently to a

puncture in Show’s lung) and saw blood

The two of them waited for Show

on her hands. Lambert was afraid of

at the bottom of the stairway that led to the

blood; her knees went out from under her

floor where her apartment was located.

and she fell to the floor shaking.9

Buck became cold and decided to go and

ask Show what was taking her so long. Lambert began to crawl to the

Lambert heard Buck and Show talking. bedroom door. Show pleaded with

Then, Lambert testified, she heard some Lambert not to leave her there, however,

scuffling and the door slam. so Lambert grabbed Show by the wrist and

pulled her toward the front door. But as

Lambert called Buck but Buck did

Lambert stepped outside the apartment,

not answer, so she climbed the stairs and

still holding onto Show, Buck pulled

entered Show’s apartment. She found

Show back into the apartment.

Buck hitting Show on the floor. Lambert

grabbed Show’s ankles and told her to Lambert continued to flee the

calm down because they just wanted to apartment. After she descended a couple

talk to her. Show freed herself and ran into of steps, however, she collided with

the adjacent room, her bedroom. Buck Yunkin. Yunkin shook her and asked what

followed after her. happened to her hands. She told him that

Buck stabbed Show. Yunkin exclaimed

It was then, Lambert testified, that

“Oh, fuck,” took Lambert to the bottom of

Buck took out the knife. Lambert told

the stairs, told her to sit there, and

Buck to put the knife away, because she

bounded up the stairs toward Show’s

saw a pair of scissors they could use to cut

apartment. As she waited, Lambert heard

Show’s hair instead. But Buck did not

Yunkin yell “You fuck’n bitch,” and

listen and, after pulling Show down,

“Your ass is done now, bitch.”10

began to hack at Show’s hair with the

knife.8

9

Lambert tried to rescue Show from In addition to Lambert’s

Buck. First she tried to pull Buck away testimony, the defense offered the

testimony of a doctor and nurse from the

hospital where Lambert gave birth to her

child that tended to show Lambert was

8

The defense offered testimony afraid of blood.

that pieces of Show’s hair were found at

10

the crime scene, and an expert testified Lambert offered as evidence of

that the hair was cut off using a knife. Yunkin’s presence in Show’s apartment a

11

Lambert eventually heard the front Yunkin and Buck sang a mocking song

door slam. Yunkin bounded down the and laughed hysterically.

stairs and told Lambert he was going to

Lambert admitted that upon her

get the car; Buck followed, with blood on

arrest she told the police at least two false

her clothes and the knife in her hands. She

versions of what happened, the alibi story

stared at Lambert, and Lambert retreated.

and the version in which Buck was solely

Yunkin yelled “Tabby! Get her!” and

responsible for Show’s murder and

Lambert began to run.

Yunkin had little involvement. She told

Lambert did not know where she the police the latter story because Yunkin

was running, but she eventually came out was afraid of going to prison for the rest

along a road. Yunkin sped out of the of his life and he told Lambert that she

condominium complex and picked up would receive less time because she was a

Lambert and Buck. Yunkin was saying pregnant woman. As a result, she agreed

“Oh, shit!” because he had passed Hazel to cover up Yunkin’s involvement.

Show as he was driving out of the

To support her case, Lambert also

condominium complex and she had

relied (in addition to her own testimony)

looked right at him. He then pushed

on expert testimony concerning Show’s

Lambert’s head down because they were

death, evidence tending to show that

passing Show’s school bus.

Yunkin had violent propensities, and a

The three of them drove to Lambert document that allegedly passed between

and Yunkin’s home. Buck and Yunkin put her and Yunkin while they were both in

their bloody clothes in the trash can. A prison awaiting trial. The document was

dispute arose over whether Show was comprised of twenty-nine questions posed

dead and, if so, who had killed her. by Lambert to Yunkin with answers

Yunkin said that Buck had killed Show. inscribed next to them. It contained, for

Buck said that Show was dead, but she example, the following:

was not sure whether she or Yunkin had

6) [Question:] I don’t

killed her.

understand! Why not tell

Eventually, Yunkin and Lambert about Laurie? Are you

met with Buck again and refined their alibi afraid you couldn’t? Did she

story. They also came across a newspaper look scary dead—like

that contained news of Show’s death. Tressa? I want to go home

Upon learning the news, Lambert testified, and have my baby twins!

What if one of them dies

because they need Mommy?

pearl earring found in the apartment. I don’t want to cover up for

Yunkin testified that it was Lambert’s you. I never should have

earring but he had also worn it on agreed, and I’m mad, and

occasion (about three times).

12

still sad! [Answer:] Yes and exchanging with Lambert. App. 321. He

Yes. claimed, for example, that he had never

seen the sixth question or tenth question.

7) [Question:] It’s not my

fault that things went wrong Yunkin testified that in the

(our prank) Friday morning! document that passed between him and

Do you even care? I still Lambert, Lambert had written the

blame you and Tabby! questions in pencil and he had written all

[Answer:] Just wish it his answers in pencil and then traced over

didn’t happen. every other word in ink so that they could

not be changed. But Lambert’s expert

....

testified that there was no indication of

10) [Question:] I know I’m any pencil writing on the 29 Questions,

not an angel, but, Lawrence, and the questions and answers were

I never get mad enough to written with two different pens. After the

kill! Your temper blew, Commonwealth had an expert from the

[and you] hurt her, this time Pennsylvania State Police crime lab

so bad that she can’t get examine the document, Lambert and the

better. To me, it’s a surprise government entered into a stipulation that

it was on her, and she will there were no erasures or graphite on the

never live again! I wanted document. The Commonwealth conceded

to get god-damn Tabby that if its expert were called to the stand,

away from her, [you] got in he would essentially agree with Lambert’s

the bedroom and blew up expert.

[and] went decided to do

To bolster her argument that the 29

things your way—violent!

Questions showed it was Yunkin who

That should’ve been me that

murdered Show, Lambert elicited

you killed. I hate you!

testimony that Yunkin was a violent

[Answer:] I don’t hate

individual. Yunkin himself testified that

anyone. God said, it is

he had hit Lambert three times, though he

wrong to hate.

said it was accidental all but once. And

PCRA Decision (attachment). Yunkin Lambert testified that Yunkin wanted to

admitted, upon cross examination, that he fight an individual named Brad Heiser,

and Lambert had passed a document back Show’s boyfriend at the time of her death.

and forth through the prison law library in

Lambert also called experts to

which he answered questions that she

testify to the circumstances surrounding

asked. He testified, however, that the

Show’s death. John C. Balshy, a crime

document presented to him at trial, the “29

scene expert, testified that the letters “T”

Questions,” appeared tampered with and

and “B” appeared written in blood on the

different from the document he recalled

13

door next to where Show’s body lay when The sentencing phase ensued, and

she died. He opined that Show leaned over Judge Stengel declined to impose the

and wrote the letters to identify Tabatha death penalty. Instead, he sentenced

Buck as her assailant. Lambert for first degree murder to a

statutorily mandated term of life

Lambert also offered expert

imprisonment without the possibility of

testimony tending to show that Show

parole.

could not have said “Michelle did it”

because she was probably unconscious The next day, Lambert filed a set of

and, in any case, physically unable to motions for arrest of judgment and a new

articulate those words. Dr. Isidore trial. Among her many arguments was that

Mihalakis testified that, given Show’s the Commonwealth had offered

wounds, she would have become insufficient evidence to sustain the verdict.

unconscious “considerably less than a half Judge Stengel denied Lambert’s motions

hour” after sustaining her injuries. App. in a comprehensive opinion.

388. Moreover, Dr. Mihalakis testified

In the opinion, the Court

that the wounds to Show’s throat would

extensively canvassed the evidence at trial

have hindered her ability to speak. He also

and its factual findings. “The physical

testified that it was “extremely unlikely”

findings at the crime scene, the testimony

that a female could have wielded the knife

at trial of the defendant, the trial testimony

with enough strength to break the tip off,

of Hazel Show, the history of ill will

as had happened to the knife used to kill

between the defendant and the victim and

Show.

the circumstantial evidence developed at

B. Procedural History trial,” the Court held, “all lead to the

conclusion that defendant was guilty of

Before resting her case, Lambert

the murder of Laurie Show.” App. 1628-

moved for a mistrial due to prosecutorial

29.

misconduct. She argued, among other

things, that the Commonwealth knowingly Further, the Court held that the

elicited perjured testimony from Yunkin evidence that, according to Lambert,

regarding the 29 Questions. The Court tended to show she did not murder

denied Lambert’s motion and, on July 27, Show—such as the 29 Questions—was

1992, found Lambert guilty of first degree insufficient to create a reasonable doubt as

murder and criminal conspiracy to commit to her guilt. With respect to the 29

murder.11 Questions, the Court found that “[a]t best,

the questionnaire was inconclusive,” and

“[t]o simply say that the questionnaire

11

The Court also rejected

Lambert’s demurrers, made after the

Commonwealth rested its case, in which failed to offer sufficient evidence for a

she argued that the Commonwealth had conviction.

14

could not be fully and satisfactorily agreement (in which he agreed to plead

explained does not mean that it created guilty to hindering apprehension) and

reasonable doubt.” App. 1629-30. Yunkin agreed to plead guilty to third

degree murder because the

Lambert subsequently obtained

Commonwealth determined that he was

new counsel and filed a second set of post-

not fully truthful at trial—the Court

verdict motions on October 3, 1994. She

explained:

based her request for relief on claims of

after-discovered evidence and her trial This issue boils

counsel’s ineffectiveness.12 After holding down to whether Mr.

a hearing, Judge Stengel again denied Yunkin’s testimony at the

Lambert’s post-verdict motions in another Lambert trial was credible.

comprehensive opinion dated March 14, Mr. Yunkin testified that he

1995. was not present in the Show

condominium at the time of

In the decision, the Court

the killing. The testimony of

concluded that “[t]rial counsel’s

independent witnesses

representation of Lisa Michelle Lambert

would seem to establish that

was professional, diligent, and

he was truthful in this

thoughtful.” App. 2076. With respect to

regard. A manager at a

t h e a l l e g ed “ a f t e r - d i s c o v e r e d

nearby McDonald’s saw

evidence”—evidence that the

him at or about the time of

Commonwealth revoked Yunkin’s plea

the murder, which

supported his story that he

dropped Ms. Lambert and

12

The trial court entertained Ms. Buck off along the road

Lambert’s second post-verdict motion near the Show residence and

because of a “loophole” that defense then went to McDonald’s

counsel, the prosecution, and the Court for breakfast.

intentionally created to “accommodate”

Lambert. Specifically, the Court sentenced Mr. Yunkin’s story

Lambert only on the first degree murder that he was not present at

charge even though she had also been the time of the killing was

convicted of criminal conspiracy. As a also supported by the

result, the appeal period from a judgment neighbors who saw two

of conviction from the criminal conspiracy figures of about the same

charge had not expired. The parties (and height walking together

the Court) apparently agreed that this across a large grassy area

allowed Lambert to introduce new from the Show residence

evidence and seek a new trial. See App. toward the road. By height

2038; PCRA Decision 7 n.6. and build they matched,

15

generally, a description of Lambert filed a pro se petition for

Ms. Lambert and Ms. Buck. a writ of habeas corpus in federal district

Mr. Yunkin is significantly court on September 12, 1996. The case

taller than either of those was assigned to Judge Dalzell, who

two women and the appointed counsel to represent Lambert

witnesses testified that the and directed counsel to file an amended

two figures seen walking petition.

across the grassy area were

The subsequently-filed amended

of about the same height,

petition advanced numerous grounds for

that being in the 5'1" to 5'5"

relief, including claims that Lambert had

range. Therefore, on the

not previously advanced in state court.

subject of whether Mr.

The Commonwealth o bjected to

Yunkin was in the Show

Lambert’s petition, arguing that she had

residence at the time of the

failed to exhaust her state court remedies

killing, Mr. Yunkin would

and had committed insurmountable

appear to have been

procedural default.

truthful. At least, his story

was supported by Judge Dalzell deferred

independent witnesses. consideration of the Commonwealth’s

exhaustion argument while, in the

App. 2073. Yet “[a]s to whether Mr.

meantime, permitting broad discovery and

Yunkin was aware of the plan to do harm

conducting a fourteen-day evidentiary

to Ms. Show,” the Court explained, “he

hearing. At the end of the hearing, the

was decidedly incredible on this issue.”

District Court entered an order granting

Thus the Court held that the “after-

Lambert’s petition for a writ of habeas

discovered” evidence (Yunkin’s plea to

corpus, releasing Lambert from prison,

third degree murder) would not have had

and barring the Commonwealth from

any material effect on the outcome of the

retrying her. In an Order and

case because the facts adduced at trial

Memorandum Opinion that it issued a few

were fully consistent with his plea.

weeks later, on April 21, 1997, the Court

Lambert appealed from the offered several bases for its conclusion

judgment denying her second set of post- that the habeas statute’s exhaustion

verdict motions. The Pennsylvania requirement did not preclude the Court

Superior Court affirmed the trial court’s from granting Lambert’s petition. See

judgment, and Lambert filed a petition Lambert v. Blackwell, 962 F. Supp. 1521,

seeking allocatur from the Pennsylvania 1553-55 (E.D. Pa. 1997).

Supreme Court. The Supreme Court

This Court vacated the District

denied Lambert’s petition on July 2, 1996.

Court’s judgment, however, and found

that Lambert’s failure to exhaust available

16

state court remedies required the District The PCRA requires petitions to be

Court to dismiss her petition without filed “within one year of the date the

prejudice. We held that Lambert had not judgment becomes final,” except in certain

pursued her remedies under the PCRA for statutorily defined circumstances. See 42

some of her claims and her habeas petition Pa. Cons. Stat. § 9545(b). Lambert filed

therefore contained both exhausted and her petition approximately sixteen months

unexhausted claims. Thus the Supreme after her judgment of conviction became

Court’s decision in Rose v. Lundy, 455 final. It appears that the parties did not

U.S. 509 (1982), required the District raise the statute of limitations as an issue

Court to dismiss such a “mixed petition.” in front of the PCRA Court, however, and

See Lambert v. Blackwell, 134 F.3d 506 the Court did not address it.

(3d Cir. 1998).

The Superior Court determined

Lambert filed a PCRA petition on that, based largely on the Pennsylvania

February 2, 1998 in the Court of Common Supreme Court’s interpretation of the

Pleas for Lancaster County.13 Lambert PCRA in Commonwealth v. Fahy, 737

presented 257 claims for relief in the A.2d 214 (1999), Lambert’s PCRA

PCRA Court: 157 allegations of petition was untimely.14 The Superior

prosecutorial misconduct, 72 allegations Court decided to review the merits of the

of after-discovered evidence, and 28 PCRA Court’s decision, however, because

allegations of ineffective assistance of “the Third Circuit Court of Appeals, the

counsel. The PCRA Court held eight PCRA court, the Commonwealth and

weeks of hearings and, on August 24, counsel did not have the benefit of” the

1998, issued a 322-page opinion in which Pennsylvania Supreme Court’s decision in

it denied Lambert’s petition for relief. Fahy (which was decided on August 27,

1999, about a year after the PCRA Court

Lambert filed an appeal with the

Pennsylvania Superior Court, and the

Superior Court affirmed the judgment of

the PCRA Court on December 18, 2000.

See Commonwealth v. Lambert, 765 A.2d 14

We opined in our decision

306 (Pa. Super. 2000). Before addressing directing the District Court to dismiss

the merits of Lambert’s appeal, however, Lambert’s petition without prejudice that

the Superior Court raised sua sponte the Lambert’s PCRA petition could be timely

timeliness of Lambert’s PCRA petition. for either of two reasons—by operation of

Pennsylvania’s transfer statute, 42 Pa.

C.S.A. § 5103, or any of the three

13

The Court of Common Pleas statutory exceptions to the PCRA’s statute

Judge who presided over the 1992 bench of limitations, 42 Pa. C.S.A. § 9545(b)(1).

trial, Judge Lawrence Stengel, also See 134 F.3d at 522-24. The Superior

presided over the PCRA proceedings. Court rejected each of these possibilities.

17

issued its decision).15 After reviewing Commonwealth’s fourth motion seeking

Lambert’s petition on the merits, the his recusal. See Lambert v. Blackwell, 205

Superior Court affirmed the judgment of F.R.D. 180 (E.D. Pa. 2002). Lambert’s

the PCRA Court. 765 A.2d at 363. petition was consequently transferred to

Judge Anita Brody of the Eastern District

Lambert did not petition the

of Pennsylvania. After holding a hearing

Pennsylvania Supreme Court for an

on the Commonwealth’s motion to

allowance of an appeal from the Superior

dismiss, Judge Brody denied Lambert’s

Court’s judgment. Rather, she filed an

petition and dismissed it with prejudice.

amended petition for a writ of habeas

corpus in federal district court on January Judge Brody concluded that,

29, 2001. contrary to Judge Dalzell’s previous

decision, the PCRA C ourt’s

The case again came before Judge

determinations were not null and void and

Dalzell, who determined that the

were entitled to deference under AEDPA.

proceedings before the PCRA Court and

After reviewing Lambert’s claims

Superior Court were null and void, and

accordingly, Judge Brody concluded that

therefore entitled to no deference, because

they were without merit. The District

those courts had no jurisdiction over

Court granted Lambert a certificate of

Lambert’s PCRA petition due to its

appealability, and Lambert timely

untimeliness. See Lambert v. Blackwell,

appealed. The Commonwealth also timely

175 F. Supp. 2d 776, 786-87 (E.D. Pa.

filed a cross-appeal.

2001). Accordingly, the District Court

reinstated its findings of fact and II. JURISDICTION AND

conclusions of law from its earlier STANDARD OF REVIEW

decision granting Lambert’s petition for a

The District Court exercised

writ of habeas corpus, and the Court gave

jurisdiction under 28 U.S.C. § 2254, and

the parties approximately a month to

the District Court’s order dismissing

notify it if they sought additional

Lambert’s habeas petition is a final

discovery and a hearing. Id. at 791.

decision for purposes of 28 U.S.C. § 1291.

On January 18, 2002, however, Yet Lambert must surmount an additional

Judge Dalzell gave way to the hurdle before we can properly exercise

appellate jurisdiction over her appeal. We

only have jurisdiction if this Court or a

15

In Fahy the Pennsylvania District Court has properly issued a

Supreme Court held that since the PCRA’s certificate of appealability pursuant to 28

time limits are jurisdictional, and not a U.S.C. § 2253(c). See United States v.

mere statute of limitations, the filing

period can only be extended as permitted

by the statute and equitable principles such

as tolling cannot apply. 737 A.2d at 222.

18

Cepero, 224 F.3d 256, 261-62 (3d Cir. outcomes. Accordingly, a COA will be

2000) (en banc). 16 GRANTED.” Lambert v. Blackwell, 2003

WL 1718511, at *56 (E.D. Pa. April 1,

A COA may issue only upon “a

2003).

substantial showing of the denial of a

constitutional right.” 28 U .S.C. § In the ordinary course, we would

2253(c)(2). If “a district court has rejected remand to the District Court to clarify its

the constitutional claims on the merits, the order to comply with the specificity

showing required to satisfy § 2253(c) is requirements of 28 U.S.C. § 2253(c)(3).

straightforward: The petitioner must See Szuchon v. Lehman, 273 F.3d 299,

demonstrate that reasonable jurists would 311 n.5 (3d Cir. 2001). Where the parties

find the district court’s assessment of the have fully briefed the substantive issues

constitutional claims debatable or wrong.” before bringing to our attention that the

Slack v. McDaniel, 529 U.S. 473, 484 COA was inadequately specific, however,

(2000). In addition, a COA must “indicate this Court has viewed the District Court’s

which specific issue or issues satisfy” that certificate as a nullity and construed the

standard. 28 U.S.C. § 2253(c)(3). petitioner’s notice of appeal as a request

for us to issue a COA. Id. We follow that

Here, the District Court failed to

course here.

specify which of the voluminous issues

Lambert raised in her habeas petition Lambert has raised several issues

satisfy the standard for issuance of a COA. on appeal. On each issue, two federal

The Court concluded: “Although in very district court judges—albeit in different

different contexts, two federal judges have procedural postures—reached differing

examined the claims of the petitioner conclusions as to whether constitutional

Lambert and have reached different error at trial warranted granting habeas

relief. As to each of these issues, which we

discuss seriatim below, we will grant a

16 COA. Because the District Court relied

Only Lambert’s appeal must

satisfy the certificate of appealability exclusively on the state court record and

standard. See Fed. R. App. P. 22(b)(3) (“A did not hold an evidentiary hearing, our

certificate of appealability is not required review is plenary. See Moore v. Morton,

when a state or its representative 255 F.3d 95, 103 (3d Cir. 2001).

appeals.”); Lambert v. Blackwell, 134 III. DISCUSSION

F.3d at 512 n.15. We exercise jurisdiction

over the Commonwealth’s cross-appeal Lambert and the Commonwealth

under 28 U.S.C. §§ 1291 and 2253. The raise numerous issues in their cross-

Commonwealth challenges certain of the appeals and offer several arguments, often

District Court’s legal conclusions, over in the alternative, supporting their

which we exercise plenary review. Id. at respective positions. We first address the

512. Commonwealth’s arguments that we

19

cannot reach the merits of Lambert’s it is now codified at 28 U.S.C. §

claims and must dismiss her petition for 2254(b)(1). That provision states:

procedural reasons. We have already

(b)(1) An application for a

rejected one of those arguments, that we

writ of habeas corpus on

lack jurisdiction because Lambert’s claims

behalf of a person in

do not warrant the issuance of a certificate

custody pursuant to the

of appealability. For the reasons explained

judgment of a State court

b e l o w, we also reject the

shall not be granted unless it

Commonwealth’s argument that Lambert

appears that—

failed to exhaust her available state

remedies because she did not seek (A) the applicant has

allocatur from the Pennsylvania Supreme exhausted the remedies

Court to appeal from the Superior Court’s available in the courts of the

judgment affirming the PCRA Court’s State; or

dismissal of her PCRA petition.17

(B)(i) there is an absence of

We next address Lambert’s available State corrective

arguments regarding the amount of process; or

deference we must afford the state courts’

(ii) circumstances exist that render such

determinations in the PCRA proceedings.

process ineffective to protect the rights of

We conclude that we must defer to the

the applicant.

state courts’ determinations, and we apply

that deference to Lambert’s claims. 28 U.S.C. § 2254(b)(1). The statute

further provides that “[a]n applicant shall

A. Exhaustion

not be deemed to have exhausted the

A state prisoner must exhaust his remedies available in the courts of the

state court remedies before a federal court State, within the meaning of this section,

may grant him habeas relief. The Supreme if he has the right under the law of the

Court first articulated this requirement in State to raise, by any available procedure,

Ex parte Royall, 117 U.S. 241 (1886), and the question presented.” 28 U.S.C. §

2254(c).18

17

The Commonwealth also argues

that if we accept Lambert’s argument that

the PCRA proceedings are null and void,

18

we must dismiss her petition as untimely. Yet “[a]n application for a writ of

As we describe below, we find that the habeas corpus may be denied on the

PCRA proceedings are not null and void. merits, notwithstanding the failure of the

The Comm onwealth’s timeliness applicant to exhaust the remedies available

argument is therefore moot and we need in the courts of the State.” 28 U.S.C. §

not address it. 2254(b)(2).

20

The exhaustion doctrine “turns on exhaustion doctrine requiring federal

an inquiry into what procedures are courts to ignore a state law or rule

‘available’ under state law.” O’Sullivan v. providing that a given procedure is not

Boerckel, 526 U.S. 838, 847 (1999). And available.” Id. at 847-48. Justice Souter

the Supreme Court has declined to interpreted this statement as leaving

interpret the “any available procedure”

open the possibility that a

language of § 2254(c) to require “a state

state prisoner is [] free to

prisoner to invoke any possible avenue of

skip a procedure even when

state court review.” Id. at 844 (emphasis in

a state court has

original). Thus “state prisoners do not

occasionally employed it to

have to invoke extraordinary remedies

provide relief, so long as the

when those remedies are alternatives to the

State has identified the

standard review process and where the

procedure as outside the

state courts have not provided relief

standard review process and

through those remedies in the past.” Id.

has plainly said that it need

(citing Wilwording v. Swenson, 404 U.S.

not be sought for the

249, 249-50 (1971) (per curiam)).

purpose of exhaustion. It is

“Section 2254(c) requires only that state

not obvious that either

prisoners give state courts a fair

comity or precedent requires

opportunity to act on their claims.” Id.

otherwise.

(emphasis in original).

Id. at 850 (Souter, J., concurring); see also

In O’Sullivan, the Supreme Court

id. at 861 (Stevens, J., dissenting); id. at

held that a petitioner must seek review in

864 (Breyer, J., dissenting). As an

the Illinois Supreme Court in order to

example, Justice Souter pointed to the

satisfy the exhaustion requirement even

following pronouncement from the South

though the court’s review is discretionary.

Carolina Supreme Court:

The Court found that review in the Illinois

Supreme Court was a “normal, simple, and [I]n all appeals from

established part of the State’s appellate criminal convictions or

review process.” 526 U.S. at 845. As a post-conviction relief

result, the petitioner had to seek review in matters, a litigant shall not

order to give the state courts a “full be required to petition for

opportunity to resolve any constitutional rehearing and certiorari

claims.” Id. In other words, “the creation following an adverse

of a discretionary review system does not, decision of the Court of

without more, make review in the Illinois Appeals in order to be

Supreme Court unavailable.” Id. at 848. deemed to have exhausted

all available state remedies

The Court took pains, however, to

respecting a claim of error.

state that “there is nothing in the

21

Rather, when the claim has purposes of federal habeas

been presented to the Court corpus relief.

of Appeals or the Supreme

In recognition of the above,

Court, and relief has been

we hereby declare that in all

denied, the litigant shall be

appeals from criminal

deemed to have exhausted

convic tions or post -

all available state remedies.

conviction relief matters, a

In re Exhaustion of State Remedies in litigant shall not be required

Criminal and Post-Conviction Relief to petition for rehearing or

Cases, 471 S.E.2d 454 (S.C. 1990). allowance of appeal

following an adverse

The Pennsylvania Supreme Court,

decision by the Superior

apparently taking its cue from Justice

Court in order to be deemed

Souter’s concurrence, issued the following

to have exhausted all

order on May 9, 2000:

available state remedies

[W]e hereby recognize that respecting a claim of error.

the Superior Court of When a claim has been

Penn syl vania reviews denied relief in a final order,

criminal as well as civil the litigant shall be deemed

appeals. Further, review of a to have exhausted all

final order of the Superior available state remedies for

Court is not a matter of purposes of federal habeas

right, but of sound judicial corpus relief. This Order

discretion, and an appeal to shall be effective

this court will be allowed immediately.

only when there are special

In re Exhaustion of State Remedies in

and important reasons

Criminal and Post-Conviction Relief

therefor. Pa.R.A.P. 1114.

Cases, No. 218 Judicial Administration

Further, we hereby

Docket No. 1 (Pa. May 9, 2000) (“Order

recognize that criminal and

No. 218”). Several Pennsylvania district

post-conviction relief

courts have held that due to Order No. 218

litigants have petitioned and

a state prisoner need not petition the

do routinely petition this

Pennsylvania Supreme Court for allocatur

Court for allowance of

in order to exhaust state court remedies

appeal upon Superior

and seek habeas relief in federal court. See

Court's denial of relief in

Wilson v. Vaughn, 304 F. Supp. 2d 652

order to exhaust all

(E.D. Pa. 2004); Lor v. Varner, 2003 WL

available state remedies for

22845413 (E.D. Pa. Nov. 26, 2003);

Lambert v. Blackwell, 2003 WL 1718511

22

(E.D. Pa. April 1, 2003); Leon v. Benning, 18, 2000. During the pendency of

2003 WL 21294901 (E.D. Pa. Feb. 24, Lambert’s appeal in the Superior Court,

2003); Mattis v. Vaughn, 128 F. Supp. 2d the Pennsylvania Supreme Court issued

249 (E.D. Pa. 2001); Blasi v. Attorney Order No. 218. Consequently, she did not

General, 120 F. Supp. 2d 249 (M.D. Pa. seek an allowance of an appeal from the

2000). Other Circuits have reached similar Pennsylvania Supreme Court within the

conclusions with regard to comparable necessary thirty-day time period. Instead,

state supreme court rules. See Adams v. she filed a federal habeas petition on

Holland, 330 F.3d 398, 401-02 (6th Cir. January 29, 2001. We conclude that, due

2003) (Tennessee); Randolph v. Kemna, to Order No 218, Lambert exhausted her

276 F.3d 401, 404 (8 th Cir. 2002) available state court remedies.

(Missouri); Swoopes v. Sublett, 196 F.3d

B. Deference

1008, 1009-10 (9th Cir. 1999) (per curiam)

(Arizona). We reserved judgment on this AEDPA requires federal courts

issue in Wenger v. Frank, 266 F.3d 218, collaterally reviewing state proceedings to

217-218 (3d Cir. 2001) and Villot v. afford considerable deference to state

Varner, 373 F.3d 327, 338 n.14 (3d Cir. courts’ legal and factual determinations.

2004). We now hold that Order No. 218 Specifically, it provides:

renders review from the Pennsylvania

(d) An application for a writ

Supreme Court “unavailable” for purposes

of habeas corpus on behalf

of exhausting state court remedies under §

of a person in custody

2254(c).

pursuant to the judgment of

Order No. 218 serves to remove a State court shall not be

review of criminal and collateral appeals granted with respect to any

from the “normal” and “established” claim that was adjudicated

appellate review procedure in on the merits in State court

Pennsylvania. As Judge Van Antwerpen proceedings unless the

put it in Mattis v. Vaughn, Order No. 218 adjudication of the claim—

is the something “more” that makes the

(1) resulted in a decision

P e n n s y lvani a S u p r e m e C o u r t ’ s

that was contrary to, or

discretionary review system “unavailable.”

involved an unreasonable

128 F. Supp. 2d at 259. Consequently,

application of, clearly

petitioners need not seek review from the

established Federal law, as

Pennsylvania Supreme Court in order to

determined by the Supreme

give the Pennsylvania courts a “full

Court of the United States;

opportunity to resolve any constitutional

or

claims.”

(2) resulted in a decision

Here, the Superior Court affirmed

that was based on an

the PCRA Court’s judgment on December

23

unreasonable determination unreasonably refuses to extend that

of the facts in light of the principle to a new context where it should

evidence presented in the apply.” Id. at 407.

State court proceeding.

The Supreme Court addressed

28 U.S.C. § 2254(d). In addition,“a AEDPA’s factual review provisions in

determination of a factual issue made by a Miller-El v. Cockrell. There, the Supreme

State court shall be presumed to be Court interpreted § 2254(d)(2) to mean

correct” unless the petitioner rebuts “the that “a decision adjudicated on the merits

presumption of correctness by clear and in a state court and based on a factual

convincing evidence.” 28 U.S.C. § determination will not be overturned on

2254(e)(1). factual grounds unless objectively

unreasonable in light of the evidence

The Supreme Court interpreted §

presented in the state-court proceeding.”

2254(d)(1)’s deference to state legal

537 U.S. 322, 340 (2003). Yet “deference

determinations in Williams v. Taylor, 529

does not imply abandonment or abdication

U.S. 362 (2000). The Court interpreted

of judicial review.” Id. In other words,

AEDPA’s “clearly established Federal

“[d]eference does not by definition

law, as determined by the Supreme Court

preclude relief.” Id. Thus a federal habeas

of the United States” to mean “the

court can “disagree with a state court’s

holdings, as opposed to the dicta, of [the

credibility determination.” Id.; see also

Supreme] Court’s decisions as of the time

Wiggins v. Smith, 539 U.S. 519, 123 S. Ct.

of the relevant state-court decision.” Id. at

2527, 2539 (2003) (rejecting state court’s

412. A state-court decision is “contrary to”

factual determination under § 2254(e)(1)

clearly established federal law if the state

and 2254(d)(2)).

court (1) “contradicts the governing law

set forth in [the Supreme] Court’s cases”’ Despite the Supreme Court’s

or (2) “confronts a set of facts that are pronouncements in Miller-El and Wiggins,

materially indistinguishable from a a comprehensive interpretation of

decision of [the Supreme] Court and AEDPA’s factual review scheme has yet to

nevertheless arrives at a [different] result.” emerge from the fede ral cou rts.

Id. at 405-06. A state-court decision Specifically, the relationship between the

“involve[s] an unreasonable application” standards enunciated in § 2254(d)(2) and §

of clearly established federal law if the 2254(e)(1) remains unclear. See Green v.

state court (1) “identifies the correct White, 232 F.3d 671, 672 n.3 (9 th Cir.

governing legal rule from [the Supreme] 2000).

Court’s cases but unreasonably applies it

On their face, we discern little

to the facts of the particular . . . case”; or

m a t e r i a l d i f f e r e n c e b e tw e e n a

(2) “unreasonably extends a legal principle

reasonableness determination and a

from [Supreme Court] precedent to a new

presumption of correctness as they express

context where it should not apply or

24

the same fundamental principle of somewhat diff eren t inquiries. The

deference to state court findings. Courts fundamental prerequisite to granting the

have tended to lump the two provisions writ on factual grounds is consideration of

together as generally indicative of the the evidence relied upon in the state court

deference AEDPA requires of state court proceeding. Section 2254(d)(2) mandates

factual determinations. See, e.g., Martini v. the federal habeas court to assess whether

Hendricks, 348 F.3d 360, 363 (3d Cir. the state court’s determination was

2003); Hunterson v. DiSabato, 308 F.3d reasonable or unreasonable given that

236, 245-46, 249-50 (3d Cir. 2002). Yet it evidence. If the state court’s decision

is a cardinal rule of statutory interpretation based on such a determination is

that we must “give effect, if possible, to unreasonable in light of the evidence

every clause and word of a statute.” presented in the state court proceeding,

Williams v. Taylor, 529 U.S. at 404 habeas relief is warranted.

(internal citations and quotations omitted);

Within this overarching standard, of

see also Kungys v. United States, 485 U.S.

course, a petitioner may attack specific

759, 778 (1988) (Scalia, J., plurality

factual determinations that were made by

opinion); Borman v. Raymark Indus., Inc.,

the state court, and that are subsidiary to

946 F.2d 1031, 1035 (3d Cir. 1991) (“It is

the ultimate decision. Here, section

an ‘elementary canon of construction that

2254(e)(1) comes into play, instructing

a statute should be interpreted so as not to

that the state court’s determination must be

render one part inoperative.’”) (quoting

afforded a presumption of correctness that

Colautti v. Franklin, 439 U.S. 379, 392

the petitioner can rebut only by clear and

(1979)). In fact, the language of §

convincing evidence. In this inquiry, a

2254(d)(2) and § 2254(e)(1) implies an

petitioner may develop clear and

important distinction: § 2254(d)(2)’s

convincing evidence by way of a hearing

reasonableness determination turns on a

in federal court as long as he satisfies the

consideration of the totality of the

necessary prerequisites. See 28 U.S.C. §

“evidence presented in the state-court

2254(e)(2). In the final analysis however,

p r o ceed ing ,” while § 2254 (e)(1)

even if a state court’s individual factual

contemplates a challenge to the state

determinations are overturned, what

court’s individual factual determinations,

factual findings remain to support the state

including a challenge based wholly or in

court decision must still be weighed under

part on evidence outside the state trial

the overarching standard of section

record. See generally Taylor v. Maddox,

2254(d)(2).19

366 F.3d 992, 999-1000 (9th Cir. 2004);

Valdez v. Cockrell, 274 F.3d 941, 951

n.17 (5th Cir. 2001). 19

The two circuits that have

We therefore read § 2254(d)(2) and considered the interplay between section

§ 2254(e)(1) together as addressing two 2254(d)(2) and (e)(1) have intimated two

slightly different approaches to resolving

25

With these principles in mind, we

questions under the respective provisions. turn to the specifics of this case. Lambert

In Valdez v. Cockrell, the Fifth Circuit argues that we should not afford the

suggested that individual factual PCRA Court and Superior Court factual

challenges should be evaluated under determinations the deference set forth in §

(e)(1) first, and then, after they are 2254(d) and § 2254(e)(1), for two reasons.

resolved, the habeas court should consider First, she argues that the PCRA Court and

the entirety of the record under (d)(2). 274 Superior Court decisions are null and

F.3d at 951 n.17. Somewhat more void—and therefore not entitled to

explicitly, the Ninth Circuit has said that deference—because those courts lacked

the habeas court should evaluate the jurisdiction to entertain her untimely

totality of the record first under (d)(2), PCRA petition.20 See Commonwealth v.

and, if it survives, cloak the state court’s

decision with a presumption of correctness

to “steel” it against challenges based on however, two points are paramount. First,

new evidence, extrinsic to the state court both (d)(2) and (e)(1) express the same

record. fundamental principle of deference to state

We adopt no rigid approach to court findings. Second, before the writ can

habeas review of state fact-finding. In be granted, petitioner must show an

some circumstances, a federal court may unreasonable determination -- under (d)(2)

wish to consider subsidiary challenges to -- in light of the entire record in the

individual fact-finding in the first instance original state court trial.

applying the presumption of correctness as 20

Lambert also argues that the law

instructed by (e)(1). Then, after deciding

of the case doctrine required Judge Brody

these challenges, the court will view the

to adhere to Judge Dalzell’s decision that

record under (d)(2) in light of its

the state court proceedings were null and

subsidiary decisions on the individual

void. “The law of the case doctrine limits

challenges. In other instances, a federal

the extent to which an issue will be

court could conclude that even if

reconsidered once the court has made a

petitioner prevailed on all of his individual

ruling on it.” Fagan v. City of Vineland, 22

factual challenges notwithstanding the

F.3d 1283, 1290 (3d Cir. 1994). “A court

(e)(1) presumption of their correctness, the

has the power to revisit prior decisions of

remaining record might still uphold the

its own or of a coordinate court in any

state court’s decision under the

circumstance, although as a rule courts

overarching standard of (d)(2). In that

should be loathe to do so in the absence of

event, presumably the (d)(2) inquiry

extraordinary circumstances such as where

would come first.

the initial decision was ‘clearly erroneous

Whatever the order of inquiry, and would work a manifest injustice.’”

26

Fahy, 737 A.2d 214 (1999). Second, On its face, AEDPA does not

Lambert argues that the PCRA Court’s provide that a federal habeas court should,

factual determinations are not entitled to before affording deference to state court

deference because the Court prohibited determinations, evaluate the procedural

her from cross-examining witnesses at the adequacy of state court proceedings or

PCRA hearing.21 whether the state court/ properly exercised

its jurisdiction. This omission is

particularly conspicuous in light of the

Christianson v. Colt Industries Operating pre-AEDPA federal habeas statute.

Corp., 486 U.S. 800, 817 (1988) (quoting Before AEDPA amended the

Arizona v. California, 460 U.S. 605, 618 n. federal habeas statute in 1996, state court

8 (1983)). In other words, the law of the findings of fact were “presumed correct if

case doctrine does not limit a federal there was (1) a hearing on the merits of a

court’s power, rather it directs its exercise factual issue, (2) made by a state court of

of discretion. Public Interest Research competent jurisdiction, (3) in a proceeding

Group of New Jersey, Inc. v. Magnesium to which the petitioner and the state were

Elektron, Inc., 123 F.3d 111, 116 (3d Cir. parties, (4) and the state court’s

1997). determination is evidenced by a written

Lambert’s argument that the finding, opinion, or other reliable and

District Court abused its discretion need adequate indicia.” Carpenter v. Vaughn,

not detain us long. “[A] district court's 296 F.3d 138, 149 (3d Cir. 2002). This

adherence to law of the case cannot presumption did not apply if the petitioner

insulate an issue from appellate review.” established, inter alia, that (i) “the

Christianson, 486 U.S. at 817. Conversely, factfinding procedure employed by the

a district court’s decision not to adhere to State court was not adequate to afford a

a coordinate court’s previous decision full and fair hearing,” 28 U.S.C. §

cannot prevent us from deciding the issue 2254(d)(2) (1994) (superseded); or (ii)

on the merits. Whether the District Court “the State court lacked jurisdiction of the

followed the first habeas court’s ruling or subject matter or over the person of the

came to its own contrary conclusion (as it applicant in the State court proceeding,”

did), we would still have to determine 28 U.S.C . § 2254(d )(4) (1994 )

what the correct decision is. See (superseded).22

Tischmann v. ITT/Sheraton Corp., 145

F.3d 561, 564-65 (2d Cir. 1998). The law

of the case doctrine is irrelevant to our Her jurisdiction and cross-examination

decision. What matter are the merits. arguments, of course, do not apply to

those findings.

21

Lambert does not argue that we

22

should not afford deference to Judge The pre-AEDPA statute

Stengel’s findings made at the trial level. provided, in relevant part:

27

(d) In any proceeding (4) that the State court

lacked jurisdiction of the

instituted in a Federal court

subject matter or over the

by an application for a writ

person of the applicant in

of habeas corpus by a

the State court proceeding;

person in custody pursuant

to the judgment of a State (5) that the applicant was an

court, a determination after indigent and the State court,

a hearing on the merits of a in deprivation of his

factual issue, made by a constitutional right, failed to

State court of competent appoint counsel to represent

jurisdiction in a proceeding him in the State court

to which the applicant for proceeding;

the writ and the State or an

(6) that the applicant did not

officer or agent thereof were

receive a full, fair, and

parties, evidenced by a

adequate hearing in the

written finding, written

State court proceeding; or

opinion, or other reliable

a n d a d e q u at e w r itten (7) that the applicant was

indicia, shall be presumed to o t h e rwise de nie d du e

be correct, unless the process of law in the State

applicant shall establish or it court proceeding;

shall otherwise appear, or

(8) or unless that part of the

the respondent shall admit—

record of the State court

(1) that the merits of the proceeding in which the

factual dispute were not determination of such

resolved in the State court factual issue was made,

hearing; pertinent to a determination

of the sufficiency of the

(2) that the factfinding

evidence to support such

procedure employed by the

factual determination, is

State court was not adequate

produced as provided for

to afford a full and fair

hereinafter, and the Federal

hearing;

court on a consideration of

(3) that the material facts such part of the record as a

w e r e n o t a d e q u a t e ly whole concludes that such

developed at the State court factual determination is not

hearing; fairly supported by the

28

The current statute simply states preserved by the defendant, the state court

that federal courts must defer to legal and has not reached the merits of a claim

factual determinations “with respect to any thereafter presented to a federal habeas

claim that was adjudicated on the merits in court, the deferential standards provided

State court proceedings.” 28 U.S.C. § by AEDPA . . . do not apply.” Holloway v.

2254(d). “We have interpreted § 2254(d)’s Horn, 355 F.3d 707, 718 (3d Cir. 2004)

‘adjudication on the merits’ language to (quoting Appel v. Horn, 250 F.3d 203,

mean that ‘when, although properly 210 (3d Cir. 2001)).

AEDPA has changed the

procedural framework for deference in

record. three ways. First, AEDPA now requires

federal courts to defer to state court legal

And in an evidentiary

determinations, whereas federal courts

hearing in the proceeding in

used to review state legal determinations

the Federal court, when due

de novo. See, e.g., Ahmad v. Redman, 782

proof of such factual

F.2d 409, 412 (3d Cir. 1986). Second, the

determination has been

habeas statute no longer explicitly

made, unless the existence

conditions federal deference to state court

of one or more of the

factual findings on whether the state court

circumstances respectively

held a hearing. See Mendiola v. Schomig,

set forth in paragraphs

224 F.3d 589, 592-93 (7 th Cir. 2000).

numbered (1) to (7),

Third, the statute no longer contains the

inclusive, is shown by the

eight prerequisites to deference that

applicant, otherwise

appeared in the superseded §§ 2254(d)(1)-

appears, or is admitted by

(8). See Valdez v. Cockrell, 274 F.3d at

the respondent, or unless the

951 (holding that a “full and fair hearing”

court concludes pursuant to

is not a precondition to according

the provisions of paragraph

2254(e)(1)’s presumption of correctness to

numbered (8) that the record

a state habeas court’s findings of fact); but

in the S tate court

see Valdez v. Cockrell, 274 F.3d at 966

proceeding, considered as a

(Dennis, J., dissenting); 17A Charles A.

whole, does not fairly

Wright & Arthur R. Miller, Federal

s u p p o r t s u c h f a c tu a l

Practice and Procedure § 4265.2 (2d ed.

determination, the burden

1994) (“Indeed the new statute does not

shall rest upon the applicant

even require that the state court that made

to establish by convincing

the determination have been a court of

evidence that the factual

competent jurisdiction. Presumably the

determination by the State

courts will continue to insist on that and it

court was erroneous.

is likely that some of the other elements

28 U.S.C. § 2254(d) (1994) (superseded).

29

that were in the old statute but not in the state court properly exercised its

new one will be read back into it by the jurisdiction.23

courts.”).

Similarly, the procedures a state

On its face, therefore, the amended court applies when adjudicating a

habeas statute appears to obviate any need petitioner’s claims may also be relevant

to consider Lambert’s jurisdictional and during habeas review. The extent to which

procedural arguments against our deferring a state court afforded a defendant adequate

to the PCRA Court’s determinations; procedural means to develop a factual

AEDPA eliminated the threshold language record—whether the defendant was

eliminating the presumption of correctness afforded a “full and fair hearing,” to put it

when “the State court lacked jurisdiction” in the parlance of the pre-AEDPA

or “the factfinding procedure employed by statute—may well affect whether a state

the State court was not adequate to afford court’s factual determination was

a full and fair hearing.” We decline to “reasonable” in “light of the evidence

conclude, however, that state court presented in the State court proceeding” or

jurisdiction or procedures are entirely whether the petitioner has adequately

irrelevant in a federal court’s habeas rebutted a presumption that the state

review of state court determinations. court’s determination is correct. See

Taylor v. Maddox, 366 F.3d 992, 1000-01

Even under AEDPA, federal courts

(9th Cir. 2004); cf. Valdez v. Cockrell, 274

are to defer regarding claims “adjudicated

on the merits in State court proceedings.”

This implies that the claim must be 23

This is somewhat different than

adjudicated by a court of competent the level of scrutiny we apply to state

jurisdiction, as opposed to a kangaroo jurisdictional questions in the context of

court or an administrative body determining whether there is an adequate

masquerading as a court. At the same time, and independent procedural bar to federal

however, AEDPA’s amendments to the habeas relief. See, e.g. Hull v. Kyler, 190

habeas statute surely lower the level of F.3d 88, 100-03 (3d Cir. 1999). The

scrutiny a federal court is entitled to apply Supreme Court has specifically delineated

to the issue of state court jurisdiction. For the role of a federal habeas court in

purposes of applying deference under assessing whether a state court decision

section 2254(d) and (e), when a valid state rests on an independent procedural bar.

court judgment exists a federal habeas See Coleman v. Thompson, 501 U.S. 722

court should generally presume that the (1991). In the instant case, however, we

deal with the jurisdictional issue in the

different context of deferring to state court

fact-finding -- an area in which Congress

spoke in AEDPA by facially eliminating

the requirement of a jurisdictional inquiry.

30

F.3d at 951 n.17; Mendiola, 224 F.3d at Rieser v. Glukowsky, 690 A.2d 742 (Pa.

592 (“If a state court’s finding rests on Super. 1997)). But after AEDPA

thin air, the petitioner will have little e l i m in a t e d j ur isd ic t io na lly- b a s e d

difficulty satisfying the standards for relief challenges to state court decisions, a

under § 2254”); Weaver v. Thompson, federal habeas court has at most a

197 F.3d 359, 363 (9 th Cir. 1999) circumscribed role in reviewing whether a

(statements in the trial judge’s letter were state court properly applied its own law

not “factual determinations” because they when it explicitly decided to exercise

were not “subject to any of the usual jurisdiction.24

judicial procedures designed to ensure

accuracy”). In other words, the extent to

which a state court provides a “full and 24

“The United States Supreme

fair hearing” is no longer a threshold Court has repeatedly declared that, in a

requirement before deference applies; but federal habeas proceeding such as this,

it might be a consideration while applying ‘state courts are the ultimate expositors of

deference under § 2254(d)(2) and § state law . . . and we are bound by their

2254(e)(1). c o n s t r u ct i o n s e x c e p t in r a re

We need not comprehensively or circumstances.’” Humanik v. Beyer, 871

exhaustively address how deeply a federal F.2d 432, 436 (3d Cir. 1989) (quoting

habeas court may plumb the adequacy of Mullaney v. Wilber, 421 U.S. 684, 691

state court jurisdiction and procedures in (1975)). We reiterated this point in

deciding how to apply section 2254(d) and Johnson v. Rosemeyer, where we

(e)(2). We conclude in the particular summarized our precedent as counseling

circumstances of this case that no that “a federal court in a habeas case must

jurisdictional concerns obviate the be most circumspect in re-examining state

application of AEDPA’s deferential c our t decisio ns,” a nd “ onl y in

scheme of review. Nor do any procedural extraordinary circumstances should a

issues lower the level of deference we federal district court in a habeas corpus

must afford. case decline to follow the opinions of a

state intermediate court of appeal with

First, the Pennsylvania courts

respect to state law rendered in earlier

affirmatively exercised jurisdiction over

proceedings involving the petitioner.” 117

Lambert’s PCRA petition. Judge Dalzell

F.3d 104, 114-15 (3d Cir. 1997); see also

concluded that the PCRA Court and

Poe v. Caspari, 39 F.3d 204, 207 (8 th Cir.

Superior Court lacked jurisdiction under

1994) (“Jurisdiction is no exception to the

Pennsylvania law and that, under

general rule that federal courts will not

Pennsylvania law, “‘[w]here a court lacks

engage in collateral review of state court

jurisdiction in a case, any judgment

decisions based on state law.”). Of course,

regarding the case is void.’” Lambert v.

in Humanik, Barry, Rosemeyer, and Poe,

Blackwell, 175 F. Supp. 2d at 787 (quoting

the state court determinations of state law

31

To be sure, the Superior Court’s Appellant the collateral relief she

decision appears to be internally requested. Order affirmed.” Id. at 363.

contradictory. The Court determined that Whatever our residual ability to examine

Lambert’s PCRA petition was untimely state court jurisdiction in other instances,

and the PCRA Court had “no jurisdiction the exercise of jurisdiction by the state

to address the substantive merits of the court in this instance does not call into

petition.” Commonwealth v. Lambert, 765 question that adequacy of the state court

A.2d at 319. Yet the Court decided to proceeding under section 2254(d) and

entertain Lambert’s appeal and review the (e).25

PCRA Court’s judgment. Id. at 322-23.

We turn to Lambert’s second

That decision was motivated in part by a

argument. Several prosecutorial and law

recognition that the Pennsylvania Supreme

enforcement witnesses, who Lambert

Court decision in Commonwealth v. Fahy,

alleges engaged in extensive misconduct,

supra, that established a jurisdictional bar

testified at the PCRA hearing. Lambert

to untimely PCRA filings did not issue

argues that the PCRA Court refused to

until after Lambert had filed her PCRA

“allow Lambert to cross-examine the

application. In other words, the Superior

perpetrators of the prosecutorial

Court effectively determined to carve out

misconduct.” Lambert Br. 34. She

an exception to Fahy’s retroactive

application, at least in the somewhat

unusual circumstances of Lambert’s case. 25

Our decision in In re James, 940

765 A.2d at 322-23. A federal court will F.2d 46 (3d Cir. 1991), which Lambert

normally defer to a state court’s decision cites in her brief, does not persuade us

about retroactivity of state decisions. otherwise. There, we held that a federal

See Fiore v. White, 531 U.S. 225 (2001). court may vacate a state court decision

In short, the Superior Court decided when the state court acts in violation of the

to retain and exercise jurisdiction. The federal bankruptcy statute’s automatic stay

Superior Court’s opinion concluded by provisions. See Raymark Indus., Inc. v.

stating: “Based upon the foregoing, we Lai, 973 F.2d 1225, 1132 (3d Cir. 1992)

hold that Appellant has not met her burden (construing In re James). We reached that

under the PCRA statute. Accordingly, we conclusion because an automatic stay

affirm the PCRA court's order denying obviates the state court’s jurisdiction and

renders its decision void ab initio. In re

James differs from this case (and most

went to the merits of the petitioners’ cases) because the state court’s

habeas claims. Here, the Superior Court’s jurisdiction, or lack thereof, was a function

determination of state law regards whether of federal law (the federal bankruptcy

as a jurisdictional matter state courts could statute). Here, in contrast, the PCRA

entertain Lambert’s claims on collateral Court’s jurisdiction is a matter of state

review. See note 23, supra. law.

32

contends that the PCRA Court’s the Court’s factual determinations.26 That

credibility determination are not worthy of

deference because “credib ility

determinations of witnesses who are never 26

We concur in the following

subjected to the crucible of cross- observations of the Pennsylvania Superior

examination are not entitled to deference.” Court:

Id. She cites cases standing for the

proposition that cross-examination [T]he PCRA court

provides “the principal means by which permitted counsel to defend

the believability of a witness and the truth Appellant's rights with zeal,

of his testimony are tested.” Davis v. bringing to the attention of

Alaska, 415 U.S. 308, 316 (1974). the court all of the errors

that, according to Appellant,

We find Lambert’s argument, as caused her an unfair trial.

she frames it, extremely misleading. The PCRA court allowed

Cross-examination is “[t]he questioning of her to reiterate her claims

a witness at a trial or hearing by the party and explore every avenue

opposed to the party who called the for relief. The PCRA court

witness to testify.” Black’s Law Dictionary demonstrated remarkable

383 (7th ed. 1999). (emphasis added). The patience and thoroughness

PCRA Court did not preclude Lambert throughout the proceedings,

from cross-examining any witnesses. which provided for review

Rather, the Court applied Pennsylvania on appeal over eight

law on evidence and, except for one thousand pages of testimony

instance, did not allow Lambert to ask from trial and the PCRA

leading questions to the witnesses she hearing, along with other

called on direct examination. PCRA Court filings, as well as the PCRA

Decision 47-59. Lambert does not court's three hundred and

complain that she was not allowed to twenty (320) page main

cross-examine Commonwealth witnesses. opinion.

More importantly, however, the 765 A.2d at 323. We also note that the

fact-finding process was not inexorably PCRA Court allowed Lambert to impeach

undermined by the PCRA Court’s witnesses using testimony developed at

evidentiary determination. We have the 1997 federal habeas hearing, where

extensively reviewed the record of the Judge Dalzell apparently let her attorneys

PCRA hearing. The PCRA Court’s ask leading questions. See, e.g., App.

decision not to allow Lambert to ask 3793. This further undermines any

leading questions of witnesses she called suggestion that we should not defer to the

on direct examination in no way impugns PCRA Court’s factual determinations due

to Lambert’s inability to “cross-examine”

33

is not to say that in certain instances a address them in turn.

court’s prohibition on asking leading

As a preliminary matter, we note

questions could not undermine to some

that Lambert relies on the same record in

extent a state court’s factual

her federal habeas proceedings as she did

determinations. This is simply not such a

in the state PCRA proceedings. She has

case.

made no attempt to augment the record.

C. The Merits We therefore simply apply § 2254(d)(2)’s

reasonableness standard to the PCRA

We discern in Lambert’s brief

Court’s factual determinations. With

twelve claims supporting her petition for

respect to the trial court’s factual

a writ of habeas corpus. Those are the

determinations, however, we apply a two-

claims for which we grant a COA.27 We

tiered analysis because Lambert seeks to

rebut the trial court’s findings through

witnesses.

27

Lambert does not pursue on

Supp. at 1542. Yet at trial Lambert

appeal many of the numerous claims she

specifically acknowledged telling Solt

pursued at one point or another during the

what the handwritten portion of the

lengthy state and federal proceedings.

statement indicates—namely that she was

Lambert alleged before Judge Dalzell and

wearing Yunkin’s clothes—but she

the PCRA Court, for example, that

claimed she had lied to the police. When

Corporal Solt fabricated a portion of the

asked why she lied, Lambert explained

written statement that the Commonwealth

that she “thought if they found the clothes

claimed at trial represented what she told

they would know they were Lawrence’s

the police when they arrested her the day

clothes and he would get in trouble so I

of Show’s murder. As we explained

said I had them on.” App. 1218.

above, Solt testified that a fellow officer

transcribed Lambert’s statement and she On its face, then, Lambert’s

later signed it. A portion at the end of the accusation of misconduct against Solt in

statement is handwritten, however, while federal court is utterly belied by her own

most of the statement was typed. In the testimony at trial. We assume that Lambert

handwritten portion, Lambert explained does not pursue this claim, and others,

the route she took to flee the Show because she has taken the prudent course

apartment. She also said that she was of only pursuing the arguments she

wearing black sweat pants and a red perceives as her strongest. Regardless, we

flannel shirt (i.e. Yunkin’s clothing). only grant a COA on those issues Lambert

Appellate App. 1581-82. Lambert claimed has briefed and pursued on appeal. We

before Judge Dalzell and the PCRA Court observe that many of the claims raised in

that the police fabricated the handwritten District Court were as ill-founded as the

portion. See Lambert v. Blackwell, 962 F. fabrication claim we discuss here.

34

evidence that was not before that court, Napue v. Illinois, 360 U.S. 264, 269

namely evidence developed at the PCRA (1959); Pyle v. Kansas, 317 U.S. 213, 216

proceedings. Thus, when reviewing trial (1942); Mooney v. Holohan, 294 U.S.

court factual determinations, we first 103, 112 (1935). In United States v.

determine whether they were reasonable in Agurs, the Supreme Court characterized

light of the record before the trial court. If this line of cases as finding it

reasonable, we then look to whether fundamentally unfair to the accused where

Lambert has rebutted the finding with “the prosecution’s case includes perjured

clear and convincing evidence adduced at testimony and [] the prosecution knew, or

the PCRA hearing. should have known, of the perjury.” 427

U.S. 97, 103 (1976). “The same is true

1. The Sweatpants

when the government, although not

As we explained above, Yunkin soliciting false evidence, allows it to go

testified that Lambert wore his uncorrected when it appears at trial.”

sweatpants—which the police eventually United States v. Biberfeld, 957 F.2d 98,

obtained and which contained Show’s 102 (3d Cir. 1992) (citing Giglio, 405

blood on them—the morning of Show’s U.S. at 153).

murder. Lambert argues that the

In such circumstances, the

Commonwealth—specifically the

conviction must be set aside “if there is

prosecutor, John Kenneff—knew that

any reasonable likelihood that the false

Lambert did not wear Yunkin’s

testimony could have affected the

sweatpants that morning and nonetheless

judgment of the jury.” Id. In United States

elicited testimony from Yunkin to the

v. Bagley, the Court explained: “Although

contrary. She also argues that the

this rule is stated in terms that treat the

Commonwealth “switched” the sweatpants

knowing use of perjured testimony as

at the PCRA Hearing. That is, she argues

error subject to harmless error review, it

that the Commonwealth replaced the

may as easily be stated as a materiality

sweatpants from the trial with a different

standard under which the fact that

pair, which it offered into evidence at the

testimony is perjured is considered

PCRA Hearing and told the PCRA Court

material unless failure to disclose it would

were the same sweatpants as those from

be harmless beyond a reasonable doubt.”

the trial.

473 U.S. 667, 679-80 (1985).

a. Knowing Use of

Thus, in order to make out a

Perjured Testimony

constitutional violation Lambert must

The Supreme Court has long held show that (1) Yunkin committed perjury;

that the state’s knowing use of perjured (2) the government knew or should have

testimony to obtain a conviction violates known of his perjury; (3) the testimony

the Fourteenth Amendment. See Giglio v. went uncorrected; and (4) there is any

United States, 405 U.S. 150, 153 (1972); reasonable likelihood that the false

35

testimony could have affected the verdict. A. Correct.

The state trial court and PCRA Court

Q. The red flannel was

concluded that Lambert had in fact worn

yours.

Yunkin’s sweatpants and Yunkin

therefore did not perjure himself. These A. Correct.

factual determinations preclude a finding

Q. The jergo was yours.

of constitutional error, and we review

them under the applicable AEDPA A. Correct.

standard.

Q. I’m going to show you

At trial Lambert’s counsel, Roy wha t’s been marked

Shirk, strongly urged Judge Stengel to Commonwealth Exhibit 10.

conclude that Lambert did not wear That’s your jacket?

Yunkin’s clothes on the day of Show’s

A. Yes, it is. Extra large.

murder, and he developed testimony to

support this argument. He elicited Q. Extra large?

testimony from Yunkin’s friend, Vincent

A. Correct.

Orsi, that Yunkin would wear the

sweatpants “to bed, bumming around the Q. I’m going to show you

house.” App. 950. Lambert testified that wha t’s been marked

although she told the police that she wore Commonwealth Exhibit 9.

a red flannel shirt and black sweatpants the They are your sweat pants?

morning of Show’s murder, she had lied to

A. Yes.

them in order to protect Yunkin. To

contradict the reason Yunkin gave for why Q. In fact you used to wear

Lambert wore his clothing—i.e., she was them to bed and you used to

well into her pregnancy—Shirk elicited wear them while you were

testimony that Lambert was barely lounging around. You used

“showing” at that stage of her pregnancy. to wear these quite a bit,

And he had the following exchange with didn’t you?

Yunkin on cross-examination:

A. Yes.

Q. So basically what you are

Q. Now you indicated that

telling us here this morning,

Michelle was pregnant at

Michelle was wearing all

the time, is that correct?

your clothing?

A. Yes.

A. Correct.

Q. You indicated she was

Q. The sweat pants were

seven months pregnant.

yours.

A. Around there, yes.

36

Q. Around six months? Mr. Shirk: That is for a fray

in the morning that was

A. Between six and seven.

going to last, whatever, an

Q. She wasn’t really heavy hour or two, three, she

at the time, was she? She would wear this for comfort;

wasn’t showing a lot. and the clothing she put on

to wear the rest of the day,

A. Not really, no.

or at least the clothing that

Q. But it’s your testimony Detective—T rooper Solt

that she left the house that indicated he believed she

day basically clothed in your had on that evening, the

clothing. difference in size. She was

going to spend a lot more

A. True.

time in this—(holding up a

App. 273-74. sweater)—and she had to

wear that for comfort a few

During his closing argument, Shirk

hours in the morning.

argued that all the evidence suggested that

Lambert did not wear Yunkin’s clothing. (Holding up a pair of pants.)

The relevant portion of his closing went as

This is what she wore the

follows:

rest of the day, compared to

The assumption we’re them.

supposed to make is that my

You may sit down. Thank

client, due to her pregnancy,

you.

wore Mr. Yunkin’s clothes,

perhaps to be more (Mr. Jeffries returned to the

comfortable because she defense table.)

was pregnant and obviously

Mr. Shirk: You Honor, I

bigger than she normally is;

think even the clothing is

although Chief Glick, in his

consistent with the

testimony, indicated she

defendant’s testimony.

really wasn’t showing that

much. I find it, or the Vinnie Orsi suggested that

defense finds it, incredible. Mr. Yunkin wore them to

bed any time he was over

Would you hold up that

there, wore them around

jacket.

lei su re ly. M r. Yunki n

Mr. Jeffries: (Complying admitted from the stand he

with the request.) wore those sweat pants to

bed. Lisa Lambert, in her

37

testimony, said, interestingly be no question raised by the fact that the

enough, just off the cuff: He clothing appeared to be Mr. Yunkin’s.”

got up that morning, had his App. 1633. As Judge Stengel later put it:

sweat pants on, threw “The only real question was whether

something on and away they [Lambert] could have worn sweatpants

went. owned by the larger Yunkin. This was

resolved by the court’s observations of the

Probably very likely what

sweatpants, of Mr. Yunkin, of Ms.

happened, he was getting up

Lambert, and the conclusion that Ms.

early that morning, just kept

Lambert could certainly have worn the

on his sweat pants, threw on

garment.” PCRA Decision 204.

his red flannel, his jergo,

and away they went. It Lambert urges us to conclude that

would seem incredible that the trial court’s finding of fact was

they got up that time in the unreasonable given the record before it

morning and he wears these and that the only reasonable conclusion

to bed all the time, he took was that Yunkin wore the sweatpants the

them off to give them to her day of the murder. Her argument is this:

to put on. Difficult to Since Yunkin was 6'1” tall and weighed

believe. I think the clothing 190 pounds and he admittedly wore the

is consistent with her sweatpants at times, it was impossible for

statement. Lambert (who was 5'6” tall and weighed

143 pounds at the time) to have worn

App. 1289-90.

them.

After Judge Stengel found Lambert

In order to accept Lambert’s

guilty, she again advanced her argument

argument, however, we must make several

regarding Yunkin’s sweatpants in her post-

speculative leaps that find no support in

verdict motion seeking an arrest of

the record. First, we must infer that it was

judgment and a new trial. Addressing the

physically impossible for Lambert to fit

argument that the evidence regarding the

into a pair of sweatpants that would have

sweatpants rendered the verdict against the

fit the larger Yunkin. Alternatively, we

weight of the evidence, Judge Stengel

must assume that people always wear

wrote: “[F]or defendant to argue that the

clothes that fit them perfectly—that is,

killer was wearing Mr. Yunkin’s clothing

people never wear clothes that are large on

and, therefore, must have been Mr. Yunkin

them—and that it is therefore unreasonable

is ludicrous. . . . The court listened to the

to conclude that either Lambert or Yunkin

testimony regarding the clothing, observed

wore sweatpants that did not properly fit

the size of the garments and the size of the

them. But neither of these suggestions is

people involved, i.e., Ms. Lambert, Ms.

supported by the record or common sense.

Buck and Mr. Yunkin, and found there to

38

The PCRA Court considered Commonwealth switched evidence and

Lambert’s argument and reached the same produced different sweatpants than those

conclusion. “Petitioner suggests that the used at trial.” Lambert Br. 41. The PCRA

sweatpants in 1992 were so large,” the Court rejected Lambert’s argument,

Court explained, “that Ms. Lambert would because it found that there was no “proof

be ‘swimming in them.’” But, the Court that the sweatpants admitted into evidence

concluded, “[t]here is simply no testimony as Commonwealth’s Exhibit 9 in 1992

or even any argument to this effect.” have ever been altered, changed, or

PCRA Decision 209-10. substituted.” PCRA Decision 209.

We agree with this conclusion. To support her “switching” claim

Against the weight of Lambert’s before the PCRA Court, Lambert offered

speculative argument is a conclusion by a testimony that the sweatpants at the trial

finder of fact who had the opportunity of tested positive for blood, while the

observing both Lam bert an d the sweatpants at the PCRA hearing did not.

sweatpants during the trial itself. In addition, a textile expert opined that the

Lambert’s counsel was free to argue that sweatpants at the PCRA hearing were

Yunkin’s clothes were too big for Lambert sized “boy’s extra large” and that a 6'1"

to wear, but the judge was free to disregard individual who weighed one hundred and

those arguments and to base his findings ninety pounds— Yunkin’s approximate

on his own observation. height and weight at the time of the

murder— could not fit into them.

Thus Lambert’s claim that the

Lambert’s trial counsel, Roy Shirk, also

prosecution must have knowingly relied on

testified at the PCRA hearing that, to the

perjured testimony because the sweatpants

best of his recollection, the sweatpants at

did not fit collapses. Lambert’s vehement

the PCRA hearing were smaller than those

disagreement with the prosecutor’s theory

at trial. He also opined that the sweatpants

— and with the judge’s finding — does

at the PCRA hearing would not fit Yunkin.

not amount to a good faith basis to allege

perjury. There is simply no foundation in O n the oth er han d, the

the record for this allegation. Commonwealth offered evidence that the

officer who logged the contents of the bag

b. “Switching” Evidence

found in the dumpster behind K-Mart

Lambert argues that she is listed the sweatpants that were eventually

nonetheless entitled to relief due to the admitted into evidence at the trial as

Commonwealth’s misconduct at the PCRA “ladies dress ‘black’ sweatpants (appears

hearing. Specifically, Lambert argues that small size).” App. 7015. This would tend

at the PCRA hearing, the Commonwealth to contradict Lambert’s bald assertion that

offered into evidence sweatpants that were the sweatpants at trial were so huge that

different than those offered into evidence she could not wear them. The forensic

at trial. In other words, she argues that “the scientist who performed the test to check

39

for blood prior to the trial, Donald P. Lambert’s conviction on evidence

Bloser, Jr., testified that the markings he contradictory to that used to convict her

made on the sweatpants from trial still violates ‘the most basic notions of due

appeared (albeit faded) on the sweatpants process.’” Lambert Br. 41. In support of

at the PCRA hearing. Bloser also testified this proposition, she cites Dunn v. United

that the sweatpants tested “very weak” for States, 442 U.S. 100 (1979), Smith v.

blood prior to trial in 1992 and that he Groose, 205 F.3d 1045 (8 th Cir. 2000), and

found no presence of blood when he Thompson v. Calderon, 120 F.2d 1045 (9 th

retested other evidence (such as the ski Cir. 1997).

hats) that had also tested “very weak” for

In Dunn, the Court of Appeals had

blood in 1992. App. 2759.28 In addition, an

affirmed a conviction based on facts that

investigator from the Commonwealth,

had been adduced at trial but that neither

James Gallagher, testified about a

supported the offense charged in the

photograph he took using the sweatpants

indictment nor provided the foundation for

in evidence at the PCRA hearing. He took

the jury’s conviction. The Supreme Court

a photograph in which he laid the

held that “appellate courts are not free to

sweatpants against cardboard box lids that

revise the basis on which a defendant is

had also appeared in a photograph of the

convicted simply because the same result

sweatpants from trial. The Court

would likely obtain at trial.” 442 U.S. at

concluded that the two photographs looked

107. In other words, a defendant’s due

substantially similar.

process rights are violated when his

Given the record before it, the conviction is affirmed on an offense that

PCRA court’s factual determination that he was not charged with and that was not

the sweatpants were not “switched” is presented to the jury or court that tried

reasonable. There is substantial evidence him.

in the record to support the conclusion,

Smith and Thompson involved

and the evidence to the contrary is

instances where the government offered

considerably weaker.

contradictory theories in two separate trials

M ore important, Lam bert’ s to convict two individuals for the same

“switching” claim provides no basis for crime. The Thompson court held that

habeas relief. She argues that “the “when no new significant evidence comes

Commonwealth’s attempt to uphold to light a prosecutor cannot, in order to

convict two defendants at separate trials,

offer inconsistent theories and facts

28 regarding the same crime.” 120 F.3d at

Bloser also testified that evidence

1058. The Smith court concluded that the

that tested “positive” for blood in 1992

“State’s use of factually contradictory

tested “very weak” for blood when he

theories constituted ‘foul blows’” and

tested it prior to the PCRA hearing. App.

“deprived [the defendant] of due process

2759.

40

and rendered his trial fundamentally implausibility of the state's

unfair.” 205 F.3d at 1051. account of the murder. The

Superior Court and

To a certain degree Dunn and

Delaware Supreme Court

Smith/Thompson represent different sides

did not affirm his conviction

of the same coin. Dunn requires a certain

based on the state's theory

degree of vertical consistency (between

but mere ly found his

trial and appeal) in the theories the

i n e f f e c t i v e n e s s c l a im

government offers, while Smith and

unpersuasive. The state's

Thompson require a certain degree of

theory played a small role, if

horizontal consistency (between two

any, in the courts' reasoning.

trials). Both lines of cases are inapposite,

In this context Dunn and

however, because they do not provide a

[Cola v. Reardon, 787 F.2d

basis for habeas relief here.

681 (1 st Cir.), cert. denied,

Lambert’s argument suffers from 479 U.S. 930 (1986)] are

the same “fundamental flaw” that we simply not applicable.

identified in the petitioner’s

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