Villot v. Varner

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

6-30-2004

Villot v. Varner

Precedential or Non-Precedential: Precedential

Docket No. 01-1505

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PRECEDENTIAL 3103 Philmont Avenue

Huntingdon Valley, PA 19106

UNITED STATES COURT OF

APPEALS Counsel for Appellant

FOR THE THIRD CIRCUIT

Marilyn F. Murray (Argued)

No.:01-1505 Assistant District Attorney

______________

Robert M. Falin

MOSES VILLOT, Assistant District Attorney

Appellant

Thomas W. Dolgenos

Chief, Federal Litigation

v.

Ronald Eisenberg

BENJAMIN VARNER; THE DISTRICT Deputy District Attorney

ATTORNEY OF

THE COUNTY OF PHILADELPHIA; Arnold H. Gordon

THE ATTORNEY First Assistant District Attorney

GENERAL OF THE STATE OF

PENNSYLVANIA Lynn Abraham

District Attorney

________________ Office of District Attorney

Appeal from the United States 1421 Arch Street

District Court Philadelphia, PA 19102

for the Eastern District of Pennsylvania

(D.C. Civil Action No. Counsel for Appellees

00-cv-05512)

District Judge: Honorable Eduardo C.

Robreno

OPINION

Argued on October 15, 2003

ROTH, Circuit Judge

Before: SLOVITER, ROTH and

STAPLETON, Circuit Judges Moses Villot pled guilty to a

general murder charge in exchange for an

agreement by the Commonwealth of

(Opinion filed June 30, 2004 ) Pennsylvania not to seek the death penalty.

At the sentencing hearing in the Court of

Stephen J. Binhak, Esquire (Argued) Common Pleas, Villot was found to have

committed first degree murder and he was a substantive element to the proof

sentenced to life in prison. The present necessary to obtain federal relief. A

appeal is from the denial of Villot’s § 2254 habeas petitioner’s inability to meet more

petition for writ of habeas corpus, based restrictive state standards for relief cannot

on three claims that his plea counsel result in a forfeiture of his federal

provided ineffective assistance. Villot had constitutional claims. Accordingly, we

unsuccessfully urged one of these claims conclude that these two collateral relief

on direct appeal and all three of them in claims were not procedurally defaulted.

his state petition for collateral relief. The

District Court held that the two claims not We further hold that Villot’s third

presented until Villot’s state collateral ineffective assistance claim is not

proceeding were procedurally defaulted defaulted. Although Villot did not fully

because Villot failed to satisfy 42 Pa. exhaust this claim on direct appeal, he did

Cons. Stat. § 9543(a)(2)(iii), which fully exhaust all three claims by

requires petitioners seeking collateral petitioning the Pennsylvania Supreme

relief from guilty pleas to plead and prove Court for review of the Superior Court’s

their innocence. The District Court also denial of collateral relief. Thus, Villot has

held that the claim Villot presented on invoked “one complete round” of the

direct appeal was procedurally defaulted normal state appellate review process with

because Villot had failed to seek review in respect to each claim.1 O’Sullivan v.

the Pennsylvania Supreme Court and

would now be time-barred from doing so.

1

An argument could be made that

A motions panel of this court

Villot’s third ineffective assistance claim

granted a certificate of appealability asking

is defaulted, as was determined by the

counsel to specifically address whether the

Motions Panel in granting a certificate of

innocence provision in § 9543(a)(2)(iii) is

appealability on only the first two claims.

an independent and adequate state

Because Villot pursued the issue in the

procedural ground. We now hold that this

third claim to a further extent in his

provision is a substantive requirement

direct appeal (i.e., the Superior Court

rather than a procedural rule and cannot,

considered the ineffective assistance of

therefore, give rise to a procedural default

counsel claim on the merits of the

of Villot’s federal claims. Under federal

conflict of interest issue rather than

law, proof of innocence is not a

simply dismissing for failure to plead and

prerequisite to relief from a guilty plea.

prove actual innocence) than he did in

The Commonwealth of Pennsylvania has,

his PCRA petition, and then did not seek

however, tacked on an innocence

review of this determination by the

provision as a substantive element

Pennsylvania Supreme Court, the third

necessary to prove in order to obtain relief

claim could have been dismissed on

from a guilty plea. But a state cannot add

collateral review under 42 Pa. Const.

2

Boerckel, 526 U.S. 838, 845 (1999). counsel provided ineffective assistance at

Accordingly, we will reverse the judgment the degree of guilt hearing due to a conflict

of District Court and remand this case for of interest. Villot claimed that two of his

consideration of the merits of all of plea counsel’s former clients were the

Villot’s claims. murder victim and the only eye-witness

called by the prosecution at the degree of

II. Facts and Procedural History guilt hearing. The Superior Court denied

the appeal and Villot did not seek review

In October 1990, Moses Villot pled in the Pennsylvania Supreme Court.

guilty in the Pennsylvania Court of

Common Pleas to the murder of his In January 1997, Villot filed a pro

brother-in-law. Following a degree of se petition for collateral relief under

guilt hearing, Villot was found guilty of Pennsylvania’s Post-Conviction Relief Act

first-degree murder and sentenced to a (PCRA), 42 Pa. Cons. Stat. § 9541 et seq,

mandatory term of life imprisonment. 2 claiming that his plea counsel’s ineffective

Shortly thereafter, Villot, represented by assistance “undermined the truth -

new counsel, filed a timely motion to determining process” per § 9543(a)(2)(ii)

withdraw his guilty plea, principally and “unlawfully induced” his guilty plea

arguing that his plea counsel provided per § 9543(a)(2)(iii).3 Counsel was

ineffective assistan ce. Fo llowin g

evidentiary hearings in October 1991, the

3

Court of Common Pleas denied Villot’s The PCRA provides that a

motion. Villot appealed to the Superior petitioner is eligible for relief if he pleads

Court, arguing, inter alia, that his plea and proves by a preponderance of the

evidence:

Stat. § 9543(a)(3), as having already (2) That the conviction or

been litigated. The Superior Court did sentence resulted from one

not, however, dismiss the third claim on or more of the following:

this ground and, therefore, for the ...

reasons we state in Section IV.C, infra, (ii) Ineffective assistance

because the state court did not rely on the of counsel which, in the

“already litigated” ground for dismissal, circumstances of the

we will not do so in this appeal as a part particular case, so

of our consideration of default. undermined the truth-

2 determining process that no

Villot also pled guilty to two

reliable adjudication of

weapons offenses. His terms of

guilt or innocence could

imprisonment for these crimes run

have taken place.

concurrently with his life sentence for

murder. (iii) A plea of guilty

3

appointed to represent Villot, but filed a with his guilty plea in his brief supporting

no-merit letter per Commonwealth v. his PCRA appeal and held that

Finley, 550 A.2d 213 (Pa. Super. Ct. “[o]bviously, Appellant is not innocent.” 4

1988). The Court of Common Pleas In November 1999, the Pennsylvania

dismissed Villot’s petition without opinion Supreme Court denied Villot’s petition for

and allowed appointed counsel to allowance of appeal.

withdraw.

In October 2000, Villot filed a 28

The Superior Court granted Villot U.S.C. § 2254 petition in the Eastern

the right to appeal this decision nunc pro District of Pennsylvania, alleging the same

tunc. Villot raised three ineffective three ineffective assistance claims he had

assistance claims on appeal. First, he raised in his PCRA appeal. The

claimed his plea counsel coerced him into Magistrate Judge held that Villot’s first

pleading guilty. Second, he claimed that two claims were procedurally defaulted

his plea counsel failed to adequately based on the Superior Court’s holding that

interview him prior to advising him to Villot’s claims were “not cognizable.”

plead guilty. Finally, he reiterated the The Magistrate Judge held, however, that

conflict of interest claim described above. Villot’s third claim was insulated from the

In July 1999, the Superior Court affirmed Superior Court’s holding because that

the dismissal of his PCRA petition. The claim was properly exhausted on direct

court noted that, pursuant to a 1995 appeal. The Magistrate Judge noted that

amendment, the PCRA now requires a Villot failed to petition the Pennsylvania

petitioner seeking relief from his guilty Supreme Court following the Superior

plea to show not only that the plea was Court’s denial of his direct appeal, but

“unlawfully induced” but also that he is held that this was no longer a required step

innocent. 42 Pa. Const. Stat. § in the exhaustion process for habeas cases

9543(a)(2)(iii). The court held that arising in Pennsylvania. The Magistrate

Villot’s claims were “not cognizable” Judge cited In re: Exhaustion of State

under this section because Villot had failed

to assert his innocence. The court further

noted that Villot admitted facts consistent 4

While the Superior Court did not

explicitly address Villot’s request for

relief under the § 9543(a)(2)(ii)

unlawfully induced where

ineffective assistance of counsel

the circumstances make it

provision, Villot’s desire to withdraw his

likely that the inducement

guilty plea was based on ineffective

caused the petitioner to

assistance of counsel. Thus, the Superior

plead guilty and the

Court’s ruling necessarily implied that

petitioner is innocent.

Villot’s claim was also not cognizable

42 Pa. Cons. Stat. § 9543(a)(2). under § 9543(a)(2)(ii).

4

Remedies in Criminal and Post-Conviction A motions panel of this court issued

R e l i e f C ases, No . 218 J udicia l a certificate of appealability per 28 U.S.C.

Administration Docket No. 1 (Pa. M ay 9, § 2253(c) with respect to Villot’s first two

2000) (Order 218) of the Pennsylvania ineffective assistance claims but denied the

Supreme Court, which provides that “in all certificate with respect to the conflict of

appeals from criminal convictions . . . a interest claim, holding that this claim was

litigant shall not be required to petition for clearly defaulted. The certificate

rehearing or allowance of appeal following specifically sought briefing on whether the

an adverse decision by the Superior Court Superior Court’s holding that Villot did

in order to be deemed to have exhausted not satisfy § 9543(a)(2)(iii)’s innocence

all available state remedies respecting a requirement constitutes “an ‘independent

claim of error.” See Wenger v. Frank, 266 and adequate’ state law ground

F.3d 218, 224-25 (3d Cir. 2001) (citing [precluding] review of [Villot’s] federal

Order 218). Accordingly, the Magistrate claims” under the procedural default rule.

Judge considered Villot’s conflict of As explained below, our consideration of

interest claim on the merits, and ultimately Villot’s first two claims requires us also to

recommended that the claim be denied. reconsider the motions panel’s earlier

conclusion that his conflict of interest

The District Judge adopted the claim was defaulted.

M a g i s t r a t e J u d g e ’ s r ep o r t a n d

recommendation with respect to the first III. Jurisdiction and Standard of

two claims but held that the conflict of Review

interest claim was also procedurally

defaulted. The District Judge held that The District Court exercised

Order 218, issued in May 2000, does not jurisdiction over Villot’s habeas petition

apply retroactively and therefore did not under 28 U.S.C. §§ 2241 and 2254. We

apply to Villot’s direct appeal, which was have jurisdiction to review the District

denied by the Superior Court in May 1993. Court’s order denying Villot’s petition

See Wenger, 266 F.3d at 226 (holding that under 28 U.S.C. § 1291. We exercise

“Order 218 does not apply in cases in plenary review over the District Court’s

which the time to petition for review by legal conclusions in a habeas proceeding,

the state supreme court expired prior to the Caswell v. Ryan, 953 F.2d 853, 857 (3d

date of the order”). The District Judge Cir. 1992), including its resolution of legal

concluded, therefore, that Villot’s conflict questions arising from application of the

of interest claim was procedurally procedural default doctrine. Hull v. Kyler,

defaulted because the time to petition the 190 F.3d 88, 97 (3d Cir. 1999).

Pennsylvania Supreme Court had long

since expired. In February 2001, the IV. Discussion

District Court dismissed the petition

without reaching the merits. In our order granting Villot’s

5

request for a certificate of appealability we miscarriage of justice.” Harris v. Reed,

asked the parties to consider whether the 489 U.S. 255, 262 (1989) (internal

Superior Court’s holding that Villot did citations omitted). Villot does not claim

not satisfy § 9543(a)(2)(iii)’s innocence that the “cause and prejudice” or

requirement constitutes “an ‘independent “fundamental miscarriage of justice”

and adequate’ state law ground exceptions excuse his failure to allege and

[precluding] review of [Villot’s] federal prove his innocence in his PCRA

claims.” We no longer need to address p r o c ee d i n g a s r e q u ir e d b y §

this issue, however, because we now hold 9543(a)(2)(iii). Further, Villot does not

that the innocence provision is substantive claim, and there is no basis to speculate,

rather than procedural. By definition, the that the Superior Court’s holding was

procedural default rule only applies to state interwoven with or based on federal law; it

procedural rules. We further hold that is clear that the state court ruling was

Villot’s non-compliance with certain state “independent.” Rather, the parties focus

procedural rules, not discussed by the almost exclusively on whe ther §

District Court, also does not support a 9543(a)(2)(iii)’s innocence clause is

finding of procedural default because the “adequate” to support the Superior Court’s

Superior Court did not rely on these judgment. See Szuchon v. Lehman, 273

grounds in concluding that Villot’s claims F.3d 299, 325 (3d Cir. 1999) (stating that

were not cognizable under the PCRA. a procedural rule is adequate only if it is

Finally, we hold that Villot properly “firmly established, readily ascertainable,

exhausted all of his ineffective assistance and regularly followed”) (citing Ford v.

claims in the PCRA proceeding, and Georgia, 498 U.S. 411, 423-24 (1991)).

therefore the District Court must consider We need not reach this issue, however,

the merits of all of them on remand. because we now hold that the innocence

clause is a substantive requirement, not a

A.Because § 9543(a)(2)(iii)’s innocence procedural rule, and therefore cannot give

requirement is substantive rather than rise to a procedural default.

procedural, it cannot give rise to

procedural default of Villot’s federal Before 1995, § 9543(a)(2)(iii)

claims. required a PCRA petitioner challenging

the validity of his guilty plea to “plead and

Under the procedural default rule, prove” that his plea was “unlawfully

“an adequate and independent finding of induced where the circumstances make it

procedural default will bar federal habeas likely that the inducement caused him to

review of the federal claim, unless the plead guilty.” See Commonwealth v.

habeas petitioner can show cause for the Banks, 656 A.2d 467, 470 (Pa. 1995)

default and prejudice attributable thereto, (quoting former provision). Following the

or demonstrate that failure to consider the 1995 amendment to this provision, the

federal claim will result in a fundamental petitioner must now also “plead and

6

prove” that circumstances make it likely the substantive nature of the latter

that “the petitioner is innocent.” 42 Pa. requirement. Second, the state implies that

Cons. Stat. § 9 543 (a)(2)(iii); Villot could have satisfied the innocence

Commonwealth v. Michael, 755 A.2d requirement simply by asserting his

1274, 1277 (Pa. 2000) (citing current innocence with no intention of actually

provision). This clause plainly adds a demonstrating his lack of guilt. We reject

substantive element to Pennsylvania’s test this bizarre position, which ignores the

for obtaining collateral relief from guilty plain language of the statute and would

pleas. Substantive law “creates, defines, reduce the innocence requirement to a

and regulates rights and duties of parties.” meaningless formality. Finally, the state

Black’s Law Dictionary 1429 (6 th ed. ignores the remainder of the Superior

1990). In contrast, procedural law Court’s opinion, in which the court noted

“prescribes method[s] of enforcing rights certain admissions in Villot’s brief and

or obtaining redress for their invasion.” held that Villot was “[o]bviously . . . not

Id. at 1203. The Pennsylvania legislature innocent.” Thus, the Superior Court

amended the definition of a PCRA reached the merits of Villot’s claim by

petitioner’s right to collateral relief by holding that he could not satisfy the

adding a new element, the innocence innocence requirement.

requirement.

Furthermore, the innocence

Granted, given the structure of the requirement makes Pennsylvania’s test for

statute defining eligibility for PCRA relief, evaluating ineffective assistance claims

any substantive addition creates a related to guilty pleas more restrictive than

corresponding procedural addition. The the federal test. 5 A § 2254 petitioner who

first sentence of the act requires petitioners

to “plead” as well as “prove” certain facts,

including, of course, the claimed error. 5

We note that ineffective

See 42 Pa. Cons. Stat. § 9543(a). At oral

assistance claims based on the

argument the state relied on this general

performance or advice of plea counsel

pleading requirement to argue that the

may now be raised in PCRA proceedings

innocence provision is procedural rather

under subsection (a)(2)(ii), which does

than substantive. Specifically, the state

not require assertion or proof of

noted that the Superior Court deemed

innocence. At the time of the Superior

Villot’s PCRA appeal “not cognizable”

Court’s ruling on Villot’s PCRA appeal

because he failed to allege his innocence.

in July 1999, however, Pennsylvania’s

First, this argument conflates the pleading

lower courts had consistently held that

requirement in the first sentence of § 9543

ineffective assistance claims relating to

with the innocence requirement at

guilty pleas were not cognizable under

subsection (a)(2)(iii); the fact that the

subsection (a)(2)(ii) because guilty pleas

former rule is procedural does not change

did not implicate the “truth-determining

7

claims that his counsel’s ineffective proceeded to trial instead of pleading

assistance caused him to enter an guilty.” United States v. Nahodil, 36 F.3d

involuntary or unknowing plea may obtain 323, 326 (3d Cir. 1994) (citing Hill v.

collateral relief regardless of whether he Lockhart, 474 U.S. 52, 59 (1985)). In

asserts or proves his innocence. To Nahodil, we indicated that a petitioner’s

prevail, the petitioner must establish “that past assertions of innocence may help

(i) his or her counsel’s representation fell substantiate his claim that he would have

below an objective standard of proceeded to trial but for his counsel’s

reasonableness demanded of attorneys in errors, 36 F.3d at 326-27, but we have

criminal cases; and (ii) there is a never suggested that a failure to assert or

reasonable probability that, but for prove innocence precludes a finding of

counsel’s errors, he or she would have prejudice. Thus, by requiring a PCRA

petitioner to “plead and prove” his

innocence to obtain collateral relief from

his guilty plea, subsection 9543(a)(2)(iii)

process.” See Commonwealth v.

tacks on an additional substantive element

Woodrow, 743 A.2d 458, 460 (Pa. Super.

on top of those required by federal law.

Ct. 1999); Commonwealth v.

Laszczynski, 715 A.2d 1185, 1187-88

The procedural default rule is an

(Pa. Super. Ct. 1998); Commonwealth v.

application of the independent and

Shekerko, 639 A.2d 810, 813 (Pa. Super.

adequate state ground doctrine. See

Ct. 1994). The Superior Court’s decision

Coleman v. Thompson, 501 U.S. 722, 729-

in Villot’s case explicitly relied on

30 (1991). Under this doctrine, federal

Laszczynski, and the Pennsylvania

courts “will not review a question of

Supreme Court denied Villot’s petition

federal law decided by a state court if the

for allowance of appeal. However,

decision of that court rests on a state law

though too late to help Villot, the court

ground that is independent of the federal

later overruled this line of decisions in

question and adequate to support the

Dadario v. Goldberg, holding that

judgment.” Id. at 729 (citations omitted).

subsection (a)(2)(ii) encompassed “all

While the independent and adequate state

constitutionally-cognizable claims of

ground doctrine applies whether the state

ineffective assistance of counsel,”

law ground is substantive or procedural,

including ineffective assistance claims

id., the procedural default rule applies, by

related to the defendant’s decision to

definition, only to procedural rules. “The

plead guilty or not. 773 A.2d 126, 127-

[procedural default] doctrine applies to bar

28, 130-31 (Pa. 2001); see also

federal habeas when a state court declined

Commonwealth v. Hickman , 799 A.2d

to address a prisoner’s federal claims

136, 141 (Pa. Super. Ct. 2002) (holding

because the prisoner had failed to meet a

that PCRA will afford relief if ineffective

state procedural requirement. In these

assistance of counsel caused defendant to

cases, that state judgment rests on

enter involuntary guilty plea).

8

independent and adequate procedural jurisdictional limits).

grounds.” Id. (emphases added). This

distinction between procedural and In fact, an interpretation of the

substantive rules is perfectly consistent procedural default rule that extended to

with the procedural default rule’s state substantive restrictions on federal

rationale, which is that state courts should claims would violate the supremacy

not be deprived of an opportunity to clause. See U.S. Const. art. VI. The states

correct their own errors by the habeas have no obligation to provide collateral

petitioner’s failure to abide by the state’s relief to convicted criminals at all, see

reasonable procedural rules: Pennsylvania v. Finley, 481 U.S. 551, 557

(1987) (citation omitted), and the relief

Just as in those cases in they elect to provide need not be co-

which a state prisoner fails extensive with that provided by federal

to exhaust state remedies, a statutory or constitutional law. Thus, the

habeas petitioner who has Pennsylvania legislature was free to set a

failed to meet the State’s higher bar for collateral relief from guilty

procedural requirements for pleas than federal law provides.6 A

presenting his federal claims holding that the procedural default rule

has deprived the state courts applies in this case, however, would

of an opportunity to address effectively impose Pennsylvania’s extra-

those claims in the first constitutional restrictions on collateral

instance. relief on federal habeas proceedings

despite 28 U.S.C. § 2254(a), which

Id. at 731-32 (emphasis added); see also authorizes relief whenever a prisoner is

Rose v. Lundy, 455 U.S. 509, 518-19 held in custody “in violation of the

(1982) (articulating similar rationale). Constitution or laws or treaties of the

How ever, when a state tacks on United States.”

substantive additions to federal claims, it is

the state itself that has forfeited its Accordingly, we do not need to

opportunity to consider the federal claims determine whether the Superior Court’s

of the class of petitioners who cannot application of § 9543(a )(2)(iii)’s

satisfy the additional state-created innocence requirement satisfies the

s u b s t a n t iv e r e q u i r e m e n t . The “independent and adequate” state ground

considerations of comity and federalism test because, even assuming it does, it

underlying the procedural default rule have

no application in such cases. See

Coleman, 501 U.S. at 730 (explaining that 6

Of course, the scope of relief

application of independent and adequate

provided must be consistent with the

state ground rule in habeas is grounded in

state’s own constitutional law, but that

comity and federalism concerns, not

issue is not before the court.

9

cannot foreclose federal habeas review of defaulted under § 9543(a)(3), but we reject

Villot’s ineffective assistance claims. this argument because the Superior Court

did not rely on § 9543(a)(3) in denying

B.Villot’s habeas petition is not Villot’s PCRA appeal.

procedurally defaulted because of his

non-compliance with § 9543(a)(3). First, it seems clear that the

Superior Court could have held that some

Section 9543(a)(2)(iii) provided a or all of Villot’s PCRA claims were either

substantive basis for the Superior Court’s previously litigated or waived. There is no

holding that Villot’s claims were “not doubt that Villot’s conflict of interest

cognizable” under the PCRA. However, it claim was previously litigated in both

appears that the Superior Court could have Villot’s motion to withdraw his guilty plea

also denied relief on procedural grounds. and on direct appeal. Next, Villot’s claim

Specifically, the court could have held that that his plea counsel failed to adequately

Villot failed to comply with 42 Pa. Const. interview him and investigate his case

Stat. § 9543(a)(3), which provides that a could have been deemed waived by the

PCRA petitioner must plead and prove Superior Court because it was not raised

“[t]hat the allegation of error has not been before the trial court or on direct appeal.8

previously litigated or waived.” 7 Although

the state does not rely on § 9543(a)(3)

directly, in both its brief and at oral 8

Until recently, defendants in

argument it placed great emphasis on its

Pennsylvania had to raise any ineffective

contention that Villot waived two of his

assistance claims “at the earliest stage in

ineffective assistance claims by failing to

the proceedings at which the counsel

raise them prior to his PCRA proceeding.

whose effectiveness is being challenged

We treat this as an argument that Villot’s

no longer represents the defendant,” or

claims should be considered procedurally

else these claims would be considered

waived. Commonwealth v. Hubbard,

372 A.2d 687, 695 n.6 (Pa. 1977).

7

A claim has been previously Because Villot obtained new counsel

litigated if “the highest court in which before he made his motion to withdraw

the petitioner could have had review as a his guilty plea, he was obligated to raise

matter of right has ruled on the merits of any ineffective assistance claims in that

the issue.” 42 Pa. Cons. Stat. § motion. The Pennsylvania Supreme

9544(a)(2). A claim has been waived “if Court overruled Hubbard in 2002,

the petitioner could have raised it but holding that “as a general rule, a

failed to do so before trial, at trial, during petitioner should wait to raise claims of

unitary review, on appeal or in a prior ineffective assistance of trial counsel

state postconviction proceeding.” Id. at § until collateral review.” Commonwealth

9544(b). v. Grant, 813 A.2d 726, 738 (Pa. 2002).

10

Finally, with respect to Villot’s claim that If the state is correct, this claim could also

his plea counsel coerced him into pleading have been deemed “previously litigated.”

guilty, the state argues that this is just a If the state is incorrect and this claim is

variation on his conflict of interest claim.9 considered distinct, the Superior Court

might have held that this claim was waived

because Villot did not raise it in his motion

“Thus, any ineffectiveness claim will be to withdraw his guilty plea or on direct

waived only after a petitioner has had the appeal.

opportunity to raise that claim on

collateral review and has failed to avail Thus, if the Superior Court had

himself of that opportunity.” Id. The barred review of some or all of Villot’s

court also held that the new rule would claims on the basis of § 9543(a)(3) rather

be applied retroactively to cases currently than, or in addition to, its ruling based on

pending on direct appeal in which § 9543(a)(2)(iii), it could be argued that

ineffective assistance claims had been the procedurally barred claims were

raised and preserved, but not to cases defaulted for purposes of federal habeas

pending on collateral review. Id. at 738- review.10 However, “a federal claimant’s

39 & n.16. Of course, Villot’s direct and procedural default precludes federal

collateral state proceedings had long habeas review . . . only if the last state

been closed by the time Grant was court rendering a judgment in the case

issued, so the new rule has no application rests its judgment on the procedural

here. default.” 11 Harris v. Reed, 489 U.S. 255,

9

Villot’s counsel does not explain

the basis of this claim in his briefing to

the exact claims themselves. See

this court, but the gist of the claim can be

Commonwealth v. Carpenter, 725 A.2d

gleaned from Villot’s pro se brief in the

154, 166-67 (Pa. 1999) (citation

district court and the M agistrate Judge’s

omitted).

report and recommendation. Villot

claims that his plea counsel pressured 10

This statement is qualified

him to plead guilty so that counsel could because we cannot and need not

avoid cross-examining Adam Romero, definitively state that Villot could not

the chief prosecution witness and have raised any valid objections to

counsel’s former client, at trial. If this is application of the procedural default rule

the extent of Villot’s claim, it is simply a had the Superior Court relied on §

re-statement of Villot’s conflict of 9543(a)(3) to deny his PCRA appeal.

interest claim. The Pennsylvania

11

Supreme Court has held that the This rule is inapplicable where the

“previously litigated” prong of state court has not been presented with

subsection (a)(3) bars simple variations the federal claim. Harris, 489 U.S. at

of previously litigated claims as well as 263 n.9. In that event, the federal habeas

11

262 (1989) (emphasis added). If the state the Pennsylvania Supreme Court’s refusal

court does not actually enforce the to review the Superior Court’s order is

procedural rule in question, the “federal presumed to rest on the same ground.

court implies no disrespect for the state by Comity does not require, nor would it

entertaining the claim.” County Court of justify, any endeavor by this Court to

Ulster County, N.Y. v. Allen, 442 U.S. 140, substitute an unmentioned procedural

154 (1979); see also Smith v. Freeman, ground in place of subsection (a)(2)(iii) in

892 F.2d 331, 336 (3d Cir. 1989) (relying order to hold Villot’s claims procedurally

on Harris and Ulster to hold that a claim defaulted in federal court.

was not procedurally barred under a

certain state procedural rule where the C.Villot’s conflict of interest claim was

Pennsylvania courts did not rely on this not defaulted because of the manner in

rule and addressed the merits of the which it was concluded by the state in

petition instead). The Superior Court’s the PCRA proceeding.

opinion rejecting Villot’s PCRA appeal

rests exclusively on subsection (a)(2)(iii),

and does not mention § 9543(a)(3) or any In its order granting Villot’s

other procedural basis for its ruling.12 certificate of appealability with respect to

Under the presumption established in Ylst two of his ineffective assistance claims,

v. Nunnemaker, 501 U.S. 797, 803 (1991), the motions panel denied the certificate

with respect to his ineffective assistance

claim based on an alleged conflict of

court may hold the claim procedurally interest. The motions panel agreed with

defaulted “if it is clear that the state court the District Court that this claim was

would hold the claim procedurally procedurally defaulted because Villot

barred.” Id. But since the PCRA courts failed to fully exhaust it on direct appeal

were presented with Villot’s federal by seeking review in the Pennsylvania

claims, the Harris rule and not its Supreme Court and would now be time-

exception applies. barred from doing so. That ruling,

12

however, failed to account for the fact that

In contrast, in Cabrera v. Barbo, Villot presented this same claim, along

175 F.3d 307, 310-13, (3d Cir. 1999), with his other two ineffective assistance

the case principally relied on by the state claims, to Pennsylvania’s highest court

at oral argument, the New Jersey state following the Superior Court’s denial of

courts explicitly relied on a state waiver his PCRA appeal. We now hold that all

rule in denying a prisoner’s state petition three of Villot’s ineffective assistance

for post-conviction relief. Therefore, claims were properly exhausted during the

Cabrera’s holding that the prisoner’s

claims were procedurally defaulted in

federal court is inapplicable to the instant

case.

12

PCRA proceedings. 13 Before a federal court may grant a

§ 2254 habeas petition, the state prisoner

must exhaust his available state court

13 remedies. 28 U.S.C. § 2254(b)(1);

We may not consider issues on

O’Sullivan, 526 U.S. at 842. “The

appeal that are not within the scope of

exhaustion doctrine is designed to give the

the certificate of appealability (COA).

state courts a full and fair opportunity to

28 U.S.C. § 2253(c)(3); Third Circuit

resolve federal constitutional claims before

Local Appellate Rule 22.1(b); Miller v.

those claims are presented to the federal

Dragovich, 311 F.3d 574, 577 (3d Cir.

courts.” Id. at 845. The prisoner typically

2002); Hiivala v. Wood, 195 F.3d 1098,

exhausts his federal claims by fairly

1102-03 (9th Cir. 1999). However, the

presenting each claim at each stage of the

merits panel may expand the scope of the

state’s established appellate review

COA beyond the scope announced by the

process. Id. However, when the state

motions panel. See 3d Cir. LAR 22.1(b);

refuses to consider the merits of the

Hiivala, 195 F.3d at 1103-04 (explaining

prisoner’s claims because the petitioner

that the “law of the case” doctrine does

has failed to comply with the state’s

not preclude the merits panel from

procedural requirements, his claim is

expanding the scope of a COA granted

nonetheless technically exhausted because

by the motions panel because the proper

“there is an absence of available State

scope of a COA is a jurisdictional issue).

corrective process,” 28 U .S.C . §

The fact that Villot did not request

2254(b)(1)(B)(I), despite the fact that the

expansion is not controlling — the merits

petitioner has “deprived the state courts of

panel may expand the COA sua sponte.

an opportunity to address [the federal]

See 3d Cir. LAR 22.1(b) (contemplating

claims in the first instance. Coleman, 501

sua sponte expansion); United States v.

U.S. at 732. Thus, the procedural default

Morgan, 244 F.3d 674, 675 (8th Cir.

rule avoids frustration of the purpose

2001) (en banc) (holding that Eighth

behind the exhaustion requirement by

Circuit hearing panel may “consider sua

sponte issues beyond those specified in a

certificate of appealability, whether the

certificate was issued by a district court claim. We note that while our expansion

or by an administrative panel of [the of the COA in this case is technically sua

Eighth Circuit]”); cf. Robinson v. sponte because Villot did not ask us to

Johnson, 313 F.3d 128, 133 (3d Cir. revisit the motion panel’s ruling denying

2002) (citing Dunn v. Colleran, 247 F.3d the COA as to his conflict of interest

450, 456 (3d Cir.2001), for the claim, the effect of our revision is simply

proposition that a district court may grant to consider each of Villot’s claims on the

a COA sua sponte). Accordingly, we basis of the same legal theory, not to

exercise our discretion to expand the include a new issue not envisioned by the

COA to cover Villot’s conflict of interest parties.

13

precluding federal review of procedurally other two claims to the Pennsylvania

barred claims unless the petitioner can Supreme Court following the Superior

establish “cause and prejudice” or a Court’s denial of his PCRA appeal. A

“fundamental miscarriage of justice” to prisoner is only required to invoke “one

excuse the procedural default. Id.; complete round” of the state’s established

Whitney v. Horn, 280 F.3d 240, 250 (3d appellate process to satisfy the exhaustion

Cir. 2002) (citation omitted). requirement, O’Sullivan, 526 U.S. at 845

(emphasis added), and Villot did so during

The District Court correctly ruled

his PCRA proceedings.

that Villot did not fully exhaust his conflict

of interest claim on direct appeal because If § 9543(a)(2)(iii)’s innocence

he did not petition the Pennsylvania provision were procedural rather than

Supreme Court for review of the Superior substantive, then the District Court’s

Court’s denial of his appeal.14 However, ruling would have been correct. As

Villot presented both this claim and his explained above, a procedurally barred

claim is technically exhausted but not

properly exhausted because the state

14

In O'Sullivan the Supreme Court courts are not given a fair opportunity to

held that AEDPA’s exhaustion address the federal claim on the merits.

provisions require state prisoners to “file See O’Sullivan, 526 U.S. at 848. If §

petitions for discretionary review when 9543(a)(2)(iii)’s innocence provision were

that review is part of the ordinary a procedural bar then Villot would have

appellate review procedure in the State.” lost his only opportunity to properly

526 U.S. at 847. In May 2000 the exhaust his federal claims when he failed

Supreme Court of Pennsylvania issued to petition the state’s highest court

Order 218 which endeavored to eliminate following his direct appeal. Because we

petitions for discretionary review from have held that this provision is substantive,

the ordinary appellate review procedure. however, see supra Part IV.A., and

See Wenger v. Frank, 266 F.3d 218, 220, because the Superior Court did not deny

224-25 (3d Cir. 2001) (providing text of Villot’s PCRA appeal on any procedural

Order 218). As was the case in Wenger, ground, see supra Part IV.B., we hold that

we need not consider the effect of Order Villot properly exhausted his ineffective

218 on AEDPA’s exhaustion assistance claims by presenting them to the

requirement in this case because Villot’s state’s highest court during his PCRA

time to petition for discretionary review proceedings.

elapsed years before the date of the

V. Conclusion

order. See 266 F.3d at 226 (“Order 218

does not apply in cases in which the time For the reasons stated above, we

to petition for review by the state will reverse the District Court’s dismissal

supreme court expired prior to the date of of Villot’s habeas petition and remand this

the order.”)

14

case for consideration of the merits of all

three of Villot’s claims.15

15

The state has invited us to address

the merits of Villot’s claims in the first

instance on appeal should we decide, as

we have, that Villot’s claims were not

defaulted. The state argues that we have

the power to address the merits in the

first instance under 28 U.S.C. §

2254(b)(2), which authorizes federal

courts to deny habeas petitions on the

merits “notwithstanding the failure of the

applicant to exhaust the remedies

available in the courts of the State.”

Although § 2254(b)(2) does not, by its

terms, apply to the procedural default

context, in Hameen v. Delaware, 212

F.3d 226, 251-52 (3d Cir. 2000), we

relied on this section to reach the merits

of a habeas petition rather than consider

whether the issue had been procedurally

defaulted in the state courts. However,

we need not decide whether we can or

should follow the state’s suggestion,

because the record on appeal is

insufficient to permit a thorough review

of Villot’s claims. We have not been

provided with a transcript of the

evidentiary hearing held in the Superior

Court on Villot’s motion to withdraw his

guilty plea. Further, the transcript of the

degree of guilt hearing is incomplete —

specifically, the pages of the transcript

containing the testimony of Adam

Romero, witness for the prosecution and

Villot’s plea counsel’s former client, are

missing.

15