OPINION OF THE COURT
In
Nara v. Frank,
I. Factual and Procedural History
A. Conviction and Incarceration
Joe Nara’s wife, DeLorean Churby, left him. Over the next few weeks, Nara grew despondent and visited the Fayette Community Mental Health Center on an outpatient “crisis” basis. Nara attempted suicide by taking an overdose of sleeping tablets and remained unconscious for two days in the hospital. He was then involuntarily committed to the Connellsville State General Hospital and treated with antidepressants and an anti-psychotic tranquilizer.
After four days at Connellsville, Nara was released. Soon thereafter, Nara discovered love letters between Churby and Pennsylvania State Trooper Leonard Ma-harowski. Nara argued with his wife over the telephone, and she taunted him with details of her affair. Enraged, Nara drove to confront her at her mother’s trailer.
When he arrived and knocked on the trailer’s door, Churby’s mother aimed a shotgun in his face and told him to leave. Infuriated, Nara went to his car and got his pistol. He returned to the house, shot the door’s lock and burst in. Again, Chur-by’s mother aimed the shotgun at him, and his wife repeatedly struck him with a telephone. Amid the struggle, Nara shot and killed both women.
Nara fled to North Carolina. Within a day, however, he made several calls to the Pennsylvania State Police and to his father, and admitted he killed the Churbys. He turned himself in and was returned to Pennsylvania to face two charges of first- *190 degree murder. He was then confined at the Fayette County prison.
Nara’s family retained attorney Charles Gentile as counsel. His family grew fearful that he would harm himself in prison, and John Walton of the Fayette County Mental Health Center advised Gentile that Nara was in need of immediate evaluation and help. Gentile filed a petition under the Pennsylvania Mental Health Act, 50 Pa. Stat. Ann. § 4407-4411, requesting that the Fayette County Court of Common Pleas transfer Nara to Mayview State Hospital for psychiatric evaluation and commitment because he was a risk of harm to himself or others. Gentile did not seek an evaluation to establish Nara’s competency to stand trial or to assess his sanity at the time of the killings. Fayette County Common Pleas Judge Richard Cicchetti granted Gentile’s motion and transferred Nara to Mayview.
At Mayview, Duncan Campbell, M.D., decided that Nara should be observed, but did not place him on any routine medication. Later that day, staff psychologist James T. Nelson and an associate, David Bert, evaluated Nara more closely. They recommended suicide precautions and treatment for depression.
Just four days later, staff psychologist Lilian Meyers, Ph.D., reported that Nara was neither mentally ill nor in need of treatment. She did not comment on Nara’s competency to stand trial or his sanity at the time of the killings. However, she noted the “seriousness” of the accusations against him and allegations that he planned to escape, and recommended Nara be transferred back to the county prison. He was transferred back to the prison, where he remained untreated for the next four months.
On June 20, 1984, Nara appeared before Fayette County Court of Common Pleas Judge William J. Franks and pleaded guilty to two counts of murder in the first degree. During an exhaustive 85-minute colloquy, Nara admitted he “really did intentionally kill” his wife, denied having been treated for any mental or emotional illnesses, and repeatedly affirmed his understanding of the proceedings. On July 13, 1984, Judge Franks sentenced Nara to two concurrent life sentences. Nara did not file a direct appeal to the Pennsylvania Superior Court.
The court transferred Nara to the State Correctional Institution at Pittsburgh (SCIP). SCIP officials immediately placed Nara at the facility’s medical unit “for psychiatric reasons,” placed a leg restraint on him to reduce the risk of suicide, and treated him with anti-depressants and anti-psychotic medications. An attending physician noted Nara had “intense suicidal ideation of severe proportions,” and Nara told him he attempted to hang himself at the county prison following his arrest. Within three weeks, SCIP officials initiated involuntary commitment proceedings. On September 10, 1984 — eighty-two days after the plea colloquy — Nara was committed to Farview State Hospital as a suicide risk. Nara spent 90 days at Farview, and then returned to SCIP’s medical facility.
On February 19, 1985, Nara again attempted suicide and was recommitted to Farview. He remained there for about a year and a half, and was then returned to prison.
B. State Post-Conviction Proceedings
1. First Post-Conviction Relief Proceeding
On April 25, 1988, Nara filed a pro se petition and brief for post-conviction relief under the Pennsylvania Post Conviction *191 Hearing Act (PCHA). 1 In his brief, Nara claimed (1) the court violated his constitutional rights by accepting his pleas while he was mentally incompetent; and (2) his trial counsel, Gentile, was ineffective for failing to have his competency evaluated. Judge Franks appointed Fayette County Public Defender Richard E. Bower to represent Nara and held evidentiary hearings at which Nara, his father, his two brothers, and Attorney Gentile testified. After the hearings, Judge Franks, treating the petition as alleging only ineffective assistance of counsel, concluded that Gentile was not ineffective, and denied the petition. 2 Bower filed an appeal on Nara’s behalf to the Superior Court raising only his ineffective assistance of counsel claim. The Superior Court denied Nara’s appeal for failing to conform to the newly-enacted P.CRA, 42 Pa.Con. Stat. Stat. AnN. § 9543. 3 Bower ended his representation of Nara, and Nara filed a pro se petition for allowance of appeal in which he re-asserted his incompetency claim and his ineffective assistance of counsel claim. The Pennsylvania Supreme Court denied his pro se petition for allocatur.
2. Second Post-Conviction Relief Proceeding
On May 15, 1990, Nara filed a pro se PCRA petition in which he alleged his guilty plea was “unlawfully induced,” and that his first PCRA counsel was ineffective because he failed to amend his petition to comply with the PCRA, failed to seek allo-catur, and failed to preserve state and federal constitutional claims for federal ha-beas review. Judge Franks appointed Mark Morrison, Esq., 4 to represent Nara and allowed Nara to amend his petition to specifically claim that he was mentally incompetent when he pleaded guilty. Judge Franks held hearings on Nara’s incompetency claim and heard testimony from him and Dr. Jobindar Harika, 5 a forensic psychiatrist who met with Nara and thoroughly reviewed his medical records. Harika opined that Nara was probably “psychotic” and incapable of entering a plea. The Commonwealth did not present rebuttal testimony. Judge Franks, in a memorandum opinion, concluded Nara was incompetent when he pleaded guilty, based on “the totality of the circumstances,” and Hari-ka’s “quite convincing” and “unrebutted testimony.” 6 Judge Franks issued an or *192 der allowing Nara to withdraw his guilty pleas, and the Commonwealth appealed.
On April 30, 1992, the Superior Court reversed, vacated Judge Franks’ order, and reinstated Nara’s guilty pleas. The Superior Court held that Nara (1) waived his incompetency claim by failing to raise it in his first post-conviction petition pursuant to PCRA § 9544(b); 7 (2) failed to show his claim was not previously litigated and not waived pursuant to PCRA § 9543(a)(3); and (3) waived his right to withdraw his guilty pleas by failing to challenge their validity within ten days, according to Pa. R.CRIM. P. 321 (now Pa. R.Crim. P. 720). Nara appealed. The Pennsylvania Supreme Court denied allo-catur and the United States Supreme Court denied certiorari, 8
3. Third Posl^Conviction Relief Proceeding
On December 21, 1995, Nara filed a third pro se petition, alleging, inter alia, that he was incompetent when he entered his guilty plea. Judge Franks appointed Phyllis Jin, Esq., to represent Nara. Franks permitted Nara to withdraw his third PCRA petition in favor of a motion to withdraw his guilty pleas nunc pro tunc. Judge Franks, following the Superior Court’s previous ruling, found Nara waived his incompetency claim because he failed to challenge his guilty plea within ten days of making it, and denied the motion. Nara appealed, claiming he should have been allowed to withdraw his guilty pleas nunc pro tunc because Judge Franks had previously found him incompetent. 9 Appendix at 664. The Superior Court affirmed, and the Pennsylvania Supreme Court denied allocatur.
C. Federal Habeas Corpus Proceedings
On December 12, 1998, Nara filed a pro se petition for a writ of habeas corpus in the U.S. District Court for the Western District of Pennsylvania. The District Court referred the case to Magistrate Judge Francis X. Caiazza, who issued a report and recommendation (R & R) recommending that the District Court dismiss Nara’s petition because Nara failed to file his petition within the Anti-Terrorism and Effective Death Penalty Act’s one-year statute of limitations. See 28 U.S.C.A. § 2244(d) (2006). Over Nara’s objections, the District Court adopted the R & R and denied his petition as untimely.
Nara appealed, and we remanded the cause to the District Court for a hearing on whether Nara’s “ongoing periods of mental incompetence” and allegations that Ms. Jin abandoned him following his appeal to the Pennsylvania Supreme Court, justified equitably tolling the statute of limitations.
Nara v. Frank,
Magistrate Judge Caiazza held eviden-tiary hearings on the matter and found Ms. Jin “affirmatively misled” Nara and thereby prevented him from timely filing his petition for habeas corpus.
Nara v. Frank,
No. 99-5,
On September 1, 2005, Magistrate Judge Caiazza filed an extensive R & R in which he concluded (1) Nara exhausted his incompetency claim by “fairly presenting” it to each level of the Pennsylvania judiciary; (2) his incompetency claim was not procedurally defaulted; (8) the second PCRA court’s conclusion that Nara was incompetent to plead guilty was entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1); and (4) Nara’s federal due process rights were violated when he entered his guilty pleas because he was mentally incompetent.
The Magistrate Judge recommended that the District Court grant the petition, allow Nara to withdraw his guilty pleas, and direct the Commonwealth to release him unless it commenced trial within 120 days. In accordance with the Federal Magistrate Judges Act, 28 U.S.C. § 636(b)(l)(B)-(C), the R & R provided the parties ten days in which to file objections. The R & R ended with the routine warning that, “Failure to file timely objections may constitute a waiver of any appellate rights.” See, e.g., Fed.R.Civ.P. 72(b) advisory committee’s note.
Neither party filed objections to the R & R. On September 27, 2005, the District Court noted that no objections were filed, adopted the R & R, and issued the recommended order. Over two weeks later — on October 14 — the Commonwealth filed a motion with the District Court requesting vacatur pursuant to Fed.R.CivP. 60(b). The Commonwealth asserted it never received the R & R and requested ten additional days in which to file objections. In response, Nara suggested the District Court grant the Commonwealth ten days to file objections to the R & R, but only if its objections persuaded the court to either reject or amend the R & R. On October 26, before the District Court could rule on the parties’ respective motions, the Commonwealth filed a notice of appeal. 10 The District Court dismissed the Commonwealth’s October 14 motion as moot.
II. Jurisdiction
The District Court exercised jurisdiction over Nara’s petition for habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a).
III. Standard of Review
A.
Where the District Court relies entirely upon the state court record, we review its decision granting habeas corpus
de novo. Satterfield v. Johnson,
Federal Rule of Civil Procedure Rule 60(b)(1) permits a District Court to grant a party relief from a final judgment based upon,
inter alia,
“excusable neglect.” Fed.R.Civ.P. 60(b) (2007). The test for “excusable neglect” is equitable, and requires us to weigh the “totality of
*194
the circumstances.”
Welch & Forbes, Inc. v. Cendant Corp.,
There is no evidence the Commonwealth acted in bad faith. Nevertheless, the Commonwealth’s overall negligence in handling the matter precludes us from finding “excusable neglect.” First, the District Court found that the Magistrate Judge served the R & R upon Mr. Nara and the Commonwealth’s attorneys by first-class mail. The Commonwealth has presented no evidence to the contrary. Second, attorneys practicing in the Western District of Pennsylvania were under a standing order to register with the Case Management/Electronic Case Files (CM/ECF) system by July 1, 2005. 11 If the Commonwealth’s attorneys had complied with that order, they would have received immediate electronic notification that the Magistrate Judge had issued the R & R and could have accessed it by hyper-link. 12 Finally, the Commonwealth failed to respond to the District Cowl’s order for 17 days. Despite the urgency of the situation, the Commonwealth has offered no excuse for this latter delay. We cannot conclude the Commonwealth’s failure to object to the R & R for over six weeks was excusable.
B.
It is well-settled that a right, constitutional or otherwise, “may be forfeited in criminal as well as civil cases by the failure to make a timely assertion of the right before a tribunal having jurisdiction to determine it.”
United States v. Olano,
Article III requires
de novo
review of a magistrate judge’s R & R where a party timely objects.
Peretz v. United States,
In
Henderson,
we considered whether the Government waived its right to appeal by failing to make a timely objection to a magistrate judge’s recommendation that the district court grant habeas relief to a federal prisoner. We recognized our authority to adopt a waiver rule under
Thomas v. Arn,
Soon after
Henderson,
we held that a party who does not appeal a magistrate judge’s non-dispositive order (under 28 U.S.C. § 636(b)(1)(A)) to the district court waives its right to seek review of the order in the Court of Appeals.
United Steelworkers of Am. v. New Jersey Zinc Co., Inc.,
Six other courts of appeals apply a waiver rule against untimely objections to a dispositive order or R & R.
Henley Drilling Co. v. McGee,
Other courts of appeals have adopted more lenient qualified forfeiture rules, like the one we adopted in
Henderson. Douglass v. United Services Auto. Ass’n,
The Fifth Circuit Court of Appeals’ analysis in
Douglass
persuades us that we should review unobjected-to R & Rs, as adopted by a district court, for plain error. First, the
Douglass
court explained its conversion to the plain error standard it now employs.
Douglass,
We conclude plain error review is appropriate where a party fails to timely object to a magistrate judge’s R & R in habeas corpus cases. First, plain error review recognizes the difference between failing to timely assert a right, and voluntarily waiving a right. Failing to timely assert a right results in forfeiture, which permits plain error review.
United States v. Olano,
By employing plain error review, we remain faithful to Henderson by using a straight-forward, frequently-applied standard of review which preserves appellate consideration of dispositive legal issues. In addition, we add precision to Henderson and give substance to the oft-repeated warning that “failure to timely object may risk the loss of appellate rights.”
The Commonwealth argues that we should nonetheless review the R & R de novo, because the District Court reviewed the R & R de novo. See
Henderson,
Finally, as explained supra, the Commonwealth’s failure to object was not caused by forces outside its control. The Commonwealth attorneys were on notice that (1) the Western District required all practicing attorneys to register to use the CM/ECF system; and (2) failure to object to an R & R risked the loss of appellate rights. If the Commonwealth’s attorneys had complied with the Western District’s standing order, they would have had immediate notice of the R & R’s filing and access to it.
IV. Discussion
A. Exhaustion
Under the plain error standard, we should only reverse the District Court’s
16
decision if it made a plain error which affects “substantial rights.”
United States v. Olano,
First, the Commonwealth argues the District Court erred by concluding Nara exhausted his state court remedies with respect to his incompetency claim. The federal habeas statute requires state prisoners to exhaust available state court remedies before seeking federal relief. 28 U.S.C.A. § 2254(b) (2006);
O’Sullivan v. Boerckel,
A claim is exhausted if it was “fairly presented” to the state courts.
Baldwin v. Reese,
Nara’s incompetency claim arises under the Due Process clause of the Fourteenth Amendment. Due process prohibits a court from accepting a guilty plea unless it is entered “competently,” “knowingly and voluntarily.”
Godinez v. Moran,
Following his second PCRA petition,
18
Nara gave the Pennsylvania courts a full opportunity to address his federal incompetency claim by repeatedly stating his claim “in terms so particular as to call to mind a specific right protected by the Constitution.”
McCandless v. Vaughn,
B. Procedural Default
The procedural default doctrine prohibits federal courts from reviewing a state court decision involving a federal question if the state court decision is based on a rule of state law that is independent of the federal question and adequate to support the judgment.
Gray v. Netherland,
1. Former Pa. R.CRiM. P. 321
Nara’s first purported procedural default occurred when he failed to file a motion to challenge his guilty plea within ten days of entering it, pursuant to former Pa. R.CRiM. P. 321. The Superior Court first noted this alleged waiver following his second PCRA proceeding. Appendix at 583. His third petition for relief was denied based upon Pa. R.Crim. P. 321. Pennsylvania courts, however, have consistently held rules of waiver inapplicable to incompetency claims.
Com. v. Brown,
2. 42 Pa. Con. Stat. Ann. § 9544(b)
Following his second petition, the Superior Court held that Nara waived his incompetency claim by failing to raise it in his first post-conviction petition pursuant to 42 Pa, Con. Stat. Ann. § 9544(b). As we have noted, Nara did raise his incompetency claim in his first petition. Regardless, even after the enactment of the PCRA, Pennsylvania courts did not consistently bar successive post-conviction petitions— like Nara’s—which allege prior counsel was ineffective.
See, e.g., Com. v. Allen,
*200
3. 42 Pa, Con. Stat. Ann. § 9543(a)(3)
Finally, following his second petition, the Superior Court held that Nara was ineligible for post-conviction relief under 42 Pa. Con. Stat. Ann. § 9543(a)(3). Section 9543(a)(3) bars post-conviction relief unless a petitioner can show his claim was not previously litigated and was not waived. When Nara brought his second PCRA petition, his incompetency claim was not “previously litigated” because the Superior Court did not reach the merits.
Com. v. Morales,
Nara’s incompetency claim was not procedurally defaulted, because Pennsylvania courts have frequently applied exceptions to his alleged waivers under former Pa. R.Cpjm. P. 321 and the PCRA. The Pennsylvania appellate courts’ refusal to review his incompetency claim on the merits was not consistent with Pennsylvania law. We therefore proceed to the merits of his claim.
C. Nara’s Competency
1. Presumption of Correctness
The District Court accorded a presumption of correctness to the second PCRA court’s determination that Nara was incompetent under 28 U.S.C. § 2254(e)(1). Section 2254(e)(1) provides, in relevant part:
In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
28 U.S.C.A. § 2254(e)(1) (2006);
Demosthenes v. Baal,
The Commonwealth argues the District Court should not have applied the presumption of correctness to the second PCRA court’s findings because there was no “adjudication on the merits” of Nara’s incompetency claim. We disagree. First, the § 2254(e)(1) presumption of correctness applies regardless of whether there has been an “adjudication on the merits”
*201
for purposes of § 2254(d).
Appel v. Horn,
Finally, there is a “familiar and compelling” justification for according presumptive weight to Judge Franks’ determination.
Miller v. Fenton,
Face to face with the living witnesses, the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases, the exercise of his power of observation often proves the most accurate method of ascertaining the truth ... how can we say he is wrong? We never saw the witnesses.
Boyd v. Boyd,
The Commonwealth contends the District Court should not have relied upon the second PCRA court’s factual findings because the Pennsylvania Superior Court vacated the court’s decision. When an appellate court vacates a lower court’s order, it renders the lower court’s order null and void.
United States v. Ayres,
2. Rebuttal of the Presumption
Application of the presumption of correctness raises the question of whether the federal habeas statute allows the Commonwealth to rebut the presumption. The statute provides habeas applicants an opportunity to challenge a state court’s factual determination by “clear and convincing evidence.” 28 U.S.C.A. § 2254(e)(1) (2006). It is silent as to whether a state can rebut the presumption. Generally, where a statute authorizes a designated party to take specific action, it is inappropriate to presume that a party not so designated may also take it.
Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,
As stated
supra,
the standard for competency to plead guilty is whether the criminal defendant was able to consult with his lawyer with a reasonable degree of rational understanding and whether he had a rational understanding of the nature and object of the proceedings against him.
Godinez,
Under Pennsylvania law, a guilty plea may nonetheless be withdrawn, after a sentence has been imposed, on a showing of manifest injustice.
Com. v. Leidig,
During his plea colloquy, Nara repeatedly indicated he understood what was transpiring. See, e.g., Appendix at 112, 120, 124. The “totality of the circumstances,” reflected in Nara’s medical records and Dr. Harika’s testimony, however, suggests otherwise. Nara’s medical rec *203 ords indicate he was hospitalized and medicated 19 at state mental health institutions following suicide attempts both before his arrest and shortly after his sentencing, but was apparently left untreated during the intervening months. Indeed, his condition during the four months prior to the plea colloquy, and during the weeks prior to sentencing, is entirely undocumented.
Dr. Harika’s expert testimony provided essential insight into Nara’s mental state during this undocumented period. Dr. Harika analyzed Nara’s medical records and his statements at the plea colloquy, and testified that Nara’s condition steadily worsened such that he was “psychotic” and “out of touch with reality” when he pleaded guilty. The Commonwealth failed to rebut his testimony, and has not presented any additional evidence to contradict Hari-ka’s testimony in subsequent proceedings. Finally, we again emphasize the fact that Judge Franks, who conducted an 85-min-ute colloquy with Nara and held hearings during three separate post-conviction proceedings, ultimately found Nara was incompetent when he pleaded guilty and never reversed this finding. We find no plain error in the District Court’s conclusion that Nara was incompetent when he pleaded guilty. 20
V. Conclusion
In sum, because the Commonwealth failed to timely object to the Magistrate Judge’s R & R, we have reviewed the R & R, as adopted by the District Court, for plain error.
We find no plain error in the District Court’s conclusion that Nara “fairly presented” his incompetency claim to each level of the Pennsylvania judiciary. Nor did it err by according a presumption of correctness to Judge Franks’ competency determination. Finally, we find no plain error in the District Court’s conclusion that Nara’s guilty pleas were accepted in violation of due process.
We will affirm the District Court’s order.
Notes
. The Pennsylvania legislature replaced the PCHA with the Post Conviction Relief Act (PCRA) 12 days before Nara filed his petition. Nara’s appointed counsel, Mr. Bower, did not amend Nara’s petition to comply with the PCRA.
. We previously noted Franks apparent error in
Nara v. Frank,
. The Superior Court held that Nara failed to argue that Gentile’s alleged errors undermined the reliability of his conviction or how those errors harmed him. Appendix at 433.
. Morrison represented Nara before the PCRA court, the Superior Court, the Pennsylvania Supreme Court, and the United States Supreme Court.
. At the time, Dr. Harika had worked in psychiatry for eight years. He spent four years at the Behavioral Clinic of Allegheny County, two years on staff at the Woodward State Hospital, and spent four years as a director at the Forensic State Hospital from 1986-1990. Harika was also a consultant to the Cambria County Jail, the Westmoreland Correction Center, the Somerset County Jail, and the Fayette County Prison. He previously testified in Pittsburgh and Washington county proceedings.
. Under Pennsylvania law, once a plea has been entered and sentence imposed, a guilty plea may be withdrawn on a showing of manifest injustice, which may be established if the plea was not knowingly and voluntarily given.
Com. v. Leidig,
. As noted supra, Nara raised his incompetency claim in his first pro se petition, but Judge Franks failed to address it.
. Nara raised his incompetency claim in his petition for allowance of appeal, Appendix at 830, and in his petition for certiorari, Id. at 586.
.Nara made the same claim to the Pennsylvania Supreme Court. Appendix at 706.
. In its reply brief, the Commonwealth asserts it filed its notice of appeal “in an abundance of caution” due to the fact that nearly 30 days had expired since the District Court issued its judgment and order.
. In early 2001, the federal courts began implementing the Case Management/Electronic Case Files (CM/ECF). Under the program, federal courts and parties file and issue all documents electronically (with certain exceptions for pro se prisoners, etc.). Attorneys of record receive email notices, containing hyperlinks to documents, immediately upon every filing. The Western District announced its adoption of the program in the fall of 2004 and, on April 20, 2005, issued a standing order making the program mandatory, effective July 1, 2005. See Amended Standing Order, Misc. No. 05-6 (W.D.Pa.2006).
. The Commonwealth’s Attorneys based in Harrisburg were required to register in the Middle District of Pennsylvania in 2003. See Standing Order No. 07-01 (M.D.Pa.2007).
.
Before
Henderson,
we declined to adopt a waiver rule where the magistrate judge’s report treated filing of objections as permissive.
Welch v. Heckler,
. The Seventh Circuit does not apply its appellate waiver rule where untimely objections are not "egregiously late” and the opposing party has not been prejudiced.
Hunger v. Leininger,
. The D.C. Circuit Court of Appeals has apparently never adopted a specific rule.
Powell v. United States Bureau of Prisons,
. We now refer to the Magistrate Judge’s conclusions as those of the District Court because it adopted the R & R in its entirety.
. The Commonwealth suggests the Supreme Court’s decision in
Baldwin v. Reese
may have limited the viability of the
McCandless
analysis. We disagree.
Baldwin
held that, "ordinarily a state prisoner does not fairly present a claim to a state court if that court must look beyond a petition or a brief (or similar document) that does not alert it to the presence of a federal claim in order to find material, such as a lower court opinion, that does so."
Baldwin,
. We turn to Nara’s second petition for exhaustion purposes because he failed to "fairly present” his incompetency claim to the Superior Court following the first post-conviction proceeding. He did, however, present the claim throughout the proceedings following his second and third petitions.
. Nara was treated with several anti-depressants and tranquilizers used to treat schizophrenia before the murders and throughout the two years after his sentencing.
. Even if we were to find an obvious error on the part of the District Court, the Commonwealth has failed to show that any such error has "seriously affected the fairness, integrity or public reputation of judicial proceedings.” The Commonwealth had a full opportunity to challenge Dr. Harika’s testimony during the second PCRA proceeding, and it has been afforded a full and fair opportunity to pursue its arguments.