387 F.3d 210 | 3rd Cir. | 2004
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
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 up and down the state and federal justice 1. The Sweatpants . . . . . . . . . 35 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 possibility of parole for first degree
b. “Switching” Evidence . 39 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 Lambert guilty at a bench trial held in July
a. Knowing Use of Perjured of 1992. Testimony . . . . . . . . . . 44 Lambert initially appealed her b. Suppression of Brady conviction in the Pennsylvania state Material . . . . . . . . . . . . 49 courts, which rejected her claims on direct 3. The “29 Questions” . . . . . . 51 appeal. She thereafter filed a petition for a writ of habeas corpus in federal district
4. The Crime Scene court. After holding a hearing over the Photographs . . . . . . . . . . . . 54 course of three weeks, Judge Stewart 5. The Dying Declaration . . . 57 Dalzell of the Eastern District of Pennsylvania found Lambert “actually
6. The DA’s Contact with innocent” and granted her petition. He Lambert’s Trial Expert . . . 59 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 the District Court’s judgment due to
b. Knowing Use of Perjured Lambert’s failure to exhaust her available Testimony . . . . . . . . . . 67 state court remedies, namely collateral 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.
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. 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 Appendix (“Appellate App.”) refer to the
Our role is not, of course, to appendices the parties submitted on appeal determine the veracity of either account. to this Court. Rather, we are confined to ascertaining 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. 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 looking for her because she had assaulted [4] Sergeant Carl Harnish of the Show. She also told him that Show was Pennsylvania State Police testified that going to charge Yunkin with rape and that upon her arrest Lambert admitted that she “she was going to get Laurie.” App. 793. had physically assaulted Show in July of 1991.
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 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. it. [7] In the statement, Lambert admitted that stabbed in the back, causing a hissing 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 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 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]
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).
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 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. 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
d e g r e e m u r d e r b e c a u s e t h e 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 e v i d e n c e ” — e v i d e n c e t h a t t h e him at or about the time of Commonwealth revoked Yunkin’s plea t h e m u r d e r , w h i c h 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”
Mr. Yunkin’s story Lambert. Specifically, the Court sentenced that he was not present at Lambert only on the first degree murder the time of the killing was charge even though she had also been also supported by the convicted of criminal conspiracy. As a neighbors who saw two result, the appeal period from a judgment figures of about the same of conviction from the criminal conspiracy height walking together charge had not expired. The parties (and across a large grassy area the Court) apparently agreed that this from the Show residence allowed Lambert to introduce new toward the road. By height evidence and seek a new trial. See App. and build they matched, 2038; PCRA Decision 7 n.6. 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 w a s s u p p o r t e d b y J u d g e D a l z e l l d e f e r r e d 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
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
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
d e c i s i o n , t h e P C R A C o u r t ’ 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. 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 COA. Because the District Court relied [16] Only Lambert’s appeal must exclusively on the state court record and satisfy the certificate of appealability did not hold an evidentiary hearing, our standard. See Fed. R. App. P. 22(b)(3) (“A review is plenary. See Moore v. Morton, certificate of appealability is not required 255 F.3d 95, 103 (3d Cir. 2001). when a state or its representative appeals.”); Lambert v. Blackwell, 134
III. DISCUSSION
F.3d at 512 n.15. We exercise jurisdiction Lambert and the Commonwealth over the Commonwealth’s cross-appeal raise numerous issues in their cross- under 28 U.S.C. §§ 1291 and 2253. The appeals and offer several arguments, often Commonwealth challenges certain of the in the alternative, supporting their District Court’s legal conclusions, over respective positions. We first address the which we exercise plenary review. Id. at Commonwealth’s arguments that we 512. 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 , w e a l s o r e j e c t t h e 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] 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 s t a t e c o u r t h a s 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 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 s h a l l b e e f f e c t i v e 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 F u r t h e r , w e h e r e b y 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
(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 (6 th 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 (9 th 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 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. White, 232 F.3d 671, 672 n.3 (9 th Cir. state court (1) “identifies the correct 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 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, proceed 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 (9 th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 951 n.17 (5th Cir. 2001). [19] The two circuits that have considered the interplay between section We therefore read § 2254(d)(2) and 2254(d)(2) and (e)(1) have intimated two § 2254(e)(1) together as addressing two slightly different approaches to resolving 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 court findings. Second, before the writ can
We adopt no rigid approach to be granted, petitioner must show an habeas review of state fact-finding. In unreasonable determination -- under (d)(2) some circumstances, a federal court may -- in light of the entire record in the wish to consider subsidiary challenges to original state court trial. individual fact-finding in the first instance 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.’” 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 pre-AEDPA federal habeas statute.
Christianson v. Colt Industries Operating 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 finding, opinion, or other reliable and Lambert’s argument that the adequate indicia.” Carpenter v. Vaughn, District Court abused its discretion need 296 F.3d 138, 149 (3d Cir. 2002) . This not detain us long. “[A] district court's presumption did not apply if the petitioner adherence to law of the case cannot established, inter alia, that (i) “the insulate an issue from appellate review.” factfinding procedure employed by the Christianson, 486 U.S. at 817. Conversely, State court was not adequate to afford a a district court’s decision not to adhere to full and fair hearing,” 28 U.S.C. § a coordinate court’s previous decision 2254(d)(2) (1994) (superseded); or (ii) cannot prevent us from deciding the issue “the State court lacked jurisdiction of the on the merits. Whether the District Court subject matter or over the person of the followed the first habeas court’s ruling or applicant in the State court proceeding ,” came to its own contrary conclusion (as it 28 U.S.C . § 2254(d )(4) (1994) did), we would still have to determine (superseded) . [22] what the correct decision is. See Tischmann v. ITT/Sheraton Corp., 145 F.3d 561, 564-65 (2d Cir. 1998). The law Her jurisdiction and cross-examination of the case doctrine is irrelevant to our arguments, of course, do not apply to decision. What matter are the merits.
those findings. [21] Lambert does not argue that we 2 2 The pre-AEDPA should not afford deference to Judge statute Stengel’s findings made at the trial level. provided, in relevant part:
(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 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 a p p l i c a n t , o t h e r w i s e 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 i n t h e S t a t e c o u r t 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). that were in the old statute but not in the state court properly exercised its
jurisdiction. [23] new one will be read back into it by the courts.”).
Similarly, the procedures a state court applies when adjudicating a On its face, therefore, the amended habeas statute appears to obviate any need petitioner’s claims may also be relevant during habeas review. The extent to which to consider Lambert’s jurisdictional and a state court afforded a defendant adequate procedural arguments against our deferring procedural means to develop a factual to the PCRA Court’s determinations; record—whether the defendant was AEDPA eliminated the threshold language eliminating the presumption of correctness afforded a “full and fair hearing,” to put it in the parlance of the pre-AEDPA when “the State court lacked jurisdiction” statute—may well affect whether a state or “the factfinding procedure employed by the State court was not adequate to afford court’s factual determination was “reasonable” in “light of the evidence a full and fair hearing.” We decline to presented in the State court proceeding” or conclude, however, that state court jurisdiction or procedures are entirely whether the petitioner has adequately rebutted a presumption that the state irrelevant in a federal court’s habeas court’s determination is correct. See review of state court determinations.
Taylor v. Maddox, 366 F.3d 992, 1000-01 Even under AEDPA, federal courts (9 th 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.
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 c t i o n s e x c e p t i n r a r e We need not comprehensively or circumstances.’” Humanik v. Beyer, 871 F.2d 432, 436 (3d Cir. 1989) (quoting exhaustively address how deeply a federal Mullaney v. Wilber, 421 U.S. 684, 691 habeas court may plumb the adequacy of state court jurisdiction and procedures in (1975)). We reiterated this point in Johnson v. Rosemeyer, where we deciding how to apply section 2254(d) and (e)(2). We conclude in the particular summarized our precedent as counseling that “a federal court in a habeas case must circumstances of this case that no be most circumspect in re-examining state jurisdictional concerns obviate the application of AEDPA’s deferential c our t decisio ns,” a nd “ onl y in extraordinary circumstances should a scheme of review. Nor do any procedural federal district court in a habeas corpus issues lower the level of deference we 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 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 federal bankruptcy statute’s automatic stay to retain and exercise jurisdiction. The provisions. See Raymark Indus., Inc. v. Superior Court’s opinion concluded by stating: “Based upon the foregoing, we Lai, 973 F.2d 1225, 1132 (3d Cir. 1992) (construing In re James). We reached that hold that Appellant has not met her burden conclusion because an automatic stay under the PCRA statute. Accordingly, we 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. the Court’s factual determinations. [26] That contends that the PCRA Court’s credibility determination are not worthy of d e f e r e n c e b e c a u s e “ c r e d i b i l i t y 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 [ T ] h e P C R A c o u r t proposition that cross-examination permitted counsel to defend provides “the principal means by which
Appellant's rights with zeal, the believability of a witness and the truth bringing to the attention of of his testimony are tested.” Davis v.
the court all of the errors Alaska, 415 U.S. 308, 316 (1974). 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 (7 th 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”
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. evidence that was not before that court, Napue v. Illinois, 360 U.S. 264, 269 (1959); Pyle v. Kansas, 317 U.S. 213, 216 namely evidence developed at the PCRA (1942); Mooney v. Holohan, 294 U.S. proceedings. Thus, when reviewing trial court factual determinations, we first 103, 112 (1935). In United States v. Agurs, the Supreme Court characterized determine whether they were reasonable in this line of cases as finding it light of the record before the trial court. If fundamentally unfair to the accused where reasonable, we then look to whether “the prosecution’s case includes perjured Lambert has rebutted the finding with testimony and [] the prosecution knew, or clear and convincing evidence adduced at should have known, of the perjury.” 427 the PCRA hearing.
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 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 w h a t ’ s b e e n m a r k e d 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 w h a t ’ s b e e n m a r k e d 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. 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, p e r h a p s t o b e m o r e (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 c o n s i s t e n t w i t h t h e 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. Yu nkin Mr. Jeffries: (Complying admitted from the stand he with the request.) wore those sweat pants to
bed. Lisa Lambert, in her 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 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 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.
Groose, 205 F.3d 1045 (8 th Cir. 2000), and blood prior to trial in 1992 and that he Thompson v. Calderon, 120 F.2d 1045 (9 th found no presence of blood when he 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 regarding the same crime.” 120 F.3d at [28] 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. and rendered his trial fundamentally implausibility of the state's unfair.” 205 F.3d at 1051. account of the murder. The
S u p e r i o r C o u r t a n d 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 argument in
Id. at 238. Gattis v. Snyder, 278 F.3d 222 (3d Cir. 2002). There, we explained: Similarly, and more importantly,
habeas proceedings are not the appropriate The fundamental flaw in forum for Lambert to pursue claims of Gattis' argument is that in error at the PCRA proceeding. As we the decisions of which he explained in Hassine v. Zimmerman, 160 complains the state courts F.3d 941 (3d Cir. 1998): did not “uphold [his] conviction on a charge that The federal courts are was neither alleged in an a uthor iz ed to provid e indictment nor presented to collateral relief where a a jury at trial.” [Dunn, 442 petitioner is in state custody U.S. at 106]. The allegedly or under a federal sentence different theory of guilt was imposed in violation of the not presented on direct Constitution or the laws or appeal in support of his treaties of the United States. conviction but in the course 28 U.S.C. §§ 2254, 2255. of a post-conviction hearing Thus, the federal role in held in connection with his reviewing an application for claim that counsel was habeas corpus is limited to ineffective for failing to evaluating what occurred in present expert testimony t h e s t a t e o r f e d e r a l c o n c e r n i n g t h e proceedings that actually led t o t h e p e t i t i o n e r ' s that she had seen Yunkin driving through conviction; what occurred in the Show condominium complex with two the petitioner's collateral passengers the morning of Show’s murder. proceeding does not enter Lambert argues this evidence shows that into the habeas calculation. the Commonwealth knowingly used We have often noted the perjured testimony, namely Yunkin’s general proposition that testimony that he never drove within the habeas proceedings are condominium complex that morning. She “hybrid actions”; they are also argues that the Commonwealth’s “ i n d e p e n d e n t c i v i l failure to disclose Bayan’s statement prior dispositions of completed to the trial violated Brady v. Maryland, c r i m i n al proc eedin g s .” 373 U.S. 83 (1963). Federal habeas power is
The circumstances surrounding “limited . . . to a Bayan’s statement were thoroughly determination of whether canvassed at the PCRA hearing. Bayan there has been an improper testified that on July 5, 1992, soon before detention by virtue of the Lambert’s trial began, Detective Ronald state court judgment.” Savage of the East Lampeter Township Id. at 954-55 (internal citations omitted); Police Department called her to discuss a see also Morris v. Cain, 186 F.3d 581, 585 matter regarding her son. During the n.6 (5 th Cir. 1999); Williams-Bey v. conversation, Bayan (who lived in the Trickey, 894 F.2d 314, 317 (8 th Cir. 1990).
same condominium complex as Show) told To be sure, error in state collateral Savage that on December 20, 1991 she had proceedings may affect the deference we seen a light-haired young man driving with owe the court’s findings under § 2254(d) two passengers along the road she lived on and 2254(e)(1). But, as we admonished in within the condominium complex. Hassine, alleged errors in collateral
Savage visited Bayan two days later proceedings, such as Lambert’s claim that to take a statement from her. Bayan told the prosecution “switched” the sweatpants, him that as she was pulling out of her are not a proper basis for habeas relief driveway on Black Oak Drive, a circular from the original conviction. It is the road that passed through the condominium original trial that is the “main event” for complex, she saw three individuals drive habeas purposes. by in a brown car. The passengers were 2. Evidence of Yunkin’s talking and appeared to be in conflict, and Location During the Murder the young man driving the car pushed down the head of the person sitting in the Prior to the trial, an individual front seat. Bayan provided a written named Kathleen Bayan gave a statement to statement that provided, in relevant part: a Commonwealth investigator indicating . . . . On pulling out F r o m o b s e r v i n g of my drive (at 43 Black glimpses of their faces the Oak Drive) I observed a people in the car were of brown “patchwork coupe” High School age or very (mid 70's?) That looked like young adults (16-22). i t m i g h t b e i n t h e
There were no Ford/Mercury line. There headlights on, it was dawn were three people inside. and it was light enough to The person driving appeared see clearly. to have light hair. And the two passengers had dark The two passengers c l o t h i n g . W h a t I had on navy or black tops r em e m be r e d w a s t h e and I could not see their hair movement inside the car. yet it was all dark like their One passenger was in the clothing. So I would deduct back [and] one in the front. that it was a hood. The The person in the front driver was male, but the leaned over the seat toward p a s s e n g e r s w e r e n o t the back and arms were decernable [sic] as either moving all over. The driver sex. would turn sideways during
The car had patches this time. where it may have had The driver also was primer on it or a try at going too fast for the curves matching the paint of and was not driving in a “coppery brown”. It really straight line. I remember looked so out of place in our thinking that the car looked condo. out of place in the
I am almost positive condominiu m and that (99.5%) that I recollect this whoever was in it acted car passing my cul de sac drunk for 7 A.M. while I was waiting to pull I left an extra couple out. The brown car was of car lengths between the moving faster than our brown car and mine. It residents drive and took the e x i t ed T h e Oaks o n curve at Sycamore Drive Oakview Rd. To the light at sharply. (There is a small 462 then made a right and chance that the vehicle went straight (?) down 462 could have made a U turn at (sort of swerving). the end of Sycamore Drive and that is where the car got credible because he thought she had in front of me. But either emotional problems. Kenneff sent a letter way I remember thinking to Lambert’s counsel, Roy Shirk, stating: that the driver was not “It is my understanding that it is the driving safely.) defense contention that on December 20,
1991, shortly after 7:15 a.m., Yunkin I had never seen the picked up Lambert at the wooded area near car in the complex before. the intersection of the driveway to the There were no other cars Oaks Apartment Complex and Oakview pulling out of the complex Road. If my understanding is correct during this time. please advise.” Appellate App. 1620. I did not see their Kenneff testified that he sent this letter in faces clearly because of the order to determine whether he had an distance, dirty windows, and obligation to disclose Bayan’s statement. I have a perceptual disability
Kenneff knew that Yunkin planned that limits my span of focus to testify that he picked up Lambert and (i.e. when I look at a license Buck on Oak View Road— outside the plate and focus on the first condominium complex—and Bayan’s letter, I cannot tell what the statement was therefore inconsistent with last 3 figures are). . . . Yunkin’s planned testimony. But Kenneff I would like to believed, according to his testimony, that apologize for not contacting he had no obligation to disclose Bayan’s you all sooner. At first, I did statement unless it corroborated the not realize there was a version of events Lambert planned to offer connection. Then when I at trial. And all the evidence other than did, the suspects were Bayan’s statement— including Lambert’s arrested [and] from what I statement to the police upon her read in the papers, there arrest—indicated that Yunkin had picked appeared to be enough Lambert and Buck up outside the evidence. condominium complex. As a result, he did
not tell Shirk about the statement. Appellate App. 1613-15. Bayan testified at the PCRA hearing that she accidentally a. Knowing Use of omitted from her statement that she saw Perjured Testimony the driver push down one of the
Lambert’s first argument based on passenger’s heads. Bayan’s statement is that since the Savage testified that he gave the statement placed Yunkin in th e written statement to John Kenneff and told condominium complex and Yunkin Kenneff that he believed Bayan was not testified that he never entered the complex, the government knowingly elicited we explained above, in order to sustain a perjured testimony from Yunkin. Lambert claim of constitutional error Lambert must would, in effect, have us find a due show that Yunkin actually perjured process violation anytime a prosecutor himself and the government knew or elicits testimony that contradicts testimony should have known of his perjury. These that the defense elicits. Discrepancy is not are factual determinations. See, e.g., Ortiz
v. Stewart, 149 F.3d 923, 936-37 (9 th Cir. enough to prove perjury. There are many reasons testimony may be inconsistent; 1998) (finding no constitutional violation perjury is only one possible reason. [29] As because of factual finding that testimony
was not perjured); United States v. Caballero, 277 F.3d 1235, 1244 (10 th Cir. 2002) (finding no constitutional error [29] This principle is illustrated by the because of “the absolute lack of evidence (perhaps apocryphal) anecdote told about to show either the falsity of [the witness’s] the legendary English barrister—later testimony or the prosecutor's knowledge of Lord Chancellor—F.E. Smith. Smith, then false testimony”). [30] a young lawyer, was charged with assault on a police officer arising out of an
The PCRA Court declined to altercation at Oxford. Defending himself conclude that Yunkin perjured himself at trial, Smith denied kicking the officer. because the lion’s share of evidence The prosecutor challenged th e inconsistency between Smith’s testimony
the fifth is that the two and that of the policeman, asserting Smith assertions though apparently was necessarily accusing the latter of contradictory can none the perjury. less be reconciled. As related by an observer at trial Viscount Simon, Retrospect 36 (John Simon, also a future Lord (Hutchinson 1952), quoted in John Chancellor): Campbell, F.E. Smith 77 (Pimlico 1991). On the contrary, said F.E. sweetly, that is one of [30] In the Supreme Court cases five possible explanations. establishing a due process violation for
knowing use of perjured testimony, it was . . . undisputed that the testimony at issue was One is that he is false and the prosecution knew of its committing perjury; the falsity. See, e.g., Napue, 360 U.S. at 269. second is that I am Thus the Supreme Court has not addressed committing perjury; the the level of prosecutorial knowledge third is that he is honestly necessary to constitute a constitutional mistaken; the fourth is that I violation. See Drake v. Portuondo, 321 am honestly mistaken; and F.3d 338, 345 (3d Cir. 2003).
corroborated Yunkin’s testimony. PCRA Decision 175. We conclude that the
regarding Buck’s credibility: PCRA’s Court’s decision was reasonable. Ms. Buck has In reaching its conclusion, the nothing to gain by lying PCRA Court considered Lambert’s about Ms. Lambert’s statement to the police upon her arrest, involvement in the death of testimony from three condominium Laurie Show. In her complex residents, and Buck’s testimony testimony at the PCRA, she at the PCRA hearing. After the police had the candor and the arrested Lambert the day of Show’s d e c e n c y t o a c c e p t murder, she gave a statement consistent responsibility for her own with being picked up on Oak View Road. role in the killing. She She stated that after leaving Show’s knows that she blocked apartment she ran through “two fields” and Laurie Show’s path as a “patch of woods,” stepped in a creek Laurie tried to escape. She (“like a little runoff”), fell in “the briars,” knows that she held and ended up on someone’s backyard. Laurie’s legs down while Similarly, three of Show’s neighbors Ms. Lambert cut her throat. (Kleinhaus, Frederick Fry, and Patricia In our close observation of Fry) testified at the trial that they saw two Ms. Buck as she testified individuals of generally the same build and in our subsequent walking in a direction consistent with consi deration of her Lambert and Buck being picked up on Oak testimony, we find her View Road. credible in her description Buck, who had not ever previously of the murder. She has testified in any court proceedings acknowledged that she regarding the events of December 20, deserves her sentence 1991, testified at the PCRA hearing. Buck because of her actions on related that she and Lambert entered December 20, 1991. She has Show’s apartment and accosted Show. acknowledged her guilt Although Buck made several inculpatory under oath in a courtroom in admissions, she testified that it was the same courthouse in Lambert who stabbed Show and slit her which her own PCRA throat. [31] In addition, Buck stated that after petition is pending. What possible impact will this admission have on her own her personal life. [32] In addition, the PCRA
she and Lambert left Show’s apartment they proceeded toward a wooded area, Court allowed Bayan to testify from walked across a field, and ended up in Florida via teleconference because she told “some bushes, maybe a ditch” along Oak the Court she needed to care for her View Road. App. 10426-27. handicapped fiancé. Yet the Court
subsequently learned that there was an Furthermore, the PCRA Court active warrant for her arrest in Lancaster found that Bayan was not a credible County for her failure to pay taxes. The witness. The Court came to that conclusion Court also found that Bayan’s perceptual for several reasons. Bayan did not come disab ility rendered her testimony forward with her statement until several questionable. [33] Finally, Judge Stengel months after the murder, for example, and concluded that his personal observation of she only told Savage about her B a y a n w h i l e s h e t e s ti f i ed v i a observations after engaging in lengthy and teleconference was consistent with seemingly irrelevant discussions regarding Savage’s impression in 1992 that she was not credible.
Lambert argues that the PCRA Cou rt’s factual determination was Ms. Buck knows full [32] Similarly, Bayan’s 1992 well that, when she took the statement provided a substantial amount of stand to acknowledge, information, regarding her son, that was under oath in a courtroom, irrelevant to her account of what she that she actively participated allegedly saw on December 20, 1991. in the killing of Laurie When the Commonwealth inquired about S h o w , s h e s e v e r e ly this at the PCRA hearing, Bayan stated compromised any chance that she “was going through a lot with [her that she has that a state or son] at the time” and wanted Savage “to federal court will be realize where I was coming from.” App. inclined to find that she has 8162. been wrongly convicted. Her testimony will not take [33] When Bayan focuses on a a day off her life sentence particular object, she has difficulty and will not change the focusing on and seeing the items that events of December 20, surround that object. So, for example, if 1991. We find her credible she is “looking at one word, everything in her description of what else around it just isn’t clear.” App. 8169. happened that morning. As a result, she’s “a word-by-word PCRA Decision 159-60. reader.” Id. unreasonable in light of other evidence in App. 9210-11. She became upset when she the record. Lambert Br. 52. Most notably, was not able to jog her memory, and Hazel Show testified at the PCRA hearing Savage told her not to worry about it that she recalled driving past Yunkin on because they “had solid witnesses who her way home the day of the murder and could answer the questions about the flight seeing Yunkin pushing down the head of a that they took, the path that they took from passenger in the front seat. But she did not the condo.” Id. at 9212. recall passing Yunkin until after she heard
The PCRA Court found that Hazel Bayan testify at the 1997 habeas hearing. Show’s recollection did not sufficiently At the time of the trial in 1992, she only corroborate Bayan’s testimony to establish remembered “a flash of brownish color.” that Yunkin perjured himself. This App. 9210. She testified at the PCRA conclusion was reasonable in light of the hearing about the conversation she had full record. First, as the Court noted, Hazel with Savage a couple of days before the Show could not rule out the possibility that trial: she saw the car on Oak View Road. In [Detective Savage] had told addition, Hazel Show did not recollect m e a n e i g h b o r la d y seeing Yunkin’s car until approximately mentioned that she had seen six years after the event occurred. In the a brown car leaving our intervening time she sat through a trial and complex. habeas hearing where she heard testimony
regarding the events she eventually When he said that, I recollected. These facts tend to diminish saw a flash of a brownish the value of her testimony at the PCRA color and I said to him, a hearing regarding seeing Yunkin’s car, and brownish color? And then they bolster the reasonableness of the we went over this, had I PCRA Court’s factual determination. seen a car? I wasn’t sure. Where was it? I wasn’t sure. Moreover, even if Hazel Show’s What type of car? Was testimony sufficiently corrob orate d anyone in it? And I had Bayan’s statement to show that Yunkin’s nothing in my memory testimony was incorrect, the testimony except when he said this does not tend to show that the government brown color, I just saw a knew or should have known of the perjury. flash of a brown car. Not At the time of the trial, all Hazel Show even knowing if it was a car recalled was a “flash of brown.” In light of or anything and I tried to jog the substantial evidence supporting my memory to get more Yunkin’s testimony and questioning information but there wasn’t Bayan’s credibility, it was reasonable for anything there. the PCRA Court to conclude that the
government did not and should not have known Yunkin was perjuring himself addition, impeachment evidence, as well (assuming, of course, that Hazel Show’s as exculpatory evidence, falls within the testimony in 1997 and 1998 in fact Brady rule, see Giglio v. United States, of clearly established federal law. See 435. Rather, “[t]he evidence is material Hollman v. Wilson, 158 F.3d 177, 179 (3d only if there is a reasonable probability Cir. 1998). that, had the evidence been disclosed to
the defense, the result of the proceeding This portion of the Court’s decision would have been different.” Bagley, 473 was contrary to federal law, because the U.S. at 682. [35] In other words, the relevant Supreme Court has “disavowed any question is: “when viewed as a whole and difference between exculpatory and in light of the substance of the impeachment evidence for Brady prosecution's case, did the government's purposes.” Kyles, 514 U.S. at 433 (citing failure to provide . . . [the] Brady Bagley, 473 U.S. at 667). Here, as in impeachment evidence to the defense prior United States v. Pelullo, “[w]e have no to the [] trial lead to an untrustworthy hesitation in concluding that the guilty verdict . . . ?” See Pelullo, 105 F.3d government inexplicably failed to abide by at 23; see also Banks, 124 S. Ct. at 1276- its obligation under Brady to disclose 77. potential impeachment evidence.” 105 F.3d 117, 122 (3d Cir. 1997). While “Because it is contrary to Bayan’s statement did not exculpate overwhelming evidence,” the PCRA Court Lambert, it was inconsistent with Yunkin’s held, “her story would have had no testimony regarding his whereabouts impact.” PCRA Decision 175. In other during the crime. Bayan could have been words, “it did not so undermine the truth- called, therefore, to contradict at least one determining process that no reliable aspect of Yunkin’s testimony, and perhaps, adjudication of guilt or innocence could therefore, to cast a larger doubt on his have taken place.” Id. Since this too was a credibility. And while Bayan’s own legal determination, we review it also credibility might have been open to under § 2254(d)(1). We conclude that it challenge, resolution of these kinds of was neither contrary to nor an credibility disputes should take place in the unreasonable application of clearly courtro om, and not throug h th e established federal law. prosecutor’s unilateral decisionmaking.
The potential value of Bayan’s The PCRA Court concluded, statement as impeachment evidence was however, that even if the government had erred by not disclosing the evidence, the withheld evidence was not material for [35] The Kyles Court also noted that Brady purposes. “[A] showing of the materiality of “suppressed evidence [is m a t e riality does not r e q u i r e a to be] considered collectively, not demonstration by a preponderance that item-by-item.” 514 U.S. at 436. But we disclosure of the suppressed evidence need not follow that admonition here since would have resulted ultimately in the Bayan’s statement is the only evidence we defendant’s acquittal.” Kyles, 514 U.S. at find the government wrongfully withheld. negligible. There was substantial evidence apartment that morning. Thus even if at trial, including the testimony of Lambert Bayan’s statement fully implicated Yunkin herself, that tended to show Yunkin picked in Show’s murder, it would not have up Lambert and Buck on Oak View Drive. sufficed to exculpate Lambert. There is no In any case, there existed far stronger reasonable probability that evidence evidence regarding Yunkin’s truthfulness showing Yunkin was driving within the (or lack thereof). Indeed, the government condominium complex, rather than on a conceded in its closing that it believed road adjacent to the complex, would have Yunkin was not fully truthful in his changed the result of the trial. testimony. See App. 1315; supra, at
3. The “29 Questions” Section IV.C. “Suppressed evidence is not material when it ‘merely furnishes an As we explained above, when additional basis on which to impeach a cross-examining Yunkin at trial Lambert’s witness whose credibility has already been counsel offered into evidence a document shown to be questionable.’” United States that she and Yunkin purportedly passed v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996) between each other while they were in jail. (internal citation omitted). Yunkin acknowledged that he and Lambert
passed a document between them, but he Moreover, the materiality of the also testified that the document he was statement is negligible even if it would presented with at trial—what we refer to as have conclusively established that Yunkin the “29 Questions”—w as not the p i c k e d u p L a m b e r t within th e document that he recalled passing back condominium complex instead of on Oak and forth with Lambert. Yunkin testified View Road. Assuming that Bayan’s that his handwriting appeared on the 29 statement had that probative value, it Questions and some of the questions were would have placed Yunkin somewhat the same as he recalled from the document closer to the scene of Show’s murder. But he passed with Lambert, but he claimed despite Lambert’s assertions to the that he never saw some of the questions on contrary, placing Yunkin driving within the 29 Questions document. the condominium complex does not establish that he entered the Show As a preliminary matter, we note apartment and committed the murder. that Lambert has made much of this
document as conclusively establishing her Finally, even if evidence showed innocence. The trial judge, sitting as a that Yunkin was in the apartment , the finder of fact, found the document evidence was sufficient to conclude that unreliable and inconclusive. As a result, he Lambert was guilty of murdering Show. did not rely on it when he reached his The evidence at trial overwhelmingly verdict because he concluded that the showed that Lambert had the motivation document did not create reasonable doubt (she hated Show), she supplied the murder as to Lambert’s guilt. After reviewing the weapon, and she entered Show’s record in some detail, we tend to agree Second, Lambert’s counsel asked with the trial judge’s conclusion. And we Yunkin about a portion of the document in find fanciful Lambert’s assertion that the which the following question and answer only reasonable conclusion from the appeared: document is that Yunkin and Buck
5) [Question:] I think about murdered Show and Lambert was not Tressa and Laurie! I think involved. you guys are sick! I think Yet our opinion of the probative about her life you took! All value of the document is irrelevant. Our those people at her funeral! role is confined to determining whether And I know very well that any constitutional error occurred at trial. you don’t feel sad! You Stripped of Lambert’s attempts to retry the were happy, U weren’t sad case in another forum, her claim regarding Friday! Do you remember the 29 Questions is this: Yunkin’s seeing [crossed out word] testimony regarding the 29 Questions was dead? [Answer:] Yes, I perjured and the prosecution knowingly remember seeing [crossed elicited that testimony. out word] dead.”
Lambert specifically bases this PCRA Opinion (attached). Yunkin argument on two portions of Yunkin’s testified that on the document he passed testimony. First, Yunkin testified that back and forth with Lambert he had although the answers written on the 29 responded to a question by answering, Questions appeared to be in his “Yes, I remember seeing Tressa dead,” handwriting the 29 Questions was not the because the question he was answering document that passed between him and asked, “Do you remember seeing Tressa Lambert in prison. He testified that in the dead? Do you remember going to her document that had passed between him funeral?” App. 329. Yunkin testified that and Lambert, Lambert had written the although the 29 Questions was not “the questions in pencil and he had written all o r igina l doc ume nt, ” it wa s h is his answers in pencil and then traced over understanding the word crossed out in every other word in ink so that they could Question 5 was “Tressa.” App. 328-30. not be changed. Yet Lambert’s expert But Lambert’s expert testified that the testified that the questions in the 29 crossed-out word was “Laurie.” Questions were written in ink, and there
The PCRA Court found that the was no indication of any writing in pencil prosecution openly conceded to the trial on the document. The expert also court that it believed Yunkin was not fully confirmed that the answers were written in truthful in his testimony regarding the 29 Yunkin’s handwriting. Questions. The Court explained: Mr. Kenneff stipulated to it. I don’t think I held [the testimony of Lambert’s anything back about my expert] on the basis that he feelings about Mr. Yunkin. had the document examined I said in my openings he’s by a Pennsylvania State either lying, he’s stupid or Police examiner as well. he’s naive. Perhaps the There was never any effort evid ence in this case by the Commonwealth to suggests he’s all three. hide what Mr. Yunkin said
I’m not going to stand here or to somehow bolster what and say that Mr. Yunkin was Mr. Yunkin said with expert being truthful about [the 29 testimony. Mr. Kenneff Questions]. I can’t do that. f r e e l y a n d o p e n l y There is no evidence to do acknowledged that this that. What I can say about expert’s analysis of the Mr. Yunkin and what I can document was consistent say about wh at M iss with the defense expert and Lambert needed to cover up these expert opinions were for him is that logic says both inconsistent with Mr. Yunkin was an accessory Yunkin’s testimony. before the fact. PCRA Decision 117-118. [36] The Court’s App. 1315. Later on in his closing finding of fact was eminently reasonable argument Kenneff stated: “Did Yunkin in light of the record. In particular, participate in the murder of Laurie? My Kenneff made the following statement to stomach says he did, my mind says he did. the Court during closing arguments: Did he participate in the way that Miss Mr. Yunkin. Is he guilty of Lambert says? The facts say no.” App. the crime of homicide? 1319. Fortunately, neither of you
The PCRA Court’s factual finding, have to decide that in this supported strongly by the record, precludes case nor do I have to argue a determination that the prosecution knowingly used false evidence to obtain a conviction. It also precludes a finding that [36] The Court also noted: “Mr. “the State, although not soliciting false Kenneff never hid his belief that Mr. evidence, allow[ed] it to go uncorrected Yunkin was not being forthright about that when it appear[ed].” Napue v. Illinois, 360 document. In truth, no one involved in the U.S. at 269. To the contrary. The 1992 trial could quite figure out who government fully and openly informed the wrote what on that document and what it Court that it believed Yunkin’s testimony meant.” PCRA Decision 120. was not fully truthful. There was no 4. The Crime Scene constitutional violation at trial regarding Photographs the 29 Questions. The flaws in Yunkin’s
A photograph offered into evidence testimony were fully aired at trial and at Lambert’s trial showed Laurie Show candidly acknowledged by the prosecution. lying dead on the floor of her apartment. Lambert also argues that having The photograph showed a telephone cord conceded that a portion of Yunkin’s wrapped once around her leg near her testimony was questionable, the prosecutor ankle. Lambert contends that there was no had an ethical obligation to characterize telephone cord wrapped around Show’s the entirety of testimony as perjury, and to leg before law enforcement authorities withdraw the witness. These contentions became involved with the crime scene. She have no merit. A prosecutor fully contends that several hours after Show’s discharges his obligation when he body was removed from the crime scene, discloses all inconsistent evidence to the the police brought the corpse back to the trier of fact and defense counsel. “[W]hile apartment, wrapped a telephone cord the government has a duty to be around its leg, and photographed the body. forthcoming with favorable evidence, it is
Lambert claims that the police did not required to draw inferences from that this in order to discredit the statement she evidence which defense counsel is in an gave to the police upon her arrest. In her equal position to draw . . . . When the road statement, Lambert told the police a to what defense counsel think is potential version of events where “[Show] tried to perjury is so plainly marked, the grab the phone and [Buck] grabbed it away government need not supply a map.” and threw it down.” Appellate App. 1577. United States v. Gaggi, 811 F.2d 47, 59 According to Lambert, the fabricated (2d Cir. 1987). Nor is it true that a witness crime scene photographs showing a who fabricates in one area is incompetent telephone cord around Show’s leg served to testify about others. This concept is to “discredit Lambert’s testimony that it embodied in the common jury instruction was Buck who struggled with Show, and known as the “falsus in uno, falsus in in doing so, threw a telephone across omnibus” charge, which provides: “If you Show’s room.” Lambert Br. 62. [37] find that any witness testified falsely about any material fact, you may disregard all of his testimony, or you may accept such [37] Lambert also argues that the parts of it as you wish to accept and government used the allegedly fabricated exclude such parts of it as you wish to photograph “to substantiate the exclude.” United States v. Rockwell, 781 Commonwealth’s theory at trial that Ms. F.2d 985, 988 (3d Cir. 1986) (emphasis Show’s legs were tied up and held down omitted). as Lisa Lambert slit her throat.” Lambert Br. 62-63. We have thoroughly reviewed
Lambert sought to prove to the drawing is inconsistent, in certain respects, PCRA Court that this misconduct occurred with the photographs of the crime. The through alleged inconsistencies between drawing depicts the telephone cord near the photograph and (1) a crime-scene Show’s leg, for example, not touching or drawing, and (2) testimony regarding the wrapped around it as in the photograph. crime scene. The PCRA Court flatly Similarly, the drawing depicts bloody rejected this contention, finding that the envelopes located closer to Show’s body evidence did not nearly suffice to show than they appear in the photograph. And that the government engaged in such the photograph shows objects, such as a outrageous c o nd u ct . T h e Court’s coat and an electrical appliance, that do conclusion was certainly reasonable in not appear in the drawing. Lambert argues light of the record. Indeed, the evidence in that these inconsistencies—especially the the record virtually compelled the Court to location of the telephone—show that the reach that conclusion. police fabricated the crime scene
photographs. Officer Robin Weaver composed the crime scene drawing. The drawing Officer Weaver testified at the presents a bird’s-eye view of the room PCRA hearing and explained why the where Show’s body was found and depicts drawing was not entirely consistent with the location of Show’s body, furniture, and the photographs. Weaver testified that he several miscellaneous objects. The was told to make a rough sketch of the
bedroom floor layout in order to depict the location of evidence the police collected.
the record of the trial before Judge He did not compose the drawing to scale. Stengel, however, and nowhere have we Nor did he depict everything that existed discovered the Commonwealth urging any in the room, since “[t]here were hundreds such theory. Lambert’s characterization of of items in the bedroom.” App. 4512. In the trial is inexcusable. Lambert cites to a addition, Weaver placed items in the portion of Judge Dalzell’s 1997 opinion to drawing (including the telephone) after support this characterization. But the Show’s body was removed from the room. habeas court’s mistaken characterization Officer Weaver’s testimony was of the trial record does not give Lambert sufficient for the PCRA Court to reject carte blanche to do the same. Of course, Lambert’s spurious allegations, but his we are puzzled by how Judge Dalzell testimony was not even necessary. We first reached that conclusion (and several note that Lambert seriously misrepresents others). Perhaps the habeas court simply the content of her statement to the accepted Lambert’s characterization of the police—the statement that allegedly trial record. We have learned, from provided the motive to fabricate evidence. attempting to find support in the record for She states in her brief that she told the many of Lambert’s claims, that it is police Buck “threw a telephone across perilous to do that. Show’s room.” Lambert Br. 62. In her across the room, it would have been actual statement to the police, however, impossible for the phone to end up near Lambert merely said that Buck grabbed the Show’s body. But the crime scene drawing phone from Show and “threw it down.” itself shows the telephone close to Appellate App. 1577. This is an important Lambert’s feet. Thus, on its face, it defeats distinction. [38] La m be rt’ s allega tions o f po lice
misconduct: even if the police thought that And even if Lambert had told the evidence showing the phone near Show police initially that Buck threw the would have discredited Lambert, there telephone across the room—which she did would have been no need for the police to not—the crime scene drawing would not stage a photograph. The drawing support her extraordinary allegations that accomplishes the same object. Whether or police returned the body to the crime scene not the cord was touching Show’s feet is and rearranged it. Lambert apparently immaterial. [39] contends that if Buck threw the telephone Lambert further argues that testimony from individuals who witnessed the crime scene on the day of Show’s [38] To be sure, Lambert claimed at murder establishes that the police trial that Buck “threw [the phone] across fabricated the crime scene photographs. the room.” Appellate App. 631. But Specifically, witnesses testified at the Lambert’s testimony at trial months later is PCRA hearing that they saw Show’s feet irrelevant to her allegations that the police at the crime scene and a telephone cord doctored evidence to contradict her was not wrapped around them. In addition, original statement to the police. What is witnesses testified that Show’s body lay important, of course, is the content of her statement to the police. The suggestion that officers rearranged the crime scene to anticipate testimony by Lambert that did [39] In addition, we agree with the not occur until months later would a PCRA Court’s conclusion that “ Ms. require a finding that the police were Buck’s throwing the telephone across the clairvoyant. room and the location of the cord around We are unpersuaded by Lambert’s Laurie Show’s leg are not mutually (and her counsel’s) attempts to create exclusive.” PCRA Decision. 236. The allegations of misconduct by selectively Court explained: “It appears that the relying on evidence from various telephone was close to the entrance of the proceedings in Lambert’s lengthy route bedroom, by the bed, when Laurie picked through the criminal justice system: the it up. If Ms. Buck threw it across the pre-trial investigation, the 1992 trial, the relatively small bedroom, it could easily 1997 habeas hearing, and the 1998 PCRA have landed near the closet where Laurie’s hearing. body came to rest.” Id. parallel to the closet, while the photograph only possible explanation for this is that depicted her body at a slight angle. the body had been returned to the crime
scene after it had been at the funeral home Lambert’s arguments hinge on an so photos could be fabricated.” Lambert unsupported view of crime scenes as Br. 67. antiseptic and static environments, and an utterly unrealistic supposition about the The funeral director certainly precision of witness observations and testified that he cleaned Show’s face when her family came to view her. He stated: memories. We agree with the PCRA “[W]hen I heard that the father and Court’s conclusion that “the telephone could have been moved as the several possibly other family members were coming in, I had taken a damp towel and medical and police personnel tended to had cleaned up her face and also covered Laurie or processed the crime scene.” PCRA Decision 236. And slight her neck area.” Appellate App. 1492. He did not indicate, however, that he removed inconsistencies between the body’s all the blood from her face. And nothing position in the photograph and witness’s recollections (parallel to the closet versus in his testimony is necessarily inconsistent with the observation at the autopsy the at a slight angle) do not establish an next day that “[m]uch dried blood is seen elaborate conspiracy to implicate Lambert in Show’s murder. [40] covering the face and the neck.” Appellate
App. 1551. Lambert urges us to draw the Finally, Lambert argues that strongest possible inferences from evidence regarding the presence of blood relatively indecisive evidence and on Show’s face shows that the police conclude that the police engaged in brought her body back to the crime scene unconscionable acts of misconduct to in order to fabricate the photographs. fabricate evidence of marginal, if any, Specifically, the funeral director where utility in implicating Lambert. [41] The Show’s body was taken on the afternoon PCRA Court understandably declined to following the murder testified that he do so, and we unhesitatingly defer to its removed blood from Show’s face when reasonable determination. her family came to view her. Yet the autopsy report from the next morning 5. The Dying Declaration indicated that “much dried blood” was on
At the trial, Hazel Show testified Show’s face. Lambert argues that “[t]he that Laurie Show said “Michelle did it” as she lay dying in her mother’s arms. [40] We also note that the crime scene Lambert argued at trial that given the been presented in the PCRA injuries Show sustained she could not have hearing which would cause said “Michelle did it,” either because she this court to change its had died before Hazel Show returned finding that Mrs. Show was home or the injury to her neck rendered credible in 1992 when she her unable to speak. Both the prosecution testified as to her daughter’s and defense offered expert testimony to dying declaration. support contrary conclusions.
PCRA Decision 116. The issue arose again at the PCRA Now, in her habeas petition, hearing. Lambert argued that expert Lambert argues that the Commonwealth’s testimony that was not offered at her trial conduct at the PCRA hearing with regard was “after-discovered evidence” that to Show’s dying declaration constitutes a would warrant relief under Pennsylvania’s constitutional violation warranting habeas PCRA statute. Once again, both Lambert relief. Namely, she contends that “[t]he and the Commonwealth offered conflicting Commonwealth retained new experts in expert testimony as to whether Show could the PCRA proceeding and violated ‘the have said “M ichelle did it.” most basic notions of due process,’ by The PCRA Court held that the proffering new testimony that was based newly offered expert opinions did not on disowning the very evidence on which constitute “after discovered evidence,” it had convicted Lambert in 1992.” which under Pennsylvania law is evidence Lambert Br. 69. that (1) was unavailable at trial, (2) is
Of course, labeling a claim as a exculpatory, and (3) would have changed “fundamental due process violation” does the outcome at trial. PCRA Decision 112 not actually substantiate a constitutional (citing Commonwealth v. Reese, 663 A.2d claim. Lambert fails to explain how 206 (Pa. Super. 1995)). After a lengthy conduct at the PCRA hearing could discussion of the various expert testimony, feasibly warrant habeas relief. Rather, she the Court concluded: simply cites three cases: Dunn v. United No expert has established States, 442 U.S. 100 (1979), Smith v. Groose, 205 F.3d 1045 (8 th Cir. 2000), and that it would have been Thompson v. Calderon, 120 F.2d 1045 (9 th impossible for Laurie Show to speak. In fact, competent Cir. 1997), rev’d on other grounds, 523 a n d c r e d i b l e e x p e r t U.S. 538 (1998). testimony proves in a clear
Indeed, she cites the same three and convincing way that the cases that she contends support her claim dying declaration w as that the Commonwealth’s “switching” of possible. No evidence was the sweatpants warrants habeas relief. We presented in 1992 or has have rejected that claim, and we reject her dying declaration arguments for the same opinions offered by the government’s reasons. The Commonwealth did not expert witnesses at the trial and PCRA utilize the allegedly differing expert hearing—though they all agreed on the testimony to convict Lambert (as in ultimate conclusion that Show could speak Sm ith/Thomps on) or u ph old her the words “Michelle did it”—based on the conviction on direct appeal (as in Dunn). same evidence . Rather, the state used the new testimony to
6. The DA’s Contact with show that Lambert had not offered after- Lambert’s Trial Expert discovered evidence warranting relief under the PCRA statute. See Gattis, 278 The Commonwealth’s district F.3d at 238. And in any case the attorney (Kenneff) contacted Lambert’s Commonwealth’s conduct at the PCRA expert, Dr. Mihalakis, over the weekend hearing is not a basis for habeas relief. [42]
preceding the trial. Lambert contends that in doing so the Commonwealth violated
Even if error in the state collateral her right to due process. proceedings could support Lambert’s claim for habeas relief, however, none Intimidation or threats from the would be warranted here. In contrast to government that dissuade a potential Dunn, Smith, and Thompson, the witness from testifying may infringe a government did not offer contradictory defendant’s Fourteenth Amendment right theories or facts at the trial and the PCRA to due process and Sixth Amendment right hearing. The government’s theory at both to compulsory process. See Webb v. proceedings was that Lambert entered Texas, 409 U.S. 95 (1972); United States Show’s apartment on December 20, 1991 v. Morrison, 535 F.2d 223, 226-27 (3d Cir. and participated in the murder. At both 1976); see also United States v.
Bieganowski, 313 F.3d 264, 291 (5 th Cir. proceedings they offered Hazel Show’s 2002); Newell v. Hanks, 283 F.3d 827, testimony that Laurie Show said “Michelle 837 (7 th Cir. 2002); United States v. did it.” The government relied on the same Emuegbunam, 268 F.3d 377, 400 (6 th Cir. evidence—an autopsy report and 2001); United States v. Vega-Figueroa, photographs—at both proceedings. The 234 F.3d 744, 751-52 (1 st Cir. 2000); only inconsistency was in some of the
United States v. Vavages, 151 F.3d 1185, 1188 (9 th Cir. 1998); United States v. [42] In addition, we are doubtful Saunders, 943 F.2d 388, 392 (4 th Cir. whether Lambert has properly exhausted 1991); United States v. Pinto, 850 F.2d this claim. This appears to be the first
927, 932 (2d Cir. 1988) . In order to violate proceeding where she raised this claim. the Constitution, the government’s conduct We address it nonetheless because it is must have “substantially interfered” with a meritless and we can therefore dismiss it witnesses’s choice to testify. See under 28 U.S.C. § 2254(b)(2). See Gattis, Bieganowski, 313 F.3d at 291; Newell, 278 F.3d at 237. 283 F.3d at 837; Emuegbunam, 268 F.3d After Judge Stengel heard from 377 at 400; Vavages, 151 F.3d at 1188; Shirk, Kenneff, and Mihalakis, the Saunders, 943 F.2d at 392; Pinto, 850 following colloquy occurred: F.2d at 932 .
THE COURT: [Y]ou’ve Whether substantial interference done your examination and you have your opinions that occurred is a factual determination. See Bieganowski, 313 F.3d at 291; Vavages, you are going to state as 151 F.3d at 1188; Pinto, 850 F.2d at 932 . part of this case, I take it. On direct appeal we review a district
DR. MIHALAKIS: Yes. I court’s determination regarding substantial have a consultative letter. interference for clear error. Here, we apply THE COURT: What is the the deferential standards of § 2254(d)(2) and § 2254(e)(1). date of that letter? About
when was it written to him? The issue of Kenneff’s contact with D R . M I H A L A K I S : Mihalakis came up during the trial. Lambert filed a motion asking the Court to (Looking at document.) sanction the Commonwealth for Kenneff’s June 29. pre-trial contact with Lambert’s expert
THE COURT: All right. witness. Judge Stengel held a hearing in And I take it that your order to decide Lambert’s motion. t e s t i m o ny w o u l d b e At the hearing, Kenneff indicated c o n s i s te n t wit h t h at that he was upset upon learning, consultative letter. approximately a week before trial, that
DR. MIHALAKIS: I would Mihalakis was going to testify as a defense hope so, yes. witness. Mihalakis was under contract to work as an expert for Lancaster County, THE COURT: Okay. Is and Kenneff felt that as a result he would there anything about the be unable to discredit Mihalakis at trial. discussion you had with Mr. Kenneff contacted Mihalakis even though Kenneff that causes you to Lambert’s attorney, Roy Shirk, would not not say what was in that give his consent. Kenneff told Mihalakis letter? about his concern, and Mihalakis offered
DR. MIHALAKIS: No, I to withdraw if Judge Stengel found that don’t believe so. his contract with the County precluded him from acting as an expert for Lambert. THE COURT: Did you feel Kenneff told him not to withdraw because threatened or intimidated or it would only cause a continuance. coerced by that discussion
you had with Mr. Kenneff? DR. MIHALAKIS: No, sir, The PCRA Court reached the same I did not. conclusion after hearing additional
evidence on the matter. The Court THE COURT: Okay. concluded: “It was arguably improper DR. MIHALAKIS: Okay. conduct with some justification under the Mr. Shirk, are you aware of circumstances. The bottom line is that it any rule of professional did not affect the witness’s testimony at conduct that prevents an trial. He testified consistent with his report attorney in a criminal case and his testimony was no surprise to from contacting an expert or petitioner’s counsel.” PCRA Decision a witness who would testify 195. The trial court’s determination was for the other side? reasonable given the record before it.
Lambert did not adduce evidence at the MR SHIRK: No, I’m not. PCRA hearing that would rebut the trial THE COURT: Are you court’s factual finding, and the PCRA aware of any such rule? Court’s determination was reasonable
given the evidence before it. MR. KENEFF: I’m not aware of a rule. Lambert’s trial counsel, Roy Shirk,
testified at the PCRA hearing regarding THE COURT: I’m not the circumstances surrounding the aware of any such rule. procurement of Mihalakis as an expert for Okay. Based upon my Lambert. Shirk and Richard Jeffries, a review of the motion for private investigator working for the sanctions before today and defense, decided to seek Mihalakis’s before our hearing, this services to offer an opinion about whether date, and based upon the Show could have spoken after the attack. discussion we’ve had here They asked Mihalakis to answer four on the record in chambers, questions after reviewing a group of and the candid and frank relevant materials, including Show’s comments of Doctor autopsy report and crime scene Mihalakis, Mr. Shirk and photographs: Mr. Kenneff, I’m going to deny the motion for 1) How long would Laurie sanctions. Show have lived after the
wounds were inflicted? App. 374-75. The trial court found, in effect, that the government had not 2) What wounds were fatal? substantially interfered with Mihalakis’s
3) Could Laurie Show say choice to testify. anything afterward; could she have said, “Michelle did maneuver of insertion and it”? bending to the point of
breakage. 4) How many persons were involved in the stabbing, App. 1636. one, two or more? Were
After reading Mihakalis’s report, they male or female and Shirk determined that it would not be right or left handed? Any worth hiring Mihalakis because “[q]uite signs of a male person being frankly, it wasn’t going to help us a lot.” involved? App. 6537-38. After speaking with Appellate App. 1635. M ihakalis responded Mihalakis a few times, however, Shirk felt that the “neck wounds and the right back that Mihalakis would be able to offer wound are fatal wounds,” and that Show testimony that would support Lambert’s “could have survived multiple minutes, but case. Shirk explained: I doubt very much whether she could have
I’d like to be very survived a full half hour.” He further clear on this. He had opined that Show’s wounds “would indicated to me at all times certainly limit but not totally eliminate that he would not be able to phonation, especially words and letters that say, to a degree of medical involve the tongue.” Finally, Mihalakis certainty, that Laurie Show offered an opinion based on the fact that could not talk. the tip of the knife used to kill Show had broken off. He had taken an identical However, he was knife, placed it in a vise, and bent it until it willing to testify that he broke. He wrote the following: believed that she did not.
That he didn’t think she By the time the knife broke, could have. And the reason I was exerting considerable he thought she would not force. While such force is have been able to say what not beyond the capability of she reportedly had said had an average male or female, to do with certain vowels the fact remains that the and so on and so forth . . . knife had to have been wedged someplace in the Basically I expected from body, possibly even bony him, and this was not only tissue and then bent back in after one phone call, but it such a way as to break. . . . was after, as I indicated, two If it was so deeply wedged or three, testimony that he in bone, I doubt whether a would not say she could not girl could pull the entire talk, to a degree of medical certainty, but it certainly Yet Kenneff contacted Mihalakis was his impression, as an nonetheless. Mihalakis testified that expert, that she did not, and Kenneff sounded “displeased.” Kenneff that she did not for these testified that it was his understanding that reasons, and going into the Mihalakis could not testify for a defendant explanation of the vowels because he was under contract to be an and so on and so forth that expert for the Commonwealth. Mihalakis would have to have been told Kenneff that he thought he could used to say the words that contract to give his services to whomever were purportedly [sic] to he desired. “I express to him that I was have been said. surprised he was doing this,” Kenneff
testified, “I was concerned about our I n a d d i t i o n , I ability to handle this case properly, given expected testimony from his association with us.” App. 5089. him that he did not believe Mihalakis offered to withdraw as a witness that a female could have for Lambert “[i]f it was going to broken off the knife the way complicate future cases,” but Kenneff told it was broken off. him not to. App. 5509. They also spoke Now, that evolved generally “about the autopsy report and my over a period of, I don’t [Mihalakis’s] feelings and whether or not know, a week, a week and a you could enunciate anything.” App. 5506. half, or maybe not that long.
As described above, Shirk moved Sever al da ys a nyw ay. for sanctions at trial and Judge Stengel Wherein he modified what denied Shirk’s motion because he found appears to be here. It was there was no indication that Kenneff’s done over the telephone and conversation with Mihalakis had it was at that time I intimidated him. Shirk conceded as much indicated that I wanted him at trial, stating to Judge Stengel: to testify. I asked [Mihalakis] App. 6538-39. quite frankly if this would Shirk testified that Kenneff became affect his testimony in any “angry” and “upset” when Shirk told him way, shape or form. I think that Mihalakis was going to testify for the the exact word I used was defense. Kenneff was angry because “the whether he would pull his District Attorney’s office felt that they had punches. He indicated to me him under contract.” And he asked if Shirk he would not. would mind if he telephoned M ihalakis.
. . . [H]e indicated to Shirk said he would rather Kenneff not me that in no way, in any call Mihalakis until after the trial. way would it affect his The Chael may have testimony Friday. I can been somewhat less clear honestly say to you at this and the da may have been point there is no way it has a somewhat less clear. chilling effect. He hadn’t
App. 390. Finally, Goldberg questioned been on the stand. I think Mihalakis about the tip of the knife that he’s an honorable enough had broken off and whether a woman man that it will not have a could have broken the knife. M ihalakis chilling effect. testified that “[t]he function of the break is App. 369. Yet Shirk testified at the PCRA not gender related, it is strength related, hearing that he was, in fact, “angry” and deliberateness related. If someone is strong “surprised” by the content of Mihalakis’s enough, they could certainly break the testimony. App. 6540. And he and his co- knife . . . .” App. 398. Yet he opined that counsel, Alan Goldberg, decided to get “[w]hile it is not beyond the realm of a Mihalakis off the stand as soon as woman, it would really make it extremely possible. unlikely, very unlikely.” App. 399.
The PRCA Court determined that Futhermore, the PCRA Court Mihalakis’s testimony was consistent with determined that Shirk had no reason to be the report he had provided to the defense, surprised by Mihalakis’s testimony. and we agree. Mihalakis testified that Mihalakis expressly stated before Judge “[t]he cause of death is a cutting wound of Stengel that he would testify consistently the throat and a stab wound of the right with the report and that his conversation chest.” App. 380. And given her wounds, with Kenneff would not prevent him from he testified, it would have taken Show saying “what was in the letter.” App. 374. “multiple minutes” but “considerably less Mihalakis’s statement should have than a half hour” to die. App. 386. With disabused Shirk of any notion that respect to Show’s ability to say “M ichelle Mihalakis might materially depart from his did it,” Mihalakis testified that “[i]t would opinions in the report. have to be affected in part”:
To be sure, we do not believe that Ma is predominantly Kenneff’s contact with Mihalakis was a lip sound, and the tongue entirely appropriate. At the very least, and lips are controlled by a Kenneff displayed a lack of judgment. Yet different set of nerves so the not every lapse of prosecutorial judgment ma sound should not’ve violates the Constitution. Here, Lambert been affected. If it was had to show that Kenneff substantially affected it was to a minor interfered with Mihalakis’s choice to degree. testify. The PCRA Court’s conclusion that
there was not substantial interference was, given the evidence before it, well within the government violated Brady by failing the bounds of reason. to inform her that they found the pink bag
and sneaker. Second, she appears to argue that the government knowingly elicited false testimony at the trial that the police never found a pink bag or sneakers. Third,
7. The River Search she argues that the government violated After receiving information from Brady by failing to inform Lambert that Yunkin and Lambert regarding their the rope was found using a dog scented disposal of evidence in the Susquehanna with Buck’s sweater. Finally, Lambert River, law enforcement officials appears to argue that the government conducted a search of the river on violated her due process rights by December 21, 1991. The police were destroying exculpatory evidence (the pink specifically looking for “a pink plastic bag bag and sneaker) prior to trial. containing at least one pair of sneakers.”
a. Brady Violation Appellate App. 1561. They found a knife Concerning the Pink Bag and a pink plastic bag. The police video- and Sneaker taped the search and provided Lambert’s counsel with an edited version of the tape. Again, to make out a Brady
violation Lambert must show that (1) the The police conducted another, more government withheld evidence, either extensive search two days later, on willfully or inadvertently; (2) the evidence December 23, 1991. Using a dog was favorable, either because it was “scented” with Buck’s sweater, the police exculpatory or of impeachment value; and found a piece of white nylon rope. The (3) the withheld evidence was material. police also found a sneaker. The December See Banks, 124 S. Ct. at 1272. The PCRA 23 search was not video-taped. Court found that the pink bag was not The police did not indicate in any exculpatory and that, in any case, the reports regarding the river searches that police did not withhold the pink bag’s they found a pink bag or a sneaker, nor did discovery from Lambert. With respect to they in any way inform Lambert about the the sneaker, the Court found that it was not finds. A police report provided to Lambert exculpatory. Once again, the PCRA Court’s determinations were reasonable. [43] indicated that the rope was found, but it did not indicate that it was found using a dog scented with Buck’s sweater.
The edited version of the videotape sneaker with the laces.” Appellate App. provided to Lambert shows an empty pink 1157. More importantly, however, he bag embedded in ice. Indeed, Lambert’s testified: counsel testified at the PCRA hearing that
The sneaker was stained he saw the pink bag in the videotape but brown from being in the did not question police witnesses about it mud. And around the sides at trial because he “assumed it was a bag of the sneakers it had what I that had nothing to do with this case.” would call black rot and App. 6461, 6637. The pink bag was threads in that area of black therefore disclosed to Lambert. Needless rot were beginning to rot to say (though apparently we must), Brady away from the material and does not require the government to inform I felt that the sneaker was in a defendant about information that the there for a lot longer than defendant possesses. See United States v. three days to get in that Hill, 976 F.2d 132, 136 (3d Cir. 1992); condition. Fullwood v. Lee, 290 F.3d 663, 686 (3d Cir. 2002) (“Certainly . . . information that App. 3466-67. The government need not is not merely available to the defendant but provide a blanket disclosure to a defendant is actually known by the defendant would regarding all evidence found during an fall outside of the Brady rule.”). Put investigation. “[T]here is ‘no constitutional differently, evidence is not “suppressed” if requirement that the prosecution make a the defendant knows about it and has it in complete and detailed accounting to the her possession. defense of all police investigatory work on
a case.’” Agurs, 427 U.S. at 109 (quoting Detective Ronald Barley testified Moore v. Illinois, 408 U.S. 786, 795 about the sneaker. He estimated that it was (1992)). If the police had found a rusty approximately a size six or seven sneaker, Swiss army knife during the river search, and it was a white “old type hightop for example, it certainly would not have violated Brady if they failed to disclose the find to Lambert. The state does not have
reasonableness is a continuum. Some an “‘obligation to communicate . . . determinations might be more or less speculative information.’” Id. at 110 n.16 rea s o n a b l e t h a n o t h e r s . S o me (quoting Giles v. Maryland, 386 U.S. 66, determinations on the “less reasonable” 98 (1967) (Fortas, J., concurring)). side of the reasonableness continuum might have been determinations that we
Lambert argues that it was would not have made in the first instance unreasonable for the PCRA Court to credit but that we must accept under AEDPA. Barley’s PCRA testimony because he “lied None of the determinations the PCRA about not finding a sneaker or pink bag in Court made, however, fall along that 1992” and Lambert did not have the stretch of the continuum. opportunity to “cross-examine” him at the Q. Containing sneakers? PCRA hearing. Lambert Br. 89. As we
A. That’s right. describe below, however, the PCRA Court reasonably found that Barley did not “lie.” Q. That’s all it contained? And, as we explained above, we do not
A. There was other items; believe that Lambert’s inability to ask did not know what else was Barley leading questions obviates the in it. probative value of his testimony. Q. Did you ever find b. Knowing Use of sneakers? Perjured Testimony A. No. The following exchange occurred when Lambert’s counsel cross-examined Q. Did you ever find a trash Barley at trial: bag?
Q. How many items were A. No. you searching for [at the
App. 188. Examined in isolation, Barley’s river]? testimony that he did not find “sneakers” A. Specifically, I was or “a trash bag” appear to indicate that he looking for sneakers. did not find any trash bag or sneakers. The
PCRA Court read Barley’s testimony in Q. All right. the context of Shirk’s questioning, A. We were not sure what however, and it concluded that Barley else we were looking for. testified that he had not found the pink bag
and sneakers that the police were seeking . Q. You were told there were sneakers there? The Court made this determination
in part because Shirk similarly interpreted A. Supposedly, yes. Barley’s testimony. Shirk testified at the Q. You weren’t told there PCRA hearing that he did not impeach was a knife and a rope Barley with the video of the river search, there? which showed that they found a pink bag,
because he felt that the bag in the video A. No. was not relevant to the case. As the PCRA Q. Were you told to look for Court explained: a bag?
As Mr. Shirk’s testimony A. Yes, another trash bag. reveals, it is reasonable to interpret Detective Barley’s Q. Another trash bag? answer as a denial that a A. That’s correct. trash bag with evidence in it, i.e., Mr. Yunkin’s named John Forwood to come retrieve it. sneakers, the rope, the knife, But the police report from the river search, two pairs of sunglasses and which was provided to Lambert, stated: the hats, was found during
A white sweater worn by the search. def. Tabatha Buck was PCRA Decision 217. We agree. Implicit brought to the scene by assumptions often underlay conversational myself for use of the exchanges, so that a participant in the bloodhound. . . . The dog exchange can c o m municate more was unable to locate any information than what his words would evidence. A foot search was mean in isolation. See Henry E. Smith, conducted along the banks The Language of Property: Form, Context, and wooded areas. At and Audience, 55 Stan. L. Rev. 1105, 1131 approx. 1045 hrs. John (2003) (“More can be communicated than Forwood of W.E.S.T. found what is explicitly said, and this can occur white nylon rope on the by means of conversational implicature.”) bank approx. 2 feet south ( c i ti n g P a u l G r ice, L o g i c a nd from where the knife was Conversation, in Studies in the Ways of found the previous day. Words 22, 26 (1989)). Here, it was
Appellate App. 1563. Thus, Lambert never reasonable for the PCRA Court to infer learned that the rope was found using a that when Barley responded to Shirk’s dog scented with Buck’s sweater. question he did not mean that he did not find any bags or sneakers at all. Rather, he The PCRA Court determined that meant that he did not find bags and the government did not violate Brady by sneakers within the parameters of those the failing to turn over this evidence because police were looking for; but the pink bag the fact that the dog was scented with he found was embedded in ice and the Buck’s sweater was not exculpatory. sneaker was decomposed. It follows from Lambert argues that the PCRA Court’s this determination that Barley did not determination was erroneous because “lie,” and the government did not Buck’s scent on the rope was “inconsistent knowingly use perjured testimony. with the Commonwealth’s theory of the
case (that Lambert killed Show while c. Brady Violation Buck passively watched).” Lambert Br. 90. Concerning the Rope But Lambert mischaracterizes the At the PCRA hearing, Allen Means government’s position at trial. We have explained how a bloodhound found the come across no portion of the trial record nylon rope after it was “scented” with where the government contended that Buck’s sweater. Means, the dog’s handler, Buck “watched passively” while Lambert testified that he called over an individual murdered Show. The government never disputed that Buck was present in Show’s The PCRA Court determined that apartment and involved in the murder, and Barley discarded the sneaker because he the presence of her scent on the rope felt that, given its decomposed state, it neither inculpates nor exculpates Lambert. could not have been Yunkin’s sneaker. As the PCRA Court explained, “just Other than spurious allegations and because Ms. Buck’s scent was on the rope shadowy conspiracy theories, Lambert does not mean that Ms. Lambert’s was not. offers no evidence that suggests Barley There was no testimony that the dog acted in bad faith. attempted to trace Ms. Lambert’s scent and
IV. CONCLUSION
failed. This ‘evidence’ that Ms. Buck’s After thoroughly examining scent was on the rope does not exculpate Ms. Lambert.” PCRA Decision 141. We Lambert’s claims, we find no merit in them. To be sure, the Commonwealth agree. The PCRA Court’s determination should have turned over Bayan’s was not contrary to or an unreasonable interpretation of federal law. statement to the defense prior to trial and
we do not endorse the prosecution’s pre- d. Destruction of Evidence trial contact with Lambert’s expert. But The writ of habeas corpus, as and finality mandated by the statute. We implemented by the statute, empowers a agree with Judge Brody that Lisa Michelle federal court to overturn a state conviction Lambert was not “actually innocent,” and only when it is contrary to federal law or was not the victim of a miscarriage of an unreasonable application of law or justice or gross prosecutorial misconduct. determination of the facts. Comity and A careful, dispassionate review of the finality, as embodied in the statute and entire record convincingly demonstrates emphasized by the Supreme Court, that Lambert’s trial was fair, mandate considerable deference to the constitutionally correct, and well- determination of the state fact-finder and supported by the evidence. Accordingly, appellate courts. there is no reason to disturb the
conviction. We will affirm Judge Brody’s Regrettably, the initial habeas denial of the writ. decision here upended these fundamental principles of comity and finality. In concluding that Lambert was actually innocent and that her prosecutors were guilty of horrendous misconduct, Judge Dalzell effectively permitted Lambert to retry the criminal case -- with hindsight -- in a federal courtroom. Judge Dalzell’s initial opinion reversed the traditional approach to reviewing convictions, see Glasser v. United States, 315 U.S. 60, 80 (1942) (every inference in favor of verdict); he effectively drew every inference against the verdict, and accepted Lambert’s view that every discrepancy between her version and the state’s established that the state was acting in bad faith. As a consequence, the first habeas decision treated every dispute in testimony as state perjury, and every minor inconsistency as momentous. The costs of this misguided approach in terms of comity and finality are very substantial.
By contrast, the decision of the second District Judge -- Judge Brody -- properly weighed the evidence and applied the law under the principles of federalism
NOTES
[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] Lambert testified at trial that the written statement accurately reflected what she told Solt.
[9] In addition to Lambert’s Lambert tried to rescue Show from testimony, the defense offered the Buck. First she tried to pull Buck away 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] Lambert offered as evidence of the crime scene, and an expert testified that the hair was cut off using a knife. Yunkin’s presence in Show’s apartment a
[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] The Commonwealth also argues that if we accept Lambert’s argument that the PCRA proceedings are null and void, we must dismiss her petition as untimely.
[18] 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).
[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.
[31] Because it goes to the PCRA claim that her trial reasonableness of Judge Stengel’s factual resulted in a “fundamentally determination, we note his conclusion unfair” conviction? lying).
[34] The demonstrated he was 405 U.S. 150, 154 (1972), because “[s]uch existence of evidence tending to contradict evidence is ‘evidence favorable to an testimony the government elicits at trial accused.’” United States v. Bagley, 473 does not conclusively show that either the U.S. 667 (1985) (quoting Brady, 373 U.S. witness perjured himself or (if he did) that at 87). Thus to establish a Brady violation the government knew or should have requiring relief, a defendant must show known of the perjury. The PCRA Court’s that (1) the government withheld evidence, factual findings are dispositive. either willfully or inadvertently; (2) the evidence was favorable, either because it b. Suppression of was exculpatory or of impeachment value; Brady Material and (3) the withheld evidence was In Brady v. Maryland, the Supreme material. See Banks v. Dretke, -- U.S. --, Court held “that the suppression by the 124 S. Ct. 1256, 1272 (2004); United prosecution of evidence favorable to the States v. Palermo, 929 F.2d 967, 970 (3d accused upon request violates due process Cir. 1991). where the evidence is material either to The PCRA Court found that guilt or to punishment, irrespective of the Lambert had not made either of the latter good faith or bad faith of the prosecution.” two showings. With respect to the second 373 U.S. at 87. The Court subsequently prerequisite, the Court found that Bayan’s held that “a defendant’s failure to request statement was not the type of evidence that favorable evidence did not leave the fell within the government’s duty to Government free of all obligation,” and a disclose under Brady. Specifically, the Brady violation might arise “where the Court held that “[a]bsent a specific request G o v e r nme nt f a i le d t o v o l u n te e r by the defendant for exculpatory evidence, exculpatory evidence never requested, or a prosecutor has a duty to make evidence requested only in a general way.” Kyles v. available to the defense that is truly Whitley, 514 U.S. 419, 433 (1995). In exculpatory rather than merely favorable.” PCRA Decision 170. And it found that the evidence was not “truly exculpatory” in
[34] The PCRA Court did not part because Lambert’s lawyer told the explicitly make this factual determination, prosecution that Lambert planned to but it is implicit in its findings. And we contend at trial that Yunkin had picked her owe AEDPA deference to both express up on Oak View Road. Id. at 171-72. We and implicit factual findings. See Weeks review this legal determination under § v. Snyder, 219 F.3d 245, 258 (3d Cir. 2254(d)(1) to determine whether it was 2000); Campbell v. Vaughn, 209 F.3d contrary to or an unreasonable application 280, 285-86 (3d Cir. 2000).
[41] Indeed, we have come across no drawing depicts Show’s body at a slight angle to the closet. Apparently, Lambert portion of the trial record where the feels the drawing is accurate only insofar Commonwealth used the photograph to as it is inconsistent with the photograph. discredit any of Lambert’s testimony.
[43] Throughout this decision we We discern four arguments of have found the PCRA Court’s factual constitutional error from the unstructured determinations to be “reasonable,” which discussion of the river searches in is the standard that we must apply under Lambert’s brief. First, Lambert argues that AEDPA. We note, however, that neither flaw warrants habeas relief.
[44] Lambert appears to argue that the government violated the Constitution by There lurks in the background of failing to preserve the pink bag and this decision the fact that one federal sneaker. The Supreme Court’s decisions in district judge -- Judge Dalzell -- found California v. Trombetta, 467 U.S. 485 Lambert “actually innocent” and (1984) and Arizona v. Youngblood, 488 characterized the government’s conduct as U.S. 51 (1988) establish standards for “the worst case of prosecutorial determining whether the government has misconduct in English-speaking infringed on a defendant’s due process experience.” Lambert v. Blackwell, 205 rights by failing to preserve evidence. See F.R.D. 180, 182 (E.D. Pa. 2002). After a United States v. Ramos, 17 F.3d 65, 69 (3d comprehensive review of the record, we Cir. 1994). Of relevance here is the conclude that these findings are wholly requirement of bad faith on the part of the insupportable. government. In Youngblood, the Supreme Court held that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a
[44] We also reject Lambert’s denial of due process of law.” argument that the writ should be granted Youngblood, 488 U.S. at 58; see also based on the “cumulative effect” of the United States v. Stevens, 935 F.2d 1380, alleged constitutional violations. The few 1387 (3d Cir. 1991). errors we have identified, taken together, had no material effect on the trial.
