Lisa Michelle LAMBERT, v. Charlotte BLACKWELL, Mrs., Superintendent; The Attorney General of the State Of Pennsylvania, Appellants.
Nos. 97-1281, 97-1283, 97-1287.
United States Court of Appeals, Third Circuit.
Argued Oct. 21, 1997. Decided Dec. 29, 1997. As Amended Jan. 16, 1998.
Sur Petition for Rehearing Jan. 26, 1998.
134 F.3d 506
We have considered all of plaintiff‘s remaining claims and we find them to be entirely without merit.
To summarize:
III.
(1) The judgment of the district court is affirmed insofar as it upheld the ALJ‘s credibility findings with respect to plaintiff‘s testimony at the administrative hearing. Accordingly, the ALJ need not reweigh plaintiff‘s testimony.
(2) The judgment of the district court is affirmed insofar as it found no need to instruct the ALJ to develop the record with regard to plaintiff‘s mental condition during the relevant period.
(3) Because we are unable to determine with certainty what legal standard the ALJ applied in weighing the medical opinion of plaintiff‘s treating physician, because applying the correct standard does not lead to only one possible conclusion, and because the ALJ failed to supply “good reasons” for discounting that opinion as required by SSA regulations, we vacate the judgment of the district court insofar as it upheld the Commissioner‘s decision to deny SSI benefits and remand to the district court with instructions to remand to the SSA so that the evidence can be reweighed pursuant to the 1991 Regulations.
(4) In light of our decision that a remand to the SSA is necessary, we need not act on the appeal from the judgment of the district court denying plaintiff‘s Rule 60(b) motion for relief from the judgment.
Richard A. Sprague (argued), Geoffrey R. Johnson, Theodore J. Chylack, Joseph R. Podraza, Jr., T. Truxtun Hare, David S. Lubin, Deborah B. Miller, Sprague & Sprague,
D. Michael Fisher, Attorney General of Pennsylvania, Jerome T. Foerster, Senior Deputy Attorney General, Appeals and Legal Services Section, Robert A. Graci Assistant Executive Deputy Attorney General, Office of Attorney General of Pennsylvania Law and Appeals, Harrisburg, PA, Daniel E. Lungren, Attorney General of California, Sacramento, CA, M. Jane Brady, Attorney General of Delaware, Wilmington, DE, Richard P. Ieyoub, Attorney General of Louisiana, Baton Rouge, LA, W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, OK, Charles M. Condon, Attorney General of South Carolina, Columbia, SC, for Amicus Appellants: Commonwealth of Pennsylvania, State of California, State of Delaware, State of Louisiana, State of Oklahoma, State of South Carolina.
Donna G. Zucker, Assistant District Attorney, Ted McKnight, President, Pennsylvania District Attorneys Association, Philadelphia, PA, for Amicus Curiae Pennsylvania District Attorneys Association.
Before: MANSMANN and GREENBERG, Circuit Judges, and ALARCON, Circuit Judge.*
OPINION OF THE COURT
MANSMANN, Circuit Judge.
In this appeal we are faced with the onerous task of determining whether the district court, upon petition for writ of habeas cor-
I.1
Laurie Show became romantically involved with Lisa Lambert‘s boyfriend, Lawrence “Butch” Yunkin, for a brief period in June of 1991. Thereafter, Show incurred the wrath of Lambert, who accosted Show on several occasions. On the morning of December 20, 1991, Show was brutally murdered. Lambert and an accomplice, Tabitha Buck, were subsequently charged with criminal homicide for the murder of Show.2 Buck was convicted of second degree murder by a jury of her peers; Yunkin, in exchange for his truthful testimony against Lambert, pled guilty to hindering apprehension.3
* Honorable Arthur L. Alarcon of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
Subsequently, Lambert, through new counsel, Jules Epstein, Esq., filed a Motion for a New Trial based on allegations of after-discovered evidence5 and ineffective assistance of trial counsel.6 An evidentiary hearing on the new motion was conducted over a two-day period in November of 1994. On March 14, 1995, the state trial court denied Lambert‘s motion for post-verdict relief. In June of 1995, Lambert appealed the judgment of sentence imposed by the state trial court to the Superior Court of Pennsylvania, raising essentially the same claims regarding ineffective assistance of trial counsel and after-discovered evidence.7 A three-judge panel of the Superior Court of Pennsylvania affirmed the judgment of sentence on January 4, 1996. In her direct appeal to the Pennsylvania Supreme Court filed on February 2, 1996, Lambert again raised the same claims.8 Lambert‘s petition for allowance of appeal was subsequently denied on July 2, 1996. Lambert did not seek collateral review of any of her claims through the Pennsylvania Post-Conviction Relief Act.
Despite the Commonwealth‘s objections to Lambert‘s petition on the grounds of exhaustion and procedural default, the district court determined that it would allow broad discovery and would conduct an evidentiary hearing on Lambert‘s claims of actual innocence and prosecutorial misconduct while, at the same time, considering the Commonwealth‘s procedural claims of exhaustion and procedural default. The district court denied the Commonwealth‘s objection that the evidentiary hearing was prohibited by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA“), codified at
The district court issued its Order and Memorandum Opinion on April 21, 1997.12 Lambert v. Blackwell, 962 F.Supp. 1521 (E.D.Pa.1997). The court found that the 1995 amendment to the Pennsylvania Post Conviction Relief Act (“PCRA“),
The court further opined that to the extent there may be claims which a Pennsylvania court might view as not being waived, the state proceedings would be ineffective to protect Lambert‘s rights if the district court dismissed the petition. Id. at 1554. Moreover, the court found that if it were to dismiss this case as a mixed petition pursuant to Rose v. Lundy, supra, “on the suspicion that perhaps its reading of the PCRA was wrong,” then Lambert would be deemed to have taken her one bite of the apple under the AEDPA. Id. Consequently, in order for Lambert to return to federal court, the district court opined, she would need the approval of the court of appeals and denial of such application was unreviewable by the Supreme Court. The district court felt that under these extraordinary circumstances, such a result was constitutionally intolerable.13 Id.
Finally, the district court explained that in such an extraordinary case, the principles of comity allowed it to excuse total exhaustion or procedural default in the face of a manifestly unjust incarceration.14 Id. In any event, the court found that the Commonwealth‘s concession at the evidentiary hearing that Lambert was entitled to some relief effected a waiver of the exhaustion objection.
The Commonwealth filed a timely notice of appeal on April 22, 1997. We have jurisdiction over this appeal pursuant to
II.
We note at the outset that the parties do not dispute that Lambert‘s petition includes claims which were not presented to the state court.16 Unlike the district court, however, we cannot dispense with consideration of the exhaustion and procedural default claims in favor of reaching the merits of Lambert‘s claim of actual innocence.17 Rath-
Notes
er, we find that Supreme Court precedent and the AEDPA mandate that prior to determining the merits of her petition, we must consider whether Lambert is required to present her unexhausted claims to the Pennsylvania courts. We turn, therefore, to a discussion of exhaustion of state claims under the AEDPA.
A.
It is axiomatic that a federal habeas court may not grant a petition for a writ of habeas corpus filed by a person incarcerated from a judgment of a state court unless the petitioner has first exhausted the remedies available in the state courts.
The Supreme Court has made clear that a section 2254 petition which includes unexhausted as well as exhausted claims, i.e., a mixed petition, must be dismissed without prejudice. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982). In reaching this conclusion, the Court analyzed the policies underlying section 2254 since it found that Congress‘s intent was unclear from the statute or legislative history. Id. at 516-17, 102 S.Ct. at 1202-03. In endorsing rigorous enforcement of the total exhaustion rule, the Court acknowledged the preference among federal jurists to allow state courts the initial opportunity to review and correct alleged violations of federal constitutional rights. This preference is derived from principles of comity.18 Id. at 518, 102 S.Ct. at 1203. The Court further noted that adoption of a total exhaustion rule causes a reduction in piecemeal litigation, thereby increasing the likelihood that all claims will be reviewed in a single proceeding. Id. at 520, 102 S.Ct. at 1204. Finally, the Court observed that the prisoner‘s interest in obtaining speedy relief in federal court on his claims would not be unreasonably impaired by requiring total exhaustion. Id. at 520-22, 102 S.Ct. at 1204-05. Thus, Lundy teaches that if the petitioner fails to satisfy the ex-
based on a record less complete than that before us and not reached after the opportunity for the intensive study available to a merits panel, is not binding on this panel. See Third Circuit I.O.P. 9.1 (only the holding of a panel in a published opinion is binding on subsequent panels). See also United States v. Houser, 804 F.2d 565, 568 (9th Cir.1986). In any event, the motions panel did not preclude the respondents from raising the exhaustion issue. Rather, it merely opined that they were not likely to succeed on it. In fact, upon fuller presentation and consideration, they have succeeded.
Five years later, the Supreme Court handed down its decision in Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). In Granberry, the district court had dismissed the federal habeas petition upon the state‘s motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. When the petitioner appealed, the state for the first time interposed the defense that the petitioner had not exhausted his state remedies. The petitioner responded by arguing that the state waived this defense by failing to raise it in the district court. The Supreme Court granted certiorari to consider whether the state‘s failure to raise the exhaustion defense in the district court constituted a waiver of that claim in the court of appeals. Id. at 130, 107 S.Ct. at 1673.
The Court held in Granberry that where the state has failed to raise, in the district court, an arguably meritorious nonexhaustion defense, through inadvertence or otherwise, the court of appeals may appropriately examine the nonexhaustion issue anew. Id. at 134, 107 S.Ct. at 1675. In determining whether the interests of comity and federalism were better served by addressing the merits despite non-exhaustion, the Supreme Court delineated the following standard:
If, for example, the case presents an issue on which an unresolved question of fact or of state law might have an important bearing, both comity and judicial efficiency may make it appropriate for the court to insist on complete exhaustion to make sure that it may ultimately review the issue on a fully informed basis. On the other hand, if it is perfectly clear that the applicant does not raise even a colorable federal claim, the interests of the petitioner, the warden, the state attorney general, the state courts, and the federal courts will be well served even if the State fails to raise the exhaustion defense, the district court denies the habeas petition, and the court of appeals affirms the judgment of the district court....
Granberry v. Greer, 481 U.S. at 134-35, 107 S.Ct. at 1675-76. Thus, we learn from Granberry that where a state fails to raise a nonexhaustion defense in the district court, courts of appeals should consider whether, under the particular facts and circumstances presented, the interests of justice would be served by addressing the merits of the habeas petition if it is clear the petitioner has failed to state a colorable federal claim, or by requiring exhaustion. Id. at 136, 107 S.Ct. at 1676. We emphasize, however, our previous holding that Granberry applies to “any claim before the court of appeals for which the state neglected to raise non-exhaustion in the district court.” Keller v. Petsock, 853 F.2d 1122, 1128 n. 6 (3d Cir.1988). Clearly that is not the case before us. The Commonwealth has aggressively asserted the nonexhaustion defense first in the district court and now on appeal. Indeed, in our most recent decisions applying Granberry, the state had failed to raise the nonexhaustion defense in the district court. See, e.g., Smith v. Horn, 120 F.3d 400 (3d Cir.1997); Evans v. Court of Common Pleas, Delaware County, 959 F.2d 1227 (3d Cir.1992); Keller v. Petsock, supra.
Significantly, two changes in the federal habeas statute are derived from the Supreme Court‘s decision in Granberry. First, under the AEDPA, a district court may no longer infer that a state has waived the nonexhaustion defense from its failure to invoke the defense expressly. Gaylor v. Harrelson, 962 F.Supp. 1498, 1499 & n. 2 (N.D.Ga.1997). The revised statute now requires an express waiver through counsel in order for the state to have waived the nonexhaustion defense.
We cannot say that it is perfectly clear that Lambert has not raised a colorable federal claim. The district court obviously found substantial merit to Lambert‘s claims of actual innocence and prosecutorial misconduct. These claims present unresolved questions of fact and of state law and, thus, the interests of comity and justice are better served by requiring complete exhaustion.
We note that section 2254(b)(2) does not provide the district court with the authority to grant relief on the merits where the petitioner fails to exhaust state remedies. Thus, a strict reading of the statute compels us to conclude that if a question exists as to whether the petitioner has stated a colorable federal claim, the district court may not consider the merits of the claim if the petitioner has failed to exhaust state remedies and none of the exceptions set forth in sections 2254(b)(1)(B)(i) and (ii) applies. Lambert argues, in contrast, that Granberry establishes that where the district court has held a full trial and found a miscarriage of justice, a failure to exhaust is excused. We disagree. The particular language in Granberry to which Lambert refers states:
[I]f a full trial has been held in the district court and it is evident that a miscarriage of justice has occurred, it may also be appropriate for the court of appeals to hold that the nonexhaustion defense has been waived in order to avoid unnecessary delay in granting relief that is plainly warranted.
481 U.S. at 135, 107 S.Ct. at 1676. We note that, unlike in Granberry, the state has not waived the nonexhaustion defense. Second, the AEDPA now explicitly requires an ex-
For these reasons, we also reject Lambert‘s contention that exhaustion is excused based on the “special circumstances rule” derived from Supreme Court jurisprudence, specifically Granberry v. Greer, supra, and Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952).19 We agree with the Commonwealth that Granberry relates only to the special circumstance of the prosecution never having raised the exhaustion defense prior to appeal so that the Supreme Court permitted the court of appeals to rule on the merits of the petition. After enactment of the AEDPA in 1996,
Lambert‘s reliance on Frisbie v. Collins, supra, is likewise misplaced, as that decision does not support a finding of exceptional circumstances here.20 In Frisbie, the Su-
Recently, we considered the section 2254 exhaustion requirement with regard to a mixed petition where, as here, the state asserted the nonexhaustion defense in the district court. Christy v. Horn, 115 F.3d 201, 206 (3d Cir.1997). Acknowledging the Supreme Court‘s strong presumption in favor of exhaustion, we also recognized that “in rare cases exceptional circumstances of peculiar urgency may exist which permit a federal court to entertain an unexhausted claim.” Id. at 206-07 (citations omitted). We explained that such circumstances exist where “state remedies are inadequate or fail to afford a full and fair adjudication of the federal contentions raised, or where exhaustion in state court would be ‘futile.‘” Id. at 207 (citations omitted). Applying this principle in Christy, we declined to find an exceptional circumstance which would excuse nonexhaustion. We found the mere risk that the state courts would not stay the petitioner‘s execution while his federal constitutional claims are being litigated did not amount to an “unusual circumstance.” The more appropriate inquiry, we found, was to focus on the actuality that state courts will refuse to stay an execution while federal claims are pending. Id.
Applying our holding in Christy to Lambert‘s petition, we turn our attention to the actuality that the state courts would refuse to
Our conclusion is further buttressed by the holding of our sister court of appeals in O‘Guinn v. Dutton, 88 F.3d 1409 (6th Cir. 1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 681 (1997). There the unexhausted claim involved allegations of prosecutorial misconduct stemming from Brady violations. The court of appeals found that the state courts had an important interest in reviewing a serious constitutional claim involving the conduct of a state prosecutor in withholding evidence in a state trial in which the defendant was prosecuted for a violation of state law. Id. at 1412. Accordingly, the court held that the “interests of justice and comity [did] not weigh in favor of having [the federal court] decide the question.” Id. at 1413. Having found that the case did not present any unusual or exceptional circumstances, the court concluded that the state courts should address the prosecutorial misconduct claim in the first instance. Id.
In contrast, we find that the cases cited by Lambert, Evans v. Court of Common Pleas, supra, and Moore v. DeYoung, 515 F.2d 437 (3d Cir.1975), do not support her argument that special circumstances exist which would excuse exhaustion. It is true that in Evans we held that “[e]xhaustion is not a jurisdictional requirement, but rather a rule of comity, and a federal court may in certain circumstances decide the merits of a claim despite nonexhaustion.” 959 F.2d at 1231. We elaborated on the circumstances which would support non-exhaustion: where the petitioner has no opportunity to obtain relief in a state court, or where the state corrective process is so deficient as to render any effort to obtain relief futile. Id. (citing Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986)).
ing in guidance on the parameters of the [special circumstances] exception.” We agree with the Commonwealth‘s analysis of Frisbie.
Unlike Evans, Lambert presents numerous claims which are not the substantial equivalent of those presented to the state court in the direct appeal of her murder conviction. Her petition is more factually analogous to Gibson v. Scheidemantel, supra. There the petitioner alleged an ineffective assistance of counsel claim in state court, but he asserted a different basis for this claim in the state proceeding than that presented in his federal habeas claim. Consequently, we held that the petitioner had not exhausted his claim since the state courts could not be expected to consider a claim that was never made. 805 F.2d at 139.
Nor do we find that Lambert‘s position is supported, as she contends, by our decision in Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975). There we acknowledged the possibility that federal habeas review to enjoin a state criminal proceeding prior to trial was possible despite nonexhaustion if “extraordinary circumstances are present.” Id. at 443. In finding that Moore failed to present an “‘extraordinary circumstance’ which would warrant pretrial, pre-exhaustion habeas corpus relief,” we declined to define the parameters of the “extraordinary circumstances” exception, holding only that whatever the boundaries may be, Moore‘s petition fell outside those limits.22 Id. at 447. We noted,
B.
Although we discount Lambert‘s reliance on Granberry, Frisbie, Evans, and Moore to support a finding of exceptional circumstances sufficient to excuse nonexhaustion, our inquiry does not end there. As we stated earlier, one of the exceptional circumstances in which courts have dispensed with the exhaustion requirement is if further state litigation would be futile. Christy, 115 F.3d at 207. See also Twenty-Sixth Annual Review of Criminal Procedure, 85 Geo. L.J. 775, 1521 & n. 2755 (1997). In making this determination, courts have examined the totality of the circumstances surrounding each petition. Id. at 1521 n. 2755. For example, the Court of Appeals for the First Circuit found the exhaustion requirement excused when a recent independent decision by the highest state court clearly rendered appellate review futile. Id. (citing Allen v. Attorney General of Maine, 80 F.3d 569, 573 (1st Cir.1996)). Another court of appeals excused the exhaustion requirement when it was clear that the petitioner‘s claims would be deemed procedurally barred if presented in the state court. Id. (citing Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.1991)). Some courts have been reluctant to apply the futility exception, however, because it has been criticized for potentially bypassing the state courts. Id. at 1522 n. 2755 (citations omitted). Most importantly, we recently applied our jurisprudence to hold that unless a state court decision exists indicating that a habeas petitioner is clearly precluded from state court relief, the federal habeas claim should be dismissed for nonexhaustion, even if it appears unlikely that the state will address the merits of the petitioner‘s claim. Banks v. Horn, 126 F.3d 206,
In Banks, we were faced with whether the Pennsylvania Supreme Court, in death penalty cases, consistently or regularly bars second or subsequent PCRA petitions which may not meet the court‘s criteria for such petitions, “includ[ing] the existence of ‘a strong prima facie showing ... that a miscarriage of justice may have occurred.‘” Banks v. Horn, 126 F.3d at 211 (citing Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773, 777 (1996), cert. denied, 520 U.S. 1121, 117 S.Ct. 1257, 137 L.Ed.2d 337 (1997)). We concluded, based on our review of Pennsylvania case law, that the Pennsylvania Supreme Court had established a practice of reaching the merits of claims in PCRA petitions in capital cases notwithstanding the failure of the petitioner to meet the appropriate procedural requirements. Id. at 212-13. Because we were not sure that the supreme court would change this practice after the 1995 amendments to the PCRA, we found that state review of Bank‘s unexhausted claims was not foreclosed. Id. at 214.
In deciding Banks, we relied on Doctor v. Walters, supra, which involved a defendant who fled during the lunch recess of his criminal bench trial on the charge of aggravated assault following the presentation of the Commonwealth‘s case. When the defendant failed to return, the trial court, without informing the defendant, his counsel, or the Commonwealth, entered a guilty verdict against Doctor. Upon his capture five years later, Doctor was sentenced to a term of 49 to 98 months in prison. He filed a timely direct appeal to the Pennsylvania Superior Court which quashed the appeal without reaching the merits based on the fugitive forfeiture rule.23 Both the Pennsylvania Supreme Court and the United States Supreme Court also declined to hear his appeals. In his federal habeas petition, Doctor raised a Sixth Amendment claim which had not been presented to any Pennsylvania court. We
Likewise, in Toulson v. Beyer, we considered whether it would be futile to require the petitioner to exhaust his state remedies first. 987 F.2d at 986. There the defendant was convicted in a New Jersey court of various non-capital offenses. After a series of unsuccessful direct appeals to the New Jersey courts and the denial of his motion for post-conviction relief by the state trial court, Toulson filed a federal habeas petition containing unexhausted but procedurally barred claims in addition to exhausted claims. In examining pertinent New Jersey law, we found that it was possible that a New Jersey court may allow state review of otherwise procedurally barred claims based on one of two statutory exceptions to the procedural bar rule. 987 F.2d at 988. Accordingly, we held that “[b]ecause no state court has concluded that petitioner is procedurally barred from raising his unexhausted claims and state law does not clearly require a finding of default, ... the district court should have dismissed the petition without prejudice for failure to exhaust state remedies.” Id. at 989. Thus, our precedent makes clear that Lambert must exhaust her state remedies before she can seek federal habeas relief unless such an attempt would be futile. Doctor, 96 F.3d at 681 (citing Toulson, 987 F.2d at 987).
Futility may be encountered where exhaustion is impossible due to procedural default, i.e., the state court refuses to hear the merits of the claim because either (1) the defendant waived a PCRA claim she could have raised in an earlier proceeding but failed to do so; or (2) some other procedural bar exists, such as a statute of limitations. Doctor, 96 F.3d at 681. Moreover, a
If the federal court is uncertain how a state court would resolve a procedural default issue, it should dismiss the petition for failure to exhaust state remedies even if it is unlikely that the state court would consider the merits to ensure that, in the interests of comity and federalism, state courts are given every opportunity to address claims arising from state proceedings. See Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986); Toulson, 987 F.2d at 987.
Id. We must determine, therefore, whether, in the case before us, Pennsylvania collateral review is “clearly foreclosed” such that further state proceedings are futile.
C.
In Pennsylvania, collateral review of a criminal conviction is available under the Post Conviction Relief Act (“PCRA“) of 1995,
(1) The petitioner‘s rights under the Pennsylvania Constitution or the Constitution or laws of the United States were violated which, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(2) The petitioner received ineffective assistance of counsel which, under the circumstances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.
(3) Exculpatory evidence, which was unavailable at the time of trial, was subsequently discovered and would have changed the outcome of the trial if it had been introduced.
Next, the petitioner must show by a preponderance of the evidence that the alleged error has not been previously litigated or waived.
Finally, by a preponderance of the evidence, the petitioner must demonstrate that the failure to litigate an issue previously was not the result of any rational, strategic or tactical decision by counsel.
Particularly significant to this appeal is the PCRA provision on waiver, which states, “an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.”
In the past, the Pennsylvania Supreme Court has allowed the petitioner, in limited circumstances, to overcome the waiver provisions where he has made a strong prima facie showing that a “miscarriage of justice” may have occurred. Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107, 112
A miscarriage of justice, like prejudice, can only occur where it is demonstrated that a particular omission or commission was so serious that it undermined the reliability of the outcome of the proceeding. Where a conviction can be shown to result from a breakdown in the adversary process, the conviction rendered is unreliable. Such a conviction is obviously prejudicial to the defendant and, if allowed to stand, is a miscarriage of justice.
Lawson, 549 A.2d at 112 (Papadakos, J., concurring).
Moreover, we noted in Doctor that allegations of a miscarriage of justice have been permitted to override the waiver provisions of the PCRA in the context of successive PCRA petitions, which was the situation in Lawson, supra. 96 F.3d at 682 n. 6. We further noted that the Pennsylvania courts, however, have not addressed whether a showing of miscarriage of justice can be applied to overcome the waiver provisions in an initial PCRA petition. Id. In Doctor, we refused to find that collateral review was foreclosed since we concluded that Pennsylvania case law left open the possibility that a showing of miscarriage of justice can overcome the waiver provisions in an initial PCRA petition. Id. We thus concluded that a return to state court would not be futile. Id. at 683.
In Banks, we reiterated our policy regarding review of waived or procedurally defaulted claims, which we originally stated in Toulson and applied in Doctor:
[I]n the absence of a state court decision indicating that a habeas corpus petitioner is clearly precluded from state court relief,
the district court should dismiss the claim for failure to exhaust even if it is not likely that the state court will consider petitioner‘s claim on the merits.
126 F.3d at 211. We have applied this policy to all habeas corpus cases involving state convictions regardless of the sentence imposed. Whether, in fact, state case law exists which establishes unequivocally that state relief is precluded would depend on the particular facts of the case. Although factually Banks is distinguishable from Lambert‘s situation, the general rule of Banks governs our resolution of this dispute.26 Neither Lambert nor the district court cites any authority to the contrary. The Commonwealth, on the other hand, cites several decisions in which Pennsylvania courts have expressed a willingness to depart from the PCRA‘s stringent waiver standards for non-capital, as well as capital cases, where actual innocence or manifest injustice is alleged. See Commonwealth v. Moss, 455 Pa.Super. 578, 689 A.2d 259, 262 (1997) (where there is a strong prima facie showing that a miscarriage of justice may have occurred in a rape conviction, court will consider the merits of a fifth PCRA petition); Commonwealth v. Williams, 442 Pa.Super. 590, 660 A.2d 614, 618-19 (1995), appeal denied, 544 Pa. 608, 674 A.2d 1071 (1996) (although the court denied PCRA relief to a defendant who pled nolo contendere to robbery, it acknowledged that Pennsylvania
A showing of ineffective assistance of counsel may also excuse waiver. Morales, 701 A.2d 516, 520-21 (citing Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877, 881 (Pa.), cert. denied, 516 U.S. 872, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995)) (ineffective assistance of counsel could be a basis for post-conviction relief only if the defendant had a constitutional right to counsel in the proceeding in which he claimed ineffectiveness); see also Commonwealth v. Buehl, 540 Pa. 493, 658 A.2d 771, 777 (1995) (three members of a divided court interpreted the PCRA to require a defendant claiming ineffectiveness of counsel to meet a more demanding standard of prejudice than if he had raised this issue on direct appeal); Thomas M. Place, Ineffective Assistance of Counsel Under the Pennsylvania Post Conviction Relief Act, 69 Temple L.Rev. 1389 (1996). Waiver of errors under the PCRA will be excused for ineffective assistance of counsel if the defen-
Our review of Pennsylvania decisional law leads us to conclude that it is unclear after the 1995 amendments to the PCRA whether the Pennsylvania courts would allow a showing of miscarriage of justice to overcome the waiver provisions in a non-capital case upon an initial PCRA petition. Indeed, we have not discovered cases addressing this issue after the passage of the 1995 amendments. Accordingly, we cannot say that requiring Lambert to seek review of her claims in the state courts is futile.28
III.
In seeking state collateral review of her nonexhausted claims, Lambert has several options. It is possible that under
A.
The Pennsylvania Transfer Statute provides in pertinent part:
(a) General rule.—If an appeal or other matter is taken to or brought in a court of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court ... shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other
[Section 5103(a)] shall also apply to any matter transferred or remanded by any United States court for a district embracing any part of this Commonwealth. In order to preserve a claim under Chapter 55 (relating to limitation of time), a litigant who timely commences an action or proceeding in any United States court for a district embracing any part of this Commonwealth is not required to commence a protective action in a court ... of this Commonwealth. Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court ... of this Commonwealth by complying with the transfer provisions set forth in [section 5103(b)(2)].
Although the transfer act clearly applies when the original court lacks jurisdiction over the appeal or other matter, we believe it may also apply here where the district court dismisses a federal habeas petition for failure to exhaust state remedies.29 The language of section 5103(b)(1) indicates that a purpose of the statute is to prevent the barring of claims and other matters under the statute of limitations when the original court lacked jurisdiction over a matter which was timely filed. Applying the transfer act under the facts
We hasten to add, however, that we are not endorsing the application of the transfer statute in all federal habeas actions dismissed for nonexhaustion. Rather, we suggest that transfer may be appropriate where, as here, the district court did not originally dismiss the petition for failure to exhaust state remedies. Instead, the court prematurely proceeded to adjudicate the merits of the claim during which the one-year statute of limitations expired. Under these unique circumstances, the Pennsylvania transfer statute may apply and any action commenced by Lambert under the PCRA would be treated as filed on September 12, 1996, the date on which she filed her petition for writ of habeas corpus in the district court.
B.
Lambert has yet another option. The 1995 amendment to the PCRA enacted for the first time a one-year statute of limitations.30 Since the effective date of the 1995 Act is January 16, 1996, and Lambert‘s direct appeal was final on September 30, 1996, ninety days after July 2, 1996, under
The possibility exists that Lambert may be able to plead and prove one or more of the excuses to the statute of limitations. For example, Lambert has alleged in her federal habeas petition that she discovered certain exculpatory evidence after her conviction for first degree murder. Moreover, she cites
IV.
One final matter bears mention. Each side has brought to our attention serious factual issues concerning the district court‘s finding that Lambert was actually innocent of first degree murder. In light of our resolution of Lambert‘s petition, we need not comment on Lambert‘s actual innocence. Indeed, to do so would be to “deprive the state courts of an ‘opportunity to correct their own errors, if any,‘” Doctor, 96 F.3d at 683 (citing Toulson, 987 F.2d at 989), by engaging in a premature examination of the verdict prohibited by Congress under the AEDPA.
We do not, however, diminish the obvious sense of outrage expressed by the prosecution nor that of the able district judge who heard and evaluated the evidence Lambert proffered. Resolution of these difficult ques-
Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, MCKEE and ALARCON,** Circuit Judges.
SUR PETITION FOR REHEARING
Jan. 26, 1998
The petition for rehearing filed by appellee in the above entitled case having been submitted to the judges who participated in the decision of this court and to all other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judges Nygaard, Roth, Lewis and McKee would have granted rehearing. Attached is Judge Roth‘s Opinion Sur Denial in which Judges Nygaard, Lewis and McKee join.
ROTH, Circuit Judge,
I voted for rehearing in banc because I am profoundly disturbed by the panel‘s refusal to consider the merits of Lisa Michelle Lambert‘s petition for a writ of habeas corpus and by the panel‘s decision to vacate the judgment of the district court and to remand the case with instructions to dismiss Lambert‘s petition. I am familiar with the merits of the habeas proceeding from reading large portions of the transcript of the proceedings before the district court. As a result, I am aware of the evidence of prosecutorial misconduct that occurred during Lambert‘s original trial. I find it to be truly shocking. This misconduct included suppression of key evidence, witness tampering, provision of
** Senior Circuit Judge Alarcon voted only as to
Once the district court had made factual findings regarding the extent of prosecutorial misconduct, findings that critically undermined the validity of the original verdict against Lambert, I find it to be a miscarriage of justice for this Court to turn its back upon the merits of her petition.
Moreover, I differ with the panel‘s conclusion that a failure to exhaust was not excused by the facts of this case. I find sufficient the district court‘s determination that the Commonwealth had waived any exhaustion argument. This finding of waiver was made on April 16, 1997, after the Lancaster County Prosecutor conceded on the record that relief was warranted. The district judge, who was present to assess the statements and the demeanor of the prosecutor, found that the Commonwealth‘s later attempt to retract the concession was ineffective. Nevertheless, the panel‘s opinion concludes that the district court erred in finding waiver because of the circumstances in which the concession was made. Panel Opinion at 522 [typescript at 32 n.28]. Because, however, the panel so carefully avoids any consideration of the merits of the case, its opinion fails to note that the Commonwealth‘s concession was made in the aftermath of the shocking recollection by the victim‘s mother, Hazel Show, that she had been encouraged by a Lancaster County police officer to suppress critical information that corroborated Lambert‘s account of the events surrounding the murder of Laurie Show.
Indeed, even if the district court were to have erred in reaching the issue of actual innocence, once there has been a demonstration of a miscarriage of justice, such as I find here, I cannot turn my back on that showing.
Moreover, even if I were to disregard the Commonwealth‘s concession that relief was warranted, I believe that proof of a miscarriage of justice to the extent uncovered in this case requires a determination that the issue of exhaustion has been waived. In Granberry v. Greer, supra, a unanimous Court established that “if a full trial has been held in the district court and it is evident that a
panel rehearing.
I do not agree that the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) has eroded the Court‘s holding in Granberry. I do not agree that, once such a demonstration of injustice has been placed on the record, we can turn our backs on it under the excuse of AEDPA.
Given the degree of misconduct uncovered during the fourteen days of testimony before the district court, this is unquestionably a case in which the interests of justice demand that the exhaustion requirement be waived.
I will make no statement regarding the propriety of the extent of the relief ordered by the district court. However, I find it impossible to conclude that a habeas petitioner, who has proven by clear and convincing evidence that she has suffered a miscarriage of justice, must return to a prison cell to start her petitions all over again. For the above reasons, I believe that the panel should have reviewed on the merits the district court‘s granting of the petition for habeas corpus.
Judges Nygaard, Lewis and McKee join in this Opinion.