2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-13-2007

Washington v. Sobina

Precedential or Non-Precedential: Precedential

Docket No. 05-4522

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

 

No. 05-4522 

 

RICHARD A. WASHINGTON

v.

RAYMOND J. SOBINA, SUPERINTENDENT;

THE DISTRICT ATTORNEY OF 

THE COUNTY OF PHILADELPHIA;

THE ATTORNEY GENERAL OF 

THE STATE OF PENNSYLVANIA,

 Appellants

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 02-cv-07474)

District Judge: Honorable Anita B. Brody

 

Submitted Under Third Circuit LAR 34.1(a)

October 22, 2007

Before: SLOVITER, CHAGARES, and HARDIMAN, 

Circuit Judges

(Filed December 13, 2007 )

____

Thomas W. Dolgenos

Susan E. Affronti

Office of District Attorney

Philadelphia, PA l9l07-3499

Attorneys for Appellants
2

Richard A. Washington #DK-8177

Somerset, PA 15510

Appellee Pro Se

____

OPINION OF THE COURT

 

SLOVITER, Circuit Judge.

Federal judges reviewing habeas corpus matters often

face a difficult assignment. Frequently, the state court records

presented are in disarray or incomplete, the defendant was

unrepresented or inadequately represented in the state

proceedings, and the deference to be accorded is unclear, as it

may depend on whether the state court’s decision was based on a

finding of fact or conclusion of law. In the appeal before us, the

District Court undertook a meticulous examination of the record

and the applicable legal principles, but our decision hinges on

the characterization of the state court finding - one on which the

parties vigorously disagree.

I.

Richard A. Washington was arrested on December 18,

1995, and thereafter charged in state court on numerous counts

in connection with the kidnapping of Asha Woodall, his

girlfriend, and the murder of Anthony Carney, who Washington

believed was having a relationship with Woodall. Washington

v. Sobina, 387 F. Supp. 2d 460, 462 (E.D. Pa. 2005). On

December 22, 1998, after the first trial ended in a mistrial, the

second jury found Washington guilty of criminal conspiracy,

possession of an instrument of crime, and robbery of a motor

vehicle. The jury also acquitted him of some charges, including

first degree murder, and was unable to reach a verdict on the
 Washington’s third trial began on February 10, 2003, and 1

ended with a hung jury on February 21, 2003. Id. at 464. While

awaiting a fourth trial, Washington pled guilty to the untried

murder and kidnapping charges on May 9, 2006, and was sentenced

to a total of seven and one-half to twenty years imprisonment to run

concurrently with the sentence for the three counts of conviction.

3

counts charging the lesser degrees of murder and kidnapping.1

On February 16, 1999, Washington was sentenced to five to ten

years imprisonment on the three charges for which he was

convicted.

On February 19, 1999, Washington, acting pro se, filed a

post-sentence motion contesting his sentence without notifying

his attorney that he had done so. On March 5, 1999,

Washington’s attorney presented a notice of appeal from the

judgment of sentence, which was stamped by the clerk’s office

as “Received Accepted For Review Only Mar 5 1999 Criminal

Appeals Unit First Judicial District of PA.” App. at 91. There is

no docket entry for a notice of appeal. On March 15, 1999,

Washington’s attorney was ordered by the trial judge “to file of

record, a concise Statement of Matters Complained of on the

Appeal.” Wash. App. at 5. The letter from the judge stated that

“[u]pon receipt of your reply to this order, I will write my

Opinion forthwith.” Wash. App. at 5.

On April 26, 1999, the trial court denied Washington’s

post-sentence motion. On April 30, 1999, the trial court issued

an “Order” setting forth a procedural history of Washington’s

post-sentence filings, which included, inter alia, the following:

“1. On 2/16/99, defendant was sentenced on the partial verdict of

12/22/98. 2. On 3/5/99, Appeal to Pennsylvania Superior Court

accepted for review only.” Wash. App. at 96.

Washington filed a habeas corpus petition in the Superior

Court of Pennsylvania on November 8, 2001, which the court

denied on January 30, 2002, citing to “Municipal Publications v.

Court of Common Pleas, 489 A.2d 1286 (Pa. 1985) (stating that

the Supreme Court of Pennsylvania has original jurisdiction to
 This appeal was filed by Superintendent Raymond J. 2

Sobina, the Office of the District Attorney of Philadelphia, and the

Attorney General of the State of Pennsylvania (“Commonwealth”

or “government”).

4

issue a writ on the lower court where no appeal is pending.)”. 

Washington, 387 F. Supp. 2d at 464 & n.13 (emphasis added).

Washington filed a federal habeas corpus petition on February

19, 2002, which was summarily dismissed for non-exhaustion

because of the pendency of the state habeas petition. 

Washington filed another state habeas corpus petition in the

Pennsylvania Supreme Court on March 12, 2002, which was

dismissed on June 4, 2002. On September 25, 2002, Washington

filed his second federal habeas corpus petition, which alleged

that his Sixth Amendment right to a speedy trial and his due

process right to a speedy appeal had been denied. It is this

petition that is the basis of this appeal. The District Court 2

appointed counsel for Washington.

While the federal habeas petition was pending,

Washington, on August 11, 2003, again acting pro se, filed a

post-conviction review petition in state court, pursuant to the

Pennsylvania Post Conviction Relief Act (“PCRA”), alleging

that his right to appeal had been denied. The PCRA court

dismissed Washington’s PCRA petition on June 22, 2004. In an

opinion filed August 23, 2004, the PCRA judge (who was also

the trial judge) set forth the basis for the June 22, 2004 order. 

See App. 81-90. The court reviewed the procedural history,

noting that the Commonwealth had not filed an appeal from the

order dismissing the first degree murder charge, and stated that

“[t]he case was delayed multiple times because of scheduling

issues and because an appeal was filed with respect to

[defendant’s] Robbery of Motor Vehicle conviction. The appeal

was ultimately withdrawn.” App. at 85. The PCRA court then

listed the procedural events from December 17, 1999 until

February 12, 2003, ending with the hung jury and the case being

continued for status listing on February 26, 2003. The court

continued with its review of the proceedings, stating that on June

15, 2004, it allowed Washington to proceed pro se with his
5

PCRA claims at his request. The court then stated “[o]n June 22,

2004, this court dismissed [d]efendant’s PCRA claims for relief

as untimely.” App. at 86.

In the next section of the opinion of the PCRA court,

under the heading “Legal Issue,” the court again discussed the

prior proceedings. The court stated:

Defendant was convicted of the charges relevant to

his PCRA petition on December 22, 1998 and sentenced

on February 16, 1999. Defendant’s post-sentence

motions were denied on April 15, 1999. Defendant then

had 30 days in which to file an appeal. Pa. R. Crim. P.

1410(A)(2). Defendant failed to do so. Therefore, the

judgment in his case became final 30 days after April 15,

1999. See Commonwealth v. Smith, 818 A.2d 494, 495

(Pa. 2003); 42 Pa.C.S. § 9545(b)(1).

App. at 87 (emphasis added). The court continued:

Defendant had one year from 30 days after April

15, 1999 to file a PCRA petition. 42 Pa.C.S. §

9545(b)(1). Defendant did not file his PCRA petition

until August 11, 2003, more than two years after the

judgment in his case became final relative to the instant

charges. Therefore, in order for Defendant’s PCRA

petition to be timely, Defendant would have to allege one

of the three timeliness exceptions in 42 Pa.C.S. §

9545(b)(1)(i)-(iii) . . . .

App. at 88.

The PCRA court noted that Washington did not allege

any of the timeliness exceptions but stated that he raised by

implication a claim of government interference that the trial

court had effectively denied his right to appeal or bring a timely

PCRA petition by imposing sentence on him while other charges

against him were still pending. The PCRA court concluded that

the claim was without merit. Because Pennsylvania had no rule

on point, the court considered cases from other jurisdictions that
6

permitted appeals on less than all counts of a criminal indictment

even while other counts were still pending. It referred to, inter

alia, United States v. Abrams, 137 F.3d 704, 707 (2d Cir. 1998)

(noting majority approach permitting appeal from conviction and

sentence on less than all counts of an indictment when other

counts tried in same trial remained unresolved), and United

States v. Kaufmann, 985 F.2d 884, 891 (7th Cir. 1993)

(“[S]everal circuits have . . . entertained an appeal on one count

of a criminal indictment while other counts of the indictment

were unresolved.”) (citing United States v. Cicco, 938 F.2d 441,

442 (3d Cir. 1991)).

Relying on these cases, the PCRA court rejected

Washington’s argument that the trial court could not have

sentenced him on some of the charges on which he was

convicted while others were still pending. It stated that

Washington “cannot now claim that his failure to properly

prosecute an appeal constitutes government interference based

upon unlikely speculation that Pennsylvania would adopt the

limited minority approach of barring appeals until all charges in

an indictment receive final judgment.” App. at 89. The PCRA

court concluded that Washington “failed to bring his PCRA

petition within the statutory time frame” and dismissed the

petition as untimely. App. at 90.

Meanwhile, the matter was proceeding in federal court. 

After the Magistrate Judge issued a Report and Recommendation

(“R&R”), recommending rejection of some of Washington’s

claims but acceptance of his claim that his speedy appeal right

was violated, both the Commonwealth and Washington filed

objections. Undoubtedly the PCRA court’s August 23, 2004

opinion left the District Court in a difficult position as to

whether Washington had failed to file or had withdrawn his

appeal. According to the District Court’s listing of the

sequential events, there was what is termed on the docket an

evidentiary hearing on January 18, 2005, at which the Court

determined, after consultation with the parties, that another

evidentiary hearing would be necessary. Instead of waiting for

the Superior Court decision on Washington’s appeal of the

denial of his PCRA petition, as the Commonwealth requested,
7

see App. 161-62, the District Court proceeded to conduct an

evidentiary hearing on May 20, 2005 at which only Washington

testified.

A review of the testimony at that hearing shows that it

was focused on Washington’s speedy trial claim, as the only

references to the appeal were Washington’s statements that he

was trying to get to trial (on the still pending charges) so that he

could pursue an appeal (on the charges for which he was

convicted). See App. at 195-196. At the conclusion of the

hearing on May 20, 2005, the District Court granted the parties

permission to file two additional affidavits. Pursuant to that

order, Washington filed the affidavit of his trial counsel, Charles

Mirarchi, III, who stated that “[o]n March 7, 1999, I filed a

Notice of Appeal based on Judge Poserina’s February 16, 1999-

sentence. That notice has never been dismissed. I was told by

the Court that an appeal on a partial verdict could not be

prosecuted.” Wash. App. at 15-16.

Thereafter, on September 12, 2005, again without waiting

for the Superior Court decision, the District Court issued its

opinion on Washington’s request for a writ of habeas corpus. 

See Washington, 387 F. Supp. 2d at 460. The Court agreed with

the conclusion of the Magistrate Judge that Washington had

exhausted his claim and that Washington’s right to a speedy trial

had not been violated. Id. at 468, 473. The Court then turned to

Washington’s claim that his right to a speedy appeal had been

violated. The District Court rejected the government’s argument

that Washington had, in fact, never filed an effective notice of

appeal and therefore no appeal was currently pending. Id. at

475. The Court noted that the government thereafter argued that

the appeal was withdrawn and concluded that “the government

has apparently abandoned the argument in its objection that the

appeal was not effectively filed,” id. at 474, but proceeded to

consider the argument in any event. The District Court stated

that “[t]he state court record indicates that the court accepted

Washington’s notice of appeal,” rejected the government’s

contention that the state court could not possibly have accepted

Washington’s appeal because his post-sentence motion was

pending, and instead stated “it is equally likely that the court did
 Washington also cross-appealed the District Court’s denial 3

of his claim that he was denied the right to a speedy trial as to the

murder and kidnapping charges; that cross-appeal was dismissed

per curiam by this court. See Washington v. Sobina, 475 F.3d 162

(3d Cir. 2007) (holding right to speedy trial is non-jurisdictional

and therefore waived by voluntary and unconditional guilty plea).

 The Superior Court noted, inter alia, that the PCRA court 4

dismissed the petition without the required twenty-day notice of

intention to dismiss, a rule it had held to be mandatory although

that was not raised on appeal, and that the PCRA court had failed

to comply with its order by failing to notify it of the determination

whether Washington’s waiver of counsel was proper. Neither of

these matters is relevant to the issue on appeal.

8

not consider Washington’s pro se post-sentence motion to be

pending because Washington did not have the authority to file

pro se motions while represented by counsel.” Id. at 474-75. 

The District Court then rejected the government’s contention

that the speedy appeal claim was invalid because Washington

failed to properly file a notice of appeal. The Court also rejected

the government’s argument that the notice of appeal had been

withdrawn because the District Court found “by clear and

convincing evidence that the appeal was not withdrawn.” Id. at

475. The Court then conditionally granted Washington’s

petition for writ of habeas corpus based on failure of his speedy

appeal right “unless the Pennsylvania Superior Court decides

Washington’s direct appeal by March 13, 2006.” Id. at 477. 

That is the order the Commonwealth appeals to this court.3

Significantly, however, after the District Court issued its

opinion, the Pennsylvania Superior Court on December 23,

2005, decided the appeal pending before it from the PCRA

court’s order dated June 22, 2004 dismissing Washington’s

PCRA petition as untimely filed. The Superior Court, although

displaying some impatience with the PCRA court in some

respects, nevertheless agreed with the PCRA court that 4

Washington’s PCRA petition was untimely filed. Although it

never mentioned the PCRA court’s statement that the appeal was

withdrawn, in its review of “the tortured procedural history of
 Section 2254 confers jurisdiction on a federal court to 5

entertain writs of habeas corpus “in behalf of a person in custody

pursuant to the judgment of a State court.” Washington argues that

because the state trial court sentenced him on some charges while

other charges remained open, his appeal rights were never

triggered, and therefore the sentence is not a “judgment” under §

2254. Not only was this issue never raised in the District Court or

in Washington’s response brief to this court, but Washington’s

argument fails on its merits. We have held that a state prisoner

challenging the validity or execution of his state court sentence

must rely on the more specific provisions of § 2254 rather than §

2241. Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).

Because Washington’s speedy appeal claim argues that the state

9

this case” it reiterated that pursuant to the Pennsylvania PCRA

statute, any PCRA petition must be filed within one year of the

date the judgment becomes final. App. at 74. The Superior

Court stated that Washington’s judgment of sentence became

final on May 26, 1999, when the time period allowed for filing a

direct appeal expired, that a timely petition had to be filed by

May 26, 2000, and that Washington’s petition “would appear to

be untimely, as it was not filed until July 28, 2003.” App. at 78. 

The court concluded that none of the statutory exceptions were

applicable, and “as [Washington] fails to successfully invoke any

of the time of filing exceptions contained in the Act, the petition

remains untimely filed.” App. at 79. Accordingly, the Superior

Court affirmed the order of the PCRA court dismissing

Washington’s PCRA petition as untimely filed.

II.

Although Washington filed his federal habeas petition

under 28 U.S.C. § 2254, and the District Court exercised

jurisdiction over his petition under 28 U.S.C. § 2254(a), he now

claims that he should have filed his habeas petition under 28

U.S.C. § 2241 which would relieve him from the heightened

standards prescribed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). We reject that claim for the

reasons set forth in the margin. We have jurisdiction over the 5
courts were too slow in resolving his appeal relating to the three

counts on which he was convicted, this claim constitutes a

challenge under § 2254.

This presumption applies regardless of whether there has 6

been an “adjudication on the merits” pursuant to § 2254(d). Nara

v. Frank, 488 F.3d 187, 200-01 (3d Cir. 2007).

These exceptions are: 7

(i) the failure to raise the claim previously was the result of

interference by government officials with the presentation

of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United

States;

10

District Court’s final order pursuant to 28 U.S.C. §§ 1291 and

2253. We have plenary review over the District Court’s grant of

habeas corpus and review its factual findings for clear error. 

Rolan v. Vaughn, 445 F.3d 671, 677 (3d Cir. 2006).

III.

Section 2254(e)(1) of AEDPA provides: “In a proceeding

instituted by an application for a writ of habeas corpus by a

person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be

presumed to be correct. The applicant shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.” 28 U.S.C. § 2254(e)(1). 6

The touchstone of AEDPA is the requirement that federal

habeas courts should accord deference to the factual

determinations of the state courts. Both the PCRA court and the

Pennsylvania Superior Court found that Washington failed to file

his PCRA petition (alleging denial of his appeal rights) in

accordance with the time requirements of 42 Pa. Cons. Stat.

Ann. § 9545(b)(1). That statute requires a petitioner to file a

PCRA petition within one year of the date the judgment becomes

final, unless one of three statutory exceptions applies. The state 7
(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or

the Supreme Court of Pennsylvania after the time period

provided in this section and has been held by that court to

apply retroactively.

42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i)-(iii).

11

courts found that none of the statutory exceptions applied, and

the District Court did not hold otherwise.

We turn from Washington’s failure to file a timely PCRA

petition to the central question before us, whether Washington

filed a timely notice of appeal for his purported direct appeal. It

is uncontested that Washington’s attorney handed a “Notice of

Appeal” to a member of the Clerk’s Office on March 5, 1999,

but there is no reference to any notice of appeal on the state

court docket. Based on its holding that no appeal was pending,

the PCRA court dismissed Washington’s PCRA petition as

untimely. The Commonwealth argues that this determination

must be given deference by the federal habeas court.

The District Court declined to do so, and did not follow

the Commonwealth’s request to await the outcome of the

pending appeal to the Superior Court of the PCRA court’s

decision. Instead, the District Court rejected the

Commonwealth’s request that it stay the habeas proceeding to

allow the Superior Court to decide Washington’s appeal of the

PCRA court’s decision “[b]ecause Washington’s appeal is still

pending . . . [and therefore] his judgment has never become final

for purposes of a PCRA petition.” Washington, 387 F. Supp. 2d

at 476.

This is troubling for several reasons. In the first place,

the District Court’s conclusion that “the state court lacks

authority to decide Washington’s PCRA petition,” id., runs
12

counter to its own discussion of the PCRA court’s decision. If

the District Court was saying that the PCRA court had no

jurisdiction because Washington’s direct appeal was still

outstanding, there was no reason for the District Court to have

considered the PCRA court’s opinion at all. Yet it did so at

some length. If the District Court was saying that the Superior

Court would have no jurisdiction over the appeal from the PCRA

court’s decision, the District Court was overlooking the

possibility that the Superior Court would have disagreed with the

PCRA court’s decision. We have made clear that in the event of

a conflict between the fact findings of the state trial court and the

state appellate court, deference should be given to the version

reached by the higher court. Dickerson v. Vaughn, 90 F.3d 87,

90 (3d Cir. 1996).

For purposes of comity, it would have been better practice

for the District Court to have stayed the proceedings to allow the

Pennsylvania Superior Court to decide Washington’s appeal of

the PCRA decision. Although doing so was not necessary under

the exhaustion doctrine, “[a] federal district court ‘should give

careful consideration to the appropriate demands of comity in

effectuating its habeas corpus decree.’” Gibbs v. Frank, 500

F.3d 202, 210 (3d Cir. 2007) (citation omitted). Because

“important interests in comity and federalism require deference

to factual determinations made by ‘all state courts,’” Rolan, 445

F.3d at 679 (citation omitted), considerations of comity would

have been best served if the District Court had given the

Superior Court an opportunity to consider Washington’s appeal

before deciding the federal habeas petition. Had the District

Court awaited the Superior Court’s opinion, it would have noted

that the Superior Court did not refer to the statement by the

PCRA court that Washington’s appeal had been withdrawn. 

Thus it would have been unnecessary for the District Court to

have considered that statement which it then found was

erroneous. Because the Superior Court did not state or intimate

that Washington’s appeal was withdrawn, we do not consider

that possibility.

Instead, we focus only on the PCRA court’s

determination, affirmed by the Superior Court, that Washington
Thompson was decided prior to the enactment of AEDPA, 8

and therefore its discussion of “factual issue” involved the

interpretation of 28 U.S.C. § 2254(d), the predecessor of §

2254(e)(1).

13

did not file an effective notice of appeal. The District Court

rejected the government’s argument that the appeal was not

effectively filed by stating that “[t]he state court record indicates

that the court accepted Washington’s notice of appeal.” 

Washington, 387 F. Supp. 2d at 474. Not only is that contrary to

the finding of both the PCRA court and the Superior Court, but

our review of the record convinces us that there is no basis for

the District Court’s contrary factual finding. In rejecting the

PCRA court’s findings, the District Court stated:

While the government contends that the state court could

not possibly have accepted Washington’s appeal because

Washington’s post-sentence motion was pending, it is

equally likely that the court did not consider

Washington’s pro se post-sentence motion to be pending

because Washington did not have the authority to file pro

se motions while represented by counsel.

Id. at 474-75. There was no reason for conjecture by the District

Court. The fact remains that there is no docket entry showing a

filing of the notice of appeal, which explains why “[t]here is no

record of the state court rejecting Washington’s appeal,” an

omission the District Court believed was relevant. Id. at 474

n.47. The fact that the notice of appeal was marked “Received

Accepted for Review Only” further distinguishes the treatment

of that document from one that is filed.

The only explanation we can find for the District Court’s

decision is that it apparently did not regard the finding of the

PCRA court that no appeal had been filed as entitled to

deference. However, in Thompson v. Keohane, 516 U.S. 99,

111-12 (1995), the Supreme Court differentiated “factual

issues” from questions of law, and noted that issues as to “what 8

happened,” “scene- and action-setting questions,” as well as
14

matters that turn on the appraisal of witness credibility or

demeanor are clearly factual and thus warrant a presumption of

correctness under § 2254(e). Although the distinction between

factual and legal questions is “sometimes slippery,” id. at 111,

we have followed the Supreme Court’s definition of “factual

issues” as “basic, primary or historical facts: facts in the sense of

a recital of external events and the credibility of their narrators.” 

See Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)

(internal quotations and citations omitted). “It is these ‘factual

issues’ to which the statutory presumption of correctness

predominately relates.” Id. (citing Thompson, 516 U.S. at 110). 

Under the statutory standards governing the granting of

habeas relief, a state court’s factual findings must be rebutted by

clear and convincing evidence. See Lambert v. Blackwell, 387

F.3d 210, 234 (3d Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)). 

Deference accorded a state court’s determination of fact is not

limitless, and “does not by definition preclude relief,” Miller-El

v. Cockrell, 537 U.S. 322, 340 (2003); nevertheless, the burden

is on the habeas petitioner to rebut the presumption of

correctness by clear and convincing evidence. It is not enough

to decide that the petitioner has advanced a plausible alternative

to the factual findings of the state court. See Martini v.

Hendricks, 348 F.3d 360, 368 (3d Cir. 2003).

The District Court, in concluding that the PCRA court’s

determination that no notice of appeal was filed was incorrect,

failed to credit the PCRA court’s determination because, as the

District Court explained, the record was silent on the question. 

It is precisely because the Superior Court noted that the notice of

appeal was accepted for review only but that there was no entry

on the docket for the notice of appeal that its determination that

no appeal was filed merits deference. Cf. Weeks v. Snyder, 219

F.3d 245, 259 (3d Cir. 2000) (“[An] implicit factual finding is

due the same highly [deferential] presumption of correctness

required by § 2254(e).”). Silence in the record is insufficient to

overcome that presumption, especially in light of the fact that the

judge who was involved in Washington’s sentencing was the

same judge who dismissed Washington’s PCRA petition. The

District Court erred in finding that there was clear and
 We note that Washington’s trial counsel, Charles P. 9

Mirarchi, III, filed an affidavit with the District Court in which he

stated that the appeal had never been dismissed and that he was

told “that an appeal on a partial verdict could not be prosecuted.”

Wash. App. at 15-16. However, we do not find this assertion

convincing, as Washington attempted to take an appeal from his

sentence, not from the verdict. See Commonwealth v. O’Neill, 578

A.2d 1334, 1335 (Pa. Super. Ct. 1990) (“[I]t is well settled that in

criminal cases appeals lie from judgment of sentence rather than

from the verdict of guilt[.]”).

 Rule 1925(b) states that where there has been a notice of 10

appeal, the lower court “may enter an order directing the appellant

to file of record in the trial court and serve on the judge a concise

statement of the errors complained of on the appeal.” Pa. R. App.

P. 1925(b). In this case, the state trial judge ordered counsel for

Washington to respond to his order within thirty days, or by April

15, 1999. The April 30, 1999 Order setting forth a procedural

history of Washington’s post-sentence filings listed the March 5

appeal accepted for review only and the March 15 order requesting

a concise statement.

15

convincing evidence to overturn the state court determination

simply because there was a lack of evidence in the record stating

that the appeal had been dismissed.

Moreover, the District Court failed to place the burden on

Washington, as required by § 2254(e)(1). Washington did not

meet that burden as he introduced nothing persuasive on the

issue. Instead, the District Court engaged in a speculative, 9

independent analysis to find that the notice of appeal was

properly filed, even though it was never docketed in state court

and the PCRA trial and appellate courts found that Washington

had failed to file it. The District Court determined that the

record indicated that the state court had accepted the notice of

appeal because there was never a dismissal of the notice, and it

stated that the fact that the state court ordered a concise

statement of matters complained of on appeal pursuant to Rule

1925(b) of the Rules of Appellate Procedure “suggests that at 10

the time the order [of April 30, 1999, listing some of
As further support for our position, we note that the United 11

States Supreme Court and this court have repeatedly held, in the

context of the AEDPA tolling provision, 28 U.S.C. § 2244(d)(2),

that when a postconviction petition is not timely under state law,

“‘that [is] the end of the matter’ for purposes of § 2244(d)(2).” 

Pace, 544 U.S. at 414 (citation omitted); see also Allen v. Siebert,

16

Washington’s procedural history] was issued . . . the appeal was

still pending.” Washington, 387 F. Supp. 2d at 474 n.47. But

see Satterfield v. Johnson, 434 F.3d 185, 192 (3d Cir. 2006)

(“The mere fact that a court reviewed an application before

dismissing it does not necessarily mean that an application was

‘properly filed.’”) (citing Pace v. DiGuglielmo, 544 U.S. 408,

414 (2005)).

The District Court also addressed the fact that the state

trial court ruled on Washington’s pro se post-sentence motion,

which it could not do if an appeal was in fact filed. See Pa. R.

App. P. 1701(a) (“after an appeal is taken . . . the trial court . . .

may no longer proceed further in the matter”). Rather than infer

from this that the trial court believed no appeal was pending, the

District Court stated that “it is equally likely that the [state] court

did not consider Washington’s pro se post-sentence motion to be

pending because Washington did not have the authority to file

pro se motions while represented by counsel.” Washington, 387

F. Supp. 2d at 474-75 (citing Commonwealth v. Pursell, 724

A.2d 293, 301-02 (Pa. 1999)). There was no basis for this

hypothesis. Because the trial court ruled on Washington’s pro se

motion, the logical inference is that the notice of appeal had not

been accepted because otherwise the trial court would no longer

have had jurisdiction over the matter. See Pa. R. App. P.

1701(a). 

We therefore conclude that the District Court erred in

engaging in speculative, independent fact finding contrary to the

determinations of the PCRA and Superior Courts that

Washington failed to file a timely notice of appeal. The Court

should have accorded those findings a presumption of

correctness, and placed the burden on Washington to come 11
___ U.S. ___, 128 S. Ct. 2, 4 (2007). “Once the Pennsylvania court

has so decided, it would be an undue interference for a federal

district court to decide otherwise.” Merritt v. Blaine, 326 F.3d 157,

168 (3d Cir. 2003).

Arguably, the failure to file a timely appeal could be

considered a procedural default, but because the parties have not so

argued we do not analyze this appeal in those terms. See Trest v.

Cain, 522 U.S. 87, 89 (1997); Smith v. Horn, 120 F.3d 400, 409

(3d Cir. 1997).

forward with clear and convincing evidence to the contrary.

We feel compelled to note that much of the difficulty in

which Washington finds himself is of his own making. His

penchant for filing pro se pleadings while he had counsel served

to confuse the proceedings. Moreover, a fact not emphasized in

the Commonwealth’s brief but one that we find significant is

that Washington was on notice as early as January 30, 2002, that

the Superior Court believed that there was no appeal pending as

that was the reason it gave for dismissing Washington’s first

state habeas petition.

IV.

For the above-stated reasons, we will vacate the District

Court’s order, remand to that Court, and direct that it deny

Washington’s Petition for a Writ of Habeas Corpus.

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