IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHLEEN MCCABE, : CIVIL ACTION

:

Petitioner, : NO. 04-5384

:

v. :

:

COMMONWEALTH OF :

PENNSYLVANIA, et al., :

:

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. March 14, 2006

Before the Court is Kathleen Joyce McCabe’s pro se

Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. §

2254. Pursuant to local rule, the petition was referred to a

Magistrate Judge for Report and Recommendation. On April 1,

2005, Magistrate Judge Arnold C. Rapoport issued a Report and

Recommendation recommending that the petition be dismissed

without prejudice for Petitioner’s failure to exhaust her

available state court remedies. Because the Court finds that

Petitioner’s claims are procedurally defaulted, and, therefore,

she has no available state remedies, the Court will disapprove

the Report and Recommendation. Instead, the Court will grant

Petitioner 30 days to supplement her petition by pointing to

facts that demonstrate cause and prejudice, or a fundamental

miscarriage of justice. 

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 1 of 18
Because Petitioner had thirty days to file an appeal to the 1

denial of her motion to modify sentence, her conviction became

final on May 22, 2004.

2

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 2, 2003, before the Honorable Linda K. M.

Ludgate of the Court of Common Pleas for Berks County, Petitioner

plead guilty to third degree murder, robbery, and conspiracy to

commit robbery, and was sentenced that day to twenty-five to

sixty years imprisonment. The conviction resulted from

Petitioner’s participation in the beating death and robbery of a

man raised with Petitioner. 

On December 10, 2003, Petitioner filed a pro se

petition for relief under the Pennsylvania Post Conviction Relief

Act (“PCRA”), 42 Pa. C.S.A. §§ 9541, et seq., alleging the

ineffectiveness of her trial counsel, John T. Adams, and

requesting the Court permit the withdrawal of her guilty plea. 

On December 11, 2003, Mr. Adams, on the behalf of Petitioner,

filed a motion to modify her sentence. The PCRA court, presided

over by Judge Ludgate, then appointed new counsel to represent

Petitioner at a joint post-sentence Motion to Modify and PCRA

petition hearing scheduled for February 2, 2004. This hearing

was continued until March 15, 2004, and both claims were denied

on April 22, 2004. Petitioner did not appeal either of these

denials. 

1

Petitioner filed the instant petition for writ of

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habeas corpus under 28 U.S.C. § 2254 on November 18, 2004. The

claims in the petition are: (1) Petitioner did not understand the

nature of the charge against her and neither her lawyer nor the

judge explained the charge to her; (2) her lawyer did not file an

appeal of the denial of the PCRA petition or the motion to modify

sentence; and (3) Petitioner’s right to appeal to a higher court

was violated in that she was framed for the death of the victim 

in this case. On February 9, 2005, the matter was referred to

Magistrate Judge Arnold C. Rapoport for Report and Recommendation

in accordance with the Court’s procedures.

On April 1, 2005, Magistrate Judge Rapoport issued a

Report and Recommendation recommending dismissal without

prejudice of the instant petition for the failure to exhaust her

available state court remedies. Although Petitioner did not file

formal objections to the Report and Recommendation, she sent a

letter to the Court on January 5, 2006, with her version of

events. Because Petitioner is pro se, the Court will deem the

letter to be the equivalent of objections to the Report and

Recommendation. 

II. LEGAL STANDARD

When a habeas petition has been referred to a

magistrate judge, the Court may “accept, reject, or modify, in

whole or in part, the findings or recommendations made by the

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4

magistrate judge.” 28 U.S.C. § 636(b). The Court must “make a

de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection

is made.” Id. 

III. DISCUSSION 

A. The Pennsylvania Post-Conviction Relief Act

The Pennsylvania Post-Conviction Relief Act (PCRA)

provides for “an action by which persons convicted of crimes they

did not commit and persons serving illegal sentences may obtain

collateral relief.” 42 Pa. C.S. § 9542. The PCRA is the

exclusive means in Pennsylvania by which defendants may obtain

collateral relief. Id. 

To be eligible under the PCRA, a petition must be filed

within one year of the conclusion of direct review, or at the

expiration of the time period for seeking such review. 42 Pa.

C.S. § 9545. The statute recognizes three exceptions to this

time limitation:

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;

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(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. C.S.A. § 9545(b)(1). The Supreme Court of Pennsylvania

has found that the PCRA’s time limitations are jurisdictional,

meaning they “go to a court’s right or competency to adjudicate a

controversy.” Commonwealth v. Cruz, 578 Pa. 325, 335 (Pa. 2004)

(“the time for filing a PCRA petition can be extended only to the

extent that the PCRA permits it to be extended, i.e., by

operation of one of the statutorily enumerated exceptions to the

PCRA time-bar”); Commonwealth v. Fahy, 737 A.2d 214, 222 (Pa.

1999). For this reason, a court may only grant an extension to

the time limitation pursuant to the statutory exceptions;

equitable tolling may not be applied to petitions brought under

the PCRA. Id. 

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A petitioner in Pennsylvania need not seek review from the 2

Pennsylvania Supreme Court in order to exhaust her state

remedies. Lambert, 387 F.3d at 233-34. An appeal must be made

to the Superior Court, however. 

6

B. Exhaustion of State Remedies

The doctrine of exhaustion requires a state prisoner

asserting federal habeas claims to allow the state courts to act

on her claims before presenting them to a federal court. See

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); 28 U.S.C. §

2254(b)(1)(A). In order to exhaust her claims, a petitioner must

present every claim in her habeas petition for every available

level of state court review. Lambert v. Blackwell, 387 F.3d 210,

232 (3d Cir. 2004). The petitioner bears the burden of showing 2

state court remedies have been exhausted. Toulsen v. Beyer, 987

F.2d 984, 987 (3d Cir. 1993). 

If a habeas petition is mixed, that is, it contains

both exhausted and unexhausted claims, a federal court may stay

the petition and hold it in abeyance until the unexhausted claims

have been exhausted. Rhines v. Weber, 544 U.S. 269, 125 S.Ct.

1528 (2005). This procedure, as of the date of this memorandum,

has largely been confined to mixed petitions. Petitions

containing only unexhausted claims must be dismissed without

prejudice so that the petitioner can exhaust her claims in state

court and then return to federal court.

If, however, state law “clearly foreclose[s] state

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 6 of 18
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court review of unexhausted claims,” the claims are considered to

be procedurally defaulted. Toulson v. Beyer, 987 F.2d 984, 987

(3d Cir. 1993); Holman v. Gillis, 58 F. Supp.2d 587, 592 (E.D.Pa.

1999) (Robreno, J.). Exhaustion is not possible, and sending the

claims back to state court would therefore be futile. 

C. Procedural Default 

If a petitioner’s claims have been procedurally

defaulted, a federal court cannot review these claims “unless the

prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law, or

demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501

U.S. 722, 750 (1991).

In order to satisfy the cause and prejudice

requirement, courts have held that cause exists when a petitioner

“demonstrate[s] some objective factor external to the defense

that prevented compliance with the state's procedural

requirements.” Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir.

1992) (quoting Coleman, 501 U.S. at 753). The cause must be

“‘something that cannot fairly be attributed to’ the petitioner.” 

Johnson v. Klem, 2004 WL 1175575, at *2 (E.D.Pa. 2004) (quoting

Coleman, 501 U.S. at 753). Prejudice means that “the alleged

error ‘worked to [petitioner’s] actual and substantial

disadvantage.’” United States v. Rodriguez, 153 F. Supp.2d 590,

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 7 of 18
Frady defined prejudice in the context of a petitioner who 3

alleged his trial had contained error, explaining that petitioner

must “shoulder the burden of showing, not merely that the errors

at his trial created a possibility of prejudice, but that they

worked to his actual and substantial disadvantage, infecting his

entire trial with error of constitutional dimensions.” 456 U.S.

at 170. Courts have applied this prejudice standard in

situations where petitioner is challenging a guilty plea as well. 

See, e.g., Mutope v. Folino, 2005 WL 3132315 (M.D.Pa. 2005);

Salcedo v. United States, 2005 WL 2654083 (D.N.J. 2005).

8

594 (E.D.Pa. 2001) (quoting United States v. Frady, 456 U.S. 152,

170 (1982)). 

3

To show a fundamental miscarriage of justice will occur

if the claims are not reviewed, a petitioner must present new

evidence that he is actually innocent of the crime for which he

has been convicted. See Cristin, 281 F.3d at 412.

D. Application to the Instant Case

Petitioner makes three claims in her habeas petition:

(1) She did not understand the nature of the charge against her

and neither the lawyer nor the judge explained the charge to her;

(2) her lawyer did not file the requested appeal from the denial

of her initial PCRA petition; and (3) her lawyer did not file the

requested appeal from the denial of her motion to modify her

sentence. 

Petitioner did not exhaust her claims in state court – 

no state appellate court heard her ineffectiveness of counsel

claim as stated in her PCRA petition, nor her claims regarding

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 8 of 18
 Here, Petitioner filed her federal habeas petition within 4

one year of her conviction, and accordingly, did not address the

subject of timeliness. The Petition, however, has remained

pending in this Court well past the one-year mark when Petitioner

could have returned to state court to complete the exhaustion of

her state remedies. For this reason, the Court has independently

analyzed Petitioner’s claims for the purpose of determining

whether these claims are procedurally defaulted, although the

PCRA calls for the petitioner to allege and prove that exceptions

to the time limitations apply. 42 Pa. C.S.A. § 9545(b)(1).

In addition, the Court notes that this case presents a

situation in which the requirement that all state remedies be

exhausted before a federal court can hear a habeas claim, and the

one-year statute of limitations imposed by the Antiterrorism and

9

counsel’s failure to file an appeal. 

Petitioner’s motion to modify her sentence and initial

PCRA petition were denied on April 22, 2004. Petitioner did not

appeal either of these denials, and her conviction therefore

became final on May 22, 2004. Because of the PCRA’s one-year

time limitation, Petitioner would have had to return to state

court to exhaust her state remedies before May 22, 2005. 

The Pennsylvania Supreme Court “consistently and

regularly appl[ies] the PCRA one-year statute of limitations to

bar untimely filed PCRA petitions.” Holman, 58 F. Supp.2d at

597; Commonwealth v. Abu-Jamal, 833 A.2d 719, 732 n.5 (Pa. 2003)

(court has consistently and regularly applied time limitations on

the basis that the limitations are jurisdictional). Therefore,

unless one or more of the PCRA’s statutory exceptions apply, it

is most likely that Petitioner’s claims are procedurally

defaulted. 

4

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 9 of 18
Effective Death Penalty Act of 1996 (AEDPA) interact in a

troubling manner. 

Petitioner’s timely filed petition for writ of habeas corpus

under 28 U.S.C. § 2254, has remained pending in this Court past

AEDPA’s limitation period. Ms. McCabe failed to exhaust her

claims in the state courts and the Court here finds her claims to

be procedurally defaulted. However, were the Court to find that

there was the potential that the Pennsylvania state courts would

hear Petitioner’s claims, it would be required to dismiss the

petition in order for Petitioner to exhaust her state remedies. 

Notwithstanding a dismissal without prejudice, the result would

in fact be to foreclose Petitioner’s federal review even in the

event she was successful in exhausting her claims in state court

because AEDPA’s time limitation has run.

The United States Supreme Court recently addressed a similar

issue in Rhines v. Weber, and sanctioned the use of a stay and

abeyance procedure for mixed petitions, that is, petitions with

both exhausted and unexhausted claims. 544 U.S. 269, 125 S.Ct.

1528 (2005). Rhines and the cases following its direction,

however, have confined the stay and abeyance procedure to mixed

petitions, whereas the petition before the Court today contains

only unexhausted claims. 

In Duncan v. Walker, 533 U.S. 167 (2001), Justice Stevens,

in concurrence, recognized this problem, and suggested equitable

tolling as a solution: “[A] federal court might very well

conclude that tolling is appropriate based on the reasonable

belief that Congress could not have intended to bar habeas review

for petitioners who invoke the court’s jurisdiction within the 1-

year interval prescribed by AEDPA,” but “whose timely filed

petitions remain pending in district court past the limitations

period, only to be dismissed after the court belatedly realizes

that one or more claims have not been exhausted.” 533 U.S. at

184. This procedure has been adopted by the Second and Sixth

Circuits, but disapproved by the First. See Hargrove v. Brigano, 

300 F.3d 717 (6th Cir. 2002); Rodriguez v. Bennett, 303 F.3d 435,

(2d Cir. 2002). But see Delaney III v. Matesanz, 264 F.3d 7, 14

(1st Cir. 2001) (equitable tolling should only be applied in

exceptional circumstances). The Third Circuit has not spoken on

the issue, but counsels that equitable tolling may only be used

in extraordinary circumstances. See, e.g., Fahy v. Horn, 240

F.3d 239, 245 (3d Cir. 2001). 

 In Rhines, the Supreme Court explained that the interplay

between AEDPA’s one-year time limitation and the total exhaustion

requirement was causing petitioners with “mixed” petitions to

“run the risk of forever losing their opportunity for any federal

review of their unexhausted claims.” 125 S.Ct. at 1533. The

10

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 10 of 18
same reasoning applies to petitioners with petitions containing

only unexhausted claims. As stated above, the Court need not

reach the problem in this case, as Petitioner’s claims are

procedurally defaulted, but notes the procedural circularity into

which such petitions may easily fall. 

To allow the withdrawal of a guilty plea after sentencing, 5

“there must be a showing of prejudice that results in a manifest

injustice to the defendant.” Commonwealth v. McClendon, 589 A.2d

706, 707 (Pa. Super. 1991). The defendant has the burden of

proving her plea was entered involuntarily or without knowledge

of the charge in order to show manifest injustice. Id. 

11

1. Petitioner’s guilty plea

Petitioner states that she believes that neither Judge

Ludgate nor her lawyer, Mr. Adams, explained the consequences of

her guilty plea. She also states that she wants to take the case

to trial. This claim was reflected in her PCRA petition, which

was not presented for any state appellate review. 

This claim appears to be a combination of a desire to

withdraw her guilty plea and an allegation of ineffective

assistance of counsel by her trial lawyer. Claims of 5

ineffective assistance of counsel “do not automatically qualify

pursuant to the exceptions to the one-year time limitation

provided in [the PCRA].” Commonwealth v. Pursell, 749 A.2d 911,

915 (Pa. 2000). Petitioner makes no allegations from which the

Court can conclude one of the specific exceptions to the PCRA’s

time limitation applies. 

First, there are no facts to show that petitioner did

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 11 of 18
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not raise this claim because of the interference of government

officials. The term “government officials” does not include

defense counsel. Pursell, 749 A.2d at 916. Second, it is clear

that the facts alleged were not unknown to Petitioner - she

actually filed a pro se PCRA petition alleging ineffective

assistance of counsel and the coercion of her guilty plea. It is

her failure to exhaust that petition that has caused the default. 

And finally, there is no assertion here of a newly recognized

constitutional right. 

Petitioner’s claim that her guilty plea was made

without the requisite understanding, and that her counsel was

ineffective is procedurally defaulted for the purpose of review

by this Court. 

2. Failure to file requested appeals

Plaintiff also claims that her lawyer did not appeal

the denial of her motion to modify her sentence and her initial

PCRA petition, although she requested such appeals, and that she

was thereby denied the right to appeal. Petitioner’s initial

PCRA petition was filed pro se, but her motion to modify her

sentence was filed with the assistance of counsel, Mr. John J.

Grenko. Petitioner filed her PCRA petition on December 10, 2003,

eight days after her guilty plea and sentencing, and her motion

to modify sentence on December 11, 2003. Mr. Grenko represented

Petitioner at a hearing for both motions, before Judge Ludgate,

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 12 of 18
This petition was filed pro se but argued by Mr. Grenko. 6

13

on March 15, 2004. Petitioner challenges Mr. Grenko’s failure to

file appeals to the denials of both motions.

i. PCRA petition

Petitioner challenges Mr. Grenko’s failure to appeal

the denial of her PCRA petition. This claim was never presented 6

for appellate review to the Pennsylvania state courts. It is

procedurally defaulted in that none of the exceptions to the PCRA

apply. 

Additionally, and critically, the Court could not grant

relief to Petitioner on this claim. Petitioner does not have a

constitutional right to appointed counsel for collateral review. 

See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555 (1987). 

“[A] claim of ineffective assistance of PCRA counsel is not

cognizable in a federal habeas corpus petition because the right

to effective assistance of PCRA counsel exists pursuant to state

law, and is not mandated by the Constitution or laws or treaties

of the United States.” Holman, 58 F. Supp.2d 587 at 597. 

Petitioner alleges that Mr. Grenko failed to appeal the denial of

her PCRA petition. However, such a claim of ineffectiveness is

not one for which the Court may grant habeas relief.

ii. Motion to modify sentence

Defendant moved for a modification of her sentence,

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 13 of 18
14

pursuant to Pennsylvania Rule of Criminal Procedure 720, on

December 11, 2003. The motion was based on the following

grounds: (1) the probation office had not yet prepared a presentence investigation report; (2) counsel did not adequately

prepare for sentencing because defendant had not informed counsel

she was willing to accept a plea; (3) the sentence was excessive

because Judge Ludgate imposed a sentence within the aggravated

range of the Pennsylvania Sentencing Guidelines for Count 8,

conspiracy to commit robbery; and (4) the sentence was excessive

because Judge Ludgate imposed a consecutive sentence on defendant

for Count 6, robbery, and Count 3, murder. Defendant argued that

the Judge did not place sufficient reasons on the record to

justify a sentence within the aggravated range, or to justify the

imposition of consecutive sentences.

Defendant’s motion to modify her sentence was denied on

April 23, 2004. Defendant asserts that she requested her

attorney, Mr. Grenko, appeal the denial of this motion. This

assertion is supported by a May 2, 2004 letter from Petitioner to

the Clerk of Courts of Berks County, Pennsylvania, in which she

expressed the desire to appeal the denial, indicated that she had

contacted her attorney, but was unsure of how to go about the

appeal. (App. A114.) There is no indication that she received a

response. No appeal from the denial of Petitioner’s motion to

modify sentence was ever filed. 

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 14 of 18
15

Petitioner’s claim that she was denied the right to

appeal the denial of her motion to modify her sentence has not

been presented to any Pennsylvania state court, and the time

period for such a motion has now passed. 

The Pennsylvania Supreme Court has held that counsel’s

unjustified failure to file a direct appeal denies the accused

her Sixth Amendment right to counsel, and, in such circumstances,

prejudice is legally assumed. Commonwealth v. Lantzy, 736 A.2d

564, 571-72 (Pa. 1999). The remedy for the deprivation of the

right to appeal is its restoration. Id. at 572-73. However, the

Supreme Court of Pennsylvania has also held that because such a

claim of ineffectiveness is only cognizable under the PCRA, the

requirements of the PCRA, including its time limitations, must

also be met. Commonwealth v. Hall, 771 A.2d 1232, 1236 (Pa.

2001) (untimeliness of petitioner’s PCRA petition foreclosed the

restoration of his direct appeal rights nunc pro tunc);

Commonwealth v. Hanyon, 772 A.2d 1033, 1036 (Pa. Super. Ct. 2001)

(appellant could not raise ineffectiveness of counsel for failing

to file direct appeal because such a claim must be made pursuant

to the PCRA, and such a petition would be untimely). In sum, a

court may not reinstate a petitioner’s direct appeal rights if

the PCRA petition in which such a claim is contained is untimely.

Here, Petitioner requested her counsel, Mr. Grenko,

file an appeal from the denial of her motion to modify her

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 15 of 18
None of the PCRA’s statutory exceptions applies here: 7

petitioner was not prevented from filing this claim due to

interference from a government official, the facts on which this

claim is based were known to her, and this is not a newly

recognized constitutional right. 42 Pa. C.S.A. § 9545(b)(1).

16

sentence, and he failed to do so. In order to have her direct

appeal rights reinstated, such a claim would have to be brought

pursuant to the PCRA, following Lantzy. Because more than a year

has passed since her conviction became final, a second PCRA

petition filed now would be untimely. Hanyon, 772 A.2d at 1036 7

(direct appeal rights cannot be reinstated nunc pro tunc because

the issue was not raised in a PCRA petition); Johnson v. Folino,

2005 WL 1787872, at *4 (E.D.Pa. 2005) (appellate rights can only

be reinstated nunc pro tunc if filed in a timely PCRA petition). 

For the foregoing reasons, Petitioner has no state

remedies available for her claim that her attorney failed to file

a direct appeal, and this claim is procedurally defaulted.

E. Cause and Prejudice

The Court finds that Petitioner’s claims are

unexhausted, but that state court review of these claims would be

foreclosed. The claims are therefore procedurally defaulted. 

Because the claims are procedurally defaulted, the

Court may not consider the merits of the claims unless Petitioner

demonstrates cause and prejudice or a fundamental miscarriage of

justice. The Court will provide Petitioner 30 days to make such

a showing.

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As an initial matter, the Court notes that the fact that 8

Petitioner’s federal habeas petition was pending past the

limitations period does not constitute cause to excuse

Petitioner’s state court procedural default for the purpose of

federal review. The time limitations of the PCRA are not tolled

during federal habeas review. Commonwealth v. Fahy, 737 A.2d

214, 222-23 (Pa. 2002). 

17

As outlined above, Petitioner must show that some

objective factor prevented her compliance with the state

procedural requirement, and that this factor has worked to her

actual and substantial disadvantage, or present new evidence that

she is actually innocent of the crime for which she was

convicted. See supra III.C. 8

An appropriate Order follows.

Case 2:04-cv-05384-ER Document 9 Filed 03/15/06 Page 17 of 18
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KATHLEEN MCCABE, : CIVIL ACTION

:

Petitioner, : NO. 04-5384

:

v. :

:

COMMONWEALTH OF :

PENNSYLVANIA, et al., :

:

Respondents. :

O R D E R

AND NOW, this 14th day of March 2006, upon consideration of

Petitioner’s Petition for Writ of Habeas Corpus (doc. no. 1),

Respondents’ Answer to the Petition for Writ of Habeas Corpus (doc.

no. 5), and Magistrate Judge Rapoport’s Report and Recommendation

(doc. no. 7), it is hereby ORDERED that:

1. The Report and Recommendation (doc. no. 7) is

DISAPPROVED;

2. Petitioner shall file a supplement to her petition

pointing to facts that demonstrate cause and prejudice or a

fundamental miscarriage of justice for her procedural default

within 30 days of the date of this Order; and

3. Respondent shall reply to Petitioner’s submission 

within 30 days after Petitioner’s submission is filed.

AND IT IS SO ORDERED.

 S/Eduardo C. Robreno 

EDUARDO C. ROBRENO, J.

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