2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-8-2007

Nara v. Frank

Precedential or Non-Precedential: Precedential

Docket No. 05-4779

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 05-4779

___________

JOSEPH NARA

v.

FREDERICK FRANK,

Appellant

___________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 99-cv-00005)

District Judge: The Honorable Terrence F. McVerry

___________

ARGUED OCTOBER 26, 2006

BEFORE: SMITH, WEIS, and NYGAARD, Circuit Judges.

(Filed May 8, 2007)

__________
2

Christopher D. Carusone, Esq. (Argued)

Office of the Attorney General of Pennsylvania

Appeals and Legal Services

Strawberry Square

Harrisburg, PA 17120

Counsel for Appellant

Lisa B. Freeland, Esq. (Argued)

Office of the Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellee

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

In Nara v. Frank, 264 F.3d 310 (3d Cir. 2001), we held

that the equitable tolling doctrine might allow the District Court

to consider Joseph Nara’s otherwise untimely habeas corpus

petition. Upon remand, the District Court found equitable tolling

applicable, and granted Nara’s petition based upon his claim that

he was mentally incompetent when he pleaded guilty to

murdering his wife and mother-in-law. The Commonwealth

appealed. We will affirm. 
3

I. Factual and Procedural History

A. Conviction and Incarceration

Joe Nara’s wife, DeLorean Churby, left him. Over the

next few weeks, Nara grew despondent and visited the Fayette

Community Mental Health Center on an outpatient “crisis”

basis. Nara attempted suicide by taking an overdose of sleeping

tablets and remained unconscious for two days in the hospital.

He was then involuntarily committed to the Connellsville State

General Hospital and treated with anti-depressants and an antipsychotic tranquilizer.

After four days at Connellsville, Nara was released. Soon

thereafter, Nara discovered love letters between Churby and

Pennsylvania State Trooper Leonard Maharowski. Nara argued

with his wife over the telephone, and she taunted him with

details of her affair. Enraged, Nara drove to confront her at her

mother’s trailer. 

When he arrived and knocked on the trailer’s door,

Churby’s mother aimed a shotgun in his face and told him to

leave. Infuriated, Nara went to his car and got his pistol. He

returned to the house, shot the door’s lock and burst in. Again,

Churby’s mother aimed the shotgun at him, and his wife

repeatedly struck him with a telephone. Amid the struggle, Nara

shot and killed both women.

Nara fled to North Carolina. Within a day, however, he

made several calls to the Pennsylvania State Police and to his

father, and admitted he killed the Churbys. He turned himself in
4

and was returned to Pennsylvania to face two charges of firstdegree murder. He was then confined at the Fayette County

prison.

Nara’s family retained attorney Charles Gentile as

counsel. His family grew fearful that he would harm himself in

prison, and John Walton of the Fayette County Mental Health

Center advised Gentile that Nara was in need of immediate

evaluation and help. Gentile filed a petition under the

Pennsylvania Mental Health Act, 50 PA. STAT. ANN. § 4407-

4411, requesting that the Fayette County Court of Common

Pleas transfer Nara to Mayview State Hospital for psychiatric

evaluation and commitment because he was a risk of harm to

himself or others. Gentile did not seek an evaluation to establish

Nara’s competency to stand trial or to assess his sanity at the

time of the killings. Fayette County Common Pleas Judge

Richard Cicchetti granted Gentile’s motion and transferred Nara

to Mayview.

At Mayview, Duncan Campbell, M.D., decided that Nara

should be observed, but did not place him on any routine

medication. Later that day, staff psychologist James T. Nelson

and an associate, David Bert, evaluated Nara more closely. They

recommended suicide precautions and treatment for depression.

Just four days later, staff psychologist Lilian Meyers,

Ph.D., reported that Nara was neither mentally ill nor in need of

treatment. She did not comment on Nara’s competency to stand

trial or his sanity at the time of the killings. However, she noted

the “seriousness” of the accusations against him and allegations

that he planned to escape, and recommended Nara be transferred
5

back to the county prison. He was transferred back to the prison,

where he remained untreated for the next four months. 

On June 20, 1984, Nara appeared before Fayette County

Court of Common Pleas Judge William J. Franks and pleaded

guilty to two counts of murder in the first degree. During an

exhaustive 85-minute colloquy, Nara admitted he “really did

intentionally kill” his wife, denied having been treated for any

mental or emotional illnesses, and repeatedly affirmed his

understanding of the proceedings. On July 13, 1984, Judge

Franks sentenced Nara to two concurrent life sentences. Nara

did not file a direct appeal to the Pennsylvania Superior Court.

The court transferred Nara to the State Correctional

Institution at Pittsburgh (SCIP). SCIP officials immediately

placed Nara at the facility’s medical unit “for psychiatric

reasons,” placed a leg restraint on him to reduce the risk of

suicide, and treated him with anti-depressants and anti-psychotic

medications. An attending physician noted Nara had “intense

suicidal ideation of severe proportions,” and Nara told him he

attempted to hang himself at the county prison following his

arrest. Within three weeks, SCIP officials initiated involuntary

commitment proceedings. On September 10, 1984 – eighty-two

days after the plea colloquy – Nara was committed to Farview

State Hospital as a suicide risk. Nara spent 90 days at Farview,

and then returned to SCIP’s medical facility. 

On February 19, 1985, Nara again attempted suicide and

was recommitted to Farview. He remained there for about a year

and a half, and was then returned to prison. 
1. The Pennsylvania legislature replaced the PCHA with

the Post Conviction Relief Act (PCRA) 12 days before Nara

filed his petition. Nara’s appointed counsel, Mr. Bower, did not

amend Nara’s petition to comply with the PCRA.

2.We previously noted Franks’ apparent error in Nara v.

Frank, 264 F.3d 310, 312 (3d Cir. 2001), overruled in part,

Carey v. Saffold, 536 U.S. 214 (2002).

6

B. State Post-Conviction Proceedings

1. First Post-Conviction Relief Proceeding

On April 25, 1988, Nara filed a pro se petition and brief

for post-conviction relief under the Pennsylvania Post

Conviction Hearing Act (PCHA).1

 In his brief, Nara claimed (1)

the court violated his constitutional rights by accepting his pleas

while he was mentally incompetent; and (2) his trial counsel,

Gentile, was ineffective for failing to have his competency

evaluated. Judge Franks appointed Fayette County Public

Defender Richard E. Bower to represent Nara and held

evidentiary hearings at which Nara, his father, his two brothers,

and Attorney Gentile testified. After the hearings, Judge Franks,

treating the petition as alleging only ineffective assistance of

counsel, concluded that Gentile was not ineffective, and denied

the petition.2

 Bower filed an appeal on Nara’s behalf to the

Superior Court raising only his ineffective assistance of counsel

claim. The Superior Court denied Nara’s appeal for failing to

conform to the newly-enacted PCRA, 42 PA. STAT. ANN.
3.The Superior Court held that Nara failed to argue that

Gentile’s alleged errors undermined the reliability of his

conviction or how those errors harmed him. Appendix at 433.

4.Morrison represented Nara before the PCRA court, the

Superior Court, the Pennsylvania Supreme Court, and the

United States Supreme Court. 

5.At the time, Dr. Harika had worked in psychiatry for

eight years. He spent four years at the Behavioral Clinic of

(continued...)

7

§9543.3

 Bower ended his representation of Nara, and Nara filed

a pro se petition for allowance of appeal in which he re-asserted

his incompetency claim and his ineffective assistance of counsel

claim. The Pennsylvania Supreme Court denied his pro se

petition for allocatur. 

2. Second Post-Conviction Relief Proceeding

On May 15, 1990, Nara filed a pro se PCRA petition in

which he alleged his guilty plea was “unlawfully induced,” and

that his first PCRA counsel was ineffective because he failed to

amend his petition to comply with the PCRA, failed to seek

allocatur, and failed to preserve state and federal constitutional

claims for federal habeas review. Judge Franks appointed Mark

Morrison, Esq.,4

 to represent Nara and allowed Nara to amend

his petition to specifically claim that he was mentally

incompetent when he pleaded guilty. Judge Franks held hearings

on Nara’s incompetency claim and heard testimony from him

and Dr. Jobindar Harika,5

 a forensic psychiatrist who met with
5.(...continued)

Allegheny County, two years on staff at the Woodward State

Hospital, and spent four years as a director at the Forensic State

Hospital from 1986-1990. Harika was also a consultant to the

Cambria County Jail, the Westmoreland Correction Center, the

Somerset County Jail, and the Fayette County Prison. He

previously testified in Pittsburgh and Washington county

proceedings.

6.Under Pennsylvania law, once a plea has been entered

and sentence imposed, a guilty plea may be withdrawn on a

showing of manifest injustice, which may be established if the

plea was not knowingly and voluntarily given. Com. v. Leidig,

850 A.2d 743, 746 (Pa. Super. 2004); Com. v. Starr, 301 A.2d

592, 595 (Pa. 1973). 

8

Nara and thoroughly reviewed his medical records. Harika

opined that Nara was probably “psychotic” and incapable of

entering a plea. The Commonwealth did not present rebuttal

testimony. Judge Franks, in a memorandum opinion, concluded

Nara was incompetent when he pleaded guilty, based on “the

totality of the circumstances,” and Harika’s “quite convincing”

and “unrebutted testimony.”6

 Judge Franks issued an order

allowing Nara to withdraw his guilty pleas, and the

Commonwealth appealed.

On April 30, 1992, the Superior Court reversed, vacated

Judge Franks’ order, and reinstated Nara’s guilty pleas. The

Superior Court held that Nara (1) waived his incompetency

claim by failing to raise it in his first post-conviction petition
7.As noted supra, Nara raised his incompetency claim in

his first pro se petition, but Judge Franks failed to address it. 

8.Nara raised his incompetency claim in his petition for

allowance of appeal, Appendix at 830, and in his petition for

certiorari, Id. at 586.

9

pursuant to PCRA §9544(b);7

 (2) failed to show his claim was

not previously litigated and not waived pursuant to PCRA

§9543(a)(3); and (3) waived his right to withdraw his guilty

pleas by failing to challenge their validity within ten days,

according to PA. R. CRIM. P. 321 (now PA. R. CRIM. P. 720).

Nara appealed. The Pennsylvania Supreme Court denied

allocatur and the United States Supreme Court denied

certiorari.

8

3. Third Post-Conviction Relief Proceeding

On December 21, 1995, Nara filed a third pro se petition,

alleging, inter alia, that he was incompetent when he entered his

guilty plea. Judge Franks appointed Phyllis Jin, Esq., to

represent Nara. Franks permitted Nara to withdraw his third

PCRA petition in favor of a motion to withdraw his guilty pleas

nunc pro tunc. Judge Franks, following the Superior Court’s

previous ruling, found Nara waived his incompetency claim

because he failed to challenge his guilty plea within ten days of

making it, and denied the motion. Nara appealed, claiming he

should have been allowed to withdraw his guilty pleas nunc pro

tunc because Judge Franks had previously found him
9.Nara made the same claim to the Pennsylvania Supreme

Court. Appendix at 706.

10

incompetent.9

 Appendix at 664. The Superior Court affirmed,

and the Pennsylvania Supreme Court denied allocatur. 

C. Federal Habeas Corpus Proceedings

On December 12, 1998, Nara filed a pro se petition for

a writ of habeas corpus in the U.S. District Court for the

Western District of Pennsylvania. The District Court referred the

case to Magistrate Judge Francis X. Caiazza, who issued a

report and recommendation (R&R) recommending that the

District Court dismiss Nara’s petition because Nara failed to file

his petition within the Anti-Terrorism and Effective Death

Penalty Act’s one-year statute of limitations. See 28 U.S.C.A.

§2244(d) (2006). Over Nara’s objections, the District Court

adopted the R&R and denied his petition as untimely. 

Nara appealed, and we remanded the cause to the District

Court for a hearing on whether Nara’s “ongoing periods of

mental incompetence” and allegations that Ms. Jin abandoned

him following his appeal to the Pennsylvania Supreme Court,

justified equitably tolling the statute of limitations. Nara v.

Frank, 264 F.3d 310 (3d Cir. 2001), overruled in part, Carey v.

Saffold, 536 U.S. 214 (2002).

Magistrate Judge Caiazza held evidentiary hearings on

the matter and found Ms. Jin “affirmatively misled” Nara and

thereby prevented him from timely filing his petition for habeas

corpus. Nara v. Frank, No. 99-5, 2004 WL 825858 (W.D.Pa.
11

March 10, 2004). Magistrate Judge Caiazza filed an R&R

recommending that the limitations period be equitably tolled,

and the Commonwealth did not file objections. On April 8,

2004, the District Court adopted the R&R and Nara filed an

amended petition for a writ of habeas corpus. The

Commonwealth answered, and both parties submitted

supplemental briefs to the District Court. 

On September 1, 2005, Magistrate Judge Caiazza filed an

extensive R&R in which he concluded (1) Nara exhausted his

incompetency claim by “fairly presenting” it to each level of the

Pennsylvania judiciary; (2) his incompetency claim was not

procedurally defaulted; (3) the second PCRA court’s conclusion

that Nara was incompetent to plead guilty was entitled to a

presumption of correctness under 28 U.S.C. §2254(e)(1); and (4)

Nara’s federal due process rights were violated when he entered

his guilty pleas because he was mentally incompetent.

The Magistrate Judge recommended that the District

Court grant the petition, allow Nara to withdraw his guilty pleas,

and direct the Commonwealth to release him unless it

commenced trial within 120 days. In accordance with the

Federal Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B)-(C), the

R&R provided the parties ten days in which to file objections.

The R&R ended with the routine warning that, “Failure to file

timely objections may constitute a waiver of any appellate

rights.” See, e.g., FED. R. CIV. P. 72(b) advisory committee’s

note. 

Neither party filed objections to the R&R. On September

27, 2005, the District Court noted that no objections were filed,
10. In its reply brief, the Commonwealth asserts it filed its

notice of appeal “in an abundance of caution” due to the fact

that nearly 30 days had expired since the District Court issued

its judgment and order.

12

adopted the R&R, and issued the recommended order. Over two

weeks later – on October 14 – the Commonwealth filed a motion

with the District Court requesting vacatur pursuant to FED. R.

CIV. P. 60(b). The Commonwealth asserted it never received the

R&R and requested ten additional days in which to file

objections. In response, Nara suggested the District Court grant

the Commonwealth ten days to file objections to the R&R, but

only if its objections persuaded the court to either reject or

amend the R&R. On October 26, before the District Court could

rule on the parties’ respective motions, the Commonwealth filed

a notice of appeal.10 The District Court dismissed the

Commonwealth’s October 14 motion as moot.

II. Jurisdiction

The District Court exercised jurisdiction over Nara’s

petition for habeas corpus pursuant to 28 U.S.C. §§2241 and

2254. We have jurisdiction pursuant to 28 U.S.C. §§1291 and

2253(a).

III. Standard of Review

A.

Where the District Court relies entirely upon the state

court record, we review its decision granting habeas corpus de
11. In early 2001, the federal courts began implementing

the Case Management/Electronic Case Files (CM/ECF). Under

(continued...)

13

novo. Satterfield v. Johnson, 434 F.3d 185, 190 (3d Cir. 2006);

Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir. 1999), cert.

denied, 528 U.S. 1128 (2000). Here, however, Nara argues we

should review the District Court’s decision for plain error

because the Commonwealth failed to object to the Magistrate

Judge’s R&R within ten days.

Federal Rule of Civil Procedure Rule 60(b)(1) permits a

District Court to grant a party relief from a final judgment based

upon, inter alia, “excusable neglect.” FED. R. CIV. P. 60(b)

(2007). The test for “excusable neglect” is equitable, and

requires us to weigh the “totality of the circumstances.” Welch

& Forbes, Inc. v. Cendant Corp., 234 F.3d 166, 171 (3d Cir.

2000) (citing Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507

U.S. 380 (1993)). In particular, we consider 1) the danger of

prejudice to the other party; 2) the length of the delay and its

potential impact on judicial proceedings; 3) the reason for the

delay – and whether it was within the movant’s control; and 4)

whether the movant acted in good faith. Id.

There is no evidence the Commonwealth acted in bad

faith. Nevertheless, the Commonwealth’s overall negligence in

handling the matter precludes us from finding “excusable

neglect.” First, attorneys practicing in the Western District of

Pennsylvania were under a standing order to register with the

Case Management/Electronic Case Files (CM/ECF) system by

July 1, 2005.11 If the Commonwealth’s attorneys had complied
11.(...continued)

the program, federal courts and parties file and issue all

documents electronically (with certain exceptions for pro se

prisoners, etc.). Attorneys of record receive email notices,

containing hyperlinks to documents, immediately upon every

filing. The Western District announced its adoption of the

program in the fall of 2004 and, on April 20, 2005, issued a

standing order making the program mandatory, effective July 1,

2005. See Amended Standing Order, Misc. No. 05-6 (W.D.Pa.

2006).

12.The Commonwealth’s Attorneys based in Harrisburg

were required to register in the Middle District of Pennsylvania

in 2003. See Standing Order No. 07-01 (M.D.Pa. 2007).

14

with that order, they would have received immediate electronic

notification that the Magistrate Judge had issued the R&R and

could have accessed it by hyper-link.12 Second, the

Commonwealth failed to respond to the District Court’s order

for 17 days. Despite the urgency of the situation, the

Commonwealth has offered no excuse for this latter delay. We

cannot conclude the Commonwealth’s failure to object to the

R&R for over six weeks was excusable. 

B.

It is well-settled that a right, constitutional or otherwise,

“may be forfeited in criminal as well as civil cases by the failure

to make a timely assertion of the right before a tribunal having

jurisdiction to determine it.” United States v. Olano, 507 U.S.

725, 731 (1993) (quoting Yakus v. United States, 321 U.S. 414,
15

444 (1944)). We have supervisory authority to impose a rule of

waiver when a party fails to timely object to a magistrate judge’s

R&R. Thomas v. Arn, 474 U.S. 140 (1985). We have held

generally that failing to timely object to an R&R in a civil

proceeding may result in forfeiture of de novo review at the

district court level, but does not forfeit the statutory right to

appellate review under other standards. Henderson v. Carlson,

812 F.2d 874, 878-79 (3d Cir. 1987), cert. denied, 484 U.S. 837

(1987). We now hold that, where a party fails to file timely

objections to a magistrate judge’s R&R in a habeas proceeding,

and the district court then adopts the R&R, we will only review

the R&R for plain error. 

Article III requires de novo review of a magistrate

judge’s R&R where a party timely objects. United States v.

Peretz, 501 U.S. 923 (1991). The Federal Magistrate Judges Act

neither precludes nor mandates a particular standard of appellate

review where the parties fail to object to the R&R. 28 U.S.C.A.

§636(C) (2006). The Federal Rules governing habeas cases do

not dictate a particular result where a party fails to timely object,

but authorize us to apply the Federal Rules of Civil Procedure

where appropriate. FED. R. GOV. §2254 CASES 11 (2007). The

relevant civil procedure rule, however, is inapplicable to habeas

corpus cases. FED. R. CIV. P. 72(b) advisory committee’s note

(2007). We therefore turn to our jurisprudence to determine the

appropriate standard of review.

In Henderson, we considered whether the Government

waived its right to appeal by failing to make a timely objection

to a magistrate judge’s recommendation that the district court

grant habeas relief to a federal prisoner. We recognized our
13.Before Henderson, we declined to adopt a waiver rule

where the magistrate judge’s report treated filing of objections

as permissive. Welch v. Heckler, 808 F.2d 264, 266 (3d Cir.

1986). The R&R in this case, however, plainly treated the timely

filing of objections as mandatory. 

16

authority to adopt a waiver rule under Thomas v. Arn, 474 U.S.

140 (1985), and noted that a majority of the courts of appeals

had adopted one. We nonetheless rejected an outright waiver

rule because we were concerned that it would (1) entangle the

court in a web of equitable exceptions, and (2) deprive a party

of any review of unobjected-to dispositive legal issues raised in

the R&R. Henderson, 812 F.2d at 878.13 

 Soon after Henderson, we held that a party who does not

appeal a magistrate judge’s non-dispositive order (under 28

U.S.C. §636(b)(1)(A)) to the district court waives its right to

seek review of the order in the Court of Appeals. United

Steelworkers of Am. v. New Jersey Zinc Co., Inc., 828 F.2d 1001

(3d Cir. 1987); Continental Cas. Co. v. Dominick D’Andrea

Inc., 150 F.3d 254 (3d Cir. 1998). The New Jersey Zinc and

D’Andrea panels recognized Henderson, but saw a distinction

between subsection (A) referrals, which give the magistrate

judge’s orders the force of law; and subsection (B) referrals,

which do not carry the force of law until the district court adopts

the R&R. New Jersey Zinc, 828 F.2d at 1005-006; D’Andrea,

150 F.3d at 250. Both panels concluded a waiver rule in

subsection (A) cases supported the Magistrate Judges Act’s

purpose – “to relieve courts of unnecessary work and to improve

access to the courts.” New Jersey Zinc at 1007; D’Andrea at 251

(internal citations omitted). 
14. The Seventh Circuit does not apply its appellate waiver

rule where untimely objections are not “egregiously late” and

the opposing party has not been prejudiced. Hunger v.

Leininger, 15 F.3d 664, 668 (7th Cir. 1994), cert. denied, 513

U.S. 839 (1994).

15.The D.C. Circuit Court of Appeals has apparently never

adopted a specific rule. Powell v. United States Bureau of

Prisons, 927 F.2d 1239 (D.C. Cir. 1991).

17

Six other courts of appeals apply a waiver rule against

untimely objections to a dispositive order or R&R. Henley

Drilling Co. v McGee, 36 F.3d 143, 150-51 (1st Cir. 1994);

FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995);

United States v. George, 971 F.2d 1113, 1118 n.7 (4th Cir.

1992); Kelly v. Withrow, 25 F.3d 363, 366 (6th Cir. 1994); cert.

denied, 513 U.S. 1061 (1994); Video Views, Inc. v. Studio 21,

Ltd., 797 F.2d 538, 539 (7th Cir. 1986);14 Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). 

Other courts of appeals have adopted more lenient

qualified forfeiture rules, like the one we adopted in Henderson.

Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir.

1996) (en banc); Griffini v. Mitchell, 31 F.3d 690 (8th Cir.

1994); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Henley

v. Johnson, 885 F.2d 790 (11th Cir. 1989).15

The Fifth Circuit Court of Appeals’ analysis in Douglass

persuades us that we should review unobjected-to R&Rs, as

adopted by a district court, for plain error. First, the Douglass

court explained its conversion to the plain error standard it now
18

employs. Douglass, 79 F.3d at 1421. Initially, the court applied

a rule of waiver against unobjected-to R&Rs. Soon thereafter,

it adopted a forfeiture rule which permitted plain error review

for unobjected-to factual findings and de novo review of

unobjected-to legal conclusions. See Douglass, 79 F.3d at 1422.

Fourteen years later, the Douglass court recognized its thenexisting rule was an “anomaly, which caused a great waste of

judicial resources” and “was totally at odds with the

forfeiture/plain error rule applicable in other settings.”Id. at

1419. Second, the court noted that the Supreme Court, when it

approved waiver rules in Arn, also approved an “in the interests

of justice” exception which is closely analogous to the plain

error exception to the contemporaneous objection rule. Id. at

1428 (citing Arn, 474 U.S. at 155). In conclusion, the Douglass

court held failure to timely file objections to an R&R “shall bar

that party, except upon grounds of plain error, from attacking on

appeal the unobjected-to proposed factual findings and legal

conclusions accepted by the district court, provided that the

party has been served with notice that such consequences will

result from a failure to object.” Douglass, 79 F.3d at 1429.

We conclude plain error review is appropriate where a

party fails to timely object to a magistrate judge’s R&R in

habeas corpus cases. First, plain error review recognizes the

difference between failing to timely assert a right, and

voluntarily waiving a right. Failing to timely assert a right

results in forfeiture, which permits plain error review. United

States v. Olano, 507 U.S. 725, 733 (1993). Waiver, on the other

hand, extinguishes any error. Id. Second, failure to timely object

to an R&R is little different from, for example, the failure of

counsel to timely object to the admission of evidence in open
19

court. Douglass, 79 F.3d at 1428. In the latter situation, we

regularly review for plain error in criminal and civil

proceedings, including habeas cases. See, e.g., United States v.

Harris, 471 F.3d 507, 511 (3d Cir. 2006); Franklin

Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 338

(3d Cir. 2006); Clemmons v. Wolfe, 377 F.3d 322, 325 (3d Cir.

2004). Third, plain error review promotes the effectiveness and

efficiency of the lower courts by compelling parties to promptly

contest dispositive issues before the magistrate judge and district

judge. Requiring de novo review despite a party’s failure to

timely object, on the other hand, blunts the effectiveness of the

Federal Magistrate Judges Act. Douglass, 79 F.3d at 1420. It

either forces the court of appeals to consider claims that were

never reviewed by the district court, or compels the district court

to review every issue in every case, even if both parties are

satisfied with the R&R. Arn, 474 U.S. at 147; New Jersey Zinc,

828 F.2d at 1007; Douglass, 79 F.3d at 1420. At the same time,

plain error review accords with our decisions in Henderson,

New Jersey Zinc, and D’Andrea by affording some level of

appellate review to all dispositive legal issues raised by an R&R.

Finally, plain error review recognizes failure to timely object to

an R&R is not a jurisdictional defect. Grandison v. Moore, 786

F.2d 146, 148 (3d Cir. 1986). District courts may therefore

consider requests by parties for extra time or requests to excuse

late filings on adequate justification. Id. 

By employing plain error review, we remain faithful to

Henderson by using a straight-forward, frequently-applied

standard of review which preserves appellate consideration of

dispositive legal issues. In addition, we add precision to
16.We now refer to the Magistrate Judge’s conclusions as

those of the District Court because it adopted the R&R in its

(continued...)

20

Henderson and give substance to the oft-repeated warning that

“failure to timely object may risk the loss of appellate rights.”

The Commonwealth argues that we should nonetheless

review the R&R de novo, because the District Court reviewed

the R&R de novo. See Henderson, 812 F.2d at 879 n.4. We

disagree. There is no indication the District Court conducted an

independent review of the entire record and applicable law de

novo. Id. Nor was the District Court under any obligation to do

so. Medina v. DeGuglielmo, 461 F.3d 417, 426 (3d Cir. 2006)

(citing FED. R. GOV. §2254 CASES 8(b) (2006)). 

Finally, as explained supra, the Commonwealth’s failure

to object was not caused by forces outside its control. The

Commonwealth attorneys were on notice that (1) the Western

District required all practicing attorneys to register to use the

CM/ECF system; and (2) failure to object to an R&R risked the

loss of appellate rights. If the Commonwealth’s attorneys had

complied with the Western District’s standing order, they would

have had immediate notice of the R&R’s filing and access to it.

IV. Discussion

A. Exhaustion

Under the plain error standard, we should only reverse

the District Court’s16 decision if it made a plain error which
16.(...continued)

entirety.

21

affects “substantial rights.” United States v. Olano, 507 U.S.

725, 732 (1993). An error is “plain” if it is clear or obvious.

Olano, 507 U.S. 725, 734 (1993). If we discern an error, we will

only correct it if the appellant also demonstrates the error

“seriously affected the fairness, integrity or public reputation of

judicial proceedings.” Id. at 732 (quoting United States v.

Atkinson, 297 U.S. 157, 160 (1936)); Clemmons v. Wolfe, 377

F.3d at 325. 

First, the Commonwealth argues the District Court erred

by concluding Nara exhausted his state court remedies with

respect to his incompetency claim. The federal habeas statute

requires state prisoners to exhaust available state court remedies

before seeking federal relief. 28 U.S.C.A. §2254(b) (2006);

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Therefore, a

state prisoner must “give the state courts one full opportunity to

resolve any constitutional issues by invoking one complete

round of the State’s established appellate review process.”

O’Sullivan, 526 U.S. at 845; see also Woodford v. Ngo, 126

S.Ct. 2378, 2386-87 (2006). 

A claim is exhausted if it was “fairly presented” to the

state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004);

O’Sullivan v. Boerckel, 526 U.S. at 848; Cristin v. Brennan, 281

F.3d 404, 410 (3d Cir. 2002); Doctor v. Walters, 96 F.3d 675,

678 (3d Cir. 1996). A petitioner has fairly presented his claim if

he presented the same factual and legal basis for the claim to the

state courts. See Duncan v. Henry, 513 U.S. 364, 366 (1995)
17.The Commonwealth suggests the Supreme Court’s

decision in Baldwin v. Reese may have limited the viability of

the McCandless analysis. We disagree. Baldwin held that,

“ordinarily a state prisoner does not fairly present a claim to a

state court if that court must look beyond a petition or a brief (or

similar document) that does not alert it to the presence of a

federal claim in order to find material, such as a lower court

opinion, that does so.” Baldwin, 541 U.S. 27, 32 (2004).

Baldwin concluded that the petitioner’s briefs to the state courts

in that case did not “fairly present” a federal claim because the

briefs cited no case that might alert the state court to the federal

nature of the claim, lacked a factual description supporting the

claim, and yet cited federal law in support of other claims. Id. at

33. These are among the same considerations set out in

McCandless.

22

(per curiam). A petitioner can “fairly present” his claim

through: (a) reliance on pertinent federal cases; (b) reliance on

state cases employing constitutional analysis in like fact

situations; (c) assertion of the claim in terms so particular as to

call to mind a specific right protected by the Constitution; and

(d) allegation of a pattern of facts that is well within the

mainstream of constitutional litigation. McCandless v. Vaughn,

172 F.3d 255, 260 (3d Cir. 1999).17 Even if a state court refuses

to consider the claim on procedural grounds, it is still exhausted

as long as the state court had the opportunity to address it. Bond

v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989); Pursell v. Horn,

187 F.Supp.2d 260, 288 (W.D.Pa. 2002) (Smith, J.). 

Nara’s incompetency claim arises under the Due Process

clause of the Fourteenth Amendment. Due process prohibits a
18.We turn to Nara’s second petition for exhaustion

purposes because he failed to “fairly present” his incompetency

claim to the Superior Court following the first post-conviction

proceeding. He did, however, present the claim throughout the

proceedings following his second and third petitions.

23

court from accepting a guilty plea unless it is entered

“competently,” “knowingly and voluntarily.” Godinez v. Moran,

509 U.S. 389, 397-402 (1992). A criminal defendant is

competent to plead guilty if he has “sufficient present ability to

consult with his lawyer with a reasonable degree of rational

understanding” and “has a rational as well as factual

understanding of the proceedings against him.” Godinez, 509

U.S. at 396 (citing Dusky v. United States, 362 U.S. 402 (1940));

United States v. Cole, 813 F.2d 43, 46 (3d Cir. 1987) (citing

United States ex rel McGough v. Hewitt, 528 F.2d 339, 342 n.2

(3d Cir. 1975)). Pennsylvania courts have consistently applied

the same standard. See, e.g., Com. v. Frey, 904 A.2d 866, 872

(Pa. 2006); Com. v. Marshall, 312 A.2d 6, 7 (Pa. 1973); Com. v.

Harris, 243 A.2d 408, 409 (Pa. 1968); Com. v. Smith, 469 A.2d

1104, 1107 (Pa. Super. 1983). 

Following his second PCRA petition,18 Nara gave the

Pennsylvania courts a full opportunity to address his federal

incompetency claim by repeatedly stating his claim “in terms so

particular as to call to mind a specific right protected by the

Constitution.” McCandless v. Vaughn, 172 F.3d at 260. Nara’s

second petition included a claim that his guilty plea was

“unlawfully induced.” Appendix at 436. Attorney Morrison

orally amended Nara’s pro se petition to specifically include the

argument that Nara was “not competent to make a

knowledgeable and willing plea at the time he entered it.”
24

Appendix at 448. After Judge Franks granted Nara’s petition

and the Commonwealth appealed, Nara argued that he

established his mental incompetency to plead guilty, articulated

the test applied by both federal and state courts, and compared

the facts of his case to Com. v. Marshall, 312 A.2d 6 (1973).

Appendix at 885-87. When he again sought allocatur, Nara

specifically raised “the invalidity of his plea,” and, citing

Marshall, stated that he “was mentally ill and incompetent to

knowingly answer the plea court’s questions.” Appendix at 830.

Nara consistently presented the basic factual outline of a federal

claim. The Pennsylvania courts were not required to search

beyond the pleadings and briefs for a federal issue. Compare

Baldwin v. Reese, 541 U.S. 27 (2004), and Bronshtein v. Horn,

404 F.3d 700, 725-26 (3d Cir. 2005). We conclude Nara

properly exhausted his incompetency claim. 

B. Procedural Default

The procedural default doctrine prohibits federal courts

from reviewing a state court decision involving a federal

question if the state court decision is based on a rule of state law

that is independent of the federal question and adequate to

support the judgment. Gray v. Netherland, 518 U.S. 152, 162

(1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991). A

state rule provides an adequate and independent basis for

precluding federal review if (1) the rule speaks in unmistakable

terms; (2) all state appellate courts refused to review the

petitioner’s claims on the merits; and (3) their refusal was

consistent with other decisions. Bronshtein v. Horn, 404 F.3d

700, 708 (3d Cir. 2005), cert. denied, Beard v. Bronshtein, 126

S.Ct. 1320 (2006); Doctor v. Walters, 96 F.3d 675, 683-84 (3d
25

Cir. 1996). The Commonwealth bears the burden of

demonstrating that Nara defaulted on his incompetency claim.

Netherland, 518 U.S. at 166 (internal citations omitted). We

agree with the District Court that the Commonwealth failed to

carry its burden. 

1. Former PA. R. CRIM. P. 321

Nara’s first purported procedural default occurred when

he failed to file a motion to challenge his guilty plea within ten

days of entering it, pursuant to former PA. R. CRIM. P. 321. The

Superior Court first noted this alleged waiver following his

second PCRA proceeding. Appendix at 583. His third petition

for relief was denied based upon PA. R. CRIM. P. 321.

Pennsylvania courts, however, have consistently held rules of

waiver inapplicable to incompetency claims. Com. v. Brown,

872 A.2d 1139, 1153 (Pa. 2005); Com. v. Santiago, 855 A.2d

682, 692 n.9 (Pa. 2004); Com. v. Tyson, 402 A.2d 995, 997 (Pa.

1979). Indeed, it would be contradictory to conclude that,

regardless of his incompetency at the time of his guilty plea,

Nara could competently waive his right to challenge his guilty

plea just ten days later. See Santiago, 855 A.2d at 692, and Com.

v. Marshall, 318 A.2d 724 (Pa. 1974) (citing Pate v. Robinson,

383 U.S. 375, 384 (1966)). 

2. 42 PA. STAT. ANN. §9544(b) 

Following his second petition, the Superior Court held

that Nara waived his incompetency claim by failing to raise it in

his first post-conviction petition pursuant to 42 PA. STAT. ANN.

§9544(b). As we have noted, Nara did raise his incompetency
26

claim in his first petition. Regardless, even after the enactment

of the PCRA, Pennsylvania courts did not consistently bar

successive post-conviction petitions – like Nara’s – which

allege prior counsel was ineffective. See, e.g., Com. v. Allen,

732 A.2d 582, 587 (Pa. 1999); Com. v. Christy, 656 A.2d 877,

881 (Pa. 1995); Com. v. Cummings, 619 A.2d 316, 318 (Pa.

Super. 1993); Com. v. Dukeman, 605 A.2d 418, 421 (Pa. Super.

1992); see also Lambert v. Blackwell, 134 F.3d 506, 522 n.27

(3d Cir. 1998) (noting Commonwealth acknowledged

Pennsylvania courts will consider waived claims when raised

under the rubric of ineffective assistance of counsel). 

3. 42 PA. STAT. ANN. §9543(a)(3)

Finally, following his second petition, the Superior Court

held that Nara was ineligible for post-conviction relief under 42

PA. STAT. ANN. §9543(a)(3). Section 9543(a)(3) bars postconviction relief unless a petitioner can show his claim was not

previously litigated and was not waived. When Nara brought his

second PCRA petition, his incompetency claim was not

“previously litigated” because the Superior Court did not reach

the merits. Com. v. Morales, 701 A.2d 516, 520 (Pa. 1997). His

alleged waivers were subject to the exceptions described above.

In any case, a petitioner can overcome failure to meet

§9543(a)(3)’s requirements where he shows his prior counsel

was ineffective, Morales, 701 A.2d at 520 (Pa. 1997) (citing

Com. v. Griffin, 644 A.2d 1170 (Pa. 1994)), or makes “a strong

prima facie showing that a miscarriage of justice may have

occurred.” Hull v. Kyler, 190 F.3d 88, 101 n.4 (3d Cir. 1999)

(quoting Com. v. Lawson, 549 A.2d 107, 112 (Pa. 1988)). 
27

Nara’s incompetency claim was not procedurally

defaulted, because Pennsylvania courts have frequently applied

exceptions to his alleged waivers under former PA. R. CRIM. P.

321 and the PCRA. The Pennsylvania appellate courts’ refusal

to review his incompetency claim on the merits was not

consistent with Pennsylvania law. We therefore proceed to the

merits of his claim. 

C. Nara’s Competency

1. Presumption of Correctness

The District Court accorded a presumption of correctness

to the second PCRA court’s determination that Nara was

incompetent under 28 U.S.C. §2254(e)(1). Section 2254(e)(1)

provides, in relevant part: 

In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody

pursuant to the judgment of a State court, a

determination of a factual issue made by a State

court shall be presumed to be correct. The

applicant shall have the burden of rebutting the

presumption of correctness by clear and

convincing evidence. 

28 U.S.C.A. §2254(e)(1) (2006); Demosthenes v. Baal, 495 U.S.

731, 735 (1990) (per curiam) (cited in Michael v. Horn, 459

F.3d 411, 414 n.3 (3d Cir. 2006)); White v. Horn, 112 F.3d 105,

112 n.7 (3d Cir. 1997). A state trial court’s determination of an

individual’s competency is entitled to a presumption of
28

correctness. Smith v. Freeman, 892 F.2d 331, 341 (3d Cir. 1989)

(citing Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per

curiam), and Sumner v. Mata, 449 U.S. 539, 546-47 (1981)); see

also Miller v. Fenton, 474 U.S. 104 (1985). 

The Commonwealth argues the District Court should not

have applied the presumption of correctness to the second

PCRA court’s findings because there was no “adjudication on

the merits” of Nara’s incompetency claim. We disagree. First,

the §2254(e)(1) presumption of correctness applies regardless of

whether there has been an “adjudication on the merits” for

purposes of §2254(d). Appel v. Horn, 250 F.3d 203, 210 (3d Cir.

2001). Second, during the second PCRA proceeding, Judge

Franks plainly did reach the merits of Nara’s incompetency

claim: he reviewed the lengthy plea colloquy transcript, held

two days of evidentiary hearings on the claim, observed expert

witness testimony and cross-examination, identified and applied

the correct legal principle, and specifically concluded Nara was

incompetent when he pleaded guilty. Compare Albrecht v. Horn,

471 F.3d 435, 446 (3d Cir. 2006) (stating that identification and

purported application of the correct legal principle constitutes an

“adjudication on the merits” for purposes of AEDPA).

Finally, there is a “familiar and compelling” justification

for according presumptive weight to Judge Franks’

determination. Miller v. Fenton, 474 U.S. 104, 114 (1985). It is

a well-established principle of federal law that state trial judges

deserve substantial deference. 

Face to face with the living witnesses, the original

trier of the facts holds a position of advantage
29

from which appellate judges are excluded. In

doubtful cases, the exercise of his power of

observation often proves the most accurate

method of ascertaining the truth...how can we say

he is wrong? We never saw the witnesses.

Boyd v. Boyd, 169 N.E. 632, 634 (N.Y. 1930) (quoted in Oregon

Medical Society, 343 U.S. 326, 339 (1952), Maggio, 462 U.S. at

117, and Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).

This principle is particularly relevant here, because witness

credibility and demeanor are crucial to resolving an individual’s

competency. Fenton, 474 U.S. at 116 -17 (citing Maggio, 462

U.S. at 117). A retrospective competency examination at this

stage – over twenty years later – would pose considerable

difficulties for a federal habeas court. Drope v. Missouri, 420

U.S. 162 (1975). Judge Franks, a learned colleague of a

coordinate court, was in a unique position from which he could

carefully assess witness credibility and demeanor in open court

against his extensive experience with the case. Even six years

after the plea colloquy, he was in a position “far superior to that

of federal judges reviewing an application for a writ of habeas

corpus.” Fenton, 474 U.S. at 114.

The Commonwealth contends the District Court should

not have relied upon the second PCRA court’s factual findings

because the Pennsylvania Superior Court vacated the court’s

decision. When an appellate court vacates a lower court’s order,

it renders the lower court’s order null and void. United States

v. Ayres, 76 U.S. 608, 609 (1869); Allegheny County v.

Maryland Cas. Co., 132 F.2d 894, 896 (3d Cir. 1943); Kuppel

v. Auman, 529 A.2d 29, 31 (Pa. Super. 1987) (citing McGine v.
30

State Mut. Ben. Soc., 4 A.2d 537, 538 (Pa. Super. 1939)).

However, a state court’s factual determination may be given

effect even if its order has been rendered a nullity on other

grounds. Dickerson v. Vaughn, 90 F.3d 87, 90-91 (3d Cir. 1996)

(Weis, J.) (Superior Court’s factual determination entitled to

deference where reversal order by the Pennsylvania Supreme

Court left factual determination undisturbed); see also Lambert

v. Blackwell, 387 F.3d 210, 236-40 (3d Cir. 2004) (deferring to

state courts’ factual findings despite concluding that state courts

lacked jurisdiction under Pennsylvania law); Pursell v. Horn,

187 F.Supp.2d 260, 292, 308-12 (W.D.Pa. 2002) (according

deference to PCRA court’s factual findings where state appellate

court found PCRA court lacked jurisdiction); Com. v. Pate, 617

A.2d 754, 760 (Pa. Super. 1992). The Commonwealth

acknowledges a state PCRA trial court’s factual findings merit

deference unless a state appellate court invalidates those

findings. Here, Judge Franks’ determination that Nara was

incompetent was left undisturbed by the Pennsylvania Superior

Court, the Pennsylvania Supreme Court, and by Judge Franks

himself during the third post-conviction proceeding. We find no

plain error in the District Court’s conclusion that a presumption

of correctness applied to Judge Franks’ competency

determination.

2. Rebuttal of the Presumption

Application of the presumption of correctness raises the

question of whether the federal habeas statute allows the

Commonwealth to rebut the presumption. The statute provides

habeas applicants an opportunity to challenge a state court’s

factual determination by “clear and convincing evidence.” 28
31

U.S.C.A. §2254(e)(1) (2006). It is silent as to whether a state

can rebut the presumption. Generally, where a statute authorizes

a designated party to take specific action, it is inappropriate to

presume that a party not so designated may also take it. Hartford

Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1,

6-7 (2003). At the same time, we recognize that denying the

Commonwealth any opportunity to contest Judge Franks’

determination would seem to conflict with the overall design of

the federal habeas statute. We decline to decide this question,

because the record here confirms that the Commonwealth’s

attempt to rebut would fail.

As stated supra, the standard for competency to plead

guilty is whether the criminal defendant was able to consult with

his lawyer with a reasonable degree of rational understanding

and whether he had a rational understanding of the nature and

object of the proceedings against him. Godinez, 509 U.S. at 396;

United States v. Cole, 813 F.2d 43, 46 (3d Cir. 1987); United

States ex rel. McGough v. Hewitt, 528 F.2d 339, 342 n.2 (3d Cir.

1975). Ordinarily, a defendant’s competency to plead guilty may

be established during the plea colloquy, and a competency

determination is necessary only when the court has reason to

doubt the defendant’s competency. Godinez, 509 U.S. at 402

n.13. 

Under Pennsylvania law, a guilty plea may nonetheless

be withdrawn, after a sentence has been imposed, on a showing

of manifest injustice. Com. v. Leidig, 850 A.2d 743, 746 (Pa.

Super. 2004); Com. v. Muhammad, 794 A.2d 378 (Pa. Super.

2002). A prisoner may show his plea resulted in manifest

injustice if he establishes he entered it involuntarily,
19.Nara was treated with several anti-depressants and

tranquilizers used to treat schizophrenia before the murders and

throughout the two years after his sentencing.

32

unknowingly or unintelligently. Leidig, 850 A.2d. at 746;

Muhammad, 794 A.2d at 383. To ascertain whether a plea was

given voluntarily, knowingly and intelligently, the court must

examine the plea colloquy and the totality of the circumstances

surrounding the entry of the plea. Com. v. Gribble, 863 A.2d

455, 474 n.16 (Pa. 2004) (stating, “when a collateral attack is

leveled against a record waiver, it is the totality of the

circumstances, and not the record waiver or plea colloquy,

which controls.”); Muhammad, 794 A.2d at 383-84 (citing Com.

v. Lewis, 708 A.2d 497, 501 (Pa. Super. 1998)).

During his plea colloquy, Nara repeatedly indicated he

understood what was transpiring. See, e.g., Appendix at 112,

120, 124. The “totality of the circumstances,” reflected in Nara’s

medical records and Dr. Harika’s testimony, however, suggests

otherwise. Nara’s medical records indicate he was hospitalized

and medicated19 at state mental health institutions following

suicide attempts both before his arrest and shortly after his

sentencing, but was apparently left untreated during the

intervening months. Indeed, his condition during the four

months prior to the plea colloquy, and during the weeks prior to

sentencing, is entirely undocumented.

Dr. Harika’s expert testimony provided essential insight

into Nara’s mental state during this undocumented period. Dr.

Harika analyzed Nara’s medical records and his statements at

the plea colloquy, and testified that Nara’s condition steadily
20.Even if we were to find an obvious error on the part of

the District Court, the Commonwealth has failed to show that

any such error has “seriously affected the fairness, integrity or

public reputation of judicial proceedings.” The Commonwealth

had a full opportunity to challenge Dr. Harika’s testimony

during the second PCRA proceeding, and it has been afforded

a full and fair opportunity to pursue its arguments.

33

worsened such that he was “psychotic” and “out of touch with

reality” when he pleaded guilty. The Commonwealth failed to

rebut his testimony, and has not presented any additional

evidence to contradict Harika’s testimony in subsequent

proceedings. Finally, we again emphasize the fact that Judge

Franks, who conducted an 85- minute colloquy with Nara and

held hearings during three separate post-conviction proceedings,

ultimately found Nara was incompetent when he pleaded guilty

and never reversed this finding. We find no plain error in the

District Court’s conclusion that Nara was incompetent when he

pleaded guilty.20

V. Conclusion

In sum, because the Commonwealth failed to timely

object to the Magistrate Judge’s R&R, we have reviewed the

R&R, as adopted by the District Court, for plain error.

We find no plain error in the District Court’s conclusion

that Nara “fairly presented” his incompetency claim to each

level of the Pennsylvania judiciary. Nor did it err by according

a presumption of correctness to Judge Franks’ competency

determination. Finally, we find no plain error in the District
34

Court’s conclusion that Nara’s guilty pleas were accepted in

violation of due process. 

We will affirm the District Court’s order.