2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-12-2004

Lambert v. Blackwell

Precedential or Non-Precedential: Precedential

Docket No. 03-2282

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"Lambert v. Blackwell" (2004). 2004 Decisions. Paper 173.

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1

PRECEDENTIAL

UNITED STATES COURT 

OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 03-2282, 03-2383

 

LISA MICHELLE LAMBERT,

Appellant

v.

CHARLOTTE BLACKWELL

(ADMINISTRATOR OF THE 

EDNA MAHAN CORRECTIONAL

FACILITY FOR WOMEN); 

THE ATTORNEY GENERAL OF 

THE STATE OF PENNSYLVANIA

 

On Appeal from the 

United States District Court for the

Eastern District of Pennsylvania

(Dist. Court No. 01-cv-2511)

District Judge: Hon. Anita B. Brody

 

Argued: January 12, 2004

Before: ALITO, CHERTOFF, and

BECKER, Circuit Judges.

(Filed: October 12, 2004)

Peter S. Greenberg, Esquire (Argued)

Nancy Winkelman, Esquire

Jonathan S. Liss, Esquire

Han Nguyen, Esquire

Schnader Harrison Segal & Lewis LLP

1600 Market Street, Suite 3600

Philadelphia, PA 19103 

 Counsel for Appellant/Cross-Appellee

Gerald J. Pappert

Attorney General

William H. Ryan, Jr.

Executive Deputy Attorney General,

Criminal Law Division

Amy Zapp (Argued)

Senior Deputy Attorney General, 

Capital Litigation Unit

Jerome T. Foerster

Senior Deputy Attorney General,

Appeals and Legal Services Section

Office of The Attorney General

16th Floor, Strawberry Square

Harrisburg, PA 17120

 Counsel for Appellee/Cross-Appellant

 

OPINION OF THE COURT

 

TABLE OF CONTENTS

I. BACKGROUND .............. 3

A. The Trial .................. 4

1. The Commonwealth’s Case 5

2. Lambert’s Case .......... 9
2

B. Procedural History ......... 14

II. JURISDICTION AND 

STANDARD OF REVIEW ..... 18

III. DISCUSSION ............... 19

A. Exhaustion ................ 20

B. Deference ................. 23

C. The Merits ................ 34

1. The Sweatpants ......... 35

a. Knowing Use of Perjured

Testimony .......... 35

b. “Switching” Evidence . 39

2. Evidence of Yunkin’s

Location During the

Murder ................ 42

a. Knowing Use of Perjured

Testimony .......... 44

b. Suppression of Brady

Material ............ 49

3. The “29 Questions” ...... 51

4. The Crime Scene

Photographs ............ 54

5. The Dying Declaration ... 57

6. The DA’s Contact with

Lambert’s Trial Expert ... 59

7. The River Search ........ 65

a. Brady Violation

Concerning the Pink Bag

and Sneaker ......... 65

b. Knowing Use of Perjured

Testimony .......... 67

c. Brady Violation

Concerning the Rope . . 68

d. Destruction of

Evidence ........... 69

IV. CONCLUSION ............ 69

CHERTOFF, Circuit Judge.

Before us, after a lengthy journey

up and down the state and federal justice

systems, is the habeas petition of Lisa

Michelle Lambert. Lambert is currently

serving a life sentence without the

possibility of parole for first degree

murder. Judge Lawrence Stengel of the

Court of Common Pleas for Lancaster

County, Pennsylvania imposed the

sentence on Lambert after he found

Lambert guilty at a bench trial held in July

of 1992.

Lambert initially appealed her

conviction in the Pennsylvania state

courts, which rejected her claims on direct

appeal. She thereafter filed a petition for a

writ of habeas corpus in federal district

court. After holding a hearing over the

course of three weeks, Judge Stewart

Dalzell of the Eastern District of

Pennsylvania found Lambert “actually

innocent” and granted her petition. He

specifically barred any retrial. 

Lambert was released into the

custody of her attorneys on April 16,

1997, but her freedom was short-lived.

Less than a year later, this Court vacated

the District Court’s judgment due to

Lambert’s failure to exhaust her available

state court remedies, namely collateral
3

review pursuant to the Pennsylvania Post

Conviction Relief Act (“PCRA”).Lambert

consequentlyreturned to state court, where

a PCRA Court (again Judge Stengel) held

a six-week hearing and determined in a

comprehensive opinion that relief under

the PCRA was not warranted. 

After the Pennsylvania Superior

Court affirmed the PCRA Court’s

decision, Lambert not surprisingly re-filed

her federal habeas petition. Judge Dalzell

held that the state courts’ findings were

null and void because they lacked

jurisdiction to hear Lambert’s PCRA

petition. He then reinstated his findings

from the 1997 habeas hearing and gave

the parties a month to request additional

testimony on topics that the Court had not

addressed in 1997. In the meantime, the

Commonwealth sought Judge Dalzell’s

recusal. 

Judge Dalzell eventually

acquiesced to theCommonwealth’s efforts

at recusal, and the case was assigned to

Judge Anita Brody of the Eastern District

of Pennsylvania. Judge Brody dismissed

Lambert’s habeas petition after

determining, contrary to Judge Dalzell’s

ruling, that the PCRA Court’s findings

were not null and void and were entitled to

deference under the Antiterrorism and

Effective Death Penalty Act of 1996

(“AEDPA”). Lambert now appeals from

that judgment.

This case presents a host of

sensitive issues. At one level are the very

serious allegations of prosecutorial

misconduct that Lambert argues require

her release. But important institutional

concerns also infuse this case. A state

court and a federal court reached

diametrically opposed conclusions, and

two federal courts took substantially

different views of the state court

proceedings. This unusual history

highlights the need to respect the limits of

federal habeas review, as well as the

principle of comity that informs that

review. Simply put, a habeas court reviews

a state conviction to determine whether a

state prisoner is in custody in violation of

the Constitution or laws or treaties of the

United States; the federal court is not

mandated to retry the case and substitute

its own verdict.

We conclude that the PCRA Court

decision here was indeed entitled to

deference. After carefully reviewing the

entire record and applying that deference

de novo, we conclude that the PCRA

Court’s determinations were wellsupported and require that we deny

Lambert habeas relief. Put more simply:

Lambert’s trial was fair, amply supported,

and not infected by material error or

injustice. We will affirm the denial of the

writ by Judge Brody. 

I. BACKGROUND

At the center of this contentious

case lies the brutal murder of Laurie

Show. Show died from knif e

wounds—stabs to her back and slashes to

her throat—inflicted on her by intruders in

her home on the morning of December 20,

1991. She was fifteen years old at the time

of her death. 
4

The investigation of Show’s

murder quickly zeroed in on three

individuals: Lisa Michelle Lambert,

Tabitha Faith Buck, and Lawrence

Yunkin. The police arrested Lambert and

Yunkin on outstanding warrants on the

day of Show’s murder. Upon questioning,

they both admitted their involvement in

the attack on Show; and they both

implicated Buck.

The Lancaster County District

Attorney eventually charged Lambert and

Buck with criminal homicide and Yunkin

with hindering apprehension.1 Lambert

waived her right to a jury trial, and a

week-long bench trial was held before

Judge Lawrence Stengel of the Court of

Common Pleas for Lancaster County,

Pennsylvania. 

A. The Trial

It hardly needs to be said that in our

adversarial system of justice, the opposing

parties—in a criminal case, the

prosecution and defense—typically

advance two radically different versions of

events. This case is no exception. 

To be sure, the government and

defense agreed on broadly what happened:

Yunkin and Lambert were romantically

involved and lived together, but their

relationship entered an eight-day hiatus

over the summer of 1991. During those

eight days, Yunkin dated Laurie Show. 

Lambert and Yunkin eventually

resumed their relationship, and there was

real animosity between Lambert and

Show. So, in July 1991, Lambert devised

a plan to enlist the help of several other

teenagers to humiliate Show by luring her

out of her home, cutting off her hair, and

tying her up to a pole within the City of

Lancaster. The plan did not come to

fruition because two of the girls involved

eventually warned Show.

Months later, on December 19,

1991, someone called Laurie Show’s

mother, Hazel Show, claiming to be her

daughter’s guidance counselor. The caller

scheduled a meeting with Hazel Show for

7 a.m. the following morning at the

principal’s office of Laurie Show’s high

school. 

The next morning Yunkin,

Lambert, and Buck drove to the

condominium complex where Show’s

home was located. They brought with

them a knife from Yunkin’s and

Lambert’s home and rope and two black

knit hats that Lambert had purchased the

previous day at K-Mart. Sometime around

7 a.m., while Hazel Show was out to

attend the “meeting” she thought she

would have with her daughter’s “guidance

counselor,” Laurie Show was home alone.

1

 The District Attorney entered into

a plea bargain with Yunkin that

conditioned the hindering apprehension

charge on his giving truthful testimony at

Lambert’s trial. The Commonwealth

revoked the original plea bargain because,

as we explain more fully below, it

determined that Yunkin was not entirely

truthful. As a result, Yunkin eventually

pled guilty to third degree murder.
5

Lambert and Buck entered the Show

residence. A struggle ensued during which

someone stabbed Show and slit her throat.

Lambert,Buck, and Yunkin (whose

precise whereabouts during and

involvement in the melee with Show, as

we explain more fully below, was disputed

at trial) drove away from the

condominiumcomplex together. The three

of them devised an alibi, and Yunkin and

Lambert dropped Buck off at school. 

Lambert and Yunkin then

proceeded to discard evidence from

Show’s murder. They washed clothes

worn during the murder, put them in a

bag, and threw them into a dumpster

behind K-Mart. They threw a bag

containing, among other things, the knife

and rope into the Susquehanna River. 

Within these general contours,

however, the government and defense

presented Judge Stengel with diverging

versions of what happened. The

Commonwealth argued that Lambert hated

Show and was deeply involved in the

planning and execution of Show’s murder.

Lambert argued that Yunkin and Buck

were to blame and that she tried to prevent

them from murdering Show. 

Our role is not, of course, to

determine the veracity of either account.

Rather, we are confined to ascertaining

whether any constitutional error occurred

at Lambert’s trial. Yet the parties’ factual

contentions at trial provide the necessary

framework for understanding Lambert’s

detailed claims of error. Many of her

claims involve allegations that the

government knowingly use perjured

testimony and suppressed evidence

tending to support her version of events.

We therefore relate in some detail the

evidence the parties presented at trial and

the inferences they urged Judge Stengel to

make from that evidence. 

1. The Commonwealth’s Case

The Commonwealth called several

witnesses whose testimony tended to show

that Lambert hated Show. Several testified

that they heard Lambert say numerous

times that she wanted to kill Show. Two

of Lambert and Yunkin’s neighbors

swore, for example, that Lambert

repeatedly said she wanted to “beat

[Show] up” and “get her out of the way

and kill her.” App. 690, 701.2 Three

witnesses testified that they heard

Lambert, on at least one occasion, mention

slitting Show’s throat.3

Several witnesses related incidents

involving Lambert and Show that

occurred during the months leading to

2

 Citations to the Appendix

(“App.”) refer to the record before Judge

Brody. Citations to the Appellate

Appendix (“Appellate App.”) refer to the

appendices the partiessubmitted on appeal

to this Court. 

3

 Laura Thomas, Floyd Thomas

(Laura’s father), and Kimona Warner

testified about an incident in the backyard

of the Thomas residence where Lambert

said she was going to “cut” or “slit”

Show’s throat. App. 718-19, 739, 757.
6

Show’s murder. A number of Lambert’s

cohorts in the thwarted plan to abduct

Show and tie her up to a pole in Lancaster,

for example, testified about the plan.

Others testified about physical

altercations that occurred between

Lambert and Show. Hazel Show testified

about an incident that occurred in July of

1991. While Hazel Show was waiting in

her car to pick up Laurie from her job at

the mall, she saw Lambert grab Laurie and

push her into a wall. Hazel Show reported

what happened to the police.4

Hazel Show also testified that on

August 20, 1991, Lambert approached

Hazel and Laurie while they were out

shopping. Lambert “came up and started

screaming and yelling all kinds of

obscenities and just being very vicious.”

App. 827. One thing Lambert screamed

was that sexual relations had occurred

between Yunkin and Laurie Show during

their brief relationship. Hazel Show told

Lambert that Yunkin had raped her

daughter Laurie, and that they might press

charges if Lambert continued to harass

Laurie. In fact, Laurie Show had made a

report to police on July 31, 1991 that

Yunkin had date raped her.

Another altercation occurred in the

parking lot of the East Towne Mall on

November 22, 1991. Show was in the

parking lot with some friends, including

Randy Rodriguez and Jacqueline

Weakland. Weakland testified that as they

stood talking next to Rodriguez’s truck,

Lambert — who was pregnant —

approached Show and began screaming

that Show had ruined her (Lambert) and

her (as yet unborn) baby’s life. Rodriguez

testified that Lambert beat Show’s head

against the cab of his truck. According to

Rodriguez, Lambert said that if she found

out Show told the police about the

incident she had “friends that would take

care of” Show and she would kill Show.

App. 777. Weakland also testified that

Lambert said she was going to kill Show.

Hazel Show learnedwhat happened

and, despite Lambert’s threats, reported

the incident to the police that same day.

The police did not begin to investigate the

incident, however, until December 16,

2001. John Bowman, of the East Lampeter

Township Police Department, testifiedthat

he began by contacting Show and

Weakland about the incident. He also

called Lambert’s parents to try to find her

current address, which they were unable to

provide to him. 

A friend of Yunkin’s, Lawrence

Lamparter, related an encounter he had

with Lambert on December 18, 2001, a

couple of days before Show’s murder.

Lamparter ran into Lambert at the mall.

She told Lamparter that the police were

looking for her because she had assaulted

Show. She also told him that Show was

going to charge Yunkin with rape and that

“she was going to get Laurie.” App. 793.

4

 Sergeant Carl Harnish of the

Pennsylvania State Police testified that

upon her arrest Lambert admitted that she

had physically assaulted Show in July of

1991.
7

The Commonwealth called Yunkin

to the stand to testify about the events

surrounding Show’s murder. Yunkin

testified that he drove Lambert to K-Mart

the night before the slaying, on December

19, 1991. He waited in the car while she

purchased rope and two knit ski hats.

Lambert woke Yunkin up early the

next morning. According to Yunkin,

Lambert put on a pair of his sweatpants,

one of his flannel shirts, and a “jergo” (a

hooded sweatshirt). He testified that

Lambert often wore his clothes at the time

because she was almost seven months

pregnant. 

They drove to pick up Tabatha

Buck, arriving at her house at

approximately 6:30 a.m. Yunkin dropped

Lambert and Buck off in a wooded area

along Oak View Road, a road that ran next

to the condominium complex where

Laurie Show lived. Lambert told him to go

to a nearby McDonald’s restaurant,

Yunkin testified, and come back in a half

hour. Buck told him not to lock the doors

because they might have to make a fast

getaway.

Yunkin testified that he arrived at

McDonald’s at 6:50 a.m. and waited for

the restaurant to open at 7 a.m. He bought

some food when the McDonald’s opened

and then left to pick up Lambert and

Buck. He stayed at McDonald’s for

approximately fifteen minutes in total.5

Lambert and Buck were not present

when he arrived to pick them up, so he

drove around a little. He passed by their

meeting spot on Oak View Road several

times before Lambert and Buck showed

up and got in the car. As they drove home,

Yunkin asked Lambert what happened.

She told him “not to worry about it” and

that she would “tell [him] later if [he]

needed to know.” App. 258.

The inhabitant of the apartment

below the Shows’, Richard G. Kleinhaus,

also testified at the trial. Kleinhaus said

that he woke up at around 5:45 a.m. on the

morning of Show’s murder. From his

window, he saw Hazel Show leaving the

complex. Kleinhaus heard the front door

slam above him, followed by a scream and

a thump on the floor of the bedroom. Six

or eight minutes later, he heard the door

slam again. At that time, around ten or

twelve minutes after seven o’clock, he

looked out the window and saw two

people of identical height (approximately

5' 7") exit the stairwell. 

The Commonwealth also elicited

testimony from Frederick E. Fry, another

resident of the condominiumcomplex. Fry

testified that at 7:13 a.m. he was waiting

in his car while he let the engine idle for a

little while. As he backed his car out, Fry

saw two individuals to his right. They

passed in front of his car as he started

forward, and he saw that one was a little

shorter and heavier than the other. He

5

 A McDonald’s employee

corroborated Yunkin’s testimony. She

testified that she served Yunkin between 7

and 7:15 a.m., and he stayed for

approximately fifteen or twenty minutes.
8

estimated that the shorter was

approximately 5'3" to 5'5" tall and the

taller was approximately 5'5" to 5' 7" tall.

He believed, based on his observations,

that they were both women.6

Hazel Show furnished particularly

dramatic testimony. She arrived home at

some time between 7:20 and 7:25 a.m.,

after Laurie Show’s guidance counselor

never showed up for the fictitious meeting

appointment. She found her daughterlying

on the floor bleeding, and she yelled to her

neighbor downstairs to call 911. There

was rope tied around Laurie Show’s neck,

she testified, so she retrieved a knife from

the kitchen to cut it. Laurie Show breathed

deeply after the rope was cut, and her

mother held and cradled her. Hazel Show

asked who had attacked her, and Laurie

Show answered “Michelle did it.” App.

839. Lisa Lambert was also known by her

middle name -- Michelle.

Officer Robin Weaver of the East

Lampeter Township Police Department

testified that at approximately 7:45 a.m. he

and Corporal Jan Fassnacht were the first

officers to arrive at the crime scene.

Several medical personnel had already

arrived, however, and they were attending

to Laurie Show. Weaver observed a rope

around Show’s neck and saw wounds on

Show’s neck, leg, and hands. He also

found clumps of hair on the floor of the

apartment.

Dr. Enrique Penades, the doctor

who performed the autopsy on Show,

described the wounds he observed and

offered opinions as to their cause: several

bruises on Show’s head from a blunt

force; three cuts on her back due to stabs

from a knife, one of which penetrated

through the right lung; two wounds on her

legs, including a cut to her thigh that

penetrated to her pelvis; twenty one cuts

on her hands, probably due to Show’s

efforts to grab the knife and hands of her

assailant; and a big slashing wound on the

throat that was the result of at least three

strokes. He testified that the wounds to

Show’s neck and the deep wound to her

back were fatal, and he believed Show

was alive not more than a half hour after

sustaining the wounds.

Penades also testified that, despite

the wounds to Show’s neck, he believed

she could say “Michelle did it”; “not in a

regular tone but a whispering, mumbling,

intelligently [sic] enough for someone

who is close to this person to understand

what [she] was saying.” App. 143. Dr.

Joseph S. Annese, another expert witness

for the Commonwealth, also offered his

opinion that Show could speak the words

“Michelle did it” despite the wounds she

sustained.

Yunkin testified that Lambert and

Buck took showers after the three of them

arrived home that morning. At that point,

Lambert told him that Buck and Show

were wrestling and Show accidentally got

6

 At the time of their arrest Yunkin

stood at 6'1" and weighed 190 pounds,

Lambert stood at 5'6” and weighed 143

pounds, and Buck stood at 5'3" and

weighed 160 pounds.
9

stabbed in the back, causing a hissing

sound as if her lung were punctured.

Lambert said that she and Buck agreed to

slit Show’s throat to put her out of her

misery, but she never told Yunkin if they

went through with it.

Yunkin testified that he and

Lambert washed a bag of clothes that

Lambert and Buck had worn that morning

and threw them in a dumpster behind KMart. Lambert later told him that she

needed to get rid of another bag, and he

drove her to the Susquehanna River where

she threw a bag in. They later returned to

the river to get rid of the jergo that

Lambert had worn. 

Several law enforcement officials

testified about finding Lambert, Yunkin,

and Buck at a local bowling alley that

night and bringing them in for

questioning. According to their testimony,

Lambert’s story changed a few times over

the course of questioning. Lambert first

told the police the alibi story she, Yunkin,

and Buck had devised.

Raymond Solt of the Pennsylvania

State Police eventually took over

questioning Lambert. After again giving

the alibi story, Solt testified, Lambert

admitted to him that the story was false.

Lambert eventually settled on a version of

events in which Buck was largely

responsible for Show’s murder. Solt and

another officer transcribed Lambert’s

statement, and Lambert ultimately signed

it.7 In the statement, Lambert admitted that

it was her idea to go to Show’s apartment

because she wanted to talk to Show.

According to Lambert’s statement, Buck

went alone to knock on Show’s door

because Show’s mother knew Lambert.

Lambert went into the apartment after she

heard someone answer and the door shut,

and she found Buck struggling with Show.

Buck attacked Show with a knife, Lambert

told Solt, and she “just stood there”

because she “was so scared.” App. 470.

Eventually, Lambert said, she “couldn’t

look anymore and I turned away.” Id.

2. Lambert’s Case

Lambert based her case

predominantly on her own testimony,

during which she admitted several facts

tending to implicate her in Show’s murder.

She admitted to being angry at Show, for

example, ostensibly because Show had

made up rumors about her in order to

create a rift between her and Yunkin.

Similarly, Lambert conceded that she had

said she wanted to kill Show, but she

explained that she only meant it as a figure

of speech. She also admitted that on the

morning of Show’s murder she brought

along a bag containing a knife from her

apartment, rope, ski hats, and sunglasses.

But Lambert brought these with her, she

testified, because she and Yunkin planned

on going to cut down a Christmas tree

later in the day. The ski hats—which

7

 Lambert testified at trial that the

written statement accuratelyreflectedwhat

she told Solt.
10

Lambert admitted to purchasing from KMart the night before, along with the

rope—were intended to keep wood chips

out of their hair. They needed the knife to

cut the small branches off the base of the

tree so it would fit into the stand. The

sunglasses were necessary to prevent them

from getting pinkeye. And the rope was

for tying up the tree; indeed, Lambert

testified that she purchased that particular

rope because it contained a picture of a

man dragging a Christmas tree on its

packaging.

Despite these seemingly

inculpatory admissions, Lambert

maintained that it was Yunkin and Buck

who developed the plan to attack Show

and she only learned of the plan the day

before the attack. Moreover the plan, as

far as she knew, never involved murdering

Show. 

During the week leading to Show’s

murder, Lambert testified, Yunkin

repeatedly told her and Buck that he was

nervous that Show was going to press rape

charges against him. Yunkin and Buck

told Lambert that they had a plan to “get”

Show that would “keep her mouth shut.”

App. 1037. But they would not tell her

exactly what their plan was. 

The night before Show’s murder,

Lambert and Yunkin went to Buck’s

house. There, Yunkin again expressed his

fear that Show would put him in jail by

accusing him of rape. Buck and Yunkin

then told Lambert about their plan. 

They had decided to go to Show’s

house, knock on her door, pull her outside,

and beat her up enough to put her in the

hospital. Buck explained that she had

called Hazel Show and set up a fake

meeting with Laurie Show’s guidance

counselor so that she would not be there

when they came to attack Show.

Lambert told them that it was a

“stupid” plan because Yunkin would get

into almost as much trouble for beating up

Show as he would for the rape charge. She

also told them that she did not want to be

involved in beating up Show because (at

least she believed) Show was pregnant. As

a result, Lambert suggested they do what

they had planned on doing the previous

summer: cutting off Show’s hair and

humiliating her. 

Buck and Yunkin eventually

agreed, and the three of them settled on

accosting Show as she left her apartment

and cutting her hair off. Thus, Lambert

testified, she put a pair of scissors in the

bag containing the tools for cutting down

the Christmas tree: the knife, ski hats, and

rope. 

Yunkin and Lambert picked up

Buck early the next morning. During the

car ride to Show’s home, Buck looked

through the bag containing the knife, ski

hats, and rope and found that the scissors

were missing. Buck told Lambert that they

could use the knife instead of scissors, and

she cut off a piece of her own hair to

demonstrate. Buck also cut off a piece of

the rope, explaining that they could use it

to tie Show’s hands and feet together. 

Yunkin developed a cough as they

approached the entrance to Show’s
11

condominium complex, and he decided to

go to McDonald’s to get a drink. Lambert

and Buck went on to Show’s apartment

without him; Buck carried the knife and

rope.

The two of them waited for Show

at the bottom of the stairway that led to the

floor where her apartment was located.

Buck became cold and decided to go and

ask Show what was taking her so long.

Lambert heard Buck and Show talking.

Then, Lambert testified, she heard some

scuffling and the door slam. 

Lambert called Buck but Buck did

not answer, so she climbed the stairs and

entered Show’s apartment. She found

Buck hitting Show on the floor. Lambert

grabbed Show’s ankles and told her to

calm down because they just wanted to

talk to her. Show freed herself and ran into

the adjacent room, her bedroom. Buck

followed after her. 

It was then, Lambert testified, that

Buck took out the knife. Lambert told

Buck to put the knife away, because she

saw a pair of scissors they could use to cut

Show’s hair instead. But Buck did not

listen and, after pulling Show down,

began to hack at Show’s hair with the

knife.8

Lambert tried to rescue Show from

Buck. First she tried to pull Buck away

from Show, but the knife (which she saw

“bounce” off Show’s back) came close to

her face. Next, she pulled Show away

from Buck. At that point, she heard a

“whooshing” sound (due apparently to a

puncture in Show’s lung) and saw blood

on her hands. Lambert was afraid of

blood; her knees went out from under her

and she fell to the floor shaking.9

Lambert began to crawl to the

bedroom door. Show pleaded with

Lambert not to leave her there, however,

so Lambert grabbed Show by the wrist and

pulled her toward the front door. But as

Lambert stepped outside the apartment,

still holding onto Show, Buck pulled

Show back into the apartment. 

Lambert continued to flee the

apartment. After she descended a couple

of steps, however, she collided with

Yunkin. Yunkin shook her and asked what

happened to her hands. She told him that

Buck stabbed Show. Yunkin exclaimed

“Oh, fuck,” took Lambert to the bottom of

the stairs, told her to sit there, and

bounded up the stairs toward Show’s

apartment. As she waited, Lambert heard

Yunkin yell “You fuck’n bitch,” and

“Your ass is done now, bitch.”10

8

 The defense offered testimony

that pieces of Show’s hair were found at

the crime scene, and an expert testified

that the hair was cut off using a knife.

9

 In addition to Lambert’s

testimony, the defense offered the

testimony of a doctor and nurse from the

hospital where Lambert gave birth to her

child that tended to show Lambert was

afraid of blood.

10 Lambert offered as evidence of

Yunkin’s presence in Show’s apartment a
12

Lambert eventually heard the front

door slam. Yunkin bounded down the

stairs and told Lambert he was going to

get the car; Buck followed, with blood on

her clothes and the knife in her hands. She

stared at Lambert, and Lambert retreated.

Yunkin yelled “Tabby! Get her!” and

Lambert began to run. 

Lambert did not know where she

was running, but she eventually came out

along a road. Yunkin sped out of the

condominium complex and picked up

Lambert and Buck. Yunkin was saying

“Oh, shit!” because he had passed Hazel

Show as he was driving out of the

condominium complex and she had

looked right at him. He then pushed

Lambert’s head down because they were

passing Show’s school bus. 

The three of them drove to Lambert

and Yunkin’s home. Buck and Yunkin put

their bloody clothes in the trash can. A

dispute arose over whether Show was

dead and, if so, who had killed her.

Yunkin said that Buck had killed Show.

Buck said that Show was dead, but she

was not sure whether she or Yunkin had

killed her. 

Eventually, Yunkin and Lambert

met with Buck again and refined their alibi

story. They also came across a newspaper

that contained news of Show’s death.

Upon learning the news, Lambert testified,

Yunkin and Buck sang a mocking song

and laughed hysterically. 

Lambert admitted that upon her

arrest she told the police at least two false

versions of what happened, the alibi story

and the version in which Buck was solely

responsible for Show’s murder and

Yunkin had little involvement. She told

the police the latter story because Yunkin

was afraid of going to prison for the rest

of his life and he told Lambert that she

would receive less time because she was a

pregnant woman. As a result, she agreed

to cover up Yunkin’s involvement.

To support her case, Lambert also

relied (in addition to her own testimony)

on expert testimony concerning Show’s

death, evidence tending to show that

Yunkin had violent propensities, and a

document that allegedly passed between

her and Yunkin while they were both in

prison awaiting trial. The document was

comprised of twenty-nine questions posed

by Lambert to Yunkin with answers

inscribed next to them. It contained, for

example, the following: 

6) [Question:] I don’t

understand! Why not tell

about Laurie? Are you

afraid you couldn’t? Did she

look scary dead—like

Tressa? I want to go home

and have my baby twins!

What if one of them dies

because they need Mommy?

I don’t want to cover up for

you. I never should have

agreed, and I’m mad, and

pearl earring found in the apartment.

Yunkin testified that it was Lambert’s

earring but he had also worn it on

occasion (about three times).
13

still sad! [Answer:] Yes and

Yes.

7) [Question:] It’s not my

fault that things went wrong

(our prank) Friday morning!

Do you even care? I still

blame you and Tabby!

[Answer:] Just wish it

didn’t happen.

. . . .

10) [Question:] I know I’m

not an angel, but, Lawrence,

I never get mad enough to

kill! Your temper blew,

[and you] hurt her, this time

so bad that she can’t get

better. To me, it’s a surprise

it was on her, and she will

never live again! I wanted

to get god-damn Tabby

away from her, [you] got in

the bedroom and blew up

[and] went decided to do

things your way—violent!

That should’ve been me that

you killed. I hate you!

[Answer:] I don’t hate

anyone. God said, it is

wrong to hate.

PCRA Decision (attachment). Yunkin

admitted, upon cross examination, that he

and Lambert had passed a document back

and forth through the prison law library in

which he answered questions that she

asked. He testified, however, that the

document presented to him at trial, the “29

Questions,” appeared tampered with and

different from the document he recalled

exchanging with Lambert. App. 321. He

claimed, for example, that he had never

seen the sixth question or tenth question.

Yunkin testified that in the

document that passed between him and

Lambert, Lambert had written the

questions in pencil and he had written all

his answers in pencil and then traced over

every other word in ink so that they could

not be changed. But Lambert’s expert

testified that there was no indication of

any pencil writing on the 29 Questions,

and the questions and answers were

written with two different pens. After the

Commonwealth had an expert from the

Pennsylvania State Police crime lab

examine the document, Lambert and the

government entered into a stipulation that

there were no erasures or graphite on the

document. The Commonwealth conceded

that if its expert were called to the stand,

he would essentially agree with Lambert’s

expert.

To bolster her argument that the 29

Questions showed it was Yunkin who

murdered Show, Lambert elicited

testimony that Yunkin was a violent

individual. Yunkin himself testified that

he had hit Lambert three times, though he

said it was accidental all but once. And

Lambert testified that Yunkin wanted to

fight an individual named Brad Heiser,

Show’s boyfriend at the time of her death.

Lambert also called experts to

testify to the circumstances surrounding

Show’s death. John C. Balshy, a crime

scene expert, testified that the letters “T”

and “B” appeared written in blood on the
14

door next to where Show’s body lay when

she died. He opined that Show leaned over

and wrote the letters to identify Tabatha

Buck as her assailant. 

Lambert also offered expert

testimony tending to show that Show

could not have said “Michelle did it”

because she was probably unconscious

and, in any case, physically unable to

articulate those words. Dr. Isidore

Mihalakis testified that, given Show’s

wounds, she would have become

unconscious “considerably less than a half

hour” after sustaining her injuries. App.

388. Moreover, Dr. Mihalakis testified

that the wounds to Show’s throat would

have hindered her ability to speak. He also

testified that it was “extremely unlikely”

that a female could have wielded the knife

with enough strength to break the tip off,

as had happened to the knife used to kill

Show.

B. Procedural History

Before resting her case, Lambert

moved for a mistrial due to prosecutorial

misconduct. She argued, among other

things, that the Commonwealth knowingly

elicited perjured testimony from Yunkin

regarding the 29 Questions. The Court

denied Lambert’s motion and, on July 27,

1992, found Lambert guilty of first degree

murder and criminal conspiracy to commit

murder.11

The sentencing phase ensued, and

Judge Stengel declined to impose the

death penalty. Instead, he sentenced

Lambert for first degree murder to a

statutorily mandated term of life

imprisonment without the possibility of

parole.

The next day, Lambert filed a set of

motions for arrest of judgment and a new

trial. Among her many arguments was that

the Commonwealth had offered

insufficient evidence to sustain the verdict.

Judge Stengel denied Lambert’s motions

in a comprehensive opinion.

In the opinion, the Court

extensively canvassed the evidence at trial

and its factual findings. “The physical

findings at the crime scene, the testimony

at trial of the defendant, the trial testimony

of Hazel Show, the history of ill will

between the defendant and the victim and

the circumstantial evidence developed at

trial,” the Court held, “all lead to the

conclusion that defendant was guilty of

the murder of Laurie Show.” App. 1628-

29. 

Further, the Court held that the

evidence that, according to Lambert,

tended to show she did not murder

Show—such as the 29 Questions—was

insufficient to create a reasonable doubt as

to her guilt. With respect to the 29

Questions, the Court found that “[a]t best,

the questionnaire was inconclusive,” and

“[t]o simply say that the questionnaire

11 The Court also rejected

Lambert’s demurrers, made after the

Commonwealth rested its case, in which

she argued that the Commonwealth had

failed to offer sufficient evidence for a

conviction.
15

could not be fully and satisfactorily

explained does not mean that it created

reasonable doubt.” App. 1629-30.

Lambert subsequently obtained

new counsel and filed a second set of postverdict motions on October 3, 1994. She

based her request for relief on claims of

after-discovered evidence and her trial

counsel’s ineffectiveness.12 After holding

a hearing, Judge Stengel again denied

Lambert’s post-verdict motions in another

comprehensive opinion dated March 14,

1995.

In the decision, the Court

concluded that “[t]rial counsel’s

representation of Lisa Michelle Lambert

was professional, diligent, and

thoughtful.” App. 2076. With respect to

the alleged “after-dis covere d

evidence”—evidence t hat th e

Commonwealth revoked Yunkin’s plea

agreement (in which he agreed to plead

guilty to hindering apprehension) and

Yunkin agreed to plead guilty to third

degree murd er because t h e

Commonwealth determined that he was

not fully truthful at trial—the Court

explained:

This issue boils

down to whether Mr.

Yunkin’s testimony at the

Lambert trial was credible.

Mr. Yunkin testified that he

was not present in the Show

condominium at the time of

the killing. The testimony of

independent witnesses

would seem to establish that

he was truthful in this

regard. A manager at a

nearby McDonald’s saw

him at or about the time of

the murder, whi c h

supported his story that he

dropped Ms. Lambert and

Ms. Buck off along the road

near the Show residence and

then went to McDonald’s

for breakfast.

Mr. Yunkin’s story

that he was not present at

the time of the killing was

also supported by the

neighbors who saw two

figures of about the same

height walking together

across a large grassy area

from the Show residence

toward the road. By height

and build they matched,

12 The trial court entertained

Lambert’s second post-verdict motion

because of a “loophole” that defense

counsel, the prosecution, and the Court

intentionally created to “accommodate”

Lambert. Specifically, the Courtsentenced

Lambert only on the first degree murder

charge even though she had also been

convicted of criminal conspiracy. As a

result, the appeal period from a judgment

of conviction from the criminal conspiracy

charge had not expired. The parties (and

the Court) apparently agreed that this

allowed Lambert to introduce new

evidence and seek a new trial. See App.

2038; PCRA Decision 7 n.6.
16

generally, a description of

Ms. Lambert and Ms. Buck.

Mr. Yunkin is significantly

taller than either of those

two women and the

witnesses testified that the

two figures seen walking

across the grassy area were

of about the same height,

that being in the 5'1" to 5'5"

range. Therefore, on the

subject of whether Mr.

Yunkin was in the Show

residence at the time of the

killing, Mr. Yunkin would

appear to have been

truthful. At least, his story

w a s suppor ted b y

independent witnesses.

App. 2073. Yet “[a]s to whether Mr.

Yunkin was aware of the plan to do harm

to Ms. Show,” the Court explained, “he

was decidedly incredible on this issue.”

Thus the Court held that the “afterdiscovered” evidence (Yunkin’s plea to

third degree murder) would not have had

any material effect on the outcome of the

case because the facts adduced at trial

were fully consistent with his plea.

Lambert appealed from the

judgment denying her second set of postverdict motions. The Pennsylvania

Superior Court affirmed the trial court’s

judgment, and Lambert filed a petition

seeking allocatur from the Pennsylvania

Supreme Court. The Supreme Court

denied Lambert’s petition on July 2, 1996.

Lambert filed a pro se petition for

a writ of habeas corpus in federal district

court on September 12, 1996. The case

was assigned to Judge Dalzell, who

appointed counsel to represent Lambert

and directed counsel to file an amended

petition. 

The subsequently-filed amended

petition advanced numerous grounds for

relief, including claims that Lambert had

not previously advanced in state court.

The Commonwealth objected to

Lambert’s petition, arguing that she had

failed to exhaust her state court remedies

and had committed insurmountable

procedural default. 

Judge Dalzell def erred

consideration of the Commonwealth’s

exhaustion argument while, in the

meantime, permitting broad discovery and

conducting a fourteen-day evidentiary

hearing. At the end of the hearing, the

District Court entered an order granting

Lambert’s petition for a writ of habeas

corpus, releasing Lambert from prison,

and barring the Commonwealth from

retrying her. In an Order and

Memorandum Opinion that it issued a few

weeks later, on April 21, 1997, the Court

offered several bases for its conclusion

that the habeas statute’s exhaustion

requirement did not preclude the Court

from granting Lambert’s petition. See

Lambert v. Blackwell, 962 F. Supp. 1521,

1553-55 (E.D. Pa. 1997).

This Court vacated the District

Court’s judgment, however, and found

that Lambert’s failure to exhaust available
17

state court remedies required the District

Court to dismiss her petition without

prejudice. We held that Lambert had not

pursued her remedies under the PCRA for

some of her claims and her habeas petition

therefore contained both exhausted and

unexhausted claims. Thus the Supreme

Court’s decision in Rose v. Lundy, 455

U.S. 509 (1982), required the District

Court to dismiss such a “mixed petition.”

See Lambert v. Blackwell, 134 F.3d 506

(3d Cir. 1998). 

Lambert filed a PCRA petition on

February 2, 1998 in the Court of Common

Pleas for Lancaster County.13 Lambert

presented 257 claims for relief in the

PCRA Court: 157 allegations of

prosecutorial misconduct, 72 allegations

of after-discovered evidence, and 28

allegations of ineffective assistance of

counsel. The PCRA Court held eight

weeks of hearings and, on August 24,

1998, issued a 322-page opinion in which

it denied Lambert’s petition for relief.

Lambert filed an appeal with the

Pennsylvania Superior Court, and the

Superior Court affirmed the judgment of

the PCRA Court on December 18, 2000.

See Commonwealth v. Lambert, 765 A.2d

306 (Pa. Super. 2000). Before addressing

the merits of Lambert’s appeal, however,

the Superior Court raised sua sponte the

timeliness of Lambert’s PCRA petition. 

The PCRA requires petitions to be

filed “within one year of the date the

judgmentbecomes final,” except in certain

statutorily defined circumstances. See 42

Pa. Cons. Stat. § 9545(b). Lambert filed

her petition approximately sixteen months

after her judgment of conviction became

final. It appears that the parties did not

raise the statute of limitations as an issue

in front of the PCRA Court, however, and

the Court did not address it. 

The Superior Court determined

that, based largely on the Pennsylvania

Supreme Court’s interpretation of the

PCRA in Commonwealth v. Fahy, 737

A.2d 214 (1999), Lambert’s PCRA

petition was untimely.14 The Superior

Court decided to review the merits of the

PCRA Court’s decision, however, because

“the Third Circuit Court of Appeals, the

PCRA court, the Commonwealth and

counsel did not have the benefit of” the

Pennsylvania Supreme Court’s decision in

Fahy (which was decided on August 27,

1999, about a year after the PCRA Court

13 The Court of Common Pleas

Judge who presided over the 1992 bench

trial, Judge Lawrence Stengel, also

presided over the PCRA proceedings.

14

 We opined in our decision

directing the District Court to dismiss

Lambert’s petition without prejudice that

Lambert’s PCRA petition could be timely

for either of two reasons—by operation of

Pennsylvania’s transfer statute, 42 Pa.

C.S.A. § 5103, or any of the three

statutory exceptions to the PCRA’s statute

of limitations, 42 Pa. C.S.A. § 9545(b)(1).

See 134 F.3d at 522-24. The Superior

Court rejected each of these possibilities.
18

issued its decision).15 After reviewing

Lambert’s petition on the merits, the

Superior Court affirmed the judgment of

the PCRA Court. 765 A.2d at 363. 

Lambert did not petition the

Pennsylvania Supreme Court for an

allowance of an appeal from the Superior

Court’s judgment. Rather, she filed an

amended petition for a writ of habeas

corpus in federal district court on January

29, 2001. 

The case again came before Judge

Dalzell, who determined that the

proceedings before the PCRA Court and

Superior Court were null and void, and

therefore entitled to no deference, because

those courts had no jurisdiction over

Lambert’s PCRA petition due to its

untimeliness. See Lambert v. Blackwell,

175 F. Supp. 2d 776, 786-87 (E.D. Pa.

2001). Accordingly, the District Court

reinstated its findings of fact and

conclusions of law from its earlier

decision granting Lambert’s petition for a

writ of habeas corpus, and the Court gave

the parties approximately a month to

notify it if they sought additional

discovery and a hearing. Id. at 791. 

On January 18, 2002, however,

Judge Dalzell gave way to the

Commonwealth’s fourth motion seeking

his recusal. SeeLambert v. Blackwell, 205

F.R.D. 180 (E.D. Pa. 2002). Lambert’s

petition was consequently transferred to

Judge Anita Brody of the Eastern District

of Pennsylvania. After holding a hearing

on the Commonwealth’s motion to

dismiss, Judge Brody denied Lambert’s

petition and dismissed it with prejudice. 

Judge Brody concluded that,

contrary to Judge Dalzell’s previous

d e cision, th e PCRA C ourt’s

determinations were not null and void and

were entitled to deference under AEDPA.

After reviewing Lambert’s claims

accordingly, Judge Brody concluded that

they were without merit. The District

Court granted Lambert a certificate of

appealability, and Lambert timely

appealed. The Commonwealth also timely

filed a cross-appeal.

II. JURISDICTION AND 

STANDARD OF REVIEW

The District Court exercised

jurisdiction under 28 U.S.C. § 2254, and

the District Court’s order dismissing

Lambert’s habeas petition is a final

decision for purposes of 28 U.S.C. § 1291.

Yet Lambert must surmount an additional

hurdle before we can properly exercise

appellate jurisdiction over her appeal. We

only have jurisdiction if this Court or a

District Court has properly issued a

certificate of appealability pursuant to 28

U.S.C. § 2253(c). See United States v.

15 In Fahy the Pennsylvania

Supreme Court held that since the PCRA’s

time limits are jurisdictional, and not a

mere statute of limitations, the filing

period can only be extended as permitted

by the statute and equitable principles such

as tolling cannot apply. 737 A.2d at 222.
19

Cepero, 224 F.3d 256, 261-62 (3d Cir.

2000) (en banc).16

A COA may issue only upon “a

substantial showing of the denial of a

constitutional right.” 28 U.S.C. §

2253(c)(2). If “a district court has rejected

the constitutional claims on the merits, the

showing required to satisfy § 2253(c) is

straightforward: The petitioner must

demonstrate that reasonable jurists would

find the district court’s assessment of the

constitutional claims debatable or wrong.”

Slack v. McDaniel, 529 U.S. 473, 484

(2000). In addition, a COA must “indicate

which specific issue or issues satisfy” that

standard. 28 U.S.C. § 2253(c)(3). 

Here, the District Court failed to

specify which of the voluminous issues

Lambert raised in her habeas petition

satisfy the standard for issuance of a COA.

The Court concluded: “Although in very

different contexts, two federal judges have

examined the claims of the petitioner

Lambert and have reached different

outcomes. Accordingly, a COA will be

GRANTED.” Lambert v. Blackwell, 2003

WL 1718511, at *56 (E.D. Pa. April 1,

2003).

In the ordinary course, we would

remand to the District Court to clarify its

order to comply with the specificity

requirements of 28 U.S.C. § 2253(c)(3).

See Szuchon v. Lehman, 273 F.3d 299,

311 n.5 (3d Cir. 2001). Where the parties

have fully briefed the substantive issues

before bringing to our attention that the

COA was inadequately specific, however,

this Court has viewed the District Court’s

certificate as a nullity and construed the

petitioner’s notice of appeal as a request

for us to issue a COA. Id. We follow that

course here. 

Lambert has raised several issues

on appeal. On each issue, two federal

district court judges—albeit in different

procedural postures—reached differing

conclusions as to whether constitutional

error at trial warranted granting habeas

relief. As to each of these issues, which we

discuss seriatim below, we will grant a

COA. Because the District Court relied

exclusively on the state court record and

did not hold an evidentiary hearing, our

review is plenary. See Moore v. Morton,

255 F.3d 95, 103 (3d Cir. 2001). 

III. DISCUSSION

Lambert and the Commonwealth

raise numerous issues in their crossappeals and offer several arguments, often

in the alternative, supporting their

respective positions. We first address the

Commonwealth’s arguments that we

16 Only Lambert’s appeal must

satisfy the certificate of appealability

standard. See Fed. R. App. P. 22(b)(3) (“A

certificate of appealability is not required

when a state or its representative

appeals.”); Lambert v. Blackwell, 134

F.3d at 512 n.15. We exercise jurisdiction

over the Commonwealth’s cross-appeal

under 28 U.S.C. §§ 1291 and 2253. The

Commonwealth challenges certain of the

District Court’s legal conclusions, over

which we exercise plenary review. Id. at

512.
20

cannot reach the merits of Lambert’s

claims and must dismiss her petition for

procedural reasons. We have already

rejected one of those arguments, that we

lack jurisdiction because Lambert’s claims

do not warrant the issuance of a certificate

of appealability. For the reasons explained

below, we als o reject t h e

Commonwealth’s argument that Lambert

failed to exhaust her available state

remedies because she did not seek

allocatur from the Pennsylvania Supreme

Court to appeal from the Superior Court’s

judgment affirming the PCRA Court’s

dismissal of her PCRA petition.17

We next address Lambert’s

arguments regarding the amount of

deference we must afford the state courts’

determinations in the PCRA proceedings.

We conclude that we must defer to the

state courts’ determinations, and we apply

that deference to Lambert’s claims.

A. Exhaustion

A state prisoner must exhaust his

state court remedies before a federal court

may grant him habeas relief. The Supreme

Court first articulated this requirement in

Ex parte Royall, 117 U.S. 241 (1886), and

it is now codified at 28 U.S.C. §

2254(b)(1). That provision states:

(b)(1) An application for a

writ of habeas corpus on

behalf of a person in

custody pursuant to the

judgment of a State court

shall not be granted unless it

appears that—

(A) the applicant has

exhausted the remedies

available in the courts of the

State; or

(B)(i) there is an absence of

available State corrective

process; or

(ii) circumstances exist that render such

process ineffective to protect the rights of

the applicant.

28 U.S.C. § 2254(b)(1). The statute

further provides that “[a]n applicant shall

not be deemed to have exhausted the

remedies available in the courts of the

State, within the meaning of this section,

if he has the right under the law of the

State to raise, by any available procedure,

the question presented.” 28 U.S.C. §

2254(c).18 

17 The Commonwealth also argues

that if we accept Lambert’s argument that

the PCRA proceedings are null and void,

we must dismiss her petition as untimely.

As we describe below, we find that the

PCRA proceedings are not null and void.

The Commonwealth’s timeliness

argument is therefore moot and we need

not address it. 

18 Yet “[a]n application for a writ of

habeas corpus may be denied on the

merits, notwithstanding the failure of the

applicant to exhaust the remediesavailable

in the courts of the State.” 28 U.S.C. §

2254(b)(2). 
21

The exhaustion doctrine “turns on

an inquiry into what procedures are

‘available’ under state law.” O’Sullivan v.

Boerckel, 526 U.S. 838, 847 (1999). And

the Supreme Court has declined to

interpret the “any available procedure”

language of § 2254(c) to require “a state

prisoner to invoke any possible avenue of

state court review.” Id. at 844 (emphasis in

original). Thus “state prisoners do not

have to invoke extraordinary remedies

when those remedies are alternatives to the

standard review process and where the

state courts have not provided relief

through those remedies in the past.” Id.

(citing Wilwording v. Swenson, 404 U.S.

249, 249-50 (1971) (per curiam)).

“Section 2254(c) requires only that state

prisoners give state courts a fair

opportunity to act on their claims.” Id.

(emphasis in original). 

In O’Sullivan, the Supreme Court

held that a petitioner must seek review in

the Illinois Supreme Court in order to

satisfy the exhaustion requirement even

though the court’s review is discretionary.

The Court found that review in the Illinois

Supreme Court was a “normal, simple, and

established part of the State’s appellate

review process.” 526 U.S. at 845. As a

result, the petitioner had to seek review in

order to give the state courts a “full

opportunity to resolve any constitutional

claims.” Id. In other words, “the creation

of a discretionary review system does not,

without more, make review in the Illinois

Supreme Court unavailable.” Id. at 848.

The Court took pains, however, to

state that “there is nothing in the

exhaustion doctrine requiring federal

courts to ignore a state law or rule

providing that a given procedure is not

available.” Id. at 847-48. Justice Souter

interpreted this statement as leaving 

open the possibility that a

state prisoner is [] free to

skip a procedure even when

a state court ha s

occasionally employed it to

provide relief, so long as the

State has identified the

procedure as outside the

standard review process and

has plainly said that it need

not be sought for the

purpose of exhaustion. It is

not obvious that either

comity or precedent requires

otherwise.

Id. at 850 (Souter, J., concurring); see also

id. at 861 (Stevens, J., dissenting); id. at

864 (Breyer, J., dissenting). As an

example, Justice Souter pointed to the

following pronouncement from the South

Carolina Supreme Court:

[I]n all appeals from

criminal convictions or

post-conviction relief

matters, a litigant shall not

be required to petition for

rehearing and certiorari

following an adverse

decision of the Court of

Appeals in order to be

deemed to have exhausted

all available state remedies

respecting a claim of error.
22

Rather, when the claim has

been presented to the Court

of Appeals or the Supreme

Court, and relief has been

denied, the litigant shall be

deemed to have exhausted

all available state remedies.

In re Exhaustion of State Remedies in

Criminal and Post-Conviction Relief

Cases, 471 S.E.2d 454 (S.C. 1990).

The Pennsylvania Supreme Court,

apparently taking its cue from Justice

Souter’s concurrence, issued the following

order on May 9, 2000:

[W]e hereby recognize that

the Superior Court of

Penn sylvania reviews

criminal as well as civil

appeals. Further, review of a

final order of the Superior

Court is not a matter of

right, but of sound judicial

discretion, and an appeal to

this court will be allowed

only when there are special

and important reasons

therefor. Pa.R.A.P. 1114.

Further, we hereby

recognize that criminal and

post-conviction relief

litigants have petitioned and

do routinely petition this

Court for allowance of

appeal upon Superior

Court's denial of relief in

order to exhaust all

available state remedies for

purposes of federal habeas

corpus relief. 

In recognition of the above,

we hereby declare that in all

appeals from criminal

convic tions or postconviction relief matters, a

litigant shall not be required

to petition for rehearing or

allowance of appeal

following an adverse

decision by the Superior

Court in order to be deemed

to have exhausted all

available state remedies

respecting a claim of error.

When a claim has been

denied relief in a final order,

the litigant shall be deemed

to have exhausted all

available state remedies for

purposes of federal habeas

corpus relief. This Order

sha l l be effec tiv e

immediately.

In re Exhaustion of State Remedies in

Criminal and Post-Conviction Relief

Cases, No. 218 Judicial Administration

Docket No. 1 (Pa. May 9, 2000) (“Order

No. 218”). Several Pennsylvania district

courts have held that due to Order No. 218

a state prisoner need not petition the

Pennsylvania Supreme Court for allocatur

in order to exhaust state court remedies

and seek habeas relief in federal court. See

Wilson v. Vaughn, 304 F. Supp. 2d 652

(E.D. Pa. 2004); Lor v. Varner, 2003 WL

22845413 (E.D. Pa. Nov. 26, 2003);

Lambert v. Blackwell, 2003 WL 1718511
23

(E.D. Pa. April 1, 2003); Leon v. Benning,

2003 WL 21294901 (E.D. Pa. Feb. 24,

2003); Mattis v. Vaughn, 128 F. Supp. 2d

249 (E.D. Pa. 2001); Blasi v. Attorney

General, 120 F. Supp. 2d 249 (M.D. Pa.

2000). Other Circuits have reached similar

conclusions with regard to comparable

state supreme court rules. See Adams v.

Holland, 330 F.3d 398, 401-02 (6th Cir.

2003) (Tennessee); Randolph v. Kemna,

276 F.3d 401, 404 (8th Cir. 2002)

(Missouri); Swoopes v. Sublett, 196 F.3d

1008, 1009-10 (9th Cir. 1999) (per curiam)

(Arizona). We reserved judgment on this

issue in Wenger v. Frank, 266 F.3d 218,

217-218 (3d Cir. 2001) and Villot v.

Varner, 373 F.3d 327, 338 n.14 (3d Cir.

2004). We now hold that Order No. 218

renders review from the Pennsylvania

Supreme Court “unavailable” for purposes

of exhausting state court remedies under §

2254(c).

Order No. 218 serves to remove

review of criminal and collateral appeals

from the “normal” and “established”

appellate review procedure in

Pennsylvania. As Judge Van Antwerpen

put it in Mattis v. Vaughn, Order No. 218

is the something “more” that makes the

Pennsylvania Supreme Cou rt’s

discretionaryreviewsystem“unavailable.”

128 F. Supp. 2d at 259. Consequently,

petitioners need not seek review from the

Pennsylvania Supreme Court in order to

give the Pennsylvania courts a “full

opportunity to resolve any constitutional

claims.” 

Here, the Superior Court affirmed

the PCRA Court’s judgment on December

18, 2000. During the pendency of

Lambert’s appeal in the Superior Court,

the Pennsylvania Supreme Court issued

Order No. 218. Consequently, she did not

seek an allowance of an appeal from the

Pennsylvania Supreme Court within the

necessary thirty-day time period. Instead,

she filed a federal habeas petition on

January 29, 2001. We conclude that, due

to Order No 218, Lambert exhausted her

available state court remedies. 

B. Deference

AEDPA requires federal courts

collaterally reviewing state proceedings to

afford considerable deference to state

courts’ legal and factual determinations.

Specifically, it provides: 

(d) An application for a writ

of habeas corpus on behalf

of a person in custody

pursuant to the judgment of

a State court shall not be

granted with respect to any

claim that was adjudicated

on the merits in State court

proceedings unless the

adjudication of the claim—

(1) resulted in a decision

that was contrary to, or

involved an unreasonable

application of, clearly

established Federal law, as

determined by the Supreme

Court of the United States;

or

(2) resulted in a decision

that was based on an
24

unreasonable determination

of the facts in light of the

evidence presented in the

State court proceeding.

28 U.S.C. § 2254(d). In addition,“a

determination of a factual issue made by a

State court shall be presumed to be

correct” unless the petitioner rebuts “the

presumption of correctness by clear and

convincing evidence.” 28 U.S.C. §

2254(e)(1).

The Supreme Court interpreted §

2254(d)(1)’s deference to state legal

determinations in Williams v. Taylor, 529

U.S. 362 (2000). The Court interpreted

AEDPA’s “clearly established Federal

law, as determined by the Supreme Court

of the United States” to mean “the

holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions as of the time

of the relevant state-court decision.” Id. at

412. A state-court decision is “contrary to”

clearly established federal law if the state

court (1) “contradicts the governing law

set forth in [the Supreme] Court’s cases”’

or (2) “confronts a set of facts that are

materially indistinguishable from a

decision of [the Supreme] Court and

nevertheless arrives at a [different] result.”

Id. at 405-06. A state-court decision

“involve[s] an unreasonable application”

of clearly established federal law if the

state court (1) “identifies the correct

governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it

to the facts of the particular . . . case”; or

(2) “unreasonably extends a legal principle

from [Supreme Court] precedent to a new

context where it should not apply or

unreasonably refuses to extend that

principle to a new context where it should

apply.” Id. at 407.

The Supreme Court addressed

AEDPA’s factual review provisions in

Miller-El v. Cockrell. There, the Supreme

Court interpreted § 2254(d)(2) to mean

that “a decision adjudicated on the merits

in a state court and based on a factual

determination will not be overturned on

factual grounds unless objectively

unreasonable in light of the evidence

presented in the state-court proceeding.”

537 U.S. 322, 340 (2003). Yet “deference

does not imply abandonment or abdication

of judicial review.” Id. In other words,

“[d]eference does not by definition

preclude relief.” Id. Thus a federal habeas

court can “disagree with a state court’s

credibility determination.” Id.; see also

Wiggins v. Smith, 539 U.S. 519, 123 S. Ct.

2527, 2539 (2003) (rejecting state court’s

factual determination under § 2254(e)(1)

and 2254(d)(2)).

Despite the Supreme Court’s

pronouncements in Miller-El and Wiggins,

a comprehensive interpretation of

AEDPA’s factual review scheme has yet to

emerge from the fede ral courts.

Specifically, the relationship between the

standards enunciated in § 2254(d)(2) and §

2254(e)(1) remains unclear. See Green v.

White, 232 F.3d 671, 672 n.3 (9

th Cir.

2000).

On their face, we discern little

mate ria l difference between a

reasonableness determination and a

presumption of correctness as they express
25

the same fundamental principle of

deference to state court findings. Courts

have tended to lump the two provisions

together as generally indicative of the

deference AEDPA requires of state court

factual determinations. See, e.g., Martini v.

Hendricks, 348 F.3d 360, 363 (3d Cir.

2003); Hunterson v. DiSabato, 308 F.3d

236, 245-46, 249-50 (3d Cir. 2002). Yet it

is a cardinal rule of statutory interpretation

that we must “give effect, if possible, to

every clause and word of a statute.”

Williams v. Taylor, 529 U.S. at 404

(internal citations and quotations omitted);

see also Kungys v. United States, 485 U.S.

759, 778 (1988) (Scalia, J., plurality

opinion); Borman v. Raymark Indus., Inc.,

946 F.2d 1031, 1035 (3d Cir. 1991) (“It is

an ‘elementary canon of construction that

a statute should be interpreted so as not to

render one part inoperative.’”) (quoting

Colautti v. Franklin, 439 U.S. 379, 392

(1979)). In fact, the language of §

2254(d)(2) and § 2254(e)(1) implies an

important distinction: § 2254(d)(2)’s

reasonableness determination turns on a

consideration of the totality of the

“evidence presented in the state-court

proceeding,” while § 2254 (e)(1)

contemplates a challenge to the state

court’s individual factual determinations,

including a challenge based wholly or in

part on evidence outside the state trial

record. See generally Taylor v. Maddox,

366 F.3d 992, 999-1000 (9th Cir. 2004);

Valdez v. Cockrell, 274 F.3d 941, 951

n.17 (5th Cir. 2001).

We therefore read § 2254(d)(2) and

§ 2254(e)(1) together as addressing two

somewhat different inquiries. The

fundamental prerequisite to granting the

writ on factual grounds is consideration of

the evidence relied upon in the state court

proceeding. Section 2254(d)(2) mandates

the federal habeas court to assess whether

the state court’s determination was

reasonable or unreasonable given that

evidence. If the state court’s decision

based on such a determination is

unreasonable in light of the evidence

presented in the state court proceeding,

habeas relief is warranted. 

Within this overarching standard, of

course, a petitioner may attack specific

factual determinations that were made by

the state court, and that are subsidiary to

the ultimate decision. Here, section

2254(e)(1) comes into play, instructing

that the state court’s determination must be

afforded a presumption of correctness that

the petitioner can rebut only by clear and

convincing evidence. In this inquiry, a

petitioner may develop clear and

convincing evidence by way of a hearing

in federal court as long as he satisfies the

necessary prerequisites. See 28 U.S.C. §

2254(e)(2). In the final analysis however,

even if a state court’s individual factual

determinations are overturned, what

factual findings remain to support the state

court decision must still be weighed under

the overarching standard of section

2254(d)(2).19

19 The two circuits that have

considered the interplay between section

2254(d)(2) and (e)(1) have intimated two

slightly different approaches to resolving
26

With these principles in mind, we

turn to the specifics of this case. Lambert

argues that we should not afford the

PCRA Court and Superior Court factual

determinations the deference set forth in §

2254(d) and § 2254(e)(1), for two reasons.

First, she argues that the PCRA Court and

Superior Court decisions are null and

void—and therefore not entitled to

deference—because those courts lacked

jurisdiction to entertain her untimely

PCRA petition.20 See Commonwealth v.

questions under the respective provisions.

In Valdez v. Cockrell, the Fifth Circuit

suggested that individual factual

challenges should be evaluated under

(e)(1) first, and then, after they are

resolved, the habeas court should consider

the entirety of the record under (d)(2). 274

F.3d at 951 n.17. Somewhat more

explicitly, the Ninth Circuit has said that

the habeas court should evaluate the

totality of the record first under (d)(2),

and, if it survives, cloak the state court’s

decision with a presumption of correctness

to “steel” it against challenges based on

new evidence, extrinsic to the state court

record.

We adopt no rigid approach to

habeas review of state fact-finding. In

some circumstances, a federal court may

wish to consider subsidiary challenges to

individual fact-finding in the first instance

applying the presumption of correctness as

instructed by (e)(1). Then, after deciding

these challenges, the court will view the

record under (d)(2) in light of its

subsidiary decisions on the individual

challenges. In other instances, a federal

court could conclude that even if

petitioner prevailed on all of his individual

factual challenges notwithstanding the

(e)(1) presumption oftheir correctness, the

remaining record might still uphold the

state court’s decision under the

overarching standard of (d)(2). In that

event, presumably the (d)(2) inquiry

would come first. 

Whatever the order of inquiry,

however, two points are paramount. First,

both (d)(2) and (e)(1) express the same

fundamental principle of deference to state

court findings. Second, before the writ can

be granted, petitioner must show an

unreasonable determination -- under (d)(2)

-- in light of the entire record in the

original state court trial. 

20 Lambert also argues that the law

of the case doctrine required Judge Brody

to adhere to Judge Dalzell’s decision that

the state court proceedings were null and

void. “The law of the case doctrine limits

the extent to which an issue will be

reconsidered once the court has made a

ruling on it.” Fagan v. City of Vineland, 22

F.3d 1283, 1290 (3d Cir. 1994). “A court

has the power to revisit prior decisions of

its own or of a coordinate court in any

circumstance, although as a rule courts

should be loathe to do so in the absence of

extraordinary circumstances such as where

the initial decision was ‘clearly erroneous

and would work a manifest injustice.’”
27

Fahy, 737 A.2d 214 (1999). Second,

Lambert argues that the PCRA Court’s

factual determinations are not entitled to

deference because the Court prohibited

her from cross-examining witnesses at the

PCRA hearing.21

On its face, AEDPA does not

provide that a federal habeas court should,

before affording deference to state court

determinations, evaluate the procedural

adequacy of state court proceedings or

whether the state court/ properly exercised

its jurisdiction. This omission is

particularly conspicuous in light of the

pre-AEDPA federal habeas statute. 

Before AEDPA amended the

federal habeas statute in 1996, state court

findings of fact were “presumed correct if

there was (1) a hearing on the merits of a

factual issue, (2) made by a state court of

competent jurisdiction, (3) in a proceeding

to which the petitioner and the state were

parties, (4) and the state court’s

determination is evidenced by a written

finding, opinion, or other reliable and

adequate indicia.” Carpenter v. Vaughn,

296 F.3d 138, 149 (3d Cir. 2002). This

presumption did not apply if the petitioner

established, inter alia, that (i) “the

factfinding procedure employed by the

State court was not adequate to afford a

full and fair hearing,” 28 U.S.C. §

2254(d)(2) (1994) (superseded); or (ii)

“the State court lacked jurisdiction of the

subject matter or over the person of the

applicant in the State court proceeding,”

28 U.S.C. § 2254(d )(4) (1994)

(superseded).

22

Christianson v. Colt Industries Operating

Corp., 486 U.S. 800, 817 (1988) (quoting

Arizona v. California, 460 U.S. 605, 618 n.

8 (1983)). In other words, the law of the

case doctrine does not limit a federal

court’s power, rather it directs its exercise

of discretion. Public Interest Research

Group of New Jersey, Inc. v. Magnesium

Elektron, Inc., 123 F.3d 111, 116 (3d Cir.

1997). 

Lambert’s argument that the

District Court abused its discretion need

not detain us long. “[A] district court's

adherence to law of the case cannot

insulate an issue from appellate review.”

Christianson, 486 U.S. at 817. Conversely,

a district court’s decision not to adhere to

a coordinate court’s previous decision

cannot prevent us from deciding the issue

on the merits. Whether the District Court

followed the first habeas court’s ruling or

came to its own contrary conclusion (as it

did), we would still have to determine

what the correct decision is. See

Tischmann v. ITT/Sheraton Corp., 145

F.3d 561, 564-65 (2d Cir. 1998). The law

of the case doctrine is irrelevant to our

decision. What matter are the merits.

21 Lambert does not argue that we

should not afford deference to Judge

Stengel’s findings made at the trial level.

Her jurisdiction and cross-examination

arguments, of course, do not apply to

those findings. 

22 The pre-AEDPA statute

provided, in relevant part:
28

(d) In any proceeding

instituted in a Federal court

by an application for a writ

of habeas corpus by a

person in custody pursuant

to the judgment of a State

court, a determination after a hearing on the merits of a

factual issue, made by a

State court of competent

jurisdiction in a proceeding

to which the applicant for

the writ and the State or an

officer or agent thereof were

parties, evidenced by a

written finding, written

opinion, or other reliable

and adequat e written

indicia, shall be presumed to

be correct, unless the

applicant shall establish or it

shall otherwise appear, or

the respondentshall admit—

(1) that the merits of the

factual dispute were not

resolved in the State court

hearing;

(2) that the factfinding

procedure employed by the

State court was not adequate

to afford a full and fair

hearing;

(3) that the material facts

were n ot adequately

developed at the State court

hearing;

(4) that the State court

lacked jurisdiction of the

subject matter or over the

person of the applicant in

the State court proceeding;

(5) that the applicant was an

indigent and the State court,

in deprivation of his

constitutional right, failed to

appoint counsel to represent

him in the State court

proceeding;

(6) that the applicant did not

receive a full, fair, and

adequate hearing in the

State court proceeding; or

(7) that the applicant was

otherwise denied due

process of law in the State

court proceeding;

(8) or unless that part of the

record of the State court

proceeding in which the

determination of such

factual issue was made,

pertinent to a determination

of the sufficiency of the

evidence to support such factual determination, is

produced as provided for

hereinafter, and the Federal

court on a consideration of

such part of the record as a

whole concludes that such

factual determination is not

fairly supported by the
29

The current statute simply states

that federal courts must defer to legal and

factual determinations “with respect to any

claim that was adjudicated on the merits in

State court proceedings.” 28 U.S.C. §

2254(d). “We have interpreted § 2254(d)’s

‘adjudication on the merits’ language to

mean that ‘when, although properly

preserved by the defendant, the state court

has not reached the merits of a claim

thereafter presented to a federal habeas

court, the deferential standards provided

by AEDPA . . . do not apply.” Holloway v.

Horn, 355 F.3d 707, 718 (3d Cir. 2004)

(quoting Appel v. Horn, 250 F.3d 203,

210 (3d Cir. 2001)).

AEDPA has changed the

procedural framework for deference in

three ways. First, AEDPA now requires

federal courts to defer to state court legal

determinations, whereas federal courts

used to review state legal determinations

de novo. See, e.g., Ahmad v. Redman, 782

F.2d 409, 412 (3d Cir. 1986). Second, the

habeas statute no longer explicitly

conditions federal deference to state court

factual findings on whether the state court

held a hearing. See Mendiola v. Schomig,

224 F.3d 589, 592-93 (7th Cir. 2000).

Third, the statute no longer contains the

eight prerequisites to deference that

appeared in the superseded §§ 2254(d)(1)-

(8). See Valdez v. Cockrell, 274 F.3d at

951 (holding that a “full and fair hearing”

is not a precondition to according

2254(e)(1)’s presumption of correctness to

a state habeas court’s findings of fact); but

see Valdez v. Cockrell, 274 F.3d at 966

(Dennis, J., dissenting); 17A Charles A.

Wright & Arthur R. Miller, Federal

Practice and Procedure § 4265.2 (2d ed.

1994) (“Indeed the new statute does not

even require that the state court that made

the determination have been a court of

competent jurisdiction. Presumably the

courts will continue to insist on that and it

is likely that some of the other elements

record.

And in an evidentiary

hearing in the proceeding in

the Federal court, when due

proof of such factual

determination has been

made, unless the existence

of one or more of the

circumstances respectively

set forth in paragraphs

numbered (1) to (7),

inclusive, is shown by the

applic ant, oth e r wis e

appears, or is admitted by

the respondent, or unless the

court concludes pursuant to

the provisions of paragraph

numbered (8) that the record

i n the S t a t e court

proceeding, considered as a

whole, does not fairly

s u pport such factu a l

determination, the burden

shall rest upon the applicant

to establish by convincing

evidence that the factual

determination by the State

court was erroneous.

28 U.S.C. § 2254(d) (1994) (superseded).
30

that were in the old statute but not in the

new one will be read back into it by the

courts.”).

On its face, therefore, the amended

habeas statute appears to obviate any need

to consider Lambert’s jurisdictional and

procedural arguments against our deferring

to the PCRA Court’s determinations;

AEDPA eliminated the threshold language

eliminating the presumption of correctness

when “the State court lacked jurisdiction”

or “the factfinding procedure employed by

the State court was not adequate to afford

a full and fair hearing.” We decline to

conclude, however, that state court

jurisdiction or procedures are entirely

irrelevant in a federal court’s habeas

review of state court determinations. 

Even under AEDPA, federal courts

are to defer regarding claims “adjudicated

on the merits in State court proceedings.”

This implies that the claim must be

adjudicated by a court of competent

jurisdiction, as opposed to a kangaroo

court or an administrative body

masquerading as a court. At the same time,

however, AEDPA’s amendments to the

habeas statute surely lower the level of

scrutiny a federal court is entitled to apply

to the issue of state court jurisdiction. For

purposes of applying deference under

section 2254(d) and (e), when a valid state

court judgment exists a federal habeas

court should generally presume that the

state court properly exercised its

jurisdiction.23

Similarly, the procedures a state

court applies when adjudicating a

petitioner’s claims may also be relevant

during habeas review. The extent to which

a state court afforded a defendant adequate

procedural means to develop a factual

record—whether the defendant was

afforded a “full and fair hearing,” to put it

in the parlance of the pre-AEDPA

statute—may well affect whether a state

court’s factual determination was

“reasonable” in “light of the evidence

presented in the State court proceeding” or

whether the petitioner has adequately

rebutted a presumption that the state

court’s determination is correct. See

Taylor v. Maddox, 366 F.3d 992, 1000-01

(9th Cir. 2004); cf. Valdez v. Cockrell, 274

23 This is somewhat different than

the level of scrutiny we apply to state

jurisdictional questions in the context of

determining whether there is an adequate

and independent procedural bar to federal

habeas relief. See, e.g. Hull v. Kyler, 190

F.3d 88, 100-03 (3d Cir. 1999). The

Supreme Court has specifically delineated

the role of a federal habeas court in

assessing whether a state court decision

rests on an independent procedural bar.

See Coleman v. Thompson, 501 U.S. 722

(1991). In the instant case, however, we

deal with the jurisdictional issue in the

different context of deferring to state court

fact-finding -- an area in which Congress

spoke in AEDPA by facially eliminating

the requirement of a jurisdictional inquiry.
31

F.3d at 951 n.17; Mendiola, 224 F.3d at

592 (“If a state court’s finding rests on

thin air, the petitioner will have little

difficulty satisfying the standards for relief

under § 2254”); Weaver v. Thompson,

197 F.3d 359, 363 (9th Cir. 1999)

(statements in the trial judge’s letter were

not “factual determinations” because they

were not “subject to any of the usual

judicial procedures designed to ensure

accuracy”). In other words, the extent to

which a state court provides a “full and

fair hearing” is no longer a threshold

requirement before deference applies; but

it might be a consideration while applying

deference under § 2254(d)(2) and §

2254(e)(1). 

We need not comprehensively or

exhaustively address how deeply a federal

habeas court may plumb the adequacy of

state court jurisdiction and procedures in

deciding how to apply section 2254(d) and

(e)(2). We conclude in the particular

circumstances of this case that no

jurisdictional concerns obviate the

application of AEDPA’s deferential

scheme of review. Nor do any procedural

issues lower the level of deference we

must afford. 

First, the Pennsylvania courts

affirmatively exercised jurisdiction over

Lambert’s PCRA petition. Judge Dalzell

concluded that the PCRA Court and

Superior Court lacked jurisdiction under

Pennsylvania law and that, under

Pennsylvania law, “‘[w]here a court lacks

jurisdiction in a case, any judgment

regarding the case is void.’” Lambert v.

Blackwell, 175 F. Supp. 2d at 787 (quoting

Rieser v. Glukowsky, 690 A.2d 742 (Pa.

Super. 1997)). But after AEDPA

eliminated jurisd ict io na lly- base d

challenges to state court decisions, a

federal habeas court has at most a

circumscribed role in reviewing whether a

state court properly applied its own law

when it explicitly decided to exercise

jurisdiction.24

24

 “The United States Supreme

Court has repeatedly declared that, in a

federal habeas proceeding such as this,

‘state courts are the ultimate expositors of

state law . . . and we are bound by their

c o nstruc tions except i n rar e

circumstances.’” Humanik v. Beyer, 871

F.2d 432, 436 (3d Cir. 1989) (quoting

Mullaney v. Wilber, 421 U.S. 684, 691

(1975)). We reiterated this point in

Johnson v. Rosemeyer, where we

summarized our precedent as counseling

that “a federal court in a habeas case must

be most circumspect in re-examining state

court decisio ns,” and “only in

extraordinary circumstances should a

federal district court in a habeas corpus

case decline to follow the opinions of a

state intermediate court of appeal with

respect to state law rendered in earlier

proceedings involving the petitioner.” 117

F.3d 104, 114-15 (3d Cir. 1997); see also

Poe v. Caspari, 39 F.3d 204, 207 (8th Cir.

1994) (“Jurisdiction is no exception to the

general rule that federal courts will not

engage in collateral review of state court

decisions based on state law.”). Of course,

in Humanik, Barry, Rosemeyer, and Poe,

the state court determinations of state law
32

To be sure, the Superior Court’s

decision appears to be internally

contradictory. The Court determined that

Lambert’s PCRA petition was untimely

and the PCRA Court had “no jurisdiction

to address the substantive merits of the

petition.”Commonwealth v. Lambert, 765

A.2d at 319. Yet the Court decided to

entertain Lambert’s appeal and review the

PCRA Court’s judgment. Id. at 322-23.

That decision was motivated in part by a

recognitionthatthePennsylvania Supreme

Court decision in Commonwealth v. Fahy,

supra, that established a jurisdictional bar

to untimely PCRA filings did not issue

until after Lambert had filed her PCRA

application. In other words, the Superior

Court effectively determined to carve out

an exception to Fahy’s retroactive

application, at least in the somewhat

unusual circumstances of Lambert’s case.

765 A.2d at 322-23. A federal court will

normally defer to a state court’s decision

about retroactivity of state decisions.

See Fiore v. White, 531 U.S. 225 (2001).

In short, the Superior Court decided

to retain and exercise jurisdiction. The

Superior Court’s opinion concluded by

stating: “Based upon the foregoing, we

hold that Appellant has not met her burden

under the PCRA statute. Accordingly, we

affirm the PCRA court's order denying

Appellant the collateral relief she

requested. Order affirmed.” Id. at 363.

Whatever our residual ability to examine

state court jurisdiction in other instances,

the exercise of jurisdiction by the state

court in this instance does not call into

question that adequacy of the state court

proceeding under section 2254(d) and

(e).25

We turn to Lambert’s second

argument. Several prosecutorial and law

enforcement witnesses, who Lambert

alleges engaged in extensive misconduct,

testified at the PCRA hearing. Lambert

argues that the PCRA Court refused to

“allow Lambert to cross-examine the

perpetrators of the prosecutorial

misconduct.” Lambert Br. 34. She

went to the merits of the petitioners’

habeas claims. Here, the Superior Court’s

determination of state law regards whether

as a jurisdictional matter state courts could

entertain Lambert’s claims on collateral

review. See note 23, supra.

25 Our decision in In re James, 940

F.2d 46 (3d Cir. 1991), which Lambert

cites in her brief, does not persuade us

otherwise. There, we held that a federal

court may vacate a state court decision

when the state court acts in violation of the

federal bankruptcy statute’s automatic stay

provisions. See Raymark Indus., Inc. v.

Lai, 973 F.2d 1225, 1132 (3d Cir. 1992)

(construing In re James). We reached that

conclusion because an automatic stay

obviates the state court’s jurisdiction and

renders its decision void ab initio. In re

James differs from this case (and most

cases) because the state court’s

jurisdiction, or lack thereof, was a function

of federal law (the federal bankruptcy

statute). Here, in contrast, the PCRA

Court’s jurisdiction is a matter of state

law.
33

contends that the PCRA Court’s

credibility determination are not worthy of

deference because “credib ility

determinations of witnesses who are never

subjected to the crucible of crossexamination are not entitled to deference.”

Id. She cites cases standing for the

proposition that cross-examination

provides “the principal means by which

the believability of a witness and the truth

of his testimony are tested.” Davis v.

Alaska, 415 U.S. 308, 316 (1974). 

We find Lambert’s argument, as

she frames it, extremely misleading.

Cross-examination is “[t]he questioning of

a witness at a trial or hearing by the party

opposed to the party who called the

witness to testify.”Black’s Law Dictionary

383 (7th ed. 1999). (emphasis added). The

PCRA Court did not preclude Lambert

from cross-examining any witnesses.

Rather, the Court applied Pennsylvania

law on evidence and, except for one

instance, did not allow Lambert to ask

leading questions to the witnesses she

called on direct examination. PCRA Court

Decision 47-59. Lambert does not

complain that she was not allowed to

cross-examine Commonwealth witnesses.

More importantly, however, the

fact-finding process was not inexorably

undermined by the PCRA Court’s

evidentiary determination. We have

extensively reviewed the record of the

PCRA hearing. The PCRA Court’s

decision not to allow Lambert to ask

leading questions of witnesses she called

on direct examination in no way impugns

the Court’s factual determinations.26 That

26 We concur in the following

observations of the Pennsylvania Superior

Court:

[T]he PCRA court

permitted counsel to defend

Appellant's rights with zeal,

bringing to the attention of

the court all of the errors

that, according to Appellant,

caused her an unfair trial.

The PCRA court allowed

her to reiterate her claims

and explore every avenue

for relief. The PCRA court

demonstrated remarkable

patience and thoroughness

throughout the proceedings,

which provided for review

on appeal over eight

thousand pages of testimony

from trial and the PCRA

hearing, along with other

filings, as well as the PCRA

court's three hundred and

twenty (320) page main

opinion.

765 A.2d at 323. We also note that the

PCRA Court allowed Lambert to impeach

witnesses using testimony developed at

the 1997 federal habeas hearing, where

Judge Dalzell apparently let her attorneys

ask leading questions. See, e.g., App.

3793. This further undermines any

suggestion that we should not defer to the

PCRA Court’s factual determinations due

to Lambert’s inability to “cross-examine”
34

is not to say that in certain instances a

court’s prohibition on asking leading

questions could not undermine to some

extent a state court’s factual

determinations. This is simply not such a

case. 

C. The Merits

We discern in Lambert’s brief

twelve claims supporting her petition for

a writ of habeas corpus. Those are the

claims for which we grant a COA.27 We 

address them in turn.

As a preliminary matter, we note

that Lambert relies on the same record in

her federal habeas proceedings as she did

in the state PCRA proceedings. She has

made no attempt to augment the record.

We therefore simply apply § 2254(d)(2)’s

reasonableness standard to the PCRA

Court’s factual determinations. With

respect to the trial court’s factual

determinations, however, we apply a twotiered analysis because Lambert seeks to

rebut the trial court’s findings through

witnesses.

27 Lambert does not pursue on

appeal many of the numerous claims she

pursued at one point or another during the

lengthy state and federal proceedings.

Lambert alleged before Judge Dalzell and

the PCRA Court, for example, that

Corporal Solt fabricated a portion of the

written statement that the Commonwealth

claimed at trial represented what she told

the police when they arrested her the day

of Show’s murder. As we explained

above, Solt testified that a fellow officer

transcribed Lambert’s statement and she

later signed it. A portion at the end of the

statement is handwritten, however, while

most of the statement was typed. In the

handwritten portion, Lambert explained

the route she took to flee the Show

apartment. She also said that she was

wearing black sweat pants and a red

flannel shirt (i.e. Yunkin’s clothing).

Appellate App. 1581-82. Lambert claimed

before Judge Dalzell and the PCRA Court

that the police fabricated the handwritten

portion. See Lambert v. Blackwell, 962 F.

Supp. at 1542. Yet at trial Lambert

specifically acknowledged telling Solt

what the handwritten portion of the

statement indicates—namely that she was

wearing Yunkin’s clothes—but she

claimed she had lied to the police. When

asked why she lied, Lambert explained

that she “thought if they found the clothes

they would know they were Lawrence’s

clothes and he would get in trouble so I

said I had them on.” App. 1218. 

On its face, then, Lambert’s

accusation of misconduct against Solt in

federal court is utterly belied by her own

testimony at trial. We assume that Lambert

does not pursue this claim, and others,

because she has taken the prudent course

of only pursuing the arguments she

perceives as her strongest. Regardless, we

only grant a COA on those issues Lambert

has briefed and pursued on appeal. We

observe that many of the claims raised in

District Court were as ill-founded as the

fabrication claim we discuss here. 
35

evidence that was not before that court,

namely evidence developed at the PCRA

proceedings. Thus, when reviewing trial

court factual determinations, we first

determine whether they were reasonable in

light of the record before the trial court. If

reasonable, we then look to whether

Lambert has rebutted the finding with

clear and convincing evidence adduced at

the PCRA hearing.

1. The Sweatpants

As we explained above, Yunkin

testified that Lambert wore his

sweatpants—which the police eventually

obtained and which contained Show’s

blood on them—the morning of Show’s

murder. Lambert argues that the

Commonwealth—specifically the

prosecutor, John Kenneff—knew that

Lambert did not wear Yunkin’s

sweatpants that morning and nonetheless

elicited testimony from Yunkin to the

contrary. She also argues that the

Commonwealth “switched” the sweatpants

at the PCRA Hearing. That is, she argues

that the Commonwealth replaced the

sweatpants from the trial with a different

pair, which it offered into evidence at the

PCRA Hearing and told the PCRA Court

were the same sweatpants as those from

the trial.

a. Knowing Use of

Perjured Testimony

The Supreme Court has long held

that the state’s knowing use of perjured

testimony to obtain a conviction violates

the Fourteenth Amendment. See Giglio v.

United States, 405 U.S. 150, 153 (1972);

Napue v. Illinois, 360 U.S. 264, 269

(1959); Pyle v. Kansas, 317 U.S. 213, 216

(1942); Mooney v. Holohan, 294 U.S.

103, 112 (1935). In United States v.

Agurs, the Supreme Court characterized

this line of cases as finding it

fundamentally unfair to the accused where

“the prosecution’s case includes perjured

testimony and [] the prosecution knew, or

should have known, of the perjury.” 427

U.S. 97, 103 (1976). “The same is true

when the government, although not

soliciting false evidence, allows it to go

uncorrected when it appears at trial.”

United States v. Biberfeld, 957 F.2d 98,

102 (3d Cir. 1992) (citing Giglio, 405

U.S. at 153).

In such circumstances, the

conviction must be set aside “if there is

any reasonable likelihood that the false

testimony could have affected the

judgment of the jury.” Id. In United States

v. Bagley, the Court explained: “Although

this rule is stated in terms that treat the

knowing use of perjured testimony as

error subject to harmless error review, it

may as easily be stated as a materiality

standard under which the fact that

testimony is perjured is considered

material unless failure to disclose it would

be harmless beyond a reasonable doubt.”

473 U.S. 667, 679-80 (1985).

Thus, in order to make out a

constitutional violation Lambert must

show that (1) Yunkin committed perjury;

(2) the government knew or should have

known of his perjury; (3) the testimony

went uncorrected; and (4) there is any

reasonable likelihood that the false
36

testimony could have affected the verdict.

The state trial court and PCRA Court

concluded that Lambert had in fact worn

Yunkin’s sweatpants and Yunkin

therefore did not perjure himself. These

factual determinations preclude a finding

of constitutional error, and we review

them under the applicable AEDPA

standard.

At trial Lambert’s counsel, Roy

Shirk, strongly urged Judge Stengel to

conclude that Lambert did not wear

Yunkin’s clothes on the day of Show’s

murder, and he developed testimony to

support this argument. He elicited

testimony from Yunkin’s friend, Vincent

Orsi, that Yunkin would wear the

sweatpants “to bed, bumming around the

house.” App. 950. Lambert testified that

although she told the police that she wore

a red flannel shirt and black sweatpants the

morning of Show’s murder, she had lied to

them in order to protect Yunkin. To

contradict the reason Yunkin gave for why

Lambert wore his clothing—i.e., she was

well into her pregnancy—Shirk elicited

testimony that Lambert was barely

“showing” at that stage of her pregnancy.

And he had the following exchange with

Yunkin on cross-examination:

Q. So basically what you are

telling us here this morning,

Michelle was wearing all

your clothing?

A. Correct.

Q. The sweat pants were

yours.

A. Correct.

Q. The red flannel was

yours.

A. Correct.

Q. The jergo was yours.

A. Correct.

Q. I’m going to show you

wha t’ s been marked

Commonwealth Exhibit 10.

That’s your jacket?

A. Yes, it is. Extra large.

Q. Extra large?

A. Correct.

Q. I’m going to show you

wha t’ s been marked

Commonwealth Exhibit 9.

They are your sweat pants?

A. Yes.

Q. In fact you used to wear

them to bed and you used to

wear them while you were

lounging around. You used

to wear these quite a bit,

didn’t you?

A. Yes.

Q. Now you indicated that

Michelle was pregnant at

the time, is that correct?

A. Yes.

Q. You indicated she was

seven months pregnant.

A. Around there, yes.
37

Q. Around six months?

A. Between six and seven.

Q. She wasn’t really heavy

at the time, was she? She

wasn’t showing a lot.

A. Not really, no.

Q. But it’s your testimony

that she left the house that

day basically clothed in your

clothing.

A. True.

App. 273-74. 

During his closing argument, Shirk

argued that all the evidence suggested that

Lambert did not wear Yunkin’s clothing.

The relevant portion of his closing went as

follows:

The assumption we’re

supposed to make is that my

client, due to her pregnancy,

wore Mr. Yunkin’s clothes,

perhaps to be mor e

comfortable because she

was pregnant and obviously

bigger than she normally is;

although Chief Glick, in his

testimony, indicated she

really wasn’t showing that

much. I find it, or the

defense finds it, incredible.

Would you hold up that

jacket.

Mr. Jeffries: (Complying

with the request.)

Mr. Shirk: That is for a fray

in the morning that was

going to last, whatever, an

hour or two, three, she

would wear this for comfort;

and the clothing she put on

to wear the rest of the day,

or at least the clothing that

Detective—Trooper Solt

indicated he believed she

had on that evening, the

difference in size. She was

going to spend a lot more

time in this—(holding up a

sweater)—and she had to

wear that for comfort a few

hours in the morning.

(Holding up a pair of pants.)

This is what she wore the

rest of the day, compared to

them.

You may sit down. Thank

you.

(Mr. Jeffries returned to the

defense table.)

Mr. Shirk: You Honor, I

think even the clothing is

consistent with th e

defendant’s testimony.

Vinnie Orsi suggested that

Mr. Yunkin wore them to

bed any time he was over

there, wore them around

leisurely. Mr. Yunkin

admitted from the stand he

wore those sweat pants to

bed. Lisa Lambert, in her
38

testimony, said, interestingly

enough, just off the cuff: He

got up that morning, had his

sweat pants on, threw

something on and away they

went.

Probably very likely what

happened, he was getting up

early that morning, just kept

on his sweat pants, threw on

his red flannel, his jergo,

and away they went. It

would seem incredible that

they got up that time in the

morning and he wears these

to bed all the time, he took

them off to give them to her

to put on. Difficult to

believe. I think the clothing

is consistent with her

statement.

App. 1289-90.

After Judge Stengel found Lambert

guilty, she again advanced her argument

regarding Yunkin’s sweatpants in her postverdict motion seeking an arrest of

judgment and a new trial. Addressing the

argument that the evidence regarding the

sweatpants rendered the verdict against the

weight of the evidence, Judge Stengel

wrote: “[F]or defendant to argue that the

killer was wearing Mr. Yunkin’s clothing

and, therefore, must have been Mr. Yunkin

is ludicrous. . . . The court listened to the

testimony regarding the clothing, observed

the size of the garments and the size of the

people involved, i.e., Ms. Lambert, Ms.

Buck and Mr. Yunkin, and found there to

be no question raised by the fact that the

clothing appeared to be Mr. Yunkin’s.”

App. 1633. As Judge Stengel later put it:

“The only real question was whether

[Lambert] could have worn sweatpants

owned by the larger Yunkin. This was

resolved by the court’s observations of the

sweatpants, of Mr. Yunkin, of Ms.

Lambert, and the conclusion that Ms.

Lambert could certainly have worn the

garment.” PCRA Decision 204.

Lambert urges us to conclude that

the trial court’s finding of fact was

unreasonable given the record before it

and that the only reasonable conclusion

was that Yunkin wore the sweatpants the

day of the murder. Her argument is this:

Since Yunkin was 6'1” tall and weighed

190 pounds and he admittedly wore the

sweatpants at times, it was impossible for

Lambert (who was 5'6” tall and weighed

143 pounds at the time) to have worn

them.

In order to accept Lambert’s

argument, however, we must make several

speculative leaps that find no support in

the record. First, we must infer that it was

physically impossible for Lambert to fit

into a pair of sweatpants that would have

fit the larger Yunkin. Alternatively, we

must assume that people always wear

clothes that fit them perfectly—that is,

people never wear clothes that are large on

them—and that it is therefore unreasonable

to conclude that either Lambert or Yunkin

wore sweatpants that did not properly fit

them. But neither of these suggestions is

supported by the record or common sense.
39

The PCRA Court considered

Lambert’s argument and reached the same

conclusion. “Petitioner suggests that the

sweatpants in 1992 were so large,” the

Court explained, “that Ms. Lambert would

be ‘swimming in them.’” But, the Court

concluded, “[t]here is simply no testimony

or even any argument to this effect.”

PCRA Decision 209-10.

We agree with this conclusion.

Against the weight of Lambert’s

speculative argument is a conclusion by a

finder of fact who had the opportunity of

observing both Lambert and the

sweatpants during the trial itself.

Lambert’s counsel was free to argue that

Yunkin’s clothes were too big for Lambert

to wear, but the judge was free to disregard

those arguments and to base his findings

on his own observation.

Thus Lambert’s claim that the

prosecution must have knowingly relied on

perjured testimony because the sweatpants

did not fit collapses. Lambert’s vehement

disagreement with the prosecutor’s theory

— and with the judge’s finding — does

not amount to a good faith basis to allege

perjury. There is simply no foundation in

the record for this allegation. 

b. “Switching” Evidence

Lambert argues that she is

nonetheless entitled to relief due to the

Commonwealth’s misconduct at the PCRA

hearing. Specifically, Lambert argues that

at the PCRA hearing, the Commonwealth

offered into evidence sweatpants that were

different than those offered into evidence

at trial. In other words, she argues that “the

Commonwealth switched evidence and

produced different sweatpants than those

used at trial.” Lambert Br. 41. The PCRA

Court rejected Lambert’s argument,

because it found that there was no “proof

that the sweatpants admitted into evidence

as Commonwealth’s Exhibit 9 in 1992

have ever been altered, changed, or

substituted.” PCRA Decision 209. 

To support her “switching” claim

before the PCRA Court, Lambert offered

testimony that the sweatpants at the trial

tested positive for blood, while the

sweatpants at the PCRA hearing did not.

In addition, a textile expert opined that the

sweatpants at the PCRA hearing were

sized “boy’s extra large” and that a 6'1"

individual who weighed one hundred and

ninety pounds—Yunkin’s approximate

height and weight at the time of the

murder—could not fit into them.

Lambert’s trial counsel, Roy Shirk, also

testified at the PCRA hearing that, to the

best of his recollection, the sweatpants at

the PCRA hearing were smaller than those

at trial. He also opined that the sweatpants

at the PCRA hearing would not fit Yunkin.

On the other han d, the

Commonwealth offered evidence that the

officer who logged the contents of the bag

found in the dumpster behind K-Mart

listed the sweatpants that were eventually

admitted into evidence at the trial as

“ladies dress ‘black’ sweatpants (appears

small size).” App. 7015. This would tend

to contradict Lambert’s bald assertion that

the sweatpants at trial were so huge that

she could not wear them. The forensic

scientist who performed the test to check
40

for blood prior to the trial, Donald P.

Bloser, Jr., testified that the markings he

made on the sweatpants from trial still

appeared (albeit faded) on the sweatpants

at the PCRA hearing. Bloser also testified

that the sweatpants tested “very weak” for

blood prior to trial in 1992 and that he

found no presence of blood when he

retested other evidence (such as the ski

hats) that had also tested “very weak” for

blood in 1992. App. 2759.28 In addition, an

investigator from the Commonwealth,

James Gallagher, testified about a

photograph he took using the sweatpants

in evidence at the PCRA hearing. He took

a photograph in which he laid the

sweatpants against cardboard box lids that

had also appeared in a photograph of the

sweatpants from trial. The Court

concluded that the two photographs looked

substantially similar. 

Given the record before it, the

PCRA court’s factual determination that

the sweatpants were not “switched” is

reasonable. There is substantial evidence

in the record to support the conclusion,

and the evidence to the contrary is

considerably weaker. 

More important, Lambert’s

“switching” claim provides no basis for

habeas relief. She argues that “the

Commonwealth’s attempt to uphold

Lambert’s conviction on evidence

contradictory to that used to convict her

violates ‘the most basic notions of due

process.’” Lambert Br. 41. In support of

this proposition, she cites Dunn v. United

States, 442 U.S. 100 (1979), Smith v.

Groose, 205 F.3d 1045 (8th Cir. 2000), and

Thompson v. Calderon, 120 F.2d 1045 (9th

Cir. 1997). 

In Dunn, the Court of Appeals had

affirmed a conviction based on facts that

had been adduced at trial but that neither

supported the offense charged in the

indictment nor provided the foundation for

the jury’s conviction. The Supreme Court

held that “appellate courts are not free to

revise the basis on which a defendant is

convicted simply because the same result

would likely obtain at trial.” 442 U.S. at

107. In other words, a defendant’s due

process rights are violated when his

conviction is affirmed on an offense that

he was not charged with and that was not

presented to the jury or court that tried

him.

Smith and Thompson involved

instances where the government offered

contradictory theoriesin two separate trials

to convict two individuals for the same

crime. The Thompson court held that

“when no new significant evidence comes

to light a prosecutor cannot, in order to

convict two defendants at separate trials,

offer inconsistent theories and facts

regarding the same crime.” 120 F.3d at

1058. The Smith court concluded that the

“State’s use of factually contradictory

theories constituted ‘foul blows’” and

“deprived [the defendant] of due process

28 Bloser also testified that evidence

that tested “positive” for blood in 1992

tested “very weak” for blood when he

tested it prior to the PCRA hearing. App.

2759.
41

and rendered his trial fundamentally

unfair.” 205 F.3d at 1051.

To a certain degree Dunn and

Smith/Thompson represent different sides

of the same coin. Dunn requires a certain

degree of vertical consistency (between

trial and appeal) in the theories the

government offers, while Smith and

Thompson require a certain degree of

horizontal consistency (between two

trials). Both lines of cases are inapposite,

however, because they do not provide a

basis for habeas relief here. 

Lambert’s argument suffers from

the same “fundamental flaw” that we

identified in the petitioner’s argument in

Gattis v. Snyder, 278 F.3d 222 (3d Cir.

2002). There, we explained:

The fundamental flaw in

Gattis' argument is that in

the decisions of which he

complains the state courts

did not “uphold [his]

conviction on a charge that

was neither alleged in an

indictment nor presented to

a jury at trial.” [Dunn, 442

U.S. at 106]. The allegedly

different theory of guilt was

not presented on direct

appeal in support of his

conviction but in the course

of a post-conviction hearing

held in connection with his

claim that counsel was

ineffective for failing to

present expert testimony

conce r ning th e

implausibility of the state's

account of the murder. The

Superior Co urt a n d

Delaware Supreme Court

did not affirm his conviction

based on the state's theory

but merely found his

i n effectiveness claim

unpersuasive. The state's

theory played a small role, if

any, in the courts' reasoning.

In this context Dunn and

[Cola v. Reardon, 787 F.2d

681 (1st Cir.), cert. denied,

479 U.S. 930 (1986)] are

simply not applicable.

Id. at 238.

Similarly, and more importantly,

habeas proceedings are not the appropriate

forum for Lambert to pursue claims of

error at the PCRA proceeding. As we

explained in Hassine v. Zimmerman, 160

F.3d 941 (3d Cir. 1998): 

The federal courts are

authorized to provid e

collateral relief where a

petitioner is in state custody

or under a federal sentence

imposed in violation of the

Constitution or the laws or

treaties of the United States.

28 U.S.C. §§ 2254, 2255.

Thus, the federal role in

reviewing an application for

habeas corpus is limited to

evaluating what occurred in

the state or federa l

proceedings that actually led
42

t o the peti tioner's

conviction; what occurred in

the petitioner's collateral

proceeding does not enter

into the habeas calculation.

We have often noted the

general proposition that

habeas proceedings are

“hybrid actions”; they are

“ independent civi l

dispositions of completed

criminal proc eedin gs.”

Federal habeas power is

“limited . . . to a

determination of whether

there has been an improper

detention by virtue of the

state court judgment.” 

Id. at 954-55 (internal citations omitted);

see also Morris v. Cain, 186 F.3d 581, 585

n.6 (5th Cir. 1999); Williams-Bey v.

Trickey, 894 F.2d 314, 317 (8th Cir. 1990).

To be sure, error in state collateral

proceedings may affect the deference we

owe the court’s findings under § 2254(d)

and 2254(e)(1). But, as we admonished in

Hassine, alleged errors in collateral

proceedings, such as Lambert’s claim that

the prosecution “switched” the sweatpants,

are not a proper basis for habeas relief

from the original conviction. It is the

original trial that is the “main event” for

habeas purposes.

2. Evidence of Yunkin’s

Location During the Murder

Prior to the trial, an individual

named Kathleen Bayan gave a statement to

a Commonwealth investigator indicating

that she had seen Yunkin driving through

the Show condominium complex with two

passengers the morning of Show’s murder.

Lambert argues this evidence shows that

the Commonwealth knowingly used

perjured testimony, namely Yunkin’s

testimony that he never drove within the

condominium complex that morning. She

also argues that the Commonwealth’s

failure to disclose Bayan’s statement prior

to the trial violated Brady v. Maryland,

373 U.S. 83 (1963).

The circumstances surrounding

Bayan’s statement were thoroughly

canvassed at the PCRA hearing. Bayan

testified that on July 5, 1992, soon before

Lambert’s trial began, Detective Ronald

Savage of the East Lampeter Township

Police Department called her to discuss a

matter regarding her son. During the

conversation, Bayan (who lived in the

same condominium complex as Show) told

Savage that on December 20, 1991 she had

seen a light-haired young man driving with

two passengers along the road she lived on

within the condominium complex.

Savage visited Bayan two days later

to take a statement from her. Bayan told

him that as she was pulling out of her

driveway on Black Oak Drive, a circular

road that passed through the condominium

complex, she saw three individuals drive

by in a brown car. The passengers were

talking and appeared to be in conflict, and

the young man driving the car pushed

down the head of the person sitting in the

front seat. Bayan provided a written

statement that provided, in relevant part: 
43

. . . . On pulling out

of my drive (at 43 Black

Oak Drive) I observed a

brown “patchwork coupe”

(mid 70's?) That looked like

it migh t be in th e

Ford/Mercury line. There

were three people inside.

The person driving appeared

to have light hair. And the

two passengers had dark

c l othi ng. Wh at I

r emembered was t he

movement inside the car.

One passenger was in the

back [and] one in the front.

The person in the front

leaned over the seat toward

the back and arms were

moving all over. The driver

would turn sideways during

this time. 

The driver also was

going too fast for the curves

and was not driving in a

straight line. I remember

thinking that the car looked

out of place in the

condominium and that

whoever was in it acted

drunk for 7 A.M.

I left an extra couple

of car lengths between the

brown car and mine. It

exited The Oaks on

Oakview Rd. To the light at

462 then made a right and

went straight (?) down 462

(sort of swerving).

F rom obse rvin g

glimpses of their faces the

people in the car were of

High School age or very

young adults (16-22).

There were no

headlights on, it was dawn

and it was light enough to

see clearly.

The two passengers

had on navy or black tops

and I could not see their hair

yet it was all dark like their

clothing. So I would deduct

that it was a hood. The

driver was male, but the

passengers we re not

decernable [sic] as either

sex.

The car had patches

where it may have had

primer on it or a try at

matching the paint of

“coppery brown”. It really

looked so out of place in our

condo. 

I am almost positive

(99.5%) that I recollect this

car passing my cul de sac

while I was waiting to pull

out. The brown car was

moving faster than our

residents drive and took the

curve at Sycamore Drive

sharply. (There is a small

chance that the vehicle

could have made a U turn at

the end of Sycamore Drive
44

and that is where the car got

in front of me. But either

way I remember thinking

that the driver was not

driving safely.)

I had never seen the

car in the complex before.

There were no other cars

pulling out of the complex

during this time.

I did not see their

faces clearly because of the

distance, dirty windows, and

I have a perceptual disability

that limits my span of focus

(i.e. when I look at a license

plate and focus on the first

letter, I cannot tell what the

last 3 figures are). . . .

I would like to

apologize for not contacting

you all sooner. At first, I did

not realize there was a

connection. Then when I

did, the suspects were

arrested [and] from what I

read in the papers, there

appeared to be enough

evidence.

Appellate App. 1613-15. Bayan testified at

the PCRA hearing that she accidentally

omitted from her statement that she saw

the driver push down one of the

passenger’s heads.

Savage testified that he gave the

written statement to John Kenneff and told

Kenneff that he believed Bayan was not

credible because he thought she had

emotional problems. Kenneff sent a letter

to Lambert’s counsel, Roy Shirk, stating:

“It is my understanding that it is the

defense contention that on December 20,

1991, shortly after 7:15 a.m., Yunkin

picked up Lambert at the wooded area near

the intersection of the driveway to the

Oaks Apartment Complex and Oakview

Road. If my understanding is correct

please advise.” Appellate App. 1620.

Kenneff testified that he sent this letter in

order to determine whether he had an

obligation to disclose Bayan’s statement. 

Kenneff knew that Yunkin planned

to testify that he picked up Lambert and

Buck on Oak View Road—outside the

condominium complex—and Bayan’s

statement was therefore inconsistent with

Yunkin’s planned testimony. But Kenneff

believed, according to his testimony, that

he had no obligation to disclose Bayan’s

statement unless it corroborated the

version of events Lambert planned to offer

at trial. And all the evidence other than

Bayan’s statement—including Lambert’s

statement to the police upon her

arrest—indicated that Yunkin had picked

Lambert and Buck up outside the

condominium complex. As a result, he did

not tell Shirk about the statement. 

a. Knowing Use of 

Perjured Testimony 

Lambert’s first argument based on

Bayan’s statement is that since the

statement placed Yunkin in the

condominium complex and Yunkin

testified that he never entered the complex,
45

the government knowingly elicited

perjured testimony from Yunkin. Lambert

would, in effect, have us find a due

process violation anytime a prosecutor

elicits testimony that contradicts testimony

that the defense elicits. Discrepancy is not

enough to prove perjury. There are many

reasons testimony may be inconsistent;

perjury is only one possible reason.29 As

we explained above, in order to sustain a

claim of constitutional error Lambert must

show that Yunkin actually perjured

himself and the government knew or

should have known of his perjury. These

are factual determinations. See, e.g., Ortiz

v. Stewart, 149 F.3d 923, 936-37 (9th Cir.

1998) (finding no constitutional violation

because of factual finding that testimony

was not perjured); United States v.

Caballero, 277 F.3d 1235, 1244 (10th Cir.

2002) (finding no constitutional error

because of “the absolute lack of evidence

to show either the falsity of [the witness’s]

testimony or the prosecutor's knowledge of

false testimony”).30

The PCRA Court declined to

conclude that Yunkin perjured himself

because the lion’s share of evidence

29 This principle is illustrated by the

(perhaps apocryphal) anecdote told about

the legendary English barrister—later

Lord Chancellor—F.E. Smith.Smith, then

a young lawyer, was charged with assault

on a police officer arising out of an

altercation at Oxford. Defending himself

at trial, Smith denied kicking the officer.

The prosecutor challenged th e

inconsistency between Smith’s testimony

and that of the policeman, asserting Smith

was necessarily accusing the latter of

perjury. 

As related by an observer at trial

(John Simon, also a future Lord

Chancellor):

On the contrary, said

F.E. sweetly, that is one of

five possible explanations.

 . . .

One is that he is

committing perjury; the

second is that I am

committing perjury; the

third is that he is honestly

mistaken; the fourth is that I

am honestly mistaken; and

the fifth is that the two

assertionsthough apparently

contradictory can none the

less be reconciled.

Viscount Simon, Retrospect 36

(Hutchinson 1952), quoted in John

Campbell, F.E. Smith 77 (Pimlico 1991).

30 In the Supreme Court cases

establishing a due process violation for

knowing use of perjured testimony, it was

undisputed that the testimony at issue was

false and the prosecution knew of its

falsity. See, e.g., Napue, 360 U.S. at 269.

Thus the Supreme Court has not addressed

the level of prosecutorial knowledge

necessary to constitute a constitutional

violation. See Drake v. Portuondo, 321

F.3d 338, 345 (3d Cir. 2003).
46

corroborated Yunkin’s testimony. PCRA

Decision 175. We conclude that the

PCRA’s Court’s decision was reasonable.

In reaching its conclusion, the

PCRA Court considered Lambert’s

statement to the police upon her arrest,

testimony from three condominium

complex residents, and Buck’s testimony

at the PCRA hearing. After the police

arrested Lambert the day of Show’s

murder, she gave a statement consistent

with being picked up on Oak View Road.

She stated that after leaving Show’s

apartment she ran through “two fields” and

a “patch of woods,” stepped in a creek

(“like a little runoff”), fell in “the briars,”

and ended up on someone’s backyard.

Similarly, three of Show’s neighbors

(Kleinhaus, Frederick Fry, and Patricia

Fry) testified at the trial that they saw two

individuals of generally the same build

walking in a direction consistent with

Lambert and Buck being picked up on Oak

View Road. 

Buck, who had not ever previously

testified in any court proceedings

regarding the events of December 20,

1991, testified at the PCRA hearing. Buck

related that she and Lambert entered

Show’s apartment and accosted Show.

Although Buck made several inculpatory

admissions, she testified that it was

Lambert who stabbed Show and slit her

throat.31 In addition, Buck stated that after

31 Because it goes to the

reasonableness of Judge Stengel’s factual

determination, we note his conclusion

regarding Buck’s credibility: 

Ms. Buck has

nothing to gain by lying

about Ms. Lambert’s

involvement in the death of

Laurie Show. In her

testimony at the PCRA, she

had the candor and the

d e cency to acce p t

responsibility for her own

role in the killing. She

knows that she blocked

Laurie Show’s path as

Laurie tried to escape. She

knows that she held

Laurie’s legs down while

Ms. Lambert cut her throat.

In our close observation of

Ms. Buck as she testified

and in our subsequent

consideration of her

testimony, we find her

credible in her description

of the murder. She has

acknowledged that she

deserves her sentence

because of her actions on

December 20, 1991. She has

acknowledged her guilt

under oath in a courtroom in

the same courthouse in

which her own PCRA

petition is pending. What

possible impact will this

admission have on her own

PCRA claim that her trial

resulted in a “fundamentally

unfair” conviction?
47

she and Lambert left Show’s apartment

they proceeded toward a wooded area,

walked across a field, and ended up in

“some bushes, maybe a ditch” along Oak

View Road. App. 10426-27.

Furthermore, the PCRA Court

found that Bayan was not a credible

witness. The Court came to that conclusion

for several reasons. Bayan did not come

forward with her statement until several

months after the murder, for example, and

she only told Savage about her

observations after engaging in lengthy and

seemingly irrelevant discussions regarding

her personal life.

32 In addition, the PCRA

Court allowed Bayan to testify from

Florida via teleconference because she told

the Court she needed to care for her

handicapped fiancé. Yet the Court

subsequently learned that there was an

active warrant for her arrest in Lancaster

County for her failure to pay taxes. The

Court also found that Bayan’s perceptual

disability rendered her testimony

questionable.33 Finally, Judge Stengel

concluded that his personal observation of

Bayan while she testified via

teleconference was consistent with

Savage’s impression in 1992 that she was

not credible.

Lambert argues that the PCRA

Court’s factual determination was

Ms. Buck knows full

well that, when she took the

stand to acknowledge,

under oath in a courtroom,

that she activelyparticipated

in the killing of Laurie

Show, she severely

compromised any chance

that she has that a state or

federal court will be

inclined to find that she has

been wrongly convicted.

Her testimony will not take

a day off her life sentence

and will not change the

events of December 20,

1991. We find her credible

in her description of what

happened that morning.

PCRA Decision 159-60.

32 Similarly, Bayan’s 1992

statementprovided a substantial amount of

information, regarding her son, that was

irrelevant to her account of what she

allegedly saw on December 20, 1991.

When the Commonwealth inquired about

this at the PCRA hearing, Bayan stated

that she “was going through a lot with [her

son] at the time” and wanted Savage “to

realize where I was coming from.” App.

8162.

33 When Bayan focuses on a

particular object, she has difficulty

focusing on and seeing the items that

surround that object. So, for example, if

she is “looking at one word, everything

else around it just isn’t clear.” App. 8169.

As a result, she’s “a word-by-word

reader.” Id.
48

unreasonable in light of other evidence in

the record. Lambert Br. 52. Most notably,

Hazel Show testified at the PCRA hearing

that she recalled driving past Yunkin on

her way home the day of the murder and

seeing Yunkin pushing down the head of a

passenger in the front seat. But she did not

recall passing Yunkin until after she heard

Bayan testify at the 1997 habeas hearing.

At the time of the trial in 1992, she only

remembered “a flash of brownish color.”

App. 9210. She testified at the PCRA

hearing about the conversation she had

with Savage a couple of days before the

trial:

[Detective Savage] had told

m e a neighbor lady

mentioned that she had seen

a brown car leaving our

complex.

When he said that, I

saw a flash of a brownish

color and I said to him, a

brownish color? And then

we went over this, had I

seen a car? I wasn’t sure.

Where was it? I wasn’t sure.

What type of car? Was

anyone in it? And I had

nothing in my memory

except when he said this

brown color, I just saw a

flash of a brown car. Not

even knowing if it was a car

or anything and I tried to jog

my memory to get more

information but there wasn’t

anything there. 

App. 9210-11. She became upset when she

was not able to jog her memory, and

Savage told her not to worry about it

because they “had solid witnesses who

could answer the questions about the flight

that they took, the path that they took from

the condo.” Id. at 9212.

The PCRA Court found that Hazel

Show’s recollection did not sufficiently

corroborate Bayan’s testimony to establish

that Yunkin perjured himself. This

conclusion was reasonable in light of the

full record. First, as the Court noted, Hazel

Show could not rule out the possibility that

she saw the car on Oak View Road. In

addition, Hazel Show did not recollect

seeing Yunkin’s car until approximately

six years after the event occurred. In the

intervening time she sat through a trial and

habeas hearing where she heard testimony

regarding the events she eventually

recollected. These facts tend to diminish

the value of her testimony at the PCRA

hearing regarding seeing Yunkin’s car, and

they bolster the reasonableness of the

PCRA Court’s factual determination.

Moreover, even if Hazel Show’s

testimony sufficiently corroborated

Bayan’s statement to show that Yunkin’s

testimony was incorrect, the testimony

does not tend to show that the government

knew or should have known of the perjury.

At the time of the trial, all Hazel Show

recalled was a “flash of brown.” In light of

the substantial evidence supporting

Yunkin’s testimony and questioning

Bayan’s credibility, it was reasonable for

the PCRA Court to conclude that the

government did not and should not have
49

known Yunkin was perjuring himself

(assuming, of course, that Hazel Show’s

testimony in 1997 and 1998 in fact

demonstrated he was lying).34 The

existence of evidence tending to contradict

testimony the government elicits at trial

does not conclusively show that either the

witness perjured himself or (if he did) that

the government knew or should have

known of the perjury. The PCRA Court’s

factual findings are dispositive. 

b. Suppression of 

Brady Material

In Brady v. Maryland, the Supreme

Court held “that the suppression by the

prosecution of evidence favorable to the

accused upon request violates due process

where the evidence is material either to

guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.”

373 U.S. at 87. The Court subsequently

held that “a defendant’s failure to request

favorable evidence did not leave the

Government free of all obligation,” and a

Brady violation might arise “where the

Government failed to volunteer

exculpatory evidence never requested, or

requested only in a general way.” Kyles v.

Whitley, 514 U.S. 419, 433 (1995). In

addition, impeachment evidence, as well

as exculpatory evidence, falls within the

Brady rule, see Giglio v. United States,

405 U.S. 150, 154 (1972), because “[s]uch

evidence is ‘evidence favorable to an

accused.’” United States v. Bagley, 473

U.S. 667 (1985) (quoting Brady, 373 U.S.

at 87). Thus to establish a Brady violation

requiring relief, a defendant must show

that (1) the government withheld evidence,

either willfully or inadvertently; (2) the

evidence was favorable, either because it

was exculpatory or of impeachment value;

and (3) the withheld evidence was

material. See Banks v. Dretke, -- U.S. --,

124 S. Ct. 1256, 1272 (2004); United

States v. Palermo, 929 F.2d 967, 970 (3d

Cir. 1991).

The PCRA Court found that

Lambert had not made either of the latter

two showings. With respect to the second

prerequisite, the Court found that Bayan’s

statement was not the type of evidence that

fell within the government’s duty to

disclose under Brady. Specifically, the

Court held that “[a]bsent a specific request

by the defendant for exculpatory evidence,

a prosecutor has a duty to make evidence

available to the defense that is truly

exculpatory rather than merely favorable.”

PCRA Decision 170. And it found that the

evidence was not “truly exculpatory” in

part because Lambert’s lawyer told the

prosecution that Lambert planned to

contend at trial that Yunkin had picked her

up on Oak View Road. Id. at 171-72. We

review this legal determination under §

2254(d)(1) to determine whether it was

contrary to or an unreasonable application

34 The PCRA Court did not

explicitly make this factual determination,

but it is implicit in its findings. And we

owe AEDPA deference to both express

and implicit factual findings. See Weeks

v. Snyder, 219 F.3d 245, 258 (3d Cir.

2000); Campbell v. Vaughn, 209 F.3d

280, 285-86 (3d Cir. 2000).
50

of clearly established federal law. See

Hollman v. Wilson, 158 F.3d 177, 179 (3d

Cir. 1998).

This portion of the Court’s decision

was contrary to federal law, because the

Supreme Court has “disavowed any

difference between exculpatory and

impeachment evidence for Brady

purposes.” Kyles, 514 U.S. at 433 (citing

Bagley, 473 U.S. at 667). Here, as in

United States v. Pelullo, “[w]e have no

hesitation in concluding that the

government inexplicably failed to abide by

its obligation under Brady to disclose

potential impeachment evidence.” 105

F.3d 117, 122 (3d Cir. 1997). While

Bayan’s statement did not exculpate

Lambert, it wasinconsistent with Yunkin’s

testimony regarding his whereabouts

during the crime. Bayan could have been

called, therefore, to contradict at least one

aspect of Yunkin’s testimony, and perhaps,

therefore, to cast a larger doubt on his

credibility. And while Bayan’s own

credibility might have been open to

challenge, resolution of these kinds of

credibility disputes should take place in the

courtroom, and not through the

prosecutor’s unilateral decisionmaking. 

The PCRA Court concluded,

however, that even if the government had

erred by not disclosing the evidence, the

withheld evidence was not material for

Brady purposes. “[A] showing of

mate riality does not r equire a

demonstration by a preponderance that

disclosure of the suppressed evidence

would have resulted ultimately in the

defendant’s acquittal.” Kyles, 514 U.S. at

435. Rather, “[t]he evidence is material

only if there is a reasonable probability

that, had the evidence been disclosed to

the defense, the result of the proceeding

would have been different.” Bagley, 473

U.S. at 682.35 In other words, the relevant

question is: “when viewed as a whole and

in light of the substance of the

prosecution's case, did the government's

failure to provide . . . [the] Brady

impeachment evidence to the defense prior

to the [] trial lead to an untrustworthy

guilty verdict . . . ?” See Pelullo, 105 F.3d

at 23; see also Banks, 124 S. Ct. at 1276-

77.

“Because it is contrary to

overwhelming evidence,” the PCRA Court

held, “her story would have had no

impact.” PCRA Decision 175. In other

words, “it did not so undermine the truthdetermining process that no reliable

adjudication of guilt or innocence could

have taken place.” Id. Since this too was a

legal determination, we review it also

under § 2254(d)(1). We conclude that it

was neither contrary to nor an

unreasonable application of clearly

established federal law.

The potential value of Bayan’s

statement as impeachment evidence was

35 The Kyles Court also noted that

the materiality of “suppressed evidence [is

to be] considered collectively, not

item-by-item.” 514 U.S. at 436. But we

need not follow that admonition here since

Bayan’s statement is the only evidence we

find the government wrongfully withheld.
51

negligible. There was substantial evidence

at trial, including the testimony of Lambert

herself, that tended to show Yunkin picked

up Lambert and Buck on Oak View Drive.

In any case, there existed far stronger

evidence regarding Yunkin’s truthfulness

(or lack thereof). Indeed, the government

conceded in its closing that it believed

Yunkin was not fully truthful in his

testimony. See App. 1315; supra, at

Section IV.C. “Suppressed evidence is not

material when it ‘merely furnishes an

additional basis on which to impeach a

witness whose credibility has already been

shown to be questionable.’” United States

v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996)

(internal citation omitted).

Moreover, the materiality of the

statement is negligible even if it would

have conclusively established that Yunkin

picked up Lambert within the

condominium complex instead of on Oak

View Road. Assuming that Bayan’s

statement had that probative value, it

would have placed Yunkin somewhat

closer to the scene of Show’s murder. But

despite Lambert’s assertions to the

contrary, placing Yunkin driving within

the condominium complex does not

establish that he entered the Show

apartment and committed the murder. 

Finally, even if evidence showed

that Yunkin was in the apartment, the

evidence was sufficient to conclude that

Lambert was guilty of murdering Show.

The evidence at trial overwhelmingly

showed that Lambert had the motivation

(she hated Show), she supplied the murder

weapon, and she entered Show’s

apartment that morning. Thus even if

Bayan’sstatement fully implicated Yunkin

in Show’s murder, it would not have

sufficed to exculpate Lambert. There is no

reasonable probability that evidence

showing Yunkin was driving within the

condominium complex, rather than on a

road adjacent to the complex, would have

changed the result of the trial.

3. The “29 Questions”

As we explained above, when

cross-examining Yunkin at trial Lambert’s

counsel offered into evidence a document

that she and Yunkin purportedly passed

between each other while they were in jail.

Yunkin acknowledged that he and Lambert

passed a document between them, but he

also testified that the document he was

presented with at trial—what we refer to as

the “29 Questions”—was not the

document that he recalled passing back

and forth with Lambert. Yunkin testified

that his handwriting appeared on the 29

Questions and some of the questions were

the same as he recalled from the document

he passed with Lambert, but he claimed

that he never saw some of the questions on

the 29 Questions document.

As a preliminary matter, we note

that Lambert has made much of this

document as conclusively establishing her

innocence. The trial judge, sitting as a

finder of fact, found the document

unreliable and inconclusive. As a result, he

did not rely on it when he reached his

verdict because he concluded that the

document did not create reasonable doubt

as to Lambert’s guilt. After reviewing the
52

record in some detail, we tend to agree

with the trial judge’s conclusion. And we

find fanciful Lambert’s assertion that the

only reasonable conclusion from the

document is that Yunkin and Buck

murdered Show and Lambert was not

involved.

Yet our opinion of the probative

value of the document is irrelevant. Our

role is confined to determining whether

any constitutional error occurred at trial.

Stripped of Lambert’s attempts to retry the

case in another forum, her claim regarding

the 29 Questions is this: Yunkin’s

testimony regarding the 29 Questions was

perjured and the prosecution knowingly

elicited that testimony. 

 Lambert specifically bases this

argument on two portions of Yunkin’s

testimony. First, Yunkin testified that

although the answers written on the 29

Questions appeared to be in his

handwriting the 29 Questions was not the

document that passed between him and

Lambert in prison. He testified that in the

document that had passed between him

and Lambert, Lambert had written the

questions in pencil and he had written all

his answers in pencil and then traced over

every other word in ink so that they could

not be changed. Yet Lambert’s expert

testified that the questions in the 29

Questions were written in ink, and there

was no indication of any writing in pencil

on the document. The expert also

confirmed that the answers were written in

Yunkin’s handwriting.

Second, Lambert’s counsel asked

Yunkin about a portion of the document in

which the following question and answer

appeared: 

5) [Question:] I think about

Tressa and Laurie! I think

you guys are sick! I think

about her life you took! All

those people at her funeral!

And I know very well that

you don’t feel sad! You

were happy, U weren’t sad

Friday! Do you remember

seeing [crossed out word]

dead? [Answer:] Yes, I

remember seeing [crossed

out word] dead.” 

PCRA Opinion (attached). Yunkin

testified that on the document he passed

back and forth with Lambert he had

responded to a question by answering,

“Yes, I remember seeing Tressa dead,”

because the question he was answering

asked, “Do you remember seeing Tressa

dead? Do you remember going to her

funeral?” App. 329. Yunkin testified that

although the 29 Questions was not “the

original document,” it was his

understanding the word crossed out in

Question 5 was “Tressa.” App. 328-30.

But Lambert’s expert testified that the

crossed-out word was “Laurie.”

The PCRA Court found that the

prosecution openly conceded to the trial

court that it believed Yunkin was not fully

truthful in his testimony regarding the 29

Questions. The Court explained:
53

Mr. Kenneff stipulated to

[the testimony of Lambert’s

expert] on the basis that he

had the document examined

by a Pennsylvania State

Police examiner as well.

There was never any effort

by the Commonwealth to

hide what Mr. Yunkin said

or to somehow bolster what

Mr. Yunkin said with expert

testimony. Mr. Kenneff

freely an d openl y

acknowledged that this

expert’s analysis of the

document was consistent

with the defense expert and

these expert opinions were

both inconsistent with Mr.

Yunkin’s testimony.

PCRA Decision 117-118.36 The Court’s

finding of fact was eminently reasonable

in light of the record. In particular,

Kenneff made the following statement to

the Court during closing arguments:

Mr. Yunkin. Is he guilty of

the crime of homicide?

Fortunately, neither of you

have to decide that in this

case nor do I have to argue

it. I don’t think I held

anything back about my

feelings about Mr. Yunkin.

I said in my openings he’s

either lying, he’s stupid or

he’s naive. Perhaps the

evidence in this case

suggests he’s all three.

I’m not going to stand here

and say that Mr. Yunkin was

being truthful about [the 29

Questions]. I can’t do that.

There is no evidence to do

that. What I can say about

Mr. Yunkin and what I can

say about what Miss

Lambert needed to cover up

for him is that logic says

Yunkin was an accessory

before the fact. 

App. 1315. Later on in his closing

argument Kenneff stated: “Did Yunkin

participate in the murder of Laurie? My

stomach says he did, my mind says he did.

Did he participate in the way that Miss

Lambert says? The facts say no.” App.

1319. 

The PCRA Court’s factual finding,

supported strongly by the record, precludes

a determination that the prosecution

knowingly used false evidence to obtain a

conviction. It also precludes a finding that

“the State, although not soliciting false

evidence, allow[ed] it to go uncorrected

when it appear[ed].” Napue v. Illinois, 360

U.S. at 269. To the contrary. The

government fully and openly informed the

Court that it believed Yunkin’s testimony

36 The Court also noted: “Mr.

Kenneff never hid his belief that Mr.

Yunkin was not being forthright about that

document. In truth, no one involved in the

1992 trial could quite figure out who

wrote what on that document and what it

meant.” PCRA Decision 120. 
54

was not fully truthful. There was no

constitutional violation at trial regarding

the 29 Questions. The flaws in Yunkin’s

testimony were fully aired at trial and

candidly acknowledged by the prosecution.

Lambert also argues that having

conceded that a portion of Yunkin’s

testimony was questionable, the prosecutor

had an ethical obligation to characterize

the entirety of testimony as perjury, and to

withdraw the witness. These contentions

have no merit. A prosecutor fully

discharges his obligation when he

discloses all inconsistent evidence to the

trier of fact and defense counsel. “[W]hile

the government has a duty to be

forthcoming with favorable evidence, it is

not required to draw inferences from that

evidence which defense counsel is in an

equal position to draw . . . . When the road

to what defense counsel think is potential

perjury is so plainly marked, the

government need not supply a map.”

United States v. Gaggi, 811 F.2d 47, 59

(2d Cir. 1987). Nor is it true that a witness

who fabricates in one area is incompetent

to testify about others. This concept is

embodied in the common jury instruction

known as the “falsus in uno, falsus in

omnibus” charge, which provides: “If you

find that any witness testified falsely about

any material fact, you may disregard all of

his testimony, or you may accept such

parts of it as you wish to accept and

exclude such parts of it as you wish to

exclude.” United States v. Rockwell, 781

F.2d 985, 988 (3d Cir. 1986) (emphasis

omitted).

4. The Crime Scene

Photographs

A photograph offered into evidence

at Lambert’s trial showed Laurie Show

lying dead on the floor of her apartment.

The photograph showed a telephone cord

wrapped once around her leg near her

ankle. Lambert contends that there was no

telephone cord wrapped around Show’s

leg before law enforcement authorities

became involved with the crime scene. She

contends that several hours after Show’s

body was removed from the crime scene,

the police brought the corpse back to the

apartment, wrapped a telephone cord

around its leg, and photographed the body.

Lambert claims that the police did

this in order to discredit the statement she

gave to the police upon her arrest. In her

statement, Lambert told the police a

version of events where “[Show] tried to

grab the phone and [Buck] grabbed it away

and threw it down.” Appellate App. 1577.

According to Lambert, the fabricated

crime scene photographs showing a

telephone cord around Show’s leg served

to “discredit Lambert’s testimony that it

was Buck who struggled with Show, and

in doing so, threw a telephone across

Show’s room.” Lambert Br. 62.37

37 Lambert also argues that the

government used the allegedly fabricated

photograph “to substantiate the

Commonwealth’s theory at trial that Ms.

Show’s legs were tied up and held down

as Lisa Lambert slit her throat.” Lambert

Br. 62-63. We have thoroughly reviewed
55

Lambert sought to prove to the

PCRA Court that this misconduct occurred

through alleged inconsistencies between

the photograph and (1) a crime-scene

drawing, and (2) testimony regarding the

crime scene. The PCRA Court flatly

rejected this contention, finding that the

evidence did not nearly suffice to show

that the government engaged in such

outrageous conduct. The Court’s

conclusion was certainly reasonable in

light of the record. Indeed, the evidence in

the record virtually compelled the Court to

reach that conclusion. 

Officer Robin Weaver composed

the crime scene drawing. The drawing

presents a bird’s-eye view of the room

where Show’s body was found and depicts

the location of Show’s body, furniture, and

several miscellaneous objects. The

drawing is inconsistent, in certain respects,

with the photographs of the crime. The

drawing depicts the telephone cord near

Show’s leg, for example, not touching or

wrapped around it as in the photograph.

Similarly, the drawing depicts bloody

envelopes located closer to Show’s body

than they appear in the photograph. And

the photograph shows objects, such as a

coat and an electrical appliance, that do

not appear in the drawing. Lambert argues

that these inconsistencies—especially the

location of the telephone—show that the

police fabricated the crime scene

photographs. 

Officer Weaver testified at the

PCRA hearing and explained why the

drawing was not entirely consistent with

the photographs. Weaver testified that he

was told to make a rough sketch of the

bedroom floor layout in order to depict the

location of evidence the police collected.

He did not compose the drawing to scale.

Nor did he depict everything that existed

in the room, since “[t]here were hundreds

of items in the bedroom.” App. 4512. In

addition, Weaver placed items in the

drawing (including the telephone) after

Show’s body was removed from the room.

Officer Weaver’s testimony was

sufficient for the PCRA Court to reject

Lambert’s spurious allegations, but his

testimony was not even necessary. We first

note that Lambert seriously misrepresents

the content of her statement to the

police—the statement that allegedly

provided the motive to fabricate evidence.

She states in her brief that she told the

police Buck “threw a telephone across

the record of the trial before Judge

Stengel, however, and nowhere have we

discovered the Commonwealth urging any

such theory. Lambert’s characterization of

the trial is inexcusable. Lambert cites to a

portion of Judge Dalzell’s 1997 opinion to

support this characterization. But the

habeas court’s mistaken characterization

of the trial record does not give Lambert

carte blanche to do the same. Of course,

we are puzzled by how Judge Dalzell

reached that conclusion (and several

others). Perhaps the habeas court simply

accepted Lambert’s characterization of the

trial record. We have learned, from

attempting to find support in the record for

many of Lambert’s claims, that it is

perilous to do that. 
56

Show’s room.” Lambert Br. 62. In her

actual statement to the police, however,

Lambert merely said that Buck grabbed the

phone from Show and “threw it down.”

Appellate App. 1577. This is an important

distinction.38

And even if Lambert had told the

police initially that Buck threw the

telephone across the room—which she did

not—the crime scene drawing would not

support her extraordinary allegations that

police returned the body to the crime scene

and rearranged it. Lambert apparently

contends that if Buck threw the telephone

across the room, it would have been

impossible for the phone to end up near

Show’s body. But the crime scene drawing

itself shows the telephone close to

Lambert’s feet. Thus, on its face, it defeats

Lambert’s allega tions o f po lice

misconduct: even if the police thought that

evidence showing the phone near Show

would have discredited Lambert, there

would have been no need for the police to

stage a photograph. The drawing

accomplishes the same object. Whether or

not the cord was touching Show’s feet is

immaterial.39

Lambert further argues that

testimony from individuals who witnessed

the crime scene on the day of Show’s

murder establishes that the police

fabricated the crime scene photographs.

Specifically, witnesses testified at the

PCRA hearing that they saw Show’s feet

at the crime scene and a telephone cord

was not wrapped around them. In addition,

witnesses testified that Show’s body lay

38

 To be sure, Lambert claimed at

trial that Buck “threw [the phone] across

the room.” Appellate App. 631. But

Lambert’s testimony at trial months later is

irrelevant to her allegations that the police

doctored evidence to contradict her

original statement to the police. What is

important, of course, is the content of her

statement to the police. The suggestion

that officers rearranged the crime scene to

anticipate testimony by Lambert that did

not occur until months later would a

require a finding that the police were

clairvoyant. 

We are unpersuaded by Lambert’s

(and her counsel’s) attempts to create

allegations of misconduct by selectively

relying on evidence from various

proceedings in Lambert’s lengthy route

through the criminal justice system: the

pre-trial investigation, the 1992 trial, the

1997 habeas hearing, and the 1998 PCRA

hearing.

39 In addition, we agree with the

PCRA Court’s conclusion that “Ms.

Buck’s throwing the telephone across the

room and the location of the cord around

Laurie Show’s leg are not mutually

exclusive.” PCRA Decision. 236. The

Court explained: “It appears that the

telephone was close to the entrance of the

bedroom, by the bed, when Laurie picked

it up. If Ms. Buck threw it across the

relatively small bedroom, it could easily

have landed near the closet where Laurie’s

body came to rest.” Id.
57

parallel to the closet, while the photograph

depicted her body at a slight angle. 

Lambert’s arguments hinge on an

unsupported view of crime scenes as

antiseptic and static environments, and an

utterly unrealistic supposition about the

precision of witness observations and

memories. We agree with the PCRA

Court’s conclusion that “the telephone

could have been moved as the several

medical and police personnel tended to

Laurie or processed the crime scene.”

PCRA Decision 236. And slight

inconsistencies between the body’s

position in the photograph and witness’s

recollections (parallel to the closet versus

at a slight angle) do not establish an

elaborate conspiracy to implicate Lambert

in Show’s murder.40

Finally, Lambert argues that

evidence regarding the presence of blood

on Show’s face shows that the police

brought her body back to the crime scene

in order to fabricate the photographs.

Specifically, the funeral director where

Show’s body was taken on the afternoon

following the murder testified that he

removed blood from Show’s face when

her family came to view her. Yet the

autopsy report from the next morning

indicated that “much dried blood” was on

Show’s face. Lambert argues that “[t]he

only possible explanation for this is that

the body had been returned to the crime

scene after it had been at the funeral home

so photos could be fabricated.” Lambert

Br. 67. 

The funeral director certainly

testified that he cleaned Show’s face when

her family came to view her. He stated:

“[W]hen I heard that the father and

possibly other family members were

coming in, I had taken a damp towel and

had cleaned up her face and also covered

her neck area.” Appellate App. 1492. He

did not indicate, however, that he removed

all the blood from her face. And nothing

in his testimony is necessarily inconsistent

with the observation at the autopsy the

next day that “[m]uch dried blood is seen

covering the face and the neck.” Appellate

App. 1551. Lambert urges us to draw the

strongest possible inferences from

relatively indecisive evidence and

conclude that the police engaged in

unconscionable acts of misconduct to

fabricate evidence of marginal, if any,

utility in implicating Lambert.41 The

PCRA Court understandably declined to

do so, and we unhesitatingly defer to its

reasonable determination.

5. The Dying Declaration

At the trial, Hazel Show testified

that Laurie Show said “Michelle did it” as

she lay dying in her mother’s arms.

40 We also note that the crime scene

drawing depicts Show’s body at a slight

angle to the closet. Apparently, Lambert

feels the drawing is accurate only insofar

as it is inconsistent with the photograph. 

41 Indeed, we have come across no

portion of the trial record where the

Commonwealth used the photograph to

discredit any of Lambert’s testimony.
58

Lambert argued at trial that given the

injuries Show sustained she could not have

said “Michelle did it,” either because she

had died before Hazel Show returned

home or the injury to her neck rendered

her unable to speak. Both the prosecution

and defense offered expert testimony to

support contrary conclusions.

The issue arose again at the PCRA

hearing. Lambert argued that expert

testimony that was not offered at her trial

was “after-discovered evidence” that

would warrant relief under Pennsylvania’s

PCRA statute. Once again, both Lambert

and the Commonwealth offered conflicting

expert testimony as to whether Show could

have said “Michelle did it.”

The PCRA Court held that the

newly offered expert opinions did not

constitute “after discovered evidence,”

which under Pennsylvania law is evidence

that (1) was unavailable at trial, (2) is

exculpatory, and (3) would have changed

the outcome at trial. PCRA Decision 112

(citing Commonwealth v. Reese, 663 A.2d

206 (Pa. Super. 1995)). After a lengthy

discussion of the various expert testimony,

the Court concluded:

No expert has established

that it would have been

impossible for Laurie Show

to speak. In fact, competent

and credib l e expert

testimony proves in a clear

and convincing way that the

dying declaration was

possible. No evidence was

presented in 1992 or has

been presented in the PCRA

hearing which would cause

this court to change its

finding that Mrs. Show was

credible in 1992 when she

testified as to her daughter’s

dying declaration.

PCRA Decision 116. 

Now, in her habeas petition,

Lambert argues that the Commonwealth’s

conduct at the PCRA hearing with regard

to Show’s dying declaration constitutes a

constitutional violation warranting habeas

relief. Namely, she contends that “[t]he

Commonwealth retained new experts in

the PCRA proceeding and violated ‘the

most basic notions of due process,’ by

proffering new testimony that was based

on disowning the very evidence on which

it had convicted Lambert in 1992.”

Lambert Br. 69. 

Of course, labeling a claim as a

“fundamental due process violation” does

not actually substantiate a constitutional

claim. Lambert fails to explain how

conduct at the PCRA hearing could

feasibly warrant habeas relief. Rather, she

simply cites three cases: Dunn v. United

States, 442 U.S. 100 (1979), Smith v.

Groose, 205 F.3d 1045 (8th Cir. 2000), and

Thompson v. Calderon, 120 F.2d 1045 (9th

Cir. 1997), rev’d on other grounds, 523

U.S. 538 (1998). 

Indeed, she cites the same three

cases that she contends support her claim

that the Commonwealth’s “switching” of

the sweatpants warrants habeas relief. We

have rejected that claim, and we reject her
59

dying declaration arguments for the same

reasons. The Commonwealth did not

utilize the allegedly differing expert

testimony to convict Lambert (as in

Smith/Thompson) or uphold her

conviction on direct appeal (as in Dunn).

Rather, the state used the new testimony to

show that Lambert had not offered afterdiscovered evidence warranting relief

under the PCRA statute. See Gattis, 278

F.3d at 238. And in any case the

Commonwealth’s conduct at the PCRA

hearing is not a basis for habeas relief. 42

Even if error in the state collateral

proceedings could support Lambert’s

claim for habeas relief, however, none

would be warranted here. In contrast to

Dunn, Smith, and Thompson, the

government did not offer contradictory

theories or facts at the trial and the PCRA

hearing. The government’s theory at both

proceedings was that Lambert entered

Show’s apartment on December 20, 1991

and participated in the murder. At both

proceedings they offered Hazel Show’s

testimony that Laurie Show said “Michelle

did it.” The government relied on the same

evidence—an autopsy report and

photographs—at both proceedings. The

only inconsistency was in some of the

opinions offered by the government’s

expert witnesses at the trial and PCRA

hearing—though they all agreed on the

ultimate conclusion that Show could speak

the words “Michelle did it”—based on the

same evidence. 

6. The DA’s Contact with 

Lambert’s Trial Expert

The Commonwealth’s district

attorney (Kenneff) contacted Lambert’s

expert, Dr. Mihalakis, over the weekend

preceding the trial. Lambert contends that

in doing so the Commonwealth violated

her right to due process. 

Intimidation or threats from the

government that dissuade a potential

witness from testifying may infringe a

defendant’s Fourteenth Amendment right

to due process and Sixth Amendment right

to compulsory process. See Webb v.

Texas, 409 U.S. 95 (1972); United States

v. Morrison, 535 F.2d 223, 226-27 (3d Cir.

1976); see also United States v.

Bieganowski, 313 F.3d 264, 291 (5th Cir.

2002); Newell v. Hanks, 283 F.3d 827,

837 (7th Cir. 2002); United States v.

Emuegbunam, 268 F.3d 377, 400 (6th Cir.

2001); United States v. Vega-Figueroa,

234 F.3d 744, 751-52 (1st Cir. 2000);

United States v. Vavages, 151 F.3d 1185,

1188 (9th Cir. 1998); United States v.

Saunders, 943 F.2d 388, 392 (4th Cir.

1991); United States v. Pinto, 850 F.2d

927, 932 (2d Cir. 1988). In order to violate

the Constitution,the government’s conduct

must have “substantially interfered” with a

witnesses’s choice to testify. See

Bieganowski, 313 F.3d at 291; Newell,

42 In addition, we are doubtful

whether Lambert has properly exhausted

this claim. This appears to be the first

proceeding where she raised this claim.

We address it nonetheless because it is

meritless and we can therefore dismiss it

under 28 U.S.C. § 2254(b)(2). See Gattis,

278 F.3d at 237.
60

283 F.3d at 837; Emuegbunam, 268 F.3d

377 at 400; Vavages, 151 F.3d at 1188;

Saunders, 943 F.2d at 392; Pinto, 850

F.2d at 932. 

Whether substantial interference

occurred is a factual determination. See

Bieganowski, 313 F.3d at 291; Vavages,

151 F.3d at 1188; Pinto, 850 F.2d at 932.

On direct appeal we review a district

court’s determination regarding substantial

interference for clear error. Here, we apply

the deferential standards of § 2254(d)(2)

and § 2254(e)(1). 

The issue of Kenneff’s contact with

Mihalakis came up during the trial.

Lambert filed a motion asking the Court to

sanction theCommonwealth for Kenneff’s

pre-trial contact with Lambert’s expert

witness. Judge Stengel held a hearing in

order to decide Lambert’s motion. 

At the hearing, Kenneff indicated

that he was upset upon learning,

approximately a week before trial, that

Mihalakis was going to testify as a defense

witness. Mihalakis was under contract to

work as an expert for Lancaster County,

and Kenneff felt that as a result he would

be unable to discredit Mihalakis at trial.

Kenneff contacted Mihalakis even though

Lambert’s attorney, Roy Shirk, would not

give his consent. Kenneff told Mihalakis

about his concern, and Mihalakis offered

to withdraw if Judge Stengel found that

his contract with the County precluded

him from acting as an expert for Lambert.

Kenneff told him not to withdraw because

it would only cause a continuance. 

After Judge Stengel heard from

Shirk, Kenneff, and Mihalakis, the

following colloquy occurred: 

THE COURT: [Y]ou’ve

done your examination and

you have your opinions that

you are going to state as

part of this case, I take it.

DR. MIHALAKIS: Yes. I

have a consultative letter.

THE COURT: What is the

date of that letter? About

when was it written to him?

D R . MIHALAK I S :

(Looking at document.)

June 29. 

THE COURT: All right.

And I take it that your

testimony would be

consistent with that

consultative letter. 

DR. MIHALAKIS: I would

hope so, yes. 

THE COURT: Okay. Is

there anything about the

discussion you had with Mr.

Kenneff that causes you to

not say what was in that

letter?

DR. MIHALAKIS: No, I

don’t believe so.

THE COURT: Did you feel

threatened or intimidated or

coerced by that discussion

you had with Mr. Kenneff?
61

DR. MIHALAKIS: No, sir,

I did not. 

THE COURT: Okay. 

DR. MIHALAKIS: Okay.

Mr. Shirk, are you aware of

any rule of professional

conduct that prevents an

attorney in a criminal case

from contacting an expert or

a witness who would testify

for the other side?

MR SHIRK: No, I’m not.

THE COURT: Are you

aware of any such rule?

MR. KENEFF: I’m not

aware of a rule.

THE COURT: I’m not

aware of any such rule.

Okay. Based upon my

review of the motion for

sanctions before today and

before our hearing, this

date, and based upon the

discussion we’ve had here

on the record in chambers,

and the candid and frank

comments of Doctor

Mihalakis, Mr. Shirk and

Mr. Kenneff, I’m going to

deny the motion for

sanctions.

App. 374-75. The trial court found, in

effect, that the government had not

substantially interfered with Mihalakis’s

choice to testify.

The PCRA Court reached the same

conclusion after hearing additional

evidence on the matter. The Court

concluded: “It was arguably improper

conduct with some justification under the

circumstances. The bottom line is that it

did not affect the witness’s testimony at

trial. He testified consistent with his report

and his testimony was no surprise to

petitioner’s counsel.” PCRA Decision

195. The trial court’s determination was

reasonable given the record before it.

Lambert did not adduce evidence at the

PCRA hearing that would rebut the trial

court’s factual finding, and the PCRA

Court’s determination was reasonable

given the evidence before it.

Lambert’s trial counsel, Roy Shirk,

testified at the PCRA hearing regarding

the circumstances surrounding the

procurement of Mihalakis as an expert for

Lambert. Shirk and Richard Jeffries, a

private investigator working for the

defense, decided to seek Mihalakis’s

services to offer an opinion about whether

Show could have spoken after the attack.

They asked Mihalakis to answer four

questions after reviewing a group of

relevant materials, including Show’s

autopsy report and crime scene

photographs:

1) How long would Laurie

Show have lived after the

wounds were inflicted?

2) What wounds were fatal?

3) Could Laurie Show say

anything afterward; could
62

she have said, “Michelle did

it”?

4) How many persons were

involved in the stabbing,

one, two or more? Were

they male or female and

right or left handed? Any

signs of a male person being

involved?

Appellate App. 1635. Mihakalisresponded

that the “neck wounds and the right back

wound are fatal wounds,” and that Show

“could have survived multiple minutes, but

I doubt very much whether she could have

survived a full half hour.” He further

opined that Show’s wounds “would

certainly limit but not totally eliminate

phonation, especially words and letters that

involve the tongue.” Finally, Mihalakis

offered an opinion based on the fact that

the tip of the knife used to kill Show had

broken off. He had taken an identical

knife, placed it in a vise, and bent it until it

broke. He wrote the following:

By the time the knife broke,

I was exerting considerable

force. While such force is

not beyond the capability of

an average male or female,

the fact remains that the

knife had to have been

wedged someplace in the

body, possibly even bony

tissue and then bent back in

such a way as to break. . . .

If it was so deeply wedged

in bone, I doubt whether a

girl could pull the entire

maneuver of insertion and

bending to the point of

breakage.

App. 1636.

After reading Mihakalis’s report,

Shirk determined that it would not be

worth hiring Mihalakis because “[q]uite

frankly, it wasn’t going to help us a lot.”

App. 6537-38. After speaking with

Mihalakis a few times, however, Shirk felt

that Mihalakis would be able to offer

testimony that would support Lambert’s

case. Shirk explained:

I’d like to be very

clear on this. He had

indicated to me at all times

that he would not be able to

say, to a degree of medical

certainty, that Laurie Show

could not talk.

However, he was

willing to testify that he

believed that she did not.

That he didn’t think she

could have. And the reason

he thought she would not

have been able to say what

she reportedly had said had

to do with certain vowels

and so on and so forth . . . 

Basically I expected from

him, and this was not only

after one phone call, but it

was after, as I indicated, two

or three, testimony that he

would not say she could not

talk, to a degree of medical
63

certainty, but it certainly

was his impression, as an

expert, that she did not, and

that she did not for these

reasons, and going into the

explanation of the vowels

and so on and so forth that

would have to have been

used to say the words that

were purportedly [sic] to

have been said.

In addit ion , I

expected testimony from

him that he did not believe

that a female could have

broken off the knife the way

it was broken off. 

Now, that evolved

over a period of, I don’t

know, a week, a week and a

half, or maybe not that long.

Several da ys anyway.

Wherein he modified what

appears to be here. It was

done over the telephone and

it was at that time I

indicated that I wanted him

to testify.

App. 6538-39. 

Shirk testified that Kenneff became

“angry” and “upset” when Shirk told him

that Mihalakis was going to testify for the

defense. Kenneff was angry because “the

District Attorney’s office felt that they had

him under contract.” And he asked if Shirk

would mind if he telephoned Mihalakis.

Shirk said he would rather Kenneff not

call Mihalakis until after the trial.

Yet Kenneff contacted Mihalakis

nonetheless. Mihalakis testified that

Kenneff sounded “displeased.” Kenneff

testified that it was his understanding that

Mihalakis could not testify for a defendant

because he was under contract to be an

expert for the Commonwealth. Mihalakis

told Kenneff that he thought he could

contract to give his services to whomever

he desired. “I express to him that I was

surprised he was doing this,” Kenneff

testified, “I was concerned about our

ability to handle this case properly, given

his association with us.” App. 5089.

Mihalakis offered to withdraw as a witness

for Lambert “[i]f it was going to

complicate future cases,” but Kenneff told

him not to. App. 5509. They also spoke

generally “about the autopsy report and my

[Mihalakis’s] feelings and whether or not

you could enunciate anything.” App. 5506.

As described above, Shirk moved

for sanctions at trial and Judge Stengel

denied Shirk’s motion because he found

there was no indication that Kenneff’s

conversation with Mihalakis had

intimidated him. Shirk conceded as much

at trial, stating to Judge Stengel: 

I asked [Mihalakis]

quite frankly if this would

affect his testimony in any

way, shape or form. I think

the exact word I used was

whether he would pull his

punches. He indicated to me

he would not.

. . . [H]e indicated to

me that in no way, in any
64

way would it affect his

testimony Friday. I can

honestly say to you at this

point there is no way it has a

chilling effect. He hadn’t

been on the stand. I think

he’s an honorable enough

man that it will not have a

chilling effect.

App. 369. Yet Shirk testified at the PCRA

hearing that he was, in fact, “angry” and

“surprised” by the content of Mihalakis’s

testimony. App. 6540. And he and his cocounsel, Alan Goldberg, decided to get

Mihalakis off the stand as soon as

possible.

The PRCA Court determined that

Mihalakis’s testimony was consistent with

the report he had provided to the defense,

and we agree. Mihalakis testified that

“[t]he cause of death is a cutting wound of

the throat and a stab wound of the right

chest.” App. 380. And given her wounds,

he testified, it would have taken Show

“multiple minutes” but “considerably less

than a half hour” to die. App. 386. With

respect to Show’s ability to say “Michelle

did it,” Mihalakis testified that “[i]t would

have to be affected in part”: 

Ma is predominantly

a lip sound, and the tongue

and lips are controlled by a

different set of nerves so the

ma sound should not’ve

been affected. If it was

affected it was to a minor

degree.

The Chael may have

been somewhat less clear

and the da may have been

somewhat less clear.

App. 390. Finally, Goldberg questioned

Mihalakis about the tip of the knife that

had broken off and whether a woman

could have broken the knife. Mihalakis

testified that “[t]he function of the break is

not gender related, it is strength related,

deliberateness related. If someone is strong

enough, they could certainly break the

knife . . . .” App. 398. Yet he opined that

“[w]hile it is not beyond the realm of a

woman, it would really make it extremely

unlikely, very unlikely.” App. 399.

Futhermore, the PCRA Court

determined that Shirk had no reason to be

surprised by Mihalakis’s testimony.

Mihalakis expressly stated before Judge

Stengel that he would testify consistently

with the report and that his conversation

with Kenneff would not prevent him from

saying “what was in the letter.” App. 374.

Mihalakis’s statement should have

disabused Shirk of any notion that

Mihalakis might materially depart from his

opinions in the report. 

To be sure, we do not believe that

Kenneff’s contact with Mihalakis was

entirely appropriate. At the very least,

Kenneff displayed a lack of judgment. Yet

not every lapse of prosecutorial judgment

violates the Constitution. Here, Lambert

had to show that Kenneff substantially

interfered with Mihalakis’s choice to

testify. The PCRA Court’s conclusion that

there was not substantial interference was,
65

given the evidence before it, well within

the bounds of reason.

 

7. The River Search

After receiving information from

Yunkin and Lambert regarding their

disposal of evidence in the Susquehanna

River, law enforcement officials

conducted a search of the river on

December 21, 1991. The police were

specifically looking for “a pink plastic bag

containing at least one pair of sneakers.”

Appellate App. 1561. They found a knife

and a pink plastic bag. The police videotaped the search and provided Lambert’s

counsel with an edited version of the tape.

The police conducted another, more

extensive search two days later, on

December 23, 1991. Using a dog

“scented” with Buck’s sweater, the police

found a piece of white nylon rope. The

police also found a sneaker. The December

23 search was not video-taped. 

The police did not indicate in any

reports regarding the river searches that

they found a pink bag or a sneaker, nor did

they in any way inform Lambert about the

finds. A police report provided to Lambert

indicated that the rope was found, but it

did not indicate that it was found using a

dog scented with Buck’s sweater. 

We discern four arguments of

constitutional error from the unstructured

discussion of the river searches in

Lambert’s brief. First, Lambert argues that

the government violated Brady by failing

to inform her that they found the pink bag

and sneaker. Second, she appears to argue

that the government knowingly elicited

false testimony at the trial that the police

never found a pink bag or sneakers. Third,

she argues that the government violated

Brady by failing to inform Lambert that

the rope was found using a dog scented

with Buck’s sweater. Finally, Lambert

appears to argue that the government

violated her due process rights by

destroying exculpatory evidence (the pink

bag and sneaker) prior to trial.

a. Brady Violation

Concerning the Pink Bag

and Sneaker

Again, to make out a Brady

violation Lambert must show that (1) the

government withheld evidence, either

willfully or inadvertently; (2) the evidence

was favorable, either because it was

exculpatory or of impeachment value; and

(3) the withheld evidence was material.

See Banks, 124 S. Ct. at 1272. The PCRA

Court found that the pink bag was not

exculpatory and that, in any case, the

police did not withhold the pink bag’s

discovery from Lambert. With respect to

the sneaker, the Court found that it was not

exculpatory. Once again, the PCRA

Court’s determinations were reasonable.43

43 Throughout this decision we

have found the PCRA Court’s factual

determinations to be “reasonable,” which

is the standard that we must apply under

AEDPA. We note, however, that
66

The edited version of the videotape

provided to Lambert shows an empty pink

bag embedded in ice. Indeed, Lambert’s

counsel testified at the PCRA hearing that

he saw the pink bag in the videotape but

did not question police witnesses about it

at trial because he “assumed it was a bag

that had nothing to do with this case.”

App. 6461, 6637. The pink bag was

therefore disclosed to Lambert. Needless

to say (though apparently we must), Brady

does not require the government to inform

a defendant about information that the

defendant possesses. See United States v.

Hill, 976 F.2d 132, 136 (3d Cir. 1992);

Fullwood v. Lee, 290 F.3d 663, 686 (3d

Cir. 2002) (“Certainly . . . information that

is not merely available to the defendant but

is actually known by the defendant would

fall outside of the Brady rule.”). Put

differently, evidence is not “suppressed” if

the defendant knows about it and has it in

her possession. 

Detective Ronald Barley testified

about the sneaker. He estimated that it was

approximately a size six or seven sneaker,

and it was a white “old type hightop

sneaker with the laces.” Appellate App.

1157. More importantly, however, he

testified:

The sneaker was stained

brown from being in the

mud. And around the sides

of the sneakers it had what I

would call black rot and

threads in that area of black

rot were beginning to rot

away from the material and

I felt that the sneaker was in

there for a lot longer than

three days to get in that

condition.

App. 3466-67. The government need not

provide a blanket disclosure to a defendant

regarding all evidence found during an

investigation. “[T]here is ‘no constitutional

requirement that the prosecution make a

complete and detailed accounting to the

defense of all police investigatory work on

a case.’” Agurs, 427 U.S. at 109 (quoting

Moore v. Illinois, 408 U.S. 786, 795

(1992)). If the police had found a rusty

Swiss army knife during the river search,

for example, it certainly would not have

violated Brady if they failed to disclose the

find to Lambert. The state does not have

an “‘obligation to communicate . . .

speculative information.’” Id. at 110 n.16

(quoting Giles v. Maryland, 386 U.S. 66,

98 (1967) (Fortas, J., concurring)). 

Lambert argues that it was

unreasonable for the PCRA Court to credit

Barley’s PCRA testimony because he “lied

about not finding a sneaker or pink bag in

1992” and Lambert did not have the

reasonableness is a continuum. Some

determinations might be more or less

reasonable than others. Some

determinations on the “less reasonable”

side of the reasonableness continuum

might have been determinations that we

would not have made in the first instance

but that we must accept under AEDPA.

None of the determinations the PCRA

Court made, however, fall along that

stretch of the continuum. 
67

opportunity to “cross-examine” him at the

PCRA hearing. Lambert Br. 89. As we

describe below, however, the PCRA Court

reasonably found that Barley did not “lie.”

And, as we explained above, we do not

believe that Lambert’s inability to ask

Barley leading questions obviates the

probative value of his testimony. 

b. Knowing Use of 

Perjured Testimony

The following exchange occurred

when Lambert’s counsel cross-examined

Barley at trial:

Q. How many items were

you searching for [at the

river]?

A. Specifically, I was

looking for sneakers.

Q. All right. 

A. We were not sure what

else we were looking for.

Q. You were told there were

sneakers there?

A. Supposedly, yes.

Q. You weren’t told there

was a knife and a rope

there?

A. No.

Q. Were you told to look for

a bag?

A. Yes, another trash bag.

Q. Another trash bag?

A. That’s correct. 

Q. Containing sneakers?

A. That’s right.

Q. That’s all it contained?

A. There was other items;

did not know what else was

in it.

Q. Did you ever find

sneakers?

A. No.

Q. Did you ever find a trash

bag?

A. No. 

App. 188. Examined in isolation, Barley’s

testimony that he did not find “sneakers”

or “a trash bag” appear to indicate that he

did not find any trash bag or sneakers. The

PCRA Court read Barley’s testimony in

the context of Shirk’s questioning,

however, and it concluded that Barley

testified that he had not found the pink bag

and sneakers that the police were seeking.

The Court made this determination

in part because Shirk similarly interpreted

Barley’s testimony. Shirk testified at the

PCRA hearing that he did not impeach

Barley with the video of the river search,

which showed that they found a pink bag,

because he felt that the bag in the video

was not relevant to the case. As the PCRA

Court explained:

As Mr. Shirk’s testimony

reveals, it is reasonable to

interpret Detective Barley’s

answer as a denial that a

trash bag with evidence in
68

it, i.e., Mr. Yunkin’s

sneakers, the rope, the knife,

two pairs of sunglasses and

the hats, was found during

the search.

PCRA Decision 217. We agree. Implicit

assumptions often underlay conversational

exchanges, so that a participant in the

exchange can communicate more

information than what his words would

mean in isolation. See Henry E. Smith,

The Language of Property: Form, Context,

and Audience, 55 Stan. L. Rev. 1105, 1131

(2003) (“More can be communicated than

what is explicitly said, and this can occur

by means of conversational implicature.”)

(citing Paul G rice, Logic and

Conversation, in Studies in the Ways of

Words 22, 26 (1989)). Here, it was

reasonable for the PCRA Court to infer

that when Barley responded to Shirk’s

question he did not mean that he did not

find any bags or sneakers at all. Rather, he

meant that he did not find bags and

sneakers within the parameters of those the

police were looking for; but the pink bag

he found was embedded in ice and the

sneaker was decomposed. It follows from

this determination that Barley did not

“lie,” and the government did not

knowingly use perjured testimony. 

c. Brady Violation 

Concerning the Rope

At the PCRA hearing, Allen Means

explained how a bloodhound found the

nylon rope after it was “scented” with

Buck’s sweater. Means, the dog’s handler,

testified that he called over an individual

named John Forwood to come retrieve it.

But the police report from the river search,

which was provided to Lambert, stated: 

A white sweater worn by

def. Tabatha Buck was

brought to the scene by

myself for use of the

bloodhound. . . . The dog

was unable to locate any

evidence. A foot search was

conducted along the banks

and wooded areas. At

approx. 1045 hrs. John

Forwood of W.E.S.T. found

white nylon rope on the

bank approx. 2 feet south

from where the knife was

found the previous day.

Appellate App. 1563. Thus, Lambert never

learned that the rope was found using a

dog scented with Buck’s sweater. 

The PCRA Court determined that

the government did not violate Brady by

failing to turn over this evidence because

the fact that the dog was scented with

Buck’s sweater was not exculpatory.

Lambert argues that the PCRA Court’s

determination was erroneous because

Buck’s scent on the rope was “inconsistent

with the Commonwealth’s theory of the

case (that Lambert killed Show while

Buck passively watched).” Lambert Br. 90.

But Lambert mischaracterizes the

government’s position at trial. We have

come across no portion of the trial record

where the government contended that

Buck “watched passively” while Lambert

murdered Show. The government never
69

disputed that Buck was present in Show’s

apartment and involved in the murder, and

the presence of her scent on the rope

neither inculpates nor exculpates Lambert.

As the PCRA Court explained, “just

because Ms. Buck’s scent was on the rope

does not mean that Ms. Lambert’s was not.

There was no testimony that the dog

attempted to trace Ms. Lambert’s scent and

failed. This ‘evidence’ that Ms. Buck’s

scent was on the rope does not exculpate

Ms. Lambert.” PCRA Decision 141. We

agree. The PCRA Court’s determination

was not contrary to or an unreasonable

interpretation of federal law. 

d. Destruction of Evidence

Lambert appears to argue that the

government violated the Constitution by

failing to preserve the pink bag and

sneaker. The Supreme Court’s decisions in

California v. Trombetta, 467 U.S. 485

(1984) and Arizona v. Youngblood, 488

U.S. 51 (1988) establish standards for

determining whether the government has

infringed on a defendant’s due process

rights by failing to preserve evidence. See

United States v. Ramos, 17 F.3d 65, 69 (3d

Cir. 1994). Of relevance here is the

requirement of bad faith on the part of the

government. In Youngblood, the Supreme

Court held that “unless a criminal

defendant can show bad faith on the part

of the police, failure to preserve potentially

useful evidence does not constitute a

denial of due process of law.”

Youngblood, 488 U.S. at 58; see also

United States v. Stevens, 935 F.2d 1380,

1387 (3d Cir. 1991). 

The PCRA Court determined that

Barley discarded the sneaker because he

felt that, given its decomposed state, it

could not have been Yunkin’s sneaker.

Other than spurious allegations and

shadowy conspiracy theories, Lambert

offers no evidence that suggests Barley

acted in bad faith. 

IV. CONCLUSION

After thoroughly examining

Lambert’s claims, we find no merit in

them. To be sure, the Commonwealth

should have turned over Bayan’s

statement to the defense prior to trial and

we do not endorse the prosecution’s pretrial contact with Lambert’s expert. But

neither flaw warrants habeas relief.44

There lurks in the background of

this decision the fact that one federal

district judge -- Judge Dalzell -- found

Lambert “actually innocent” and

characterized the government’s conduct as

“the worst case of prosecutorial

misconduct in English-speaking

experience.” Lambert v. Blackwell, 205

F.R.D. 180, 182 (E.D. Pa. 2002). After a

comprehensive review of the record, we

conclude that these findings are wholly

insupportable.

44 We also reject Lambert’s

argument that the writ should be granted

based on the “cumulative effect” of the

alleged constitutional violations. The few

errors we have identified, taken together,

had no material effect on the trial.
70

The writ of habeas corpus, as

implemented by the statute, empowers a

federal court to overturn a state conviction

only when it is contrary to federal law or

an unreasonable application of law or

determination of the facts. Comity and

finality, as embodied in the statute and

emphasized by the Supreme Court,

mandate considerable deference to the

determination of the state fact-finder and

appellate courts.

Regrettably, the initial habeas

decision here upended these fundamental

principles of comity and finality. In

concluding that Lambert was actually

innocent and that her prosecutors were

guilty of horrendous misconduct, Judge

Dalzell effectively permitted Lambert to

retry the criminal case -- with hindsight --

in a federal courtroom. Judge Dalzell’s

initial opinion reversed the traditional

approach to reviewing convictions, see

Glasser v. United States, 315 U.S. 60, 80

(1942) (every inference in favor of

verdict); he effectively drew every

inference against the verdict, and accepted

Lambert’s view that every discrepancy

between her version and the state’s

established that the state was acting in bad

faith. As a consequence, the first habeas

decision treated every dispute in testimony

as state perjury, and every minor

inconsistency as momentous. The costs of

this misguided approach in terms of

comity and finality are very substantial.

By contrast, the decision of the

second District Judge -- Judge Brody --

properly weighed the evidence and applied

the law under the principles of federalism

and finality mandated by the statute. We

agree with Judge Brody that Lisa Michelle

Lambert was not “actually innocent,” and

was not the victim of a miscarriage of

justice or gross prosecutorial misconduct.

A careful, dispassionate review of the

entire record convincingly demonstrates

that Lambert’s trial was fair,

constitutionally correct, and wellsupported by the evidence. Accordingly,

there is no reason to disturb the

conviction. We will affirm Judge Brody’s

denial of the writ.