2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al

D ocke t N o . 03-2282

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Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a U niv e r sit y S choo l of L a

w Di g it al Re posit or y

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### 1 PRECE DENTI AL

UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

Nos. 03-2282, 03-2383

LISA MICHELLE LAMBERT,

Appellant

v.

CHARLOTTE BLACK WELL (ADMINISTRATOR OF THE EDNA MAHAN CORRE CTI ONAL FA CIL ITY FO R W OM EN ); THE ATT ORNEY GENER AL OF TH E ST AT E O F PE NN SY LV AN IA

On Appeal from the United States District Court for the Easte rn D istrict of P enns ylvania (Dist. Court No. 01-cv- 2511) Distri ct Judge: Hon. Anita B. Brody

Argued: January 12, 2004
Before: ALITO, CHER TOFF, and BE CK ER , Circuit

Judges

.

(Fil ed: October

12, 2004) Peter S. Greenberg, Esqui re (Argued) Nan cy Winkelm an, Esqu ire Jonathan S. Liss, Esqu ire Han Ngu yen, Esquire Schna derHarr is on Seg al & Lewis LLP 1600 Market Stree t, Sui te 3600 Philadelphia, PA 19103
Counsel for

Appellant

/Cross- Appellee

Gerald J. P appert AttorneyGeneral William H . Ryan, Jr. Exe cutive De puty A ttorney G enera l, Criminal Law Division Amy Zapp (Argued) Sen ior D epu ty Atto rne y Ge ner al, Cap ital Litiga tion U nit Jerome T. Foer ster Sen ior D eputy A ttorney G enera l, Appeals and Legal Services Sect ion Office of The Attorney General 16 th Floor, Straw berry Square Harrisbur g, PA 17120
Counsel for

Appellee/

Cross-Appell

ant

OPINI ON OF THE COURT

TABLE OF CONTENTS

I. BACKGROUND

.............. 3
A. The Trial

.................. 4
1. The Co mmon wealth’s Case 5
2. Lambert’s Case

.......... 9

### 2

B. Proced ural History

......... 14
II. JURI SDI CTI ON AND STANDARD O F REVIEW

..... 18
II I. DIS CUSSI ON

............... 19
A. Exhaustion

................ 20
B. Deference

................. 23
C. The M erits

................ 34
1. The Sw eatpa nts

......... 35

a. Knowing Use of Perjured Testimony

.......... 35
b. “Switching” Evidence

. 39
2. Eviden ce of Y unkin’s Location Duri ng the Murder

................ 42

a. Knowing Use of Perjured Testimony

.......... 44
b. Suppressi on of Brady Material

............ 49
3. The “29 Q uestions”

...... 51
4. The Crime Scene Photographs

............ 54
5. The Dying Declar ation

... 57
6. The DA ’s Co ntact w ith Lam bert’s Trial Exp ert

... 59
7. The River Search

........ 65

a. Brady Viol ation Concerning the Pink Bag and Sneaker

......... 65
b. Knowing Use of Perjured Testimony

.......... 67 c. Brady Viol ation Concerning the Rope

. . 68
d. Destruction of Evidence

........... 69
IV. CONCLUS ION

............ 69

CH ER TO FF , Circuit

Judge

. 

### Be fore us, after a lengthy journey up and down the s tat e and federal justice systems, is the ha

be as p etition of L isa Michelle Lambert. Lambert is curren tly servinga life s entence without the possibility of parole f or first deg ree mur der. Judge Law rence Stenge l of th e Courtof Com

mon Pleas for La

n caster Co un ty, Pe nnsy lvania i mposed t h e sentenceon Lamber

t after he found Lambert guilty a t a bench trial he ld in July of 1992. Lambert initially appealed her convicti on in the Penn s ylvania state courts, which rejected her claims on direct appeal. She thereafter filed a petit ion for a writof habeas corpus in federal district court. After holding a hearing over the
course of thre e weeks, Judge Stewart Dalzell of the Eas tern Dis trict of Pennsylvania found Lambert “actually innocent” and grante d her p etition. He specifically barred any retrial. Lambert was released into t he custody of her attorn eys o n April 16, 1997, but her freed om was short-lived. Less than a ye ar later, t

his Court vacat e d theDistrict Court’s j udgment du e to Lambert’s failure to exhaust her available state cou rt reme die s, namely collateral

### 3

review pursuant t

o thePen nsylvania Post Conviction

Relief Act (“PC RA”). Lamber t consequent

ly returned to state court, where
aPCRA C ourt (again Ju dge Steng el) held
asix-week hearing and deter m ined in a compre hensive opinion that reli ef

under the PCRA was not warr anted. After the Pennsy

lvania Supe

rior Cou rt affirmed the PCRA Court’s decisi on, Lamber

t not surprisingly

re-filed her federal h abeas petition. Ju dge Dalzell held that the state c ourts’ findings were null and void because they l acked jurisdictionto hear La mbert ’s PCRA p et ition. He then reinstat ed his findings from the 1997 habea s hearing a nd gave theparties a month to request additional testimony on topics that the Court

had not addr es sedin 1997. In the meant ime, the Commonwealth sought Judge Dalzell’s recusal. Judge Dalzell event uall y acquie sced to the Commonw ealth’s effo rts at recusal, an d the case was assign ed to Judge Anita Brody

of the Eastern District of Pennsylvania. Judg e Brody dis mis sed Lambert’ s habea s petition afte r determ in ing, contrary

to Judge Dalzell’s rul ing, that the PCR A Court’s f indin g s were not null an d void and were entitled to deference under the Antiter rorism and Effectiv e D eath Pena

lty Act of 1996 (“AEDPA”). Lambert now a ppeals fro m that judg ment. This case presents a

h os t of
sen sitive issues. At one level ar

e the v er y serious allega

tion s of prosecu toria l misconduct

that Lam

bert ar gues requi

r e he r release. But im portant institutional
concernsalso infuse th is case. A state court and a federal court re a ched diametrically

opposed concl

usions, a nd two federal cou rts took sub st ant ially different views of the state c our t proce edings. This unusual histor y highligh ts the need to re spect the limits of federal habeas review , a s well a s the principle of comity

that informs that revi ew. Simply put, a h abea s cour t re views
astate convi ct ion to determine whether a state prisoner is in custody in violati on of theConstitutio n or laws or tre atie s of t he United S tates ; the fede

ral cour t is not mandated to retry the case and substitu te its own verd ict.
We conclude that the PCRA Court decisi on h ere was indeed e ntitled to deference. After ca

refully reviewing the
e ntire record a

nd apply ing that deferenc e de no vo, we concl

ude that t

he PCRA Court’s dete rminat ions were we ll

supported and requ ire that we deny Lambert habeas r elief. Pu t mo re si mp ly: Lambert’s trialwas fair, a mply supported, andnot infect

ed by mate rial e rror or injustic e. We will affir

m the de nial of the writ by Judge Brod y. I. BACKGROUND At the ce n ter of thi s content ious
case lies the brut al murder of L aurie Show. Show d ied from knif e wounds—stabsto her back and slashes to her throat—inf licted on her b y intruders in her home on themorning of Decembe r 20, 1991. She was f ifte en year s old at th e time of her de ath.

### 4

The in ve stigation of Show’s murder quic k ly z eroed in on three individu als: Lisa Michelle Lambe rt, Tabitha Faith Buck, an d Lawrence Yunkin. The police

arres ted Lam

bert and Yunkin on outstand

ing warrant s on the day of Show’s mur

der. Upon ques tioning, they bot h ad mi tted their involv ement in theattack on Sh o w; and they both impli cated Buck. The Lancaster County District Attorney eventually

charged La

mbert and Buckwith criminal

homici de and Yun kin with hindering a

pprehensi on. 1 

### Lam

b ert
wa ived her right

to a jury

trial , and a week-longbench trial wa s held be fore Judge Lawrence

Stengel of t

he Co u rt of Common Pl ea s f or La nc as te r C ou nt y, Pennsylvania.
A. The Trial
It hardly needs to be

said that in our adversarial

sy stem of justice , the opposing p arties—in a criminal case, th e prosecution and defens e—typicall y advance two radic ally

different versionsof events. This case is no exceptio n. To be sure, t he governm ent and defense ag reed

on broadly

what happene d: Yunkin and Lambert were r omantically involved and lived together , but their relationship en te re d a n e ig ht -d ay hia tus
overthe s ummer of 1991 . During th ose eight days, Yunkin dated Laur ie Show. Lambert and Y unkin ev entually resumed their relatio nshi p, and there was realanimos ity

between La

mbertand Show. So, in July 1991, Lam be rt devised
a plan to enlist the help of several other teenagers to humiliate Show by luring her out of herhome, cutting off her hair, a nd tying her up to a pole wit hin the Cit

y of L ancaster. The plan did not come t o fruition because two of the girls involved event ually warne d Show. Month s l ater, on Decem ber 19, 1991, someone called Laurie Show’s mother, Ha ze l Show, claiming to be her daughter’s guidance counselor. The caller scheduleda meeting with Hazel Show for 7 a.m. the followin g morning at th e pr i ncipal’s office of Laur ie Show’s hi gh school. The next m orning Yunki n, Lambert, a nd Buck drove to t he condomini

um complex where Show’s home was located. They bro ugh t with them a knife from

Yunkin’s and Lambert’s home and rope and two black knit hats tha

t Lambe rt had purchased the previous day

at K-Mart. Sometime ar

ound 7 a .m., while Hazel Sho w was out to attend the “mee

ting” she thought she would have with her daughter’s “guidance counselor,” Laurie Show was home alone. 1 

### The District Attorney

enteredinto
a plea ba

rgain wit

h Y unkin that conditioned the hinder

ing apprehension charge on hi s giving tr

uthful testimony

at Lambert’s trial. The Comm onwea lt h revoked the original plea bargain because,
as we explai n m ore fully below, it determ ine d that Yunk in was not en tirely truthful. As a res ult, Yunkin eventually pled guilty t

o third degree murder.

### 5

Lambert and Buc k entere d the Show residence. A struggle

ensued during whi ch
someone stabbed Show a

nd slit her throat. Lambert, Bu ck, and Yunkin (whos e precise whereabouts during an d involvem ent in the m elee with Show , as we ex plain more fully

below, was disputed at trial) dro ve away from th e condomini

um complex togeth er. The three of them devised an a

libi, a nd Yunkin and Lambert dropp ed Buck o ff at schoo l. Lambert a nd Yun kin the n proceede d t o discar

d evidence

from Show’s murder. They

washed clothes
wor n dur ing the m

urder, put

them in a bag, and threw t

hem int o a dum pster behind K-M art. They

threw a bag containing, amo ng othe

r things, t he kni fe and rope in to the Susq uehanna R iver. Within these general co ntours, however, the governm

ent and d e fense presentedJudge Stengel with dive rging versions of what h ap pened . Th e Commonwealth arg ued that La mbert hate d Show and was dee pl y i nvolved in the planning and e xecut

ion of Show’s murder. Lambert argued that Yunkin and Buck
were to blam

e andthat she tried

to prevent them from murdering S how. Our role is not , of co urse, to determ inethe ve

rac ity of e ith er account. Rather, we are c onfined to a scert aining whether any c onstitutionalerror occurred at Lambert’s trial . Yet the

parties’ factual contenti ons at trial provide the nece ssary fram ewo rkfor understanding Lambert’s detailed claims of error . M any of her claims involve allegati ons that t he governme

nt knowingly use perjured testi mony and suppres sed evi denc e tending t o su pport her v ersion of ev ents. We therefor

e rela te in som

e detail the evidence the parties presented at trial and theinferences th ey urged Judge Sten gel to make from that evide nce. 1. The Commonwealth’s Case The Commonwealth called several wi tnesse s whose tes timony tended to s how that Lambert hated Show. Severaltestified that the y heard Lam

bert sa y num erous ti mes that she wa nted t o kill Show. Tw o of Lambert an d Yunkin’s neighbors swore, f

or example, that Lam ber t repeatedly said she wante d to “beat [Show] up” and “get

her out of the way andkill her .” App. 690, 701. 2 

### Three wit nesses testified that they hea

r d Lambert, on atleast

one occasi on, ment

ion slitting Sho w’s throat. 3


### Several witnesses rela

tedincidents invo lving Lamber

t and Sh ow tha t occurredduring the m

onths lea ding to

2 

### Citations to th e Append ix (“App.”) refer to the record before Judge Brody

. Citations to the Appellate Appendix (“Appellate App.”) refer t o the appendices the p arties su bmitted on appeal to this Cou rt.

3 

### Laura Thomas, Floy

d Th omas (Laura’s fathe

r), and Ki mo na Warner testified about an inc ident

in the backya

rd of the Thomas r esidence where Lambert said she was going to “cut”or “slit” Show’s throa

t. App. 718-19, 739, 757.

### 6

Show’s mur der. A number of Lambert’s cohorts in the thwa

rted plan to abduct Show and tie her up to a pole in Lancaster, for exam ple, te stified about the pl an. Others testified about phy sical alt ercat ions that occurred betwee n Lambert and Show. Hazel Show testified about an incide nt that oc curred in J u ly

of 1991. While Hazel Sho w was waiting in her car to pi ck u p Lau rie from her job at themall, she saw La

mbert grab Lauri e and push her into a wall. Hazel Show reported what happened to the police. 4


### Hazel Show also testified tha t on Au gu st 20, 1991, Lambert approached Ha zel and Laurie

while the

y we re out shopping. Lambert “c am e up and started
sc r eaming and y elling a ll kinds of obs cen ities and just b eing very vicious.” App. 827. One thing Lambert scream ed
wa s that sexual relat

ions had occurred between Yunkin and Lauri e Show during theirbrief relations hi p . Hazel Show told Lambert that Yunki n had raped her daughterLaurie, and th at they might press charges if Lambe

rt continued to ha rass Lau rie. In fact, Laurie Show had made a report to police on Ju ly 31, 1991 that Yunkin had date raped her. Anotheralter

cation occurredin the parkin g lot

of the East

Towne Mall on November

22, 1991. Sho w was in the par king lot with s ome fri ends, inc luding Randy Rodriguez a nd Jacque lin e Weakla nd. Weakland testified that as they stood talking next to Rodr

igu ez’s t ruck, Lambert — who w as pregnan t — approached Show a

nd began scr

eaming that Show had

ruined her (La mbert) and her (as yet unborn) baby’s life. Rodriguez testified that Lambert beat

Show’s head against the cab o f his truck. Acco rding to Rodriguez, Lamber

t said t hat if she found out Show to ld th e p olice a bout the incident she had “ fri ends that

would take
careof” Showand she woul d kill Show. App. 777. Weakla nd also te sti fied that Lamber t said s he was going to kill Show. Hazel Show learned what happene d
an d, despite Lambert’ s threats, re ported theincident

to the poli ce tha

tsa me da y. The police did n ot begin to investigate the incident, however, unt

il December16, 2001. John Bowman, of t

he East Lampeter Townsh ip Pol ice D epar tme nt, testified tha t he began by

contact ing S how and Weakla nd about the inc ide nt. He also called Lambert’s parents to try to find her current address, whichthey

were unab le to provide to him.
A fri end of Yunkin’s, Lawrence Lamparter, relat

ed an enc ounter he had with Lambert on De cember 18, 200 1, a couple of da ys before Show’s murder. Lamparter

ran into La

mbert at the mall. She told Lamparter that th e poli ce were looking for

her beca use she had assaulted Show. She also t

ol d him that Show was going to charge Y unkin w ith rape and that “shewas going to ge

t Laurie .” App. 793. 4 

### Sergeant Carl Ha

rnish of the Pennsylvania State Police test ified that upon her arrest Lam

bert admit ted that she had physically ass a ulted Show in J uly of 1991.

### 7

The Commonwealth called Yunkin to the stand to testify about th e events
surroun d ing Show’s murd er. Yunkin testified that he drov e Lambert to K-Mart thenight before theslay

ing, on December 19, 1991. H e waited in the c ar while she purchased rope and tw o knit ski h ats. Lambert woke Yunkin up early

the next morni ng . According to Yunkin, Lamb ert put on a pair

of his swea

tpant s , one of his flan nel shir ts, and a “jergo” (a h ooded sweats hirt). He test ified tha t Lambert often wore his clothes at

the t ime because she w as almo s t seven m onths pregnant. Theydrove to p i ck up Tabatha Buck, arriving at h er house a t approximately

6:30 a.m. Yunkin dropped L ambert and Buck off in a woode d are a along OakView Road, a road that ran next to the condom

inium c om

pl ex where Laurie Show lived. Lamber t told him to go to a nearby

McDonald’sresta

ur an t, Yunkin testi fied , and come back in a half hour. Buck told him not to lockthe doors because they m

ight have to make a fast ge ta wa y. Yunkin testifie d th at he arrived at McDonald’s at 6:50 a.m. and w aited for theresta uran t to o pen at 7 a .m. He bought
some food when theMcDonald’s opened andthen left

to pick up L ambert and Buck. He stay

ed at McDona

ld’s for approximately fifteen minute s in total. 5 

### Lam b ert and Buck were

not prese nt whe n he arrived to pick them up, s o h e drove around a little. H e passed by their meet ing spot on O ak View Road several times before Lam

bert and B uck showed up andgot in

the c ar. As they drove home , Yunki n asked Lam

bert what happened. She told him “not to worry about it”and that she w oul d “te ll [h im] lat er if [he] needed to know. ” App. 258. The inhabita

nt of the apa

rtme nt below the Show s’, Richard G. K leinhaus, also testified at the trial. Klein haus said that he w oke up a t aro und 5:4 5 a.m. on the morningof Show’s murd er. From his window, he saw Hazel Show leaving t he complex. Kleinh aus heard the front door slam ab ov e h im , f ol lo we d b y ascrea m and
athump on the floor o f the bedro om. Six
or eight minutes later, he h eard th e doo r slam again. At that t ime, around ten or tw elveminutes after seven o’clock, h e looked out t h e window and s aw two people of identical height (app roximately 5' 7") exit the stairw ell. The Commonw ealth also elic ited testimony from Fre de rick E. Fry , another reside nt of the con dominiu m c omplex. Fry testified that a t 7:13 a.m. he was waiting in his car while he let t

he engine idle for a little while. As he backed his car out, Fry
saw two indi vidu als to his right. They passedin front of his car as he started forwa rd, a nd he saw th at one was a little shorter and heav ier

than t he other. He

5 

### A McDon ald’s e mp lo ye e corroboratedYunkin ’s test im ony. She testified that she served Y unkin between 7 a nd 7:15 a.m ., and he s tayed f o r approximately fifteen o r twenty minutes.

### 8

estimat ed th at the shorte r wa s approximately 5'3" to 5' 5" tal l and the taller was appro ximately 5'5" to 5' 7" tall. He believ ed, based on h is observation s, that the y we re both wom

en. 6


### Hazel Show furnished p articularly dramatic testimony . She arrived home at
some time between 7:20 and 7:25 a.m., after Laurie Show’ s guidance couns elo r never showed up for thefictit

ious meeting appointment. She found her daughter lyi ng on the floor bleeding, and she yelled to her neighbor downs ta irs to call 911. There
was rope tied ar

ound Laurie Show’ s neck, she testified, so sheretri eved a knife from thekitchen t

o cut it. Laurie Show breathed deeply after the rop e was cut, a nd h er mother held and cradle d her. Haz el Show askedwho had attacked her, and La urie Show answered “Michelle did it.” App. 839. Lisa Lam bert was a lso kn own by her middle name - - Michelle. Officer Robin Weaver o f t he East Lampeter Township Police Departmen t testified that at approximately

7:45 a.m . he and Corporal Jan Fassnacht werethefirst officers to arrive at the cr ime scene. Se ve ral medic al pers onnel had al ready arrive d, however, and they were attending to Laurie Sh o w. Weave

r observe d a rope aroundShow’s neckand saw wounds on Show’s neck, leg, and hands. He al s o found clumpsof hair on the floor of the apartment. Dr. Enrique Pena

des, the doctor who perf or med the a utops y on Show, describedthe woun ds h e observe d and offered opinions as to their cause: several bru ises on Show’s head fr om a blunt fo rce; three cuts on h er back du e to stab s from a knife, one of which penetrated throughthe r

ight l ung; t wo wounds on her legs, including a cut to her thigh that penetrated

to her pelvis; twe

nty one cu ts
on her hands, probably

due to Show ’ s effort s to grab the knife and hands of her assailant; anda big slashing wound on the throat that was th e result of at least three strokes. He test

ified tha t the wou nd s to Show’s neck and th e deep wound to her backwere fatal, and he believed Sh o w was alive not

more t han a half hour

aft er sustaining th e wound s. Penades also testified that, d espite the wounds to Show’s neck, he believed she co uld sa y “Michelle did it” ; “not in a regular tonebut a whisper

ing, mum bling, inte lli gently [sic] enough for someone who is clos e to this pe

rson to under stand what[she] was saying.” App. 143. Dr. Joseph S. Annese, another expert witness for the Commonwealth , also offer ed his opinion that

Show could speak the

words “Michelle did it” despi te the woundsshe sustained. Yunkin testified that Lambert a nd Bucktook

showers after the three of them arrivedhome that morning . At that poin t, Lambert told him that Buck a

nd Show
were wrestling and Show acc identally got 6 

### At th e time of

their arrest Yun kin stood at 6 '1" and weig hed 190 pound s, Lambert stood at 5'6” a nd weighed 143 pounds, and Buck stood at 5'3" a nd weighed 160 pounds.

### 9

stabbedin t he back, c ausing a hi ssing soundas if her

lung were punctured. Lamber t said t hat she a nd Buck agree d to slit S how’s t hroat to put her out of her mi se ry, bu t s he never told Yunkin if they went throu gh with it. Yunkin testified that

he and Lambert washed a ba

g of clothe s that Lambert and Buck had worn thatmorning andthrew them

in a dumps ter

behin d KMart. Lambert late

r to ld him t

hat she needed to get rid of another ba g, and he drove her to the

Susquehanna

River where she th rew a bag in. Th ey later returned to the river to get rid of the jergo that Lambert had w orn. Several law enfor cement officials testified about finding La

mbert , Yunkin, andBuck at a local bowling alley that night and br inging the m in fo r questioning. According to theirte st im on y, Lambert’s story

changed a few times over theco ur se of questio ning. Lambert f irst told the polic e the alibi story she, Yunkin, and Buck had devi sed. Raymond Solt of the Pennsylvania Stat e Police eventual ly took ove r questioning Lambert. After ag ain giv in g th e alibi s tory , Solt te stified, Lambe r t admi ttedto him that the story was false

. Lambert eventually

settled on a versi on of events in which Buck w as largely responsible f

or S how’s mur

der. Solt and another officer tran sc ribed Lambert’s statem en t, and Lambert ultimately signed it. 7 

### In thestateme nt, Lambert adm

itted that it was her idea to go t

o Show’s apar

tment because she wantedt o tal k to Show

. Accordingto Lambert’s s t atement, Buck went alone to knock on Show’s door because Sho w’s mo th er knew L ambert. Lambert went into t

he apartm ent afte r she heard someone answer

andthe door sh ut, andshe found Buck st

ruggl i ng wit

h Show. Buckattacked Show with a knife, Lambert told Solt, and she “

ju st stood there” because she “was so sc are d.” App. 470. Ev en tu al ly, Lambert said , she “couldn’t look anymore

and I turned away. ” Id. 2. Lambert’s Case
Lam bert based he r cas e predominantly on he r o wn te st im on y, during which she admitted several f acts tending to impl

icate her in Show’smurder

. Sh e admitted t

o being angry

at Show, for example, ostensibly

because Show had made up rumors about her i n o rder to create a ri ft bet

we en her and Yunkin. Si mi la rl y, Lamber

t concede d that she

had said she wante d to kill Show, but she explainedthat she

only m eant it as a figure of speech. She a ls o admit

ted that on the
mo rn ing of Show’s mur der she br

ought along a bag conta ining a knife from her apartment, rope, s k i hats, and sun glasses. B ut Lambert broug ht these with h er, sh e testified, because

she andYunkin planned
on going to cut down a Christmas tree later in the d a y. The ski hat s—which

7 

### Lambert tes tifi ed at tr

ial tha t the writtenstatement a ccurately reflected wh at she told So lt.

### 10

Lambert ad mitt ed to p urcha sing f romKMart the night b efore, a l ong with the rope—were intended t

o keep wood chips out of their hair. T hey needed the kn ife to cut the sm all bra

nches off the

base of the treeso it would fit i nto the sta nd. The sunglasses were necessary to prevent them from getting pinkeye. And the ro pe w as for tyin g up the tree; indeed, Lamber t testified that she purchased

that particular rope because it contai n ed a pi ctur e of a
mandraggi ng a Christmas tree on its packaging. Despite these see mingl y in culpatory admissions, Lam ber t maintained

that itwas Yunkin and Buck who develo p ed the pla

n to atta ck Show andshe only

learne d o f the plan the day before the attack. Moreover the plan, as far as she knew, never involved mur dering Show. During the week leading to Show’s murder, Lambert testi f ied, Yunki n repeatedly tol d her and Buck that he was
nervous that

Show was going to pr

ess ra pe charges against him. Y un kin and Buck told Lambert that they had a plan to “get” Show that would “keep her m outh shu t.” Ap p. 1037. B ut they would no t tell h e r exactly what their plan w as. Th e night before Show’s murder, Lambert and Yunkin went to Buck’s house. There, Yunkin again expressedhis fear that Show would put

h im in ja

il by
accus ing him of rape. Bu ck and Yu nkin then told L ambert about their p lan. Theyhad decided to go to Show’s house, knock on her do or, pull her outside, an d beat her up enough to put her

in the hospital. Buck ex plained that she had called Hazel Show a nd set up a fa ke meetin g w ith Laurie Show’s guidance
c ounselor so that s he would not be ther e when t hey cam e to a tta ck Show. Lambert told them t hat it was a “stupid”plan beca

use Yunkin w ould get into almost as m

uch trouble for

beating up Show as hewould for the r ape char ge. She also told them

that she did not wa

nt to be involved in beating up Show because (a t least she beli eved) Showwas pregn ant. As
aresult, L ambert suggested they do what they had plann ed on doing the previous
summer: cutting of f Show ’s hair and humiliating her. Buckand Yun ki n eventually agreed, and the three of them sett l ed on
ac c ostingShow as she left her a partm ent andcu ttin g her hair off. Thus, Lambert testified, she p ut a pair

of sciss ors in the bag containing the tool s for cuttingdown theChristm

as tree: the

knife, ski h ats, and rope. Yunkin and Lambert picked up Buckearly

the next morning. During t

he
car ride to Show’ s home, Buck l ooked thr oug h the bag cont

aining the

knife, ski h ats, and rope a nd fou nd that the scisso r s were missing. Buck told Lambert that they could use the

knife instea d of sciss ors, and she cut off a p iece of her o wn hair to demonstrate. Buck also cu t o ff 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

condomini

um complex, and h e decided to go to McDonald’s to get a drink. Lambert andBuck w ent

on to Show’s apa

rtme nt without h im; Buck carr

ied the knife and rope. The two of them waitedforShow at thebottom of

the sta irway that led to the floor where her apartmen t was loc ated. Bu ckbecam

e cold and decided to goan d
as k Show what was t

aking her s o long. Lambert heard Bucka nd Show talking. Then, Lambert testi fied , she hear d so me scuffling and the do or slam. Lambert called Buck

but Buck did not answ er, so she c limb ed th e stai rs and enteredShow’s ap artment. Sh e found Buckhi ttin g Show on the floor. Lambert grabbed Show’s an kl es and told h er to
c alm down because they just wanted t o talkto her. Show freed herself andran into theadjacent

room, he

r bedroom . Bu ck followed after her.
It was then, Lambe rt testi fie d, that Bucktook ou t the knife. L ambert told Buc k to p ut the knife

away , becaus e she
saw a pair of scissors they could use to cut Show’s hair inste ad. But Buck di d not listenand, afte

r pulling Show down, began to hac k at Show’s ha ir with t he 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 pu ll ed Show away from Buck. A tthat point , she hea rd a “wh ooshing” sound (due appa rently to a puncture in Sh ow’s lung) and sa w blood
on he r h ands. Lam

bert wasafraid of blood; her knees went out from under her and she fell to the fl oor shaking. 9


### Lambert be gan to cra

wl to the bed ro om door. Sh ow pleaded with Lambert not to lea

ve her the

re, ho w ever, so Lamber

t grabbed Showby

the wris t and pulled her

tow ard the front door. But as Lambert stepped ou tside the apartment, still holding onto Sho w, Buck pulled Show b ack into the ap artment. Lambert continued t

o f l ee the apartment. After she

de sc ended a co uple of steps, however, s he collided with Yunkin. Yunkin shook her and asked wh at happened to her hands. She told him that Buckstabbe d Show. Yunkin exclaimed “Oh, fuck,” took La

mbert to thebottom

of thestairs, told her to sit the re, and bounded up the stairs toward Show’s apartment. As she waited, Lambert he ard Yunkin yell “You fuck ’n bitch,”and “Your ass is do ne now, b itch.” 10

8 

### The defense

offered te stim

ony that pieces of Show’s hair were found at thecrime scene, a n d an expert testified that the hair was cut off using a knife. 9 

### In addition to Lambert’s te st im on y, the defense offered t he testimony of a doctor a

nd nu rse from

the hospital where Lambert gave birth to her child that tended to show Lambert was afraid of bl ood.

10 

### L amber

t offered a s evidenc e of Yunkin’s presencein Show’s ap artment a

### 12

Lambert eventually

heardthefront door slam . Yunkin bounded down the sta irs and told Lam

bert he wa s going t o get the car; Buck

followed, with blood

on her clothes and the knife in her hands. She stared at Lambert, and Lambe rt ret reate d. Yunki n yelled “Ta

bby! Get her! ” and Lambert began to run. Lambert did not know wh ere she was runnin g, but she ev entually came out along a road. Yunk

in sped out of the
co ndo minium

complex and picked up L ambert and Buck. Yunkin was say in g “Oh, shit!”because

he had pass ed Hazel Show as he wasdriving outof the
c ondominium

complex and she had looked right at him

. He then pushed Lambert’s head dow n because they wer e passing Sh ow’s schoo l bus. The three of

them dr ove to Lambert andYunkin ’s home. Buck an d Yunk in put thei r bloody clothesin the tr

ash can. A dispute aro se over whether Show was dead and, if so, w ho had killed her. Yunkin said that B uck had ki lle d Show. Bucksaid tha

t Show was dea

d, but she
was not sure whether she or Yunkin had killed her.
Ev en tu al ly, Yunkin and Lambert met with Buck aga

in and refined their

alibi st or y. They also came across anewspaper that contained news of Sho w ’s deat h. Upon learni

ng t he news, La

mbert testified, Yunkin and Buck sang a mocking s ong and laugh ed hysterically. Lambert admitted that upon her arrestshe told the police at least two false versionsof what happene d, the alibi story andthe version in which Buck was solely responsi bl e for Show’s m

urder and Yunkin had little invo lvement. She told the polic e thelatter story because Yunkin
was afraid of going to prison for the re s t of his life a

nd he told La

mb ert tha t she would receive less time because she w as a pregnant w o man. As a result , she agreed to cover up Yunkin ’s involvement.
To supporther case, Lambert also
r elied(in a ddi tion to h er ow n tes timo ny )
on expert t

estim ony c oncerni n g Show’s death, evidence te ndi ng to show that Yunkin had violen t p r opensiti es, and a document that allegedly

passed between her and Yu nkin while they were both in prison awaiting tria l. The document was comprised

of twenty-nine questi ons posed by Lam bertto Yunkin with answers inscribednext to the

m. It contained, for example, the follo wing: 6) [Question :] I don’t unders t and! Why not tell about Laurie? Ar

e y ou afraid you c ouldn’ t ? Did she look scary dea d—lik e Tressa? I want t o go home andhave m y baby twins! What i f one of them dies because th ey n ee d M om my? I don’t want t

o cover up for you. I never s hould have agreed, and I’ m m ad, and pearl earring fo und in th e apartment. Yunkin tes tifi ed that it was Lamber t’s earring but he had al so worn i t o n occasion (about three tim es).

### 13

still sad! [Answ er:] Yes and Yes. 7) [Questi o n:] It’s n ot my fault that things went wrong (our pr an k) Fr id ay m orning! Do you e ven care? I still blame you a

nd Tabb y! [Answer:] J ust wish it didn’t happe

n.

. . . . 10) [Question:] I k now I’m not an angel, but, Lawrence, I never get mad en ough to kill! Your t

emp er bl ew, [andyou] hurt her, this time
so bad that sh e can’t get better. To me, it’s a surprise i twas on her, a nd she will
never live again! I wanted to get god-dam

n Tabby away from her, [y ou] got in thebedroom a

nd blew up [a nd ] went deci ded to do things your way—violent! Thatshould’ve

been me that you k illed. I hate y

ou! [Answer:] I don’t hate any one

. God said, it is wrong to hate. PC RA Decision (attach ment). Yunkin admit ted, upon cro ss examination, that he andLambert had passed a document back andforth thro ugh the p rison law library in which he answered ques tion s that s he asked. He test

ified, h owever, t

hat the document presented to him at

trial , the“29 Questions, ” appeare d tampe red with a

nd different from the document he recalled ex changing with Lambert. Ap p. 321. H e claim ed, for example , t hat he had never
seen the sixt

h question or

tenth ques tion. Yunkin testified that

in the document that pass ed b etween him and Lambert, L ambert h ad writt en the questionsin pencil and he had wri tten all his answers in pencil and then traced over every other word in ink so th at they could not be chan ged. But Lambert’s expert testified that the re was no ind icati on of
an y pencil wr

iting on the

29 Questions , and the questions and answers were writtenwith two diffe

rent pens . After t

he Comm onwe alth had an exper

t from t he Pennsylvania Stat e Po lice c rime la b
e x amine the docum

ent, Lam bert and t he governme

nt entered into astipulation that there were no erasures or grap hite o n the document. The Commonwealth conceded th at if its expert were ca

lled to the stan d , he would essentially

agree with Lambert’ s expert. To bolster

her argum

ent that the29 Questi ons showed it wa s Yunkin who
mur dered S how, Lambert e licite d tes timony that Yunk in was a viole n t individu al. Yunk in himself test ified that he had hit Lambert three times, though he
sa id it was acc idental

all but onc e. And Lambert testified that

Yunkin wanted t

o fight an ind i vidual named Brad Heiser, Show’s boyfr

iend at t he tim e of her dea

th. Lambert also called expe rts to tes tify to the ci rcums tancessurrounding Show’s d e ath. Joh n C. Bals hy, a cri me scene expert, test i fied t

hat t he lette rs “ T” and“B” appea

red writ ten in blood

on the

### 14

door next to where Show’s body lay when she died. He opined thatShow leaned over and wrote the

lette rs to ide ntify Tabatha Buck as her a ssailant. Lambert also of

f ered expert testimony t endi ng to show that

Show could not have said “Michelle did it” because she was pr

obably uncon s cious
an d, in any

case, phys icall

y una bl e t o articulate those words . Dr. Is ido r e Mihalakis testified that , given Show’s
w ounds, she would h ave become unconscious“considerab ly less than a half hour” after sustaining her injuries. A pp. 388. Moreover, Dr. Mihalakis test ified that the woun ds to Sho w’s throat wo uld have hindered her ability

to speak. He also testified that it wa s “ ex tr em el y un li ke ly” that a female could have wi elded the knife with enough stre

ng th to brea

k the t ip off,
as had happened t

o the knife us ed t o kill Show.
B. Procedural History Before resting her case, Lambert movedfor a mis tr ial due to prosecutorial misconduct. She argued, among other t hings, that

the Co mm

onwe alth knowingl y elicited perjured t

estim ony fr om Yun k in regarding t he 29 Questions. The Court denied Lamber

t’s m otionand, onJuly

27, 1992, found Lambert guilty of first degree murder and criminal

conspiracy to commit murder. 11 

### The sentenc ing phase e nsued, and Ju dge Stengel declined t o impose the death penalty . Instead , h e sentenced Lamber tfo r first

degree m

urder to a statutorily mandated term of li fe impri sonment

without the p ossibil

ity of parole. The next

day , Lambe

rt filed a set of motionsfor arre st of

judgment

and a new trial. Among her many arguments was that the Commonweal th had offere d insuffici ent

e vidence to sust ain the verdict. Judge Stengel de

nied Lam bert’smotions in a com prehensive opinion.
In the opinion, the Court extensively canvassed the evidence at tr ial
a n d its factual findings. “The phy sical findings at the

crim e scene , the te stim

ony at trial of thedefendant, the tri al tes timony of Hazel Show , the history of ill wil l between the defenda

nt and the victim a

nd thecircumsta

ntial evidence developed at trial,” the Court held, “al l lead t o the
c onclusion

that defendant was guilty of themurder of Laurie Show.” A pp. 1628- 29. Further, th e Court hel d that the evidence that , ac cording to La mb ert, tended to show sh e did not murder Show—such as th e 29 Questions—was insuffici ent

to create a rea sonable doubt as to her guilt . With r

espect to the 29 Questions, the Court found that “[a]t best, thequestionnaire was inconclus ive,” a nd “[t]osimpl

y s ay that the que sti onnaire
11 

### The Court also rejected Lambert’s demurr

ers, m ade afte r the Commonwealth rested its ca se, in which she argued that the Commonwealth had failedto offer sufficient evidence fora convicti on.

### 15

could n o t be fully and satisfactor ily explaineddoes not mean th atit created
reasona ble doubt.”App. 1629-30. Lambert su b sequently

obtained
new counsel a

nd filed a second set

of postverdict motions o n October 3, 1994. She basedher reque st for relief on cl aimsof aft er-discovered

evidence and her trial counsel’s ineffective ness. 12 

### After holding a hear ing, Judge Stengel again denied Lambert’s post-verdict

motionsin another
c omprehe nsiveopinion dated March 14 , 1995.
In the decision, the Court concluded that “[t ]ri al counsel’ s repres entati on of Lisa Michelle Lambert
was pr ofessional, diligen t, an d though tful.” App. 2 076. With resp ect to the allege d “after-dis covere d
e vidence”—evidence t hat th e Commonwealth revoked Yunkin’s plea agreem ent (in which h e agreed to plead guilty to hinder ing 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: Th is issue boil s down to whether

Mr

. Yunkin’s testimony

a t the Lambert trial was credib le

. Mr. Yunkin testifiedthat

he
was not prese

nt in the Show condomini

um at the time of thekilling. The testimony of independent witn es se s would seem

to establish that he was t ru thful in th is regard. A manager at a nearby McDonald’s saw himat or about

the tim e of the murder, whi c h supported hi s s to ry t ha t he dropped Ms. Lam

bert and Ms. Buck off along theroad
ne ar the Show res idence a

nd then went to McDonald’s for break fast.
Mr. Y unkin’s story th at he was not present at th e time of the killing was also su pp or te d b y th e neighbors who sa

w two figures of a bou t the same height walking to ge ther
across a large g ra ssy

area from the Show res ide n ce toward the r oa d. By

height
an d build they

matched, 12 

### The tria

l cou rt entertained Lambert’s second p os t-verdi ct mot ion be c ause of a “loop hole” that def ense counsel, the p rosecution, and the Court i ntentionally created to “accom modat e ” Lambert. Specifically , the Court sentenc ed Lambert only on the first degree murder charge even thou gh she had als o b een convictedof criminal consp iracy. As a result, theappeal pe

riod from a judgment of convicti on from the

crim inal conspirac y charge had not ex pired. The p artie s (and theCourt) app arently agreed that t his allowedLa mbert to introduce new evidence and seek

a new trial. See App. 2038; PCRA Decis ion 7 n.6.

### 16

generally , a descr

iption of Ms. Lambert

andMs. Buck. Mr. Yunkin is signific an tly taller than eit h er of those two wo men a nd th e witnesses testified that

the two figures s een w al king
across the gra ssyarea were o f a bout the same heig ht, that being in th e 5'1" to 5'5" range. Therefore , on the subject of whether Mr. Yunkin was in th e Show residenceat the time of the killing, Mr. Yunk in w ould appear to have bee n truthful. At least, his s to ry w a s suppor ted b y independ ent witnesses. App. 2073. Yet “[a]s to whether Mr. Yunkin was aware of th e plan to do harm to Ms. Show,” t

he Court expl ained, “he
was decidedly incredib le on this issue.” Thus the Court held that the “afterdiscover ed” evidence (Y unkin’s p lea to thi rd degree murder) would not have had any mate rial effect on the

outcome of the
case because the facts ad duce d at trial were fully

consistent with his plea. Lambert appeale d from the judgment denying her

second set of

postverd ict mot ions. Th e Pennsylvani a Superior Court aff irmed the tria l court’s judgment, and Lambe

rt filed a petit

ion seekingal l ocatur fro m the Pennsylvania Sup reme Court. The Supr eme Court denied Lamber

t’s pet ition on Jul

y 2, 1996. Lambert f iled a pro se petiti on for
awrit of habeas corpus in federal district court on Septem

ber 12, 1996. The

cas e was assignedt o Judge Dalz ell, who ap pointed counsel to represent Lam bert anddirected counsel to file an am ended petition. The subsequently- filed amended petiti o n advanced num

erous groundsfor relief, including claims t

ha t Lambert had not previousl

y a dvanced in st ate court. Th e Commonwealth o bjecte d t o Lambert’s petition, arguing that she had failedto exhaust her state court r emedies andhad co mmitted ins urmounta bl e procedur al default. Judge Dalzel l def erre d consider ation of the Commonwealth’s exhausti on argument while, i n the meantim e, permittingbroad discover y a nd conductinga fourteen- d ay evidentiary hearing. At the e nd of

the hear ing, the District Court ente

red an orde r granting L ambert’spetition for a writ of habeas corpus, relea sing Lam

bert from

prison, andbarr ing the Com

monwe alt h fr o m retry ing her. In an O rder an d Memora ndum Opinion thatit

issued a few weeks later, on April 21, 1997, the Court of fere d severa

l basesfor its c onclusion that the habeas statute ’s ex haustion requirement did not preclude the Court from gr anting Lambert’s p etition. See Lambert v. Blackwell , 962 F. Supp. 1521, 1553-55 (E.D. Pa. 1997). This Court vac ate d the District Court’s judgment, however, a nd found that Lambert’s fail

ure to exhaust av ailable

### 17

st ate court remediesrequired the District Courtto dismiss her pet i tion without pr ejudice. We held t

hat Lam bert had n o t pursued her remediesunderthe PCRA for
some of her cla ims a nd her habea s petit

ion ther ef ore contained both exhaust ed and unexhausted claims . Th us th e Su preme Court’s decisi on in Rose v. Lundy , 4 55 U.S. 509 (1982), required the District Courtto dismiss such a “mixed petition.” See Lambert v. Blackw ell , 134 F.3d 506 (3d Cir. 19 98). Lambert file d a PCRA p e tition on February 2, 1998 in the Court

of Common Pleas for Lan ca st er Co un ty. 13 

### Lambert presented257 clai ms for reli ef in the PCRA Court: 157 allegati ons o f prosecutorialmisc onduct, 72 allegati ons of after- discover

ed evidenc e, and 2 8
a llegat ions of ineffective assistance o f counsel. The PCR A Co urt held e ight weeks of hearingsand, on August 24, 1998, issued a 322 -page opin ion in which it denied L amb ert ’s petit

ion for relief. Lambert filed an appea l wi th the Pennsylvania Superior Cou rt, and t he Supe rior Court affir

med the judgment of thePCRA Court on December 18, 2000. See Commonwe alth v. Lambert , 765 A.2d 306 (Pa. Super . 2000). Befor e addres sing themerits of Lam

bert’s appeal , however, th e Superior Cour

t rais ed sua spon te th e timeliness of Lambert’s PC RA petition

. The PCRA requires petiti ons to be filed“within on e year of the date the judg ment beco me s final,” excep t in certain statutorily defined cir cumstances. See 42 Pa. Cons. Stat. § 9545(b). Lambert fil ed her petiti on approximately

sixtee n months after her judgment of conviction bec am e final. It appe ar s that t

he parti es did not raise the statute of limit ation s as an i ssue in front of the PCRA Cour t, however , and the Court d id not add ress it. Th e Superior Court determined that, base d l argely on the Pennsylvania Sup reme Court’s interpre tation of t

he PCRA in Comm onwealth v. Fahy , 737 A.2d214 (1999), Lamber t ’s PCRA p e tition wa s u nt im el y. 14 

### The Superior Courtdeci ded torevi ew t h e mer its of the PCRA Court’s de cision, however, becau s e “theThird Circuit Court of Appe als, t he PCRA court , the Comm onwealth a

nd
c ounsel did not h ave the ben efit o f” th e Pe nns ylvania

Supreme Cou rt’s decision in Fahy (whi c h was deci ded on August 27, 1999, about a yea

r after th e PCRA Court

13 

### The Court of Common Pleas Judge who presi ded over the 1992 bench trial, Judge Lawrence S te ngel, also presided ov er the PCRA proceeding s. 1 4 

### We opined in our decisi o n d ir ectingthe District Cou rt to dismiss L amb ert’s petition without prejudice that Lambert’s PCRA petiti on could be timely for either of two reas ons—by

operati on of Pennsylvania’ s transfer statute , 42 Pa. C.S.A

. § 510 3, or any of the three statutory exceptions to the PCRA ’s statute of lim ita tions , 42 Pa . C.S. A. § 9545(b)(1). See 134 F.3d at 522-24. The Superior Court rejected each of the se possibilities.

### 18

issuedits decision). 15 

### After reviewing Lambert’s petiti on on the me rits, the Sup erior Court aff irmed the judg ment o f the PCRA Court. 76 5 A.2d at 3 63.
La mbe rt did not petition the Pennsylvania Supreme Court for an allowanc e of an appea

l from the Superi or Court’s judgment. Ra ther , she filed an amendedpetition for a writ of habeas corpus in federal district court on January 29, 200 1. The case a

gain cam e be fo re Judge Dalzell, who de term

ine d that th e proceedings before the PCR A Court and Superior Court were

null and v oid, and therefore entitled to no deference, b ecause those courts had no jurisdiction over La mbert’s PCRA p etition due to its untimeliness. See Lambert v. Bla ckwell , 175 F. Supp . 2 d 776, 786-87 (E.D. Pa. 2 001). Accordingly, t

he District Court reinstated its findings of fact and conclusi ons o f law from its earlier decisi on granting La

mbert ’s petition for

a writof habeas corp us, and the Court gave theparties approximat

elya month to
no tify it if the

y s ought additi on a l discovery and a hearin g. Id. at 791. On January

18, 2002, however, Judge Dalzell g ave wa y to th e Commonwealth’s fou rt h motion s eeking his recusal. See Lamber

t v. Blackwell , 205 F.R.D

. 180 (E.D . Pa. 200 2). L amb e rt’s petiti on wa s c on se qu en tl y tr ansferred to Judge Anita Brody

of the Eastern District of Pe nnsylvania. After holding a hearing on the Commonwealth ’s motion to dismiss, Judge Brody denied Lambert ’s petition and dismissed it with prej udice. Judge Brody concluded that, contrary to Judge Dal zell’ s pr ev ious d e cision, th e PCRA C ourt’ s determ inationswere not null and void and
were entitled

to def erence un der AEDPA. A fter revi ewing Lamber t’s claim s acco r di ng ly, Judge Brody concluded that the y were without merit. The District Courtgran ted L amb ert a cert ificat e of ap pe al ab il it y, and Lambert t imel y appeale d. The Co mm onw ealth a lso time ly filed a cross- appe al.
II. 

### JURIS DICTI ON AND STANDARD O F REVIEW
The Distri ct Court e xercis ed juri sdiction under 28 U.S.C. § 2254, and the Distri ct Court’ s or der dismis sing Lam bert’s habe as peti tion i s a final decisi on for pur pos es o f 28 U.S .C. § 1291. Yet Lambert must s urmount an additi onal hurd le bef ore we can properly exercise appe llate j uri sd i cti on ov er he r ap pe al

. We only have jurisdiction if this C ourt or a Distri ct Court has pr operlyissued a certifica te of appealabi lit y pur sua nt to 28 U.S. C. § 22 53( c). See United States v. 15 

### In Fahy

the P e nnsylvania Sup reme Court held that si nc e the PCRA’s time limits ar e jurisdiction al, and not a
mere statut e of lim itati ons, the filing period can on ly be extended as permitte d by the statute and e quitable principles such as toll ing cannot a

pply . 737 A.2d at 222.

### 19

Cepe ro , 224 F .3d 256, 26 1-62 (3d Cir. 2000) (en banc). 16
A COA may is sue onlyupon “ a
su bsta ntialshowing of the deni al of a

cons titu tional right .” 28 U .S.C

. § 2253(c )(2). If “a dist

rict court has rejec ted the consti tuti onal cl aims on the merits, the showing required to sa ti sfy § 22 53(c ) is stra ightforward: The petitioner must dem onstra te that rea sona ble jurists wo uld find the district court ’s as sessment of the consti tuti onal claim s de bata ble o r w ron g.” Slack v. McDaniel , 529 U. S. 473, 484 (2000). In addition, a COA m ust “indic ate which spec ific issue or iss ues satisfy ” that stan dar d. 28 U.S .C. § 225 3(c )(3). Here, the D istrict Co urt faile d to specify wh ich of the vo lumin ous is s ues Lam bert raised in her h abea s petit i on sati sfy the st andard forissuanc e of a COA. The Cou rt concluded : “Althoug h in very differe nt context s, t wo federal j udges have examined the cl aims of the p e titioner Lam bert and have reach e d differe nt outcomes. Accordingly , a COA w illbe GR AN TE D.” 

### Lambert v. Blackw ell , 2003 W L 1718511, at *56 (E. D. Pa. Apr il 1 , 2003).
In the ord inary cou rse, w e w ould remand to the D istric t Co urt to cla rify its orderto complywith t h e spe cificity requ ireme nts of 28 U.S.C. § 2253( c)(3 ). See Szuchon v. Lehman , 273 F.3d 299, 311 n. 5 ( 3d Ci r

. 20 01 )

. Wh ere t he parti es have fully

briefe d the subst ant i ve issue s b efore bringi ng to our at tenti on tha t th e COA was ina dequa tely specific, howev er, this Court ha s viewe d the D istrict Court’s certific at e as a null ity

and constr

ued the petit ioner ’s no tice of appeal as a request for us to i ss ue aCO A. Id. We follow that

cou rse h ere. Lam bert has rai sed sever al issues

on ap peal. On each issue, two federal dist rict court judges— al beit i n differe nt proceduralposture s—reached differi ng conclusi ons as to whether consti tuti onal

error at trial warr anted gra nting ha beas reli ef. As to ea ch of

th es e i ss ue s, whi ch we discuss seri atim bel ow , w e will gra nt a COA. 

### Because the D istr ict Court relied exclusively on the state

court record and did not hold an evidentiary hearin g, our review is plenary. See Moor e v. Morton , 255 F.3d 95, 103 (3d Cir. 2001).
III. DISCUSS ION Lambert and the Commonweal t h raise numerous issues in their crossappeals and offer several arguments, often in t he alternative, su pporting their respectivepositions . We fir st addre ss the Commonweal t h’s argum entsthat we 16 

### Only Lambert’s appeal must sat isfy the certificate of

appealability standar d. See Fed. R. App. P. 22(b)(3) (“A
ce rt ificate of appealability is not required when a stat

e or itsrepres entative appeals.”); La mbert v. Blackwell , 134 F.3dat 512 n.15. We exerc ise juri sdicti on overthe Commonwealt h’s cross-appeal under28 U.S.C. §§ 1291 a nd 2 253. The Commonwealth challe

nges cer tain of th e District C o urt’s legal conclusions, over which we exercise plena ry review. Id. at 512.

### 20

cannot reach the mer

its of Lambert’s claims and must

dismi ss her pe

titio n for procedural reasons

. We have a lready reject ed one of t

hose a rgum ents , tha t we lack jur isdict ion bec ause Lamb ert’s claims do not warra

nt theiss uance

of a certificate of appeala bility . For the reasons explained below , we als o reject t h e Commonwealth’s argumen tthat Lambert failedto exhaust h er available state remediesbe cause she did not seek alloca tur fro m the P enn sylvan ia Su preme Courtto appeal

from the Superior Court’s judgment affirm ing the PCRA C ourt’s dismi ssal of he

r PCRA petit

ion. 17


### We next add

r ess Lambert’ s arguments regar din g the am ount of deference we must

afford th e state courts’ determ inationsin thePCRA p roceedings. We conclude th at we mustdeferto the state courts’ determinations, and we app ly that deferen ce to Lambert’s claims.
A. Exhaustion
A state prisoner must exhaust his state court remediesbefore a federal court may grant him habea s re lie f. The Sup reme Court fi rst articulated this requ irement in Ex parte Royall , 117 U.S. 241 (1886), and it is now cod ified at 28 U .S.C. § 2254(b )(1). That pr ovision states: (b)(1) An application for a writof habeas c orpus on behalf of a per son in custody pursuant t

o the judgment of a State court shall not begranted un less it appears that— (A) the applicant has exhaus ted the remedie s available in the courts of

the State; or (B)(i) there i s an absence of available State co r rective process ; or (ii) ci rcum stances exist t hat render such process ineffective to protect therights of the applicant. 28 U.S.C. § 2254(b)(1). The s ta tute further pr ovides that “[ a]n applica nt shall not be deem

ed to have exhausted t he remediesavaila

ble in the

co urts of the State, within the

meaning of this section, if he hasthe r

ight under t

he la w of the State to raise, by a

ny available procedure, thequest

ion pr esented. ” 28 U. S .C. § 2254(c). 18

17 

### The Commonwealth also argues that if we accept Lambert ’s argument that the P CRA proceedings are null and void,
we mu st di sm is s h er pe ti ti on as un ti me ly. As we descr

ibe below , we find that

the PCRA proceedings are not null and void. The Comm onwealth’s timel ines s argume nt is th eref ore mo o t and we need not address it. 18 

### Yet “[a]n applica tion for a wr

it of habeas corpu s ma y be

denied on the
me rits, notwithstandin g the f ailure of th e applica nt to exhaust the remedies a vailable in the court s of the Sta

te.” 28 U. S.C. § 2254(b )(2).

### 21

The exhausti on doctrine

“turns on
an inquiry into what procedure s a re ‘available’ under state law.” O’Sulliva n v. Boerckel , 526 U.S. 838, 847 (1999) . And th e Supreme

Court has declined t o interpret the “any

availa ble pro cedure” language of § 2254(c ) to require “a state prisoner to invoke any possib le avenue of state court review .” Id. at 844 (emphasis in
or iginal). Thus “sta

te pris oners do no t have to in vo ke ex tr ao rd in ar y re medies
w hen those re

medie s are a

lterna tives t o the standardreview process an d where the state co urts have not provided relief throughthose r emedies in the pas t.” Id. (citing Wilwording v. Swenson , 404 U.S. 249, 249-50 (1971 ) ( per curiam))

. “Secti on 2254(c) requires onl y t ha t s tate pr ison ers give state courts a fair opportu nityto act on their claims .” Id. (emphasis in origin al).
In O’Sullivan , the Sup rem e Court held that a petitioner m

ust seek review in theIllinois Sup reme Court in ord er to sat isfy the exhaustion requirement even though theco ur t’ s r ev ie w i s d is cr et io na ry. The Court found that review in the Illinois Sup reme Court was a “n orm al, simple, and established

part of the State’ s appellate review process.” 526 U.S . at 845. As a result, thepetitioner had to seek review in order to give the state courts a “fu ll opportuni ty to resolve any constitutional claims.” Id. In other wor ds, “the creat ion of adiscretionary review system does not, without m

ore, make review in the Illinois Supreme Court unavailable.” Id. at 848. The Court took pains, howeve r , to state that “t

here isnothing in the exhausti on doctrine requiring feder a l
co urt s to ignore a state law or rule providing that a given procedur e is not available.” Id

. at847-48. Justice Souter interpr eted thi s stat

ement as lea ving
op e n the possibility that a state prisoner is [] free to skip a procedure even when
a state court ha s occasionally employed it to providerelief, so long asthe State has iden ti fied the procedure as outside t h e standardreview pr

ocess a nd has plainly said th atit need not be sought for t

he purpose of exhau stion. It is not obvious that either comi ty or precedent re quire s otherwise. Id. at 850 (So uter, J., concurring ); see also id. at 861 (St

even s, J., dissenting); id. at 864 (Brey er, J., disse nting). As an example, Justic e Souter pointed to the following pronou ncement from the So uth Carolina Su preme Court: [I]nall appe als from criminal conv ictions o r post-convi ction reli e f matters, a litiga

nt shall not be require d to petit

ion for rehear ing and certiorar

i following an advers e decisi on of the Court of Appeals in order t

o be deemed to have exh aust e d all available stat

e remedies respecting a claim of err or.

### 22

Rather, when the claim has been presen ted to the Court of Appea l s or t he S upr eme Court, andr elief has been denied, the litigant shall be deemed to h ave exhausted all available state remedies.
In re Exhaustio n of State R emedies in Criminal a nd Post-Conviction Relief Cases , 471 S.E.2d 454 (S.C. 199 0). The Pennsylvania Sup reme Court, apparently taking its cue fr om Justice Sout er’s concurren ce, issu ed the followin g order on May

9, 2000: [W]e hereb yrecognize that the Superior Court o f Pe nn syl vania review s criminal as well as civil appeals. F urthe

r, r eview of a final order of the Superi or Courtis n ot a matt

er of ri gh t, but of sound jud icial discre tion, and an a ppeal to this c ou rt will be allowed only w he n there are special and important r ea son s therefor. Pa.R.A.P. 11 1 4. Further , we hereb y recognize that cr

imina l and p ost-c onviction relie f litigants have petiti oned and do routinely petition this Courtfor allowa

nc e of appeal u pon Superi o r Court's denial of

r elief in
o rder to exhau st al l available state reme dies for purposes o f federal habeas corpus relief

. In recognit

ion of theabove,
we hereby declare that in all ap peals from cr imina l convic t ions or post

convicti on relief matters, a litiga nt shall not be required to petiti on for rehea

ring or all owance of app ea l follow ing an ad vers e decisi on by t

he Superior Courtin order

to be deemed to have exhau sted al l available state re medies respecting a claim of err or. When a claim has b ee n denied relief in a final order, thelitigant shall be de emed to h ave exhausted al l
a vailable state remedies f o r purpos es of federal habeas corpus r elief. This Order sha l l be effec tiv e im me di at el y. In re Exhaustio n of State R emedies in C riminal and Post-C onviction Reli e f Cases , No. 218 Judicial Administ ra tion DocketN o . 1 (Pa. May

9, 2000) (“Order No

. 218”). Several Pennsylvania district courts have held that due t o Order No. 218
astate pris o ner need not petiti on the Pennsylvania Supreme Court for alloca tur in order to exhaust state court r e med ies andseek habeas relief

in federal cou rt. See Wilson v. Vaughn , 304 F. Supp. 2d 652 (E.D. Pa. 2004); Lor v. Varner , 2003 WL 2284 5413 (E.D. Pa. Nov. 26, 2003); Lambert v. Blackwell , 2003 WL 1718511

### 23

(E.D. Pa. April 1, 20 03); Leon v. Benning , 2003 WL 21294901 (E.D. Pa. Feb

. 24, 2003); Mattisv. Vaughn , 128 F. Supp. 2d 249 (E.D. Pa. 20 01); Blasi v. Attorney General , 120 F. Supp. 2d 249 (M.D. Pa. 2000). Other Circuits have reached similar
c onclusionswith regard to comparab l e state supreme courtrules. See Adams v. Holland , 330 F.3d 398, 40 1 -02 (6 th 

### Cir. 2003) (Tenne s see); Randolph v. Kem na , 276 F.3d 401, 404 (8 th 

### Cir. 2002) (Missouri); Swoop es v. Sublett , 196 F.3d 1008, 1009-10 (9 th 

### Cir. 199 9) (p er cu riam) (A riz ona). We reserved ju dgment on th is issue in Weng er v . Frank , 266 F.3d 218, 217-218 (3d Cir. 2001) and Villot v. Varner , 373 F.3d 327, 338 n.14 (3d Ci r. 20 04). We now hold tha t Order No. 218 render s review fro m the Pennsylvania Sup reme Court “unavailable” for purposes of exhausting state court rem edies under§ 2254(c). Order No. 21 8 se rves to r

emove review of criminal and c ollateral appeals from the “norm

al” and “ established” appellate rev iew procedure i n Pennsylvania. As Judge Van Antwerpen put it in Mattisv. Vaughn , Order No. 218 is the som

ething “m

ore” tha t make s the Pennsy lvan ia Supreme Cou rt’ s discretionary review system “un available

. ” 128 F. S up p. 2d at 25 9. Co ns eq ue nt ly, petiti oners nee d not seek r eview from

the Penn sy lvania Supreme Cou rt in order to givethe Pennsylvania cou rts a“ full opportu nityto resolve any constitutional claims. ” Here, the Su

peri or Cour

t aff ir med thePCRA Court’s judgment on December 18, 2000. D uring the pe ndency of Lambert’s appeal in t he Superio r Court, thePennsylvania Sup reme Court i ss ued Order No. 218. Conseque

ntly , she did not seek an allowa

nc e of an appea

l from t he Pennsy lvania Supreme

Court within the necessary th ir ty -day

time period. I nstead, she filed a fe deral ha

beas pet ition on January 29, 200 1. W e c onclude tha t, due to Order No 218, Lambert ex haust e d her available state cou rt remedies.
B. Deference
AEDPA requires feder a l courts collaterallyreviewing state proceeding s to afford considerable deference to state courts’ legal and fa ctual determinatio n s. Specifically, it provides: (d) An application f or a writ of habeas co rpus on b ehalf of a person in custody pursuant to thejudgment of
aSt ate court sha

ll not be grantedwith re spect t

o any claim that was adjudicated
on the merits in State c ourt proceedi ng s unless t h e adj udi catio n of

the c laim— (1) result ed in a decisi on that w as contrar

y t o, or involved an un r easonable
a pp licat ion of, clearl y established

Federal law, as determined

by the S upr eme Courtof the Un ited States;
or (2) resulted in a deci sion that was b ase d on an

### 24

unreasona ble determ

ination of the facts in ligh t of

the evidence present

ed in the State c ourt proceeding.
28 U.S.C . § 2254(d ). In additi on,“a determi nation of a factualissue m ad e b y a State court s hall be presumed to b e
correc t” unless t

he peti tioner

rebut s “the presumpti on of

correct ness by clear

and convinci ng evid enc e.” 2 8 U .S.C . § 2254(e )(1).
The Suprem e Cou rt inter preted § 2254(d ) (1)’s deference t o stat e legal determi nations in Willi ams v. Tayl or , 529 U.S. 362 (2000). The Court int erpr eted AE DP A’s “clearly establ ished Feder al la w, as d etermined b y the Suprem e Cou rt of the Unite d States ” to mean “the holdings, as opposed t o the dic ta, of [the Supreme] Court’s de cisi ons as of th e t ime of the releva nt st ate-c ourt deci sion. ” Id. at 412. A state- court dec isi on is “cont raryto” clearly establ ished fe d eral law if the sta te court (1) “con trad icts the governi ng law set for th in [the Supreme] Court’ s cases” ’

or (2) “co nfro nts a se t of fa cts that a re mate rially indis tingui shable fr om a decisi on of [the Supr eme] Court and nevertheless arrives at a [d iffere nt] resu lt.” Id

. at 405 -06. A state-co urt dec isio n “involve[s] an unreasonabl e ap pl ication” of clear ly establ ished fede ral l aw if the state court ( 1) “ident ifie s the correct governing le galru le fr om [t he S upr eme ] C o urt’s cases but u nreas onab ly applies it to the fact s of the particula r . . . case” ; or (2) “unreasonabl y ext ends a legal p rinciple from [Supreme Court] precedent t o a new context where it s hould not ap ply or unreaso na bly refuses to exte nd that princip le to a new conte xt w here it sh ould apply .” Id. at 407.
The Supreme Cour t addresse d AE DP A’s factual re vie w p rovisio ns in Mill er- El v. Co ckrell

. There, th e Su pr eme Cou rt interpre te d § 2254(d)(2) to mean that “a decis ion adjudi cated on the m erits in a sta te court

and based on a fact

ual determi nation wi ll not be overt urned on factual grou nds u nle ss objec tivel y
unre ason able in light o f th e evidence pre sented in th e sta te-co urt p roc eed ing .” 537 U.S. 322, 340 (2003) . Yet “defer ence does not impl y abandonment or abdica tion of judici al revi ew.” Id. I n other words, “[d]efer ence does not bydefini tion preclude reli ef.” Id. Thus a federal habeas court can “disag ree with a state co urt’s credib ility determi nation. ” Id. ; se e also Wiggins v. Sm ith , 539 U.S. 519, 123 S. C t. 2527, 2539 (2003) (rej e cting state court’s factualdetermi nation unde r § 2254(e) (1) and 22 54(d)(2)).
De spite the Su p reme C ourt’s pronouncem ents in M ille r- El and Wiggins , a comprehensive inter pretat ion o f AE DP A’s factualreview sch eme has yet to emerge fr om the fede ral cou rts

. Sp ec ifi ca lly, the r elationshi p between the standar ds enunciat ed in § 2254(d) (2) and § 2254(e)( 1) remains unc lear. See Green v. Wh ite , 232 F.3d 671, 672 n .3 ( 9 th Cir. 2000).
On their f a ce, w e disce rn little mate ria l dif ference bet ween a reasonab leness determi nation a nd a presumpti on of correct

ness as they express

### 25

the same fundamental princi ple of deference to state c ourt fin ding s. Co urts h ave tended t o lump the t wo provisions togethe r as general ly indicative of the deference AE DP A requ ires of state court factual determi nations

. See, e. g. , Martini v. Hendricks , 348 F .3d 360, 36 3 (3d C ir. 2003); Hu nterso n v. D iSab ato , 30 8 F.3d 236, 245 -46, 2 49-5 0 (3d Cir. 20 02). Y et it is a cardi nal rul e of

stat utoryinter

pretat ion that we must “give e ffe ct, if po ssible, to every clau se an d w ord of a statu te.” Wil li ams v. Tay lor , 529 U.S. a t 404 (int ernal citations and quotati ons omitted);

see also Kungys v. United State s , 485 U.S. 759, 778 (198 8) (Sc alia, J., plura lity opinion); Borman v. Raymark Indus ., I nc. , 946 F.2d 10 31, 1035 (3d Cir. 1991) (“It is

an ‘elem entary ca non of co nstruc tion th a t
a statute sh ould be inte rpret ed so as not to renderone part i noper a tive. ’”) ( quoting Co lautti v. Fra nklin , 439 U.S. 379, 392 (1979)). In fact , the l angu age of § 2254(d)(2) and § 2 254(e)(1) i mplies an importan t distinction: § 2254 (d)(2)’s reasonableness de t ermination turns on a consider ation of the t otal ity of the “evidenc e presented in th e state-court proc eed ing ,” while § 2254 (e)(1 ) contemplates a cha llenge to the sta te court’s individual factual determinations, includi ng a c ha ll en ge ba se d wh oll y or in part on evidence out side t he state tri al record. See g enera lly 

### Taylo rv. Maddox , 3 66 F.3d 992, 999-100 0 (9 th 

### 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) toget

her as addr e ss in g t wo som ewhat diff eren t inq uirie s. T h e fun dam enta l prerequi sit e to grant ing the writ on f actua l grou nds is consider ation of the evidence r elie d upo n in the state court proceedi ng. Section 2254(d)(2) mandates the fede ral hab eas co urt to assess whether the s tat e court’ s determinati on was
reaso nable or unreas onable gi ven that evidence. If the st a te court ’s deci sion based on s uch a dete rmina tion is

unre ason able in li gh t of the evi dence present ed in the st ate court procee ding, hab eas relie f is w arra nted

. With in this overar ching standard, o f course, a peti tion er may attac k spe cific factualdetermi nations tha t we re made by the stat e c ourt, an d that a re sub sidiary to the ulti mate decis ion. Her e , section 22 54(e)( 1) com es into p lay, instructi n g that the st ate court’s de termination must be afforded a presumpti on of correct ness tha t the petit ioner ca n reb ut on ly by cl ear and

con vinc ing evid enc e. In th is inq uiry, a petit ioner m ay deve lop cle ar an d convinci ng ev id en ce by wa y of a heari ng in fede ral cou rt as lo ng as he sati sfies the necessary pre req uisite s. See 28 U .S.C . § 2254(e )(2). In the final analy sis h owe ver,
even if a state cour t’s indiv idual f actu al det e rminati ons are overt urned, what factualfindings rem ain to suppo rt the state court decisi on must st illbe weighed under th e overarchi ng standar d of secti on 2254(d )(2). 19

19 

### The two circ uits t hat have consideredthe inter

play betwee n secti on 2 254(d)(2) and (e)( 1) have int imat ed tw o slightly different

approache s to res olving

### 26 Wi th these pr inciple s in mind, w e turn to the specificsof this case. Lam bert
ar gues that we s hould not afford t h e PCRA Court and Supe

r ior Court factual determ inationsthe defer

ence se t forth in § 2254(d) and § 2254(e)( 1), for two reasons. First, she argues that the PCRA Courtand Superior Court deci sions ar

e null and void—and

therefore n ot entit le d to deference— because those courts lacked jurisdicti o n to entertain her untimely PC RA petiti on. 20 

### See Commonwe alth v

. questionsunder the re spective prov isions. In Valdez v. Cockr ell , the Fifth C ircuit
su ggested that ind ividual fa ctua l challenges should be evaluated under (e)(1) first, and then , after th e y ar e resolved, the habeas court should consider theentirety

of the record under(d)(2). 274 F.3dat 951 n.17. Somewhatmor e ex pl ic it ly, the Ninth Circuit has said that thehabeas c ourt should evaluate the totalityof the record first under (d)(2), and, if it survives, cloak

the state court’s decisi on with a presumption of correct nes s to “steel” it a

gainst challenge s ba se d on
new evidence, extrinsic t o the state court record.
We adopt n o rigid appro ach to habeas review of

state fact- find ing. In
s ome circumsta

nces, a federal court m

ay wish t o consider sub sidiary challenges to individual fact-findin g in the first instance ap plying the presumption of correctn ess a s instructed by

(e)(1). Then, after deciding these challe

nges, the court wi ll view t

he recordunder (d)( 2) in light o f its subsidiary decisions on the individual chal lenges. In other instances, a federa l court could con clu de that even if petitioner prevailed on all of his individual factual challenges no twithst a nding the (e)(1) pres ump tion of thei r correctness , the
rema ining record might sti ll u phold the state cou r t’s decision un der th e overarchi ng standard of (d)(2). In that event, pres uma bly the (d)(2) inquiry would co me first. Whatever th e o rd er of

in qu ir y, however, two points are paramount. Fir st,

both (d)(2) and (e)(1) express th e same fundamental princ iple

of deferenceto state court finding s. Second, before the writ can b e grant ed, pe tit ioner mus t showa n unreasonab ledeterminati on -- under (d)(2 )

-- in li ghtof the enti

re rec ord in the original state cou rt trial.

20 Lambert als o argues t hat the law of the case doctri ne required Judge Brody to adhere t o Judge Dalzel l’s de cisi on that the stat e court pr oceedings were null and void. “The law of the ca se do ctrine lim its th e exte nt to which a n issue wil l be reconsi dered once the court has made a ruli ng on it. ” Fagan v. City of Vineland , 22 F.3d 1283, 12 90 (3d C ir. 1994). “A c ourt has the po we r to rev isit prior decisi ons of its own or of a coordinate court i n any circumst ance, alt h oug h as a rule co urts shou ld be loathe to do so in the absence of extraordinary circumst ances suc h as whe re the ini tialdecisi on was ‘clearly erroneous and wou ld work a man ifest injustice.’”

### 27

Fahy , 737 A.2d 214 (1999). Sec ond, Lambert argues that the PCRA Court’s factu al determinations are n ot entitled to deference becaus e the Court prohibited her from cr oss-exa mining witnesse s at the PCRA hearing. 21 

### O n its fac e, AEDPA does not providethat a fe deral ha

beas cour t should, before af for ding deference to state court det er minations, evaluate the procedural adequacy of state court proc eedings or whether the state court/ prop erly

exercised its jur isdiction. Th is omiss ion i s particularly consp icu ous in light of the pre-AED PA federa l habeas statute.
Befo re AED PA amended the federal habeas s ta tute in 1996 , state court findings of factwere “presumed correctif there was (1) a hearing on the merits of a factualissue , (2) m ade by astat e court of competentjurisdictio n, (3) in a proceedi ng to which the petitioner and th e state were parties, (4) an d the s tate co urt’ s determi nation is evi denced b y a wri tten finding, opinion, or other reli able a n d adeq uate ind icia .” Carpenter v. Vaughn , 296 F.3d 138, 149 ( 3d Ci r. 2002) 

### . This presum ptiondid not apply if the petit ioner established, in ter alia , that (i) “the factfi ndi n g procedure e mployed by the State court was no t adequate t o afford a full and fair

he arin g,” 2 8 U .S.C . § 2254(d)(2) (199 4) (sup ersed ed); or (ii) “the State c ourt lac ked ju risdiction of th e subject matter or over the person of t he applic ant in the St ate court procee ding 

### ,” 28 U.S.C . § 2254(d )(4) ( 199 4 ) (supers eded)



### . 22 Ch ris t ianson v. Colt

Industries Operating Corp. , 486 U.S. 800, 817 ( 1988 ) ( quoting Arizona v. Ca lifornia , 460 U.S. 605, 618 n. 8 (1983)). In othe r w ords, the la w of the

case doctri ne does not l imit a federal court’s pow er, rathe r it directs i ts exercise of disc retio n. Public I nteres t Researc h Group of New Jersey, Inc. v. Magnesium Elektr on, Inc. , 123 F.3d 111, 116 ( 3d Cir. 199 7).
Lam bert’s argu me nt that the D ist rict Court abused i ts di scretion need not de t ain us lo ng . “[ A ] d ist ric t co ur t's adherence to la w of the case cannot insulate an issu e fro m a ppe llate r evie w.” Christianson , 48 6 U .S . at 81 7. C on ve rse ly,

a dist rict c ourt’s d ecision not to a dher e to
a coordinate court’ s previ ous decis ion cannot pre vent us fr om deciding t he issue

on th e merits. W hether the D istrict Court followed the first

habeas c ourt’s ruli ng or came to it s own contrary concl usion (as it did), we would s till have to det ermine what th e co rrec t dec ision is. See Tischm an n v. ITT/Sher aton Corp. , 145 F.3d 5 61 , 564-65 ( 2d Cir. 1998) . The law of the ca se do ctrine is irre levan t t o our decision. What matter are the merit s.

21 

### Lamber

t does no t a rgue t

hat we should not afford defe renc e to Judge Stengel’s findings made at thetrial level. Her jurisdiction and cr

oss-exa minat ion argumen ts , of course, d o not app ly to those find ings.

22 

### T he pre -AED PA statute provided , in relevant par t:

### 28

(d) In any proceedi ng instituted in a Fede ral court by an appli cati on for a w rit of hab ea s c or pu s b y a person in cust ody pur suant to the judgmen t of a S tate
cour t, a determinati on after

a hearing on t

he merit s of a factualiss ue , m ad e b y a State court of c ompetent juri sdiction in a proce eding to which the appl icant for the writ and t

he State or an officer or agent thereof w ere parties, ev id en ce d b y a writte n finding , writte n opinion, or oth er reliab le and adequa t e wr itte n indici a, shall be presu med to be cor rec t, unless th e applic ant shall es tablish o r it shall otherwis e appear, or the respond ent shall adm it— (1 ) t hat the merits of the f actual disput e were n o t resol ved in the State cou rt hearing; (2 ) that t

he factfi nding procedu re e m ploy ed by t he State cour t was not ad equa te to affo rd a fu ll and fair hearing; (3) that the mate rial fa cts
were n ot adequa tel y develop ed at the State co urt hearing; (4) that t he S ta te court lack ed juri sdiction of the

su b ject matter or over the p erson of the applic ant in the State court pr oceeding; (5) that t he appli cant was an indigent and the State c ourt, in deprivat ion of hi s consti tuti onal right, fail ed to appoint counsel t o repres ent him in t he State court proceedi ng; (6) that the ap plican t did not recei ve a full , fai r, and adeq uate hearing i n the State c ourt pr oceeding; or (7) that t

he appli cant was other wise denied d u e p rocess of law in the Stat e court pr oceeding; (8) or unless that pa rt of the

reco rd of the State co urt proceedi ng in which the det er mi nation of suc h factualissue was made, perti nent to a det e rminati on of th e s uf fic ien cy of the evidence to support

such f actual determ ination , is produced a s provided for hereinafter, a nd the Federa l court on a consider ation o f such part of t

he r ecord as a wh ole concludes t

hat such factualdetermi nation i s not fairly s upported bythe

### 29

The current statute s imply states that federal cou rts must

defer to legal and factual de terminati ons “with r espect to any claim that was adjudicated

on the merits in S tate court proceedings.” 28 U .S.C . § 2254(d ). 

### “We ha

ve in terpreted § 2254(d)’s ‘adjudica tionon the merits’ l an guage to
meanthat ‘whe

n, altho ug h properly preservedby the defendant, the state court has not reachedthe merits of a claim thereafter present e d to a federal habeas court, the def

ere ntial standards provided by AEDPA

. . . do not apply.” Hollowayv. Horn , 355 F.3d 707, 718 (3d Cir. 2004) (quoting Appel v. Horn , 25 0 F .3d 203, 210 (3d Cir. 2001)).
AEDPA has changed th e procedural framework for defer e nce in three wa ys

. First , AEDPA now requires federal courts to defer

to st ate c ourt legal determinations, wh ereas f edera l courts used to revi ew state l egal det erminations de novo. See, e. g. , Ahmad v. Redman , 782 F.2d 409, 412 ( 3d Cir. 1986) . Second, the habeas stat

ute no l ong er exp licitly conditi ons federal deference to state court factualfindings on whether the state court held a heari ng. See M endio la v. Sc hom ig , 224 F.3d 58 9, 592-93 (7 th Cir . 2 000 ). Thir d, the st atute no longer cont ains t he eight prerequisites to def ere n ce that appeared in the s uperseded §§ 225 4(d)(1)- (8). See Valdez v. Coc krell , 274 F.3d at 951 (holdi ng that

a “full and fair

hearing” is not a prec onditi on to acc o rding 2254(e )(1)’s presumpti on of correc tnes s to
a state ha beas cour t’s find ings o f fac t); but

se e Va ld ez v. C ockr ell , 274 F.3d at 966 (Dennis, J. , d is se nt in g) ; 1 7A Ch ar le s A. Wright & A rthur R . Mil ler , Federal Practi ce and Pro cedure § 4265.2 (2d ed. 1994) (“Indeed t

he new statute does not

even requir e that

the st ate court that

made the determi nation ha ve been a court of competentjurisdic ti on. Pres umably t he

cour ts will cont

inue to insist

on th at and it is like ly that som e of th e othe r elem ents record.
And in an evide ntiary hearing in the p rocee ding in the Federal cour t, when due pro of of such fact ua l det ermin ation has bee n made, unless the exist e nce of one or mor e of the circumst ances respe ctively setforth in paragraphs numbe red (1) to (7 ) , inclus ive, is shown by the applic ant, oth e r wis e appears, or is admit

ted by the respondent , orunless the court conc ludes pursu ant to the provisi ons of paragr ap h numbered (8) that

the record i n the S t a t e cour t proceedi ng, considered as a whole, doe s no t fairl y
s u ppor t such fact u a l determi nation, the burden shall rest upon the appl icant to establ ish byconvinci ng
e vidence that the factu a l determ in a tion by the S tate court was erroneous.
28 U .S.C. § 225 4(d) (1994 ) (superseded ).

### 30

that we re in th e old st atute but not i n the

new one w ill be read back into it bythe courts.”).
On its face, t

herefore, the amended habeas statute a ppea rs to obviate any nee d to con s ider Lambert ’s jurisdi ctiona l and procedural argum ents against ou r d eferrin g to the PCRA Court’s de ter minations; AEDPA el imi nat ed the threshol d language el iminating the pres umption of cor rectne s s when “the State c ourt l acked jurisdi ction”

or “the factfinding pr ocedure employ ed by the State court was not

adeq uate to afford

a full an d fair h earing .” W e dec line to conclude , how ever, that state court jurisdicti o n or pro cedu res are entirely irr elevant

in a federal court’s habe as
rev iew of s tate c our t dete rmin ation s. 

### Even under

AEDPA, federal cou rts
are to defer

regarding claims “ adjudicated
on the merits in State court p roceedings.” This implies that

the c la im m

ust be adjudicatedby a

court of com

petent juri s diction, as opposed t o a kangaroo
c ourt o r an adm inistr ative bod y masque rading as acourt. At the same time, however, AEDPA’s am

endment s to t

h e habeas statute surely

lower the

level of scrutiny a federalcourt is entitled to apply to the iss ue of stat

e court jur

isdict ion. For purposes of ap p lying deference under secti on 2254(d) and(e), when a v alid state court judgment e x ists a federal habea s court should gener

ally presum e that t he st at e court prop erly exercised it s jurisdiction. 23


### Si mi la rl y, the procedu res a state
c ourtapplieswhen adj udicati ng a petitioner’s claim s ma y a lso be relevant during habea s re view. The extent to which
astate court afford ed a

defenda nt adequate procedural means to develop a fac tua l record—whe

ther the defendant was afforded a“full and fair he aring,” to pu t it in the par lanc e of the pre -AEDPA sta tute—may

well affect whether a stat e court’s factual det ermi nation wa s “rea sonable” in “light of the evidence presentedin theState court proceeding” or whether the petitioner has adequa tely
r eb utteda presumption th at the state court’s determinat

io n is correct. See Taylor v. Maddox , 366 F.3d

992, 1000-01 (9 th 

### Cir. 2004 ); cf. Valdez v. Cockrell , 274

23 

### This is somewhat different than th e le vel of scrutin y we apply to state jurisdictionalq ue stions in the context of determ ining whether ther e is an adequa te andindependent

procedural bar to federal habeas relief. See, e.g. Hull v. Kyler , 190 F.3d88, 100-03 (3 d Ci r. 1999). The Sup reme Court has specifically delineated ther ole of a fed eral habeas cou rt in
asses sing whether a st at e court decision rests on an independent

pr ocedural bar. See Colema

n v. Thompson , 501 U.S. 722 (1991). In the

instant c ase , howe ver, we deal with the jur

isdict ional is sue in the different context of

deferring to state court fact-finding -- an area in wh ic h C ongress spoke in AEDPA by

facially elim inatin g therequirement

of a j ur is di ct io na l i nq ui ry.

### 31

F.3dat 951 n.1 7; Men diola , 224 F.3d at 592 (“If a state c ourt’s finding res ts o n thin air, the petitioner w ill have little difficulty satisfy

ing the stan dard s for relief under§ 2254”); Weaver v. Tho mpso n , 197 F.3d 359, 363 (9 th 

### Cir. 1999) (statements in the trial judge’s lett er were not “factual determinatio ns” because they
we re not “subject to any of the usua l judicial procedure s de si gned to ensure
acc uracy ”). In other wo rds, the extent t o which a state court pro vides a “full and fairhearing” is no longer a th reshold requirement

before defe

rence a pplies; but it might be a conside ration while appl

ying deference under § 2254(d)( 2 ) and § 2254(e)(1 ).
We n eed not com

prehensively

or exhaustively ad dr es s h ow de ep ly a federal habeas co ur t m ay p lu mb th e a de qu ac y o f state court jurisd iction and p rocedures in decidinghow to apply

secti on 2254(d) and (e)(2). We conclude in the particular circumsta nces of this case tha t no jurisdictional conce rns obvi ate th e applicatio n of AEDPA’s deferential scheme o f revi ew. Nor

do any procedural issues lower the

level of deferenc e we must afford. First, the P enns ylvania c ourts affirm atively exercise d juri sdiction over La mb ert’s PC RA petition . Judg e D alzell concluded that the PCRA Court and Superior Cou rt l acked jurisdi ction unde r Pen nsylv ania law and t hat, unde r Pen nsylvan ia law, “‘[w ]here a cou rt lacks juri sdiction in a case , an y j udgment regard i ng the case is voi d.’” Lambert v. Blac kw ell , 175 F. Supp. 2d at 787 (quoting Rieserv. Glukowsky , 69 0 A.2d 742 (Pa. Super. 199 7)). B ut a f te r AE DP A elimi nated j ur isd ict io na lly- base d chall enges to st ate court d ecis ion s, a federal habe as co urt has at mo st a circumscribed role in reviewing whe ther a state cour t p roperl y appl ied it s own law when i t explicitly deci ded to exercise juri sdiction. 24

24 “ The Un it ed S ta te s Su pr eme Cou rt has repeatedly declar ed that , in a federal h abea s proceeding such as this, ‘state courts are the ulti mate exposi tors of sta te la w . . . and w e are b oun d by their

c o nstruc tions except i n rar e circumstan ces.’” Humanik v. Beyer , 871 F.2d 432 , 436 (3d Cir

. 198 9) (quot ing Mul l aney v. Wilber , 421 U.S. 684, 691 (1975)). We reiterated this po int in Johnson v. Rosemey er , whe re w e summarized our precede nt as couns eling that “a federalcourt i n a habeas case must be most circum spec t in re-ex amin ing state court decisio ns,” and “o nl y i n extraordinary c ircumst ances shoul d a federal district court in a habeas corpus

case decli ne to fol low the opini ons of a state intermediate cour t of a p peal w ith respect to st ate l aw rendered i n earli er proceedi ngs involvi ng the petit ioner. ” 117 F.3d 1 04, 114 -15 (3 d C ir. 1997 ); see also Poe v. Caspa ri , 39 F.3d 2 04, 207 (8 th Cir. 1994) (“Juri sdiction is no excepti on to the general rule t

hat fed eral courts will not enga ge in coll atera l revi ew of state cou r t decisi ons bas ed o n sta te law .”). Of course, i n Hu man ik , Barry , Rosemeyer , and Poe , the st ate court dete rminati ons of sta te la w

### 32

To be sure, the Superi o r Court’s decisi on ap pears to be internall y c on tr ad ic to ry. The Cou rt determined th a t Lambert’s PCRA petiti on was un t imely and the PCRA

Courthad “no juris diction to address the substanti ve mer its of the pet ition.” Commonwealth v. Lambert , 765 A.2dat 319 . Ye tthe Court d ecided to entertain Lambert’s appeal and review the PCRA Court’s jud gment. Id. at 322-23. Thatdecision was moti va te d i n p ar t b y a reco gnition that the Pe nn syl van ia Su preme Courtdecisi on in Commonwe alth v. Fa hy , supra , that

established

a jurisdictional bar to untimely

PCRA filings di d not issue until after

Lamber t had filed her P CRA applica tion. In other wo rds, t he Superior Courteffectively

determined to ca

r ve out
an ex ception t

o Fahy ’s ret

roactive applica tion, at least in the s omewhat unusual circumsta

nces of Lambert’s ca se. 765 A.2d at 32 2-23. A f ederal courtwill normallydefer to a

state court’sdecisi on about retroactivity of state decision s. See Fiore v. White , 531 U.S. 225 (2001).
In short, the Superio r Court d ecide d to retain and e xercis e jurisdi ction. The Superior Cou rt’ s opinion concluded by stating: “ Bas ed upon t

he for egoin g, we hold that Appellant has not met her burden underthePCRA statut

e. Ac cordingly , we affirm the PCRA court 's orde r deny ing A ppella ntthe collateral relief sh e

request ed. Order affirmed.” Id. at 363. Whatever our resid ua l ability

to exam ine st at e court jurisd iction in oth er instances, theexerci se of jur

isdi ction by the state court in this instance d oes not call into question that adequacy

of the s tate court proceeding und e r sect

ion 2254(d) and (e). 25


### W e turn to Lam bert’ssecond argument. Several prose cuto ri al and law enforcem ent witnesses, who Lambert alleges engaged in extensive miscond uct, te stified at the PCRA hearing. Lambert argu es that the PCR A Court refused to “allowLamber

t to cros s-exam

ineth e per petr ators of the pro secutoria l misconduct.” Lamber

t Br. 34. She

went to the merits of the petitioners’ habeas claims. Here, the Superior Cou rt’s determi nation of stat e law regar ds whether

as a jurisd ictiona l matter state co urts could enterta in Lambert’s c laims on col late ral

re vi ew. 

### See note 23, supra

. 25 

### Our decision in In re James , 940 F.2d 46 (3d Cir. 1991), which Lambert cites in her brief, d oes not p ersuad e us o therwise. There, we held t hat a feder a l court may vac ate a state court de cisi on when the state court acts i n violat ion of the federal bankruptcy

stat ute’s au to ma tic s tay provisions. See Raymark Indus ., I nc. v. Lai , 973 F.2d 1225, 1132 ( 3d Cir. 1992) (construing In re James ). We reached that conclusi on because an aut omatic st ay obviate s the state court’s j urisdi ction a nd renders its decisi on void ab ini tio

. In re James differs from this case (and most cases) because the state court ’ s juri sdiction, or lack

thereof, was a functi on of federal law (the f

ederal bankruptcy statute). Her e , i n co ntra st , t he P CRA Cou rt’s jurisdictio n is a m atter of state la w.

### 33

contends tha t the PCRA Co urt’ s credibility determ

ination are not wor

thy of defere nce because “credib ili t y determ inationsof

witnesses who are never subjectedto the

cruc ible

of cros sexamination

are not entitled to def erence.” Id. She cites case s sta nding for the propositi on that cross -examinatio n provides “ the principal mea ns by which thebelievability of a witness and the truth of his testim

ony are t

ested.” Davis v

. Alaska , 415 U.S . 308, 31 6 (1974 ).
We find Lambe

rt’s a rgu m ent, as she fr am es it, extrem ely misleading. Cross-ex amina

tion is “[t]he questi oning of a witness at

a tria l or hear ing by the party opposed to the part

y w ho called t

he witness to testi

fy .” Bl ack’s Law Dictionary 383 (7 th 

### ed. 1999 ). (emphasis added). The PCRA Court did not

pr eclude Lambert from c r oss-examining an y witnesses. Rather, the Court a

pplied Pe nnsylvania law on evidence a n d, except for one instance, did no t al low Lambert to ask leadingquestionsto the wit ne sse s she called on di rect e

xamination . PCRA Court Decisi on 47-59. Lambert d oes not complain that she

was not allowed t o cross- examine Commonwealth witnesses.
More import

antly , however, the fact- fi nding process was n ot inexorab ly underminedby the PCRA Court’s evidentiary

determ inat ion. We ha

ve extensively reviewe d the rec or d o f the PCRA hearing. The PCRA Court’s decisi o n not to allow Lambert to ask leadingquestions of witnesses she called
on direct examination

in no way

impugns the Court’s factualdeterminations. 26 

### That

26 

### We conc ur in the foll owing observat ions of the Pennsy

lvania Supe

rior Court: [T]he PCRA cou r t permitted counsel t o defend Appellant's rights with zeal, bringing to th e attent

ion of thecourt all of the e rr ors that, accordi

ng t o Appellan t, causedher an unf air trial. The P CRA court allowed her to reiterate

her cl aims andexplore every

avenue for relief. The PCRA court demonstrated

r emar kabl e patienceand thoroughn e ss throughout

the proceed ings, which provided for review
on app eal over

eigh t thousand pagesof t estim

on y fr om trial and the PCRA hearing, along wi th other filings, as well as the PCRA court's three hundred and twenty (320) p ag e main opinion. 765 A.2d at 32 3. We also note th at th e PCRA CourtallowedLambert to im peach witnesses using testimony developed at th e 19 97 federal habeas hearing, where Judge Dalze ll apparently le t h er at to rn eys askleading qu estions. See, e. g

. , App. 3793. This further unde rmine s any suggesti on that we shou ld not def er to the PCRA Court’s fa

ctual de term inationsdue to Lambert’s inability

to “cross-exam

ine”

### 34

is not to say

that in c ertain i nstan ces a court’s prohibiti on on asking le ading ques ti ons cou ld n ot u nde rmine to so me ext ent a stat e court’ s factua l determinat

ion s. This is s imply

not such a
case. C. The Merits
We discern in Lambert’ s brief twelve claims supporting her petiti o n for
a writ of habeas corpus. Those are t h e cla imsfor whi ch we grant

a COA. 27 

### We addressthem in turn.
As a preli min ary matter , we n ote that Lambert rel ies on t

he same r ecord in he r federal habeas proce edings as she di d in the st ate PCRA proceedi ngs . She has made no atte mpt to augment t he record. We therefore sim pl y ap pl y § 2254(d )(2)’s reasonableness st and ar d t o t he P CRA Cou rt’s factualdetermi nat i ons. W ith respect to the tri al court ’s fact ual determinations, how ever, we apply a twotiered analysi s because Lamb ert se eks to
re b ut the trial c ourt’ s findi ngs through 

### witnesses.

27 

### Lamber

t does not pur sue on appeal many

of the n u merousclaims she pursued at onepoint or anot her during t

he lengthy state and fed eral proceedin gs. Lambert allegedbefore Judge Dalz ell and thePCRA Court, for example, that Corporal Solt fabricated

a portion of the writtenstatement that the Commonw ealth claimed at tri al r epresented w hat she told thepolice when they a

rrested her the d a y of Show’s murder. As we explained above, Solt tes tified t

hat a fellow of

f icer transcribed

L amb ert’sstate

ment a nd she later signed it. A port

ion at the end of the state ment is handwritten , h owever, w hile most of the state ment wa s ty

ped. In the ha n dwrittenportion, Lambert explained theroute she too k to fle e t he Show apartment. She also s aid tha tshe was
w e aring black sweat pants and a red flannel shirt (i.e. Yunkin’s clothing). A ppellate App. 1581-82. Lambert cl aime d before Judge Dalz ell and t he PCRA Court th att he police fabricated the handwritten portion. See Lambert v. Blackw ell , 962 F. Supp. at 1542

. Yet at trial Lam bert specifically ackno wl edged telling Solt whatthe handwritten por tio n of the state ment indicates—namel

y that she was wearing Yunkin’ s clothes—bu t s h e cla imed she had lied to the police. Wh e n askedwhy she lied, Lambert explained that she “thought

if they found the clothes they would k now th e y were

Lawrence’s clothes and he wo uld get in tr o uble so I said I had them on .” App. 12 18. On its face, then, Lam bert’s
acc usation

of miscondu ct against Solt i n federal co ur t i s u tt er ly b eliedby her ow n testimony at trial . We as sume that Lambert does not pur s ue this claim, and oth ers, because she has t

aken the pr

ud ent c ourse of only pursuing the argume n ts s he perceives as he

r st ronge st. Regar

dles s, we only grant a COA on those issues Lambert has briefed and pursued on appeal

. We observe that many of

the c laims raised in District Court were

as ill -founded as t

he fabrication c laim we discuss here.

### 35

evidence that w as no t be fore th at cou rt,
nam ely evidence deve lope d atth e PCRA proceedings. Thus, when revie wing tri al court factu al de terminations, we first determi ne whether the y we re reas onab le in light of the re cord before t

he tri al court. If reasonabl e, we then look t o whether Lam bert has re butted the fin ding with clear and convinci ng evidence adduc ed at the PCRA hearing. 

### 1. The Sweatp ants As we exp lai ned ab ove, Yu nki n testified that Lamber t wore hi s sweatpants—whicht he police eve ntually ob tai ned and which contained Show’s bloodon them—t

he morning of

Show’s murder

. Lambert argues that th e Commonweal th—spec ifically th e prosecutor, John Kenneff—kne w that Lambe rt did not wear Yun kin’ s sweatpants th at morning and nonetheless elicited te stim ony fr

om Yunkin to t

he
co nt ra ry. She also a

rgues tha

t the Comm o nwealth “switc

hed” the sweatpa

nt s at the PCRA Hearing. T h at is, she argues that th e Comm

onwealth r

eplace d the sweatpants f

r om the t rial with a differ

ent pair, which it of fered into evidence at the PCRA Hearing an d told thePCRA Court
were the same swe atpantsas those from the trial.

a. Knowing Use of Perjured Te stim

ony The Supreme

Court has long h eld that the state’s knowing use o f p erjured testimony t o obtain a conviction violates theFourteenth 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. Ho lohan , 294 U.S. 103, 1 12 (1 935). In United Sta tes v. Agurs , the Supreme Court characte rized this line of cas es a s fi nding i t fundamentally unfair to the accused where “theprosecution ’s case includes p erj ured testimony and[] the prosecution

knew, or should have known, of the perj u ry .” 427 U.S. 97, 103 (1976). “The same is true when the governm

ent, al though not soliciting false evidenc e, allows it to go uncorrectedwhen it app ears at trial.” United States v. Biberf eld , 957 F. 2 d 98, 102 (3d Cir. 1992) (citing Giglio , 405 U.S. at 153).
In suc h circumstances, th e convicti on must be set as ide “ if the re is any reasonable lik el ihood th at the false testimony could have

affecte d t he judgment of the jury.” Id. In United States
v. Bagley , theCourt expla ined: “Although thi s rule isstated in terms that t reat t he knowing use of perjure d testimony as error subject to harmlesserro rreview, it
m ay as easily be stated as a m

aterialit y standardunder which the fact that testimony is perjured is considered materia l unless failureto disclose it wo uld be harmless b e yond a reasonable d oubt.” 473 U.S. 667, 679-80 (1985). Thus, in order to make o ut a constitutionalviolatio n Lambert must show th at (1 ) Y un ki n c om mi tt ed pe rj ur y; (2) the governm

ent knew or s ho ul d have knownof his perjury; (3) the testimony went uncorrected; an d (4 ) there is any
reason abl e likelihood that the false

### 36

testimony could have

affectedthe verdict. The state trial court and PCRA Court
con cluded that

Lam bert had in fact wo r n Yunkin ’s sweatpa nts and Yunki n therefore did n ot perjure h imself. These factual dete rmi nat ions prec lude a finding of constitution al e rror, and we review them under the a pplic able AE DP A standar d.
At tria l Lambert’s c ounsel, Roy Shirk, strongly urged Ju dg e Sten gel to conclude that Lambert did not wear Yun kin’s clothe s o n the day of S how ’s

m urder, and he developed testi mon y t o support this arg um ent. H e elic ite d testimony fr om Yunkin’s fri end, Vincent Orsi, that Yunkin woul d we ar the sweatpan ts “to bed, bumming around the hou se.” App. 950. Lambert testi fied that although s he told t

he polic e that she w ore
a red fla nnel s hirt and black swe atpan ts the morning of

Show’s murder, s he had lied to them in order

to prot ect

Yunki n. To contradi ct the rea son Yunkin gave for why Lam bert wore his cl othing—i.e. , she was

we ll i n to her pr egnancy —S hirk el icited testimony that L amb ert w as ba rely “showing” at that st age o f her pr eg na nc y. And he had the follow ing ex chan ge w ith Yunkin on cross- examinati on: Q. So basically what you are tell ing us here this morning, M ichelle wa s we aring a ll your clothi ng?
A. C orrect. Q. The sweat pa nts were yours. A. C orrect. Q. The red flannelwas yours. A. C orrect. Q. The jergo wa s yours. A. C orrect. Q. I’ m going to show y ou wha t ’ s been marke d Common w ealth Exhibit 10. Tha t’s your jack et? A. Yes, it

is. Extra l arge. Q. Extra l arge?
A. C orrect. Q. I’ m going to show y ou wha t ’ s been marke d Co mm onw ealt h Exhibit 9. They are your sweat pants?
A. Yes. Q. In fac t you u sed to wear them to bed and y ou used to
wear t he m w hile you were lounging around. You used to wear these qui te a bi t, didn’t you?
A. Yes. Q. Now you indicated that M ichelle was pregnant at the tim e, is that co rrect?
A. Yes. Q. You ind i cated she was
seve n m onth s preg nant.
A. Around there, y es.

### 37

Q. Around six months?
A. Between six and se ven. Q. Sh e w as n’ t re all y h eav y at the ti me , w as s he? She

wa sn’t sho win g a lot.
A. Not reall y, no. Q. But it’ s your

testimony that she l eft the house t

hat day basica lly clothe d in y our clothi ng. A. True. Ap p. 27 3-7 4. During his closing argu ment, Sh irk argued that a ll t

he evidence s uggested t hat Lam bert did not wear Yunkin’ s cl o thing. The releva nt portion of his cl osing wentas follows:
The as sum p tion w e’r e supposed to ma ke is th atmy client, due to he r p re gn an cy,
wore Mr. Yun kin’s clothes, perhaps to be mor e
com fortab le because she

was preg nant a nd o bvio usly bigger t han she normally i s; although Ch ief G lick, in h is tes tim on y, indicat e d she really wasn’t showing t hat much. I fin d it, or t he defense fi nds it , inc redibl e. W ould you ho ld up th a t jacke t.
Mr. Jeffr ies: ( Complying wit h th e req ues t.) Mr. Shirk: That is for a fray in the morni n g that was going to las t, what ever, a n hour or two, t

hree, s he

wo uld wear this for co mfo rt; and the cl othing s he p ut on to we ar the re st o f the da y,
or at le ast t

he c lothi ng that Det ecti ve—T rooper Sol t indicated he beli eved she had on that e v e ning, t he differe nce in si ze. She was going to spend a lot more ti me in th is— (holdi ng up a sweater) —and she h ad to

wear t hat for comfort

a few hours in t

he morning. (Holding up a pair of p ants .)
This is w hat she wore the rest of the day, com pared to th em. You ma y si t down. Thank you. (Mr. Jeffries r eturnedto the def ens e tab le.)
Mr. Sh irk: Y ou H ono r, I think even the clo thing is consi stent with th e de fe nd an t’s tes tim on y. Vin nie Orsi sugges ted that Mr. Yunkin wor e them to bed any time h e w as over there, wore th em a round lei su re ly. M r. Yunki n admitt ed fr om the stand he

wore those sweat

p ants to bed. Lis a L am ber t, i n her

### 38

tes tim on y, s aid, interesti ngl y enough, just

off the cu ff : He got up that morni ng, had h is sweat pants o n, thre w something on and away they

we nt.
Prob ably very likel y what happened, he was getti ng up early that morni ng, justkept

on his sweat

pants, threw on his red fla nnel, his j ergo, and awa y th eywe n t. It woul d seem incre dible t hat the y got up that

time i n t h e morning and he wears these to bed all t

he time, he took them off to gi ve them to her t o put o n. D ifficu lt to belie ve. I think th e cloth i ng is consist ent with he r statem ent. App. 1289-90.
After Judge Stengel found Lam bert gu ilty, she again a dvanc ed her arg ument regardi ng Yunkin’s sweatpants in her pos tverd ic t motion seeki ng an arres t of judgment and a n ew tri al. Addressing t he argument that t

he evidence r eg ardi ng the

swea tp ants rendered t

he verdic t agai nst the weight of the evidence, Ju d ge Stengel wrot e: “ [F]or defendant to argue t

hat the kill er was w earing M r. Yunkin’s cl othing and, theref

ore, must have been M r. Yu nkin is ludicr ous. . . . The cour t li stened t o the testimon y re garding t

he clothing, obs erved the size of

the garment s and the s ize of the peop le inv olv ed, i

. e., Ms. Lambert, Ms. Buck and Mr. Yunkin, and foun d there to be no questi on rais ed by t he fact t hat the

c lothi ng appe ared to be M r. Yu nkin ’s. ” App. 1633 . A s Judg e Sten gel later p ut it: “The o n ly real que sti on was whether [La mb ert] could have worn sw eatpa nts owned by the large r Yunkin. Thi s was resol ved by the court’ s observat ions of the sweatpan ts , of M r. Yunkin, of Ms. Lam bert, and the conclusion that Ms. Lam be rt could certainl y have worn t he garment. ” PCRA Decision 204.
Lam bert urges us t o con clud e that the tri al court’ s findi ng of fact was

unre ason able given the rec ord b efore it and that t

he only reasonabl e con c lusi on
was that Yunkin wore t he sweatpant s the day of the murder. Her argument is this: Since Yunkin w as 6 '1” t all a nd weighed 190 pounds and he admittedly wore t h e
swe atpan ts at ti mes, it

was impossi ble for Lam bert (who was 5'6” t all a nd weighed 143 pou nds at

th e t im e) to ha ve wo r n th em. In ord er to accept L ambe rt’s argu men t, how ev er , w e must make several specul ative leaps th at find no su ppo rt in the rec ord. F irst, we must infer t hat it was physically impossible f or La mb ert to fit into a pair o f sw eatp ants that would ha ve fi t t he larg erYun ki n. Alter na ti ve ly , w e must assume that

peo pl e alway s wear clothe s that fit t hem perfectly

— that is, peop le never wear cl othes that are large on them—and that i t is theref ore unreasonabl e to conclude that ei therLam bert or Y unk in

wore swe atpan ts t hat did not p rope rly fit th em. But neither of

th ese su gges tions is supporte d by the record or common sense.

### 39

The PCRA Court consi dered Lam bert’s ar gume ntand re ach ed t he s ame
c onclusi on. “Petit

ioner s uggests t

hat the

swe atpan ts in 199 2 were so lar ge,” the Cou rt explai ned, “that Ms . Lamb ert wo uld be ‘ swi mm ing in them .’” But, the Co urt concluded, “[t]he re is simplyno testimony

or even an y arg ument to th is ef fec t.” PCRA Decision 209- 10.
W e agree with this con clusio n

. Against the weight of L amb ert’ s spec ulative argu men t is a c on clu sio n b y a finderof fact who had the oppor tuni ty of observi ng both Lam bert an d th e
sw eatpan ts durin g the tria l itself

. Lam bert’s counsel was fr ee to ar gue that Yun kin’s clothes w ere too big fo r Lam bert to wear, but t

he judge was free to disregard those arguments and to base his findings on his own observat

ion.
Thus Lambert’s c laim that the prosecution mu st h ave knowing ly reli ed on perjur ed testi mony because the sw eatpa nts did not fit

collapses. Lambe rt ’s vehement disagr eement with the prosecuto r’s theory

— and w ith t

he judge’s finding — does not amo unt t o a good faith basis to alle ge perjury

. T here is simp ly no fou ndatio n in the r eco rd f or th is alle gatio n. b. “Switching” Evidence
Lam bert argues t hat she is nonetheless entitled to relie f d ue to the Com mon wealth’s misco ndu ct at t he PCR A hearing. Sp ecif ically, Lam bert argues that at th e PCRA hearin g, the C om mo nw ealth offered into ev idenc e sw eatpa nts that were differe nt than thos e offered i nto e vidence at tri al. In other

words, she ar gues that “ the Co mm onw ealth switched evi dence and produced different sweatpants than those used at trial.” Lam bert Br. 41. The P CRA Cou rt rejec t ed L amb ert’ s argu men t, because it foun d th at th ere was no “proof that the sw eatpa nts adm itted into evidence

as Co mm onwealth’s Exhibit 9 in 1992 have ever been al tered, chan ged , or sub stitute d.” P CR A D ecis ion 209

. To support he r “sw itching ” claim before the PCRA Court, Lambert off er ed te stim ony that t

he sweatpant s at t

he tri al tes ted positive for bl ood, while t h e
swe atpan ts atth e PCR A h earing did n ot. In additi on, a texti le expert opined t hat the

swe atpan ts at the PC RA hearing w ere sized “boy’ s extr a l arg e” and that a 6'1" indivi dual who wei ghed one hundred and ninety pou nds— Yu nkin ’s app roxim ate height and weight at

the ti me o f the

mu rder— could not fit i nto them

. Lam bert’s trial counsel, Roy Shirk , al so testifie d at the PCRA he aring that, to the bes t of his r ecoll ecti on, the sweatpants at the PCR A he aring w ere smaller than those at tria l. He also opi ned that the swe atpan ts at th e PCRA hearin g w ould not fit Yunkin.
On the oth er han d, th e Co mm onw ealth offered evi dence that the officer wh o log ged th e con tents of the bag found in the d um pste r behind K -Ma rt lis ted the sweatpants t hat w ere ev entua lly admitt ed into ev idenc e at t he tri al as “ladi es dress ‘black’ sw eatpants (app ears
sm all size) .” App. 7015. This would tend to contradi ct Lambert’s ba ld asse rti on that the swe atpan ts at tr ial w ere so huge t hat she could not w ear them . The foren sic scientist who performed the t est t o check

### 40

for blood pri or to the t ria l, Donald P. Bloser, Jr. , t esti fied that the markings he made on th e sw eatpa nts fro m trial sti l l appea red (albeit f aded ) on th e sw eatpa nts at th e PCRA hearing. Bloser al so test ifie d that the sw eatpa nts tested “very weak” for blood prior

to trial i n 1992 a nd tha t he found no presence of b lood when he retes ted other evi dence (such a s the ski hats) that ha d als o t ested “ve ry weak” for blood in 1992. App. 2759. 28 In addition, an investigator

fr om the Commonwealth, James Gallagh er, test ifie d abou t a ph otog raph he too k usin g the s we atpan ts in evi den ce a t t

he P CRA hearing. He took

a photograph i n which he lai d the

swe atpan ts against cardb oard box lids that h ad also appeared in a phot ograph of th e
swe atpan ts from trial. The C o ur t
con cluded th at the two photographs looked sub stan tially sim ilar.
Given the rec ord before it , the PCRA cour t’ s factua l dete rminati on that the sweatpants wer e no t “sw itched ” is

reaso nable

. There is s ubstantial e vidence in the re cord to s upport t he conclusi on, and the evide nce to the co ntrary is

con side rab ly we ake r. M ore important , Lam bert’ s “switchi ng” clai m provides no bas is for habeas reli ef. She a rgue s that “the Com mon wealth’s atte mpt to uph old La mbert’s convict ion on evide nc e cont rad ictory to that

used to convi ct her violates ‘the most

basic notions of due process.’” Lambert Br. 41. In support of this proposition, she ci tes Dunn v. United States , 4 42 U .S. 1 00 ( 197 9), Smith v. Groose , 205 F .3d 1045 (8 th Cir. 2000) , and Thompson v. Calderon , 120 F .2d 1045 (9 th Cir . 199 7).
In Dunn , the Court of

Appeals had affirmed a conviction based on fact s that ha d be en adduced at t

rialbut that

neithe r sup ported the offense charged i n t h e indict ment nor provi ded the foundation for the jury ’s convi ction. The Suprem e Cou rt held that “ app ellate co urts are not fre e to revise the basi s on which a defend an t is convict ed simp ly becau se the s ame result

wo uld likel y obt ain attri al. ” 442 U.S. at 107. In other words, a defenda nt’s due process rights a re viola ted w hen h is

conv ict ion is affi rmed on an offense t hat he w as not char ged with and that was not present ed to t he ju ry or court that t ried hi m. Sm ith a nd Thompson involved inst ances wh ere th e g overnment offer ed contra dicto ry theori es i n tw o sep arate trials to con vi cttwo in di vi dua ls for th e s ame
cr ime. The Thompson court hel d t ha t “when no new signifi cant evi dence comes to light a prosecu tor cannot, in ord er to convict two defendants a t separate tri als, offer incon sistent th e ories a nd f acts regardi ng the sa me crime. ” 120 F.3d at 1058. The Sm it h court conc luded that the “State’s us e o f f ac tu all y co ntradictory theori es consti tuted‘f oul blows’” and “deprive d [the defendant ] of due p r ocess 28 

### Bloser also testi fied t

hat evidence th attested “positive” for blood in 1992 tested “very

weak” for bl ood when he tested it prior to the PCRA

hear ing. App. 2759.

### 41

and re n dered his trial fu ndam entally unfair. ” 205 F.3d at

1051.
To a cert ain degre e Dunn a n d Sm ith / Thompson repres ent dif ferent sides of the same coin. Dunn requires a ce rtain degree of verti cal consi stency(between tri al and appeal) in the t heories the government offers, wh ile Sm ith and Thompson requi re a cert ain degre e of horizont al co ns is te nc y (b et wee n t wo trials ). Bo th li nes of cases are inapposit e, how ever, because they do not provide a bas is fo r ha bea s relie f he re. Lam bert’s argument suff ers fr om the sa me “ fu nda men ta l f la w” tha t we identi fied in the petitioner’s a r gum ent in Ga ttis v. Snyder , 278 F.3d 222 (3d Cir. 2002). There , we explai ned:
The fund ame ntal flaw in Gattis' ar gume nt is that in the d ecisi ons of which he complains t he state cour ts did not “up hold [his ] conviction on a charge that

was neithe r alle ge d in an indict ment nor prese nted t o
a juryat trial. ” [ Dunn , 4 4 2 U.S. at 106 ]. The allege dly differe nt theoryof guilt was not present ed on direc t appeal in sup port o f his conviction but in the course of a post-c onvicti on hearing held in connection with hi s claim th a t counselwas ineffectiv e for fa iling to present expert testi mony
conce r ning th e impla usibility of t he sta te's account of the murder. The Super ior Co urt a n d Delaw are Supreme Cou rt did not affirm his conviction based on the state' s t he ory but mere ly found hi s i n effectiveness clai m unpersuasi ve. Th e s tat e's theory play ed a small role, if

an y, in the courts ' r easoning. In this con text Dunn and [ Co la v. Reardon , 787 F.2d 6 8 1 (1 st Cir .), cert. denied , 479 U.S. 93 0 (1986 )] are simplynot appli cable.
Id. at 238.
Si m ila rly, an d m or e im po rta nt ly, habeas proc eedin gs are not the appr opriate forum for Lambert t o pursue cl aims of

err or at the PC RA pro cee din g. As we explai ned in Ha ssin e v. Zim merman , 160 F.3d 941 (3d Cir . 1998) : The fe deral courts are authori ze d to p rovid e colla teralreli ef w he re a petit ioneris in state custody

or und er a federalsentence imposed in viol ation of the Constit ution or the l aws or treat ies of the United States. 28 U.S.C. §§ 2 254 , 2255. Thus, the fe deral ro le in reviewing an applic ation f or habeas corp u s is limited to evaluating wh at occ urred in th e s tate or federa l proceedi ngs that act ually led

### 42

t o the peti tioner' s
co nvicti on; what occur red i n the petition er's colla t eral proceedi ng does not enter into the habeas calcul ation. We have often not ed the general prop ositio n tha t habeas proce edings ar e “hybrid actions”; they are

“ independent civi l disposi tions of completed crimina l proc eedin gs. ” Federal habe as po we r is “li mited . . . to a determi nation of whether there has be en an improper detention by virt

ue of the stat e court j udgment.”
Id. at 954-55 ( in ternal citations omitted);

see also M orris v. C ain , 186 F.3d 581, 585 n.6 (5 th Cir. 19 99); Willi ams-Bey v. Trickey , 894 F .2d 314, 31 7 (8 th Cir. 1990 ). T o b e sure, error

in st ate col late ral proceedi ngs may affe ct t he de fe re nc e we
owe the court ’s fi ndings under § 2254( d ) and 2254(e)( 1). But, as we admonished in Hassine , allege d erro rs in co lla t eral proceedings, such as Lam bert’s clai m that the prose cution “ switched” t he sweat pants , are not a p rope r basis f or ha beas reli e f from the orig inal c onv icti on. It is the origi nal tri al that is the “main eve nt” for habeas purposes.
2. Evidence ofYu nkin’ s Location During the Murder
P ri or to the t

rial , an i ndividual named Kathleen Bayan gave a statem ent to
a Co mm onw ealth in vestiga tor indic ati n g that she had seen Yunkin driving t hrough the Show co ndo mi ni um c omp le x wi th two passeng ers the morning of Show ’s murde r. Lam b ert argues this evi dence shows that the Comm on wealth knowingl y use d perjur ed testimon y, name ly Yunkin’s testimony thathe never drove within t he condom ini um complex that morning. She also argues that the C omm onw ealth’s failure to disclose B ayan’s stat ement prior to the trial vi olate d Brady v. Maryland , 373 U .S. 83 (1963 ).
The circumst an c es surr ounding Bayan’s stat em e nt were thor oughl y
ca n vassed at the PCRA hearing. Bayan testifie d t hat on July 5, 1992 , soon bef ore Lam bert’s trial beg an, D etective Ro nald Savage of the East L amp ete r To wn ship Police Dep artment called h er t o discuss a matter regarding h er son. D uri ng the conversation, Bayan (who li ved i n th e
sa me condo miniu m co mp lex as S how ) to l d Savage that on December 20, 1991 she had

seen a light -hair ed young man driving with two passenger s along the road s he live d on within t he condominium complex.
S avage visi ted Bay an two days lat e r to take a statem ent fro m h er. Ba yan told him that as she was pull ing out of he r driveway on Black Oak Drive, a c ircul ar road that pa ssed thr ough the condomini um complex, sh e s aw thr ee indi viduals drive by in a brown car. The pas se ngers w ere talki ng and a ppea red to be in confli ct, and the young man driving the car push e d dow n the head of the person si tti ng in the fr ont seat. Bayan provi ded a written statem ent tha t prov ided, in releva nt part:

### 43 . . . . On pulling out of m y drive ( at 43 Black Oak Drive) I observed a br own “patchwork coupe” (mid 70' s?) That looked li ke it migh t b e i n th e Ford/M ercury line. There

were three pe ople ins ide. The per son dri ving appear ed t o have li ght hair . And the two passeng ers had da rk c l othi ng. Wh at I

r e memb ered was t h e
mo ve ment inside the car. One passen ge r was in the back [and] one i n the fr ont. The perso n in th e front l eaned ove r t

he se at to wa r d the back and arms w ere moving all ov er. The driver would turn si deways dur ing this tim e. The driver

also was going too fast for the c urves and was no t dr iving i n a stra ightline. I r emember thinki ng that t

he car l ooked out of plac e in th e
co ndo miniu m and tha t whoever was in it

acted dr un k f or 7 A

. M.
I left a n extra c oup le of car le ngths between the br own car and m ine. It exite d The Oaks o n Oakview Rd. To the li ght at 462 then made a right and went straight (?) dow n 462 (sort of sw erving). F r om obse rvin g glimpses of thei r faces the peop le i n t he car were of High School age or very young adults (16-22).
There were n o head lights on , i t wa s d awn and it w a s light en oug h to

se e c lea rly.
The two pa ssengers had on navy or

black t ops and I cou ld no t see the ir hair yet it was al l dark l ike thei r clothi ng. So I would deduct that it wa s a hood. The driver wa s ma le , but t

he passeng ers we re no t de cerna ble [sic] as eit her

sex. The car had pat ches whe re i t may have had primeron it or

a tryat matc hin g th e pain t o f “copp ery brow n”. It rea lly looked so out of pla ce in our

con do.
I am a lm ost posi tive ( 99

. 5%) that Ireco lle ct this

car passing mycu l d e sac wh ile I wa s wa iting to p ull out. The b row n car was moving faster

than our reside nts drive an d took the

curve at Sycamore Drive sh ar pl y. (There i s a sm all chance that the vehic le could have made a U turn at the end of Sycamore Dr ive

### 44

and that i s where the car got in fr ont of me . Bu t eit

her way I remember thi nk ing that the d river

was not driv ing saf ely.)
I had never see n the

car in the c ompl e x before. There were no othe r cars pulli ng out of

the complex during t his time.
I did n ot see th eir fa c es clear ly because of the dist ance, di rty wi ndo ws, and I ha v e a pe rceptu al disab ility that l imit s my span of

focus (i. e. when I look at a license pla te and f ocus on th e fir s t letter , I cannot tell what the last 3 figu res a re). . . .
I wo uld like to apologiz e for not contacting you all soon er. At f irst, I did not realiz e there was a connecti on. Then when I did, the susp ects were
ar r ested [and ] from wh at I read in the p apers , th e re appeared to be enough evidence. Ap pellate App. 1613-15. Bay an testifie d at th e PC RA hearin g that sh e acc identa lly omitt ed from her sta teme nt th at she s aw the driver p ush d own one of the passenger’s heads.
S avag e testifie d that he gave the writt en stat ement to Joh n K enne ff an d told Kenneff that he believed Bayan was n o t credibl e b ecause he thought she had emot i onal problems. Kenneff sent a l ette r to Lambert’s c ounsel, Roy Shirk, st ating: “It is my underst anding t hat it is the defense contention that on December 20, 1991, sho rtl y after 7:1 5 a.m ., Yun kin picked up Lambert at

the wooded area near the inte rs ecti on of the dri veway to t he Oaks Apartment Complex and Oakview Road. If my unde rs tand ing is correct pl eas e advise. ” Appellat e App. 1620. Kenneff testifie d that he sent this letter in order t o determi ne whether he had an obl igati on t o di sclo se B ayan ’s sta tem ent.
Kenneff knew that Yunkin planned to testify that he picked u p Lambert and Buck on Oak View Road— outsi de the condominium comp lex— and B ayan’s stat ement wa s there fore in cons istent w ith Yun kin’s pl an ne d t es tim on y. But Kenneff belie ved, accordi ng to his testimony, that he had no obligation t o discl ose B aya n’s stat ement unless i t corrobor ated the versi on of ev ents Lambert planne d to offer at trial. An d all t he evidence ot her than Bayan’ s statement— including L ambe rt’s stat ement to the pol ice upon her

arres t—indicate d th at Yunkin had picked Lam bert and B uck up outsi de the condominium co mpl ex . A s a resul t, he did not tell S hirk abo ut th e sta tem ent.

a. Knowing Use of Pe rju re d T es tim on y Lam bert’s firs t argument based on B aya n’s stat ement is t hat si nce the stat ement placed Yunk in in th e cond om iniu m complex and Yunki n testifie d that he never ent ered the complex,

### 45

the gov ernm ent kno win gly elicite d perjur ed testimony from Y unkin. La mbert would, in eff ect, have us find a due process violat

ion any time a pr osecutor elicits te st imony t

hat contradict s test

imony that the defens e eli cits . Discr epancy is not
eno ugh to prove per

jury . There ar e many
reasons testimo ny may be incon sistent; perjury is onl y one pos sibl e r eas on. 29 As we explai ned above, i n order t o sustai n a claim of consti tuti onal error Lambert must show that Yunkin a ct ual ly perjur ed hims elf and the government knew or shou ld have kn own o f his perjury . These

are factual determinati ons. See, e. g. , Ortiz

v. Stewa rt , 1 49 F.3d 923, 936 -37 (9 th Cir. 1998) (findi ng no consti tuti onal viol ation because of factualfinding t hat te sti mony
was not p erjured ); United States v. Caballer o , 277 F.3d 1235, 1244 ( 10 th Cir. 2002) (findi ng no cons t itutional e rror because of “the ab solu te la ck of evidence to show eithe r the fa lsi ty of [the witness’s] testimony or the prosec utor' s kno wl edge of false testimony”). 30
Th e PC RA Co urt dec lined to conclude that Y unk in perju red h imself because th e lion’ s share of evidence 29 

### This princ iple isillust

rated by the (perhapsapocry

phal) anecdote tol d about thelegendary English b arrister—la ter Lord Chancellor— F.E. Smith

. Smith , then
ayounglawye

r, was charged

with assault
on a polic e offi cer

ari sing out of a n altercatio n at Oxford . Defendin g himself at trial, Smith denied kicking the officer. The p rosecutor c hallenged th e inconsistency

between Sm

ith’s t estim ony andthat of the

policem an, asserting Smith
was necess arily

accusing the lat

ter of perjury.
As r elated by

an observer at trial (John Si mon, al so a future Lor d Chancellor): On the contrary, said F.E. sweetly , that

is one of five possib le explanation s.

. . . One is that he is
committ ing pe rjury ; the second is that I

a m committing perju ry ; the third is that he is honestly mist aken; thefourth is that I
am honestly mist aken; and thefi f th isthat

the t wo assert ions though apparentl y contradictory

can none the less be reconciled. Viscount Simon, Retrospect 3 6 (Hutchins on 195 2), quoted in John Campbell, F.E. Smith 77 (Pimlico 1991).

30 In the Supr eme Court cases establ ishi ng a due process violat ion for knowing use of perj ured tes timony , it was undisput ed that t

he testimony at

issue was false and the prose cuti on k new of its fa lsi ty. See, e. g. , Nap ue , 36 0 U.S. at 269. Thus the Supreme Court has not addresse d the level of prosecut orialknowled g e necessary to constitute a cons tit utional

v iolat ion. See Drake v. Port uondo , 32 1 F.3d 33 8, 345 (3d Cir. 2003 ).

### 46

corrobo r ated Yunk in ’s te st imo ny . P CRA De cisi on 175. We conclude that the PCR A’s Court’s de cisi on was reasonabl e. In reach ing it s conclusi on, the PCRA Court consi de red Lam bert’ s stat em ent to the p olice u pon her arr est, test imony from three c ond om iniu m
co mplex resi dents, and Buck’s tes timony at the P CR A h earin g. A ft er the pol ice

ar res ted Lam bert the day of Sh ow’s murde r, she gave a st atement cons i stent with being picked up on Oak View Road. She stated that after lea ving Sh ow’s apartment

she ran through “two fie lds” and

a “p atch of woods,” st epped in a cr eek (“li ke a little runoff” ), fell in “the bria rs,” and ended up on som eone ’s backy ard. Si m ila rly, thr ee of Sho w’s ne ighbors (Kle i nhaus, Fred erick F ry, and P atricia Fr y) testifie d at the tri al that they sa w tw o individ uals of g enera lly the sam e build walking in a directi on con si stent w ith Lam bert and Buck being picked up on Oak Vie w R oad

. Buck, who had not ev er prev iously testif ied i n any court procee ding s regard ing the event s of December 20, 1991, testifie d at the PCRA hearing. Buck related th a t she and Lambert entere d Show ’s ap ar tm en t a nd a cc os te d Sh ow. Although Buck made several inculpa tory admissions, she tes tified tha t it was Lam bert who s t abbed Show and slit her throat. 31 In addition, Buck stat ed that after

31 

### Because it g oes to the reasonablen ess of Judge Stengel’s factual determ ination, we n ote his concl usion regarding B uck’s credib ility:
Ms. Buck ha s nothing to gain by lying about Ms. Lambert’ s involvem ent in the death of Laurie Sh ow. I n he r testimony at the PCRA, she h ad the candor

and the d e cency to acce p t responsibility f

or her own role in th e killing. She knows th at she blocked Lau rie Show’s path as Laurie tried t

o escape . She knows t hat she hel d Laurie’s legs down while Ms. Lamber

t cut her throa t. In ourclose obs ervati on of Ms. Buck as sh e testified andin our sub se qu ent consi derat ion of he r te st im on y, we find her credible in her descri p tion of t he murder. She has ackno wledg ed that sh e dese rve s her sent enc e because of he r a ctions on Dece mb er

20, 1991. She has ackn owledged her g uilt underoath in a courtroom in thesame courthouse in whic h her own PCRA petiti on is pending. What possible i mpact will this admis sionhave o n her o wn PCRA claim that

he r trial resulted in a “fundamenta lly unfair” c onviction?

### 47

she and Lambert le ft Show’s apartment they pr oc ee de d t owa rd a wo o ded area,

wa lked acros s a field , and e nded up in “s ome bus hes , ma ybe a di tch” al ong Oak View Road. App. 10426-27.
Furtherm o re, the PC RA Cou rt f ound that Bay an was not a cre dibl e witness. The Court came to t hat conc lu sion for se ver al re as ons . Ba y an d id not come forw ard with her s tate ment unti l sever al months after

the murder, for example, and she only told Savage abou t he r observations after

engaging in lengt

hy and

seem in gly irrel evant di scussi ons regar ding her p ersonal life

. 32 In add itio n, th e PCRA Cou rt allowed Bay an to te sti fy from Flo rida via te lecon feren ce be caus e she told the Co ur t she neede d to care for her handicapped fiancé. Y et the Cou rt subs eque ntly l ear ned that there was an acti ve warra nt fo r her ar rest in Lancast er Co unty for her fai lur e to paytaxes. The Cou rt als o f ou nd th at B aya n’s perceptual disab ility rendered he r tes timon y questi onable. 33 Finall y, Judge Stengel concluded that hi s personalobservation of Bayan wh ile sh e test ifie d vi a tele conference was c onsiste nt w it h Savage’s i mpression i n 1992 that she was not credi ble.
Lam bert argue s th at t he PC R A Cou rt’s factual determi na ti on w a s



### Ms. Buckknows full well that, whe

n she took the sta nd to acknow le dge , underoath i n a co urtr oom, that she actively participated in the kill

ing of Laurie Show, she severel y compromised

any chance that she has that a st a te or federal co urt will b e inclinedto find that she has been wrongly

convicted. Her tes tim ony wi ll not take
aday off her life sentence andwill no t change t he
e vents of December 2 0 , 1991. We f

i nd her cred ible in her description of what happened tha

t morning. PCRA Decisi on 159-60. 32 

### Similar ly, B ay an’s 199 2 state ment pro vided a subs tantia l amount o f informa tion, regar d ing her son, that was irrelevant to her ac count of what s he allegedly s aw on Decem ber 20, 1991. When the Co mmonwealth inquired a bout this at the PCRA hearing, Baya n stated that she “was going through a lot with [her son] at t he time” and wan ted Savage “ to realize wher e I was com

ing from. ” App. 8162.

33 

### When Ba

ya n focuses on a particular object, s he has diff iculty focusing on and seeing the items that surround that object. S o, for exa mple, if she is “looking at one word, ev ery thing else around it jus t isn’t

clear .” App. 8169. As a result, she’s“a w ord-by-word reader.” Id.

### 48

unre ason able in li ght of othe r evidenc e in the record. L ambe rt Br. 52. M os t n ot ab ly, Hazel Show testi fied at

the PCRA hearing that she recal led dri ving past Yunkin on her way home the dayof the murde r and seeing Yun ki n pu sh in g do wn the head of a passenger

in the f ront se at. But she did not recall passin g Y unk in until after she hea rd Bayan testify at the 1997 habe as hearing. At the ti me of the tri al in 19 92, sh e only remembered “a f lash of b row nish colo r.” App. 9210. She te st if ie d at th e PCRA hearing about the conversa ti on she had wi th Sav age a couple of days be fore the trial: [Detecti ve Savage] had told

m e a n eighbor l ad y mentioned that s he had seen
a brow n car le av ing our complex.
When he sa id that, I

saw a flash of a

b ro wnish

c olorand I sai d to hi m, a brownish co lo r? An d then

we w ent over t

his, had I

seen a c ar ? I wa sn’ t sure

. Wh ere was it? I wasn’ t sure

. What t y pe of

car ? Wa s anyone in it ? And I had nothing in my mem ory exceptwh en he said this b ro wn color, I just

saw a flas h of a brown car. Not
even kno win g if

it was a car
or anyt hing and I tried to jog my memory to ge t more information but there w asn’t anyth ing ther e. App. 9210-11. She beca me upset when she

was not able to jog h er mem ory , a nd Sa vage told her

not to worry abo ut i t because they “had soli d witnesse s who could answer the questi ons about the flight that they took, the path that t hey t ook from the condo. ” Id. at 9212.
The P CR A C ourt found that Hazel Show ’s rec oll ection did n ot suf ficien tly

corro bora te Bayan’s testimony to establish that Yunkin perjur ed hi mse lf. Th is

c onclusi on wa s reaso nable in light o f th e full record. First , as the Court noted, Hazel Show could not ru le out the poss ibility that sh e saw the car on O ak V iew R oad. In additi on, Hazel Show did not re colle ct seeing Yu nkin ’s car u ntil app roxim ately six years afte r the event occur red. I n the intervening time she satthrough a t rialand habeas hearing where she heard te sti mony regard ing the ev ents sh e eve ntually

reco llec ted. These facts tend to diminish the value of

her te st imo ny atth e PCRA hearing regardi ng seeing Y unkin’s car, and they bolst er the reasonable ness of the PCRA Court’s f

actual determi nation.
Mo reover, even if H azel Sho w’s test imony suff icientl y corrob orate d Bayan’s statement to sho w that Y unkin’s testimony was incorr ec t , the testimony does not ten d to show that t he government knew or should have kn ow n o f th e p er ju ry. At the ti me of th e tria l, all Hazel Show recal led was a “flash of br own.” In li ght of the sub st antial ev idenc e sup portin g Yun kin’s tes tim on y a n d questi oning Bayan’s credibi lit

y, it was r eas onab le for the PCRA Court to conc lude tha t the government did n ot and shou ld no t h ave

### 49

kno wn Yunk in wa s perju ring h imself (assuming, of course, that H azel Sho w’s testimony in 1997 and 1998 i n f act dem o nstrated he w as lying). 34 The exist ence of

evide nce te ndin g to contradi ct testimony the g o vernment el icit s at t rial does not concl usivel y show that e ither the witness perjur ed himself or (i f he did) t

hat the government k new or should have kno wn of th e pe rjury. The P CR A C ourt’s fac tual f ind ing s are disp ositiv e. b. Suppressi on of Brady Mater ial
In Brady v. Maryland , the Supreme Cou rt held “that the sup pre ssion by the prosecution of eviden ce favo ra b le to t he accused upon request

violates due process whe re t he ev idenc e is ma terial eithe r to guilt or to puni shment, i rrespe ctive of the good faith or bad fai th of the p rose cutio n.” 373 U.S . at 87. T he C ourt su bseq uently held that “ a defendant’ s fail ure to r equest favo rable evidence di d not lea ve t h e Government free o f all ob lig at ion,” and a Brady vi ol at io n mi g ht ari se “where the Gover nment fail ed to volunt ee r
e xculpatory evid enc e ne ver req ues ted, o r request ed only in a general way.” Kyles v. Whitley , 514 U.S . 4 1 9, 433 (19 95). In additi on, impe achm ent ev idenc e, as w ell

as e xc ulpator

y evi dence, fal ls within the Brady rule , see Giglio v. United States , 405 U.S. 150, 154 (1972) , because “[s]uch evidence is ‘e vidence favor ab le t o an accused .’” United States v. Bagley , 473 U.S. 667 (1985) (quot

ing Brady , 373 U. S. at 87). Thus to est ablis h a Brady violat ion requiring relie f, a defendant must show that (1) the gover nmen t withhel d evidence, eithe r willfully or inad vertently ; (2) the evidence was favo rable, e ither be caus e it

was exculpat ory or of impeachment value; and (3) the withh e ld evide nce was mate rial. See Ban ks v. D retk e , -- U.S. --, 124 S. C t. 1256 , 1272 (200 4); Uni ted States v. Palerm o , 929 F.2d 967, 970 (3d Cir. 1991 ).
The PCRA Court found that Lam bert had not made eit her of the latter two show ings. W ith respect to the s econd prerequi sit e, the Court f ound that Bayan’s stat ement was not the ty pe of evidence t hat fe l l with in the g over nm ent’s d uty to disclose under Brady . Spe c ific ally , the Cou rt held tha t “[a]bsent a specific request by the defendant

for exculpato ry evidence,

a pros ecutor ha s a dutyto make evidenc e availa ble to the de f en se that is tru ly exculpato ry rather

than mere ly fav ora ble.” PCRA Decision 170. And it found that t he evidence w as no t “t ru ly ex culpa tory” in p art because Lambert ’s la wyer t old the prosecution that L amb ert pla nned to contend at tri al tha t Yunkin had pic ked her up o n Oak Vie w R oad

. Id. at 17 1- 72

. We

r e view this legal determina tion under § 2254(d)(1) to determine whe ther i t was contrary to or an unreasonabl e appli cati on 34 

### T he PCRA Court did not explicitly make t

his fact ual dete rmina tion, bu t it is implicit in its findin gs. And w e owe AEDPA deferenc e to b oth express an d implicit factual find ings. See Weeks
v. Snyder , 219 F.3d 24 5, 258 (3d Cir. 2000); Campbell v. Vaug hn , 209 F.3d 280, 285-86 (3d Cir. 2000 ).

### 50

of clearly esta bli she d fe der al law

. See Hollman v. Wilson , 158 F.3d 177, 179 (3d Cir. 1998 ).
This porti on of the Court ’s deci sion

was contrary t o federal law, becaus e t h e Supreme Court has “di savowed any differ ence between exculpa tory an d impeachment evidence for Brad y pur pos es.” K yle s , 514 U.S. a t 433 (ci ting Ba gle y , 473 U.S . at 667 ). Her e, as in United States v . Pelullo , “[w]e h ave n o he sit ation in concl uding tha t th e government inexpli cablyfail ed to abide by its obligation un der Brady t o disclose potenti al impe achm ent ev id en ce.” 105 F.3d 117, 122 (3d Cir. 199 7). W h ile Bayan’s statem ent d id not ex culpa te Lam bert, it

wa s inconsist ent with Y unkin’s testimony regardi ng his whereab outs during the crim e . Baya n could have been call ed, theref ore, to contradi ct at le ast one aspectof Yunkin’s t es tim on y, and p erhaps, theref ore, to cast a larger d oub t on h is

cr ed ib ilit y. And while Bay a n’ s o wn credib ility might have been o pen to cha llen ge, resol ution of t hese kinds of credib ility di spu tes shoul d take pl ace in the courtro om, and not thr oug h th e pro sec uto r’s u nilat eral d ecis ion ma kin g. The PCRA Court concl uded, however, that even if the government had erred by not

discl osing the evidence, the with held evidenc e was not materi al for Brady purpos es. “[A] s howing o f mate riality does not r equire a demonstration by a pr eponderance t hat discl os u re of the suppr essed evi dence

wo uld have resulted ulti mate ly in the defend ant’s acquittal. ” Kyles , 514 U.S. a t 43 5. R ather, “[t]he evidence i s materi al only if t here is a reaso nable prob ability that, had th e evid enc e bee n disc losed to the def ens e, t h e resul t of the proceedi ng
wo uld have bee n differe nt.” Bagley , 473 U.S. at 682. 35 In other words, the releva nt questi on is: “when viewed as a whole and in light o f th e substa nce of the pr os ec ut io n's ca se , di d t he go ve rn m en t's failure to provi de

. . . [the] Brady impeachm e nt evidence t o the defens e prior to the [] tria l lea d to an untr ustworthy guilty verdict

. . . ?” See Pelu llo , 105 F.3d at 23; see also Banks , 124 S. Ct . at 1276- 77.
“Bec aus e it is contra ry to
over whel mi ng evidence ,” the PCR A C ourt held, “her st ory would have had no imp act.” PCRA Decision 175. In other words, “it di d not so undermine the truthdetermi ning pr o cess th at no re liable adjudic ation of guilt

or innocenc e cou ld have taken pl ace.” Id. Since this too was a legal determination, we review it als o under § 2254(d)(1) . We co nclu de tha t it

was ne ither contrar y t o nor a n
unre ason able a pplication of c learl y
es tabl is he d f

ed er al la w. The po tential value of B ayan’s stat ement as impeachment e v i dence was

35 

### The KylesCourt also n ote d th at themateriality

of “suppressed e vidence [is to be] considered collec t ively , not item-b y-ite m.” 514 U.S. at 436 . But w e need not follow thatadmonition here since Bayan’sstatement is the only evidence we findthe governm

ent wrongfully

withheld.

### 51

negligible. There was substant ial evidence at trial, includi ng the testimony of L ambe rt hersel f, that tended to show Yunkin picked up Lambert and Buck on Oak View Drive. In any ca se, t

here e xiste d far st

ronger evidence regardi ng Yun ki n’s truthfulness (or lack ther eof ). I n deed, the government conceded in it s closi ng that i t beli eved Yu nkin w as no t fu lly t r uthfu l in his test im on y. See Ap p. 131 5; supra , at Section IV.C. “Suppres sed evidence i s not materi al wh en it ‘ merelyfurnis hes an additi onal basis on whic h t o impeach a witness whose credibi lit y has alrea dy been sh own to be questi onable. ’” United States

v. Amiel , 95 F.3d 135, 145 (2d Cir. 1996) (internal citation omitted).
Mo reover, the materiali ty of the stat ement is neg ligible ev en if it w ould have conclusi vely establ ished that Yu nkin picked up Lamber t within th e condominium complex i n stead of on Oak View Ro ad. A ssum ing th a t Bayan’s stat ement had th at prob ative v alue, it

wo uld have place d Y unkin somewhat closer to the scene of Show’s murder . But desp i te Lambert’s a ssertions t o the

co nt ra ry, placi ng Yunkin dr iving w ithin the cond om inium com ple x d oes not establish th at he enter ed the Show apa rtme nt an d co mm itted the m urd er. Fi na lly, even if evi de n ce showed that Yunkin w as in the apartment , the evidence was s uf fici ent to c onclude that Lam bert was gui lt

y of mur de ri ng S how

. The evide nce a t trial ove rwh elmin gly showed that Lambert

had the moti va tio n (she hated Show), s he suppli ed the murder weapon, and she ente red Sho w’ s apartment that mor nin g. Th us ev en if B aya n’s statem ent fu lly implicate d Y unk in in Sh ow ’s m urd er, it w ould not have sufficedto exculpa te Lam bert. There is no

reaso nable probabil ity that e vidence showing Y un kin was dri ving withi n the condominium complex, r ather t han on a road adjac ent to the complex, would have chan ged th e resu lt of the trial.
3. The “29 Q uestions”
As w e e xplaine d above, when

cross- examining Yun kin at trial Lamb ert’s counsel offe red into evi dence a document that she and Yunkin purportedly passed between each other

while the y we re in jail. Yunki n acknowledged that he a nd Lamber t passed a document between t hem , but he also testifie d that t

he document he was present ed with at t

rial—w hat we refer

to as the “29 Questions” —w as not th e document t h at he re call ed passi ng back and forth wit

h Lam b ert. Yunkin testifie d that his handwri ting appe ared on the 29 Questions and som e of the qu estions we re the sa me as he recal led from the document he p assed with Lambert, but he cl aimed that he never saw some of the questions on the 29 Qu estions docu men t.
As a preli min ary matter , we n ote that Lambert has made much of th is document as conclus ively establ ishi ng her innocence. The trial judge, s itti ng as a finderof fact, found the document

unre liable and inconcl usive. As a result , he did n ot rely on it w hen h e reac hed h is verdict bec ause he concl uded that the document did not

create reaso nable doubt as to Lam bert’s guilt . After reviewing the

### 52

record in some d etai l, we t end to agre e with the tr ial ju dge ’s co nclu sion . A nd we find fancifulLambert’s a ssertion that the only r eas onable concl usion fr om the document is that Yunki n a nd Buck murdered Sho w an d La mbe rt wa s no t involved.
Yet our opini on of the pro bative value of the document i s irrel eva nt. Our role is confi ned to de ter mining whether any constitutional erro r occu rred at tria l. Stri pped of La mbert’s attem pts to retry the

case in anothe r forum, her clai m regarding the 29 Que stions is this: Yunk in’s testimony regardi ng the 29 Questions was perjur ed and the p r osec ution k now ingly elicite d th at tes timo ny. Lam bert spe cifically ba ses this argument on two portions o f Yun kin’s t es tim on y. First , Yunkin te sti fied 

### that although the answers writt en on the 29 Question s appeared t o be i n hi s handwriti ng the 

### 29 Questions was not the document that pass ed b etween him and Lambert in prison. He test ified tha t in the document that had pass ed b etween him andLa mb ert, La

mbert had writt

en the questionsin p encil 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

questionsin the 29 Questi on s were written in ink, and there
was no indicat

ion of any

writingin pencil
on the document. The e xper t also confirmedthat the answers were writ ten in Yunkin’s handwr

iting. Second, Lambert’s c ouns e l asked Yu nkin abou t a porti on of the docu men t in which the fol lowing question and answer appe ared: 5) [Q uesti on:] I think about Tressa and L au rie! I thi nk you guys are si ck! I think about her li fe y ou to ok! A ll th o se peop le at he r fun eral! And I k now ve rywe l l that you don’t fee l sad! You

w ere happy, U weren’t sa d Fr id ay! Do y ou remember seein g [crosse d out word] dead? [An swer: ] Ye s, I remember seeing [cross e d out word] dead. ”
PC RA Opinion (at tached) . Yunk i n testifie d that on t

he document he pass ed back and forth wit

h Lambert he had responded to a qu estio n by ans wering, “Y es, I rem em ber see ing Tre ssa d ead ,” because the qu estio n he was answering ask ed, “Do you remem ber seeing Tress a dead? Do y ou remember going t o her funera l?” App. 329. Yunkin te sti fied that although the 29 Questi ons was not “the

o rigi nal document,” i t was hi s underst and ing the w ord c rossed out in Question 5 wa s “ Tr es sa .” Ap p. 328-30. 

### ButLambert’s expert testified that th e crossed-out w ord was “La urie.”
The P CR A Court found that the prosecution open ly c onceded to the tri al court that

it believe d Y unk in wa s not f ully trut hful i n h is t esti mony regar ding the 29 Questions. The Court explai ned:

### 53

Mr

. Ke nnef f stipu lated to [the testimony of La mbert’s expe rt] on the basis t

hat he had the document examined by a Pen nsylvan ia State Police exa m iner as we ll. Ther e was n ever any effo rt by th e Comm o nw ealth to h ide wh at M r. Yu nkin said or to somehow bolst er what Mr. Yu nkin said with exp ert tes tim on y. Mr. Ke n nef f freely an d openl y acknowledged that thi s expert’s a na ly sis of t he doc u ment was consistent with the defense expert and these expert opin ions we re both inconsistent w ith Mr. Y un ki n’ s te sti m on y. PC R A Decision 117- 118. 36 The C ourt’s finding of fa ct wa s em inently reas onab le in ligh t of the record . In particular, Kenneff made the fol l ow ing state men t to the Court during closing arguments:
Mr. Yunkin. Is he guilt y of the crime of homici de? Fo rt un ate ly, neithe r of y ou have to dec ide tha t in th is

case nor do I have t o argue it. I don ’t think I h eld

an y thing bac k ab out

my feelin gs about Mr. Yunkin. I sa id in my openin gs he’s eithe r lying, he ’s st

upid or he’s naive. Perhaps the evid ence in this c as e suggests he’s al l thr ee. I’m not goi ng to stand h ere and say that Mr. Yunkin was being tr uthful about [the 29 Que stions]. I can’t d o that. T here is no evi dence to d o that. W ha t I c an sa y a b out Mr. Yunkin and what I can say a bou t wh at M is s Lam bert needed to cover up for him is t

ha t l og ic s ays Yu nkin was an accessory bef ore the f act. App. 1315. Later

on in his closi ng argument Ke nnef f stated : “ D id Y unk in particip ate in the murde r of L au r i e? My stomach say s he did, mymind say s he did. Did he participate i n the way that Miss La mbert say s? The facts s ay no. ” App

. 131 9.
The PCR A C ourt’s factualfinding, supporte d strong ly by the reco rd, prec lu de s
a determ ination that the prose cuti o n kno win gly used false e viden ce to obtain a conviction. It also preclude s a findi ng that “the State, although no t so licit ing false evidence, allow[ed ] it t o go uncorrected when it app ear[ ed] .” Na pue v . Illinois , 360 U.S. at 269. To the co ntr ary . The government fully

and openly informed the Cou rt t ha t it

belie ved Yunkin’s t esti mony 36 

### The Cou rt a lso noted: “Mr. Kenne ff n ever hid his belief that Mr. Yunkin was not bein g forthrig ht about th at document. In truth, no one involved in the 1992 trial could qu ite figure out who wrote what on tha

t doc ument and wh at it meant.” PCRA D ecision 120

.

### 54

was no t fu lly

trut hful. Ther e was no
cons titutio na l violat

ion at t rialregardi ng t he 29 Q uestion s. The flaw s in Y unk in ’ s testimony were full y ai red at t rialand cand idly a cknowledged by the prose cuti on. Lam bert also ar gues th at having

c onceded that a

porti on of Yunkin’ s test imony w as questionable , the pros ecuto r had an ethi cal obl igati on to chara cteri ze the entirety of testimony as pe rju ry, and to withdraw the w itness. T hese conte n tions ha ve no m erit. A p rosec utor fu lly dischar ges his obl igati on when h e disclo s es all i nconsistent evi dence to the tri er of fa ct and defe nse c oun sel. “[W ]hile the government has a duty to be forthcomi ng with favo rable evide nce, it is not requir ed to dr aw infere nces from tha t evid ence which defense counse l is in an equal position to dr aw . . . . When the road to what defense coun sel t hink is potenti al perjury is so pl ainly marked , th e government nee d no t sup ply a m ap.” United States v. Gag gi , 811 F.2d 47, 59 (2d Cir. 1987). Nor i s it

true t hat a witness who fabric ates i n one area i s incompete nt to testify abo ut ot hers. T his co ncep t is embodied in the c ommon jury i nstruc tion kno wn as t he “falsu s in un o, falsu s in omnibus” charge, which provides : “If y ou find that any witness te sti fied falsel y about any mate rial fact, you may disr egard all of his testimony, or y ou m ay accept s uch par ts of it as you wish to accept and exclude such parts o f it as you w ish to exclud e.” Un ited Sta tes v. R ockw ell , 781 F.2d 985 , 98 8 (3d Cir. 19 86) (e mp hasis omitted). 4. The Crime Scene Photographs
A photograph offe red int o evidence at L ambert’s tri al showed Lauri e Show l y ing dead on th e floo r of h er apa rtmen t. The photog raph sho wed a telephon e cord wrapped once around her leg near

her ankle. Lambert conte nds that t here was no tele phone cord w rapped a round S how ’s leg before l aw enfor cem ent authorities bec ame involved wit

h the cri me s cene. She contends that several hou rs after Show ’s body wa s rem oved from th e crime sce ne, the p oli ce brought t

he corpse bac k to the apartmen t, wrapp ed a telepho ne cord around its leg, and photographe d th e b od y. La mbe rt claim s that the police did this in orde r to discr edit t he statement she gave to the police up on her arrest. In he r statem ent, Lambert tol d t he polic e a versi on of

eve nts w here “ [Sh ow ] tried to grab the phone and [ Bu ck] g rabb ed it away and threw it dow n.” A ppella te App. 1577. According to Lambert, the fabr ica ted

cr ime scene photogr aphs showing a tele phone cord around Show’s l eg served to “discr ed it L amb ert’s testim ony that it

was Buck who struggl ed with Sh ow, and in doing s o, threw a telephone across Show’s room.” Lambert Br. 62. 37

37 

### Lamber

t also a rgue s that the govern m ent

used the allegedly

fabricated photograph “to su bstantiate t h e Commonwealth’s theory a t tri al that Ms. Show’s legs were tie d up a nd hel d down
as Lisa Lam bert slit her throa t.” La mbe rt Br. 62-63. We have thoroughly reviewed

### 55

Lam bert soug h t to pr ove to the PCRA Court that

this misconduc toccurred through alle ged inconsi stenci es between the photograph and ( 1) a cri me-scene drawing, and ( 2) t esti mony regar ding the crim e scen e. Th e PC RA Co urt flatly rejec ted thi s contention, fi nding that the evidence did n o t nearl y suf fice t o show that the governm ent engaged in suc h outra geous con duc t. The C o urt’ s
co nclusi on was certai nly reasonabl e i n light of the rec ord. In deed , the ev idenc e in the record virtually com pelled the C ourt to
reac h th at co nclu sion

. OfficerRobin Weaver composed the crime sce ne drawing. The dr awing prese nts a bird’ s-eye view of th e r oom whe re Show’s body wa s fou nd an d dep icts the location of S how ’s bo dy, furnit ure, and several misce lla neous objects

. Th e drawing is i nconsistent, in ce rtain respect s, with the photogr aphs of the c rime. Th e drawing depict s the t elephone c ord near Show ’s leg, for example, not touchi ng or wrapped around it as in t he photograph. Sim ilarly , the drawing de picts bloody envelopes located closer t o Show ’s b od y than they appear i n the photogr aph. And the photograph s how s o bjects, s uch as a

coa t a nd an elect

ricalapplia nce, that do not appe ar in the drawing. Lambert argues that these i nconsistencies—especia lly the location of the t elephon e— sh ow that the police fabric ated the cri me scen e pho tog rap hs.
OfficerWeaver testifie d at the PCRA h ear ing and expl ained why t he dr aw in g wa s not e ntirely con sistent w ith the pho tograp hs. W eave r testif ied that he

was told to make a rough sket ch of the bedroom floor l ayout

in order to depic t the location of evidence t

he p olice colle cted. He did n ot compose thedrawing to s cale. Nor did he dep ictevery thing t hat exi sted in the room, since “[t]here were hundreds of items i n the bedroom. ” App. 4512. I n additi on, We aver p laced it ems in the drawing (incl uding the tele phone) aft er Show ’s body was re moved from th e r oom. OfficerWeaver’s te sti mony was
su ffici ent for the PCRA Court to re jec t Lam bert’s spurio us alleg ations, b ut his testimony was not even necessary. We first note that La mbert seriou sly misre prese nts the content

of her st atement t o the police —the statem ent tha t alle gedl y provided the moti ve to fabric ate evi dence. She stat es in her

brief t hat s he told t

he police Buck “threw a tel ephone a c ross 

### therecord of t

he tria l before J

udge Stenge l , howeve

r, a nd nowhe

re ha ve we discoveredthe Com

mon wealth ur

ging any such theory. Lamber

t’s cha racte rizat ion of thetrial is inexcusable. Lamber

t cite s to a portion of Judge Dalz ell’s1997 opinion to supportthis cha

racte rizat ion. But the habeas court’s mist

aken ch a racte

rizat ion of the tri al rec ord does not giv e Lambert
carte blanche to do the same. Of course,
we are puzzled by

how Jud ge Dalzell reachedthat conclusion (and sever a l others). Perhaps the habea s court simply accep tedLam

bert ’s c hara

cte riz ati on of th e trialrecord

. We have learned, from attem pting to find su pport in the rec ord for many of Lambert’s claims, tha t it is perilous to d o that.

### 56

Show ’s room .” Lambert Br. 62. I n her actual stat ement to t

he polic e , h owe ver, L ambe rt merelysaid t

hat Buck grabbed t

he phone from Sho w a nd “th rew it dow n.” Ap pellate App. 1577. This is an importa nt distincti on. 38
And even if Lambert

had told t

he police initiall y that Buck thr ew the tele phone across t

he room—w hich she d id not—the crime sce ne drawing would not

s upport her extr aordinary al legations that police returned the body t o the crime sce ne and rearr anged i t . Lam bert ap paren tly contends that

if Buck thr ew the tel ephone across the room, it would have been impo ssible for the p hon e to end up near Show ’s body. But the cr ime scene drawing itself show s the tele pho ne clo se to Lam bert’s feet. Thus, on its f ace, it de feats Lam bert’s allega tions o f po lic e misco ndu ct: even if the polic e thought t hat evidence sh owi ng the phone near Show

wo uld have d iscredited Lam bert, there

wo uld have been no need for the polic e to
s tage a photograph. The draw in g accomplis hes the same object . Whether or not the cord was t ou ching Sho w’s f eet is imm aterial. 39
Lam bert further

argues that testimony from indivi duals who witnes sed the cr ime scene on the day of Sh ow’s murder establ ishes that the po li c e fabric ated the cri me scene photogr aph s

. Sp ec ifi ca lly, witn es ses te sti fied at the PCRA hearing t

hat the y s aw Show’s feet at the cri me scene and a te leph on e cord

was not wra pped a round the m. In additi on, witnesse s test ifie d that Show’s body lay 3 8 

### T o be sure, Lamber

t claimed at trial that Buck “threw [the

ph one] acro ss theroom.” Appel late App. 631. But Lambert’s testimony at t

rial months later is irrelevant to her allegati ons that t

he police doctored evidence to contradict her original st a tement to the police. Wh at is import ant, of course, is the content of her state men t to the poli ce. The s uggestion that officers rearr ang ed th e crime scene to anticipate tes tim

ony by La mbe rt that did not occur until monthslater would a require a finding that the police were clairvoyant.
We are unper suaded by

La mbert’s (andher counsel ’ s) attempts to create allega tions of mis co nduct by selectively rely ing on ev idence from vari ou s proceedings in Lambe

rt’ s lengthy route th rou gh the criminal

justice sy stem : the pre-trial investig atio n, the 1992 tr ial, t he 1997 habeas hearing, and the 1998 PCRA hearing. 39 

### In additio n, weagree with the PCRA Cour t’ s conclusion that “ Ms. Buck ’s throwing t

he tel ephone across the

room and the l ocati on of the cor d around Lau rie Sho w’ s leg ar e not m utually

exc lusiv e.” PCRA Decision . 2 36. The Cou rt explai ned: “I t appears t hat the tele phone was close t o the entrance of the bedroom, bythe bed, when Laurie pi cked it up. If Ms. Buck threw it across t

he relatively small bedr oom, it co uld easily have landed n ear the closet w here La urie’s body came t o rest .” Id.

### 57

parall el to the c loset, while the photograph dep icted her bod y at a slig ht an gle.
Lam bert’s ar guments hinge on a n
uns upported view of cri me scenes as antisep tic and static envi ronments, and an utterly unre alistic sup positio n abo ut t he precis ion of witness obse rva tions and memories. We ag re e wi th th e PCRA Cou rt’s conclusi on that “ the te lep ho ne could have been moved as the sever a l medical and police perso nn el tend ed to Lau rie or p roc esse d th e crim e sc ene .” PC RA Decision 236. And sligh t inco nsiste ncies be tw ee n t he bo dy’ s position in the photograph and witness ’ s recoll ecti ons (paral lel to the clo set ver sus at a sli ght angle ) do not es tabl ish an elabo rate conspir acy to implicate La mbert in Show ’s murde r. 40
Fi na lly, Lam bert arg ues th a t evidence regardi ng the pres ence of blood

on Show’s face show s that the poli ce brough t her body back t o the cri me scene in o rd er to fabricate t he photographs. Sp ec ifi ca lly, the funera l director whe re Show ’s body was t aken on the after noon follow in g t he murder te sti fied that he removed bloodfrom Sh ow’ s face when her fam ily ca me to view her. Yet the autopsy repo rt from the ne xt m o rning indicated tha t “much dried blood” was on Show ’s face. Lam b ert ar gues that “[t]he on ly possibl e explanation for t his i s that the body had b een re t ur ned to th e crime

scene after

it had bee n at

th e fu ner al home

so p hotos cou ld be fabrica ted.” Lam bert Br. 6 7.
The fun eral dire ctor ce rta in ly testifie d that he cleane d Sho w’s face when he r fam il y came to view her. 

### He stat ed: “[W]hen I heard t

hat the fa

ther and possibly other family

member s w ere comingin, I had t

aken a da mp towel and h ad cleane d up her face

and also c overe d her neck a r ea. ” Appe lla

te App . 1492. He did not indicate, however, that he removed all the blood from

he r face. And nothing in his testimony

is nece ssarily

inconsis tent with the observ at ion at the autopsy the next day that “[m]uch driedblood is seen coveringthe face

andtheneck.” App ellate App. 1551 . Lambert urge s us to dra w the stronges t possible inferences fro m relatively indecis ive evidence an d conclude that the police en gaged in
un con scionable acts of miscondu ct to fabricate evidence of marg in al , i f a ny, utilit yi n implicating Lambert. 41 

### The PCRA Court un derstandably declined to do so, and we unhesitatingly defer to its
reasona ble dete rmina tion.
5. The Dying Declar ation
At the t ria l, Hazel Sh ow testifie d that Laurie Show said “ Michelle di d it” a s she lay dying in h er mo th er’s arms.

40 

### We also note that

the crime sc ene drawing depictsShow’s body at a slight angle to the closet. Apparently , Lambert fe els the drawing is accurate only insofar as it is inconsistent w ith the pho tograph. 41 

### Indeed, we have com

e acros s no portion of the tri al rec ord where t he Commonwealth used the p h otograph to di sc re di t a ny o f L am be rt ’s te st im on y.

### 58

Lam bert ar g ued at trialthat gi ven the injuries Show sustained s he could not have said “M ichel le did i t,” eithe r because s he had di ed before Hazel Show ret urned home or the i njuryto her nec k rendered her unable t o s pea k. Both the prosecution and de fens e off ered e xper t testimo ny to support contrary conclusions.
The i ss ue aro se aga in atth e PCRA h earing. Lambert argued t hat expe r t testimony that w as no t off ered at her trial

wa s “after -disc overed evi dence” that

wo uld warrant r elie f

under P ennsylvania’s PCRA stat

ute. Once again, bo th Lam bert and the Co mm onw ealth offe red co nflicti n g expert testimony as to whether Sho w c ould hav e sa id “M iche lle di d it.”
The PC RA Co urt held th at t he

new ly offered expert opini ons did no t
c on stitute “af ter d isco ver ed e vid enc e,” which under Pennsy lvania law is evi dence that (1) was unava ilabl e at trial, (2) is

ex cu lp ato ry, and (3) would have c hanged the ou tcom e at trial . PCRA D ecisi on 112 (citing Commonw ealth v. Reese , 663 A.2d 206 (Pa. S uper . 1995 )). Af te r a l engthy discuss ion of th e v ar io us ex pe rt te sti m on y, the Court c oncluded:
No expert ha s establis hed that it would have been impo ssible for Lauri e Show to speak. I n fact, com pe tent and credib l e exper t testimony proves i n a clear and convinci ng way that t he dyi ng dec laratio n wa s possibl e. No evidence was present ed in 1992 or has been pr es ent ed i n t he P CRA hearing which w ould cause t his court t o change i t s finding that Mrs. Show was credib le in 19 92 when she testifie d as to her daugh ter’s dyi ng declar ation.
PC RA De cisio n 11 6. Now, in her habe as p etit ion, Lam bert argues that

the Com mon wealth’s conduct at the PC RA hearing w ith regard to Show’s dyi ng de clar ation constit utes a consti tuti onal violat

ion warranting habeas reli ef. Na mely, she conte nds th at “ [t]he Co mm onw ealth retaine d new expe rts in the PCRA pr ocee ding and viol ated ‘t he most basic notions of due pr ocess, ’ by profferi ng n ew testimony t hat was based on disowning the very evidence on which it had convi cted La mb ert in 199 2.” La mb ert B r. 69

. Of course, la beling a claim as a “fundamental due process violat ion” does not actual ly substant

iate a c onsti tuti onal cl ai m. Lam bert f ails to expla in how conduct at the PCRA hearing c ou ld feasib ly warranthabeas reli ef. Rather , she simp ly cit e s three cases : Dunn v. United Stat es , 442 U.S . 100 (19 79) , Smith v. Groose , 205 F .3d 1045 (8 th Cir. 2000) , and Thompson v. Calder on , 120 F.2d 1045 (9 th Cir. 199 7), rev’d on ot her grounds , 52 3 U.S . 538 (19 98)

. Indeed, sh e c ites the same three

cases that s he c onten ds su ppo rt her cla im that t h e Commonw ealth’s “switching” of the swe atpan ts warrants habeas r el i ef

. We have rejec ted th atcl ai m, and we reject her

### 59

dyi ng declar ation argu men ts for th e s ame
reasons. Th e Commonw ealth did not uti lize the allegedly differing ex pert testim o ny to con vict L amb ert (as in Sm ith / Thomps on ) or uphold he r conviction on d ire ct appeal(as i n Dunn ). Rather, the st ate used t

he new testimony to sho w that L amb ert had not o ffere d afte r

discover ed evidence warr anting rel ief under the P CR A s tatut e. See Ga ttis , 278 F.3d at 238. And in an y case the Com mon wealth’s con duc t a t t he P CRA hea ring is no t a ba sis fo r ha bea s relie f. 42
Ev en if err or in t

he state coll at era l proceedi n gs could sup port Lam bert’s claim for habeas r elie f, however, none
wo uld be warrante d he re. In co ntrast to Du nn , Sm ith , a nd Thompson , th e government did not off er contradictory theori es or fact s at t

he tri al and th e PCRA hearing. The gov ernm ent’s th eory at bo th proceedi ngs wa s that L a mbert ent ered S how ’s apartment

on December 20, 1991 and parti cipat ed in the mu rder. A t both proceedi ngs they offered Hazel Show ’ s testimony that

Lau rie Sh ow said “M ichelle did it. ” The government re lied on the s ame evidence—an autopsy re port an d photographs —at both procee dings. The only inconsi stencywas in some of the opinions offered by the governm ent’s expert witnes se s a t t

he t ri al and PCRA hearing—though they all a greed o n th e ultima te conclusi on that Show could s peak the words “Michelle did it ”—based on the same evidence

. 6. The DA’s Contact with Lam bert’s Trial Exp ert
The Commonw ealth’s dis tri ct attorney ( Ken neff) co ntacted La mbert’s expe rt, Dr. Mihalaki s, over the weekend precedi ng the trial. Lambert conte nds that in doin g so th e Co mm onw ealth v iola t ed her righ t to d ue p roc ess. Intimid ati on or thr eats fr om the govern m ent that di ssuade a pot entia l witness from testi fy ing may i nfringe a defend ant’s Fourteent

h Amendment right to due p roces s and Sixth Amendment right to com pul sory p roc ess. See Webb v. Texas , 409 U.S . 95 (1 972 ); United Sta tes
v. Morrison , 535 F.2d 223, 226 -27 (3d C ir. 1976); see also 

### United States v

. Bieganowski , 313 F

. 3d 264, 291 (5 th 

### Cir. 2002); Newe ll v. Hanks , 283 F.3d 827, 837 (7 th 

### Cir. 2002 ); Un i ted Stat es v. Emuegbunam , 268 F.3d 377, 400 (6 th 

### Cir. 2001); United States v. Vega-Figue roa , 234 F.3d 744, 751-52 (1 st 

### Cir. 2000); United States v. Vavages , 151 F.3d 1185, 1188 (9 th 

### Cir. 1998 ); United Sta tes v. Saunders , 943 F.2 d 388, 392 (4 th 

### Cir. 1991); Uni ted States v. Pin to , 850 F.2d 927, 932 (2d Cir. 1988) . In ord er to vio late the Cons tit

ution, the govern ment’s conduct must have “sub stantially interfe red” w ith a
w itnesse s’s cho ice to testif y. Se e 

### Biega n owski , 313 F.3 d at 291; Newell , 42 

### In additi on, we are

do ub tful whether La mb er t h as pr op er ly e xha usted this claim. This appears t o be the first proceeding where she rais ed th is cla im. We address it nonetheless bec ause it i s meritless and we can therefore d ismiss it under28 U.S.C. § 2254(b)(2). See Gattis , 278 F.3d at 237.

### 60

283 F.3 d at 837; Emuegbunam , 268 F.3d 377 at 400; Vavages , 151 F. 3d at 1188; Saun de rs , 943 F.2 d at 392; Pinto , 850 F.2d at 932

. Whether substant

ial i nterfe rence occurredis a f actu al de term inati on. See 

### Bieganowski , 313 F.3 d at 291; Vavages , 151 F.3 d at 1188 ; Pinto , 850 F.2d at 932

. On direct

appeal we revi ew a district

cour t’ s determination re garding subs tantia l interference fo r c le arerro r. Her e, we apply the deferential st andards o f § 2254(d)(2) and § 22 54( e)(1 ).
The issue of

Kenneff’s conta ct with Mi hal akis cam e up d uring the trial. 

### Lambert filed a m otion asking theCourt to sanctio n the Commonwealth for Kenneff’s pre-trial contact wi th Lambert’s expert witness. Judge Stengel held a hearing in order to dec ide Lambert’s motion.
At the hear ing, Kenneff indi ca ted that he was upse

t upon learning, approximately a week before trial, that Mihalakis was go ing totes tify as a defense witnes s. M ihalakis was un der contract to workas an exp ert fo r L an ca st er Co un ty, andKenne ff

felt that as a result he would be unable to d iscredit Mihalakis at trial

. Kenne ff contacted Mih alakis even though Lambert’s at to rn ey, Roy Shi rk, would not givehis conse n t. Kenneff told Mihalak is about his conce

rn, and Mih alakis offered to withdraw if Judge Stengel found that his contract with th e County precluded himfrom acting as an expert for Lambert. Kenne ff told him not to withdraw b ecause it would o nly cause a continuan ce. After Judge Ste ngel hear

d from Shirk, Kenneff, and Mi halaki s , the followin g colloqu y occurred:
THE COURT: [Y]ou’ve don e your

examination and you have your opinions that you are g oing to state as part of this case , I take it.
DR. MIHALAKIS: Yes

. I have a consultative lett

er. THE COURT : W ha t is the da te of that le

tter? Abo u t when was it wr itten to h im?
D R

. MIHALAK I S : (Looking at do cument.) June 29.
THE COURT : All r i ght. And I take it t hat your test imon y would b e consist ent wit h tha t consultative letter.
DR. MIHALAKIS: I would hope so, yes.
THE COURT : Ok ay. Is there anything about t he discuss ion you

had with Mr. Kenne ff that cau s es you to not say what was in that letter?
DR. MI H ALAKIS : No, I don’t beli eve so. THE COURT : Did you feel threatened

or intimidated

or c oercedby t

hat discussion y ou had with Mr. Kenne ff?

### 61

DR. MIHALAKIS: No, sir, I did not. THE CO URT: Ok ay. DR. MI HA LA KI S: Ok ay. Mr. Shirk, areyou a

ware of any rule of professional conductthat prevents an attorney in a criminal case from contact ing an expert or
awitnesswho would tes tify for the other side? MR SHIR K: No, I’m not.
THE COURT: Are y o u aware of any s uch rule?
MR. KENEFF: I’m

not aware of a rule.
THE COURT: I’m

not
aw are of any such rule

. Ok ay. Based upo n my re vie w of the mot

ion for sancti ons before today

a nd before our hearing , this da t e, and based upon t he discuss ion we’ve had here
on the record in chambers,
an d the candi d and frank
comm ents of D octo r Mihalakis, Mr. Shirk a nd Mr. Kenneff , I’m going to deny th e moti on f o r sanctions. App. 374-75. The t

ri al cou rt foun d, in

e ff ect, that t

he government had not subs tantially interfe red w ith M ihalakis’s ch oi ce to tes tif y. 

### The PCRA Court reache d thesame con clusion

after hearing addit iona l evidence on the matter. The Cour t conclu de d: “It was arguably improper conductwith some justificati on under the circumstances. The botto m line is that it did not affec t the witness’s testi mony a t trial. He testified

consistent with his report and his testim

ony was no surprise t o petitioner’s couns el .” PCRA Deci sion 195. The trial court’s dete rmination was reasonable given the rec ord befo re it. Lambert did not adduce

evidence at the PCRA hearing that would rebut the t ria l court’s factua

l finding, and t

he PCRA Court’s determinati on was reas on able given the ev idence bef ore it.
Lam bert’s tri al counsel , Roy Shi rk, testifie d at the PCRA hearing regardi n g the cir cumstances s urrou ndin g th e procurement

of M ihalak is as an expert for Lam bert. Shirk and Richard Jeffries, a private investigat or working for the defense, decided to seek M ihalakis’s servi ces to offer a n opinion about whether Show could have spoke n aft er the attack. They a sked Mihalaki s to answer f our questi ons after

reviewing a

group of releva nt materi als, includi ng S how ’s autopsy report and crime sc e n e photographs: 1) Ho w lo ng w ould Lau rie S how have li ved after the wounds were infli cted? 2) What wounds we re fata l? 3) Could Laurie Show say anyt hing afterw ard; co uld

### 62

she have said, “M ichelle d id it”? 4) How many perso ns we re involvedin the s tabbing,

on e, two or m ore? W ere they male or femal e and right or l eft handed? Any signs of a male person be ing involved? Ap pellate Ap p. 16 35. M ihaka lis responde d that the “neck wounds and the rightback wound are fat al wounds,” a nd that Show “cou ld have surviv ed m ulti ple minu te s, but I doubt verymuch whether she coul d have survive d a full half hour. ” He further opined that Show’s wou nd s “w ould certain ly limi t but not total ly el im inate phonation, esp ecially w ords a nd lette rs th a t involve th e to ng ue .” F in all y, M ihalak is offered an op inion bas ed on the fact that t he tip of t

he knife use d to kil l Show had broken off. He had taken an ide ntica l knife, placed it i n a vise, and bent it u ntil it broke. He wrote t

he foll owing: By the time the knife br oke, I wa s exe rting co nside rable fo rce. Wh ile such force is not beyond the capabil ity of

an average male or fem al e, the fa ct remains t

hat the kn i fe had to have been wedged somep l ace in the bo dy, possibl y even bony tis sue and then bent

back in such a wa y as to b reak

. . . . If it wa s so deeplywedged in bon e , I doubt w hether a girl could pu ll the entire maneuver of insertion and bending to t he point of breakage. App. 1636.
After r ea di ng Mi ha kalis’s re port, Shirk determ ined th at it w o uld not be

wo rth hi rin g M ihalak is beca use “ [q]u ite fr an kl y, it was n’t go ing to h elp us a lo t. ” App

. 653 7-38 . Afte r spea king with M ihalak is a few times, how ever, S hirk fe lt thatMihalakis would be able t o offer te sti mony that wou ld suppo rt Lamb ert ’ s case. Shi rk explai ned:

I’d like to be very clear on t his. H e had indicated to me at al l ti mes that he wo uld n ot be a ble to

sa y, to a degre e of medical

ce rta in ty, that Laurie Show could not t alk.
How ever, he was willi ng to testi fy that he belie ved that s he did not. That he didn’t

think s he could have

. And the reason he thought s he would not have b ee n able t o say what she re po rte dl y h a d said had to do w ith certain vow els and so o n an d so for th . . .
Bas ically I expect ed from hi m, and thi s wa s not o nly after one p hon e call, bu t it

was af te r, as I i ndi ca te d, two
or t h ree, testi mony that he

wo uld not sayshe could not talk, to a degree of medic al

### 63

ce rta in ty, but it ce rtainly

was h is impressi on, as an expe rt, that

she d id not, a nd that she d id n ot for these reasons, an d going int o the explanation of th e vow els and so on an d so fort h tha t
wo uld have to ha ve been used to saythe words that

were p urpo rtedly [sic] to have been sai d.
In addit ion , I expected testimony fr om him that h e did not be lieve that a female coul d have broken off

the knif e the way it w as b rok en o ff.
No w , that e volved

over a pe ri od of, I do n’t kno w, a week, a week and a half, or maybe not

that long. Several da ys an y wa y

. Wh erein he modified what appears to b e he re. It was done over the tele phone and it was at that

time I indicated th at I w anted him to tes tif y. Ap p. 65 38- 39.
Shirk testifie d that

Kenn eff bec ame “a ng ry” and “ups et” wh en S hirk told him that Mihalakis was goi ng to testify for the de fense. Ke nnef f w as an gry beca use “ th e Distri ct Attorney’s office fel t that they had him und er co ntra ct.” An d he a sked if Shirk

wo uld mind if he te lepho ned M ihala ki s. Shirk said he would rather Kenneff not call M ihalak is until af ter the trial. Yet Kenneff contact ed M i halak is nonetheless. Mi ha lakis testifie d that Kenneff so und ed “d is pl ea se d. ” Ke nn eff testifie d that

it was hi s underst anding tha t M ihalak is could not testi fy for a defendant because he was unde r contr act t o be an expert for the Co mm onw ealth. M ihalak is told K enne ff tha t he tho ugh t he co uld contrac t to give hi s servi ces to whomev e r h e desir ed. “I e xpress t o him that I wa s surpri sed he was doi n g this ,” Kenneff test ifie d, “I was concerned a bout our ability to han dle this c ase p rope rly , g iven his associ ation wit

h us.” App. 5089. M ihalak is offered t o withdraw as a witness for Lambe rt “ [i]f it w as go ing to

com plicate futu re ca ses,” but K enne ff told him not to. App. 5509. They al so spoke gene rally “about the aut ops y re port a nd my [M ihalakis’s ] feeli ngs and whether or not you could enun ciate anyt hing.” App. 5506.
As descri bed abo ve , Shir k moved fo r san ctions at trial a nd Judge Stengel denied Shirk’s motion beca use he found there was n o indication that K enneff ’s

c onversat ion with Mihalak is ha d inti mida ted him. Shir

k conceded as much at trial, stating to Jud ge S tenge l:

I asked [ Mihalakis] quite fra n kly if this w ould affec t his t esti mony in any

w ay, shape or form. I thi nk t h e exact word I us ed was whet he r he w ould pull his punches. He indicat ed to me he w ould not.

. . . [H]e indica ted to

me th at i n no way, i n any

### 64

way would it af

fec t his testi m ony Friday . I can hon estly say to y ou at thi s pointthere is n o w ay it has a chill ing effect. H e hadn ’t been o n t he stand. I thi nk he’s an honorable enough

man th at it wi l l not have a chilling effe ct. App. 369. Yet Shir

k testifie d at the PCRA hearing that h e w as, i n f act, “angry ” and “surpri sed” by the co ntent of Mih alakis’s testimony. App. 6540. And he and h is cocoun sel, Alan Goldberg, de ci d ed to get M ihalak is off the st and as soo n a s possibl e. The PR CA Co urt dete rmine d th a t Mih alakis’s testimo ny wa s con sistent w ith the report he had provided t o the defens e, and we agree. M ihalakis test ifie d that “[t]he cause of death is a cutti ng wound of the throat a nd a s tab w oun d of the rig h t che st.” App. 380. An d given her woun ds, he t es tifi ed, i t would have t aken Show “multi ple minut es” but“con sidera bly less than a half hour ” to die . App. 38 6. W ith respect to Sh ow ’s ability to say “M ichelle did it,” M ihalak is testified that “[ i]t wo uld have to be a ffec ted in p art”:

Ma is pred om inantly

a lip s ound, and th e tongue and lip s a re co nt ro lle d b y a differe nt set of nerves so the

ma sound sho u ld not’ ve be en affected. If it

was affectedit was to a minor degree. T he Chael may have been som ew hat l ess cl ear and the da may have been

somew hat less clear. App. 390. Final ly , Goldberg ques tioned M ihala k is about the tip of t he knife that had broken off and whet her a woman could hav e br oke n th e kn ife. M ih alakis testifie d that “[ t]he fu nction of the break is not gender rel ated, it i s str ength rel ated, deliberateness related. I f someone is stron g enough, they could certainl y br eak the knife . . . .” App. 398. Yet he opi ned that “[w ]hile i t is not

beyond t

he real m of a

wo man , it wou ld really m ake it e xtrem ely unlikel y, very unlikel y. ” App. 399. Futhermore, th e PCR A C ourt determi ned that

Shirk had no reason t o be surpri sed by Mihalak is’s test imony

. M ihalak is expressl y st ated befor e Ju dge S tengel that he wo uld testif y consiste ntly with the repor

t and tha t his conversation with Kenneff would not prevent him from say ing “what was in the l ette r.” App. 374. Mi halakis’s stat ement should ha v e di sabused Shirk of an y notion th a t M ihalak is mi ght mate rially depar t from his opi nio ns in the r epo rt.
To b e sure, we do not beli eve that K enneff ’s contact with Mihalakis w a s entirely appr opriate . At the very least, Kenneff displ ayed alack of

judgment. Yet not every lapse of pr os e cutori al judgment violates the Const i tution. Here, L ambe rt had t o sho w th at Ke nnef f sub stantially interfer ed with M ihalak is’s cho ice to tes tif y. The PCRA Court’s c onclusi on that there was not substantialinterference was,

### 65

given the e vid enc e be for e it, w el l within the bounds of r eason.

7. The River Search
After receiving info rm at ion from Yu nkin and Lam ber t regard ing the ir disposalof evidence i n the Susquehanna River, law enforcement o ffici al s conducted a searc h of th e riv er on December 21, 199 1. The p olice were spec ifically looking for “a pink pl asti c bag contai ning at least o ne pa ir o f sn eak ers.” Ap pellate App. 1561. The y found a knife and a pink pla sti c bag. The poli ce videotaped the search an d provide d Lam bert’s counsel with an edit ed versi on of the tape. The p olice conducted ano ther, mor e extens iv e search two days l ater, on December 23, 19 91. U sin g a dog “scente d” with B uck’s sweater, the poli ce found a piece of

w hite ny lon rope. The police als o fo und a sneaker. The December 23 s earc h w as n ot v ideo -tap ed.
Th e police did not i ndicat e in a n y repo rts r egarding t

he river searches that they found a pink bag or a sneaker, nor did they in any way inform Lambert about t he finds. A police repo rt prov ided to Lam bert indicated that t

he rope was found , but it did not ind icate tha t it was found using a dog sce nted wit h B uck ’s sw eate r. We di sc er n fo urar gume nt s of consti tuti onal error

from the unst

ructur ed discuss ion o f t he rive r searc hes in Lam bert’s brief. First , Lambert argues that th e government vi olate d Brady by fai ling to inform her

that t hey found the pi nk bag and sneaker. Second, she appe ars t o argue that the government

know in gly elic ited false testimony at

the trial t

hat the police

never found a pink bag or sneaker s. Thir d, she argu es that th e gov ernm ent vio la te d Brady by fai ling t o inform Lambert t hat the rope was found usi ng a dog scente d wit h Buck ’s sweater. Fina lly, Lam bert ap pe ars to argue t

hat the government violated her due pr ocess ri ghts by destr oyi ng exculpat ory evidence ( the pink bag a nd sn eake r) prior to trial.

a. Brady Viol ation Concerning the Pink Bag and Sneaker Again, to make out a Brady violat ion Lam bert m ust sho w th at ( 1) the government withheld e v i dence, ei ther willfu lly or inadver

tentl y; (2) the evidence

was favorabl e, ei ther bec ause it was exculpato ry or of impeachment val ue; and (3 ) the w ithheld evide nce w as m aterial. See Banks , 124 S. C t. at127 2. The P CRA Cou rt found that

the pink ba g was no t exculpato ry and that , in a ny cas e, the police did not w ithhold the pink bag’s discovery fr om L a mb ert. W ith resp ect to the sneaker, the Court f

ound that i t was not exculpato ry

. O nce aga in , t he P CRA Cou rt’s determi nations were reasonabl e. 43

43 

### Throug hout t his decis ion we have found the PCRA C ourt’s factual determ inationsto be “reasonable,” which is the standard that we must apply under AEDPA. We note, however, tha t

### 66

The edite d versi on of the vi deotape provided to Lam bert sh ows an empty pink bag embe dded in ice . Indeed, La mbert’s counsel testifie d at the PCRA hearing t hat he saw the pin k ba g in the vi deotape but did not q uestion police witn esses a bou t it at tri al becaus e he “assu med it was a bag that had nothi n g to do w ith th is ca se.” App. 6461, 6637. Th e pink bag was therefore disc l osed to Lambert. Needless to say (though app aren tly we mu st), Brady does not requi re the government to inform

a defendant about

informat i on that t

he defendantposs ess es. See United States v. Hill , 976 F.2 d 132 , 136 (3d C ir. 1992); Fullwood v. Lee , 290 F.3d 663, 686 (3d Cir. 2002) (“Cert ainly

. . . information that is not m erely avail able t o the defendant but is actua lly kno wn by the de fend ant w ould fall outsi d e of the Brady rule. ”). Put di ff er en tly, evide nce is not “s upp ressed ” if the defendant

knows about it

and has it in her pos sess ion

. Detecti ve Ronald Bar le y t esti fied about the sneake r. He estimated t hat it was appr oxim ately a size s ix or se ven sneaker, and it was a w hi te “ol d ty pe hightop sneakerw it h the la ces.” Appel late App. 1157. More important ly , howeve r, he testifie d:
The sneaker was st ained br own from being i n the mud. And around the si des of the sneake rs it

had what I
wo uld call black rot

and threads in that

area of bl ack rotwere beginni ng t o rot away from the material a nd I felt that the snea ker w as in there for a l ot longer

than three d ays to get i n that conditi on. App. 3466-67. The government need not provide a blan ket disc losure to a defendant regard in g all e vidence found during an inves tigatio n. “[T]he re is ‘n o consti tuti ona l requir ement that t

he prosecution make a

com ple te and detai led accounting to t he defense of

all police investigator

y work on

a case.’ ” Agu rs , 427 U.S. a t 109 (quoti ng Mo ore v. Illinois , 408 U.S. 78 6, 795 (1 99 2)). If the p olice h ad fo und a rusty Swiss army kni fe during t he river search, for example, i t cert ainly would not have violated Brady if the y fail ed to dis close t he find to Lambert. The stat e does no t hav e
an “‘o bliga tion to co mm uni cate

. . . speculat ive informat io n.’” Id. at 110 n. 16 (quoti ng Giles v. Maryland , 386 U.S. 66, 98 ( 196 7) (F orta s, J., co ncu rring )).
Lam bert argues tha t i t was
unre ason able for the PCRA Co urt to cre dit Barley’s PCRA testimony bec ause he “ lied about not finding a sne aker o r pink bag in 1 992” and Lambert did not have the 

### reasonablen ess is a co ntin uum. Some determinat

ions might be more or less
re asonable than others. Som e determ inationson the “less r e asonable”
s ideof the rea sonablene ss continu u m might have b een de

ter min ati ons th at we would not ha v e made in the first instance but that we must acc ep t under AEDPA. None of the dete

rmina tions the PCRA Courtmade, howeve r, fall a long that stretch of the c ontinuu m.

### 67

opp ortun ity to “cros s-examine” him at the PCRA hea ring . La mb ert B r. 89

. As w e descri be below , howe ver, the PC RA Cou rt
reaso nably fou nd th at Ba rley did not “lie.” And, as we explai ned above, we do not belie ve that L amb ert’s inab ilit y t o ask Barleyleading questions obviates t h e pro bativ e va lue o f his testim ony. b. Knowing Use of Perjur ed Testi mony The following e xchange occurr ed when Lam bert’s counse l cro ss -examined Barle y at trial: Q. H ow m an y it ems w ere you searchi n g for [at t he river]?
A

. Specifically, I w a s looking for sneakers. Q. A ll righ t.
A. We were not su re what else we w ere looking for. Q. You were told th ere we re sneakers there? A. Supposedly, yes

. Q. You weren ’t told there

was a knife and a r ope there?
A. No. Q. Were you t old to l ook for a bag? A. Yes, anothe r tr ash bag. Q. Another tr ash bag?
A. T hat’ s co rrec t. Q. Containing sneakers?
A. T hat’s rig ht. Q. That’s al l it

contai ned?
A. Th ere was other items; did notknow w hat else was in it. Q. Did you ever

find sneakers?
A. No. Q. Did you ever find a trash bag?
A. N o. App. 188. Ex amined in isolation, Barley’s te sti mony that he did not find “sneakers” or “a trash bag” appear t o indicate tha t he did not find any tras h bag or sneaker s. The PCRA Co urt read Barle y’s testimo ny in the context

of Shirk’ s questi oning, ho weve r, and it c oncluded that Barl ey testifie d that he had not found the pink bag and sneakers that t

he police were seeki ng
. The Court made this determi nation in part be caus e Sh irk sim ilarly inter preted Barley’s testimony. Shirk t esti fied at the PCRA hearin g that h e did n ot i m peach B arley with the vi deo of the r iver s ea rch , which showed thatthey found a pink bag, because he fe l t that

the bag i n the vide o
was not rel evant to th e ca se . As th e PCRA Court expla ined:
As Mr. Shi r k’s te sti mony reveals, it i s reasonab le to inter pret D etective Barley’s

answer as a deni al that a trash bag wi th evid ence in

### 68

it, i.e ., Mr. Yunk in’ s sneakers, the rope, the knif e, two pairs of sunglasse s and the hats, was found during the sear ch.
PCRA Dec isio n 21 7. W e agre e. Imp licit

as sumptions often under lay conversational

exc hanges, so that

a parti cipant

in the exchange can comm unicat e mor e in form ation than w hat his w ords w ould

mean in iso latio n. See H en ry E. Smith, The Language of

Pro perty : F or m, Co ntext, and Audience , 55 Sta n. L. Rev. 1105, 1131 (2003) (“More can be communicated than what is expl icitly said, and this can occur by means of

conversational i mplicat ure.”) (cit ing Paul G ri ce, L ogic an d Conversati on , in Studies in the Way s of Wor ds 22, 26 (198 9)). H ere, it w a s
rea sona ble for the PCRA Court to i nf e r that whe n Barley respon ded to S hirk’s questi on he di d n ot mean that he did not find any bag s or sn eake rs at all. Rather, he meant that he did not f ind bags and sneakers within t

he parameter s of those the police were loo king for; but the pink ba g he found was embedded in ice and the

sne ake r w as d eco mp ose d. It fol lows from this deter mi nation t

hat Barl ey di d not “lie,” and the government did not kno win gly us e pe rjure d tes timo ny.

c. Brady Viol ation Concerning the Rope
At the PCRA hearing, Allen Means explai ned how a bloodhound found the nyl on ro pe after it w as “sc ented ” w ith Buck ’s sweater. Means, the dog’s ha ndler, t esti fied that he called over an ind iv idua l named Joh n For wo od to com e retriev e it. But the police report

from the ri ver sear ch, wh ich w as pro vided to La mb ert, stated : A white s w eater

worn by def. Taba th a Bu ck was broughtto th e s cene by my selffor use of t h e bloodhound.

. . . The dog

was unable t o l ocate any evidence. A foot search was conducted along the banks and woo ded are as . A t approx. 1045 hrs. John Forwood of

W.E.S.T. found wh ite nyl on rop e on the bank appr ox. 2 f eet sou th from w her e the kni fe was fo un d t he pr ev io us da y. Ap pellate Ap p. 156 3. Th us, La mb ert neve r le arned that t

he rope was found us ing a dog sce nted wit h B uck ’s sw eate r. The PCRA Cou r t dete rmined that the government did not vi olate Brady by fail ing to turn over thi s ev idenc e because the fact th at th e dog wa s scen ted w ith Buck ’s sw ea ter w as no t ex cu lp ato ry. Lam bert ar gue s that the PC RA Cou rt’s determi nation w a s erroneous because Buck ’s scent on t

he rope was “inc onsistent with th e Co mmon we alth ’s the ory of the

case (that Lam bert kil led S how wh ile Buck passive ly wat che d).” Lamber t Br. 90.
But Lamber t mischarac teri zes the gove rn ment’s position at t rial . We have

come across no por

tion of t he t rial record whe re th e go vernme nt contended that Buck “watch ed passive ly” while Lam bert murdered Show. The government ne ver

### 69

disput ed that Buck was p resent in Sho w’s apartment

and involve d in the murder, and the p resence of he r scent on the rope neithe r inculpa tes nor

excu lpates L amb ert. As th e PC RA Cour t explained, “j ust because Ms. Buck’s scent was on the rope does not mean that

Ms . Lamb ert’s wa s not. There wa s no te stimo ny that the dog atte mpted to tra c e Ms. Lambert’s scent and fail ed. This ‘evide nce’ that M s. Buck’s scentwas on the rope does not ex culpa te Ms. Lambert.” P C RA De ci si on 14 1. We agree. The PCRA Court’s de te rminati on
wa s n ot con trary to or an unre ason able inter pre tatio n of fed eral l aw

. d. Destruction of Evidence
Lam bert appea rs to argue t hat the government violate d the Consti tuti on by fail ing to pres erve the pi nk ba g and sneaker. The S upr eme Co urt’s de cisions in Calif ornia v. Tro mb etta , 4 67 U

. S. 485 (1984) and Ari zona v. Youngblood , 488 U.S. 51 (1 988 ) estab lish sta ndar ds for determi ning whether the government has infri nged on a defen dant’s due process rights by fai ling t o preser ve evidence. See United States v. Ramos , 17 F.3d 65, 69 (3d Cir. 1994). Of rel evance h ere i s the requir ement of bad fait

h on the part of the gov ernm ent. In Youngblood , th e Su pr eme C ourt held that “unle ss a cri minal defendantcan show bad faith on the pa r t of the po lice, failu re to pr eserv e pote ntially useful evidence does not const it ute a denial of due process ofla w. ” Youngb loo d , 488 U.S . at 58; see also United States v. Steve ns , 935 F.2d 1380, 138 7 (3 d C ir. 19 91)

. The PCRA Cou r t dete rmined that Barleydiscar ded the sneaker because he felt that, giv en its de com pose d state, it could not have been Y unkin’s sne aker. Other than s purio us alleg atio ns and sh ad owy co n spiracy theories, Lam bert offers no evidence t

hat sugges ts Bar l ey acte d in bad faith

. 

### IV. CONCLUSI ON Af ter thoroug hly examinin g Lambert’s claims, we find no merit in them. To b e sure, the Commonw ealth should have t urned over Bay an’ s state ment to the defense prior

to tri al and
we do not endorse the prosecution’s pretrialcont a ct with La

mbert ’s exper

t. But neit her fl aw war

rant s habe as r

eli ef. 44


### There lurk s in the background of this deci s ion the fact that one federal district judge - - Judg e Dalzel l -- found Lambe rt “actuall y innocent” a n d character ized the go vernment’s conduct as “the worst case of prosecu toria l misc ond uct in English- speaki n g experience.” Lambert v. Blackw ell , 205 F .R.D. 180, 18 2 (E.D. Pa. 2 002). A fter a compre hens iverevi ew of t he re cord, we conclude that these find ings a re w holly insupportable.

44 

### We also reject Lam ber t’s argume nt that the w rit should be granted basedon the “cum

ulative effect”of the allegedconstitution al violations. The few
er rors we have identified, taken together, had no material effect on the tria l.

### 70

Th e writ of hab eas corpus, a s impleme nted by the statu te , empowers a federal court to ove

rturn a state convicti on only w hen it is contr

ary to federa l law or
a n u nreasona

ble appli cation of l aw or determ ination of the fact s. Comity

and fi na li ty, as embodied in the s ta tute and emphasized

by t he Supr eme Court, mandate considerable deference t o the determ ination of t h e stat e fact- finder and appellate cou rts. Re gr et ta bl y, th e initial habeas decisi on here upended these fundamental principles of comity

and finality . In concludingthat

Lam bert wa s a ctually innocent and that h er prosecutors were guilty of horren dous miscond uct, J udge Dalzell effectively

pe rm itted Lambert to retry the criminal

case -- with hindsight -- in a federal co urtr oom. Judge Dalzell’s initialopinion reversed the traditional approach to reviewing conv ict ions, see G lasser v. United States , 315 U.S. 60, 80 (1942 ) (every

inferenc e in favor of verdict); he effectively dre w e very inferenc e agains t

the verdict, and accepted Lambert’s view that every discre pa ncy between her version and the state’s established

that the state was acting in bad faith. As a consequence, the first habeas decisi on treat

ed every dispute in testimony as state perjury , andev ery

minor inconsistency

as momentous. The costs of this misgui ded approach i n te rms of comity and finality are very substantial. By contrast, the dec is ion of the second District Judge -- Judge B ro dy -- properly weighed the evidence and a pplied thelaw under th e principles of federalism andfinality mandated by

the statute. We agree with Judge

Brody that Lisa Michelle Lambert was not “actually innocent, ” and
was not the victim of a mis carri age of justiceor gross prosecutorialmisconduct. A careful, dis p assiona

te revi ew of the entirerecord convincingly dem onstrat es that Lam bert’s trial was fair , constit utionally correct, and w ell

supported by the evidence . Acc ord in gl y, there is no reason to disturb t he convicti on. We will affirm Judge Brody ’s denial of th e writ.