1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-29-1997

Lambert v. Blackwell

Precedential or Non-Precedential:

Docket 97-1281,97-1283,97-1287

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Recommended Citation

"Lambert v. Blackwell" (1997). 1997 Decisions. Paper 282.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/282
Filed December 29, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

Nos. 97-1281, 97-1283 and 97-1287 

LISA MICHELLE LAMBERT 

v. 

CHARLOTTE BLACKWELL, MRS., SUPERINTENDENT; 

THE ATTORNEY GENERAL OF THE 

STATE OF PENNSYLVANIA, 

 Appellants 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civ. No. 96-cv-06244) 

Argued 

October 21, 1997 

Before: MANSMANN and GREENBERG, Circuit Judges , 

and ALARCON, Circuit Judge.* 

(Filed December 29, 1997) 

_________________________________________________________________ 

*Honorable Arthur L. Alarcon of the United States Court of Appeals for 

the Ninth Circuit, sitting by designation. 
 Peter S. Greenberg, Esquire 

 (ARGUED) 

 Christina Rainville, Esquire 

 Jeannette M. Brian, Esquire 

 Diane L. Lisowski, Esquire 

 Schnader, Harrison, Segal & Lewis 

 1600 Market Street 

 Suite 3600 

 Philadelphia, PA 19103 

 COUNSEL FOR APPELLEE 

 Richard A. Sprague, Esquire 

 (ARGUED) 

 Geoffrey R. Johnson, Esquire 

 Theodore J. Chylack, Esquire 

 Joseph R. Podraza, Jr., Esquire 

 T. Truxtun Hare, Esquire 

 David S. Lubin, Esquire 

 Deborah B. Miller, Esquire 

 Sprague & Sprague 

 Suite 400, Wellington Bldg. 

 135 South 19th Street 

 Philadelphia, PA 19103 

 Richard A. Sprague, Esquire 

 Alvin B. Lewis, Jr., Esquire 

 Edward R. Kennett, Esquire 

 Sprague & Lewis 

 The Christopher DeMuth Bldg. 

 116 East King Street 

 Lancaster, PA 17602 

 COUNSEL FOR APPELLEES 

 2 
 D. Michael Fisher 

 Attorney General of Pennsylvania 

 Jerome T. Foerster 

 Senior Deputy Attorney General 

 Appeals and Legal Services Section 

 Robert A. Graci 

 Assistant Executive Deputy 

 Attorney General 

 Office of Attorney General of 

 Pennsylvania 

 Law and Appeals 

 16th Floor, Strawberry Square 

 Harrisburg, PA 17120 

 Daniel E. Lungren 

 Attorney General of California 

 1300 I Street, Suite 125 

 Sacramento, CA 95814 

 M. Jane Brady 

 Attorney General of Delaware 

 820 North French Street 

 Wilmington, DE 19801 

 Richard P. Ieyoub 

 Attorney General of Louisiana 

 P.O. Box 94095 

 Baton Rouge, LA 70804-9095 

 W.A. Drew Edmondson 

 Attorney General of Oklahoma 

 2300 North Lincoln Boulevard, 

 Suite 112 

 Oklahoma City, OK 73105-4894 

 3 
 Charles M. Condon 

 Attorney General of South Carolina 

 P.O. Box 11549 

 Rembert C. Dennis Building 

 Columbia, SC 29211-1549 

 COUNSEL FOR AMICUS 

 APPELLANTS: COMMONWEALTH 

 OF PENNSYLVANIA, STATE OF 

 CALIFORNIA, STATE OF 

 DELAWARE, STATE OF 

 LOUISIANA, STATE OF 

 OKLAHOMA, STATE OF 

 SOUTH CAROLINA 

 Donna G. Zucker 

 Assistant District Attorney 

 Ted McKnight 

 President, Pennsylvania District 

 Attorneys Association 

 1421 Arch Street 

 Philadelphia, PA 19102-1582 

 COUNSEL FOR AMICUS CURIAE 

 PENNSYLVANIA DISTRICT 

 ATTORNEYS ASSOCIATION 

OPINION OF THE COURT 

MANSMANN, Circuit Judge. 

In this appeal we are faced with the onerous task of 

determining whether the district court, upon petition for 

writ of habeas corpus, erred in granting the unconditional 

release of one convicted of first degree murder by a state 

trial judge. Under Rose v. Lundy, 455 U.S. 509, 522 (1982), 

the district court is required to dismiss a federal habeas 

petition filed pursuant to 28 U.S.C. S 2254 which contains 

both unexhausted and exhausted claims. Because wefind 

the petitioner has not yet pursued her remedies under the 

Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat. 

Ann. S 9542 et seq. (West 1997 Supp.), her federal habeas 

 4 
petition includes unexhausted claims and, hence, the result 

here is dictated by Rose v. Lundy, supra . Thus, we will 

remand this case to the district court with an order to 

dismiss the petition without prejudice so that the petitioner 

can first present her unexhausted claims to the appropriate 

Pennsylvania state court. 

I.1 

Laurie Show became romantically involved with Lisa 

Lambert's boyfriend, Lawrence "Butch" Yunkin, for a brief 

period in June of 1991. Thereafter, Show incurred the 

wrath of Lambert, who accosted Show on several occasions. 

On the morning of December 20, 1991, Show was brutally 

murdered. Lambert and an accomplice, Tabitha Buck, were 

subsequently charged with criminal homicide for the

murder of Show.2 Buck was convicted of second degree 

murder by a jury of her peers; Yunkin, in exchange for his 

truthful testimony against Lambert, pled guilty to hindering 

apprehension.3 

_________________________________________________________________ 

1. We note, as a preliminary matter, that Lambertfiled a motion to 

dismiss this appeal on the basis that since the district court found she 

was actually innocent of first degree murder, the Double Jeopardy 

Clause of the Fifth Amendment bars the Commonwealth's appeal. By 

separate order, we will deny this motion. As we make clear in this 

opinion, the district court erred in reaching the issue of Lambert's 

actual 

innocence. Accordingly, we do not give weight to the district court's 

factual findings in this appeal. Moreover, we are plainly authorized to 

review the final order of the district court in a habeas case pursuant to 

28 U.S.C. S 2253(a). Furthermore, a finding of actual innocence, as that 

term has come to be used in federal habeas corpus jurisprudence, is not 

the equivalent of a finding of not guilty by a jury or by a court at a 

bench trial. We find, therefore, that the Double Jeopardy Clause does 

not bar the Commonwealth's appeal. 

2. At the time of her arrest, Lambert was six months pregnant with 

Yunkin's child. 

3. Several weeks after Lambert's murder trial was concluded; the 

Commonwealth determined that Yunkin had perjured himself at 

Lambert's trial. Consequently, Yunkin breached the plea agreement and 

the Commonwealth charged him with third degree murder to which he 

pled nolo contendere. 

 5 
On July 20, 1992, after a seven-day bench trial in the 

Court of Common Pleas of Lancaster County, Pennsylvania, 

Lambert was convicted of first degree murder and criminal 

conspiracy. Subsequently, Lambert was sentenced to life 

imprisonment by the trial court. Lambert, through her trial 

counsel, Roy Shirk, Esq., filed a Motion in Arrest of 

Judgment and for New Trial, and Additional Reasons for 

Post-Trial Motions, raising various allegations of trial error 

and prosecutorial misconduct.4 On July 19, 1994, the trial 

court issued an Opinion and Order denying Lambert's posttrial motions. No appeal was taken from this order.

_________________________________________________________________ 

4. The issues raised in the first set of post-verdict motions filed by Roy 

Shirk, Esq., included: 

 Error to deny defendant's motion for change of venue; 

 Error to deny defendant's motion for sanctions; 

 Error to allow Tabitha Buck's statement into evidence; 

 Error to allow the trier of fact to take notes during trial and 

 potentially to use them during deliberation;

 Error to affirm and read the Commonwealth's points of charge Nos. 

 3 and 4; 

 Error not to grant a mistrial when the request for supplemental 

 discovery of Laura Thomas was not granted; 

 Error not to grant a mistrial when the request for supplemental 

 discovery of Hazel Show was not granted; 

 Error not to grant a mistrial when the request for supplemental 

 discovery of Richard Kleinhans was not granted; 

 Error not to grant a mistrial when the prosecution withheld 

evidence 

 that a jergo was discarded and that they were aware of its 

location; 

 Error to qualify Dr. Penades as an expert in forensic pathology 

since 

 he was not board certified; 

 Error not to grant a mistrial when the prosecution withheld from 

 discovery a portion of Yunkin's statement of February 4, 1992; 

 Error not to grant a mistrial when the Assistant District Attorney 

 asked witness Samuel J. Golub two questions beyond his area of 

 expertise; and 
 Insufficient evidence existed to sustain the verdict. 

 6 
Subsequently, Lambert, through new counsel, Jules 

Epstein, Esq., filed a Motion for a New Trial based on 

allegations of after-discovered evidence5 and ineffective 

assistance of trial counsel.6 An evidentiary hearing on the 

new motion was conducted over a two-day period in 

November of 1994. On March 14, 1995, the state trial court 

denied Lambert's motion for post-verdict relief. In June of 

1995, Lambert appealed the judgment of sentence imposed 

by the state trial court to the Superior Court of 

Pennsylvania, raising essentially the same claims regarding 

ineffective assistance of trial counsel and after-discovered 

evidence.7 A three-judge panel of the Superior Court of 

Pennsylvania affirmed the judgment of sentence on January 

4, 1996. In her direct appeal to the Pennsylvania Supreme 

Court filed on February 2, 1996, Lambert again raised the 

same claims.8 Lambert's petition for allowance of appeal 

_________________________________________________________________ 

5. The after-discovered evidence consisted of the testimony of Yunkin in 

a court proceeding subsequent to Lambert's trial in which he stated he 

was aware of the plans to harm Laurie Show; and, Yunkin's admission 

of his involvement in the murder during the plea colloquy, which also 

took place subsequent to Lambert's trial, resulting in a plea of nolo 

contendere to third degree murder. 

6. Lambert alleged trial counsel was ineffective in failing to present 

evidence of good character/reputation; failing to present evidence and 

witnesses to substantiate her testimony that she had been physically 

and psychologically abused by Yunkin; failing to produce evidence that 

Commonwealth witness Laura Thomas was on juvenile probation which 

was crucial to the credibility determination; presenting a witness who 

testified that Laurie Show's claim of date rape against Yunkin was false; 

failing to present evidence of bad reputation for the veracity of witness 

Laura Thomas; failing to move to suppress Lambert's inculpatory 

statement to the police; failing to seek a new trial based upon new 

evidence of Yunkin's nolo contendere plea to third degree murder; and, 

in failing to impeach Yunkin with his statements to the police that he 

knew of the plan to harm the victim before he dropped Lambert and 

Buck off at Show's condominium. 

7. In her appeal to the Pennsylvania Superior Court, Lambert argued her 

counsel was ineffective for failing to introduce evidence of her good 

character and of the abuse inflicted upon her by Yunkin; Lambert also 

raised the after-discovered evidence of Yunkin's breach of his plea 

agreement and perjury. 

8. See note 7, supra. 

 7 
was subsequently denied on July 2, 1996. Lambert did not 

seek collateral review of any of her claims through the 

Pennsylvania Post-Conviction Relief Act. 

Lambert instituted the present federal habeas corpus 

action by filing a pro se writ of habeas corpus on 

September 12, 1996. The district court subsequently

appointed counsel to represent Lambert and directed

counsel to file an amended petition, which they did on 

January 3, 1997. Lambert's first amended petition for writ 

of habeas corpus incorporated the claims previously

presented to the state courts, but went further, advancing 

the following grounds for relief: (1) Lambert was actually 

innocent and no credible evidence supported the 

prosecution's theory of her guilt or the findings of the state 

trial court; (2) the misconduct9 of the prosecution and the 

police created a situation of manifest injustice; (3) afterdiscovered evidence10 created manifest injustice; and, (4) 

trial counsel was ineffective in over 35 separate ways. In its 

Answer to the First Amended Petition, the Commonwealth 

responded that Lambert was not entitled to federal review 

at this time since she had failed to exhaust her state court 

remedies and had committed insurmountable procedural 

default. In the alternative, the Commonwealth argued that 

Lambert's petition should be denied on the merits. Further, 

_________________________________________________________________ 

9. The alleged misconduct includes altering Lambert's statement to the 

police; creating a false crime scene photograph to discredit her; 

knowingly presenting perjured testimony and failing to take remedial 

measures after the perjury was confirmed; knowingly presenting "expert" 

testimony that was scientifically incredible while tampering with the 

defense's expert; altering evidence and witness statements; failing to 

disclose Brady and Giglio evidence; and "losing" other exculpatory 

evidence. 

10. The after-discovered evidence allegedly consists of alterations of 

Lambert's statement; alteration of crime scene evidence; scientific 

testing 

of clothing worn by Yunkin; photographs of the crime scene which 

revealed additional writing in blood by the victim that exculpates 

Lambert; autopsy report notes revealing the time of the victim's death; 

injuries incurred by the "real" killers, Yunkin and Buck; testing of blood 

found on the victim's ring; statements made by Yunkin and Buck to 

their friends; and, the subsequent admission by the prosecution that the 

primary witness against Lambert--and one of the"real" killers--had 

committed perjury at Lambert's trial. 

 8 
the Commonwealth expressly stated in its Answer that it 

was not waiving the exhaustion requirement in any manner.11 

Despite the Commonwealth's objections to Lambert's 

petition on the grounds of exhaustion and procedural 

default, the district court determined that it would allow 

broad discovery and would conduct an evidentiary hearing 

on Lambert's claims of actual innocence and prosecutorial 

misconduct while, at the same time, considering the

Commonwealth's procedural claims of exhaustion and 

procedural default. The district court denied the 

Commonwealth's objection that the evidentiary hearing was 

prohibited by the Anti-Terrorism and Effective Death 

Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. S 2241 

et seq., citing the highly unusual circumstances of this 

case. The evidentiary hearing commenced on March 31, 

1997, and, after fourteen days of testimony, the district 

court entered an order granting the writ, releasing Lambert 

from custody, and barring the Commonwealth from 

conducting a retrial of Lambert. 

The district court issued its Order and Memorandum 

Opinion on April 21, 1997.12 Lambert v. Blackwell, 962 

F.Supp. 1521 (E.D. Pa. 1997). The court found that the 

1995 amendment to the Pennsylvania Post Conviction 

Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann.S 9543, which 

eliminated the waiver exception for actual innocence or 

procedural default (former sections 9543(a)(3)(ii) and (iii)), 

left Lambert without a state forum in which to raise her 

claims of error. The district court interpreted the

Pennsylvania legislature's elimination of the actual 

_________________________________________________________________ 

11. The district court found, however, that the Commonwealth waived its 

exhaustion and procedural default arguments at the evidentiary hearing 

when counsel stated that relief was "warranted" in this case. N.T. at 

2703, April 16, 1997. In so holding, the district court did not recognize 

that the Commonwealth withdrew this concession the very next day. In 

any event, the Commonwealth maintains that any acquiescence it may 

have made regarding relief did not result in an express waiver of the 

exhaustion issue. See also note 28, infra. 

12. In finding that Lambert was actually innocent of the murder of 

Laurie Show, the district court did not address the third and fourth 

grounds raised in Lambert's habeas petition regarding after-discovered 

evidence and ineffective assistance of counsel. 

 9 
innocence and procedural default exceptions to waiver "as 

an advertent decision after the Supreme Court's decision in 

Schlup [v. Delo, 513 U.S. 298 (1995),] to place those issues 

squarely into the federal forum." Lambert, 962 F.Supp. at 

1553. Thus, the district court concluded that Lambert 

exhausted all of the claims presented in her federal habeas 

proceeding, with the exception of the after-discovered 

evidence which "expand[ed] the degree of the violations" 

brought to the attention of the state trial judge or confirmed 

Lambert's contention that she is actually innocent. Id. 

The court further opined that to the extent there may be 

claims which a Pennsylvania court might view as not being 

waived, the state proceedings would be ineffective to protect 

Lambert's rights if the district court dismissed the petition. 

Id. at 1554. Moreover, the court found that if it were to 

dismiss this case as a mixed petition pursuant to Rose v. 

Lundy, supra, "on the suspicion that perhaps its reading of 

the PCRA was wrong," then Lambert would be deemed to 

have taken her one bite of the apple under the AEDPA. Id. 

Consequently, in order for Lambert to return to federal 

court, the district court opined, she would need the 

approval of the court of appeals and denial of such

application was unreviewable by the Supreme Court. The 

district court felt that under these extraordinary 

circumstances, such a result was constitutionally 

intolerable.13 Id. 

Finally, the district court explained that in such an 

extraordinary case, the principles of comity allowed it to 

excuse total exhaustion or procedural default in the face of 

a manifestly unjust incarceration.14 Id. In any event, the 

_________________________________________________________________ 

13. Subsequent to the issuance of the district court's opinion, we decided 

Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997), holding that "when a 

prior petition has been dismissed without prejudice for failure to exhaust 

state remedies, [authorization from the court] is [not] necessary and the 

petitioner may file his petition in the district court as if it were the 

first 

such filing." 

14. At a status conference held on February 13, 1997, prior to the 

evidentiary hearing, the court, after articulating its concerns with the 

exhaustion issue, opined that the better approach was to analyze the 

petitioner's claims under the doctrines of actual innocence and manifest 

 10 
court found that the Commonwealth's concession at the 

evidentiary hearing that Lambert was entitled to some relief 

effected a waiver of the exhaustion objection. 

The Commonwealth filed a timely notice of appeal on

April 22, 1997. We have jurisdiction over this appeal 

pursuant to 28 U.S.C. SS 1291 and 2253.15 In a federal 

habeas corpus proceeding, we exercise plenary review of the 

district court's legal conclusions and apply a clearly 

erroneous standard to the court's factual findings. Caswell 

v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (citing Bond v. 

Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989)). 

II. 

We note at the outset that the parties do not dispute that 

Lambert's petition includes claims which were not 

presented to the state court.16 Unlike the district court, 

however, we cannot dispense with consideration of the 

exhaustion and procedural default claims in favor of 

reaching the merits of Lambert's claim of actual innocence.17 

_________________________________________________________________ 

injustice based upon prosecutorial misconduct, which are derived from 

the Due Process Clause and not from any statute (such as the PCRA). 

The district court thus intimated that it was avoiding the exhaustion 

issue by proceeding to a due process analysis. The court further stated 

that while it agreed with the general requirements of the AEDPA 

regarding evidentiary hearings and unexhausted claims, this case 

involved highly unusual circumstances and, thus, those provisions did 

not apply. 

15. Because the Commonwealth has taken the appeal in this proceeding, 

a certificate of appealability is not required as a prerequisite to our 

exercising appellate jurisdiction. Fed. R. App. P. 22(b). 

16. Lambert argues in her brief, however, that since she has waived the 

non-exhausted claims in state court, she has thus exhausted her state 

remedies. As explained below, we do not agree with Lambert that the 

non-exhausted claims were necessarily waived in state court. 

17. We recognize that a panel of this court, on a motion by the 

respondents for a stay of Lambert's release pending the appeal, 

concluded that the respondents failed to show that they were likely to 

succeed in their argument that the petition should be denied because of 

Lambert's failure to exhaust her state court remedies. Of course, that 

 11 
Rather, we find that Supreme Court precedent and the 

AEDPA mandate that prior to determining the merits of her 

petition, we must consider whether Lambert is required to 

present her unexhausted claims to the Pennsylvania courts. 

We turn, therefore, to a discussion of exhaustion of state 

claims under the AEDPA. 

A. 

It is axiomatic that a federal habeas court may not grant 

a petition for a writ of habeas corpus filed by a person 

incarcerated from a judgment of a state court unless the 

petitioner has first exhausted the remedies available in the 

state courts. 28 U.S.C. S 2254(b)(1)(A); Toulson v. Beyer, 

987 F.2d 984 (3d Cir. 1993). The exhaustion requirement is 

excused, however, where no available state corrective 

process exists or the particular circumstances of the case 

render the state process ineffective to protect the

petitioner's rights. 28 U.S.C. SS 2254(b)(1)(B)(I) and (ii). A 

petitioner will not be deemed to have exhausted the

available state court remedies so long as she has the right 

under state law to raise, by any available procedure, the 

question presented. 28 U.S.C. S 2254(c). A petitioner who 

has raised an issue on direct appeal, however, is not 

required to raise it again in a state post-conviction 

proceeding. Evans v. Court of Common Pleas, Delaware 

County, Pennsylvania, 959 F.2d 1227, 1230 (3d Cir. 1992) 

(citing Swanger v. Zimmermann, 750 F.2d 291, 295 (3d Cir. 

1984)). Thus, the federal habeas claim must have been 

"fairly presented" to the state courts, i.e., it must be the 

substantial equivalent of that presented to the state courts. 

Id. at 1231 (citations omitted). In addition, the state court 

_________________________________________________________________ 

inherently tentative conclusion, based on a record less complete than 

that before us and not reached after the opportunity for the intensive 

study available to a merits panel, is not binding on this panel. See Third 

Circuit I.O.P. 9.1 (only the holding of a panel in a published opinion is 

binding on subsequent panels). See also United States v. Houser, 804 

F.2d 565, 568 (9th Cir. 1986). In any event, the motions panel did not 

preclude the respondents from raising the exhaustion issue. Rather, it 

merely opined that they were not likely to succeed on it. In fact, upon 

fuller presentation and consideration, they have succeeded. 

 12 
must have available to it the same method of legal analysis 

as that to be employed in federal court. Id. The habeas 

petitioner carries the burden of proving exhaustion of all 

available state remedies. Toulson, 987 F.2d at 987. The 

exhaustion requirement does not foreclose federal relief, but 

merely postpones it. Id. at 986. 

The Supreme Court has made clear that a section 2254 

petition which includes unexhausted as well as exhausted 

claims, i.e., a mixed petition, must be dismissed without 

prejudice. Rose v. Lundy, 455 U.S. 509, 522 (1982). In 

reaching this conclusion, the Court analyzed the policies 

underlying section 2254 since it found that Congress's 

intent was unclear from the statute or legislative history. Id. 

at 516-17. In endorsing rigorous enforcement of the total 

exhaustion rule, the Court acknowledged the preference 

among federal jurists to allow state courts the initial 

opportunity to review and correct alleged violations of 

federal constitutional rights. This preference is derived from 

principles of comity.18 Id. at 518. The Court further noted 

that adoption of a total exhaustion rule causes a reduction 

in piecemeal litigation, thereby increasing the likelihood 

that all claims will be reviewed in a single proceeding. Id. at 

520. Finally, the Court observed that the prisoner's interest 

in obtaining speedy relief in federal court on his claims 

would not be unreasonably impaired by requiring total 

exhaustion. Id. at 520-22. Thus, Lundy teaches that if the 

petitioner fails to satisfy the exhaustion requirement prior 

to filing a federal habeas petition and none of the

exceptions apply, the federal court is precluded from 

granting habeas relief to the petitioner. 

_________________________________________________________________ 

18. The doctrine of comity " `teaches that one court should defer action 

on causes properly within its jurisdiction until the courts of another 

sovereignty with concurrent powers, and already cognizant of the 

litigation, have had an opportunity to pass upon the matter.' " Rose v. 

Lundy, 455 U.S. 509, 518 (1982) (quoting Darr v. Burford, 339 U.S. 200, 

204 (1950)). Indeed, we opined in Toulson v. Beyer, 987 F.2d 984, 986 

(3d Cir. 1993), that requiring exhaustion of state remedies "addresses 

federalism and comity concerns by `afford[ing] the state courts a 

meaningful opportunity to consider allegations of legal error without 

interference from the federal judiciary.' " (Citations omitted.) 

 13 
Five years later, the Supreme Court handed down its

decision in Granberry v. Greer, 481 U.S. 129 (1987). In 

Granberry, the district court had dismissed the federal 

habeas petition upon the state's motion to dismiss under 

Rule 12(b)(6) of the Federal Rules of Civil Procedure. When 

the petitioner appealed, the state for the first time 

interposed the defense that the petitioner had not 

exhausted his state remedies. The petitioner responded by 

arguing that the state waived this defense by failing to raise 

it in the district court. The Supreme Court granted

certiorari to consider whether the state's failure to raise the 

exhaustion defense in the district court constituted a 

waiver of that claim in the court of appeals. 481 U.S. at 

130. 

The Court held in Granberry that where the state has 

failed to raise, in the district court, an arguably meritorious 

nonexhaustion defense, through inadvertence or otherwise, 

the court of appeals may appropriately examine the 

nonexhaustion issue anew. Id. at 134. In determining 

whether the interests of comity and federalism were better 

served by addressing the merits despite non-exhaustion, 

the Supreme Court delineated the following standard: 

 If, for example, the case presents an issue on which an 

 unresolved question of fact or of state law might have 

 an important bearing, both comity and judicial 

 efficiency may make it appropriate for the court to 

 insist on complete exhaustion to make sure that it may 

 ultimately review the issue on a fully informed basis. 

 On the other hand, if it is perfectly clear that the 

 applicant does not raise even a colorable federal claim, 

 the interests of the petitioner, the warden, the state 

 attorney general, the state courts, and the federal 

 courts will be well served even if the State fails to raise 

 the exhaustion defense, the district court denies the 

 habeas petition, and the court of appeals affirms the 

 judgment of the district court . . . . 

Granberry v. Greer, 481 U.S. at 134-35. Thus, we learn 

from Granberry that where a state fails to raise a 

nonexhaustion defense in the district court, courts of 

appeals should consider whether, under the particular facts 

and circumstances presented, the interests of justice would 

 14 
be served by addressing the merits of the habeas petition if 

it is clear the petitioner has failed to state a colorable 

federal claim, or by requiring exhaustion. Id. at 136. We 

emphasize, however, our previous holding that Granberry 

applies to "any claim before the court of appeals for which 

the state neglected to raise non-exhaustion in the district 

court." Keller v. Petsock, 853 F.2d 1122, 1128 n.6 (3d Cir. 

1988). Clearly that is not the case before us. The 

Commonwealth has aggressively asserted the 

nonexhaustion defense first in the district court and now 

on appeal. Indeed, in our most recent decisions applying 

Granberry, the state had failed to raise the nonexhaustion 

defense in the district court. See, e.g. , Smith v. Horn, 120 

F.3d 400 (3d Cir. 1997); Evans v. Court of Common Pleas, 

Delaware County, 959 F.2d 1227 (3d Cir. 1992); Keller v. 

Petsock, supra. 

Significantly, two changes in the federal habeas statute 

are derived from the Supreme Court's decision in 

Granberry. First, under the AEDPA, a district court may no 

longer infer that a state has waived the nonexhaustion 

defense from its failure to invoke the defense expressly. 

Gaylor v. Harrelson, 962 F.Supp. 1498, 1499 & n.2 (N.D. 

Ga. 1997). The revised statute now requires an express 

waiver through counsel in order for the state to have waived 

the nonexhaustion defense. 28 U.S.C. S 2544(b)(3). Second, 

the AEDPA, in 28 U.S.C. S 2544(b)(2), codifies the holding 

in Granberry by conferring upon the district court the 

authority to deny a habeas petition on the merits despite 

the petitioner's failure to exhaust state remedies. Hoxsie v. 

Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied, ___ 

U.S. ___, 118 S.Ct. 126 (1997) (emphasis added). Standing 

alone, section 2544(b)(2) does not provide a standard for 

determining when a court should dismiss a petition on the 

merits rather than requiring complete exhaustion. Id. Thus, 

the court of appeals in Hoxsie read section 2544(b)(2) in 

conjunction with Granberry. We read the Granberry test as 

whether "it is perfectly clear that the applicant does not 

raise even a colorable federal claim." 481 U.S. at 135. 

We cannot say that it is perfectly clear that Lambert has 

not raised a colorable federal claim. The district court 

obviously found substantial merit to Lambert's claims of 

 15 
actual innocence and prosecutorial misconduct. These 

claims present unresolved questions of fact and of state law 

and, thus, the interests of comity and justice are better 

served by requiring complete exhaustion. 

We note that section 2544(b)(2) does not provide the 

district court with the authority to grant relief on the merits 

where the petitioner fails to exhaust state remedies. Thus, 

a strict reading of the statute compels us to conclude that 

if a question exists as to whether the petitioner has stated 

a colorable federal claim, the district court may not 

consider the merits of the claim if the petitioner has failed 

to exhaust state remedies and none of the exceptions set 

forth in sections 2544(b)(1)(B)(I) and (ii) applies. Lambert 

argues, in contrast, that Granberry establishes that where 

the district court has held a full trial and found a 

miscarriage of justice, a failure to exhaust is excused. We 

disagree. The particular language in Granberry to which 

Lambert refers states: 

 [I]f a full trial has been held in the district court and it 

 is evident that a miscarriage of justice has occurred, it 

 may also be appropriate for the court of appeals to hold 

 that the nonexhaustion defense has been waived in 

 order to avoid unnecessary delay in granting relief that 

 is plainly warranted. 

481 U.S. at 135. We note that, unlike in Granberry, the 

state has not waived the nonexhaustion defense. Second, 

the AEDPA now explicitly requires an express waiver by the 

state before waiver will be deemed to have occurred. 

Moreover, to accept Lambert's argument would require that 

we view Granberry as authorizing a district court to waive 

the nonexhaustion defense even though the state has

aggressively asserted that defense at all stages of the 

proceedings. This conclusion is irreconcilable, not only with 

the express waiver provision in section 2544(b)(3), but also 

with common sense. The quoted passage from Granberry 

only has meaning when placed in the context of a case in 

which the state failed to raise the nonexhaustion defense 

before the district court. Given the new express waiver 

requirement of the AEDPA, it is doubtful that Granberry 

continues to have any import in a situation other than 

where the state has expressly waived the nonexhaustion 

 16 
defense. We need not answer this question, however, as the 

resolution of the case before us does not require it. 

For these reasons, we also reject Lambert's contention 

that exhaustion is excused based on the "special 

circumstances rule" derived from Supreme Court 

jurisprudence, specifically Granberry v. Greer , supra, and 

Frisbie v. Collins, 342 U.S. 519 (1952).19 We agree with the 

Commonwealth that Granberry relates only to the special 

circumstance of the prosecution never having raised the 

exhaustion defense prior to appeal so that the Supreme 

Court permitted the court of appeals to rule on the merits 

of the petition. After enactment of the AEDPA in 1996, 28 

U.S.C. S 2254 imposes a duty on the courts to examine the 

exhaustion issue and to reject a petition if it raises 

unexhausted claims. 

Lambert's reliance on Frisbie v. Collins, supra, is likewise 

misplaced, as that decision does not support a finding of 

exceptional circumstances here.20 In Frisbie, the Supreme 

Court reiterated the general rule that the presence of 

special circumstances will excuse non-exhaustion. 324 U.S. 

at 520-21. Whether such circumstances exist is to be 

determined by the district court conducting a factual 

appraisal in each particular case. Id. at 521. The Court 

refused to discuss the special circumstances found by the 

_________________________________________________________________ 

19. Lambert maintains before us that since she has either raised or 

waived all of her claims in state court, she did exhaust her state 

remedies. Lambert is equating exhaustion with waiver, however, in that 

she argues that since the unexhausted claims have been waived under 

Pennsylvania law, after the 1995 amendments to the PCRA, she is 

without a mechanism for post-conviction relief. This argument cannot 

form the basis of a "special circumstance" excusing her failure to 

exhaust since, as we find infra, that review of her unexhausted claims is 

not clearly foreclosed under Pennsylvania law. 

20. The Commonwealth submits that the so-called "special 

circumstances" exception of Frisbie v. Collins, supra, upon which 

Lambert relies to excuse nonexhaustion, "is so ill-defined that it must be 

considered sui generis" and, in any event, did not survive the AEDPA 

amendments to the federal habeas corpus statute. The Commonwealth 

describes Frisbie as "a case notably lacking in guidance on the 

parameters of the [special circumstances] exception." We agree with the 

Commonwealth's analysis of Frisbie. 

 17 
court of appeals for the reason that the circumstances were 

so peculiar to the case that "a discussion of them could not 

give precision to the `special circumstances' rule."21 Id. at 

522. 

Recently, we considered the section 2544 exhaustion

requirement with regard to a mixed petition where, as here, 

the state asserted the nonexhaustion defense in the district 

court. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997). 

Acknowledging the Supreme Court's strong presumption in 

favor of exhaustion, we also recognized that "in rare cases 

exceptional circumstances of peculiar urgency may exist 

which permit a federal court to entertain an unexhausted 

claim." Id. at 206-07 (citations omitted). We explained that 

such circumstances exist where "state remedies are 

inadequate or fail to afford a full and fair adjudication of 

the federal contentions raised, or where exhaustion in state 

court would be `futile.' " Id. at 207 (citations omitted). 

Applying this principle in Christy, we declined to find an 

exceptional circumstance which would excuse 

nonexhaustion. We found the mere risk that the state 

courts would not stay the petitioner's execution while his 

federal constitutional claims are being litigated did not 

amount to an "unusual circumstance." The more 

appropriate inquiry, we found, was to focus on the actuality 

that state courts will refuse to stay an execution while 

federal claims are pending. Id. 

Applying our holding in Christy to Lambert's petition, we 

turn our attention to the actuality that the state courts 

would refuse to entertain Lambert's claims. As we discuss 

below, we cannot say with certainty that state review of 

Lambert's claims is precluded. Absent clear preclusion, we 

do not find any exceptional circumstances which would 

warrant consideration of Lambert's unexhausted claims in 

federal court. 

_________________________________________________________________ 

21. The petitioner in Frisbie v. Collins alleged that the complaint in the 

state court action was defective and, consequently, a faulty warrant was 

issued for his arrest. He further contends that he was subsequently 

kidnaped by Michigan police in Chicago and brought back to Michigan 

for trial in violation of federal constitutional and statutory law. 324 

U.S. 

at 521 n. 5. 

 18 
Our conclusion is further buttressed by the holding of 

our sister court of appeals in O'Guinn v. Dutton , 88 F.3d 

1409 (6th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 117 S.Ct. 

742 (1997). There the unexhausted claim involved 

allegations of prosecutorial misconduct stemming from 

Brady violations. The court of appeals found that the state 

courts had an important interest in reviewing a serious 

constitutional claim involving the conduct of a state 

prosecutor in withholding evidence in a state trial in which 

the defendant was prosecuted for a violation of state law. 

Id. at 1412. Accordingly, the court held that the "interests 

of justice and comity [did] not weigh in favor of having [the 

federal court] decide the question." Id. at 1413. Having 

found that the case did not present any unusual or 

exceptional circumstances, the court concluded that the 

state courts should address the prosecutorial misconduct 

claim in the first instance. Id. 

In contrast, we find that the cases cited by Lambert, 

Evans v. Court of Common Pleas, supra, and Moore v.

DeYoung, 515 F.2d 437 (3d Cir. 1975), do not support her 

argument that special circumstances exist which would 

excuse exhaustion. It is true that in Evans we held that 

"[e]xhaustion is not a jurisdictional requirement, but rather 

a rule of comity, and a federal court may in certain 

circumstances decide the merits of a claim despite nonexhaustion." 959 F.2d at 1231. We elaborated on the

circumstances which would support non-exhaustion: where 

the petitioner has no opportunity to obtain relief in a state 

court, or where the state corrective process is so deficient 

as to render any effort to obtain relief futile. Id. (citing 

Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986)). 

Citing Granberry v. Greer, supra, we noted further that 

non-exhaustion notwithstanding, a district court may deny 

a habeas claim on its merits if it appears unequivocally that 

the petitioner has not raised even a colorable federal claim. 

Id. We thus proceeded to consider the merits of Evans' 

claims based on our conclusion that Evans' federal due 

process claim was "the substantial equivalent of that 

presented to the state courts" and, thus, had been 

adequately exhausted. Even though the state failed to raise 

the exhaustion defense in state court, we relied on

Granberry for the authority to reach the merits of Evans' 

 19 
claims. We subsequently affirmed the district court's denial 

of federal habeas relief. 959 F.2d at 1237. 

Unlike Evans, Lambert presents numerous claims which 

are not the substantial equivalent of those presented to the 

state court in the direct appeal of her murder conviction. 

Her petition is more factually analogous to Gibson v. 

Scheidemantel, supra. There the petitioner alleged an 

ineffective assistance of counsel claim in state court, but he 

asserted a different basis for this claim in the state 

proceeding than that presented in his federal habeas claim. 

Consequently, we held that the petitioner had not 

exhausted his claim since the state courts could not be 

expected to consider a claim that was never made. 805 F.2d 

at 139. 

Nor do we find that Lambert's position is supported, as 

she contends, by our decision in Moore v. DeYoung, 515 

F.2d 437 (3d Cir. 1975). There we acknowledged the 

possibility that federal habeas review to enjoin a state 

criminal proceeding prior to trial was possible despite nonexhaustion if "extraordinary circumstances are present." Id. 

at 443. In finding that Moore failed to present an 

" `extraordinary circumstance' which would warrant pretrial, pre-exhaustion habeas corpus relief," we declined to 

define the parameters of the "extraordinary circumstances" 

exception, holding only that whatever the boundaries may 

be, Moore's petition fell outside those limits. 22 Id. at 447. 

We noted, however, that manifest shortcomings by the 

prosecutor's office and negligence in conducting Moore's 

prosecution did not "reveal that quality of delay, 

harassment, bad faith or other intentional activity which, in 

an appropriate situation, might constitute an `extraordinary 

circumstance', justifying pre-exhaustion federal habeas 

relief." Id. at 447 n. 12. 

_________________________________________________________________ 

22. In his petition, Moore alleged that the constitutional right to a 

speedy trial was so unique that it should bar not only a conviction but 

trial as well. This unique quality, Moore contended, constituted an 

"extraordinary circumstance." 515 F.2d at 446. 

 20 
B. 

Although we discount Lambert's reliance on Granberry, 

Frisbie, Evans, and Moore to support a finding of 

exceptional circumstances sufficient to excuse 

nonexhaustion, our inquiry does not end there. As we 

stated earlier, one of the exceptional circumstances in 

which courts have dispensed with the exhaustion 

requirement is if further state litigation would be futile. 

Christy, 115 F.3d at 207. See also Twenty-Sixth Annual 

Review of Criminal Procedure, 85 Geo. L. J. 775, 1521 & n. 

2755 (1997). In making this determination, courts have 

examined the totality of the circumstances surrounding 

each petition. Id. at 1521 n. 2755. For example, the Court 

of Appeals for the First Circuit found the exhaustion 

requirement excused when a recent independent decision 

by the highest state court clearly rendered appellate review 

futile. Id. (citing Allen v. Attorney General of Maine, 80 F.3d 

569, 573 (1st Cir. 1996)). Another court of appeals excused 

the exhaustion requirement when it was clear that the 

petitioner's claims would be deemed procedurally barred if 

presented in the state court. Id. (citing Grey v. Hoke, 933 

F.2d 117, 120 (2d Cir. 1991)). Some courts have been 

reluctant to apply the futility exception, however, because 

it has been criticized for potentially bypassing the state 

courts. Id. at 1522 n. 2755 (citations omitted). Most 

importantly, we recently applied our jurisprudence to hold 

that unless a state court decision exists indicating that a 

habeas petitioner is clearly precluded from state court 

relief, the federal habeas claim should be dismissed for 

nonexhaustion, even if it appears unlikely that the state 

will address the merits of the petitioner's claim. Banks v. 

Horn, 126 F.3d 206, 211 (3d Cir. 1997) (citing Doctor v. 

Walters, 96 F.3d 675, 683 (3d Cir. 1996); Toulson, 987 F.2d 

at 988-89; Peoples v. Fulcomer, 882 F.2d 828, 831-32 (3d 

Cir. 1989)). 

In Banks, we were faced with whether the Pennsylvania 

Supreme Court, in death penalty cases, consistently or 

regularly bars second or subsequent PCRA petitions which 

may not meet the court's criteria for such petitions, 

"includ[ing] the existence of `a strong prima facie showing 

. . . that a miscarriage of justice may have occurred.' " 

 21 
Banks v. Horn, 126 F.3d at 211 (citing Commonwealth v. 

Beasley, 678 A.2d 773, 771 (Pa. 1996), cert. denied, ___ 

U.S. ___, 117 S.Ct. 1257 (1997)). We concluded, based on 

our review of Pennsylvania case law, that the Pennsylvania 

Supreme Court had established a practice of reaching the 

merits of claims in PCRA petitions in capital cases

notwithstanding the failure of the petitioner to meet the 

appropriate procedural requirements. Id. at 212-13.

Because we were not sure that the supreme court would 

change this practice after the 1995 amendments to the 

PCRA, we found that state review of Bank's unexhausted 

claims was not foreclosed. Id. at 214. 

In deciding Banks, we relied on Doctor v. Walters, supra, 

which involved a defendant who fled during the lunch 

recess of his criminal bench trial on the charge of

aggravated assault following the presentation of the 

Commonwealth's case. When the defendant failed to return, 

the trial court, without informing the defendant, his 

counsel, or the Commonwealth, entered a guilty verdict 

against Doctor. Upon his capture five years later, Doctor 

was sentenced to a term of 49 to 98 months in prison. He 

filed a timely direct appeal to the Pennsylvania Superior 

Court which quashed the appeal without reaching the

merits based on the fugitive forfeiture rule.23 Both the 

Pennsylvania Supreme Court and the United States 

Supreme Court also declined to hear his appeals. In his 

federal habeas petition, Doctor raised a Sixth Amendment 

claim which had not been presented to any Pennsylvania 

court. We found that although the Pennsylvania courts 

would hold, on collateral review, that Doctor waived the 

right to assert his Sixth Amendment claim on procedural 

grounds, PCRA review was not clearly foreclosed since 

Doctor may be able to show that a " `miscarriage of justice' 

warranting `departure from the PCRA's stringent eligibility 

requirements' " has occurred. 96 F.3d at 681-82 (citation 

omitted). 

_________________________________________________________________ 

23. Rule 1972(6) of the Pennsylvania Rules of Appellate Procedure 

permits a Pennsylvania appellate court to quash an appeal because the 

appellant is a fugitive. Doctor v. Walters, 96 F.3d 675, 678 (3d Cir. 

1996). 

 22 
Likewise, in Toulson v. Beyer, we considered whether it 

would be futile to require the petitioner to exhaust his state 

remedies first. 987 F.2d at 986. There the defendant was 

convicted in a New Jersey court of various non-capital 

offenses. After a series of unsuccessful direct appeals to the 

New Jersey courts and the denial of his motion for postconviction relief by the state trial court, Toulsonfiled a 

federal habeas petition containing unexhausted but 

procedurally barred claims in addition to exhausted claims. 

In examining pertinent New Jersey law, we found that it 

was possible that a New Jersey court may allow state 

review of otherwise procedurally barred claims based on 

one of two statutory exceptions to the procedural bar rule. 

987 F.2d at 988. Accordingly, we held that "[b]ecause no 

state court has concluded that petitioner is procedurally 

barred from raising his unexhausted claims and state law 

does not clearly require a finding of default, . .. the district 

court should have dismissed the petition without prejudice 

for failure to exhaust state remedies." Id. at 989. Thus, our 

precedent makes clear that Lambert must exhaust her state 

remedies before she can seek federal habeas relief unless 

such an attempt would be futile. Doctor, 96 F.3d at 681 

(citing Toulson, 987 F.2d at 987). 

Futility may be encountered where exhaustion is 

impossible due to procedural default, i.e., the state court 

refuses to hear the merits of the claim because either (1) 

the defendant waived a PCRA claim she could have raised 

in an earlier proceeding but failed to do so; or (2) some 

other procedural bar exists, such as a statute of 

limitations. Doctor, 96 F.3d at 681. Moreover, a federal 

habeas court may excuse exhaustion because of a 

procedurally barred claim in state court "only when state 

law `clearly foreclose[s] state court review of [the] 

unexhausted claims.' Toulson, 987 F.2d at 987." Doctor, 96 

F.3d at 681. We further explained: 

 If the federal court is uncertain how a state court 

 would resolve a procedural default issue, it should 

 dismiss the petition for failure to exhaust state 

 remedies even if it is unlikely that the state court 

 would consider the merits to ensure that, in the 

 interests of comity and federalism, state courts are 

 23 
 given every opportunity to address claims arising from 

 state proceedings. See Vasquez v. Hillery, 474 U.S. 

 254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986); 

 Toulson, 987 F.2d at 987. 

Id. We must determine, therefore, whether, in the case 

before us, Pennsylvania collateral review is "clearly 

foreclosed" such that further state proceedings are futile. 

C. 

In Pennsylvania, collateral review of a criminal conviction 

is available under the Post Conviction Relief Act ("PCRA") of 

1995, 42 Pa. Con. Stat. Ann. SS 9541-46 (West 1997 Supp.).24 

The scope of the relief provided under the PCRA is limited 

to "persons convicted of crimes they did not commit and 

persons serving illegal sentences . . .".25 42 Pa. Con. Stat. 

Ann. S 9542. Section 9542 further provides that the PCRA 

"shall be the sole means of obtaining collateral relief and 

encompasses all other common law and statutory remedies 

for the same purpose that exist when [the PCRA] takes 

effect, including habeas corpus and coram nobis." The 

PCRA also imposes several eligibility criteria for relief. First, 

the petitioner must plead and prove by a preponderance of 

the evidence that she is, at the time relief is granted, 

currently serving a sentence of imprisonment, or is on 

probation or parole, or is awaiting execution of a death 

sentence. 42 Pa. Con. Stat. Ann. S 9543(a)(1). Second, the 

petitioner must prove by a preponderance of the evidence 

that her conviction or sentence resulted from one or more 

of seven categories of claims, only three of which are 

relevant. We paraphrase them here: 

 (1) The petitioner's rights under the Pennsylvania 

_________________________________________________________________ 

24. The PCRA of 1995 became effective on January 16, 1996, and 

applies to postconviction petitions filed on or after that date. The PCRA 

was subsequently amended by Act No. 1997-33 (H.B. 87), effective June 

25, 1997, but the changes are irrelevant to the dispute before us. 

25. Because it provides a limited scope of relief, the PCRA of 1995 has 

been described as "one of the most restrictive and narrow of all the 

modern state postconviction remedies." Donald E. Wilkes, Jr., State 

Postconviction Remedies and Relief, App. A, p. 760 (1996 Ed.). 

 24 
 Constitution or the Constitution or laws of the United 

 States were violated which, under the circumstances, 

 so undermined the truth-determining process that no 

 reliable adjudication of guilt or innocence could have 

 taken place. 

 (2) The petitioner received ineffective assistance of 

 counsel which, under the circumstances, so 

 undermined the truth-determining process that no 

 reliable adjudication of guilt or innocence could have 

 taken place. 

 (3) Exculpatory evidence, which was unavailable at 

 the time of trial, was subsequently discovered and 

 would have changed the outcome of the trial if it had 

 been introduced. 

42 Pa. Con. Stat. Ann. S 9543(a)(2)(i), (ii), and (vi). 

Next, the petitioner must show by a preponderance of the 

evidence that the alleged error has not been previously 

litigated or waived. 42 Pa. Con. Stat. Ann. S 9543(a)(3). "An 

issue will be deemed previously litigated when `the highest 

appellate court in which the petitioner could have had 

review as a matter of right has ruled on the merits of the 

issue,' " Commonwealth v. Morales, 701 A.2d 516, 1997 WL 

578289, *1 (Pa. Sept. 17, 1997) (quoting 42 Pa. Con. Stat. 

Ann. S 9544(a)(2)), or "it has been raised and decided in a 

proceeding collaterally attacking the conviction or

sentence." 42 Pa. Con. Stat. Ann. S 9544(a)(3). In her 

federal habeas petition, Lambert advances three claims 

which were previously litigated in the direct appeal of her 

conviction and sentence. Accordingly, Lambert is not 

entitled to postconviction relief on those claims under the 

PCRA and has thus exhausted her state remedies as to 

these three claims. 

Finally, by a preponderance of the evidence, the 

petitioner must demonstrate that the failure to litigate an 

issue previously was not the result of any rational, strategic 

or tactical decision by counsel. 42 Pa. Con. Stat. Ann. 

S 9544(a)(4). Neither the contentions of the parties nor the 

evidence of record suggests that Lambert's trial counsel 

strategically planned to exclude in her direct appeal some 

of the claims now raised. 

 25 
Particularly significant to this appeal is the PCRA

provision on waiver, which states, "an issue is waived if the 

petitioner could have raised it but failed to do so before 

trial, at trial, during unitary review, on appeal or in a prior 

state postconviction proceeding." 42 Pa. Con. Stat. Ann. 

S 9544(b). In this regard, the Pennsylvania courts have held 

"that nearly all claims are waived under the PCRA since 

nearly all claims potentially could have been raised on 

direct appeal. This applies even if the first-time petitioner 

never has obtained appellate review of his conviction." 

Commonwealth v. Eaddy, 614 A.2d 1203, 1207-08 

(Pa.Super. 1992), appeal denied, 626 A.2d 1155 (Pa. 1993). 

Prior to 1995, the PCRA also provided two exceptions to the 

waiver rule. If the alleged error either (1) resulted in the 

conviction of an innocent person, or (2) did not constitute 

a state procedural default barring federal habeas relief, 

then the waiver was excused. 42 Pa. Con. Stat. Ann.

SS 9543(a)(3)(ii) and (iii) (West 1988). Neither of these two 

exceptions, however, is available to Lambert since her 

direct appeal was not final until after the effective date 

of the 1995 amendment to the PCRA. While Lambert 

maintains and the district court held that elimination of 

these two exceptions in the 1995 amendment effectively 

bars relief under the PCRA on all claims, we are not 

convinced that this is necessarily the case. 

In the past, the Pennsylvania Supreme Court has allowed 

the petitioner, in limited circumstances, to overcome the 

waiver provisions where he has made a strong prima facie 

showing that a "miscarriage of justice" may have occurred. 

Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988). In 

order to prevail under this theory, the petitioner must show 

either: "(a) that the proceedings resulting in[the] conviction 

were so unfair that a miscarriage of justice occurred which 

no civilized society can tolerate, or (b) that [the petitioner] 

is innocent of the crimes charged." Commonwealth v.

Szuchon, 633 A.2d 1098, 1100 (Pa. 1993) (citing Lawson, 

549 A.2d at 112). In a concurring opinion, Justice 

Papadakos provided the following edification on 

"miscarriage of justice": 

 A miscarriage of justice, like prejudice, can only occur 

 where it is demonstrated that a particular omission or 

 26 
 commission was so serious that it undermined the 

 reliability of the outcome of the proceeding. Where a 

 conviction can be shown to result from a breakdown in 

 the adversary process, the conviction rendered is 

 unreliable. Such a conviction is obviously prejudicial to 

 the defendant and, if allowed to stand, is a miscarriage 

 of justice. 

Lawson, 549 A.2d at 112 (Papadakos, J., concurring). 

Moreover, we noted in Doctor that allegations of a 

miscarriage of justice have been permitted to override the 

waiver provisions of the PCRA in the context of successive 

PCRA petitions, which was the situation in Lawson, supra. 

96 F.3d at 682 n. 6. We further noted that the 

Pennsylvania courts, however, have not addressed whether 

a showing of miscarriage of justice can be applied to 

overcome the waiver provisions in an initial PCRA petition. 

Id. In Doctor, we refused to find that collateral review was 

foreclosed since we concluded that Pennsylvania case law 

left open the possibility that a showing of miscarriage of 

justice can overcome the waiver provisions in an initial 

PCRA petition. Id. We thus concluded that a return to state 

court would not be futile. Id. at 683. 

In Banks, we reiterated our policy regarding review of 

waived or procedurally defaulted claims, which we originally 

stated in Toulson and applied in Doctor : 

 [I]n the absence of a state court decision indicating 

 that a habeas corpus petitioner is clearly precluded 

 from state court relief, the district court should dismiss 

 the claim for failure to exhaust even if it is not likely 

 that the state court will consider petitioner's claim on 

 the merits. 

126 F.3d at 211. We have applied this policy to all habeas 

corpus cases involving state convictions regardless of the 

sentence imposed. Whether, in fact, state case law exists 

which establishes unequivocally that state relief is 

precluded would depend on the particular facts of the case. 

Although factually Banks is distinguishable from Lambert's 

situation, the general rule of Banks governs our resolution 

of this dispute.26 Neither Lambert nor the district court 

_________________________________________________________________ 

26. Lambert argues our decisions in Banks and Doctor are 

distinguishable and, therefore, inapposite. Lambert attempts to 

 27 
cites any authority to the contrary. The Commonwealth, on 

the other hand, cites several decisions in which 

Pennsylvania courts have expressed a willingness to depart 

from the PCRA's stringent waiver standards for non-capital, 

as well as capital cases, where actual innocence or manifest 

injustice is alleged. See Commonwealth v. Moss , 689 A.2d 

259, 262 (Pa.Super. 1997) (where there is a strong prima 

facie showing that a miscarriage of justice may have 

occurred in a rape conviction, court will consider the merits 

of a fifth PCRA petition); Commonwealth v. Williams, 660 

A.2d 614, 618-19 (Pa.Super. 1995), appeal denied , 674 

A.2d 1071 (Pa. 1996) (although the court denied PCRA 

_________________________________________________________________ 

distinguish Doctor on the basis that the petitioner failed to raise in the 

state court the legal theory and facts supporting his habeas claim, and 

that we were referring to the pre-amendment PCRA when we noted the 

availability of a "miscarriage of justice" exception to the waiver rule. 

Our 

holding in Doctor is clear: Pennsylvania case law leaves "open the 

possibility that a showing of miscarriage of justice can overcome the 

waiver provisions in an initial PCRA petition." 96 F.3d at 682 n.6. In 

reaching this conclusion, we were construing the PCRA as amended in 

1995, as evidenced by our citation to the 1996 supplement and the 

language of the statute as amended in 1995. 

Lambert distinguishes Banks on the basis that it is a death penalty 

case with a clearly existing avenue for state court review. In a letter 

brief 

to the court dated September 30, 1997, Lambert states: 

 In other words, Banks, Toulson, and Doctor hold only that a 

 petitioner should be returned to state court to pursue an avenue of 

 review that clearly exists. The present case presents precisely the 

 opposite situation. Here, the avenue of state review-- indeed, the 

 very review opportunity that was available in Toulson and Doctor -- 

 has been permanently blockaded by an explicit act of the 

 Pennsylvania legislature eliminating the waiver excuses and 

 advertently sending the cases at issue, including Lambert, to 

federal 

 court where waiver excuses still exist; and the practice in death 

 sentence cases of ignoring waivers that was available in Banks is 

 inapplicable. 

Further, Lambert states that "where the legislature has advertently 

channeled the case at issue to federal court--the district court should 

proceed to the cause and prejudice/miscarriage of justice inquiry under 

Schlup [v. Delo, 513 U.S. 298 (1995)]." (Citing Carter v. Vaughn, 62 F.3d 

591, 595 (3d Cir. 1995)). 

 28 
relief to a defendant who pled nolo contendere to robbery, it 

acknowledged that Pennsylvania courts will address the 

merits of waived claims upon a showing of manifest 

injustice); Commonwealth v. Fiore, 665 A.2d 1185, 1194 

(Pa.Super. 1995), appeal denied, 675 A.2d 1243 (Pa. 1996) 

(Hoffman, J., concurring, wrote separately "to emphasize 

that there are circumstances where a departure from the 

PCRA's stringent eligibility requirements is appropriate, 

such as where there are extraordinary circumstances or a 

miscarriage of justice."). 

A showing of ineffective assistance of counsel may also 

excuse waiver. Morales, 701 A.2d 516, 1997 WL 578289, *2 

(citing Commonwealth v. Christy, 656 A.2d 877, 881 (Pa.), 

cert. denied, ___ U.S. ___, 116 S.Ct. 194 (1995)) (ineffective 

assistance of counsel could be a basis for post-conviction 

relief only if the defendant had a constitutional right to 

counsel in the proceeding in which he claimed 

ineffectiveness); see also Commonwealth v. Buehl , 658 A.2d 

771, 777 (Pa. 1995) (three members of a divided court 

interpreted the PCRA to require a defendant claiming 

ineffectiveness of counsel to meet a more demanding

standard of prejudice than if he had raised this issue on 

direct appeal); Thomas M. Place, Ineffective Assistance of 

Counsel Under the Pennsylvania Post Conviction Relief Act, 

69 Temple L. Rev. 1389 (1996). Waiver of errors under the 

PCRA will be excused for ineffective assistance of counsel if 

the defendant had a constitutional right to counsel at the 

stage in the proceedings where counsel's ineffectiveness 

brought about the waiver. Place, supra, at 1410 (citing 

Christy, 656 A.2d at 881) (additional citation omitted). 

"Consequently, ineffectiveness of counsel will only excuse 

waiver of errors for claims where counsel is ineffective at 

trial and on direct appeal." Id. (citing Christy, supra). If the 

underlying claim was previously litigated on appeal, postconviction relief is not available based on a claim of 

ineffective assistance of counsel. Id. (citations omitted). 

Moreover, an ineffectiveness claim " `must be raised at the 

earliest stage in the proceedings at which the allegedly 

ineffective counsel is no longer representing the 

[defendant].' " Id. (citing Commonwealth v. Griffin, 644 A.2d 

1167, 1170 (Pa. 1994)). Finally, it should be noted that 

"[c]ounsel's performance in terms of waiver becomes an 

 29 
issue only in those cases where new counsel represents the 

defendant at post-trial motions. If the new counsel does not 

preserve the issue of the trial counsel's ineffectiveness in 

post-trial motions, the new counsel waives the issue unless 

a court determines that post-trial counsel provided

ineffective representation." Id. (footnote omitted).27 

Our review of Pennsylvania decisional law leads us to 

conclude that it is unclear after the 1995 amendments to 

the PCRA whether the Pennsylvania courts would allow a 

showing of miscarriage of justice to overcome the waiver 

provisions in a non-capital case upon an initial PCRA 

petition. Indeed, we have not discovered cases addressing 

this issue after the passage of the 1995 amendments. 

Accordingly, we cannot say that requiring Lambert to seek 

review of her claims in the state courts is futile. 28 

_________________________________________________________________ 

27. Although neither party has addressed the issue of whether 

ineffectiveness of counsel excused waiver, the Commonwealth 

acknowledged in its letter brief dated September 30, 1997, Pennsylvania 

decisional law holding that "PCRA courts will consider claims which 

otherwise would be deemed waived when raised under the rubric of 

ineffective assistance of counsel." Commonwealth v. K.M., 680 A.2d 1168, 

1171 n. 8 (Pa.Super. 1996) (citing Commonwealth v. Griffin, 644 A.2d 

1167 (Pa. 1994)). Moreover, it is possible that Lambert could argue in a 

PCRA petition that second post-trial counsel provided ineffective 

representation in not raising the unexhausted claims in her direct 

appeal. Since Lambert is now represented by different counsel, arguably 

she would be raising the unexhausted claims at the earliest stage in the 

proceedings at which previous counsel provided allegedly ineffective 

representation. The uncertainty surrounding the availability of this 

exception to the waiver rule further supports dismissal of the habeas 

petition to allow the state court the opportunity to rule in the first 

instance. 

28. We find the district court erred in concluding that the 

Commonwealth waived the exhaustion defense when it temporarily 

conceded during the evidentiary hearing that Lambert was entitled to 

some relief. Considering the circumstances under which the concession 

was made, i.e., the Commonwealth was forced to defend the petition on 

the merits without the benefit of a ruling on its exhaustion defense prior 

to the evidentiary hearing, the fact that the Commonwealth continuously 

maintained that Lambert had failed to exhaust her state remedies at all 

stages of the proceedings, and the requirement that the waiver be 

expressly given, we cannot say the Commonwealth waived the 

exhaustion defense. 

 30 
III. 

In seeking state collateral review of her nonexhausted 

claims, Lambert has several options. It is possible that 

under 42 Pa. Con. Stat. Ann. S 5103, Lambert may transfer 

her federal proceeding to the appropriate Pennsylvania 

court. In addition, Lambert may institute a PCRA action 

utilizing one or more of the three exceptions to the PCRA 

statute of limitations, which allows for the filing of a PCRA 

petition at the present time. We discuss these options 

briefly. 

A. 

The Pennsylvania Transfer Statute provides in pertinent 

part: 

 (a) General rule.--If an appeal or other matter is taken 

 to or brought in a court . . . of this Commonwealth 

 which does not have jurisdiction of the appeal or other 

 matter, the court . . . shall not quash such appeal or 

 dismiss the matter, but shall transfer the record 

 thereof to the proper tribunal of this Commonwealth, 

 where the appeal or other matter shall be treated as if 

 originally filed in the transferee tribunal on the date 

 when the appeal or other matter was first filed in a 

 court . . . of this Commonwealth. 

42 Pa. Con. Stat. Ann. S 5103(a) (West 1997 Supp.) In the 

case of actions originally filed in any United States court, 

the statute further provides: 

 [Section 5103(a)] shall also apply to any matter 

 transferred or remanded by any United States court for 

 a district embracing any part of this Commonwealth. In 

 order to preserve a claim under Chapter 55 (relating to 

 limitation of time), a litigant who timely commences an 

 action or proceeding in any United States court for a 

 district embracing any part of this Commonwealth is 

 not required to commence a protective action in a court 

 . . . of this Commonwealth. Where a matter is filed in 

 any United States court for a district embracing any 

 part of this Commonwealth and the matter is 

 dismissed by the United States court for lack of 

 31 
 jurisdiction, any litigant in the matter filed may 

 transfer the matter to a court . . . of this

 Commonwealth by complying with the transfer 

 provisions set forth in [section 5103(b)(2)]. 

42 Pa. Con. Stat. Ann. S 5103(b)(1) (West 1997 Supp.). 

Although the transfer act clearly applies when the 

original court lacks jurisdiction over the appeal or other 

matter, we believe it may also apply here where the district 

court dismisses a federal habeas petition for failure to 

exhaust state remedies.29 The language of section 5103(b)(1) 

indicates that a purpose of the statute is to prevent the 

barring of claims and other matters under the statute of 

limitations when the original court lacked jurisdiction over 

a matter which was timely filed. Applying the transfer act 

under the facts here would be entirely consistent with the 

purpose of the statute. 

We hasten to add, however, that we are not endorsing the 

application of the transfer statute in all federal habeas 

actions dismissed for nonexhaustion. Rather, we suggest 

that transfer may be appropriate where, as here, the 

district court did not originally dismiss the petition for 

failure to exhaust state remedies. Instead, the court 

prematurely proceeded to adjudicate the merits of the claim 

during which the one-year statute of limitations expired. 

Under these unique circumstances, the Pennsylvania 

transfer statute may apply and any action commenced by 

Lambert under the PCRA would be treated as filed on

September 12, 1996, the date on which she filed her

petition for writ of habeas corpus in the district court. 

B. 

Lambert has yet another option. The 1995 amendment to 

the PCRA enacted for the first time a one-year statute of 

limitations.30 Since the effective date of the 1995 Act is 

_________________________________________________________________ 

29. When a district court dismisses a federal habeas petition for 

nonexhaustion, it nevertheless has jurisdiction. The dismissal is based 

on principles of comity afforded state courts. 

30. Prior to the 1995 amendment, the PCRA did not contain a 

limitations provision for filing a PCRA petition. 

 32 
January 16, 1996, and Lambert's direct appeal wasfinal on 

July 2, 1996, under 42 Pa. Con. Stat. Ann. S 9545(b)(1), 

she had until July 1, 1997 to file a PCRA petition.31 A literal 

reading of section 9545 indicates that by failing tofile a 

PCRA petition on or before July 1, 1997, Lambert may now 

be barred from filing a PCRA petition on her unexhausted 

claims. Section 9545 also contains three exceptions to the 

one-year filing requirement. Essentially, the limitations 

period will be excused where (1) the petitioner failed to raise 

the claim previously due to interference by government 

officials with the presentation of the claim in violation of 

the constitutions and laws of the United States and

Pennsylvania; (2) the facts upon which the claim is based 

were unknown to the petitioner and could not have been 

discovered through due diligence; or (3) the claim involves 

a constitutional right recognized by the Supreme Court of 

the United States or of Pennsylvania subsequent to the 

expiration of the statute of limitations and held to apply 

retroactively. 42 Pa. Con. Stat. Ann. S 9545(b)(1)(i), (ii), and 

(iii). Interestingly, the original version of the bill proposing 

the 1995 amendments to the PCRA contained a fourth 

exception to the one-year time limit which was eliminated 

before final passage. That exception would have allowed a 

waiver of the statute of limitations where "[t]here is a 

compelling need to address the claim because of a 

fundamentally unfair trial, illegal sentence or some other 

manifest injustice." H.R. 179-66, 1st Spec. Sess., at 510 

(Pa. 1995).32 

_________________________________________________________________ 

31. Section 9545(b) states in relevant part: 

 (1) Any petition under [the PCRA], including a second or 

 subsequent petition, shall be filed within one year of the date the 

 judgment becomes final. . . . 

 (3) [A] judgment becomes final at the conclusion of direct review, 

 including discretionary review in the Supreme Court of the United 

 States and the Supreme Court of Pennsylvania, or at the expiration 

 of time for seeking the review. 

32. The debate on this amendment centered on the concerns of certain 

representatives that by providing a "manifest injustice" exception, they 

would be opening a Pandora's box for the Pennsylvania appellate courts. 

H.R. 179-66, 1st Spec. Sess., at 510 (Pa. 1995). Mr. Piccola argued that 

 33 
The possibility exists that Lambert may be able to plead 

and prove one or more of the excuses to the statute of 

limitations. For example, Lambert has alleged in her federal 

habeas petition that she discovered certain exculpatory 

evidence after her conviction for first degree murder. 

Moreover, she cites numerous instances of alleged 

prosecutorial misconduct which, if proven, may be 

sufficient to fall within the first exception of 

unconstitutional interference by government officials. We 

note that to date, no Pennsylvania court has been asked to 

decide under what circumstances it would excuse an 

untimely PCRA petition under the new statute of limitations 

provision.33 Thus, Lambert may be able to proceed under 

the PCRA. 

_________________________________________________________________ 

Pennsylvania case law does not provide guidance on what constitutes 

"manifest injustice" and cautioned against passing these words into the 

statute without defining them. Id. At 511. He further commented that 

the current bill (S.B. 81) contained adequate protection for the criminal 

defendant who finds new evidence after trial, as well as in many other 

circumstances. Id. The "manifest injustice" amendment was eventually 

defeated. Id. at 512. On the other hand, Mr. Thomas, who introduced the 

amendment, argued that "the amendment provide[d] a protective 

mechanism in situations where there is conduct that does not arise until 

way beyond the statutory period," . . . . Id. at 510. He further 

commented that "fairness would require that we provide an . . . avenue 

of relief, in situations where individuals do not come face to face with 

conduct that has resulted in either their incarceration or their harm 

beyond that . . . statutory year that is provided for in this particular 

bill." 

Id. at 510-11. He opined that passage of the bill without the avenue of 

review provided in the amendment would cause a disservice to the whole 

judicial system. Id. at 511. 

33. Under the prior statute which did not contain a statute of 

limitations provision, the Pennsylvania courts were lenient in allowing 

collateral review after long delays, especially in situations involving 

ineffective assistance of counsel. See, e.g., Commonwealth v. Johnson, 

532 A.2d 796 (Pa. 1987) (mere delay, standing alone, may not be 

sufficient reason to reject PCRA petition summarily); Commonwealth v. 

McCabe, 519 A.2d 497 (Pa.Super. 1986) (a PCRA petition filed six years 

after the supreme court affirmed denial of his petition to set aside an 

illegal sentence was not untimely); Commonwealth v. Taylor, 502 A.2d 

195 (Pa.Super. 1985), appeal denied (1986) (unexplained delay in filing 

first PCRA petition is a factor to be considered in assessing the merits 

of 

the claims raised in the petition, but is not a basis for refusing to 

consider the claims by reason of laches and waiver). 

 34 
IV. 

One final matter bears mention. Each side has brought to 

our attention serious factual issues concerning the district 

court's finding that Lambert was actually innocent of first 

degree murder. In light of our resolution of Lambert's 

petition, we need not comment on Lambert's actual 

innocence. Indeed, to do so would be to "deprive the state 

courts of an `opportunity to correct their own errors, if 

any,' " Doctor, 96 F.3d at 683 (citing Toulson, 987 F.2d at 

989), by engaging in a premature examination of the verdict 

prohibited by Congress under the AEDPA. 

We do not, however, diminish the obvious sense of 

outrage expressed by the prosecution nor that of the able 

district judge who heard and evaluated the evidence

Lambert proffered. Resolution of these difficult questions 

must nonetheless await the appropriate forum for the 

constitutional balance our forefathers created to remain in 

equipoise. Accordingly, we will vacate the order of the 

district court granting the petition for writ of habeas corpus 

and remand to the district court with the direction to 

dismiss the petition without prejudice. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 35