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. e du/thir dc ir c uit_1997/282Filed 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 C ourt 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

2D. 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

3Charles 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 o f determining whether the district court, upon petiti on for writ of habeas corpus, erred in granting the uncond itional 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 c ontains
both unexhausted and exhausted claims. Because wefi nd the petitioner has not yet pursued her remedies und er the Pennsylvania Post Conviction Relief Act, 42 Pa. Con s. Stat. Ann. S 9542 et seq. (West 1997 Supp.), her federal habeas

4petition includes unexhausted claims and, hence, th e result

here is dictated by Rose v. Lundy, supra . Thus, we will
remand this case to the district court with an orde r to dismiss the petition without prejudice so that the petitioner can first present her unexhausted claims to the app ropriate 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 t he wrath of Lambert, who accosted Show on several occa sions. On the morning of December 20, 1991, Show was bruta lly murdered. Lambert and an accomplice, Tabitha Buck, were subsequently charged with criminal homicide for the murder of Show.2 Buck was convicted of second degre e murder by a jury of her peers; Yunkin, in exchange for his truthful testimony against Lambert, pled guilty to hindering apprehension.3

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1. We note, as a preliminary matter, that Lambertfi led a motion to dismiss this appeal on the basis that since the dis trict court found she was actually innocent of first degree murder, the D ouble Jeopardy
Clause of the Fifth Amendment bars the Commonwealth 's appeal. By separate order, we will deny this motion. As we mak e clear in this opinion, the district court erred in reaching the i ssue of Lambert's

actual innocence. Accordingly, we do not give weight to th e district court's factual findings in this appeal. Moreover, we are p lainly authorized to
review the final order of the district court in a h abeas case pursuant to 28 U.S.C. S 2253(a). Furthermore, a finding of actu al innocence, as that term has come to be used in federal habeas corpus j urisprudence, 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 Je opardy Clause does not bar the Commonwealth's appeal.

2. At the time of her arrest, Lambert was six month s pregnant with
Yunkin's child.

3. Several weeks after Lambert's murder trial was c oncluded; the Commonwealth determined that Yunkin had perjured hi mself at Lambert's trial. Consequently, Yunkin breached the plea agreement and the Commonwealth charged him with third degree murd er to which he pled nolo contendere.

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

Court of Common Pleas of Lancaster County, Pennsylv ania, Lambert was convicted of first degree murder and cr iminal conspiracy. Subsequently, Lambert was sentenced to life imprisonment by the trial court. Lambert, through h er 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, th e trial court issued an Opinion and Order denying Lambert's posttrial motions. No appeal was taken from this order.

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4. The issues raised in the first set of post-verdi ct motions filed by Roy Shirk, Esq., included:

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

Error to deny defendant's motion for sanctio ns;

Error to allow Tabitha Buck's statement into evidence;

Error to allow the trier of fact to take not es 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 reque st for supplemental discovery of Laura Thomas was not granted;

Error not to grant a mistrial when the reque st for supplemental discovery of Hazel Show was not granted;

Error not to grant a mistrial when the reque st for supplemental discovery of Richard Kleinhans was not grant ed;

Error not to grant a mistrial when the prose cution withheld
evidence that a jergo was discarded and that they wer e 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 prose cution withheld from discovery a portion of Yunkin's statement of February 4, 1992;

Error not to grant a mistrial when the Assis tant District Attorney asked witness Samuel J. Golub two questions beyond his area of expertise; andInsufficient evidence existed to sustain the verdict.

6Subsequently, Lambert, through new counsel, Jules

Epstein, Esq., filed a Motion for a New Trial based on allegations of after-discovered evidence5 and inef fective assistance of trial counsel.6 An evidentiary hearin g on the new motion was conducted over a two-day period in November of 1994. On March 14, 1995, the state tria l court denied Lambert's motion for post-verdict relief. In June of 1995, Lambert appealed the judgment of sentence imp osed by the state trial court to the Superior Court of Pennsylvania, raising essentially the same claims r egarding
ineffective assistance of trial counsel and after-d iscovered evidence.7 A three-judge panel of the Superior Cour t of Pennsylvania affirmed the judgment of sentence on J anuary 4, 1996. In her direct appeal to the Pennsylvania S upreme Court filed on February 2, 1996, Lambert again rais ed the same claims.8 Lambert's petition for allowance of a ppeal

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5. The after-discovered evidence consisted of the t estimony 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, Yu nkin's admission of his involvement in the murder during the plea co lloquy, 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 p resent evidence and witnesses to substantiate her testimony that she ha d been physically and psychologically abused by Yunkin; failing to pr oduce evidence that Commonwealth witness Laura Thomas was on juvenile p robation which was crucial to the credibility determination; prese nting a witness who testified that Laurie Show's claim of date rape aga inst Yunkin was false; failing to present evidence of bad reputation for t he veracity of witness Laura Thomas; failing to move to suppress Lambert's inculpatory statement to the police; failing to seek a new tria l 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 dropp ed 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 ev idence of her good character and of the abuse inflicted upon her by Yu nkin; Lambert also
raised the after-discovered evidence of Yunkin's br each of his plea agreement and perjury.

8. See note 7, supra.

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

seek collateral review of any of her claims through the Pennsylvania Post-Conviction Relief Act.

Lambert instituted the present federal habeas corpu s 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 f or writ of habeas corpus incorporated the claims previously presented to the state courts, but went further, ad vancing the following grounds for relief: (1) Lambert was a ctually innocent and no credible evidence supported the prosecution's theory of her guilt or the findings o f 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; a nd, (4) trial counsel was ineffective in over 35 separate w ays. In its Answer to the First Amended Petition, the Commonwea lth responded that Lambert was not entitled to federal review
at this time since she had failed to exhaust her st ate court remedies and had committed insurmountable procedura l default. In the alternative, the Commonwealth argue d that Lambert's petition should be denied on the merits. Further,

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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 sta tements; failing to disclose Brady and Giglio evidence; and "losing" ot her exculpatory
evidence.

10. The after-discovered evidence allegedly consist s of alterations of Lambert's statement; alteration of crime scene evid ence; scientific testing of clothing worn by Yunkin; photographs of the crim e 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 Yunk in and Buck to their friends; and, the subsequent admission by the prosecution that the primary witness against Lambert--and one of the"rea l" killers--had committed perjury at Lambert's trial.

8the Commonwealth expressly stated in its Answer tha t it

was not waiving the exhaustion requirement in any m anner.11

Despite the Commonwealth's objections to Lambert's petition on the grounds of exhaustion and procedura l default, the district court determined that it woul d allow broad discovery and would conduct an evidentiary he aring on Lambert's claims of actual innocence and prosecu torial 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 heari ng was prohibited by the Anti-Terrorism and Effective Deat h 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 di strict 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 innocenc e or procedural default (former sections 9543(a)(3)(ii) and (iii)),
left Lambert without a state forum in which to rais e her claims of error. The district court interpreted the Pennsylvania legislature's elimination of the actua l

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11. The district court found, however, that the Com monwealth 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 c ourt did not recognize
that the Commonwealth withdrew this concession the very next day. In any event, the Commonwealth maintains that any acqu iescence it may have made regarding relief did not result in an exp ress waiver of the exhaustion issue. See also note 28, infra.

12. In finding that Lambert was actually innocent o f the murder of Laurie Show, the district court did not address the third and fourth grounds raised in Lambert's habeas petition regardi ng after-discovered
evidence and ineffective assistance of counsel.

9innocence and procedural default exceptions to waiv er "as

an advertent decision after the Supreme Court's dec ision in Schlup [v. Delo, 513 U.S. 298 (1995),] to place tho se issues squarely into the federal forum." Lambert, 962 F.Su pp. at 1553. Thus, the district court concluded that Lambe rt exhausted all of the claims presented in her federa l habeas proceeding, with the exception of the after-discove red evidence which "expand[ed] the degree of the violat ions" brought to the attention of the state trial judge o r confirmed Lambert's contention that she is actually innocent. Id.

The court further opined that to the extent there m ay 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 th e petition. Id. at 1554. Moreover, the court found that if it w ere to dismiss this case as a mixed petition pursuant to R ose v. Lundy, supra, "on the suspicion that perhaps its re ading of the PCRA was wrong," then Lambert would be deemed t o have taken her one bite of the apple under the AEDP A. Id. Consequently, in order for Lambert to return to fed eral court, the district court opined, she would need th e 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 allowe d it to excuse total exhaustion or procedural default in th e face of a manifestly unjust incarceration.14 Id. In any eve nt, the

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13. Subsequent to the issuance of the district cour t'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 co urt as if it were the
first such filing."

14. At a status conference held on February 13, 199 7, prior to the evidentiary hearing, the court, after articulating its concerns with the exhaustion issue, opined that the better approach w as to analyze the petitioner's claims under the doctrines of actual i nnocence and manifest

10court found that the Commonwealth's concession at t he

evidentiary hearing that Lambert was entitled to so me 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 appe al pursuant to 28 U.S.C. SS 1291 and 2253.15 In a fede ral habeas corpus proceeding, we exercise plenary revie w of the district court's legal conclusions and apply a clea rly erroneous standard to the court's factual findings. Caswell v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (citing B ond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989)).

II.

We note at the outset that the parties do not dispu te 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 t he exhaustion and procedural default claims in favor o f reaching the merits of Lambert's claim of actual in nocence.17

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injustice based upon prosecutorial misconduct, whic h are derived from the Due Process Clause and not from any statute (su ch as the PCRA).
The district court thus intimated that it was avoid ing 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 clai ms, this case involved highly unusual circumstances and, thus, th ose provisions did not apply.

15. Because the Commonwealth has taken the appeal i n 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 sinc e she has waived the non-exhausted claims in state court, she has thus e xhausted her state remedies. As explained below, we do not agree with Lambert that the non-exhausted claims were necessarily waived in sta te court.

17. We recognize that a panel of this court, on a m otion 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 remedi es. Of course, that

11Rather, we find that Supreme Court precedent and th e

AEDPA mandate that prior to determining the merits of her petition, we must consider whether Lambert is requi red to present her unexhausted claims to the Pennsylvania courts. We turn, therefore, to a discussion of exhaustion o f 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 p erson incarcerated from a judgment of a state court unles s the petitioner has first exhausted the remedies availab le 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 require ment is excused, however, where no available state correcti ve process exists or the particular circumstances of t he 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 t he right under state law to raise, by any available procedur e, the question presented. 28 U.S.C. S 2254(c). A petition er who has raised an issue on direct appeal, however, is n ot required to raise it again in a state post-convicti on proceeding. Evans v. Court of Common Pleas, Delawar e County, Pennsylvania, 959 F.2d 1227, 1230 (3d Cir. 1992) (citing Swanger v. Zimmermann, 750 F.2d 291, 295 (3 d Cir. 1984)). Thus, the federal habeas claim must have be en "fairly presented" to the state courts, i.e., it mu st be the substantial equivalent of that presented to the sta te courts. Id. at 1231 (citations omitted). In addition, the s tate court

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inherently tentative conclusion, based on a record less complete than that before us and not reached after the opportunit y for the intensive study available to a merits panel, is not binding o n 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 Stat es v. Houser, 804 F.2d 565, 568 (9th Cir. 1986). In any event, the mo tions panel did not preclude the respondents from raising the exhaustio n issue. Rather, it merely opined that they were not likely to succeed on it. In fact, upon fuller presentation and consideration, they have su cceeded.

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

as that to be employed in federal court. Id. The ha beas 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 r elief, but merely postpones it. Id. at 986.

The Supreme Court has made clear that a section 225 4 petition which includes unexhausted as well as exha usted claims, i.e., a mixed petition, must be dismissed w ithout prejudice. Rose v. Lundy, 455 U.S. 509, 522 (1982). In reaching this conclusion, the Court analyzed the po licies underlying section 2254 since it found that Congres s'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 prefere nce among federal jurists to allow state courts the ini tial opportunity to review and correct alleged violation s of federal constitutional rights. This preference is d erived from principles of comity.18 Id. at 518. The Court furt her noted that adoption of a total exhaustion rule causes a r eduction in piecemeal litigation, thereby increasing the lik elihood that all claims will be reviewed in a single procee ding. 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 tot al exhaustion. Id. at 520-22. Thus, Lundy teaches tha t if the petitioner fails to satisfy the exhaustion requirem ent prior to filing a federal habeas petition and none of the exceptions apply, the federal court is precluded fr om granting habeas relief to the petitioner.

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18. The doctrine of comity " `teaches that one cour t should defer action on causes properly within its jurisdiction until th e courts of another sovereignty with concurrent powers, and already cog nizant of the litigation, have had an opportunity to pass upon th e matter.' " Rose v. Lundy, 455 U.S. 509, 518 (1982) (quoting Darr v. Bu rford, 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 l egal error without interference from the federal judiciary.' " (Citati ons omitted.)

13Five 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 fed eral habeas petition upon the state's motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedu re. When the petitioner appealed, the state for the first ti me interposed the defense that the petitioner had not exhausted his state remedies. The petitioner respon ded by arguing that the state waived this defense by faili ng 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 constitute d a waiver of that claim in the court of appeals. 481 U .S. at
130.

The Court held in Granberry that where the state ha s failed to raise, in the district court, an arguably meritorious nonexhaustion defense, through inadvertence or othe rwise, the court of appeals may appropriately examine the
nonexhaustion issue anew. Id. at 134. In determinin g whether the interests of comity and federalism were better served by addressing the merits despite non-exhaust ion, 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 judici al efficiency may make it appropriate for the c ourt to insist on complete exhaustion to make sure t hat it may ultimately review the issue on a fully infor med basis. On the other hand, if it is perfectly clear that the applicant does not raise even a colorable fe deral 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 d enies the habeas petition, and the court of appeals af firms the judgment of the district court . . . .

Granberry v. Greer, 481 U.S. at 134-35. Thus, we le arn from Granberry that where a state fails to raise a nonexhaustion defense in the district court, courts of appeals should consider whether, under the particul ar facts and circumstances presented, the interests of justi ce would

14be served by addressing the merits of the habeas pe tition if

it is clear the petitioner has failed to state a co lorable federal claim, or by requiring exhaustion. Id. at 136. We emphasize, however, our previous holding that Granb erry applies to "any claim before the court of appeals f or 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 a nd now on appeal. Indeed, in our most recent decisions app lying Granberry, the state had failed to raise the nonexh austion defense in the district court. See, e.g. , Smith v. Horn, 120 F.3d 400 (3d Cir. 1997); Evans v. Court of Common P leas, Delaware County, 959 F.2d 1227 (3d Cir. 1992); Kell er v. Petsock, supra.

Significantly, two changes in the federal habeas st atute 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 nonexhaust ion defense from its failure to invoke the defense expr essly. Gaylor v. Harrelson, 962 F.Supp. 1498, 1499 & n.2 ( N.D. Ga. 1997). The revised statute now requires an expr ess waiver through counsel in order for the state to ha ve 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 d espite the petitioner's failure to exhaust state remedies. Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denie d, ___ U.S. ___, 118 S.Ct. 126 (1997) (emphasis added). St anding alone, section 2544(b)(2) does not provide a standa rd for determining when a court should dismiss a petition on the merits rather than requiring complete exhaustion. I d. Thus, the court of appeals in Hoxsie read section 2544(b) (2) in conjunction with Granberry. We read the Granberry t est as whether "it is perfectly clear that the applicant d oes not
raise even a colorable federal claim." 481 U.S. at 135.

We cannot say that it is perfectly clear that Lambe rt has
not raised a colorable federal claim. The district court obviously found substantial merit to Lambert's clai ms of

15actual innocence and prosecutorial misconduct. Thes e

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 th e district court with the authority to grant relief o n the merits where the petitioner fails to exhaust state remedie s. Thus, a strict reading of the statute compels us to concl ude that if a question exists as to whether the petitioner h as stated a colorable federal claim, the district court may n ot consider the merits of the claim if the petitioner has failed to exhaust state remedies and none of the exception s set forth in sections 2544(b)(1)(B)(I) and (ii) applies . Lambert argues, in contrast, that Granberry establishes tha t where
the district court has held a full trial and found a miscarriage of justice, a failure to exhaust is exc used. We disagree. The particular language in Granberry to which

Lambert refers states:

[I]f a full trial has been held in the distr ict court and it is evident that a miscarriage of justice has occurred, it may also be appropriate for the court of app eals to hold
that the nonexhaustion defense has been waiv ed 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. Sec ond, 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 requir e that we view Granberry as authorizing a district court t o 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 Granberr y only has meaning when placed in the context of a ca se in
which the state failed to raise the nonexhaustion d efense before the district court. Given the new express wa iver requirement of the AEDPA, it is doubtful that Granb erry continues to have any import in a situation other t han where the state has expressly waived the nonexhaust ion

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

resolution of the case before us does not require i t.

For these reasons, we also reject Lambert's content ion that exhaustion is excused based on the "special circumstances rule" derived from Supreme Court jurisprudence, specifically Granberry v. Greer , su pra, and Frisbie v. Collins, 342 U.S. 519 (1952).19 We agree with the Commonwealth that Granberry relates only to the spe cial circumstance of the prosecution never having raised the exhaustion defense prior to appeal so that the Supr eme Court permitted the court of appeals to rule on the merits of the petition. After enactment of the AEDPA in 19 96, 28 U.S.C. S 2254 imposes a duty on the courts to exami ne the exhaustion issue and to reject a petition if it rai ses unexhausted claims.

Lambert's reliance on Frisbie v. Collins, supra, is likewise misplaced, as that decision does not support a find ing of exceptional circumstances here.20 In Frisbie, the S upreme Court reiterated the general rule that the presence of special circumstances will excuse non-exhaustion. 3 24 U.S.
at 520-21. Whether such circumstances exist is to b e determined by the district court conducting a factu al appraisal in each particular case. Id. at 521. The Court refused to discuss the special circumstances found by the

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19. Lambert maintains before us that since she has either raised or waived all of her claims in state court, she did ex haust her state remedies. Lambert is equating exhaustion with waive r, however, in that she argues that since the unexhausted claims have b een waived under Pennsylvania law, after the 1995 amendments to the PCRA, she is without a mechanism for post-conviction relief. Thi s 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 "sp ecial circumstances" exception of Frisbie v. Collins, sup ra, 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. Th e Commonwealth describes Frisbie as "a case notably lacking in gui dance on the parameters of the [special circumstances] exception ." We agree with the Commonwealth's analysis of Frisbie.

17court of appeals for the reason that the circumstan ces 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 presumptio n in favor of exhaustion, we also recognized that "in ra re cases exceptional circumstances of peculiar urgency may e xist which permit a federal court to entertain an unexha usted claim." Id. at 206-07 (citations omitted). We expla ined that
such circumstances exist where "state remedies are inadequate or fail to afford a full and fair adjudi cation of the federal contentions raised, or where exhaustion in state court would be `futile.' " Id. at 207 (citations om itted). Applying this principle in Christy, we declined to find an exceptional circumstance which would excuse
nonexhaustion. We found the mere risk that the stat e courts would not stay the petitioner's execution wh ile his federal constitutional claims are being litigated d id 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 petiti on, we turn our attention to the actuality that the state courts
would refuse to entertain Lambert's claims. As we d iscuss below, we cannot say with certainty that state revi ew of Lambert's claims is precluded. Absent clear preclus ion, we do not find any exceptional circumstances which wou ld
warrant consideration of Lambert's unexhausted clai ms in

federal court.

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21. The petitioner in Frisbie v. Collins alleged th at 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 an d statutory law. 324

U.S.
at 521 n. 5.

18Our 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 fr om Brady violations. The court of appeals found that t he state courts had an important interest in reviewing a ser ious constitutional claim involving the conduct of a sta te prosecutor in withholding evidence in a state trial in which the defendant was prosecuted for a violation of sta te law. Id. at 1412. Accordingly, the court held that the " interests of justice and comity [did] not weigh in favor of h aving [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 misco nduct
claim in the first instance. Id.

In contrast, we find that the cases cited by Lamber t, Evans v. Court of Common Pleas, supra, and Moore v. DeYoung, 515 F.2d 437 (3d Cir. 1975), do not suppor t her argument that special circumstances exist which wou ld
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 certai n circumstances decide the merits of a claim despite nonexhaustion." 959 F.2d at 1231. We elaborated on the circumstances which would support non-exhaustion: w here 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 ma y deny a habeas claim on its merits if it appears unequivo cally that the petitioner has not raised even a colorable fede ral claim. Id. We thus proceeded to consider the merits of Eva ns'
claims based on our conclusion that Evans' federal due process claim was "the substantial equivalent of th at 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'

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

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

Unlike Evans, Lambert presents numerous claims whic h are not the substantial equivalent of those present ed to the state court in the direct appeal of her murder conv iction. Her petition is more factually analogous to Gibson v. Scheidemantel, supra. There the petitioner alleged an ineffective assistance of counsel claim in state co urt, but he
asserted a different basis for this claim in the st ate proceeding than that presented in his federal habea s claim. Consequently, we held that the petitioner had not
exhausted his claim since the state courts could no t be expected to consider a claim that was never made. 8 05 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 des pite nonexhaustion if "extraordinary circumstances are pres ent." Id. at 443. In finding that Moore failed to present an " `extraordinary circumstance' which would warrant pretrial, pre-exhaustion habeas corpus relief," we dec lined to define the parameters of the "extraordinary circums tances" exception, holding only that whatever the boundarie s may be, Moore's petition fell outside those limits. 22 Id. at 447. We noted, however, that manifest shortcomings by th e prosecutor's office and negligence in conducting Mo ore's prosecution did not "reveal that quality of delay, harassment, bad faith or other intentional activity which, in an appropriate situation, might constitute an `extr aordinary circumstance', justifying pre-exhaustion federal ha beas
relief." Id. at 447 n. 12.

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22. In his petition, Moore alleged that the constit utional right to a speedy trial was so unique that it should bar not o nly a conviction but trial as well. This unique quality, Moore contended , constituted an "extraordinary circumstance." 515 F.2d at 446.

20B.

Although we discount Lambert's reliance on Granberr y, Frisbie, Evans, and Moore to support a finding of exceptional circumstances sufficient to excuse nonexhaustion, our inquiry does not end there. As w e stated earlier, one of the exceptional circumstance s 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 Ann ual Review of Criminal Procedure, 85 Geo. L. J. 775, 15 21 & n. 2755 (1997). In making this determination, courts h ave examined the totality of the circumstances surround ing each petition. Id. at 1521 n. 2755. For example, th e Court of Appeals for the First Circuit found the exhausti on requirement excused when a recent independent decis ion by the highest state court clearly rendered appella te review futile. Id. (citing Allen v. Attorney General of Ma ine, 80 F.3d 569, 573 (1st Cir. 1996)). Another court of appeals excused the exhaustion requirement when it was clear that t he petitioner's claims would be deemed procedurally ba rred if presented in the state court. Id. (citing Grey v. H oke, 933 F.2d 117, 120 (2d Cir. 1991)). Some courts have bee n reluctant to apply the futility exception, however, because it has been criticized for potentially bypassing th e state courts. Id. at 1522 n. 2755 (citations omitted). Mo st importantly, we recently applied our jurisprudence to hold
that unless a state court decision exists indicatin g that a habeas petitioner is clearly precluded from state c ourt relief, the federal habeas claim should be dismisse d 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 Doct or v. Walters, 96 F.3d 675, 683 (3d Cir. 1996); Toulson, 987 F.2d at 988-89; Peoples v. Fulcomer, 882 F.2d 828, 831-3 2 (3d Cir. 1989)).

In Banks, we were faced with whether the Pennsylvan ia 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 petition s, "includ[ing] the existence of `a strong prima facie showing . . . that a miscarriage of justice may have occurr ed.' "

21Banks 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, bas ed on our review of Pennsylvania case law, that the Penns ylvania Supreme Court had established a practice of reachin g the merits of claims in PCRA petitions in capital cases notwithstanding the failure of the petitioner to me et the appropriate procedural requirements. Id. at 212-13. Because we were not sure that the supreme court wou ld change this practice after the 1995 amendments to t he PCRA, we found that state review of Bank's unexhaus ted
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 lunc h recess of his criminal bench trial on the charge of aggravated assault following the presentation of th e Commonwealth's case. When the defendant failed to r eturn, the trial court, without informing the defendant, h is counsel, or the Commonwealth, entered a guilty verd ict against Doctor. Upon his capture five years later, Doctor was sentenced to a term of 49 to 98 months in priso n. He filed a timely direct appeal to the Pennsylvania Su perior Court which quashed the appeal without reaching the merits based on the fugitive forfeiture rule.23 Bot h 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 Amen dment claim which had not been presented to any Pennsylva nia court. We found that although the Pennsylvania cour ts would hold, on collateral review, that Doctor waive d the right to assert his Sixth Amendment claim on proced ural grounds, PCRA review was not clearly foreclosed sin ce Doctor may be able to show that a " `miscarriage of justice' warranting `departure from the PCRA's stringent eli gibility requirements' " has occurred. 96 F.3d at 681-82 (ci tation omitted).

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23. Rule 1972(6) of the Pennsylvania Rules of Appel late 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).

22Likewise, in Toulson v. Beyer, we considered whethe r it

would be futile to require the petitioner to exhaus t his state
remedies first. 987 F.2d at 986. There the defendan t was convicted in a New Jersey court of various non-capi tal offenses. After a series of unsuccessful direct app eals to the New Jersey courts and the denial of his motion for postconviction relief by the state trial court, Toulson filed a federal habeas petition containing unexhausted but procedurally barred claims in addition to exhausted claims. In examining pertinent New Jersey law, we found tha t it was possible that a New Jersey court may allow stat e review of otherwise procedurally barred claims base d on one of two statutory exceptions to the procedural b ar rule. 987 F.2d at 988. Accordingly, we held that "[b]ecau se no state court has concluded that petitioner is proced urally barred from raising his unexhausted claims and stat e law does not clearly require a finding of default, . .. the district court should have dismissed the petition without pr ejudice
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 sta te court
refuses to hear the merits of the claim because eit her (1)
the defendant waived a PCRA claim she could have ra ised 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 fe deral 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 [th e] unexhausted claims.' Toulson, 987 F.2d at 987." Doc tor, 96 F.3d at 681. We further explained:

If the federal court is uncertain how a stat e 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 sta te court would consider the merits to ensure that, in the interests of comity and federalism, state co urts are

23given every opportunity to address claims ar ising from

state proceedings. See Vasquez v. Hillery, 4 74 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 c ase before us, Pennsylvania collateral review is "clear ly foreclosed" such that further state proceedings are futile.

C.

In Pennsylvania, collateral review of a criminal co nviction 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 re lief and encompasses all other common law and statutory reme dies for the same purpose that exist when [the PCRA] tak es effect, including habeas corpus and coram nobis." T he PCRA also imposes several eligibility criteria for relief. First, the petitioner must plead and prove by a prepondera nce of the evidence that she is, at the time relief is gra nted, 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). Seco nd, the petitioner must prove by a preponderance of the evi dence
that her conviction or sentence resulted from one o r more of seven categories of claims, only three of which are relevant. We paraphrase them here:

(1) The petitioner's rights under the Penns ylvania

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24. The PCRA of 1995 became effective on January 16 , 1996, and applies to postconviction petitions filed on or aft er that date. The PCRA was subsequently amended by Act No. 1997-33 (H.B. 8 7), effective June 25, 1997, but the changes are irrelevant to the dis pute 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. Wi lkes, Jr., State Postconviction Remedies and Relief, App. A, p. 760 (1996 Ed.).

24Constitution or the Constitution or laws of the United

States were violated which, under the circum stances, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.

(2) The petitioner received ineffective ass istance of counsel which, under the circumstances, so undermined the truth-determining process tha t no reliable adjudication of guilt or innocence could have taken place.

(3) Exculpatory evidence, which was unavail able at the time of trial, was subsequently discover ed 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 o f the evidence that the alleged error has not been previo usly 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, 19 97 WL 578289, *1 (Pa. Sept. 17, 1997) (quoting 42 Pa. Con . Stat. Ann. S 9544(a)(2)), or "it has been raised and deci ded 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 cla ims which were previously litigated in the direct appea l of her conviction and sentence. Accordingly, Lambert is no t entitled to postconviction relief on those claims u nder the
PCRA and has thus exhausted her state remedies as t o these three claims.

Finally, by a preponderance of the evidence, the petitioner must demonstrate that the failure to lit igate 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 partie s nor the evidence of record suggests that Lambert's trial co unsel strategically planned to exclude in her direct appe al some
of the claims now raised.

25Particularly significant to this appeal is the PCRA

provision on waiver, which states, "an issue is wai ved if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal o r 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 s ince nearly all claims potentially could have been raise d on direct appeal. This applies even if the first-time petitioner never has obtained appellate review of his convicti on." 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 exception s to the waiver rule. If the alleged error either (1) result ed in the conviction of an innocent person, or (2) did not co nstitute a state procedural default barring federal habeas r elief,
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 effecti ve date
of the 1995 amendment to the PCRA. While Lambert
maintains and the district court held that eliminat ion of these two exceptions in the 1995 amendment effectiv ely bars relief under the PCRA on all claims, we are no t convinced that this is necessarily the case.

In the past, the Pennsylvania Supreme Court has all owed the petitioner, in limited circumstances, to overco me the waiver provisions where he has made a strong prima facie showing that a "miscarriage of justice" may have oc curred. 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 occurr ed 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 Law son, 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, ca n only occur where it is demonstrated that a particular o mission or

26commission was so serious that it undermined the

reliability of the outcome of the proceeding . Where a
conviction can be shown to result from a bre akdown in the adversary process, the conviction render ed is unreliable. Such a conviction is obviously p rejudicial 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 overr ide the waiver provisions of the PCRA in the context of suc cessive 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 wh ether a showing of miscarriage of justice can be applied to overcome the waiver provisions in an initial PCRA p etition. Id. In Doctor, we refused to find that collateral r eview was foreclosed since we concluded that Pennsylvania cas e law left open the possibility that a showing of miscarr iage of justice can overcome the waiver provisions in an in itial 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 o riginally stated in Toulson and applied in Doctor :

[I]n the absence of a state court decision i ndicating that a habeas corpus petitioner is clearly p recluded 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 petitione r'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 i s precluded would depend on the particular facts of t he case. Although factually Banks is distinguishable from La mbert's situation, the general rule of Banks governs our re solution of this dispute.26 Neither Lambert nor the district court

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26. Lambert argues our decisions in Banks and Docto r are distinguishable and, therefore, inapposite. Lambert attempts to

27cites any authority to the contrary. The Commonweal th, 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 , 68 9 A.2d 259, 262 (Pa.Super. 1997) (where there is a strong prima facie showing that a miscarriage of justice may hav e 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 PCR A

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distinguish Doctor on the basis that the petitioner failed to raise in the state court the legal theory and facts supporting h is habeas claim, and that we were referring to the pre-amendment PCRA wh en we noted the availability of a "miscarriage of justice" exceptio n to the waiver rule.

Our holding in Doctor is clear: Pennsylvania case law l eaves "open the possibility that a showing of miscarriage of justic e 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 PC RA as amended in 1995, as evidenced by our citation to the 1996 supp lement 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 stat es:

In other words, Banks, Toulson, and Doctor h old 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 stat e review-- indeed, the very review opportunity that was available i n Toulson and Doctor -- has been permanently blockaded by an explici t act of the Pennsylvania legislature eliminating the wai ver excuses and advertently sending the cases at issue, incl uding 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 d istrict court should proceed to the cause and prejudice/miscarriage of j ustice inquiry under Schlup [v. Delo, 513 U.S. 298 (1995)]." (Citing Car ter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995)).

28relief 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, 1 194 (Pa.Super. 1995), appeal denied, 675 A.2d 1243 (Pa. 1996) (Hoffman, J., concurring, wrote separately "to emph asize that there are circumstances where a departure from the PCRA's stringent eligibility requirements is approp riate, 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 57828 9, *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-con viction relief only if the defendant had a constitutional r ight 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 cou rt interpreted the PCRA to require a defendant claimin g ineffectiveness of counsel to meet a more demanding standard of prejudice than if he had raised this is sue on direct appeal); Thomas M. Place, Ineffective Assist ance of Counsel Under the Pennsylvania Post Conviction Reli ef Act, 69 Temple L. Rev. 1389 (1996). Waiver of errors und er 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 ineffectiv eness brought about the waiver. Place, supra, at 1410 (ci ting Christy, 656 A.2d at 881) (additional citation omit ted). "Consequently, ineffectiveness of counsel will only excuse waiver of errors for claims where counsel is ineffe ctive at trial and on direct appeal." Id. (citing Christy, s upra). 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 o mitted). Moreover, an ineffectiveness claim " `must be raise d at the earliest stage in the proceedings at which the alle gedly 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

29issue only in those cases where new counsel represe nts the

defendant at post-trial motions. If the new counsel does not preserve the issue of the trial counsel's ineffecti veness in post-trial motions, the new counsel waives the issu e 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 amendmen ts to the PCRA whether the Pennsylvania courts would allo w a showing of miscarriage of justice to overcome the w aiver provisions in a non-capital case upon an initial PC RA petition. Indeed, we have not discovered cases addr essing this issue after the passage of the 1995 amendments

. Accordingly, we cannot say that requiring Lambert t o seek
review of her claims in the state courts is futile. 28

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27. Although neither party has addressed the issue of whether ineffectiveness of counsel excused waiver, the Comm onwealth acknowledged in its letter brief dated September 30 , 1997, Pennsylvania decisional law holding that "PCRA courts will consi der 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 Lam bert could argue in a PCRA petition that second post-trial counsel provid ed ineffective representation in not raising the unexhausted claim s in her direct appeal. Since Lambert is now represented by differe nt counsel, arguably she would be raising the unexhausted claims at the earliest stage in the proceedings at which previous counsel provided alle gedly ineffective representation. The uncertainty surrounding the ava ilability of this exception to the waiver rule further supports dismi ssal of the habeas petition to allow the state court the opportunity t o 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 Lamber t was entitled to some relief. Considering the circumstances under wh ich the concession was made, i.e., the Commonwealth was forced to defe nd the petition on the merits without the benefit of a ruling on its e xhaustion defense prior to the evidentiary hearing, the fact that the Commo nwealth continuously
maintained that Lambert had failed to exhaust her s tate remedies at all stages of the proceedings, and the requirement that the waiver be expressly given, we cannot say the Commonwealth wai ved the
exhaustion defense.

30III.

In seeking state collateral review of her nonexhaus ted claims, Lambert has several options. It is possible that under 42 Pa. Con. Stat. Ann. S 5103, Lambert may tr ansfer her federal proceeding to the appropriate Pennsylva nia court. In addition, Lambert may institute a PCRA ac tion utilizing one or more of the three exceptions to th e PCRA statute of limitations, which allows for the filing of a PCRA petition at the present time. We discuss these opti ons briefly.

A.

The Pennsylvania Transfer Statute provides in perti nent part:

(a) General rule.--If an appeal or other mat ter is taken to or brought in a court . . . of this Commo nwealth which does not have jurisdiction of the appe al or other matter, the court . . . shall not quash such appeal or dismiss the matter, but shall transfer the r ecord thereof to the proper tribunal of this Commo nwealth, where the appeal or other matter shall be tr eated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first fi led 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 Stat es court, the statute further provides:

[Section 5103(a)] shall also apply to any ma tter transferred or remanded by any United States court for a district embracing any part of this Common wealth. In order to preserve a claim under Chapter 55 ( relating to limitation of time), a litigant who timely c ommences an action or proceeding in any United States co urt for a district embracing any part of this Commonwe alth is not required to commence a protective action in a court
. . . of this Commonwealth. Where a matter i s filed in any United States court for a district embra cing any part of this Commonwealth and the matter is dismissed by the United States court for lac k of

31jurisdiction, any litigant in the matter fil ed 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 o r other matter, we believe it may also apply here where the district court dismisses a federal habeas petition for failu re to exhaust state remedies.29 The language of section 5 103(b)(1) indicates that a purpose of the statute is to preve nt the barring of claims and other matters under the statu te of limitations when the original court lacked jurisdic tion over a matter which was timely filed. Applying the trans fer act under the facts here would be entirely consistent w ith the purpose of the statute.

We hasten to add, however, that we are not endorsin g the application of the transfer statute in all federal habeas actions dismissed for nonexhaustion. Rather, we sug gest that transfer may be appropriate where, as here, th e district court did not originally dismiss the petit ion for failure to exhaust state remedies. Instead, the cou rt prematurely proceeded to adjudicate the merits of t he claim during which the one-year statute of limitations ex pired. 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 stat ute of
limitations.30 Since the effective date of the 1995 Act is

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29. When a district court dismisses a federal habea s petition for nonexhaustion, it nevertheless has jurisdiction. Th e dismissal is based on principles of comity afforded state courts.

30. Prior to the 1995 amendment, the PCRA did not c ontain a limitations provision for filing a PCRA petition.

32January 16, 1996, and Lambert's direct appeal wasfi nal 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 t ofile a PCRA petition on or before July 1, 1997, Lambert ma y now be barred from filing a PCRA petition on her unexha usted claims. Section 9545 also contains three exceptions to the one-year filing requirement. Essentially, the limit ations period will be excused where (1) the petitioner fai led to raise the claim previously due to interference by governm ent officials with the presentation of the claim in vio lation 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 b een discovered through due diligence; or (3) the claim involves a constitutional right recognized by the Supreme Co urt of the United States or of Pennsylvania subsequent to the expiration of the statute of limitations and held t o apply retroactively. 42 Pa. Con. Stat. Ann. S 9545(b)(1)( i), (ii), and (iii). Interestingly, the original version of the b ill proposing
the 1995 amendments to the PCRA contained a fourth exception to the one-year time limit which was elim inated before final passage. That exception would have all owed 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 som e other manifest injustice." H.R. 179-66, 1st Spec. Sess., at 510 (Pa. 1995).32

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

(1) Any petition under [the PCRA], includin g a second or subsequent petition, shall be filed within o ne year of the date the judgment becomes final. . . .

(3) [A] judgment becomes final at the concl usion of direct review, including discretionary review in the Suprem e 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 co ncerns of certain representatives that by providing a "manifest injus tice" exception, they would be opening a Pandora's box for the Pennsylvan ia appellate courts. H.R. 179-66, 1st Spec. Sess., at 510 (Pa. 1995). Mr . Piccola argued that

33The 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 he r federal habeas petition that she discovered certain exculpa tory evidence after her conviction for first degree murd er. 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 officia ls. We note that to date, no Pennsylvania court has been a sked to
decide under what circumstances it would excuse an untimely PCRA petition under the new statute of lim itations provision.33 Thus, Lambert may be able to proceed u nder

the PCRA.

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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 furth er commented that the current bill (S.B. 81) contained adequate prote ction for the criminal defendant who finds new evidence after trial, as we ll as in many other circumstances. Id. The "manifest injustice" amendme nt 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 5 10. He further commented that "fairness would require that we prov ide an . . . avenue of relief, in situations where individuals do not c ome face to face with
conduct that has resulted in either their incarcera tion or their harm beyond that . . . statutory year that is provided f or in this particular
bill." Id. at 510-11. He opined that passage of the bill w ithout the avenue of review provided in the amendment would cause a diss ervice 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., Commo nwealth 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 petit ion filed six years after the supreme court affirmed denial of his peti tion to set aside an illegal sentence was not untimely); Commonwealth v. Taylor, 502 A.2d 195 (Pa.Super. 1985), appeal denied (1986) (unexpla ined 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 bas is for refusing to consider the claims by reason of laches and waiver)

.

34IV.

One final matter bears mention. Each side has broug ht 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 Lamber t's petition, we need not comment on Lambert's actual innocence. Indeed, to do so would be to "deprive th e state courts of an `opportunity to correct their own erro rs, 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 th e able district judge who heard and evaluated the evidence Lambert proffered. Resolution of these difficult qu estions must nonetheless await the appropriate forum for th e constitutional balance our forefathers created to r emain in equipoise. Accordingly, we will vacate the order of the district court granting the petition for writ of ha beas 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