2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-30-2004

Villot v. Varner

Precedential or Non-Precedential: Precedential

Docket No. 01-1505

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PRECEDENTIAL

UNITED STATES COURT OF

APPEALS

FOR THE THIRD CIRCUIT

 

No.:01-1505

______________

MOSES VILLOT,

 Appellant

 v.

BENJAMIN VARNER; THE DISTRICT

ATTORNEY OF

THE COUNTY OF PHILADELPHIA;

THE ATTORNEY

GENERAL OF THE STATE OF

PENNSYLVANIA

________________

Appeal from the United States 

District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 

00-cv-05512)

District Judge: Honorable Eduardo C.

Robreno

 

Argued on October 15, 2003

Before: SLOVITER, ROTH and

STAPLETON, Circuit Judges

(Opinion filed June 30, 2004 )

Stephen J. Binhak, Esquire (Argued)

3103 Philmont Avenue

Huntingdon Valley, PA 19106

Counsel for Appellant

Marilyn F. Murray (Argued)

Assistant District Attorney

Robert M. Falin

Assistant District Attorney

Thomas W. Dolgenos

Chief, Federal Litigation

Ronald Eisenberg

Deputy District Attorney

Arnold H. Gordon

First Assistant District Attorney

Lynn Abraham

District Attorney

Office of District Attorney

1421 Arch Street

Philadelphia, PA 19102

Counsel for Appellees

 

O P I N I O N

 

ROTH, Circuit Judge

Moses Villot pled guilty to a

general murder charge in exchange for an

agreement by the Commonwealth of

Pennsylvania not to seek the death penalty.

 At the sentencing hearing in the Court of

Common Pleas, Villot was found to have
2

committed first degree murder and he was

sentenced to life in prison. The present

appeal is from the denial of Villot’s § 2254

petition for writ of habeas corpus, based

on three claims that his plea counsel

provided ineffective assistance. Villot had

unsuccessfully urged one of these claims

on direct appeal and all three of them in

his state petition for collateral relief. The

District Court held that the two claims not

presented until Villot’s state collateral

proceeding were procedurally defaulted

because Villot failed to satisfy 42 Pa.

Cons. Stat. § 9543(a)(2)(iii), which

requires petitioners seeking collateral

relief from guilty pleas to plead and prove

their innocence. The District Court also

held that the claim Villot presented on

direct appeal was procedurally defaulted

because Villot had failed to seek review in

the Pennsylvania Supreme Court and

would now be time-barred from doing so.

A motions panel of this court

granted a certificate of appealability asking

counsel to specifically address whether the

innocence provision in § 9543(a)(2)(iii) is

an independent and adequate state

procedural ground. We now hold that this

provision is a substantive requirement

rather than a procedural rule and cannot,

therefore, give rise to a procedural default

of Villot’s federal claims. Under federal

law, proof of innocence is not a

prerequisite to relief from a guilty plea.

The Commonwealth of Pennsylvania has,

however, tacked on an innocence

provision as a substantive element

necessary to prove in order to obtain relief

from a guilty plea. But a state cannot add

a substantive element to the proof

necessary to obtain federal relief. A

habeas petitioner’s inability to meet more

restrictive state standards for relief cannot

result in a forfeiture of his federal

constitutional claims. Accordingly, we

conclude that these two collateral relief

claims were not procedurally defaulted.

We further hold that Villot’s third

ineffective assistance claim is not

defaulted. Although Villot did not fully

exhaust this claim on direct appeal, he did

fully exhaust all three claims by

petitioning the Pennsylvania Supreme

Court for review of the Superior Court’s

denial of collateral relief. Thus, Villot has

invoked “one complete round” of the

normal state appellate review process with

respect to each claim.1 O’Sullivan v.

 

1 An argument could be made that

Villot’s third ineffective assistance claim

is defaulted, as was determined by the

Motions Panel in granting a certificate of

appealability on only the first two claims. 

Because Villot pursued the issue in the

third claim to a further extent in his

direct appeal (i.e., the Superior Court

considered the ineffective assistance of

counsel claim on the merits of the

conflict of interest issue rather than

simply dismissing for failure to plead and

prove actual innocence) than he did in

his PCRA petition, and then did not seek

review of this determination by the

Pennsylvania Supreme Court, the third

claim could have been dismissed on

collateral review under 42 Pa. Const.
3

Boerckel, 526 U.S. 838, 845 (1999).

Accordingly, we will reverse the judgment

of District Court and remand this case for

consideration of the merits of all of

Villot’s claims.

II. Facts and Procedural History

In October 1990, Moses Villot pled

guilty in the Pennsylvania Court of

Common Pleas to the murder of his

brother-in-law. Following a degree of

guilt hearing, Villot was found guilty of

first-degree murder and sentenced to a

mandatory term of life imprisonment.2

Shortly thereafter, Villot, represented by

new counsel, filed a timely motion to

withdraw his guilty plea, principally

arguing that his plea counsel provided

ineffective assistance. Following

evidentiary hearings in October 1991, the

Court of Common Pleas denied Villot’s

motion. Villot appealed to the Superior

Court, arguing, inter alia, that his plea

counsel provided ineffective assistance at

the degree of guilt hearing due to a conflict

of interest. Villot claimed that two of his

plea counsel’s former clients were the

murder victim and the only eye-witness

called by the prosecution at the degree of

guilt hearing. The Superior Court denied

the appeal and Villot did not seek review

in the Pennsylvania Supreme Court.

In January 1997, Villot filed a pro

se petition for collateral relief under

Pennsylvania’s Post-Conviction Relief Act

(PCRA), 42 Pa. Cons. Stat. § 9541 et seq,

claiming that his plea counsel’s ineffective

assistance “undermined the truthdetermining process” per § 9543(a)(2)(ii)

and “unlawfully induced” his guilty plea

per § 9543(a)(2)(iii).3 Counsel was

Stat. § 9543(a)(3), as having already

been litigated. The Superior Court did

not, however, dismiss the third claim on

this ground and, therefore, for the

reasons we state in Section IV.C, infra,

because the state court did not rely on the

“already litigated” ground for dismissal,

we will not do so in this appeal as a part

of our consideration of default.

 

2 Villot also pled guilty to two

weapons offenses. His terms of

imprisonment for these crimes run

concurrently with his life sentence for

murder.

 

3 The PCRA provides that a

petitioner is eligible for relief if he pleads

and proves by a preponderance of the

evidence:

(2) That the conviction or

sentence resulted from one

or more of the following:

. . . 

(ii) Ineffective assistance

of counsel which, in the

circumstances of the

particular case, so

undermined the truthdetermining process that no

reliable adjudication of

guilt or innocence could

have taken place.

(iii) A plea of guilty
4

appointed to represent Villot, but filed a

no-merit letter per Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. Ct.

1988). The Court of Common Pleas

dismissed Villot’s petition without opinion

and allowed appointed counsel to

withdraw.

The Superior Court granted Villot

the right to appeal this decision nunc pro

tunc. Villot raised three ineffective

assistance claims on appeal. First, he

claimed his plea counsel coerced him into

pleading guilty. Second, he claimed that

his plea counsel failed to adequately

interview him prior to advising him to

plead guilty. Finally, he reiterated the

conflict of interest claim described above.

In July 1999, the Superior Court affirmed

the dismissal of his PCRA petition. The

court noted that, pursuant to a 1995

amendment, the PCRA now requires a

petitioner seeking relief from his guilty

plea to show not only that the plea was

“unlawfully induced” but also that he is

innocent. 42 Pa. Const. Stat. §

9543(a)(2)(iii). The court held that

Villot’s claims were “not cognizable”

under this section because Villot had failed

to assert his innocence. The court further

noted that Villot admitted facts consistent

with his guilty plea in his brief supporting

his PCRA appeal and held that

“[o]bviously, Appellant is not innocent.” 4

In November 1999, the Pennsylvania

Supreme Court denied Villot’s petition for

allowance of appeal.

In October 2000, Villot filed a 28

U.S.C. § 2254 petition in the Eastern

District of Pennsylvania, alleging the same

three ineffective assistance claims he had

raised in his PCRA appeal. The

Magistrate Judge held that Villot’s first

two claims were procedurally defaulted

based on the Superior Court’s holding that

Villot’s claims were “not cognizable.”

The Magistrate Judge held, however, that

Villot’s third claim was insulated from the

Superior Court’s holding because that

claim was properly exhausted on direct

appeal. The Magistrate Judge noted that

Villot failed to petition the Pennsylvania

Supreme Court following the Superior

Court’s denial of his direct appeal, but

held that this was no longer a required step

in the exhaustion process for habeas cases

arising in Pennsylvania. The Magistrate

Judge cited In re: Exhaustion of State

unlawfully induced where

the circumstances make it

likely that the inducement

caused the petitioner to

plead guilty and the

petitioner is innocent.

42 Pa. Cons. Stat. § 9543(a)(2).

 

4 While the Superior Court did not

explicitly address Villot’s request for

relief under the § 9543(a)(2)(ii)

ineffective assistance of counsel

provision, Villot’s desire to withdraw his

guilty plea was based on ineffective

assistance of counsel. Thus, the Superior

Court’s ruling necessarily implied that

Villot’s claim was also not cognizable

under § 9543(a)(2)(ii).
5

Remedies in Criminal and Post-Conviction

Relief Cases, No . 218 J udicia l

Administration Docket No. 1 (Pa. May 9,

2000) (Order 218) of the Pennsylvania

Supreme Court, which provides that “in all

appeals from criminal convictions . . . a

litigant shall not be required to petition for

rehearing or allowance of appeal following

an adverse decision by the Superior Court

in order to be deemed to have exhausted

all available state remedies respecting a

claim of error.” See Wenger v. Frank, 266

F.3d 218, 224-25 (3d Cir. 2001) (citing

Order 218). Accordingly, the Magistrate

Judge considered Villot’s conflict of

interest claim on the merits, and ultimately

recommended that the claim be denied.

The District Judge adopted the

M agistrate J udge’s rep ort and

recommendation with respect to the first

two claims but held that the conflict of

interest claim was also procedurally

defaulted. The District Judge held that

Order 218, issued in May 2000, does not

apply retroactively and therefore did not

apply to Villot’s direct appeal, which was

denied by the Superior Court in May 1993.

See Wenger, 266 F.3d at 226 (holding that

“Order 218 does not apply in cases in

which the time to petition for review by

the state supreme court expired prior to the

date of the order”). The District Judge

concluded, therefore, that Villot’s conflict

of interest claim was procedurally

defaulted because the time to petition the

Pennsylvania Supreme Court had long

since expired. In February 2001, the

District Court dismissed the petition

without reaching the merits.

A motions panel of this court issued

a certificate of appealability per 28 U.S.C.

§ 2253(c) with respect to Villot’s first two

ineffective assistance claims but denied the

certificate with respect to the conflict of

interest claim, holding that this claim was

clearly defaulted. The certificate

specifically sought briefing on whether the

Superior Court’s holding that Villot did

not satisfy § 9543(a)(2)(iii)’s innocence

requirement constitutes “an ‘independent

and adequate’ state law ground

[precluding] review of [Villot’s] federal

claims” under the procedural default rule.

As explained below, our consideration of

Villot’s first two claims requires us also to

reconsider the motions panel’s earlier

conclusion that his conflict of interest

claim was defaulted.

III. Jurisdiction and Standard of

Review 

The District Court exercised

jurisdiction over Villot’s habeas petition

under 28 U.S.C. §§ 2241 and 2254. We

have jurisdiction to review the District

Court’s order denying Villot’s petition

under 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s

legal conclusions in a habeas proceeding,

Caswell v. Ryan, 953 F.2d 853, 857 (3d

Cir. 1992), including its resolution of legal

questions arising from application of the

procedural default doctrine. Hull v. Kyler,

190 F.3d 88, 97 (3d Cir. 1999).

IV. Discussion

In our order granting Villot’s
6

request for a certificate of appealability we

asked the parties to consider whether the

Superior Court’s holding that Villot did

not satisfy § 9543(a)(2)(iii)’s innocence

requirement constitutes “an ‘independent

and adequate’ state law ground

[precluding] review of [Villot’s] federal

claims.” We no longer need to address

this issue, however, because we now hold

that the innocence provision is substantive

rather than procedural. By definition, the

procedural default rule only applies to state

procedural rules. We further hold that

Villot’s non-compliance with certain state

procedural rules, not discussed by the

District Court, also does not support a

finding of procedural default because the

Superior Court did not rely on these

grounds in concluding that Villot’s claims

were not cognizable under the PCRA.

Finally, we hold that Villot properly

exhausted all of his ineffective assistance

claims in the PCRA proceeding, and

therefore the District Court must consider

the merits of all of them on remand.

A.Because § 9543(a)(2)(iii)’s innocence

requirement is substantive rather than

procedural, it cannot give rise to

procedural default of Villot’s federal

claims.

Under the procedural default rule,

“an adequate and independent finding of

procedural default will bar federal habeas

review of the federal claim, unless the

habeas petitioner can show cause for the

default and prejudice attributable thereto,

or demonstrate that failure to consider the

federal claim will result in a fundamental

miscarriage of justice.” Harris v. Reed,

489 U.S. 255, 262 (1989) (internal

citations omitted). Villot does not claim

that the “cause and prejudice” or

“fundamental miscarriage of justice”

exceptions excuse his failure to allege and

prove his innocence in his PCRA

proce eding as required b y §

9543(a)(2)(iii). Further, Villot does not

claim, and there is no basis to speculate,

that the Superior Court’s holding was

interwoven with or based on federal law; it

is clear that the state court ruling was

“independent.” Rather, the parties focus

almost exclusively on whether §

9543(a)(2)(iii)’s innocence clause is

“adequate” to support the Superior Court’s

judgment. See Szuchon v. Lehman, 273

F.3d 299, 325 (3d Cir. 1999) (stating that

a procedural rule is adequate only if it is

“firmly established, readily ascertainable,

and regularly followed”) (citing Ford v.

Georgia, 498 U.S. 411, 423-24 (1991)).

We need not reach this issue, however,

because we now hold that the innocence

clause is a substantive requirement, not a

procedural rule, and therefore cannot give

rise to a procedural default.

Before 1995, § 9543(a)(2)(iii)

required a PCRA petitioner challenging

the validity of his guilty plea to “plead and

prove” that his plea was “unlawfully

induced where the circumstances make it

likely that the inducement caused him to

plead guilty.” See Commonwealth v.

Banks, 656 A.2d 467, 470 (Pa. 1995)

(quoting former provision). Following the

1995 amendment to this provision, the

petitioner must now also “plead and
7

prove” that circumstances make it likely

that “the petitioner is innocent.” 42 Pa.

Cons. Stat. § 9 543 (a)(2)(iii);

Commonwealth v. Michael, 755 A.2d

1274, 1277 (Pa. 2000) (citing current

provision). This clause plainly adds a

substantive element to Pennsylvania’s test

for obtaining collateral relief from guilty

pleas. Substantive law “creates, defines,

and regulates rights and duties of parties.”

Black’s Law Dictionary 1429 (6th ed.

1990). In contrast, procedural law

“prescribes method[s] of enforcing rights

or obtaining redress for their invasion.”

Id. at 1203. The Pennsylvania legislature

amended the definition of a PCRA

petitioner’s right to collateral relief by

adding a new element, the innocence

requirement.

Granted, given the structure of the

statute defining eligibility for PCRA relief,

any substantive addition creates a

corresponding procedural addition. The

first sentence of the act requires petitioners

to “plead” as well as “prove” certain facts,

including, of course, the claimed error.

See 42 Pa. Cons. Stat. § 9543(a). At oral

argument the state relied on this general

pleading requirement to argue that the

innocence provision is procedural rather

than substantive. Specifically, the state

noted that the Superior Court deemed

Villot’s PCRA appeal “not cognizable”

because he failed to allege his innocence.

First, this argument conflates the pleading

requirement in the first sentence of § 9543

with the innocence requirement at

subsection (a)(2)(iii); the fact that the

former rule is procedural does not change

the substantive nature of the latter

requirement. Second, the state implies that

Villot could have satisfied the innocence

requirement simply by asserting his

innocence with no intention of actually

demonstrating his lack of guilt. We reject

this bizarre position, which ignores the

plain language of the statute and would

reduce the innocence requirement to a

meaningless formality. Finally, the state

ignores the remainder of the Superior

Court’s opinion, in which the court noted

certain admissions in Villot’s brief and

held that Villot was “[o]bviously . . . not

innocent.” Thus, the Superior Court

reached the merits of Villot’s claim by

holding that he could not satisfy the

innocence requirement.

Furthermore, the innocence

requirement makes Pennsylvania’s test for

evaluating ineffective assistance claims

related to guilty pleas more restrictive than

the federal test.5 A § 2254 petitioner who

 

5 We note that ineffective

assistance claims based on the

performance or advice of plea counsel

may now be raised in PCRA proceedings

under subsection (a)(2)(ii), which does

not require assertion or proof of

innocence. At the time of the Superior

Court’s ruling on Villot’s PCRA appeal

in July 1999, however, Pennsylvania’s

lower courts had consistently held that

ineffective assistance claims relating to

guilty pleas were not cognizable under

subsection (a)(2)(ii) because guilty pleas

did not implicate the “truth-determining
8

claims that his counsel’s ineffective

assistance caused him to enter an

involuntary or unknowing plea may obtain

collateral relief regardless of whether he

asserts or proves his innocence. To

prevail, the petitioner must establish “that

(i) his or her counsel’s representation fell

below an objective standard of

reasonableness demanded of attorneys in

criminal cases; and (ii) there is a

reasonable probability that, but for

counsel’s errors, he or she would have

proceeded to trial instead of pleading

guilty.” United States v. Nahodil, 36 F.3d

323, 326 (3d Cir. 1994) (citing Hill v.

Lockhart, 474 U.S. 52, 59 (1985)). In

Nahodil, we indicated that a petitioner’s

past assertions of innocence may help

substantiate his claim that he would have

proceeded to trial but for his counsel’s

errors, 36 F.3d at 326-27, but we have

never suggested that a failure to assert or

prove innocence precludes a finding of

prejudice. Thus, by requiring a PCRA

petitioner to “plead and prove” his

innocence to obtain collateral relief from

his guilty plea, subsection 9543(a)(2)(iii)

tacks on an additional substantive element

on top of those required by federal law.

The procedural default rule is an

application of the independent and

adequate state ground doctrine. See

Coleman v. Thompson, 501 U.S. 722, 729-

30 (1991). Under this doctrine, federal

courts “will not review a question of

federal law decided by a state court if the

decision of that court rests on a state law

ground that is independent of the federal

question and adequate to support the

judgment.” Id. at 729 (citations omitted).

While the independent and adequate state

ground doctrine applies whether the state

law ground is substantive or procedural,

id., the procedural default rule applies, by

definition, only to procedural rules. “The

[procedural default] doctrine applies to bar

federal habeas when a state court declined

to address a prisoner’s federal claims

because the prisoner had failed to meet a

state procedural requirement. In these

cases, that state judgment rests on

process.” See Commonwealth v.

Woodrow, 743 A.2d 458, 460 (Pa. Super.

Ct. 1999); Commonwealth v.

Laszczynski, 715 A.2d 1185, 1187-88

(Pa. Super. Ct. 1998); Commonwealth v.

Shekerko, 639 A.2d 810, 813 (Pa. Super.

Ct. 1994). The Superior Court’s decision

in Villot’s case explicitly relied on

Laszczynski, and the Pennsylvania

Supreme Court denied Villot’s petition

for allowance of appeal. However,

though too late to help Villot, the court

later overruled this line of decisions in

Dadario v. Goldberg, holding that

subsection (a)(2)(ii) encompassed “all

constitutionally-cognizable claims of

ineffective assistance of counsel,”

including ineffective assistance claims

related to the defendant’s decision to

plead guilty or not. 773 A.2d 126, 127-

28, 130-31 (Pa. 2001); see also

Commonwealth v. Hickman , 799 A.2d

136, 141 (Pa. Super. Ct. 2002) (holding

that PCRA will afford relief if ineffective

assistance of counsel caused defendant to

enter involuntary guilty plea).
9

independent and adequate procedural

grounds.” Id. (emphases added). This

distinction between procedural and

substantive rules is perfectly consistent

with the procedural default rule’s

rationale, which is that state courts should

not be deprived of an opportunity to

correct their own errors by the habeas

petitioner’s failure to abide by the state’s

reasonable procedural rules:

Just as in those cases in

which a state prisoner fails

to exhaust state remedies, a

habeas petitioner who has

failed to meet the State’s

procedural requirements for

presenting hisfederal claims

has deprived the state courts

of an opportunity to address

those claims in the first

instance.

Id. at 731-32 (emphasis added); see also

Rose v. Lundy, 455 U.S. 509, 518-19

(1982) (articulating similar rationale).

However, when a state tacks on

substantive additionsto federal claims, it is

the state itself that has forfeited its

opportunity to consider the federal claims

of the class of petitioners who cannot

satisfy the additional state-created

substantiv e req uire me nt. T h e

considerations of comity and federalism

underlying the procedural default rule have

no application in such cases. See

Coleman, 501 U.S. at 730 (explaining that

application of independent and adequate

state ground rule in habeas is grounded in

comity and federalism concerns, not

jurisdictional limits). 

In fact, an interpretation of the

procedural default rule that extended to

state substantive restrictions on federal

claims would violate the supremacy

clause. See U.S. Const. art. VI. The states

have no obligation to provide collateral

relief to convicted criminals at all, see

Pennsylvania v. Finley, 481 U.S. 551, 557

(1987) (citation omitted), and the relief

they elect to provide need not be coextensive with that provided by federal

statutory or constitutional law. Thus, the

Pennsylvania legislature was free to set a

higher bar for collateral relief from guilty

pleas than federal law provides.6 A

holding that the procedural default rule

applies in this case, however, would

effectively impose Pennsylvania’s extraconstitutional restrictions on collateral

relief on federal habeas proceedings

despite 28 U.S.C. § 2254(a), which

authorizes relief whenever a prisoner is

held in custody “in violation of the

Constitution or laws or treaties of the

United States.”

Accordingly, we do not need to

determine whether the Superior Court’s

application of § 9543(a )(2)(iii)’s

innocence requirement satisfies the

“independent and adequate” state ground

test because, even assuming it does, it

 

6 Of course, the scope of relief

provided must be consistent with the

state’s own constitutional law, but that

issue is not before the court.
10

cannot foreclose federal habeas review of

Villot’s ineffective assistance claims.

B.Villot’s habeas petition is not

procedurally defaulted because of his

non-compliance with § 9543(a)(3).

Section 9543(a)(2)(iii) provided a

substantive basis for the Superior Court’s

holding that Villot’s claims were “not

cognizable” under the PCRA. However, it

appears that the Superior Court could have

also denied relief on procedural grounds.

Specifically, the court could have held that

Villot failed to comply with 42 Pa. Const.

Stat. § 9543(a)(3), which provides that a

PCRA petitioner must plead and prove

“[t]hat the allegation of error has not been

previously litigated or waived.”7 Although

the state does not rely on § 9543(a)(3)

directly, in both its brief and at oral

argument it placed great emphasis on its

contention that Villot waived two of his

ineffective assistance claims by failing to

raise them prior to his PCRA proceeding.

We treat this as an argument that Villot’s

claims should be considered procedurally

defaulted under § 9543(a)(3), but we reject

this argument because the Superior Court

did not rely on § 9543(a)(3) in denying

Villot’s PCRA appeal.

First, it seems clear that the

Superior Court could have held that some

or all of Villot’s PCRA claims were either

previously litigated or waived. There is no

doubt that Villot’s conflict of interest

claim was previously litigated in both

Villot’s motion to withdraw his guilty plea

and on direct appeal. Next, Villot’s claim

that his plea counsel failed to adequately

interview him and investigate his case

could have been deemed waived by the

Superior Court because it was not raised

before the trial court or on direct appeal.8

 

7 A claim has been previously

litigated if “the highest court in which

the petitioner could have had review as a

matter of right has ruled on the merits of

the issue.” 42 Pa. Cons. Stat. §

9544(a)(2). A claim has been 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.” Id. at §

9544(b).

 

8 Until recently, defendants in

Pennsylvania had to raise any ineffective

assistance claims “at the earliest stage in

the proceedings at which the counsel

whose effectiveness is being challenged

no longer represents the defendant,” or

else these claims would be considered

waived. Commonwealth v. Hubbard,

372 A.2d 687, 695 n.6 (Pa. 1977). 

Because Villot obtained new counsel

before he made his motion to withdraw

his guilty plea, he was obligated to raise

any ineffective assistance claims in that

motion. The Pennsylvania Supreme

Court overruled Hubbard in 2002,

holding that “as a general rule, a

petitioner should wait to raise claims of

ineffective assistance of trial counsel

until collateral review.” Commonwealth

v. Grant, 813 A.2d 726, 738 (Pa. 2002). 
11

 Finally, with respect to Villot’s claim that

his plea counsel coerced him into pleading

guilty, the state argues that this is just a

variation on his conflict of interest claim.9

If the state is correct, this claim could also

have been deemed “previously litigated.”

If the state is incorrect and this claim is

considered distinct, the Superior Court

might have held that this claim was waived

because Villot did not raise it in his motion

to withdraw his guilty plea or on direct

appeal. 

Thus, if the Superior Court had

barred review of some or all of Villot’s

claims on the basis of § 9543(a)(3) rather

than, or in addition to, its ruling based on

§ 9543(a)(2)(iii), it could be argued that

the procedurally barred claims were

defaulted for purposes of federal habeas

review.10 However, “a federal claimant’s

procedural default precludes federal

habeas review . . . only if the last state

court rendering a judgment in the case

rests its judgment on the procedural

default.”11 Harris v. Reed, 489 U.S. 255,

“Thus, any ineffectiveness claim will be

waived only after a petitioner has had the

opportunity to raise that claim on

collateral review and has failed to avail

himself of that opportunity.” Id. The

court also held that the new rule would

be applied retroactively to cases currently

pending on direct appeal in which

ineffective assistance claims had been

raised and preserved, but not to cases

pending on collateral review. Id. at 738-

39 & n.16. Of course, Villot’s direct and

collateral state proceedings had long

been closed by the time Grant was

issued, so the new rule has no application

here.

 

9 Villot’s counsel does not explain

the basis of this claim in his briefing to

this court, but the gist of the claim can be

gleaned from Villot’s pro se brief in the

district court and the Magistrate Judge’s

report and recommendation. Villot

claims that his plea counsel pressured

him to plead guilty so that counsel could

avoid cross-examining Adam Romero,

the chief prosecution witness and

counsel’s former client, at trial. If this is

the extent of Villot’s claim, it is simply a

re-statement of Villot’s conflict of

interest claim. The Pennsylvania

Supreme Court has held that the

“previously litigated” prong of

subsection (a)(3) bars simple variations

of previously litigated claims as well as

the exact claims themselves. See

Commonwealth v. Carpenter, 725 A.2d

154, 166-67 (Pa. 1999) (citation

omitted).

 

10 This statement is qualified

because we cannot and need not

definitively state that Villot could not

have raised any valid objections to

application of the procedural default rule

had the Superior Court relied on §

9543(a)(3) to deny his PCRA appeal.

 

11 This rule is inapplicable where the

state court has not been presented with

the federal claim. Harris, 489 U.S. at

263 n.9. In that event, the federal habeas
12

262 (1989) (emphasis added). If the state

court does not actually enforce the

procedural rule in question, the “federal

court implies no disrespect for the state by

entertaining the claim.” County Court of

Ulster County, N.Y. v. Allen, 442 U.S. 140,

154 (1979); see also Smith v. Freeman,

892 F.2d 331, 336 (3d Cir. 1989) (relying

on Harris and Ulster to hold that a claim

was not procedurally barred under a

certain state procedural rule where the

Pennsylvania courts did not rely on this

rule and addressed the merits of the

petition instead). The Superior Court’s

opinion rejecting Villot’s PCRA appeal

rests exclusively on subsection (a)(2)(iii),

and does not mention § 9543(a)(3) or any

other procedural basis for its ruling.12

Under the presumption established in Ylst

v. Nunnemaker, 501 U.S. 797, 803 (1991),

the Pennsylvania Supreme Court’s refusal

to review the Superior Court’s order is

presumed to rest on the same ground.

Comity does not require, nor would it

justify, any endeavor by this Court to

substitute an unmentioned procedural

ground in place of subsection (a)(2)(iii) in

order to hold Villot’s claims procedurally

defaulted in federal court.

C.Villot’s conflict of interest claim was

not defaulted because of the manner in

which it was concluded by the state in

the PCRA proceeding. 

In its order granting Villot’s

certificate of appealability with respect to

two of his ineffective assistance claims,

the motions panel denied the certificate

with respect to his ineffective assistance

claim based on an alleged conflict of

interest. The motions panel agreed with

the District Court that this claim was

procedurally defaulted because Villot

failed to fully exhaust it on direct appeal

by seeking review in the Pennsylvania

Supreme Court and would now be timebarred from doing so. That ruling,

however, failed to account for the fact that

Villot presented this same claim, along

with his other two ineffective assistance

claims, to Pennsylvania’s highest court

following the Superior Court’s denial of

his PCRA appeal. We now hold that all

three of Villot’s ineffective assistance

claims were properly exhausted during the

court may hold the claim procedurally

defaulted “if it is clear that the state court

would hold the claim procedurally

barred.” Id. But since the PCRA courts

were presented with Villot’s federal

claims, the Harris rule and not its

exception applies.

 

12 In contrast, in Cabrera v. Barbo,

175 F.3d 307, 310-13, (3d Cir. 1999),

the case principally relied on by the state

at oral argument, the New Jersey state

courts explicitly relied on a state waiver

rule in denying a prisoner’s state petition

for post-conviction relief. Therefore,

Cabrera’s holding that the prisoner’s

claims were procedurally defaulted in

federal court is inapplicable to the instant

case.
13

PCRA proceedings.13 Before a federal court may grant a

§ 2254 habeas petition, the state prisoner

must exhaust his available state court

remedies. 28 U.S.C. § 2254(b)(1);

O’Sullivan, 526 U.S. at 842. “The

exhaustion doctrine is designed to give the

state courts a full and fair opportunity to

resolve federal constitutional claims before

those claims are presented to the federal

courts.” Id. at 845. The prisoner typically

exhausts his federal claims by fairly

presenting each claim at each stage of the

state’s established appellate review

process. Id. However, when the state

refuses to consider the merits of the

prisoner’s claims because the petitioner

has failed to comply with the state’s

procedural requirements, his claim is

nonetheless technically exhausted because

“there is an absence of available State

corrective process,” 28 U.S.C. §

2254(b)(1)(B)(I), despite the fact that the

petitioner has “deprived the state courts of

an opportunity to address [the federal]

claims in the first instance. Coleman, 501

U.S. at 732. Thus, the procedural default

rule avoids frustration of the purpose

behind the exhaustion requirement by

 

13 We may not consider issues on

appeal that are not within the scope of

the certificate of appealability (COA). 

28 U.S.C. § 2253(c)(3); Third Circuit

Local Appellate Rule 22.1(b); Miller v.

Dragovich, 311 F.3d 574, 577 (3d Cir.

2002); Hiivala v. Wood, 195 F.3d 1098,

1102-03 (9th Cir. 1999). However, the

merits panel may expand the scope of the

COA beyond the scope announced by the

motions panel. See 3d Cir. LAR 22.1(b);

Hiivala, 195 F.3d at 1103-04 (explaining

that the “law of the case” doctrine does

not preclude the merits panel from

expanding the scope of a COA granted

by the motions panel because the proper

scope of a COA is a jurisdictional issue). 

The fact that Villot did not request

expansion is not controlling — the merits

panel may expand the COA sua sponte. 

See 3d Cir. LAR 22.1(b) (contemplating

sua sponte expansion); United States v.

Morgan, 244 F.3d 674, 675 (8th Cir.

2001) (en banc) (holding that Eighth

Circuit hearing panel may “consider sua

sponte issues beyond those specified in a

certificate of appealability, whether the

certificate was issued by a district court

or by an administrative panel of [the

Eighth Circuit]”); cf. Robinson v.

Johnson, 313 F.3d 128, 133 (3d Cir.

2002) (citing Dunn v. Colleran, 247 F.3d

450, 456 (3d Cir.2001), for the

proposition that a district court may grant

a COA sua sponte). Accordingly, we

exercise our discretion to expand the

COA to cover Villot’s conflict of interest

claim. We note that while our expansion

of the COA in this case is technically sua

sponte because Villot did not ask us to

revisit the motion panel’s ruling denying

the COA as to his conflict of interest

claim, the effect of our revision is simply

to consider each of Villot’s claims on the

basis of the same legal theory, not to

include a new issue not envisioned by the

parties.
14

precluding federal review of procedurally

barred claims unless the petitioner can

establish “cause and prejudice” or a

“fundamental miscarriage of justice” to

excuse the procedural default. Id.;

Whitney v. Horn, 280 F.3d 240, 250 (3d

Cir. 2002) (citation omitted).

The District Court correctly ruled

that Villot did not fully exhaust his conflict

of interest claim on direct appeal because

he did not petition the Pennsylvania

Supreme Court for review of the Superior

Court’s denial of his appeal.14 However,

Villot presented both this claim and his

other two claims to the Pennsylvania

Supreme Court following the Superior

Court’s denial of his PCRA appeal. A

prisoner is only required to invoke “one

complete round” of the state’s established

appellate process to satisfy the exhaustion

requirement, O’Sullivan, 526 U.S. at 845

(emphasis added), and Villot did so during

his PCRA proceedings. 

If § 9543(a)(2)(iii)’s innocence

provision were procedural rather than

substantive, then the District Court’s

ruling would have been correct. As

explained above, a procedurally barred

claim is technically exhausted but not

properly exhausted because the state

courts are not given a fair opportunity to

address the federal claim on the merits.

See O’Sullivan, 526 U.S. at 848. If §

9543(a)(2)(iii)’sinnocence provision were

a procedural bar then Villot would have

lost his only opportunity to properly

exhaust his federal claims when he failed

to petition the state’s highest court

following his direct appeal. Because we

have held that this provision is substantive,

however, see supra Part IV.A., and

because the Superior Court did not deny

Villot’s PCRA appeal on any procedural

ground, see supra Part IV.B., we hold that

Villot properly exhausted his ineffective

assistance claims by presenting them to the

state’s highest court during his PCRA

proceedings.

V. Conclusion

For the reasons stated above, we

will reverse the District Court’s dismissal

of Villot’s habeas petition and remand this

 

14 In O'Sullivan the Supreme Court

held that AEDPA’s exhaustion

provisions require state prisoners to “file

petitions for discretionary review when

that review is part of the ordinary

appellate review procedure in the State.” 

526 U.S. at 847. In May 2000 the

Supreme Court of Pennsylvania issued

Order 218 which endeavored to eliminate

petitions for discretionary review from

the ordinary appellate review procedure. 

See Wenger v. Frank, 266 F.3d 218, 220,

224-25 (3d Cir. 2001) (providing text of

Order 218). As was the case in Wenger,

we need not consider the effect of Order

218 on AEDPA’s exhaustion

requirement in this case because Villot’s

time to petition for discretionary review

elapsed years before the date of the

order. See 266 F.3d at 226 (“Order 218

does not apply in cases in which the time

to petition for review by the state

supreme court expired prior to the date of

the order.”)
15

case for consideration of the merits of all

three of Villot’s claims.15

 

15 The state has invited us to address

the merits of Villot’s claims in the first

instance on appeal should we decide, as

we have, that Villot’s claims were not

defaulted. The state argues that we have

the power to address the merits in the

first instance under 28 U.S.C. §

2254(b)(2), which authorizes federal

courts to deny habeas petitions on the

merits “notwithstanding the failure of the

applicant to exhaust the remedies

available in the courts of the State.” 

Although § 2254(b)(2) does not, by its

terms, apply to the procedural default

context, in Hameen v. Delaware, 212

F.3d 226, 251-52 (3d Cir. 2000), we

relied on this section to reach the merits

of a habeas petition rather than consider

whether the issue had been procedurally

defaulted in the state courts. However,

we need not decide whether we can or

should follow the state’s suggestion,

because the record on appeal is

insufficient to permit a thorough review

of Villot’s claims. We have not been

provided with a transcript of the

evidentiary hearing held in the Superior

Court on Villot’s motion to withdraw his

guilty plea. Further, the transcript of the

degree of guilt hearing is incomplete —

specifically, the pages of the transcript

containing the testimony of Adam

Romero, witness for the prosecution and

Villot’s plea counsel’s former client, are

missing.