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

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# V i l lot v . V a r ne r

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D ocke t N o . 01-1505

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UNIT ED STA TES C OURT OF

APPEALS FO R T HE TH IRD CIR CU IT

No.:01-1505

______________ MOSES VILLOT, Appellant

v.

BENJAMIN VARNER; THE DIS TRICT

ATTORNE Y OF THE COUNT Y OF PHI LADELP HIA;

THE ATTORNEY GENERAL OF THE STATE OF PEN NS YL VA NIA

________________ Appeal from the U nited States District Cou rt for the Easte rn D istrict of P enns ylvania (D .C. C ivil A ction No

. 00-cv-05512) Dis tric t J udg e: Hono rabl e Edu ar do C.

Robreno

Argued on October 15, 2003

Before: SLOVITER
, ROTH and STAP LETON, Circuit

Judges

(Opinion fi led June 30, 2004 )

Stephen J. Binhak, Esqui re (Argued) 3103 Philmont Avenue Huntingdon Valle y, PA 19106

Counsel for Appell ant

Marily n F. Murray (Argued) Assist ant Dist

rict Attorney

Ro bert M . Falin Assist ant Dist

rict Attorney

Thomas W. Dolgenos Chief, Feder al Litigati on

Ron ald Eisenb erg Deputy Dis tri ct Attorney

Arnold H. Gordon First Assist ant Dist

rict Attorney

Lynn Abraham Distri ct Attorney Office of District

Attorney 1421 Arch Street Philadelphia, PA 19102

Counsel for Appell ees

O P I N I O N

RO TH , Circuit

Judge

Moses Vill ot pled gui lty to a general murder charge in exchange for an agreement by the Commonwealth of Pen nsylvan ia not to s eek th e d ea th pe na lty. At the sentencing hearing in the C ourt of Common Pleas, Villot

was fou nd to have2

committedfirs t degreemurder and he was
sentence d to li fe in pri son. The pr esen t appeal is from the denial of V illot’s § 2254 petit i on for writ

of habeas corpus , based

o n three c laims t

hat his plea counse l providedineffective ass ist ance. Vil lot had

unsu ccess fully ur gedone of t hes e cl ai ms
on direct a ppea l and a ll three of the m in his st ate petiti on for colla teral relie f. The Distri ctCourt held t

hatthe two clai ms not p resented until Villot’s state collatera l proceedi ng w er e procedura lly default ed because Villot f ailed to satis fy 4 2 Pa. Cons. Stat. § 954 3(a)( 2)(i ii) , which requires petit

ioners seeking col late ral reli ef from guilty pleas to plead and pr ove their inno cenc e. Th e D istric t C ourt also held th a t the c laim Vil lot presented on direct a ppeal was proce durall y defaulted because Villot

had fail ed to seek review in the Pennsyl vania Sup re me Court and

wo uld now be time-barred fr om doing so.

A motions pa ne l of this court granteda certifica te of

appealabi lit

y as king counsel to spec ifically address whether the innocence prov ision in § 95 43(a )(2)(iii) is

an indep ende nt and adeq uate sta te proceduralground. We now hold that this provisi on is a s ubs ta nt iv e r equ ireme n t rather than a pro ced ural ru le and cann ot, theref ore, give rise to a pro cedu ral def ault of Villot ’s feder al cl a ims. Under fede ral la w, proof of innoce nc e is not a prereq uisite to relief fro m a g uilt y pl ea. The Comm onwealth of

Pen nsylvan ia has, how ever, tacked on a n innocen c e provisi on as a subst ant ive el ement necessary to prove in ord er to ob tain reli ef from a guil typlea. Bu t a state cannot add a subs tanti ve element to the proof

n ecessary to obtai n federalreli ef

. A habe as petitioner’s inability to meet more
restrictive state standar ds forreli ef cannot result in a fo rfeiture of h is f ederal consti tuti onal claim s. A cc or di ngl y , w e conclude that the se tw o colla ter al rel ief clai ms were not procedur ally defaulted.

We f urt her hold tha t Villot’s third ineffective assi stance c lai m is no t defaulted. A ltho ugh Villot d id no t fully exhaust this clai m on direct appeal, he did ful ly exha ust all three claims b y petition in g th e Pe nns y lv ani a Su pr eme Co urt for review of the Su perior Co urt’s denialof coll atera l rel ief. Thus, Vill ot has invoked “one completeround” of the normal state appellate review process with respect to each cl ai m. 1 O’Sulli van v.

1 An argument could be made t hat Villot’s third ine ffec tive ass istance claim is defaul ted, as was determined by t he Motions Panel i n granti ng a certific ate of app eala bility on onl y the f irst tw o cla ims

. Because Vill ot pursue d the is sue in t he third cla im to a furthe r exten t in his direct a ppea l ( i.e

. , the Superior C ourt considered the i neffecti ve assi stance of counsel cl aim on the meri ts of the confli ct of i nteres t is sue rather than simplydismis sing for

fail ure to pl ead and prov e actu al inno cenc e) than he did in his PCRA petiti on, and then did not s eek review of this determination by the Pennsylvania S uprem e Cou rt, the third clai m could have been di smissed on collatera l review und er 42 Pa. C onst.3

Boercke l
, 5 26 U .S. 838, 845 (1999). A cc or di ng ly, we will reve rse the judgment of District Court

and remand this case for consider ationof the meri ts of al l of Villot’s cl aims.

II. Facts and Procedural History

In October 1990, Moses Villot pled guilty in the Penns yl vania Court of Common Ple as to the m urde r of h is brother -in- law

. Following a degree of guilt heari ng, Villot

was found guilty of firs t -degree murder and sentenced to a mand atory term o f life im pri sonm ent. 2 Sho rtly therea fter, Villot , repre sented by

new counsel, file d a t i mely m otion to wi t hdraw his gu ilty plea, princ ipally

ar guing that his p lea co unse l prov id e d ineffec tive assistan ce. Fo llo win g evidentiary he arings in October 1991, the Cou rt of C om mo n Ple as de nied V ill ot ’s

mo ti on. Villot

appealed to the Superi or Co urt, arg uin g, inter ali a , that hi s plea counsel provided i neffecti ve assi stance at the degree of

guilt he aring d ue to a confli ct of int erest. Villot c laime d that tw o ofhis pleacounsel’ s former cl ient s were the murder victim and the only ey e-witness call ed by th e prosecution at t he degree of guilt hearing. Th e Supe rior Cou rt deni ed the appeal and Vil lot di d not seekrevie w in the P enns ylvania S upre me C ourt.

In Janu ary 199 7, V illot fil ed a pro

se petit ion f o r coll atera l rel ief under Pe nnsylvania’s Pos t-Convict ion Relief Ac t (PCRA), 42 Pa. Co ns. S tat. § 9541 et seq , clai ming that

his plea cou nsel’s ineffective assis tanc e “undermined the truth

determi ning process” p er § 954 3(a)(2)( i i) and “unlawfull y i nduced” his gui lty plea per § 9543 (a)(2)(i ii ). 3 Counsel was

Stat. § 9543(a)( 3), as having al ready been litigated. T he S uper ior C ourt d id not, however, dismis s the t hird cl aim on this ground and, t

herefore, for the

reas ons we state in S ectio n IV .C, infra
, because the state court di d not rel y on the “alrea dy litigated” grou nd f or dism issal,

we w ill not do so in this app eal as a part of o ur co nside ration o f def ault.

2 Vil lo t a ls o pl ed gui lt y to two weapons offenses. His terms of impris onment for these cri mes run concurrentlywith his lifesentence for murde r. 3 The PC RA prov ides tha t a petit ioner i s eli gible f

or rel ief i f he pleads and proves bya preponderance of the evidence: (2) That t

he conviction or
sentence resul ted from one or more of the following:

. . . (ii ) Ineffec tive a ssis tance of counsel whic h, in t

he circumst ances of the particular

case, so undermined the trut

hdetermi ning proces s that no reli able adj udication of guilt or in noce nce c ould have taken pl ace. (iii) A p lea of guilty4

ap pointedto represent Vil lot, but fil ed a

no-m erit letter per Comm onwealth v. Finley
, 55 0 A .2d 21 3 (Pa . Sup er. Ct. 198 8). The Court of Common Pleas dismisse d Villot’s petit

ion without

opinion and allowed appoi nted coun sel t o wit hdr aw.

The Superior

Cou rt granted Vil lot the right to appea l thi s decis ion nunc pro t unc

. Villot ra ised thr ee ine ffec ti v e assis tance claims o n appeal. First , he clai med his pl ea counsel coerced him in to pleadi ng guilt y. Second, he cl aimed that his plea counse l fai led to adeq uately interview him p rior to ad visin g him to plead guilt

y. Finall y, he reiterate d the confli ctof

interest c laim descri bed above. In July 1999, the Su perior Co urt affirmed the dism issal of hi s PCRA petition. The
court note d t hat, pursuant to a 1995

ame ndm ent, the PCRA now requires a petit ionerseeking r elief fr om his gu ilty pleato sho w n ot on ly that the ple a w as “unla wf ully in du ced” but also that he is inno cent. 42 P a. C ons t. Sta t. § 9543( a )(2)(iii). The court hel d that Villot’s clai ms were “ n ot cogniz able”

un d er this secti on because Vil lot had f aile d
to asse rt his innocence. The court further noted that Vill ot admitt ed facts consistent with his gui lty plea i n his bri ef

supporti ng his PCRA appeal and h eld tha t “[o] b vi ou sly, Ap pella nt is n ot in noc ent.” 4 In Nov embe r 199 9, the P enns ylvania Supreme Cou rt denied V illot’s petit ion for allow ance of ap peal.

In October 200 0, Villot file d a 28 U.S .C. § 2254 petit

ion in the Eastern Distri ctof Pennsy lvania , al leging t he sa me three ineffective as sist ance clai ms he had raise d i n his PCRA appeal. The M agistrate Judge h eld that Villot ’s first two claims w e re procedur ally default ed based on the Superi or Court’ s holdi ng that Vi ll ot’s claim s w ere “ not cog niza ble.” The Mag istrate Judge held, however, that Villot’s third clai m was insul ated from the Superior C ourt’ s holdi ng because that claim w as pr op er ly e xhau sted on di rect ap pea l. The Magistrate Judge noted t hat Vi llot failed to petition the P enns ylvania Supreme Co urt follo win g th e Superior Cou rt’s denial of h is dire ct appeal, but held that this was no longer a required s tep in the exhaust

ion process for habeas ca ses aris ing in P enns ylvania. T he M agistrate Judge cite d In re: E xhau stion o f State

unlaw fully induced w here the circ um stance s ma ke it likel y that theinducement

caus ed the petition er to plead gui lty

and the petition er is inn ocen t.
42 Pa. C ons. Stat. § 954 3(a)(2). 4 While the Superior Court did not explic itl y address Vill ot’s request for relief u nder the § 9 543 (a)(2)(ii) ineffective ass ist ance of counsel prov ision, V illot’s des ire to w ithdraw his guilt y pl ea was based on ine ffecti ve assis tance of couns el. Thus, the Superior Court’s r uling nec essari ly impli ed that Villot’s claim wa s also n ot cog nizab le under § 9543(a )(2)(ii).5

Remedies in Cr imin al a nd Pos t-Co nvictio n Relief Cases , No . 218 J udicia l Administr ationD oc ke t N o. 1 (P a. M ay 9 , 2000) (Order 218) of t he P enns ylvania Supreme Court, whic h provides that “in all appe als fro m c rimi nal c onv ictio ns . . . a litigant shallnot be requ ired to petit ion for reheari ng or a llowance of appeal fol lowing

an adverse decisi on by the Superior C ourt in order t o be deemed to have exhaus te d al l avail able st ate re medies res pecti ng a claim of e rror.” See Wenger v. Frank , 266 F.3d 218, 224-25 ( 3d Cir. 2001 ) ( citi ng Order 218 ). Acc ordin gly, the M agistrate Judge considered Villot ’s confl ict of interest clai m on the merits, a nd u ltimately recommended that

the cl aim be denied.

The Di st rict

Judge adopted t

he M agistrate J udge’s re p ort an d recommendationwith re sp ect to the fir st two clai ms but held t

hat thec on flic t of interest claim w as also proc edur ally defaul te d. The Distri ct Judge hel d that Order 218, is sued in May 2000, does not apply retroactively and therefore d id not applyto Vill ot’s direct appeal, which was denied by the Superior

Co urt in May 1993. See Wenger , 266 F.3d at 226 (holdi ng that “Order 218 does notappl y in cases in which the ti me to peti tion for review by the state supreme court

expired prior t o the date of the orde r”). The Distri ct Jud g e concluded, theref

ore, t hat Vill ot’s c onflic t of interes t c la im w as pro cedu rally defaulted because the time t o petit ion the Pen nsylvan ia Supreme Court had l ong since e xpi red. I n February2001, the Distri ctCourt dis missed th e peti tion without reaching the merits. A motions panelof this court i ssued

a certi ficate of

appealabi lit

y per 28 U. S. C. § 225 3( c) wit

h r es pe ct to Vil lo t’ s f

ir st two in effecti ve assist ance clai ms but denied t he

c ert ificate with res pect t o the confl ict of interest c laim, h olding that this claim was clear ly default ed . The certific at e spec ifically sought bri efing on whether the Superior Court’s hol ding tha t Villot d id
not sati sfy § 9543(a)( 2)(i ii) ’s innoc ence
re q uirement

consti tutes “an ‘inde pendent and adequa te’ s tate law gr oun d [precl uding] review of [Vil lot’ s] feder al clai ms” under the procedural default rule. As explai ned below, our c onsider at io n of Villot’s fi rs t two claims requires us al so to reconsi der the m oti ons panel’ s earl ier conclusi on that hi s co nflict of interest clai m was defaulted.

III. Jurisdic tion and Standard of

Re vi e w

The Distri ct Court e xercis ed juri sd icti on over Vill ot’s habeas peti tion under 28 U .S.C . § § 2 24 1 a nd 22 54

. We have juri sdiction to review the Dist rict Cou rt’s order denying Villot ’s pet iti on under 28 U.S.C. § 1291. W e exercise plenary review over t

he District

Co urt’s legal conclusi ons in a h ab eas procee ding, Ca swe ll v. Ryan , 953 F.2d 853, 857 (3 d Cir. 1992), i ncluding its resol ution of l egal questi ons aris ing from appl ication of the proceduraldef ault d octr ine. Hu ll v. Kyler
, 190 F .3d 88, 97 (3 d Cir. 199 9).

IV. Discussi on

In our order g ranting V illot’s6

request fo r ace rtif

ic at e o f a ppe al ab il it

y we asked the part

ies t o consider

whether the S uperior Co urt’s ho lding th at Villo t d i d
not sati sfy § 9543(a)( 2)(i ii) ’s innoc ence requirement co n sti tutes “an ‘inde pendent and adequ ate’ state la w groun d [precl uding] review of [Vil lot’ s] feder al claim s.” We no longer need to a ddres s this issue, h ow ever, b ecau se w e now hold that the innoc ence prov ision is substant ive

ra th er than proce dural. By defi niti on, the procedural defa ult rule o nly applie s to state proceduralrules. We f urther hol d that Villot’s non -com plianc e w ith certain state proceduralrules
, not dis cussed bythe Distri ctCourt, a lso doe s n ot sup port a finding of p roced ural de fault bec ause the Superior Court did not

re ly on these grounds in con cl udi ng that Vil lo t’ s c la ims

were not cogniz able unde r th e PC RA. Fi na lly, we hold that V illot prop erly exhaustedall of

his i neffecti ve a ss ist ance clai ms in the PCRA proceeding, and theref ore the District Court mustconsider the meri ts of al l of the m on remand.

A.Becau se § 9543(a)(2) (ii i)’ s innocence

re qui re me nt is substantive rather than pro cedu ral, it cannot gi v e rise to procedural default of Villot ’s feder al claims.

Under the proce dural def ault r ule, “an adequate and i nde pen dent fi nding of proceduraldefault

will bar federalhabeas revi ew of the feder al cl aim, unl ess the habeas petiti oner can sh ow ca use for the defa ult and pr ejudic e attribut able thereto,

or demonstrate that

fail ure to cons ider t

he federalclai m will res ult i n a fundamental mi scarriage of justice. ” Harris v. Reed
, 489 U.S . 255, 2 62 (1 989 ) (in t ernal cita tions om itted). V illot doe s not c laim that the “caus e and prej ud ice” or “fundamental miscarriage of j usti ce” excepti ons excu se his f ailure to alle ge and prove his i nnoce nce in hi s PCRA proce eding as requi red b y § 9543(a )(2)(iii). Further , Vill ot does not cl ai m, and there i s no basis to speculate, that th e Su perio r Co ur t’s hol ding was interwoven with or based on f edera l law; it is clear that t he state court r

uling was “ind epe nde nt.” Rather, the parti es focus almost ex clusi vel y on whe ther § 9543(a )(2)(iii)’s inno cenc e clau se is “adequate” to support the S uperior C ourt’s judg men t. See Sz uchon v. Le hman , 273 F.3d 299 , 325 ( 3d C ir. 1999 ) (statin g th at

a proc edur al rule is a dequ ate on ly if it is “firm ly establ ished, readil y as certainable
, and regularly followed”) (citing Ford v. Ge orgia , 498 U.S . 411 , 4 23- 24 (199 1)). W e need n ot reach this issue, ho wev er, because we now hold that the innocence clause i s a subs tantive requ ireme nt, not a proceduralrule, and therefo re cannot gi ve rise to a p roced ural de fault.

Befo re 199 5, § 95 43(a )(2)(iii) required a PCRA petit ioner cha llengi ng the validi ty of

his gui lty

pleato “ple ad and prove” tha t his plea wa s “un lawf ully induced wh ere the cir cum stance s ma ke it likely that t

he inducement c aused hi m t o plead g uilt y. ” See Commonw ealth v

. Banks
, 656 A.2d 467, 470 (Pa. 1995) (quoti ng for me r pro visio n). Following t he 1995 amendment to this provi sion, the petit ionermu st now also “p le ad a nd7

prove” that c ircumst an ce s ma ke it likely th at “the petiti oner is innocent .” 42 Pa. Cons

. Stat. § 9 543 (a)(2)(iii ) ; Com mon wea lth v. Michael , 755 A.2d 1274, 1277 (Pa. 2000) (citing current provision). This clause plainlyadds a substant ive element to Pennsylvania’s test for obtain ing co llateral relief from guilty pleas. Substanti ve law “creates, defines, and regulates ri ghts and duties of p artie s.” Black’s Law D ictionary 142 9 (6 th ed. 1990). In contrast , procedur al la w “prescribes meth od[ s] of e nfo rcing r ights

or obt ainin g re dre ss fo r the ir inv asio n.” Id. at 1203. The Pennsyl van ia legislature amended the defi niti on o f a P CRA petitioner’s right

to coll atera l rel ief by adding a new element, the innoc ence requ ireme nt.

Granted, giv en the st

ructure of the
statute de fin in g e lig ib ilit y for PCR A relief
, any subs tantive additio n crea te s a
corres ponding proceduraladditi on. T he first sentenceof

the act requires pe titioners
to “plead” as w ell as “prove” certain facts, includi ng, of cou rse, the claimed e rror. See 42 Pa. Cons. St at. § 9543(a). At oral argumen t the st ate re lied on t his gener al ple ading requ ireme nt to arg ue tha t t h e innocence provisi on is proc edural r ather than subs tantive . Spec ifically, the state

no ted that t

he Superior

Court deem e d Villot’s PCRA appeal “not cognizabl e” because he fail ed to alleg e his i nnocence. First, this argumentconflat es the pl eading requirement in the firs t sentence of § 9543 with t he inn ocen ce req uirem ent a t subsection (a)(2 )( iii ); t he fact t

hat the former rul e is pr ocedural does not change the substant ive na tu re of the latter requ ireme nt. Second, the st ate i mplies t hat Villot co uld have sati sfied t

he innocence requ ir em ent simp ly by asserting his innocence with no intentio n of actua lly demonstrating his l ack of gu i l t

. We rejec t this bizarre position, whic h ignores the plain la nguag e of th e statute and w ould reduce the innoce nce re quir ement to a meaningless formal i ty. Finally, the state ignores the remai nde r o f the Superi or Cou rt’s opini on, in which thecourt noted certain admissi ons i n Villot ’s bri ef and held th at V illo t w as “[ o] bv io us ly .

. . not inn oce nt.” Thus, the S uperior C ourt reached the m erits of Villot ’s cl aim by holding tha t he could not sati sfy the inno cenc e requ ireme nt.

Furt hermor e, the innoc enc e requirement makes Pennsy lvania ’s te st for evaluating i nef

fec ti ve a ss is ta nce cl ai ms related to gu ilty pleas mo re restrictive than the federaltest. 5 A § 2254 petiti oner who

5 We note that i neffecti ve assis tance cl aims based on t he performance or

advice of pl ea counsel may now be rai sed in PCRA proceedings under subsec tion ( a)(2) (ii ), which does not requi re asse rti on or proof of innocence. At the ti me of the Superi or Court’s r uling on Vil lot’ s PCRA appeal in July 1999, how ever, Penn sylvania’s lower court s had consi stently held that ineff ective assistan ce claim s relating to guilt y pl eas were not c ognizabl e under subsection (a) (2)(i i) because guil ty pleas did not i mplicate the “t

ruth- determi ning8

cl ai ms tha t his counsel’ s ineffec tive assis tance caused him t o enter an involuntary or unknowing pleamay ob tain collateralreli ef regardl ess of whether he
asserts or pro ves his inn ocen ce. To prev ail, the petiti oner must es tabli sh “that (i ) his or he r cou nsel’s re prese ntation fell below an obj ecti ve standar d o f reasonableness demanded o f attorne ys in crim i nal cases; and (ii) there is a

reaso nable probabil ity tha t , but for

counse l’s er ror s, he or she would have proceeded to trial i nste ad of pleadi ng gui lty.” United

States v . Nah odil , 36 F.3d 323, 326 (3d Cir. 1994) (ci ting Hill v. Lockhart
, 474 U.S . 52, 5 9 (1985)). In Na hod il, we indicate d that a petitioner’s past asse rti ons o f inno cenc e ma y help subs tantiate his claim that h e would have proceeded to trial but for his cou nsel’s
errors, 36 F.3d at32 6-27, but we have

n eversuggeste d that a

fail ure to as ser t o r prove innocence precludes a finding of prejudice

. Thus , b y re qui ri ng aPCRA pet itio ner to “ple ad an d pro ve” h is innocence to obtai n collat er al rel ief from his guilty plea, subsection 954 3(a )( 2)(iii) tacks on an additi onal substant ive el ement on top o f thos e r eq ui re d by fe de ra l l aw.

The proc edur al def ault rule is a n applic ationof the i n dependent and adeq uate state ground d octr ine. See Coleman v. Thompson , 501 U.S. 722, 729- 30 (1991). U nder this doctri ne, feder al

cour ts “will not re vi ew a questi on of federallaw de cid ed by a st ate court if t he decisi on of tha t court r ests on a state law ground tha t is independent of the feder al questi on and adequ ate to support the jud gm ent.” Id. at 729 (citations om itted). Wh ile the inde pendent and adeq uate state ground doc trin e a ppl ie s wh e ther the state law ground is subs tantive or pro cedu ral, id. , the pro cedu ral def ault rule applies, by defini tion, only to proceduralrules . “The [proceduraldefault ] doctrine applie s to bar federalhabe as w hen a state court decli ned
to add re ss a pris one r’ s f ede ra l c la ims because the pri sonerhad failed to me et a

s tate procedural

requirement. I n the s e cases, that state judgme nt re st s on process. ” See Commonw ealth v

. Woodrow , 743 A .2d 458, 46 0 (Pa. Sup er. Ct. 19 99); Comm onwealth v. Laszczynsk i , 715 A.2d 1185, 1187-88 (Pa. S uper . Ct. 19 98); Comm onwealth v. Shekerko , 639 A .2d 810, 81 3 (Pa. Sup er. Ct. 1994). The Superior Court ’s deci sion in Vill ot’s c ase expli citly r elie d on Laszczynsk i , and th e Pen nsylvan ia Supreme Court deni ed Villot ’s petiti on for allow ance of appeal. H owe ver, though too late to help V illot, the court later ov erruled this line o f dec isions in Dadario v. Goldberg , holdi ng that subs ection (a)(2)(ii) e ncom passe d “all consti tuti onally -cognizable cl aims of inef fec tive a ssista nce of c oun sel,” in cl udi ng i nef

fec ti ve a ss is ta nce cl ai ms related to the d efen dant’s decisio n to plead gui lty

or not. 773 A.2d 126, 127- 28, 13 0-31 (Pa. 2 001 ); see also Comm onwealth v. Hickman , 799 A.2d 136, 141 (Pa. Super. Ct. 2002) (hol ding that PCRA will afford reli ef if i neffecti ve assistan ce of coun sel cau sed d efen dant to enter involun tary guiltyplea).9

independent

and adequate procedural gro und s.” Id. (emphases add ed). T his dist incti on between procedur al an d subst an tive rules is perfectl y cons ist ent with the pro ce dural def ault rule’ s rati onale, which is that state cour ts shou ld
not be deprive d of

a n op portu nity to
correct their own errors bythe hab eas petitioner’s fail ure to abi de by t he s ta te’s reasonable procedural rules:

Just as in th ose c ases in wh i ch a state p risone r fails
to exh aus t state rem edie s, a habeas petit

ioner who has fail ed to me et the State’s
proce du ralrequirements for prese nti ng his fede ra l c la ims has depr ived th e state c ourts of an op portu nity to address those claims in the fir st inst ance.

Id. at731 -32 (e mp hasis a dded ); see also Ro se v. Lundy , 455 U .S. 509, 518 -1 9 (1982) (articulating s i milar rationale). How ever, w hen a state tacks o n substant ive additi on s to fede ral claim s, it is the state i tse lf that h as fo rfeited its opp or tu ni tyto con si der th e fe der al cl ai ms of the class of petit

ioners who cannot sati sfy the ad ditional state-c reate d subs tanti v e req uire me nt. T h e consider ations of comityan d federalism underlying the proce d ural defa ult r ule have

no ap plica tion in su ch c ase s. See Coleman
, 501 U.S. at

730 (explai ning that applic ationof independent and a d equa te state grou nd ru le in habeas i s grounded in

com ity and fed eralism con cern s, not juris dicti ona l limit s).

In fact, an inte rpret ation o f t he proceduraldefa ult rule th at exten ded to
state substant

ive r est rictions on feder al cl ai ms wou ld violate the supre mac y clause. See U.S. Const. art. VI. The stat es have no obligat

ion to provide col late ral

re lief to co nvi cted crim inals at all, s e e Pen nsylva nia v. Finl ey , 481 U.S. 551, 557 (1987) ( cit ation omi tted) , and the reli ef they elect

to provi de need not be coextensi ve with that

prov ide d by feder al statutory or c ons titutio nal la w. T hus , the Pen nsylvan ia legis lature was free to s et a higherbar fo r collater al relief f rom guil t y pleas than fed eral law provides. 6 A holding that the proc edur al def ault rule applie s in thi s ca se , how ever, w ould effe ctively impose Pennsylvania’s ex traconsti tuti onal restrictions on col late ral reli ef o n federalhabeas proce edings d espite 28 U .S.C . § 22 54( a), w hic h authori zes reli ef whenever a prison er is held in cust ody “i n violat ion of the Co nstitutio n or laws or treati es of the Un ited S tates .”

A cc or di ng ly, we do not nee d to determ in e whe ther the Sup erior Cou rt’s applic ation of § 9543(a )(2)(iii)’ s innocence requir emen t satisfies th e “independent

and adequate” state ground
testbecause, even as s um ing it do es, it

6 Of course, t

he scope of rel ief provided must

be consis tent wit

h the
state’s own consti tuti onal la w, but that issue is n ot bef ore the cour t.10

cannot for eclose f

ederal habeas revi ew of Villot’s i neffective assist ance claims.

B.V il lot’s h abeas pe tition i s no t pr oce dur ally defa ulted beca use o f his

non-co mplian ce w ith § 954 3(a)(3).

Section9543(a)( 2)(i ii) provided a substant ive bas is for the Sup erior Cou rt’s holding that V illo t ’s cl aims were “not cognizabl e” und er the P CR A. H ow ever, it appears that t

he Superior

Court could ha ve also deni ed relief on procedural grounds. Sp ec ifi ca lly, the court

could have held that Villot failed to com ply with 42 P a. Co nst. Stat. § 95 43(a )(3), w hich p rovid es that a PCR A petitioner must p lead and p ro v e “[t]hat the al legation of error has not been prev iously litiga ted o r w aive d.” 7 Altho ugh the sta te d oe s n ot re ly o n § 9543(a)( 3) dire ctl y, in bo th its brief and a t o ra l argumentit placed great e mp hasis o n its
contention that Vil lot waive d two of hi s ineffective assistan ce claim s by failing to raise them pri or to hi s PCRA proceeding. We t re at this as an argum ent that Villot’s cl ai ms should b e considere d proc edur ally defaulted under § 9543(a) (3), but we reject this argum ent becau se the Sup erior Cou rt did not rely on § 95 43(a )(3) in deny ing Villot’s PC RA appe al.

First, it seems clear tha t the Superior Cou rt cou ldhav e he ldth atsom e
or all of Villot’s PC RA claims w ere eithe r prev iously litigate d or waived. There is no doubt that V illot’s con flict of in te rest claim wa s prev iously litigated in bo th Villot’s mo tion to w ithdraw his guilt y pl ea and on d irect ap peal. N ext, V illot’s claim that his plea coun sel fail ed to ade quate ly interview him a nd in vestig ate his case could have been deemed waived by t he Superior Court because it was not rais ed before the trial c ourt or on direc t appe al. 8

7 A c laim h as be en pr eviou sly litigate d if “the highest

court i n which the petiti oner could have had review as a
matter of right has rul ed on the meri ts of the is sue .” 42 Pa. C ons . Sta t. § 954 4(a)(2 ). A cla im ha s bee n w aived “if the petiti oner could ha ve rais ed it but fail ed to do so before tri al, at trial, during unitar y r eview, on appealor in a prior
state postconvi ction proceeding. ” Id. at § 9544(b ). 8 Un til recently, def enda nts in Pennsyl vania had t o rais e any i neffecti ve assistan ce claim s “at the earliest sta ge in the proce edings at

which the counse l whose effecti veness i s being chal lenged no longer represent s the defe ndant, ” or else t hese claims would be consi dered

wa ived

. Com monw ealth v. Hubbard
, 372 A.2 d 68 7, 69 5 n.6 (Pa . 197 7). Because Vill ot obtai ned new counsel before he made hi s motion to withdraw his guilty

plea, he was obligated to rais e any i neffecti ve assi stance c laims i n that
mot io n. The P enn sy lv ani a Su pr eme Court overr

uled Hubba rdin 2002, hol din g th at “a s a g ene ral ru le, a petit ioner s hould wait to rais e clai ms of ineffective ass ist ance of trial c ounsel untilcollateralreview.” Co mm onw ealth v. Grant , 813 A.2 d 72 6, 73 8 (P a. 20 02)

.11

Fina lly, with resp ect to Villot ’s cl aim that his pleacounsel coerced hi m into pl eading gu ilty, the st ate argues that this is ju st a variat ion on hi s c onf

li ctof i nt er es t c la im. 9 If the state is corre ct, this claim could also have been dee me d “p rev iou sly litiga ted.” If the st ate is inc orrect a nd th is claim is

con s idereddistinct, the Superior C ourt mighthave held th at this cla im was waived because Villot d id not rais e it i n his moti on to withdra w his gui lty

plea or on direct app eal.

Th us, if the S uper ior C ourt ha d ba rred r eview of som e or all of V illot’s cl ai ms on the basi s of § 9543(a)( 3) rather than, or i n additi on to, i ts rul ing based on § 9543(a)( 2)(i ii) , it

coul d b e argued that the procedural ly barred claim s were defaulted for purpose s of federalhabeas

re vi ew. 10 However, “a federalclai man t’ s proceduraldefault

preclude s feder a l habeas rev iew

. . . only if the last s tate court rend ering a ju d gment in the case
rests its judgment on t he procedura l defaul t.” 11 Harris v. Reed , 489 U.S. 255, “Thus, anyineffectiveness clai m will be waived onlyafter

a peti tioner

has had the opportuni tyto rai se that clai m on collatera l review and h as faile d to av ail himself of

that oppor

tunit y. ” Id. The

cour t also he ld that th e new rule w ould be ap plied re troactiv ely to case s curre ntly pending on direct appealin which ineffective ass ist ance clai ms had been rais ed and preserved, but not to ca ses pen din g on colla teral rev iew

. Id. at 738- 39 & n.16. Of course, Villot ’s direct and collateralstate proceedi ngs had long been close d by the time Grantwas issued, so the new rul e has no appli cati on here.

9 Villot’s coun sel do es no t expla in the ba sis of th is claim in his b riefing to this court, but the gi st of the clai m can be gleaned from V illot ’s pro se brief i n the district court and the M agistrate Judge’s report and recommendati on. Vill ot clai ms that hi s plea couns el pres sured him to plead guilty so tha t coun sel cou ld avoid cros s-examini ng Adam Rom ero, the chi ef prosecution witnes s and

coun sel’s fo rmer client, at trial. If this is th e e xt en t o f V illo t’s cla im , it i s s im pl y a re-st atement of Vil lot’ s confli ct of interest c laim. T he P enns ylvania Supreme Court has hel d that t he “previous lylitigate d” prong of subsection (a) (3) bar s simpl e variations of previous lylitigate d clai ms as well as the e xac t claim s the ms elve s. See Comm onwealth v. Carpenter , 725 A.2d 154, 166-67 ( Pa. 1999) ( citation omitted).

10 This st atement i s quali fied because we cannot and ne ed not defini tivel y st ate that Vill ot could not have raised any valid objec tions to applic ation o f the p roced ural de fault ru le had the Superi or Court r elie d on § 954 3(a)(3 ) to den y his PC RA appe al.

11 This rul e is i napplic able where the
state co urt has not b een p resen ted w ith the f ede ral cl aim

. Ha rris , 489 U.S. at 263 n.9. I n that e vent, the feder al habeas12

262 (198 9) (em phas is add ed). If th e state court does no t actually enforc e the pr ocedural rule i n questi on, the “federal
court impli es no d isrespe ct for th e state by
entert aini ng t he clai m.” County Court of Ulster County, N.Y. v. Allen , 442 U.S. 140, 154 (197 9); see als o Smith v. Freeman , 892 F.2d 331, 336 (3d Cir. 1989) (re ly ing

on Ha rris and Ulster

to hold t hat a claim

was n ot procedu rally barred under a certain st ate proc edural r ule where the Pen nsylvan ia cour ts did n ot rely on th is rule and address ed the meri ts of the petiti on instead). The S uperior C ourt’s opinion rejectin g Villot ’s PCRA appeal
rests excl us ively on subsection (a)(2 )(iii), and does not menti on § 9543(a)( 3) or any otherproceduralbasis f or it s ruli ng. 12 Under the presu mp tion esta blished in Ylst

v. Nunnemaker , 501 U .S. 797, 803 (1991), the Pen nsylvan ia Supreme Court’s refusal
to review the S uper ior C ourt’s o rder is presumed to rest o n th e sam e ground. Co mity does n ot requ ire, nor w ould it justi fy, any end eavo r by this C ourt to subs titute an unmentioned pr ocedural ground in place of su bsec tion (a)(2 )(iii) in orderto hold Vi llot’s claim s proc edur ally defa ulted in fede ral cou rt.

C. Villot’s confli ct of i nterest claim was not defaulte d beca use o f the m ann er in wh ich itwas conc lude d by th e state in the PC RA pro cee din g.

In i ts order gran ting Villot’s certifica te of

appe alability with respe ct to two of his i neffecti ve assi stanc e claims, the mo tions p anel deni ed the certifica te with respect

to his inef

f ecti ve assi stance claim based on an all eged confli ct of in tere st. The mo tions p anel a greed with the Distri ct Court t

ha t this clai m was proc edur ally defa ult ed because Vil lot fail ed to fully

exhaust i t on direct appeal by seeking review i n the P enns ylvania Su pr eme Court and would now be ti mebarredfrom doing so. That rul ing, how ever, fail ed to account for the fact

that Villot pres e nted thi s same clai m, along with his other tw o ineffective ass ist ance claims, to Pennsylvania’s highest co urt following t he Superior Court’s de nial of his PCRA appeal. We now hold that all three of Villot ’s ine ffect ive assis tance cl ai ms were properl y exhaus ted duri ng the cour t may ho ld the c laim p roced urally defaulted “ if it is clear that the state court

wo uld h old the claim proc edur ally barred. ” Id. Bu t since th e PC RA cour ts were presented with Vill ot’s f ederal clai ms, the Ha rris rule an d no t its exception applies.

12 In contr ast, in Cabrera v. Barbo
, 175 F .3d 307, 31 0-13, (3d C ir. 1999), the ca se prin cipally relied on b y the state at oral a rgum ent, the N ew Jersey state courts explic itl y r elie d on a state waiver rule i n denyi ng a pris oner’s s tatepetit ion for post -convict

ion rel ief. Therefore, Cabrera ’s holding that the p risoner’s claim s we re pro cedu rally defau lted in federalcourt i s inappl icabl e to theinst ant

case.13

PCR A proceedings. 13 Befo re a federa l court may grant

a § 225 4 habeas petiti on, the state pris oner must exhau st his available state court remedies. 2 8 U .S.C. § 225 4(b)(1); O’Sulli van , 526 U.S. at 842. “The exhausti on doctri ne is des igned to gi ve the

s tate co ur ts a fu ll a nd fa ir o pp or tu ni ty t o resol ve feder al con stitutiona l cl ai ms befor e those clai ms are pres ented t o the feder al

cou rts.” Id. at 845 . The prison er typically exha usts his feder al cl aims b y fairly presenting each clai m at each stage of t he
stat e’ s establish ed ap pellate re vie w process. Id

. Ho we ver, w hen th e state refuses to con siderthe meri ts of the pr iso ner’s clai ms because thepetit ioner has fail ed to comp ly with the state’s proceduralrequ ireme nts, his cl aim is nonetheless technically

exhausted because “there is an abs ence of avai lable S tate

c orrect ive pro ces s,” 2 8 U .S.C

. § 2254(b )(1)(B)(I), despite t he fact that the petit ionerhas “depri ved the state courts of

an opportunity to address [the f edera l] cl ai ms in th e fir st ins tanc e. Coleman , 501 U.S. at 732 . Thu s, the pro cedu ral def ault rule avo ids frustration of the purpose behind the exhaust

ion requi rement by 13 We may not consi der is sues on appeal that are not withi n the scope of the c ertif icate of a ppe alab ility (CO A)

. 28 U .S.C. § 225 3(c)(3 ); Third Circu it Loc al Ap pellate R ule 22 .1(b); Miller v

. Dragovich , 311 F.3d 574, 577 (3d Cir. 200 2); Hiivala v . Wood , 195 F.3d 1098, 1102-03 (9th Cir. 1999) . However, the merits panel may expand the sc ope of the COA beyond t

he scope announced bythe

mo tion s pa nel. See 3d C ir. LAR 22.1(b); Hiiva la , 195 F.3d at

1103-04 (expl aining that t he “law of the ca se” doctrine does not preclude the meri ts panelfrom expanding the scope of a COA granted by the motions pane l because the proper

sco pe o f a C OA is a ju risdi ction al iss ue)

. The fact that Villot did not request expa nsion is not co ntrolling — the m erits pa ne l m ayex pa nd t

he COA sua spon te

. See 3d Cir. LAR 22.1(b) (contempl ating

sua spon te expa nsion ); United Stat es v. Morgan , 244 F.3d 674, 675 (8th Cir. 200 1) (en banc ) (hold ing tha t Eigh th Circuit hearing panel m ay “consider sua spon te issues beyond t

hose speci fied i n a certi ficate of appealabi lit y, whether the certificate was issue d by a district court or by an administ

rati ve panel of [t

he Eigh th Circ uit]”); cf. Robinson v. Johnson , 313 F.3d 128, 133 (3d Cir. 2002) (ci ting Dunn v. Coller an, 247 F.3d 450, 456 (3d Cir .2001), for the proposit ion that a dist rict court maygrant a COA sua spon te ). Acc or di ngly , w e exerci se our di scretion to expand the COA to cover Villot’s confli ct of interest clai m. We note that while our expansion of th e C O A in th is c as e is tec hn ica lly sua spon te beca use V illot did n ot ask us to revis it t he motion panel ’s rul ing deny ing the COA as to his conflict of interest claim , the eff ect of our re vision is simp ly to consi der each of Vil lot’ s clai ms on the basis o f the sa me le gal the ory, not to includea new issue not envisi oned by t

he parties.14

precludi ng federalreview of proc edur ally barredclai ms unless t he p et iti oner can establish“cause an d prejudice” or a “fundamental misca rriage o f justice ” to

excuse the pro ce dur al de fau lt. Id. ; Wh itney v. Horn , 280 F.3d 240, 250 (3d Cir. 2002) (cit ation omi tted)

. The District Cou rt co rrectly ruled that Villot did notfully

exhaust hi s confli ct of interest claim on direct appeal because he did n ot petitio n the P enns ylvania Supreme Court forreview of the Superi or Cou rt’s denia l of his appe al. 14 Howe ver, Villot prese nted b oth this cla i m an d his othertwo claims t o the P enns ylvania Su pr eme Court foll owing the Superi or Cou rt’s denial of his PCRA appea l. A prisone r is onl y r equired to invoke “ one
com plete round” of the state’s establ ished appe llate proc ess to sati sfy the exhaust ion requiremen t, O’Sulli van , 526 U.S. at 845 (emp hasis added), and Villot d id so during his P CR A p roc eed ing s.
If § 9543( a) (2)(i ii) ’s innoc ence provisi on we re procedur al rat her than subs tantiv e , then the D istrict Court’s

r uling wo uld hav e be en c orre ct. A s explai ned above, a pr ocedural ly barred claim is techn ic ally exhausted but not prop erly exha usted beca use th e state

cour ts are n ot g iven a fair op portu nity to ad dres s the federal clai m on the merits. Se e O’Sulli van , 526 U.S. at 848. If § 9543(a )(2)(iii)’s innoce nce prov ision were

a proceduralbar then Vil lot would have losthis onl y opp ortun ity to prope rly exhaust h is fe deral c laims when he fai led
to petiti on t he state’s highest co urt following his dire ct ap pe al . B ec au se we have held th at this provisi on is subs tanti ve, how ever, see supra Par t IV .A ., a nd because the S uper io r C ourt di d not deny Villot’s PCRA appeal on any pr ocedural ground, see supra Part IV.B., we hold that Villot p rop erlyexhausted hi s ineffec tive assis tance cl ai ms by pr esenti ng them to the state’s hi ghe st

cou rt durin g hi s PCRA proceedings.
V. Conclusion

For the r ea so ns st at ed ab ove , w e will reverse the D istrict Court’s dismis sal of Villot’s habe as pe tition an d rem and th is 14 In O'Sull ivan the Sup reme C ourt held that AEDPA ’s exhaust ion prov isions re quire s tate priso ners to “file petit ions for discr etionary review when that review is p art of the ordina ry appell ate re view procedure in the St ate. ” 526 U.S. at 847. In May 2000 the Supreme Court of Pennsy lvania issued Ord er 21 8 w hich e ndea vore d to elim inate petit ions for discr etionary review from the o rdin ary ap pella te rev iew pro ced ure

. See Wenger v. Frank , 266 F.3d 218, 220, 224-25 (3d Cir . 2001) ( providi ng text of Order 218). As was the case i n Wenger , we need not consi der the e ffect of Order 218 on AED PA’s exhausti on requireme nt in this case beca use V illot’s time t o petit

ion for di scretionaryreview elapsed y ears before the date of the ord er. See 266 F.3d at 226 ( “Order 218 doe s no t appl y in cas es in whi ch t he time to petition for re view by the state supreme court

expired prior t o the dat e of the order .”)15

case for con side ration o f the m erits of a ll three of Villot’s claims. 15

15 The state has invited us to address the merits of Villot ’s claims in t he first inst ance on appeal should we decide , as we have, that

Villot ’s cl aims were not defaulted. The st ate ar gues that we have the power to a ddress t

he merit s in the first in stan ce u nde r 28 U.S .C. § 2254(b)(2) , which authorizes federal
courts to denyhabeas petiti ons on the merits “notwiths tanding t he fail ure of the applic ant to e xhaust t

he remedies avail able i n the court s of the St ate. ” Alth oug h § 2 254 (b)(2) d oes n ot, by its
terms , apply to th e pro cedu ral def ault
context , in Ham een v. Delaware , 212 F. 3d 2 26, 251 -5 2 ( 3d C ir . 2 000 ), we relied o n this se ction to reach the m erits of a habeas petiti on rather than consi der wh ether th e issue had b een p roced urally defaulted in th e state courts. Ho wev er, we need not decide whether we can or should fol low the st ate’s suggesti on, beca use th e reco rd on appe al is insuffi cient

to permit

a thorough review of Villot ’s cl aims. We have not been provided wit

h a trans cript

of the evidentiaryhearing he ld in t he Superior Co urt on Villot’s mo tion to w ithdraw his guilt y pl ea. Furt

her, t he trans cript

of the degree of gui lt hearing i s incomplete — specifi call y, the pages of the tr anscri pt contai ning the testi mony of Adam Romero, witnes s for the prosecution and Villot’s plea cou nsel’s form er client, are mis sing

.