PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 19-2228

______

GRAHAM B. SPANIER

v.

DIRECTOR DAUPHIN COUNTY PROBATION 

SERVICES; 

ATTORNEY GENERAL PENNSYLVANIA,

 Appellants

______

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(D. C. No. 3-19-cv-00523)

Magistrate Judge: Honorable Karoline Mehalchick

______

Argued June 16, 2020

Before: CHAGARES, PORTER and FISHER, Circuit 

Judges.
2

(Filed: December 1, 2020)

Kimberly A. Boyer-Cohen

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street, Suite 2300

Philadelphia, PA 19103

Ronald Eisenberg [ARGUED]

Office of Attorney General of Pennsylvania

1600 Arch Street, Suite 300

Philadelphia, PA 19103

Counsel for Appellants

Bruce P. Merenstein [ARGUED]

Samuel W. Silver

Schnader Harrison Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Counsel for Appellee

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

This case stems from the disturbing child sex abuse 

scandal involving the football program at the Pennsylvania 

State University. In 2017, Penn State’s former president, 

Graham Spanier, was convicted of child endangerment for his 

role in the decision not to report the suspected abuse to state 
3

authorities. Spanier and other university administrators made 

that decision in 2001. However, after their decision and before 

Spanier’s trial—in 2007, to be exact—the Pennsylvania 

legislature amended the statutory definition of child 

endangerment and its statute of limitations. Although Spanier’s 

conduct preceded these amendments, the jury was instructed in 

language that tracked the post-amendment statute. 

Spanier challenged his state-court conviction through a 

petition for a writ of habeas corpus, arguing that his rights 

under the Due Process and Ex Post Facto Clauses were 

violated. He also argued that his due process rights were 

violated by the application of an exception to the statute of 

limitations. The District Court granted Spanier’s petition and 

vacated his conviction. The Commonwealth appeals. We will 

reverse.

In 1998, a woman called the Penn State police to

complain that her eleven-year-old son had showered with Jerry 

Sandusky, who was the well-known defensive coordinator for 

Penn State’s football team. The boy was involved with the 

Second Mile program, a charitable organization Sandusky 

founded that helped vulnerable youth. The police chief brought 

news of the complaint to Gary Schultz, Penn State’s Senior 

Vice President for Finance and Business. The chief kept

Schultz informed, and Schultz in turn told Spanier the details 

of the investigation as it unfolded. Schultz also told Timothy 

Curley, the university’s Athletic Director, about the 

investigation.

Both the Penn State police and the Pennsylvania 

Department of Public Welfare investigated the complaint. 

Ultimately, those entities concluded that sexual assault could 
4

not be proven, and the DA did not file charges. Spanier was 

copied on two emails about the investigation: one at the 

beginning and one saying it had concluded.

In 1999, Sandusky retired. He was granted emeritus 

status, and he still had access to Penn State football facilities. 

He also remained actively involved with Second Mile.

On Friday, February 9, 2001, around 8:00 or 8:30 in the 

evening, graduate assistant coach Michael McQueary went to 

the football building. He saw Sandusky and a boy he estimated 

to be “[r]oughly 10 to 12 years old” naked together in the 

shower, clearly engaged in sexual activity. App. 806. Shaken, 

he immediately spoke with his father and a family friend. The 

next morning, Saturday, February 10, McQueary told longtime 

head football coach Joe Paterno. Paterno asked to meet with 

Athletic Director Curley and Senior Vice President Schultz. 

The three men spoke a day later, on Sunday, February 11. 

Paterno reported what McQueary had told him, but he used the 

terms “horseplay” and “wrestling” to describe what McQueary 

saw. App. 1056. Later that day, Schultz asked Penn State’s 

general counsel for advice. Counsel recommended that the 

University report the incident to the Department of Public 

Welfare.

On Monday, February 12, Curley and Schultz reported 

the situation to Spanier. According to Schultz’s 

contemporaneous notes, the three men “reviewed 1998 

history,” i.e., the 1998 investigation; they “agreed [Curley] will 

. . . advise [Paterno] we think [Curley] should meet [with] 

[Sandusky] on Friday”; they decided that “unless [Sandusky] 

‘confesses’ to having a problem, [Curley] will indicate we need 

to have DPW [the Department of Public Welfare] review the 

matter”; and “[Curley] will keep [Schultz] posted.” App. 1379.

The next week, Curley and Schultz asked McQueary to 

meet with them, and McQueary again described what he had 
5

seen. McQueary testified, “I told them that I saw Jerry 

molesting a boy, that what he was doing in a shower with a 

minor on the Friday night was sexual, it was over the line.” 

App. 816. McQueary vigorously denied ever using the word 

“horseplay” to describe the incident to anyone.

Two weeks later, on Sunday, February 25, 2001, Curley 

and Schultz again met with Spanier. After the meeting, Schultz 

found an online listing of Second Mile’s board of directors, 

printed it out, and wrote three action items on the back: “Tell 

Chair of Board of Second Mile,” “Report to Dept of Welfare,” 

and “Tell [Sandusky] to avoid bringing children alone into 

[football] Bldg.” App. 1151, 1393-94. Schultz emailed Curley 

the next day to confirm that Curley “[had] the ball” on these 

next steps. App. 1382, 1143-44. 

On Tuesday, February 27, however, Curley emailed 

Spanier and Schultz and shared that he’d had a change of heart:

After giving it more thought and talking it over 

with Joe [Paterno] yesterday—I am 

uncomfortable with what we agreed were the 

next steps. I am having trouble with going to 

everyone, but the person involved. I think I 

would be more comfortable meeting with the 

person and tell[ing] him about the information 

we received. I would plan to tell him we are 

aware of the first situation [the 1998 incident]. I 

would indicate we feel there is a problem and we 

want to assist the individual to get professional 

help. Also, we feel a responsibility at some point 

soon to inform his organization [Second Mile] 

and . . . maybe the other one [child protective 

services] about the situation. If he is cooperative 

we would work with him to handle informing the 

organization [Second Mile]. If not, we do not 
6

have a choice and will inform the two groups. 

Additionally, I will let him know that his guests 

[Second Mile children] are not permitted to use 

our facilities. I need some help on this one. What 

do you think about this approach?

App. 1386, 1075-81. Spanier responded:

This approach is acceptable to me. It requires

you to go a step further and means that your 

conversation will be all the more difficult, but I 

admire your willingness to do that and I am 

supportive. The only downside for us is if the 

message isn’t heard and acted upon, and we then 

become vulnerable for not having reported it. 

But that can be assessed down the road. The 

approach you outline is humane and a reasonable 

way to proceed.

App. 1386, 1082-83. As agreed, Curley spoke with Sandusky 

and Second Mile’s executive director. Then Curley circled 

back to Spanier and “told him I took care of what I was 

supposed to do and everything was okay.” App. 1092. The 

Department of Public Welfare was never notified.

After this point in early 2001, the Sandusky saga went 

quiet—at least as far as Penn State’s administration was 

concerned. But that was not the experience of the children 

Sandusky continued to abuse. In 2008, Clinton County 

Children and Youth Services received another report and the 

Commonwealth began another investigation. As a result of this 

investigation, Sandusky was convicted of crimes related to his

abuse of several children, including four he abused after 2001.
7

Before turning to the procedural history of this appeal, 

we first introduce its legal backdrop, which is encapsulated in 

Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015). This 

discussion is necessary to explain the circumstances of 

Spanier’s conviction.

William Lynn, a Roman Catholic priest, was the 

Secretary for Clergy of the Archdiocese of Philadelphia in the 

1990s and early 2000s. Id. at 798. He “was responsible for . . . 

handling clergy sexual abuse issues,” acting as the “‘point 

man’ in the investigation into . . . allegations of clergy sexual 

abuse of minors within the Archdiocese.” Id. at 798-99. While 

Lynn was Secretary for Clergy, priests in the diocese sexually 

abused children. Some children were victimized by priests 

who, Lynn knew, had abused other children in the past. Id. at 

799-806. 

In 2002, a grand jury was empaneled at the request of 

the Philadelphia District Attorney to investigate clergy sex 

abuse in the diocese. Id. at 806-07. The grand jury’s report 

concluded that the 1995 version of the Pennsylvania child 

endangerment statute, 18 Pa. C.S. § 4304, which was then in 

effect, “allowed church officials such as [Lynn] to escape 

criminal liability.” Id. at 807. The grand jury explained that the 

statute was “too narrow to support a successful prosecution of 

the decision-makers who were running the Archdiocese. The 

statute confines its coverage to parents, guardians, and other 

persons ‘supervising the welfare of a child.’ High level 

Archdiocesan officials, however, were far removed from any 

direct contact with children.” Id. (citation omitted). 

Based on its understanding of the statute, the grand jury 

did not recommend criminal charges against Lynn. Instead, it
8

recommended amending the child endangerment statute “to 

encompass conduct by individuals in an employer or 

supervising capacity.” Id. “[T]he legislature obliged, and 

amended the . . . statute, effective January 27, 2007.” Id. The 

2007 amendment added new language, which is underlined 

here:

(a) Offense defined.--

(1) A parent, guardian or other person 

supervising the welfare of a child under 

18 years of age, or a person that employs 

or supervises such a person, commits an 

offense if he knowingly endangers the 

welfare of the child by violating a duty of 

care, protection or support.

(2) A person commits an offense if the 

person, in an official capacity, prevents or 

interferes with the making of a report of 

suspected child abuse under 23 Pa.C.S. 

Ch. 63 (relating to child protective 

services).

(3) As used in this subsection, the term 

“person supervising the welfare of a 

child” means a person other than a parent 

or guardian that provides care, education, 

training or control of a child.

(b) Grading.--An offense under this section 

constitutes a misdemeanor of the first degree. 

However, where there is a course of conduct of 

endangering the welfare of a child, the offense 

constitutes a felony of the third degree.
9

18 Pa. C.S. § 4304 (2007) (emphasis added). The Pennsylvania 

legislature also amended the statute of limitations for § 4304, 

adding the underlined language:

(a) General rule.--Except as otherwise provided 

in this subchapter, a prosecution for an offense 

must be commenced within two years after it is 

committed. . . .

(c) Exceptions.--If the period prescribed in 

subsection (a) . . . has expired, a prosecution may 

nevertheless be commenced for: . . .

(3) Any sexual offense committed against 

a minor who is less than 18 years of age 

any time up to the later of the period of 

limitation provided by law after the minor 

has reached 18 years of age or the date the 

minor reaches 50 years of age. As used in 

this paragraph, the term “sexual offense” 

[includes] a crime under . . . [18 Pa. C.S.] 

Section 4304 (relating to endangering 

welfare of children).

42 Pa. C.S. § 5552 (2007) (emphasis added).

Despite the grand jury’s hesitations about charging 

Lynn under the 1995 statute, the Commonwealth decided to do 

so in 2011. Lynn, 114 A.3d at 807-08. Lynn was convicted and 

he appealed, arguing that the evidence was insufficient because 

he did not supervise children and therefore was not within the 

scope of the 1995 statute. Id. at 815-16. The Superior Court 

agreed and reversed the conviction. Id. at 817.

The Pennsylvania Supreme Court reversed the Superior 

Court, ruling that Lynn’s conviction under the 1995 statute was 

not erroneous. The Court observed that despite the usual rule 

of lenity, child endangerment statutes “are written expansively 
10

by the legislature ‘to cover a broad range of conduct in order 

to safeguard the welfare and security of our children,’” and 

should be construed to effectuate that broad purpose. Id. at 818 

(quoting Commonwealth v. Marlin, 305 A.2d 14, 18 (Pa. 

1973)); see also id. at 822. The 1995 statute covers “[a] parent, 

guardian or other person supervising the welfare of a child,” 18 

Pa. C.S. § 4304(a), and the Supreme Court held that “the 

statute is plain and unambiguous that it is not the child that 

[Lynn] must have been supervising, but the child’s welfare.” 

Id. at 823. The Court reasoned that “the requirement of 

supervision is not limited to only certain forms of supervision, 

such as direct or actual,” but “[b]y its plain terms . . . 

encompasses all forms of supervision of a child’s welfare.” Id.

at 824. “[S]upervision,” the Court explained, “is routinely 

accomplished through subordinates, and is no less supervisory 

if it does not involve personal encounters with the children. 

Like [Lynn], school principals and managers of day care 

centers supervise the welfare of the children under their care 

through their management of others.” Id. Lynn came within the 

purview of the statute because, “by his own concession, he 

supervised the welfare of the children of the Archdiocese.” Id.

The Court said that the views of the grand jury and the 

DA (who declined to prosecute Lynn under the 1995 statute) 

did not “prove the meaning of the . . . statute, which is 

determined by analyzing [its] plain language.” Id. at 827. The 

Court also discounted the subsequent amendment of § 4304, 

invoking Pennsylvania’s statutory interpretation statute, which 

provides that legislative history is not taken into account when 

a statute’s language is clear. Id. (citing 1 Pa. C.S. § 1921). The 

Court added that “while the former version of a statute is 

relevant to discern the legislative intent of a later version when 

the statutory language is ambiguous, the inverse is not true.” 

Id. In other words, while the 1995 version of the statute might 
11

illuminate the meaning of the 2007 statute, the 2007 statute 

could not illuminate the meaning of the 1995 statute. 

Concluding that Lynn’s conduct fit within the plain language 

of the 1995 statute, the Pennsylvania Supreme Court reversed 

the Superior Court and held there was sufficient evidence to 

convict. Id.

The Commonwealth filed a criminal complaint against 

Spanier in 2012—five years after the statutory amendments 

described above, but before the Pennsylvania Supreme Court 

held in Lynn that the pre-amendment child endangerment 

statute did not require “personal encounters with . . . children.” 

114 A.3d at 824. Spanier moved to quash the complaint, 

arguing that the charges should be dismissed because the 

allegedly wrongful acts were committed in 2001 and the 

normal two-year statute of limitations expired in 2003. The 

Commonwealth responded that Spanier engaged in a course of 

conduct endangering child welfare until 2012, and therefore he 

“was charged well within the applicable statute of limitation.” 

App. 498. The trial court rejected Spanier’s limitation 

argument, and in 2017, two years after Lynn, the case went to 

trial.1

The count that became Count 1 charged that Spanier, 

“being a parent, guardian, or a person supervising the welfare 

of various children under 18 years of age, knowingly 

1 We omit the procedural history of the case between 

2012 and 2017, which involved (among other things) an 

interlocutory appeal regarding whether the testimony of Penn 

State’s former general counsel was admissible. See 

Commonwealth v. Spanier, 132 A.3d 481, 482 (Pa. Super. Ct. 

2016). What transpired during that time is not relevant to the 

issues we address in this appeal.
12

endangered the welfare of said children.” App. 417. This 

language tracked the 1995 statute because it omitted the phrase 

added in 2007, “or a person that employs or supervises such a 

person.” The statutory reference, however, was 18 Pa. C.S. 

§ 4304(a)(1). App. 417. In the 1995 statute, there was no 

paragraph (a)(1); the 2007 amendment had changed the 

structure of the statute to create paragraph (a)(1). Thus, the 

language of the criminal information reflected the 1995 statute, 

but its statutory reference reflected the 2007 statute.2

At the start of trial, the judge instructed the jury using 

the language of the 1995 statute. App. 704 (“elements of the 

first count” include that “the defendant was, at the time he 

endangered the welfare of a child, a parent, guardian, or person 

supervising the welfare of the child”). At the charge conference 

near the end of trial, Spanier’s attorney objected that the final 

instruction the judge planned to give “has the language of the 

current [2007] statute, and, as we’ve said throughout this case, 

we think the [1995] language should apply.” App. 1215. The 

court ultimately rejected this argument, and at the end of trial, 

it instructed the jury using the language of the amended, 2007 

statute:

The defendant has been charged with 

endangering the welfare of a child. To find the 

defendant guilty of this offense, you must find 

that each of the following elements has been 

proven beyond a reasonable doubt. . . .

[T]hat the defendant was at the time a parent, 

guardian, person supervising the welfare of a 

2 Spanier was acquitted of Count 2 (preventing or 

interfering with a report of child abuse) and Count 3

(conspiracy to endanger the welfare of a child), so those counts

form no part of his habeas petition or this appeal.
13

child under the age of 18, or a person that 

employs or supervises such a person. The term 

“person supervising the welfare of a child” 

means a person other than a parent or guardian 

that provides care, education, training, or control 

of a child.

App. 1306-07 (emphasis added, indicating language added in 

2007 statutory amendment). The jury found Spanier guilty of 

this count. But, when asked on the verdict slip whether there 

was a “Course of Conduct (Yes or No),” the jury answered 

“no.” App. 1397. Because there was no course of conduct, 

Spanier was convicted of a misdemeanor. See 18 Pa. C.S. 

§ 4304(b) (“An offense under this section constitutes a 

misdemeanor of the first degree. However, where there is a 

course of conduct . . . , the offense constitutes a felony of the 

third degree.”). Spanier was sentenced to two months of 

incarceration, two months of house arrest, and two years of 

probation.

In its post-trial opinion, the trial court concluded there 

was no error in instructing the jury using the 2007 statutory 

language. It rested this conclusion on Lynn, reasoning that, 

even under the 1995 statute, supervising the welfare of a child 

was not limited to direct supervision. App. 1533, 1539. The 

court also concluded that the prosecution was not barred by the 

statute of limitations because, under the amended, 2007 

version of 42 Pa. C.S. § 5552(c), the statute would not run until 

the child McQueary saw in the shower turned 50 years old. 

McQueary testified that the child was 10 to 12 years old, so the 

statute would run in “approximately the year 2039.” App. 

1526. Notably, as explained above, the Commonwealth had not 

relied on pre- or post-amendment § 5552(c) before or during 

trial; it had argued that there was no problem with the normal 

§ 5552(a) two-year statute of limitations because Spanier’s 
14

course of conduct lasted until 2012. The jury’s finding that 

there was no course of conduct took that argument off the table 

and brought § 5552(c) into play.

On appeal, the Superior Court relied on Lynn to affirm 

Spanier’s conviction. Commonwealth v. Spanier, 192 A.3d 

141, 150-54 (Pa. Super. Ct. 2018). The Court also rejected 

Spanier’s statute of limitations argument, concluding that there 

was no due process violation in the Commonwealth’s reliance 

on the § 5552(c) statute of limitations. Id. at 145-48. Spanier’s 

petition for allowance of appeal in the Pennsylvania Supreme 

Court was denied.

Spanier had the right to continue pursuing relief in state 

court under Pennsylvania’s Post-Conviction Review Act, but 

he chose instead to file a petition for a writ of habeas corpus in 

federal court under 28 U.S.C. § 2254. The District Court 

granted the petition, holding that Spanier’s conviction violated 

the Ex Post Facto and Due Process Clauses. Spanier v. Libby, 

No. 3:19-CV-523, 2019 WL 1930155, at *15, 18 (M.D. Pa. 

Apr. 30, 2019). However, it concluded that the application of 

the § 5552(c) statute of limitations did not violate due process. 

Id. at *19. The Commonwealth appeals.

3

The state courts rejected Spanier’s argument that his 

conviction violated the Ex Post Facto Clause. They relied on 

Lynn, 114 A.3d at 796, to rule that Spanier’s conduct was 

criminalized by the 1995 version of the statute, which was in 

effect when he committed the conduct. The District Court

3 The District Court had jurisdiction under 28 U.S.C. 

§ 2254(a). This Court has jurisdiction under 28 

U.S.C. §§ 1291, 2253(a).
15

analyzed the Ex Post Facto Clause together with the Due 

Process Clause and held that the state courts’ application of 

Lynn violated both. Spanier, 2019 WL 1930155, at *7-15. We 

begin by addressing the District Court’s ex post facto holding.

The Ex Post Facto Clause provides that “[n]o State shall 

. . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10, 

cl. 1 (emphasis added). Passage of a law is strictly a legislative 

function, so “[t]he Ex Post Facto Clause, by its own terms, does 

not apply to courts.” Rogers v. Tennessee, 532 U.S. 451, 460

(2001). Rather, “[a]s the text of the Clause makes clear, it ‘is a 

limitation upon the powers of the Legislature . . . .’” Id. at 456 

(quoting Marks v. United States, 430 U.S. 188, 191 (1977)).

Here, the Pennsylvania General Assembly did not provide that 

the 2007 version of the statute would apply retroactively. See 

18 Pa. C.S. § 4304 (2007); Act of Nov. 29, 2006, No. 2006-

179, 2006 Pa. Laws 1581, 1589 (providing that amendments to 

§ 4304 “shall take effect in 60 days”). Therefore, there was no 

ex post facto violation.

The real problem, according to Spanier and the District 

Court, is how the state courts construed the child endangerment 

statute through their application of the Pennsylvania Supreme 

Court’s Lynn decision. Where a state court unforeseeably 

applies a law retroactively, that is a due process problem. Bouie 

v. City of Columbia, 378 U.S. 347, 353-54 (1964) (“If a state 

legislature is barred by the Ex Post Facto Clause from passing 

[an unforeseeable retroactive enlargement of a law] . . . , it 

must follow that a State Supreme Court is barred by the Due 

Process Clause from achieving precisely the same result by 

judicial construction.”). Any constitutional violation that 

occurred here would be a due process error, not an ex post facto 

error. We proceed, then, to the due process analysis.
16

The Due Process Clause requires that a criminal statute 

“give fair warning of the conduct that it makes a crime.” Id. at 

350. A statute cannot give fair warning, of course, where it is 

“vague or overbroad.” Id. at 351. The required fair warning 

also might be lacking where a statute, which is “precise on its 

face,” is “unforeseeably and retroactively expanded by judicial 

construction.” Id. at 352. But not every after-announced 

change in criminal law is a due process violation. Instead, due 

process is violated where a state court’s interpretation of a 

criminal statute is “unexpected and indefensible by reference 

to the law which had been expressed prior to the conduct in 

issue.” Id. at 354. This formulation preserves the necessary 

balance. It gives state courts “leeway” as they perform their 

work of judicial interpretation, but also “adequately respects 

the due process concern with fundamental fairness and protects 

against vindictive or arbitrary judicial lawmaking by 

safeguarding defendants against unjustified and unpredictable 

breaks with prior law.” Rogers, 532 U.S. at 461-62. 

This appeal requires us to decide whether the 

Pennsylvania Superior Court’s affirmance of Spanier’s 

conviction, based on its construction of the 1995 statute, was 

“unexpected and indefensible.” Bouie, 378 U.S. at 354. For the 

reasons we will explain, we conclude it was not, and therefore 

habeas relief is not warranted. First, though, we must consider 

whether Spanier’s claim was properly before the District 

Court.

1. Exhaustion

The Commonwealth argues that Spanier should not 

have received habeas relief because he did not follow the 

statutory directive to “exhaust[] the remedies available in the 

courts of the State.” 28 U.S.C. § 2254(b)(1)(A). A claim is 

exhausted when the petitioner raises it on direct appeal, “fairly 
17

present[ing] . . . [its] factual and legal substance . . . in a 

manner that puts [state courts] on notice that a federal claim is 

being asserted.” Bennett v. Superintendent, 886 F.3d 268, 280 

(3d Cir. 2018) (internal quotation marks omitted) (quoting 

McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). The

petitioner must “cit[e] the relevant provision of the United 

States Constitution and federal cases supporting his argument.” 

Id. at 281. Because due process takes a variety of forms, we 

evaluate exhaustion with reference to the particular kind of due 

process claim at issue. See Gray v. Netherland, 518 U.S. 152, 

164-65 (1996) (separately analyzing exhaustion of due process 

claims that rested on distinct bodies of case law “aris[ing] in 

widely differing contexts”).

The Commonwealth argues that Spanier failed to 

exhaust his claim because, on direct appeal of his conviction, 

he cited United States v. Marcus, 560 U.S. 258, 263-64 (2010), 

and Marks, 430 U.S. at 191-92. The Commonwealth contends

that he needed to cite Rogers, 532 U.S. at 461. However, 

Marcus, Marks, and Rogers deal with the same kind of due 

process violation—retroactive application of a change in 

criminal law through judicial decision-making—at different 

stages of a case. Marcus and Marks deal with trial error. 

Marcus, 560 U.S. at 264 (holding that due process is violated 

“if the jury . . . was not instructed about [a criminal statute’s] 

enactment date” and convicts a defendant for “noncriminal, 

preenactment conduct”); Marks, 430 U.S. at 196 (holding that 

due process is violated if the trial court instructs the jury based 

on the current interpretation of a statute, rather than the 

interpretation that controlled at the time of the allegedly

criminal acts). Rogers deals with the same kind of error on 

appeal. 532 U.S. at 454-56 (considering whether state appeals 

court violated due process by retroactively abolishing a 

common-law defense the defendant had relied on). 
18

The Commonwealth, citing Gray, 518 U.S. at 164, 

argues that Spanier did not exhaust the particular kind of due 

process claim he now asserts. The different types of due 

process claims involved in Gray, however, were supported by 

separate lines of cases. 518 U.S. at 164. Here, by contrast, a 

single line of cases stemming from Bouie supports the due 

process arguments Spanier made both on direct appeal and in 

the District Court on habeas. Unlike the defendant in Gray, 

Spanier presented the “factual and legal substance” of his claim 

to the state courts and “cit[ed] the relevant provision of the 

United States Constitution and federal cases supporting his 

argument.” Bennett, 886 F.3d at 280-81 (citation omitted).

Therefore, his claim is exhausted.

2. Merits

Spanier argued on direct appeal that the jury instruction

regarding child endangerment was erroneous because it was

based on the 2007 version of the statute rather than the 1995 

version. The trial court charged the jury that it should convict 

Spanier if it found that, in addition to knowingly violating a 

duty of care, protection, or support to a child, Spanier was “at 

the time a parent, guardian, person supervising the welfare of 

a child under the age of 18, or a person that employs or 

supervises such a person.” App. 1307 (emphasis added, 

indicating language added in 2007 statutory amendment). The 

Pennsylvania Superior Court held that, “[o]n the facts of this 

case” and “[g]iven . . . the Lynn Court’s treatment of the pre2007 version of § 4304,” there was no reversible error.

Spanier, 192 A.3d at 154. On habeas review, the District Court 

concluded that the Superior Court’s application of Lynn to 

affirm Spanier’s conviction violated due process. Spanier, 

2019 WL 1930155, at *15-17. 

At the threshold, the Commonwealth argues that this 

issue is not cognizable in habeas corpus litigation because we 
19

are “bound to accept” a state supreme court’s construction of 

its own state’s statutes. Missouri v. Hunter, 459 U.S. 359, 368 

(1983). This argument fails. While we are indeed bound by the 

Pennsylvania Supreme Court’s construction of Pennsylvania 

statutes, we are not bound by Pennsylvania courts’ conclusions

regarding violations of the United States Constitution. See id.

Whether the 2007 statute was impermissibly applied to Spanier 

has clear federal due process dimensions, and we do not defer 

to the Pennsylvania courts’ holdings on this point.

To determine whether the District Court erred in 

holding there was a due process violation, we must decide

whether the state court decision—here, the Pennsylvania 

Superior Court’s affirmance of Spanier’s conviction, based on 

its interpretation of Lynn—“was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States.” 28 

U.S.C. § 2254(d)(1). The Supreme Court has emphasized that 

“[t]his standard . . . is ‘difficult to meet’: . . . [the petitioner]

must show that the challenged state-court ruling rested on ‘an 

error well understood and comprehended in existing law 

beyond any possibility for fairminded disagreement.’” Metrish 

v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting Harrington 

v. Richter, 562 U.S. 86, 102-03 (2011)). “‘[C]learly established 

Federal law’ under § 2254(d)(1) is the governing legal 

principle or principles set forth by the Supreme Court at the 

time the state court renders its decision.” Lockyer v. Andrade, 

538 U.S. 63, 71-72 (2003). Therefore, we consider Supreme 

Court decisions up to 2018, when the Pennsylvania Superior 

Court affirmed Spanier’s conviction.

In the 1964 Bouie case, individuals conducting a sit-in 

at a segregated lunch counter were convicted of criminal 

trespass under a state statute that forbade uninvited entry “after 

notice . . . prohibiting such entry.” 378 U.S. at 348-49 (quoting 
20

S.C. Code Ann. § 16-386 (1960 Cum. Supp.). Soon after, the 

South Carolina Supreme Court issued an opinion in a different 

case, Mitchell, holding that the statute also prohibited 

remaining on property after being told to leave. Id. at 350 n.2 

(citing City of Charleston v. Mitchell, 123 S.E.2d 512 (S.C. 

1961)). Then, when the Bouie defendants appealed their 

convictions, the South Carolina Supreme Court affirmed on the 

basis of Mitchell. Id. at 350. The U.S. Supreme Court reversed, 

stating that Mitchell’s broader interpretation was “clearly at 

variance with the statutory language” and, furthermore, in the 

95 years leading up to Mitchell, state cases “uniformly 

emphasized the notice-before-entry requirement, and gave not 

the slightest indication that that requirement could be satisfied 

by proof of the different act of remaining on the land after 

being told to leave.” Id. at 356-57. Mitchell was an 

“unexpected and indefensible” interpretation of the statute in 

light of prior law, and therefore its application to affirm the 

conviction was a due process violation. Id. at 354 (citation 

omitted). 

This case is like Bouie in that the state appellate court

applied state supreme court precedent post-dating the conduct 

in question (here, Lynn) to affirm the conviction. See id. at 350. 

However, the South Carolina statute at issue in Bouie was 

unlike the 1995 Pennsylvania child endangerment statute in at 

least one important way. The South Carolina trespassing 

statute was “precise on its face”: it applied to “entry upon the 

lands of another . . . after notice . . . prohibiting such entry.” Id.

at 351-52 (quoting S.C. Code § 16-386). The 1995 

Pennsylvania child endangerment statute is not similarly 

precise: its language, “parent, guardian or other person 

supervising the welfare of a child,” 18 Pa. C.S. § 4304(a),

leaves room for—and even necessitates—judicial 

interpretation. This language raises, among other questions, the 
21

issues of what is meant by “supervising” and who is a “person 

supervising the welfare of a child.” Therefore, the

Pennsylvania courts’ work to interpret the child endangerment 

statute is hardly unforeseeable, as was the South Carolina 

Supreme Court’s sudden expansion of that state’s 

unambiguous trespassing statute.

We next consider the 2001 opinion in Rogers v. 

Tennessee. There, the defendant stabbed a man who died of the 

injury fifteen months later, and the defendant was then 

convicted of murder. 532 U.S. at 454. The defendant appealed 

on the basis of the common law rule under which there could 

be no murder conviction unless the victim died within a year 

and a day. Id. at 453-54. On appeal, the Tennessee Supreme 

Court abolished the rule and affirmed the conviction. Id. at 455. 

The U.S. Supreme Court reiterated that due process is violated 

only by “judicial interpretations of criminal statutes . . . that are 

‘unexpected and indefensible,’” because state courts need 

“substantial leeway . . . as they engage in the daily task of 

formulating and passing upon” common law doctrines. Id. at 

461-62 (quoting Bouie, 378 U.S. at 354). The state court’s 

ruling “was not unexpected and indefensible” because the year 

and a day rule was “widely viewed as an outdated relic of the 

common law,” id. at 462, had never served as the basis of a 

decision, and was mentioned in state case law only three times 

in dicta, id. at 464. Therefore, there was no due process 

violation. Id. at 467.

The principles enunciated in Rogers are certainly 

relevant here: state courts need leeway to engage in their work, 

and federal courts should not hold routinely that this work 

violates due process. Id. at 461-62. But the Tennessee court 

struck down an outmoded common law rule that was never 

really established in Tennessee law. See id. at 462-64. That 

decision bears little resemblance to the Pennsylvania Superior 
22

Court’s interpretation of the child endangerment statute based 

on its reading of Lynn. Therefore, the outcome in Rogers is not 

especially illuminating here.

The final relevant Supreme Court case is Metrish v. 

Lancaster, issued in 2013. There, the defendant was convicted 

of first-degree murder. 569 U.S. at 354. He invoked

Michigan’s “diminished capacity” defense, which applied to 

individuals who were not insane, but whose mental illness 

“negat[ed] the mens rea element of first-degree murder.” Id. At 

the time of the killing, the defense was well established. 

Although the Michigan Supreme Court had not recognized it, 

the intermediate appellate court had done so repeatedly, and 

the pattern jury instructions included the defense. Id. at 355-

57. 

After the killing, but before the defendant’s trial, the 

Michigan Supreme Court addressed the defense for the first 

time in People v. Carpenter, 627 N.W.2d 276 (Mich. 2001). 

The Michigan Supreme Court eliminated the defense. It 

explained that the Michigan legislature had enacted a 

“‘comprehensive statutory scheme’ . . . to govern defenses 

based on mental illness.” Metrish, 569 U.S. at 364 (quoting 

Carpenter, 627 N.W.2d at 282). The diminished capacity 

defense, which had existed before the statute was enacted but 

was not mentioned in the statute, was—the Michigan Supreme 

Court concluded—“incompatible” with the statutory scheme. 

Id. at 363, 365. Later, when the defendant appealed, the state’s 

intermediate appellate court held that applying Carpenter 

retroactively did not violate due process because “Carpenter 

concerned an unambiguous statute that was interpreted by the 

[Michigan] Supreme Court for the first time.” Id. at 365 

(internal quotation marks and citation omitted). The U.S. 

Supreme Court agreed there was no due process violation. Id.
23

The Court noted that it reached the same outcome—no 

due process violation—in both Metrish and Rogers, even 

though the defense eliminated in Rogers was “outdated” and

“widely rejected,” while the defense eliminated in Metrish was 

widely recognized. Id. at 365-67 (citation omitted). 

Acknowledging that different outcomes might have been 

expected based on the different statuses of the two defenses, 

the Court explained that merely because the Michigan defense 

was widely recognized was “hardly sufficient to warrant 

federal habeas relief under 28 U.S.C. § 2254(d)(1)’s 

demanding standard.” Id. at 367. The habeas standard is so 

rigorous that relief is not available merely because the state 

supreme court announces a new rule of law. Rather, the new 

rule must be “unexpected and indefensible by reference to 

[existing] law.” Id. at 368 (quoting Rogers, 532 U.S. at 462). 

The Michigan Supreme Court’s Carpenter decision did not 

meet this definition. The U.S. Supreme Court noted that it had 

“never found a due process violation in circumstances 

remotely resembling [those]—i.e., where [1] a state supreme 

court, squarely addressing a particular issue for the first time, 

[2] rejected a consistent line of lower court decisions [3] based 

on the supreme court’s reasonable interpretation of the 

language of a controlling statute.” Metrish, 569 U.S. at 367-68. 

Here, as in Metrish, [1] the Pennsylvania Supreme 

Court, in Lynn, squarely addressed for the first time the 

application of the 1995 statute to those who supervised the 

welfare of children without supervising the children 

themselves. According to the District Court and Spanier, Lynn 

[2] rejected a consistent line of Pennsylvania Superior Court 

decisions that applied the 1995 version of the child 

endangerment statute only to defendants who were directly 

involved with children. Spanier, 2019 WL 1930155, at *14. 

And Lynn is [3] the state supreme court’s reasonable 
24

interpretation of the language of the statute.4 As in Metrish, the 

state appellate court held that retroactively applying the state 

supreme court decision, Lynn, did not violate due process. See 

Spanier, 192 A.3d at 153-54. Based on these parallels, Metrish 

weighs against a finding that there was a due process violation 

here.

We must now decide, in light of Bouie, Rogers, and 

Metrish, whether the Pennsylvania Superior Court’s 

affirmance of Spanier’s conviction “was contrary to, or 

involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United 

States.” 28 U.S.C. § 2254(d)(1). The District Court, on habeas 

review, concluded that the Superior Court’s decision met this 

standard. Spanier, 2019 WL 1930155, at *15. The Court also 

held that the jury instruction permitted a conviction either 

because Spanier supervised the welfare of a child by

“provid[ing] care, education, training, or control,” or because 

he was “a person that employs or supervises such a person.” 

Id. at *17 (quoting jury instructions). According to the District 

Court, the second option was available only under the amended 

2007 statute, and permitting a conviction on that alternative 

basis violated due process by relieving the Commonwealth of 

its burden to prove every element of the 1995 statute. Id. 

4 The District Court did not conclude that Lynn was 

unexpected and indefensible; it concluded that the Superior 

Court’s affirmance of Spanier’s conviction was. Spanier, 2019 

WL 1930155, at *15. Similarly, Spanier does not attack Lynn. 

Instead, he argues that “the state courts in his case 

misinterpreted Lynn” and incorrectly interpreted “the 1995 

statute as including language added in 2007.” Appellee’s Br. 

40 n.10.
25

The Commonwealth argues that the District Court erred 

and that the application of Lynn to affirm Spanier’s conviction 

was not unexpected and indefensible. Spanier’s response 

aligns with the District Court. He says Lynn held that the 1995 

statute required the defendant to have supervised the welfare 

of a child either directly or indirectly, and that the 2007 statute 

added another category of persons who could be liable: those 

who are “not supervising the welfare of a child,” even

indirectly, but are “employing or supervising someone else 

who was doing so.” Appellee’s Br. 43. He argues that his due 

process rights were violated because the jury could have 

convicted him based on a finding that he fit in the new

category.

However, due process was violated here only if the

Superior Court’s affirmance of Spanier’s conviction was an 

“unexpected and indefensible” interpretation of the child 

endangerment statute in light of prior law, i.e., Lynn. See 

Bouie, 378 U.S. at 354 (citation omitted). We conclude that it 

was not. The Superior Court extensively reviewed the Lynn 

decision before holding that it was not error to instruct the jury

using the language of the 2007 statute. Spanier, 192 A.3d at 

150-54. The Court began by noting Lynn’s commentary that

the child endangerment statute “is protective in nature, and 

must be construed to effectuate its broad purpose of sheltering 

children from harm.” Id. at 150 (quoting Lynn, 114 A.3d at 

818). Such statutes “are written expansively by the legislature 

to cover a broad range of conduct in order to safeguard the 

welfare and security of our children.” Id. (quoting Lynn, 114 

A.3d at 818). Therefore, “[t]he common sense of the 

community, as well as the sense of decency, propriety and the 

morality which most people entertain is sufficient to apply the 

statute to each particular case, and to individuate what 
26

particular conduct is rendered criminal by it.” Id. at 151 

(quoting Lynn, 114 A.3d at 818).

The Superior Court rejected Spanier’s argument that he 

was positioned differently than Lynn, a diocesan official who 

was “responsible for protecting children from sexual abuse.” 

Id. at 152. The Court held that Spanier “oversaw and approved 

the university’s woefully deficient response” to the abuse

allegations, so the fact that his official duties did not include 

addressing child abuse did “not undermine or preclude a 

conclusion that he was supervising the welfare of a child.” Id.

at 153. To support this conclusion, the Superior Court quoted

Lynn’s holding that the 1995 statute, “[b]y its plain terms, . . .

encompasses all forms of supervision of a child’s welfare.” Id.

at 152 (quoting Lynn, 114 A.3d at 824).

The Superior Court also was unpersuaded by Spanier’s 

argument that his case is distinguishable from Lynn because he

“did not supervise persons who interacted directly with the 

minor in question, as did the Lynn defendant or as would a 

school principal or daycare manager.” Id. The Superior Court 

pointed out that “[t]he Lynn Court held that it is the child’s 

welfare that is supervised” under the child endangerment 

statute. Id. Because Spanier “supervised his school’s response 

to repeated allegations of on-campus abuse of a minor by a 

high-status former employee with access to campus facilities[,]

[h]e was clearly supervising a child’s welfare pursuant to 

Lynn.” Id.

Finally, the Superior Court addressed Spanier’s 

argument that the jury instruction was erroneous and stated

that, “[g]iven our analysis of . . . the Lynn Court’s treatment of 

the pre-2007 version of [the statute], we discern no reversible 

error.” Id. at 154. The Superior Court held that “the language 

added [to the statute] in 2007 or, more appropriately, the 

language not included in the pre-2007 version, does not alter 
27

the result here.” Id. It concluded that “[o]n the facts of this case, 

the trial court’s instruction on the 2007 version of the . . .

statute did not result in an inaccurate statement of the law.” Id.

Although the Superior Court did not say it in so many words, 

the import of its holding is that the “employs or supervises” 

language included in the jury instruction accurately reflected 

the meaning of the 1995 statute. See id. This analysis flows

directly from its careful reading of Lynn. We cannot agree with 

Spanier that the Superior Court “misinterpreted Lynn” and 

incorrectly construed “the 1995 statute as including language 

added in 2007.” Appellee’s Br. 40 n.10.

We acknowledge that, in some respects, this case is like 

Bouie—where there was a due process violation in the 

application of a state supreme court decision that changed the 

meaning of a state statute. Bouie, 378 U.S. at 361. But in other 

respects, this case is like Metrish—where there was no due 

process violation in the application of a state supreme court 

decision that struck down a widely relied-upon defense to 

criminal liability. Metrish, 569 U.S. at 365. Because of the 

equipoise in the case law, the habeas standard is particularly 

important here: the writ may not be granted unless the state 

court decision “was contrary to, or involved an unreasonable 

application of, clearly established Federal law.” 28 U.S.C. 

§ 2254(d)(1). There can be no “possibility for fairminded 

disagreement.” Metrish, 569 U.S. at 357-58 (quoting 

Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). “[T]he 

petitioner must demonstrate that Supreme Court precedent 

requires [a] contrary outcome” to the state court decision.

Rosen v. Superintendent, 972 F.3d 245, 252 (3d Cir. 2020) 

(quoting Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir. 

1999) (en banc)). Here, Bouie and Metrish point in different 

directions, creating more than a possibility for fairminded 

disagreement. Therefore, we must reverse in light of “28 
28

U.S.C. § 2254(d)(1)’s demanding standard.” Metrish, 569 U.S. 

at 367.

The District Court cited Bouie and Rogers, but did not 

examine them closely. Spanier, 2019 WL 1930155, at *12. Nor 

did it mention Metrish. The Court pointed to the 2005 grand 

jury report discussed in Lynn, which declined to recommend 

charging Lynn under the 1995 version of the child 

endangerment statute and instead recommended that the statute 

be amended. Id. at *15. The Lynn opinion, however, clarifies

that “[t]he decisions of neither the grand jury nor a prior 

District Attorney [who chose not to charge Lynn under the 

1995 statute] prove the meaning of the . . . statute, which is 

determined by” plain-language analysis. Lynn, 114 A.3d at 

826-27. Following this holding, we conclude that the 

subsequent grand jury report is not persuasive evidence of the 

meaning of the 1995 statute, and therefore does not 

demonstrate that the application of Lynn was “unexpected and 

indefensible.” See Bouie, 378 U.S. at 354.

Even if we agreed with Spanier that the jury instruction

improperly reflected the 2007 statute, we would still reverse. 

“[N]ot every ambiguity, inconsistency, or deficiency in a jury 

instruction rises to the level of a due process violation.” 

Middleton v. McNeil, 541 U.S. 433, 437 (2004). We consider

the instruction “in the context of the instructions as a whole and 

the trial record,” asking “‘whether there is a reasonable 

likelihood that the jury has applied the challenged instruction 

in a way’ that violates the Constitution.” Estelle v. McGuire, 

502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S. 

370, 380 (1990)).

There is not a reasonable likelihood that the jury 

convicted Spanier on the basis of the contested jury instruction 

language—that is, by finding that he was “a person that 

employs or supervises” someone who is supervising the 
29

welfare of a child. App. 1307. The jury instruction at the 

beginning of the trial reflected the 1995 statute and did not 

include the “employs or supervises” language. App. 704. In his 

opening statement, Spanier followed suit, emphasizing that to 

convict, the jury would need to “find that [Spanier] knowingly 

endangered the welfare of a child by violating a duty of care, 

protection or support, to a child whose welfare he was 

supervising.” App. 739. And the Commonwealth’s theory of 

the case was that Spanier himself supervised the welfare of a 

child, not that he employed or supervised such a person.

Although the prosecutor argued in closing that “[t]he buck 

stopped with” Spanier and that he was “the top of the food 

chain,” her repeated theme was that if Spanier, Schultz, and 

Curley had “call[ed] the authorities and let the authorities 

investigate it, . . . [t]hey wouldn’t have been responsible. But 

they took it upon themselves.” App. 1282. She continued with 

the theme that Spanier assumed responsibility for supervising

the welfare of a child:

[Spanier, Schultz, and Curley] don’t have a duty 

to support this child, but their duty of care and 

protection came when they took it. When they 

decided in their little group that they weren’t 

going to call the outside agency, that they 

weren’t going to tell their own University police, 

but that they themselves, the three of them, were 

going to be the cabal that was going to keep him 

under control. They took that responsibility. 

They can’t hide from it now. They took it upon 

themselves . . . .

And, again, that’s a person supervising the 

welfare of a child under the age of 18. They 

chose that. They didn’t have to. It’s a choice that 

Graham Spanier made.
30

App. 1290. Therefore, it is not reasonably likely that the jury 

convicted Spanier because he employed someone who 

supervised the welfare of a child—rather than because he 

himself supervised the welfare of a child.

On direct appeal, the Pennsylvania Superior Court took 

care to note how the record showed that Spanier himself was 

supervising the welfare of a child. It stated multiple times that 

because Spanier “personally oversaw [the university’s]

response” to the abuse allegations, he “was clearly supervising 

a child’s welfare pursuant to Lynn.” Spanier, 192 A.3d at 153-

54. The Court reached its conclusion that there was no error in 

the jury instruction in light of “the facts of this case.” Id. at 154. 

We agree with, and defer to, the Superior Court’s reasonable 

reading of the record. See Waddington v. Sarausad, 555 U.S. 

179, 193-94 (2009) (holding that even if the jury instruction 

was ambiguous, the state courts reasonably concluded, after 

reviewing the trial record, that the jury’s conviction was not 

based on the incorrect understanding of the law that the 

defendant said the instruction had conveyed).

In sum, we conclude that there was no due process error 

with regard to the jury instruction. Under clearly established 

federal law, state courts have considerable latitude to rule on 

the meaning of statutes, and this latitude extends to announcing 

a new rule of law to uphold a conviction—so long as the new 

rule is not unexpected and indefensible. In addition, there is not 

a reasonable likelihood that the jury convicted based on the 

contested language in the jury instruction. Given the 

demanding standard on habeas corpus review of state-court 

convictions, we conclude that the District Court erred in 

granting the petition.

The District Court held that Spanier’s due process rights 

were not violated by the application of the statute of limitations
31

provided in 42 Pa. C.S. § 5552(c). Spanier, 2019 WL 1930155, 

at *19. Spanier argues that this was error, and that we may 

affirm the grant of his habeas petition on the alternative basis

that the application of the statute indeed violated due process.

See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (“We 

. . . may affirm the District Court’s judgment on any basis 

supported by the record.”). We disagree that the application of 

the statute of limitations provides a basis to affirm.

Spanier’s limitation argument turns on the multi-part 

structure of the statute, 42 Pa. C.S. § 5552, and on its 2007 

amendment. At the time of Spanier’s crimes, in 2001, 

Pennsylvania’s “[g]eneral” criminal statute of limitations was 

two years, but there was an “[e]xception[]” for “[a]ny sexual 

offense committed against a minor”: such a prosecution might

be commenced “any time up to the period of limitation 

provided by law after the minor has reached 18 years of age,” 

that is, until the victim’s twentieth birthday. 42 Pa. C.S.

§ 5552(a), (c)(3) (2000). In 2007, when the child 

endangerment statute and its limitations rule were amended, 

the legislature added another exception: prosecution may be 

commenced “up to the later of the period of limitation provided 

by law after the minor has reached 18 years of age or the date 

the minor reaches 50 years of age.” Id. § 5552(c)(3) (2007)

(emphasis added). 

When the Commonwealth began prosecuting Spanier in 

2012, its theory was that the general two-year statute of 

limitations controlled. The Commonwealth argued that 

Spanier endangered the welfare of children through a course of 

conduct that extended from 2001 (when he and Schultz and 

Curley decided not to report Sandusky to the authorities) until 

2012 (when Sandusky was convicted). But the jury rejected 

that theory. Although it found Spanier guilty of endangering 

the welfare of a child, it indicated on the verdict slip that 
32

Spanier had not engaged in a course of conduct. That meant 

Spanier was convicted solely for his actions in 2001—eleven 

years before the prosecution began. Therefore, the § 5552(a)

two-year statute of limitations could not control. Nevertheless,

the trial court held there was no limitations problem, pointing 

to the § 5552(c) exception, which the Commonwealth had not 

invoked at any point before the verdict.

This lengthy setup brings us to Spanier’s argument: he 

contends that his due process rights were violated because he 

did not have notice, prior to the verdict, that the § 5552(c) 

exception might apply. He argues that if he had known the 

Commonwealth would rely on § 5552(c)(3), he would have 

investigated and put on evidence regarding the age of the boy 

McQueary saw in the shower. McQueary testified that the boy 

was “[r]oughly 10 to 12 years old” at the time, App. 806, but if 

the boy was actually fourteen, he would have turned 20—and 

the statute of limitations would have run—in 2006, before the 

January 2007 amendment. In that scenario, the prosecution 

would be time-barred. See Commonwealth v. Harvey, 542 A.2d 

1027, 1030 (Pa. Super. Ct. 1988) (en banc) (if “the prior statute 

of limitations has run before the new statute of limitations 

becomes effective[,] . . . the cause of action has expired, and 

the new statute of limitations cannot serve to revive it”).

The Pennsylvania Superior Court concluded that 

Spanier’s due process rights were not violated as a matter of 

state law. Under “[e]stablished Pennsylvania law,” a defendant 

may be convicted of an uncharged offense that is “a lesserincluded offense of the charged crime.” Spanier, 192 A.3d at 

146 (quoting Commonwealth v. Houck, 102 A.3d 443, 449-50 

(Pa. Super. Ct. 2014)). Therefore, the Superior Court held, the 

charge of felony endangerment (i.e., a course of conduct of 

endangerment) put Spanier “on notice that he was liable to be 

convicted of misdemeanor [endangerment]” (i.e., 
33

endangerment without a course of conduct). Id. In addition, the 

Court held, the complaint was filed “well outside of the general 

two-year limitations period of § 5552(a),” so “it was plainly 

evident . . . that § 5552(c)(3) would govern the limitations 

period for a misdemeanor [endangerment] prosecution.” Id. at 

146-47. 

The Superior Court also observed that § 5552(c)(3) is 

not a tolling provision (those are codified in § 5554, titled 

“Tolling of statute”). Id. at 149; see also 42 Pa. C.S. § 5552(c)

(2000) (providing “Exceptions” to the general rule and not 

mentioning tolling). Therefore, Pennsylvania’s rule requiring 

notice of intent to rely on a tolling provision did not apply. 

Spanier, 192 A.3d at 149. “The purpose of this rule is to apprise 

a defendant that he must defend not only against the crime 

itself, but also against the limitation of prosecution.” Id. at 148. 

The rule is crucial where the prosecution will have to prove 

separate “fact(s) . . . to toll the statute of limitations.” Id. In 

Spanier’s case, however, “the prosecution for misdemeanor 

[endangerment] was not dependent upon proof of any facts 

outside those already alleged in the complaint.” Id. at 148-49. 

Therefore, “notice requirements under due process were not 

violated here.” Id. at 149.

Under the deferential habeas standard, we may not grant 

relief unless the Superior Court’s opinion “was contrary to, or 

involved an unreasonable application of, clearly established 

federal law, as determined by the Supreme Court of the United 

States.” 28 U.S.C. § 2254(d)(1). Spanier says the decision 

violated his clearly established due process right to notice of 

the charges to permit the preparation of his defense. The 

Superior Court’s cogent opinion explains that Spanier received 

notice commensurate with due process. Spanier, 192 A.3d at 

146-49. Spanier ignores that opinion. He continues to refer to 

§ 5552(c)(3) as a “toll[ing]” provision, Appellant’s Br. 58, 
34

although it is not, 192 A.3d at 148-49. Nor does he explain, 

given Pennsylvania law regarding lesser-included offenses, 

why the complaint failed to put him on notice that § 5552(c) 

might apply. Therefore, Spanier does not show that the 

Superior Court’s reasoning contradicts clearly established 

federal law. The District Court correctly ruled that the statute 

of limitations issue is not a basis for habeas relief.

For these reasons, we will reverse the grant of Spanier’s 

habeas corpus petition.