                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2004

Villot v. Varner
Precedential or Non-Precedential: Precedential

Docket No. 01-1505




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"Villot v. Varner" (2004). 2004 Decisions. Paper 530.
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                         PRECEDENTIAL      3103 Philmont Avenue
                                           Huntingdon Valley, PA 19106
   UNITED STATES COURT OF
          APPEALS                                 Counsel for Appellant
    FOR THE THIRD CIRCUIT

                                           Marilyn F. Murray (Argued)
             No.:01-1505                   Assistant District Attorney
           ______________
                                           Robert M. Falin
          MOSES VILLOT,                    Assistant District Attorney
               Appellant
                                           Thomas W. Dolgenos
                                           Chief, Federal Litigation
                    v.
                                           Ronald Eisenberg
BENJAMIN VARNER; THE DISTRICT              Deputy District Attorney
         ATTORNEY OF
 THE COUNTY OF PHILADELPHIA;               Arnold H. Gordon
        THE ATTORNEY                       First Assistant District Attorney
   GENERAL OF THE STATE OF
       PENNSYLVANIA                        Lynn Abraham
                                           District Attorney
           ________________                Office of District Attorney
     Appeal from the United States         1421 Arch Street
             District Court                Philadelphia, PA 19102
for the Eastern District of Pennsylvania
         (D.C. Civil Action No.                   Counsel for Appellees
              00-cv-05512)
 District Judge: Honorable Eduardo C.
                Robreno
                                                         OPINION

     Argued on October 15, 2003
                                           ROTH, Circuit Judge
   Before: SLOVITER, ROTH and
    STAPLETON, Circuit Judges                     Moses Villot pled guilty to a
                                           general murder charge in exchange for an
                                           agreement by the Commonwealth of
    (Opinion filed June 30, 2004 )         Pennsylvania not to seek the death penalty.
                                            At the sentencing hearing in the Court of
 Stephen J. Binhak, Esquire (Argued)       Common Pleas, Villot was found to have
committed first degree murder and he was            a substantive element to the proof
sentenced to life in prison. The present            necessary to obtain federal relief. A
appeal is from the denial of Villot’s § 2254        habeas petitioner’s inability to meet more
petition for writ of habeas corpus, based           restrictive state standards for relief cannot
on three claims that his plea counsel               result in a forfeiture of his federal
provided ineffective assistance. Villot had         constitutional claims. Accordingly, we
unsuccessfully urged one of these claims            conclude that these two collateral relief
on direct appeal and all three of them in           claims were not procedurally defaulted.
his state petition for collateral relief. The
District Court held that the two claims not                We further hold that Villot’s third
presented until Villot’s state collateral           ineffective assistance claim is not
proceeding were procedurally defaulted              defaulted. Although Villot did not fully
because Villot failed to satisfy 42 Pa.             exhaust this claim on direct appeal, he did
Cons. Stat. § 9543(a)(2)(iii), which                fully exhaust all three claims by
requires petitioners seeking collateral             petitioning the Pennsylvania Supreme
relief from guilty pleas to plead and prove         Court for review of the Superior Court’s
their innocence. The District Court also            denial of collateral relief. Thus, Villot has
held that the claim Villot presented on             invoked “one complete round” of the
direct appeal was procedurally defaulted            normal state appellate review process with
because Villot had failed to seek review in         respect to each claim.1 O’Sullivan v.
the Pennsylvania Supreme Court and
would now be time-barred from doing so.
                                                       1
                                                            An argument could be made that
       A motions panel of this court
                                                    Villot’s third ineffective assistance claim
granted a certificate of appealability asking
                                                    is defaulted, as was determined by the
counsel to specifically address whether the
                                                    Motions Panel in granting a certificate of
innocence provision in § 9543(a)(2)(iii) is
                                                    appealability on only the first two claims.
an independent and adequate state
                                                    Because Villot pursued the issue in the
procedural ground. We now hold that this
                                                    third claim to a further extent in his
provision is a substantive requirement
                                                    direct appeal (i.e., the Superior Court
rather than a procedural rule and cannot,
                                                    considered the ineffective assistance of
therefore, give rise to a procedural default
                                                    counsel claim on the merits of the
of Villot’s federal claims. Under federal
                                                    conflict of interest issue rather than
law, proof of innocence is not a
                                                    simply dismissing for failure to plead and
prerequisite to relief from a guilty plea.
                                                    prove actual innocence) than he did in
The Commonwealth of Pennsylvania has,
                                                    his PCRA petition, and then did not seek
however, tacked on an innocence
                                                    review of this determination by the
provision as a substantive element
                                                    Pennsylvania Supreme Court, the third
necessary to prove in order to obtain relief
                                                    claim could have been dismissed on
from a guilty plea. But a state cannot add
                                                    collateral review under 42 Pa. Const.

                                                2
Boerckel, 526 U.S. 838, 845 (1999).               counsel provided ineffective assistance at
Accordingly, we will reverse the judgment         the degree of guilt hearing due to a conflict
of District Court and remand this case for        of interest. Villot claimed that two of his
consideration of the merits of all of             plea counsel’s former clients were the
Villot’s claims.                                  murder victim and the only eye-witness
                                                  called by the prosecution at the degree of
   II. Facts and Procedural History               guilt hearing. The Superior Court denied
                                                  the appeal and Villot did not seek review
        In October 1990, Moses Villot pled        in the Pennsylvania Supreme Court.
guilty in the Pennsylvania Court of
Common Pleas to the murder of his                        In January 1997, Villot filed a pro
brother-in-law. Following a degree of             se petition for collateral relief under
guilt hearing, Villot was found guilty of         Pennsylvania’s Post-Conviction Relief Act
first-degree murder and sentenced to a            (PCRA), 42 Pa. Cons. Stat. § 9541 et seq,
mandatory term of life imprisonment. 2            claiming that his plea counsel’s ineffective
Shortly thereafter, Villot, represented by        assistance “undermined the truth -
new counsel, filed a timely motion to             determining process” per § 9543(a)(2)(ii)
withdraw his guilty plea, principally             and “unlawfully induced” his guilty plea
arguing that his plea counsel provided            per § 9543(a)(2)(iii).3      Counsel was
ineffective assistan ce.        Fo llowin g
evidentiary hearings in October 1991, the
                                                     3
Court of Common Pleas denied Villot’s                    The PCRA provides that a
motion. Villot appealed to the Superior           petitioner is eligible for relief if he pleads
Court, arguing, inter alia, that his plea         and proves by a preponderance of the
                                                  evidence:

Stat. § 9543(a)(3), as having already                    (2) That the conviction or
been litigated. The Superior Court did                   sentence resulted from one
not, however, dismiss the third claim on                 or more of the following:
this ground and, therefore, for the                             ...
reasons we state in Section IV.C, infra,                 (ii) Ineffective assistance
because the state court did not rely on the              of counsel which, in the
“already litigated” ground for dismissal,                circumstances of the
we will not do so in this appeal as a part               particular case, so
of our consideration of default.                         undermined the truth-
   2                                                     determining process that no
      Villot also pled guilty to two
                                                         reliable adjudication of
weapons offenses. His terms of
                                                         guilt or innocence could
imprisonment for these crimes run
                                                         have taken place.
concurrently with his life sentence for
murder.                                                  (iii) A plea of guilty

                                              3
appointed to represent Villot, but filed a         with his guilty plea in his brief supporting
no-merit letter per Commonwealth v.                his PCRA appeal and held that
Finley, 550 A.2d 213 (Pa. Super. Ct.               “[o]bviously, Appellant is not innocent.” 4
1988). The Court of Common Pleas                   In November 1999, the Pennsylvania
dismissed Villot’s petition without opinion        Supreme Court denied Villot’s petition for
and allowed appointed counsel to                   allowance of appeal.
withdraw.
                                                           In October 2000, Villot filed a 28
       The Superior Court granted Villot           U.S.C. § 2254 petition in the Eastern
the right to appeal this decision nunc pro         District of Pennsylvania, alleging the same
tunc.     Villot raised three ineffective          three ineffective assistance claims he had
assistance claims on appeal. First, he             raised in his PCRA appeal.              The
claimed his plea counsel coerced him into          Magistrate Judge held that Villot’s first
pleading guilty. Second, he claimed that           two claims were procedurally defaulted
his plea counsel failed to adequately              based on the Superior Court’s holding that
interview him prior to advising him to             Villot’s claims were “not cognizable.”
plead guilty. Finally, he reiterated the           The Magistrate Judge held, however, that
conflict of interest claim described above.        Villot’s third claim was insulated from the
In July 1999, the Superior Court affirmed          Superior Court’s holding because that
the dismissal of his PCRA petition. The            claim was properly exhausted on direct
court noted that, pursuant to a 1995               appeal. The Magistrate Judge noted that
amendment, the PCRA now requires a                 Villot failed to petition the Pennsylvania
petitioner seeking relief from his guilty          Supreme Court following the Superior
plea to show not only that the plea was            Court’s denial of his direct appeal, but
“unlawfully induced” but also that he is           held that this was no longer a required step
innocent.       42 Pa. Const. Stat. §              in the exhaustion process for habeas cases
9543(a)(2)(iii).     The court held that           arising in Pennsylvania. The Magistrate
Villot’s claims were “not cognizable”              Judge cited In re: Exhaustion of State
under this section because Villot had failed
to assert his innocence. The court further
noted that Villot admitted facts consistent           4
                                                           While the Superior Court did not
                                                   explicitly address Villot’s request for
                                                   relief under the § 9543(a)(2)(ii)
       unlawfully induced where
                                                   ineffective assistance of counsel
       the circumstances make it
                                                   provision, Villot’s desire to withdraw his
       likely that the inducement
                                                   guilty plea was based on ineffective
       caused the petitioner to
                                                   assistance of counsel. Thus, the Superior
       plead guilty and the
                                                   Court’s ruling necessarily implied that
       petitioner is innocent.
                                                   Villot’s claim was also not cognizable
42 Pa. Cons. Stat. § 9543(a)(2).                   under § 9543(a)(2)(ii).

                                               4
Remedies in Criminal and Post-Conviction                         A motions panel of this court issued
R e l i e f C ases, No . 218 J udicia l                  a certificate of appealability per 28 U.S.C.
Administration Docket No. 1 (Pa. M ay 9,                 § 2253(c) with respect to Villot’s first two
2000) (Order 218) of the Pennsylvania                    ineffective assistance claims but denied the
Supreme Court, which provides that “in all               certificate with respect to the conflict of
appeals from criminal convictions . . . a                interest claim, holding that this claim was
litigant shall not be required to petition for           clearly defaulted.         The certificate
rehearing or allowance of appeal following               specifically sought briefing on whether the
an adverse decision by the Superior Court                Superior Court’s holding that Villot did
in order to be deemed to have exhausted                  not satisfy § 9543(a)(2)(iii)’s innocence
all available state remedies respecting a                requirement constitutes “an ‘independent
claim of error.” See Wenger v. Frank, 266                and adequate’ state law ground
F.3d 218, 224-25 (3d Cir. 2001) (citing                  [precluding] review of [Villot’s] federal
Order 218). Accordingly, the Magistrate                  claims” under the procedural default rule.
Judge considered Villot’s conflict of                    As explained below, our consideration of
interest claim on the merits, and ultimately             Villot’s first two claims requires us also to
recommended that the claim be denied.                    reconsider the motions panel’s earlier
                                                         conclusion that his conflict of interest
         The District Judge adopted the                  claim was defaulted.
M a g i s t r a t e J u d g e ’ s r ep o r t a n d
recommendation with respect to the first                    III. Jurisdiction and Standard of
two claims but held that the conflict of                                 Review
interest claim was also procedurally
defaulted. The District Judge held that                         The District Court exercised
Order 218, issued in May 2000, does not                  jurisdiction over Villot’s habeas petition
apply retroactively and therefore did not                under 28 U.S.C. §§ 2241 and 2254. We
apply to Villot’s direct appeal, which was               have jurisdiction to review the District
denied by the Superior Court in May 1993.                Court’s order denying Villot’s petition
See Wenger, 266 F.3d at 226 (holding that                under 28 U.S.C. § 1291. We exercise
“Order 218 does not apply in cases in                    plenary review over the District Court’s
which the time to petition for review by                 legal conclusions in a habeas proceeding,
the state supreme court expired prior to the             Caswell v. Ryan, 953 F.2d 853, 857 (3d
date of the order”). The District Judge                  Cir. 1992), including its resolution of legal
concluded, therefore, that Villot’s conflict             questions arising from application of the
of interest claim was procedurally                       procedural default doctrine. Hull v. Kyler,
defaulted because the time to petition the               190 F.3d 88, 97 (3d Cir. 1999).
Pennsylvania Supreme Court had long
since expired. In February 2001, the                                  IV. Discussion
District Court dismissed the petition
without reaching the merits.                                    In our order granting Villot’s

                                                     5
request for a certificate of appealability we       miscarriage of justice.” Harris v. Reed,
asked the parties to consider whether the           489 U.S. 255, 262 (1989) (internal
Superior Court’s holding that Villot did            citations omitted). Villot does not claim
not satisfy § 9543(a)(2)(iii)’s innocence           that the “cause and prejudice” or
requirement constitutes “an ‘independent            “fundamental miscarriage of justice”
and adequate’ state law ground                      exceptions excuse his failure to allege and
[precluding] review of [Villot’s] federal           prove his innocence in his PCRA
claims.” We no longer need to address               p r o c ee d i n g a s r e q u ir e d b y §
this issue, however, because we now hold            9543(a)(2)(iii). Further, Villot does not
that the innocence provision is substantive         claim, and there is no basis to speculate,
rather than procedural. By definition, the          that the Superior Court’s holding was
procedural default rule only applies to state       interwoven with or based on federal law; it
procedural rules. We further hold that              is clear that the state court ruling was
Villot’s non-compliance with certain state          “independent.” Rather, the parties focus
procedural rules, not discussed by the              almost exclusively on whe ther §
District Court, also does not support a             9543(a)(2)(iii)’s innocence clause is
finding of procedural default because the           “adequate” to support the Superior Court’s
Superior Court did not rely on these                judgment. See Szuchon v. Lehman, 273
grounds in concluding that Villot’s claims          F.3d 299, 325 (3d Cir. 1999) (stating that
were not cognizable under the PCRA.                 a procedural rule is adequate only if it is
Finally, we hold that Villot properly               “firmly established, readily ascertainable,
exhausted all of his ineffective assistance         and regularly followed”) (citing Ford v.
claims in the PCRA proceeding, and                  Georgia, 498 U.S. 411, 423-24 (1991)).
therefore the District Court must consider          We need not reach this issue, however,
the merits of all of them on remand.                because we now hold that the innocence
                                                    clause is a substantive requirement, not a
A.Because § 9543(a)(2)(iii)’s innocence             procedural rule, and therefore cannot give
requirement is substantive rather than              rise to a procedural default.
procedural, it cannot give rise to
procedural default of Villot’s federal                      Before 1995, § 9543(a)(2)(iii)
claims.                                             required a PCRA petitioner challenging
                                                    the validity of his guilty plea to “plead and
       Under the procedural default rule,           prove” that his plea was “unlawfully
“an adequate and independent finding of             induced where the circumstances make it
procedural default will bar federal habeas          likely that the inducement caused him to
review of the federal claim, unless the             plead guilty.” See Commonwealth v.
habeas petitioner can show cause for the            Banks, 656 A.2d 467, 470 (Pa. 1995)
default and prejudice attributable thereto,         (quoting former provision). Following the
or demonstrate that failure to consider the         1995 amendment to this provision, the
federal claim will result in a fundamental          petitioner must now also “plead and

                                                6
prove” that circumstances make it likely             the substantive nature of the latter
that “the petitioner is innocent.” 42 Pa.            requirement. Second, the state implies that
Cons. Stat. § 9 543 (a)(2)(iii);                     Villot could have satisfied the innocence
Commonwealth v. Michael, 755 A.2d                    requirement simply by asserting his
1274, 1277 (Pa. 2000) (citing current                innocence with no intention of actually
provision). This clause plainly adds a               demonstrating his lack of guilt. We reject
substantive element to Pennsylvania’s test           this bizarre position, which ignores the
for obtaining collateral relief from guilty          plain language of the statute and would
pleas. Substantive law “creates, defines,            reduce the innocence requirement to a
and regulates rights and duties of parties.”         meaningless formality. Finally, the state
Black’s Law Dictionary 1429 (6 th ed.                ignores the remainder of the Superior
1990).     In contrast, procedural law               Court’s opinion, in which the court noted
“prescribes method[s] of enforcing rights            certain admissions in Villot’s brief and
or obtaining redress for their invasion.”            held that Villot was “[o]bviously . . . not
Id. at 1203. The Pennsylvania legislature            innocent.” Thus, the Superior Court
amended the definition of a PCRA                     reached the merits of Villot’s claim by
petitioner’s right to collateral relief by           holding that he could not satisfy the
adding a new element, the innocence                  innocence requirement.
requirement.
                                                            Furthermore, the innocence
        Granted, given the structure of the          requirement makes Pennsylvania’s test for
statute defining eligibility for PCRA relief,        evaluating ineffective assistance claims
any substantive addition creates a                   related to guilty pleas more restrictive than
corresponding procedural addition. The               the federal test. 5 A § 2254 petitioner who
first sentence of the act requires petitioners
to “plead” as well as “prove” certain facts,
including, of course, the claimed error.                5
                                                            We note that ineffective
See 42 Pa. Cons. Stat. § 9543(a). At oral
                                                     assistance claims based on the
argument the state relied on this general
                                                     performance or advice of plea counsel
pleading requirement to argue that the
                                                     may now be raised in PCRA proceedings
innocence provision is procedural rather
                                                     under subsection (a)(2)(ii), which does
than substantive. Specifically, the state
                                                     not require assertion or proof of
noted that the Superior Court deemed
                                                     innocence. At the time of the Superior
Villot’s PCRA appeal “not cognizable”
                                                     Court’s ruling on Villot’s PCRA appeal
because he failed to allege his innocence.
                                                     in July 1999, however, Pennsylvania’s
First, this argument conflates the pleading
                                                     lower courts had consistently held that
requirement in the first sentence of § 9543
                                                     ineffective assistance claims relating to
with the innocence requirement at
                                                     guilty pleas were not cognizable under
subsection (a)(2)(iii); the fact that the
                                                     subsection (a)(2)(ii) because guilty pleas
former rule is procedural does not change
                                                     did not implicate the “truth-determining

                                                 7
claims that his counsel’s ineffective              proceeded to trial instead of pleading
assistance caused him to enter an                  guilty.” United States v. Nahodil, 36 F.3d
involuntary or unknowing plea may obtain           323, 326 (3d Cir. 1994) (citing Hill v.
collateral relief regardless of whether he         Lockhart, 474 U.S. 52, 59 (1985)). In
asserts or proves his innocence. To                Nahodil, we indicated that a petitioner’s
prevail, the petitioner must establish “that       past assertions of innocence may help
(i) his or her counsel’s representation fell       substantiate his claim that he would have
below an objective standard of                     proceeded to trial but for his counsel’s
reasonableness demanded of attorneys in            errors, 36 F.3d at 326-27, but we have
criminal cases; and (ii) there is a                never suggested that a failure to assert or
reasonable probability that, but for               prove innocence precludes a finding of
counsel’s errors, he or she would have             prejudice. Thus, by requiring a PCRA
                                                   petitioner to “plead and prove” his
                                                   innocence to obtain collateral relief from
                                                   his guilty plea, subsection 9543(a)(2)(iii)
process.” See Commonwealth v.
                                                   tacks on an additional substantive element
Woodrow, 743 A.2d 458, 460 (Pa. Super.
                                                   on top of those required by federal law.
Ct. 1999); Commonwealth v.
Laszczynski, 715 A.2d 1185, 1187-88
                                                           The procedural default rule is an
(Pa. Super. Ct. 1998); Commonwealth v.
                                                   application of the independent and
Shekerko, 639 A.2d 810, 813 (Pa. Super.
                                                   adequate state ground doctrine.         See
Ct. 1994). The Superior Court’s decision
                                                   Coleman v. Thompson, 501 U.S. 722, 729-
in Villot’s case explicitly relied on
                                                   30 (1991). Under this doctrine, federal
Laszczynski, and the Pennsylvania
                                                   courts “will not review a question of
Supreme Court denied Villot’s petition
                                                   federal law decided by a state court if the
for allowance of appeal. However,
                                                   decision of that court rests on a state law
though too late to help Villot, the court
                                                   ground that is independent of the federal
later overruled this line of decisions in
                                                   question and adequate to support the
Dadario v. Goldberg, holding that
                                                   judgment.” Id. at 729 (citations omitted).
subsection (a)(2)(ii) encompassed “all
                                                   While the independent and adequate state
constitutionally-cognizable claims of
                                                   ground doctrine applies whether the state
ineffective assistance of counsel,”
                                                   law ground is substantive or procedural,
including ineffective assistance claims
                                                   id., the procedural default rule applies, by
related to the defendant’s decision to
                                                   definition, only to procedural rules. “The
plead guilty or not. 773 A.2d 126, 127-
                                                   [procedural default] doctrine applies to bar
28, 130-31 (Pa. 2001); see also
                                                   federal habeas when a state court declined
Commonwealth v. Hickman , 799 A.2d
                                                   to address a prisoner’s federal claims
136, 141 (Pa. Super. Ct. 2002) (holding
                                                   because the prisoner had failed to meet a
that PCRA will afford relief if ineffective
                                                   state procedural requirement. In these
assistance of counsel caused defendant to
                                                   cases, that state judgment rests on
enter involuntary guilty plea).

                                               8
independent and adequate procedural                    jurisdictional limits).
grounds.” Id. (emphases added). This
distinction between procedural and                             In fact, an interpretation of the
substantive rules is perfectly consistent              procedural default rule that extended to
with the procedural default rule’s                     state substantive restrictions on federal
rationale, which is that state courts should           claims would violate the supremacy
not be deprived of an opportunity to                   clause. See U.S. Const. art. VI. The states
correct their own errors by the habeas                 have no obligation to provide collateral
petitioner’s failure to abide by the state’s           relief to convicted criminals at all, see
reasonable procedural rules:                           Pennsylvania v. Finley, 481 U.S. 551, 557
                                                       (1987) (citation omitted), and the relief
       Just as in those cases in                       they elect to provide need not be co-
       which a state prisoner fails                    extensive with that provided by federal
       to exhaust state remedies, a                    statutory or constitutional law. Thus, the
       habeas petitioner who has                       Pennsylvania legislature was free to set a
       failed to meet the State’s                      higher bar for collateral relief from guilty
       procedural requirements for                     pleas than federal law provides.6 A
       presenting his federal claims                   holding that the procedural default rule
       has deprived the state courts                   applies in this case, however, would
       of an opportunity to address                    effectively impose Pennsylvania’s extra-
       those claims in the first                       constitutional restrictions on collateral
       instance.                                       relief on federal habeas proceedings
                                                       despite 28 U.S.C. § 2254(a), which
Id. at 731-32 (emphasis added); see also               authorizes relief whenever a prisoner is
Rose v. Lundy, 455 U.S. 509, 518-19                    held in custody “in violation of the
(1982) (articulating similar rationale).               Constitution or laws or treaties of the
How ever, when a state tacks on                        United States.”
substantive additions to federal claims, it is
the state itself that has forfeited its                       Accordingly, we do not need to
opportunity to consider the federal claims             determine whether the Superior Court’s
of the class of petitioners who cannot                 application of § 9543(a )(2)(iii)’s
satisfy the additional state-created                   innocence requirement satisfies the
s u b s t a n t iv e r e q u i r e m e n t . The       “independent and adequate” state ground
considerations of comity and federalism                test because, even assuming it does, it
underlying the procedural default rule have
no application in such cases.                See
Coleman, 501 U.S. at 730 (explaining that                 6
                                                               Of course, the scope of relief
application of independent and adequate
                                                       provided must be consistent with the
state ground rule in habeas is grounded in
                                                       state’s own constitutional law, but that
comity and federalism concerns, not
                                                       issue is not before the court.

                                                   9
cannot foreclose federal habeas review of             defaulted under § 9543(a)(3), but we reject
Villot’s ineffective assistance claims.               this argument because the Superior Court
                                                      did not rely on § 9543(a)(3) in denying
B.Villot’s habeas petition is not                     Villot’s PCRA appeal.
procedurally defaulted because of his
non-compliance with § 9543(a)(3).                             First, it seems clear that the
                                                      Superior Court could have held that some
        Section 9543(a)(2)(iii) provided a            or all of Villot’s PCRA claims were either
substantive basis for the Superior Court’s            previously litigated or waived. There is no
holding that Villot’s claims were “not                doubt that Villot’s conflict of interest
cognizable” under the PCRA. However, it               claim was previously litigated in both
appears that the Superior Court could have            Villot’s motion to withdraw his guilty plea
also denied relief on procedural grounds.             and on direct appeal. Next, Villot’s claim
Specifically, the court could have held that          that his plea counsel failed to adequately
Villot failed to comply with 42 Pa. Const.            interview him and investigate his case
Stat. § 9543(a)(3), which provides that a             could have been deemed waived by the
PCRA petitioner must plead and prove                  Superior Court because it was not raised
“[t]hat the allegation of error has not been          before the trial court or on direct appeal.8
previously litigated or waived.” 7 Although
the state does not rely on § 9543(a)(3)
directly, in both its brief and at oral                  8
                                                             Until recently, defendants in
argument it placed great emphasis on its
                                                      Pennsylvania had to raise any ineffective
contention that Villot waived two of his
                                                      assistance claims “at the earliest stage in
ineffective assistance claims by failing to
                                                      the proceedings at which the counsel
raise them prior to his PCRA proceeding.
                                                      whose effectiveness is being challenged
We treat this as an argument that Villot’s
                                                      no longer represents the defendant,” or
claims should be considered procedurally
                                                      else these claims would be considered
                                                      waived. Commonwealth v. Hubbard,
                                                      372 A.2d 687, 695 n.6 (Pa. 1977).
   7
        A claim has been previously                   Because Villot obtained new counsel
litigated if “the highest court in which              before he made his motion to withdraw
the petitioner could have had review as a             his guilty plea, he was obligated to raise
matter of right has ruled on the merits of            any ineffective assistance claims in that
the issue.” 42 Pa. Cons. Stat. §                      motion. The Pennsylvania Supreme
9544(a)(2). A claim has been waived “if               Court overruled Hubbard in 2002,
the petitioner could have raised it but               holding that “as a general rule, a
failed to do so before trial, at trial, during        petitioner should wait to raise claims of
unitary review, on appeal or in a prior               ineffective assistance of trial counsel
state postconviction proceeding.” Id. at §            until collateral review.” Commonwealth
9544(b).                                              v. Grant, 813 A.2d 726, 738 (Pa. 2002).

                                                 10
Finally, with respect to Villot’s claim that         If the state is correct, this claim could also
his plea counsel coerced him into pleading           have been deemed “previously litigated.”
guilty, the state argues that this is just a         If the state is incorrect and this claim is
variation on his conflict of interest claim.9        considered distinct, the Superior Court
                                                     might have held that this claim was waived
                                                     because Villot did not raise it in his motion
“Thus, any ineffectiveness claim will be             to withdraw his guilty plea or on direct
waived only after a petitioner has had the           appeal.
opportunity to raise that claim on
collateral review and has failed to avail                   Thus, if the Superior Court had
himself of that opportunity.” Id. The                barred review of some or all of Villot’s
court also held that the new rule would              claims on the basis of § 9543(a)(3) rather
be applied retroactively to cases currently          than, or in addition to, its ruling based on
pending on direct appeal in which                    § 9543(a)(2)(iii), it could be argued that
ineffective assistance claims had been               the procedurally barred claims were
raised and preserved, but not to cases               defaulted for purposes of federal habeas
pending on collateral review. Id. at 738-            review.10 However, “a federal claimant’s
39 & n.16. Of course, Villot’s direct and            procedural default precludes federal
collateral state proceedings had long                habeas review . . . only if the last state
been closed by the time Grant was                    court rendering a judgment in the case
issued, so the new rule has no application           rests its judgment on the procedural
here.                                                default.” 11 Harris v. Reed, 489 U.S. 255,
   9
        Villot’s counsel does not explain
the basis of this claim in his briefing to
                                                     the exact claims themselves. See
this court, but the gist of the claim can be
                                                     Commonwealth v. Carpenter, 725 A.2d
gleaned from Villot’s pro se brief in the
                                                     154, 166-67 (Pa. 1999) (citation
district court and the M agistrate Judge’s
                                                     omitted).
report and recommendation. Villot
claims that his plea counsel pressured                  10
                                                            This statement is qualified
him to plead guilty so that counsel could            because we cannot and need not
avoid cross-examining Adam Romero,                   definitively state that Villot could not
the chief prosecution witness and                    have raised any valid objections to
counsel’s former client, at trial. If this is        application of the procedural default rule
the extent of Villot’s claim, it is simply a         had the Superior Court relied on §
re-statement of Villot’s conflict of                 9543(a)(3) to deny his PCRA appeal.
interest claim. The Pennsylvania
                                                        11
Supreme Court has held that the                              This rule is inapplicable where the
“previously litigated” prong of                      state court has not been presented with
subsection (a)(3) bars simple variations             the federal claim. Harris, 489 U.S. at
of previously litigated claims as well as            263 n.9. In that event, the federal habeas

                                                11
262 (1989) (emphasis added). If the state             the Pennsylvania Supreme Court’s refusal
court does not actually enforce the                   to review the Superior Court’s order is
procedural rule in question, the “federal             presumed to rest on the same ground.
court implies no disrespect for the state by          Comity does not require, nor would it
entertaining the claim.” County Court of              justify, any endeavor by this Court to
Ulster County, N.Y. v. Allen, 442 U.S. 140,           substitute an unmentioned procedural
154 (1979); see also Smith v. Freeman,                ground in place of subsection (a)(2)(iii) in
892 F.2d 331, 336 (3d Cir. 1989) (relying             order to hold Villot’s claims procedurally
on Harris and Ulster to hold that a claim             defaulted in federal court.
was not procedurally barred under a
certain state procedural rule where the               C.Villot’s conflict of interest claim was
Pennsylvania courts did not rely on this              not defaulted because of the manner in
rule and addressed the merits of the                  which it was concluded by the state in
petition instead). The Superior Court’s               the PCRA proceeding.
opinion rejecting Villot’s PCRA appeal
rests exclusively on subsection (a)(2)(iii),
and does not mention § 9543(a)(3) or any                      In its order granting Villot’s
other procedural basis for its ruling.12              certificate of appealability with respect to
Under the presumption established in Ylst             two of his ineffective assistance claims,
v. Nunnemaker, 501 U.S. 797, 803 (1991),              the motions panel denied the certificate
                                                      with respect to his ineffective assistance
                                                      claim based on an alleged conflict of
court may hold the claim procedurally                 interest. The motions panel agreed with
defaulted “if it is clear that the state court        the District Court that this claim was
would hold the claim procedurally                     procedurally defaulted because Villot
barred.” Id. But since the PCRA courts                failed to fully exhaust it on direct appeal
were presented with Villot’s federal                  by seeking review in the Pennsylvania
claims, the Harris rule and not its                   Supreme Court and would now be time-
exception applies.                                    barred from doing so.         That ruling,
   12
                                                      however, failed to account for the fact that
        In contrast, in Cabrera v. Barbo,             Villot presented this same claim, along
175 F.3d 307, 310-13, (3d Cir. 1999),                 with his other two ineffective assistance
the case principally relied on by the state           claims, to Pennsylvania’s highest court
at oral argument, the New Jersey state                following the Superior Court’s denial of
courts explicitly relied on a state waiver            his PCRA appeal. We now hold that all
rule in denying a prisoner’s state petition           three of Villot’s ineffective assistance
for post-conviction relief. Therefore,                claims were properly exhausted during the
Cabrera’s holding that the prisoner’s
claims were procedurally defaulted in
federal court is inapplicable to the instant
case.

                                                 12
PCRA proceedings. 13                                      Before a federal court may grant a
                                                   § 2254 habeas petition, the state prisoner
                                                   must exhaust his available state court
   13                                              remedies.      28 U.S.C. § 2254(b)(1);
        We may not consider issues on
                                                   O’Sullivan, 526 U.S. at 842.           “The
appeal that are not within the scope of
                                                   exhaustion doctrine is designed to give the
the certificate of appealability (COA).
                                                   state courts a full and fair opportunity to
28 U.S.C. § 2253(c)(3); Third Circuit
                                                   resolve federal constitutional claims before
Local Appellate Rule 22.1(b); Miller v.
                                                   those claims are presented to the federal
Dragovich, 311 F.3d 574, 577 (3d Cir.
                                                   courts.” Id. at 845. The prisoner typically
2002); Hiivala v. Wood, 195 F.3d 1098,
                                                   exhausts his federal claims by fairly
1102-03 (9th Cir. 1999). However, the
                                                   presenting each claim at each stage of the
merits panel may expand the scope of the
                                                   state’s established appellate review
COA beyond the scope announced by the
                                                   process. Id. However, when the state
motions panel. See 3d Cir. LAR 22.1(b);
                                                   refuses to consider the merits of the
Hiivala, 195 F.3d at 1103-04 (explaining
                                                   prisoner’s claims because the petitioner
that the “law of the case” doctrine does
                                                   has failed to comply with the state’s
not preclude the merits panel from
                                                   procedural requirements, his claim is
expanding the scope of a COA granted
                                                   nonetheless technically exhausted because
by the motions panel because the proper
                                                   “there is an absence of available State
scope of a COA is a jurisdictional issue).
                                                   corrective process,” 28 U .S.C . §
The fact that Villot did not request
                                                   2254(b)(1)(B)(I), despite the fact that the
expansion is not controlling — the merits
                                                   petitioner has “deprived the state courts of
panel may expand the COA sua sponte.
                                                   an opportunity to address [the federal]
See 3d Cir. LAR 22.1(b) (contemplating
                                                   claims in the first instance. Coleman, 501
sua sponte expansion); United States v.
                                                   U.S. at 732. Thus, the procedural default
Morgan, 244 F.3d 674, 675 (8th Cir.
                                                   rule avoids frustration of the purpose
2001) (en banc) (holding that Eighth
                                                   behind the exhaustion requirement by
Circuit hearing panel may “consider sua
sponte issues beyond those specified in a
certificate of appealability, whether the
certificate was issued by a district court         claim. We note that while our expansion
or by an administrative panel of [the              of the COA in this case is technically sua
Eighth Circuit]”); cf. Robinson v.                 sponte because Villot did not ask us to
Johnson, 313 F.3d 128, 133 (3d Cir.                revisit the motion panel’s ruling denying
2002) (citing Dunn v. Colleran, 247 F.3d           the COA as to his conflict of interest
450, 456 (3d Cir.2001), for the                    claim, the effect of our revision is simply
proposition that a district court may grant        to consider each of Villot’s claims on the
a COA sua sponte). Accordingly, we                 basis of the same legal theory, not to
exercise our discretion to expand the              include a new issue not envisioned by the
COA to cover Villot’s conflict of interest         parties.

                                              13
precluding federal review of procedurally             other two claims to the Pennsylvania
barred claims unless the petitioner can               Supreme Court following the Superior
establish “cause and prejudice” or a                  Court’s denial of his PCRA appeal. A
“fundamental miscarriage of justice” to               prisoner is only required to invoke “one
excuse the procedural default.       Id.;             complete round” of the state’s established
Whitney v. Horn, 280 F.3d 240, 250 (3d                appellate process to satisfy the exhaustion
Cir. 2002) (citation omitted).                        requirement, O’Sullivan, 526 U.S. at 845
                                                      (emphasis added), and Villot did so during
       The District Court correctly ruled
                                                      his PCRA proceedings.
that Villot did not fully exhaust his conflict
of interest claim on direct appeal because                   If § 9543(a)(2)(iii)’s innocence
he did not petition the Pennsylvania                  provision were procedural rather than
Supreme Court for review of the Superior              substantive, then the District Court’s
Court’s denial of his appeal.14 However,              ruling would have been correct. As
Villot presented both this claim and his              explained above, a procedurally barred
                                                      claim is technically exhausted but not
                                                      properly exhausted because the state
   14
        In O'Sullivan the Supreme Court               courts are not given a fair opportunity to
held that AEDPA’s exhaustion                          address the federal claim on the merits.
provisions require state prisoners to “file           See O’Sullivan, 526 U.S. at 848. If §
petitions for discretionary review when               9543(a)(2)(iii)’s innocence provision were
that review is part of the ordinary                   a procedural bar then Villot would have
appellate review procedure in the State.”             lost his only opportunity to properly
526 U.S. at 847. In May 2000 the                      exhaust his federal claims when he failed
Supreme Court of Pennsylvania issued                  to petition the state’s highest court
Order 218 which endeavored to eliminate               following his direct appeal. Because we
petitions for discretionary review from               have held that this provision is substantive,
the ordinary appellate review procedure.              however, see supra Part IV.A., and
See Wenger v. Frank, 266 F.3d 218, 220,               because the Superior Court did not deny
224-25 (3d Cir. 2001) (providing text of              Villot’s PCRA appeal on any procedural
Order 218). As was the case in Wenger,                ground, see supra Part IV.B., we hold that
we need not consider the effect of Order              Villot properly exhausted his ineffective
218 on AEDPA’s exhaustion                             assistance claims by presenting them to the
requirement in this case because Villot’s             state’s highest court during his PCRA
time to petition for discretionary review             proceedings.
elapsed years before the date of the
                                                                    V. Conclusion
order. See 266 F.3d at 226 (“Order 218
does not apply in cases in which the time                    For the reasons stated above, we
to petition for review by the state                   will reverse the District Court’s dismissal
supreme court expired prior to the date of            of Villot’s habeas petition and remand this
the order.”)

                                                 14
case for consideration of the merits of all
three of Villot’s claims.15




   15
        The state has invited us to address
the merits of Villot’s claims in the first
instance on appeal should we decide, as
we have, that Villot’s claims were not
defaulted. The state argues that we have
the power to address the merits in the
first instance under 28 U.S.C. §
2254(b)(2), which authorizes federal
courts to deny habeas petitions on the
merits “notwithstanding the failure of the
applicant to exhaust the remedies
available in the courts of the State.”
Although § 2254(b)(2) does not, by its
terms, apply to the procedural default
context, in Hameen v. Delaware, 212
F.3d 226, 251-52 (3d Cir. 2000), we
relied on this section to reach the merits
of a habeas petition rather than consider
whether the issue had been procedurally
defaulted in the state courts. However,
we need not decide whether we can or
should follow the state’s suggestion,
because the record on appeal is
insufficient to permit a thorough review
of Villot’s claims. We have not been
provided with a transcript of the
evidentiary hearing held in the Superior
Court on Villot’s motion to withdraw his
guilty plea. Further, the transcript of the
degree of guilt hearing is incomplete —
specifically, the pages of the transcript
containing the testimony of Adam
Romero, witness for the prosecution and
Villot’s plea counsel’s former client, are
missing.

                                              15
