                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-8-2007

Nara v. Frank
Precedential or Non-Precedential: Precedential

Docket No. 05-4779




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                    No. 05-4779
                    ___________

                  JOSEPH NARA

                         v.

               FREDERICK FRANK,

                      Appellant
                    ___________

    On Appeal from the United States District Court
         for the Western District of Pennsylvania
                 (D.C. No. 99-cv-00005)
  District Judge: The Honorable Terrence F. McVerry
                      ___________

           ARGUED OCTOBER 26, 2006

BEFORE: SMITH, WEIS, and NYGAARD, Circuit Judges.


                 (Filed May 8, 2007)
                     __________
Christopher D. Carusone, Esq. (Argued)
Office of the Attorney General of Pennsylvania
Appeals and Legal Services
Strawberry Square
Harrisburg, PA 17120
       Counsel for Appellant


Lisa B. Freeland, Esq. (Argued)
Office of the Federal Public Defender
1001 Liberty Avenue
1450 Liberty Center
Pittsburgh, PA 15222
       Counsel for Appellee

                         ___________

                 OPINION OF THE COURT
                      ___________


NYGAARD, Circuit Judge.

        In Nara v. Frank, 264 F.3d 310 (3d Cir. 2001), we held
that the equitable tolling doctrine might allow the District Court
to consider Joseph Nara’s otherwise untimely habeas corpus
petition. Upon remand, the District Court found equitable tolling
applicable, and granted Nara’s petition based upon his claim that
he was mentally incompetent when he pleaded guilty to
murdering his wife and mother-in-law. The Commonwealth
appealed. We will affirm.

                                2
               I. Factual and Procedural History

               A. Conviction and Incarceration

        Joe Nara’s wife, DeLorean Churby, left him. Over the
next few weeks, Nara grew despondent and visited the Fayette
Community Mental Health Center on an outpatient “crisis”
basis. Nara attempted suicide by taking an overdose of sleeping
tablets and remained unconscious for two days in the hospital.
He was then involuntarily committed to the Connellsville State
General Hospital and treated with anti-depressants and an anti-
psychotic tranquilizer.

        After four days at Connellsville, Nara was released. Soon
thereafter, Nara discovered love letters between Churby and
Pennsylvania State Trooper Leonard Maharowski. Nara argued
with his wife over the telephone, and she taunted him with
details of her affair. Enraged, Nara drove to confront her at her
mother’s trailer.

       When he arrived and knocked on the trailer’s door,
Churby’s mother aimed a shotgun in his face and told him to
leave. Infuriated, Nara went to his car and got his pistol. He
returned to the house, shot the door’s lock and burst in. Again,
Churby’s mother aimed the shotgun at him, and his wife
repeatedly struck him with a telephone. Amid the struggle, Nara
shot and killed both women.

        Nara fled to North Carolina. Within a day, however, he
made several calls to the Pennsylvania State Police and to his
father, and admitted he killed the Churbys. He turned himself in

                               3
and was returned to Pennsylvania to face two charges of first-
degree murder. He was then confined at the Fayette County
prison.

       Nara’s family retained attorney Charles Gentile as
counsel. His family grew fearful that he would harm himself in
prison, and John Walton of the Fayette County Mental Health
Center advised Gentile that Nara was in need of immediate
evaluation and help. Gentile filed a petition under the
Pennsylvania Mental Health Act, 50 PA. STAT. ANN. § 4407-
4411, requesting that the Fayette County Court of Common
Pleas transfer Nara to Mayview State Hospital for psychiatric
evaluation and commitment because he was a risk of harm to
himself or others. Gentile did not seek an evaluation to establish
Nara’s competency to stand trial or to assess his sanity at the
time of the killings. Fayette County Common Pleas Judge
Richard Cicchetti granted Gentile’s motion and transferred Nara
to Mayview.

       At Mayview, Duncan Campbell, M.D., decided that Nara
should be observed, but did not place him on any routine
medication. Later that day, staff psychologist James T. Nelson
and an associate, David Bert, evaluated Nara more closely. They
recommended suicide precautions and treatment for depression.

         Just four days later, staff psychologist Lilian Meyers,
Ph.D., reported that Nara was neither mentally ill nor in need of
treatment. She did not comment on Nara’s competency to stand
trial or his sanity at the time of the killings. However, she noted
the “seriousness” of the accusations against him and allegations
that he planned to escape, and recommended Nara be transferred

                                4
back to the county prison. He was transferred back to the prison,
where he remained untreated for the next four months.

       On June 20, 1984, Nara appeared before Fayette County
Court of Common Pleas Judge William J. Franks and pleaded
guilty to two counts of murder in the first degree. During an
exhaustive 85-minute colloquy, Nara admitted he “really did
intentionally kill” his wife, denied having been treated for any
mental or emotional illnesses, and repeatedly affirmed his
understanding of the proceedings. On July 13, 1984, Judge
Franks sentenced Nara to two concurrent life sentences. Nara
did not file a direct appeal to the Pennsylvania Superior Court.

        The court transferred Nara to the State Correctional
Institution at Pittsburgh (SCIP). SCIP officials immediately
placed Nara at the facility’s medical unit “for psychiatric
reasons,” placed a leg restraint on him to reduce the risk of
suicide, and treated him with anti-depressants and anti-psychotic
medications. An attending physician noted Nara had “intense
suicidal ideation of severe proportions,” and Nara told him he
attempted to hang himself at the county prison following his
arrest. Within three weeks, SCIP officials initiated involuntary
commitment proceedings. On September 10, 1984 – eighty-two
days after the plea colloquy – Nara was committed to Farview
State Hospital as a suicide risk. Nara spent 90 days at Farview,
and then returned to SCIP’s medical facility.

       On February 19, 1985, Nara again attempted suicide and
was recommitted to Farview. He remained there for about a year
and a half, and was then returned to prison.



                               5
              B. State Post-Conviction Proceedings

            1. First Post-Conviction Relief Proceeding

       On April 25, 1988, Nara filed a pro se petition and brief
for post-conviction relief under the Pennsylvania Post
Conviction Hearing Act (PCHA).1 In his brief, Nara claimed (1)
the court violated his constitutional rights by accepting his pleas
while he was mentally incompetent; and (2) his trial counsel,
Gentile, was ineffective for failing to have his competency
evaluated. Judge Franks appointed Fayette County Public
Defender Richard E. Bower to represent Nara and held
evidentiary hearings at which Nara, his father, his two brothers,
and Attorney Gentile testified. After the hearings, Judge Franks,
treating the petition as alleging only ineffective assistance of
counsel, concluded that Gentile was not ineffective, and denied
the petition.2 Bower filed an appeal on Nara’s behalf to the
Superior Court raising only his ineffective assistance of counsel
claim. The Superior Court denied Nara’s appeal for failing to
conform to the newly-enacted PCRA, 42 PA. STAT. ANN.




       1.
          The Pennsylvania legislature replaced the PCHA with
the Post Conviction Relief Act (PCRA) 12 days before Nara
filed his petition. Nara’s appointed counsel, Mr. Bower, did not
amend Nara’s petition to comply with the PCRA.
       2.
       We previously noted Franks’ apparent error in Nara v.
Frank, 264 F.3d 310, 312 (3d Cir. 2001), overruled in part,
Carey v. Saffold, 536 U.S. 214 (2002).

                                6
§9543.3 Bower ended his representation of Nara, and Nara filed
a pro se petition for allowance of appeal in which he re-asserted
his incompetency claim and his ineffective assistance of counsel
claim. The Pennsylvania Supreme Court denied his pro se
petition for allocatur.

            2. Second Post-Conviction Relief Proceeding

        On May 15, 1990, Nara filed a pro se PCRA petition in
which he alleged his guilty plea was “unlawfully induced,” and
that his first PCRA counsel was ineffective because he failed to
amend his petition to comply with the PCRA, failed to seek
allocatur, and failed to preserve state and federal constitutional
claims for federal habeas review. Judge Franks appointed Mark
Morrison, Esq.,4 to represent Nara and allowed Nara to amend
his petition to specifically claim that he was mentally
incompetent when he pleaded guilty. Judge Franks held hearings
on Nara’s incompetency claim and heard testimony from him
and Dr. Jobindar Harika,5 a forensic psychiatrist who met with


       3.
        The Superior Court held that Nara failed to argue that
Gentile’s alleged errors undermined the reliability of his
conviction or how those errors harmed him. Appendix at 433.
       4.
       Morrison represented Nara before the PCRA court, the
Superior Court, the Pennsylvania Supreme Court, and the
United States Supreme Court.
       5.
        At the time, Dr. Harika had worked in psychiatry for
eight years. He spent four years at the Behavioral Clinic of
                                               (continued...)

                                7
Nara and thoroughly reviewed his medical records. Harika
opined that Nara was probably “psychotic” and incapable of
entering a plea. The Commonwealth did not present rebuttal
testimony. Judge Franks, in a memorandum opinion, concluded
Nara was incompetent when he pleaded guilty, based on “the
totality of the circumstances,” and Harika’s “quite convincing”
and “unrebutted testimony.”6 Judge Franks issued an order
allowing Nara to withdraw his guilty pleas, and the
Commonwealth appealed.

       On April 30, 1992, the Superior Court reversed, vacated
Judge Franks’ order, and reinstated Nara’s guilty pleas. The
Superior Court held that Nara (1) waived his incompetency
claim by failing to raise it in his first post-conviction petition



       5.
       (...continued)
Allegheny County, two years on staff at the Woodward State
Hospital, and spent four years as a director at the Forensic State
Hospital from 1986-1990. Harika was also a consultant to the
Cambria County Jail, the Westmoreland Correction Center, the
Somerset County Jail, and the Fayette County Prison. He
previously testified in Pittsburgh and Washington county
proceedings.
       6.
       Under Pennsylvania law, once a plea has been entered
and sentence imposed, a guilty plea may be withdrawn on a
showing of manifest injustice, which may be established if the
plea was not knowingly and voluntarily given. Com. v. Leidig,
850 A.2d 743, 746 (Pa. Super. 2004); Com. v. Starr, 301 A.2d
592, 595 (Pa. 1973).

                                8
pursuant to PCRA §9544(b);7 (2) failed to show his claim was
not previously litigated and not waived pursuant to PCRA
§9543(a)(3); and (3) waived his right to withdraw his guilty
pleas by failing to challenge their validity within ten days,
according to PA. R. CRIM. P. 321 (now PA. R. CRIM. P. 720).
Nara appealed. The Pennsylvania Supreme Court denied
allocatur and the United States Supreme Court denied
certiorari.8

            3. Third Post-Conviction Relief Proceeding

       On December 21, 1995, Nara filed a third pro se petition,
alleging, inter alia, that he was incompetent when he entered his
guilty plea. Judge Franks appointed Phyllis Jin, Esq., to
represent Nara. Franks permitted Nara to withdraw his third
PCRA petition in favor of a motion to withdraw his guilty pleas
nunc pro tunc. Judge Franks, following the Superior Court’s
previous ruling, found Nara waived his incompetency claim
because he failed to challenge his guilty plea within ten days of
making it, and denied the motion. Nara appealed, claiming he
should have been allowed to withdraw his guilty pleas nunc pro
tunc because Judge Franks had previously found him




       7.
          As noted supra, Nara raised his incompetency claim in
his first pro se petition, but Judge Franks failed to address it.
       8.
        Nara raised his incompetency claim in his petition for
allowance of appeal, Appendix at 830, and in his petition for
certiorari, Id. at 586.

                                9
incompetent.9 Appendix at 664. The Superior Court affirmed,
and the Pennsylvania Supreme Court denied allocatur.

            C. Federal Habeas Corpus Proceedings

       On December 12, 1998, Nara filed a pro se petition for
a writ of habeas corpus in the U.S. District Court for the
Western District of Pennsylvania. The District Court referred the
case to Magistrate Judge Francis X. Caiazza, who issued a
report and recommendation (R&R) recommending that the
District Court dismiss Nara’s petition because Nara failed to file
his petition within the Anti-Terrorism and Effective Death
Penalty Act’s one-year statute of limitations. See 28 U.S.C.A.
§2244(d) (2006). Over Nara’s objections, the District Court
adopted the R&R and denied his petition as untimely.

        Nara appealed, and we remanded the cause to the District
Court for a hearing on whether Nara’s “ongoing periods of
mental incompetence” and allegations that Ms. Jin abandoned
him following his appeal to the Pennsylvania Supreme Court,
justified equitably tolling the statute of limitations. Nara v.
Frank, 264 F.3d 310 (3d Cir. 2001), overruled in part, Carey v.
Saffold, 536 U.S. 214 (2002).

       Magistrate Judge Caiazza held evidentiary hearings on
the matter and found Ms. Jin “affirmatively misled” Nara and
thereby prevented him from timely filing his petition for habeas
corpus. Nara v. Frank, No. 99-5, 2004 WL 825858 (W.D.Pa.

       9.
        Nara made the same claim to the Pennsylvania Supreme
Court. Appendix at 706.

                               10
March 10, 2004). Magistrate Judge Caiazza filed an R&R
recommending that the limitations period be equitably tolled,
and the Commonwealth did not file objections. On April 8,
2004, the District Court adopted the R&R and Nara filed an
amended petition for a writ of habeas corpus. The
Commonwealth answered, and both parties submitted
supplemental briefs to the District Court.

       On September 1, 2005, Magistrate Judge Caiazza filed an
extensive R&R in which he concluded (1) Nara exhausted his
incompetency claim by “fairly presenting” it to each level of the
Pennsylvania judiciary; (2) his incompetency claim was not
procedurally defaulted; (3) the second PCRA court’s conclusion
that Nara was incompetent to plead guilty was entitled to a
presumption of correctness under 28 U.S.C. §2254(e)(1); and (4)
Nara’s federal due process rights were violated when he entered
his guilty pleas because he was mentally incompetent.

        The Magistrate Judge recommended that the District
Court grant the petition, allow Nara to withdraw his guilty pleas,
and direct the Commonwealth to release him unless it
commenced trial within 120 days. In accordance with the
Federal Magistrate Judges Act, 28 U.S.C. §636(b)(1)(B)-(C), the
R&R provided the parties ten days in which to file objections.
The R&R ended with the routine warning that, “Failure to file
timely objections may constitute a waiver of any appellate
rights.” See, e.g., FED. R. CIV. P. 72(b) advisory committee’s
note.

       Neither party filed objections to the R&R. On September
27, 2005, the District Court noted that no objections were filed,

                               11
adopted the R&R, and issued the recommended order. Over two
weeks later – on October 14 – the Commonwealth filed a motion
with the District Court requesting vacatur pursuant to FED. R.
CIV. P. 60(b). The Commonwealth asserted it never received the
R&R and requested ten additional days in which to file
objections. In response, Nara suggested the District Court grant
the Commonwealth ten days to file objections to the R&R, but
only if its objections persuaded the court to either reject or
amend the R&R. On October 26, before the District Court could
rule on the parties’ respective motions, the Commonwealth filed
a notice of appeal.10 The District Court dismissed the
Commonwealth’s October 14 motion as moot.

                         II. Jurisdiction

       The District Court exercised jurisdiction over Nara’s
petition for habeas corpus pursuant to 28 U.S.C. §§2241 and
2254. We have jurisdiction pursuant to 28 U.S.C. §§1291 and
2253(a).

                    III. Standard of Review

                                A.

       Where the District Court relies entirely upon the state
court record, we review its decision granting habeas corpus de

       10.
          In its reply brief, the Commonwealth asserts it filed its
notice of appeal “in an abundance of caution” due to the fact
that nearly 30 days had expired since the District Court issued
its judgment and order.

                                12
novo. Satterfield v. Johnson, 434 F.3d 185, 190 (3d Cir. 2006);
Hartey v. Vaughn, 186 F.3d 367, 371 (3d Cir. 1999), cert.
denied, 528 U.S. 1128 (2000). Here, however, Nara argues we
should review the District Court’s decision for plain error
because the Commonwealth failed to object to the Magistrate
Judge’s R&R within ten days.

       Federal Rule of Civil Procedure Rule 60(b)(1) permits a
District Court to grant a party relief from a final judgment based
upon, inter alia, “excusable neglect.” FED. R. CIV. P. 60(b)
(2007). The test for “excusable neglect” is equitable, and
requires us to weigh the “totality of the circumstances.” Welch
& Forbes, Inc. v. Cendant Corp., 234 F.3d 166, 171 (3d Cir.
2000) (citing Pioneer Inv. Servs. v. Brunswick Assocs. LP, 507
U.S. 380 (1993)). In particular, we consider 1) the danger of
prejudice to the other party; 2) the length of the delay and its
potential impact on judicial proceedings; 3) the reason for the
delay – and whether it was within the movant’s control; and 4)
whether the movant acted in good faith. Id.

        There is no evidence the Commonwealth acted in bad
faith. Nevertheless, the Commonwealth’s overall negligence in
handling the matter precludes us from finding “excusable
neglect.” First, attorneys practicing in the Western District of
Pennsylvania were under a standing order to register with the
Case Management/Electronic Case Files (CM/ECF) system by
July 1, 2005.11 If the Commonwealth’s attorneys had complied

       11.
         In early 2001, the federal courts began implementing
the Case Management/Electronic Case Files (CM/ECF). Under
                                                  (continued...)

                               13
with that order, they would have received immediate electronic
notification that the Magistrate Judge had issued the R&R and
could have accessed it by hyper-link.12 Second, the
Commonwealth failed to respond to the District Court’s order
for 17 days. Despite the urgency of the situation, the
Commonwealth has offered no excuse for this latter delay. We
cannot conclude the Commonwealth’s failure to object to the
R&R for over six weeks was excusable.

                                B.

       It is well-settled that a right, constitutional or otherwise,
“may be forfeited in criminal as well as civil cases by the failure
to make a timely assertion of the right before a tribunal having
jurisdiction to determine it.” United States v. Olano, 507 U.S.
725, 731 (1993) (quoting Yakus v. United States, 321 U.S. 414,

       11.
         (...continued)
the program, federal courts and parties file and issue all
documents electronically (with certain exceptions for pro se
prisoners, etc.). Attorneys of record receive email notices,
containing hyperlinks to documents, immediately upon every
filing. The Western District announced its adoption of the
program in the fall of 2004 and, on April 20, 2005, issued a
standing order making the program mandatory, effective July 1,
2005. See Amended Standing Order, Misc. No. 05-6 (W.D.Pa.
2006).
       12.
         The Commonwealth’s Attorneys based in Harrisburg
were required to register in the Middle District of Pennsylvania
in 2003. See Standing Order No. 07-01 (M.D.Pa. 2007).

                                14
444 (1944)). We have supervisory authority to impose a rule of
waiver when a party fails to timely object to a magistrate judge’s
R&R. Thomas v. Arn, 474 U.S. 140 (1985). We have held
generally that failing to timely object to an R&R in a civil
proceeding may result in forfeiture of de novo review at the
district court level, but does not forfeit the statutory right to
appellate review under other standards. Henderson v. Carlson,
812 F.2d 874, 878-79 (3d Cir. 1987), cert. denied, 484 U.S. 837
(1987). We now hold that, where a party fails to file timely
objections to a magistrate judge’s R&R in a habeas proceeding,
and the district court then adopts the R&R, we will only review
the R&R for plain error.

       Article III requires de novo review of a magistrate
judge’s R&R where a party timely objects. United States v.
Peretz, 501 U.S. 923 (1991). The Federal Magistrate Judges Act
neither precludes nor mandates a particular standard of appellate
review where the parties fail to object to the R&R. 28 U.S.C.A.
§636(C) (2006). The Federal Rules governing habeas cases do
not dictate a particular result where a party fails to timely object,
but authorize us to apply the Federal Rules of Civil Procedure
where appropriate. FED. R. GOV. §2254 CASES 11 (2007). The
relevant civil procedure rule, however, is inapplicable to habeas
corpus cases. FED. R. CIV. P. 72(b) advisory committee’s note
(2007). We therefore turn to our jurisprudence to determine the
appropriate standard of review.

       In Henderson, we considered whether the Government
waived its right to appeal by failing to make a timely objection
to a magistrate judge’s recommendation that the district court
grant habeas relief to a federal prisoner. We recognized our

                                 15
authority to adopt a waiver rule under Thomas v. Arn, 474 U.S.
140 (1985), and noted that a majority of the courts of appeals
had adopted one. We nonetheless rejected an outright waiver
rule because we were concerned that it would (1) entangle the
court in a web of equitable exceptions, and (2) deprive a party
of any review of unobjected-to dispositive legal issues raised in
the R&R. Henderson, 812 F.2d at 878.13

        Soon after Henderson, we held that a party who does not
appeal a magistrate judge’s non-dispositive order (under 28
U.S.C. §636(b)(1)(A)) to the district court waives its right to
seek review of the order in the Court of Appeals. United
Steelworkers of Am. v. New Jersey Zinc Co., Inc., 828 F.2d 1001
(3d Cir. 1987); Continental Cas. Co. v. Dominick D’Andrea
Inc., 150 F.3d 254 (3d Cir. 1998). The New Jersey Zinc and
D’Andrea panels recognized Henderson, but saw a distinction
between subsection (A) referrals, which give the magistrate
judge’s orders the force of law; and subsection (B) referrals,
which do not carry the force of law until the district court adopts
the R&R. New Jersey Zinc, 828 F.2d at 1005-006; D’Andrea,
150 F.3d at 250. Both panels concluded a waiver rule in
subsection (A) cases supported the Magistrate Judges Act’s
purpose – “to relieve courts of unnecessary work and to improve
access to the courts.” New Jersey Zinc at 1007; D’Andrea at 251
(internal citations omitted).

       13.
          Before Henderson, we declined to adopt a waiver rule
where the magistrate judge’s report treated filing of objections
as permissive. Welch v. Heckler, 808 F.2d 264, 266 (3d Cir.
1986). The R&R in this case, however, plainly treated the timely
filing of objections as mandatory.

                                16
        Six other courts of appeals apply a waiver rule against
untimely objections to a dispositive order or R&R. Henley
Drilling Co. v McGee, 36 F.3d 143, 150-51 (1st Cir. 1994);
FDIC v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir. 1995);
United States v. George, 971 F.2d 1113, 1118 n.7 (4th Cir.
1992); Kelly v. Withrow, 25 F.3d 363, 366 (6th Cir. 1994); cert.
denied, 513 U.S. 1061 (1994); Video Views, Inc. v. Studio 21,
Ltd., 797 F.2d 538, 539 (7th Cir. 1986);14 Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991).

       Other courts of appeals have adopted more lenient
qualified forfeiture rules, like the one we adopted in Henderson.
Douglass v. United Services Auto. Ass’n, 79 F.3d 1415 (5th Cir.
1996) (en banc); Griffini v. Mitchell, 31 F.3d 690 (8th Cir.
1994); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Henley
v. Johnson, 885 F.2d 790 (11th Cir. 1989).15

       The Fifth Circuit Court of Appeals’ analysis in Douglass
persuades us that we should review unobjected-to R&Rs, as
adopted by a district court, for plain error. First, the Douglass
court explained its conversion to the plain error standard it now

       14.
        The Seventh Circuit does not apply its appellate waiver
rule where untimely objections are not “egregiously late” and
the opposing party has not been prejudiced. Hunger v.
Leininger, 15 F.3d 664, 668 (7th Cir. 1994), cert. denied, 513
U.S. 839 (1994).
       15.
         The D.C. Circuit Court of Appeals has apparently never
adopted a specific rule. Powell v. United States Bureau of
Prisons, 927 F.2d 1239 (D.C. Cir. 1991).

                               17
employs. Douglass, 79 F.3d at 1421. Initially, the court applied
a rule of waiver against unobjected-to R&Rs. Soon thereafter,
it adopted a forfeiture rule which permitted plain error review
for unobjected-to factual findings and de novo review of
unobjected-to legal conclusions. See Douglass, 79 F.3d at 1422.
Fourteen years later, the Douglass court recognized its then-
existing rule was an “anomaly, which caused a great waste of
judicial resources” and “was totally at odds with the
forfeiture/plain error rule applicable in other settings.”Id. at
1419. Second, the court noted that the Supreme Court, when it
approved waiver rules in Arn, also approved an “in the interests
of justice” exception which is closely analogous to the plain
error exception to the contemporaneous objection rule. Id. at
1428 (citing Arn, 474 U.S. at 155). In conclusion, the Douglass
court held failure to timely file objections to an R&R “shall bar
that party, except upon grounds of plain error, from attacking on
appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court, provided that the
party has been served with notice that such consequences will
result from a failure to object.” Douglass, 79 F.3d at 1429.

        We conclude plain error review is appropriate where a
party fails to timely object to a magistrate judge’s R&R in
habeas corpus cases. First, plain error review recognizes the
difference between failing to timely assert a right, and
voluntarily waiving a right. Failing to timely assert a right
results in forfeiture, which permits plain error review. United
States v. Olano, 507 U.S. 725, 733 (1993). Waiver, on the other
hand, extinguishes any error. Id. Second, failure to timely object
to an R&R is little different from, for example, the failure of
counsel to timely object to the admission of evidence in open

                               18
court. Douglass, 79 F.3d at 1428. In the latter situation, we
regularly review for plain error in criminal and civil
proceedings, including habeas cases. See, e.g., United States v.
Harris, 471 F.3d 507, 511 (3d Cir. 2006); Franklin
Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 338
(3d Cir. 2006); Clemmons v. Wolfe, 377 F.3d 322, 325 (3d Cir.
2004). Third, plain error review promotes the effectiveness and
efficiency of the lower courts by compelling parties to promptly
contest dispositive issues before the magistrate judge and district
judge. Requiring de novo review despite a party’s failure to
timely object, on the other hand, blunts the effectiveness of the
Federal Magistrate Judges Act. Douglass, 79 F.3d at 1420. It
either forces the court of appeals to consider claims that were
never reviewed by the district court, or compels the district court
to review every issue in every case, even if both parties are
satisfied with the R&R. Arn, 474 U.S. at 147; New Jersey Zinc,
828 F.2d at 1007; Douglass, 79 F.3d at 1420. At the same time,
plain error review accords with our decisions in Henderson,
New Jersey Zinc, and D’Andrea by affording some level of
appellate review to all dispositive legal issues raised by an R&R.
Finally, plain error review recognizes failure to timely object to
an R&R is not a jurisdictional defect. Grandison v. Moore, 786
F.2d 146, 148 (3d Cir. 1986). District courts may therefore
consider requests by parties for extra time or requests to excuse
late filings on adequate justification. Id.

       By employing plain error review, we remain faithful to
Henderson by using a straight-forward, frequently-applied
standard of review which preserves appellate consideration of
dispositive legal issues. In addition, we add precision to



                                19
Henderson and give substance to the oft-repeated warning that
“failure to timely object may risk the loss of appellate rights.”

        The Commonwealth argues that we should nonetheless
review the R&R de novo, because the District Court reviewed
the R&R de novo. See Henderson, 812 F.2d at 879 n.4. We
disagree. There is no indication the District Court conducted an
independent review of the entire record and applicable law de
novo. Id. Nor was the District Court under any obligation to do
so. Medina v. DeGuglielmo, 461 F.3d 417, 426 (3d Cir. 2006)
(citing FED. R. GOV. §2254 CASES 8(b) (2006)).

       Finally, as explained supra, the Commonwealth’s failure
to object was not caused by forces outside its control. The
Commonwealth attorneys were on notice that (1) the Western
District required all practicing attorneys to register to use the
CM/ECF system; and (2) failure to object to an R&R risked the
loss of appellate rights. If the Commonwealth’s attorneys had
complied with the Western District’s standing order, they would
have had immediate notice of the R&R’s filing and access to it.

                        IV. Discussion

                         A. Exhaustion

      Under the plain error standard, we should only reverse
the District Court’s16 decision if it made a plain error which

       16.
         We now refer to the Magistrate Judge’s conclusions as
those of the District Court because it adopted the R&R in its
                                                 (continued...)

                               20
affects “substantial rights.” United States v. Olano, 507 U.S.
725, 732 (1993). An error is “plain” if it is clear or obvious.
Olano, 507 U.S. 725, 734 (1993). If we discern an error, we will
only correct it if the appellant also demonstrates the error
“seriously affected the fairness, integrity or public reputation of
judicial proceedings.” Id. at 732 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)); Clemmons v. Wolfe, 377
F.3d at 325.

        First, the Commonwealth argues the District Court erred
by concluding Nara exhausted his state court remedies with
respect to his incompetency claim. The federal habeas statute
requires state prisoners to exhaust available state court remedies
before seeking federal relief. 28 U.S.C.A. §2254(b) (2006);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Therefore, a
state prisoner must “give the state courts one full opportunity to
resolve any constitutional issues by invoking one complete
round of the State’s established appellate review process.”
O’Sullivan, 526 U.S. at 845; see also Woodford v. Ngo, 126
S.Ct. 2378, 2386-87 (2006).

       A claim is exhausted if it was “fairly presented” to the
state courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004);
O’Sullivan v. Boerckel, 526 U.S. at 848; Cristin v. Brennan, 281
F.3d 404, 410 (3d Cir. 2002); Doctor v. Walters, 96 F.3d 675,
678 (3d Cir. 1996). A petitioner has fairly presented his claim if
he presented the same factual and legal basis for the claim to the
state courts. See Duncan v. Henry, 513 U.S. 364, 366 (1995)

       16.
            (...continued)
entirety.

                                21
(per curiam). A petitioner can “fairly present” his claim
through: (a) reliance on pertinent federal cases; (b) reliance on
state cases employing constitutional analysis in like fact
situations; (c) assertion of the claim in terms so particular as to
call to mind a specific right protected by the Constitution; and
(d) allegation of a pattern of facts that is well within the
mainstream of constitutional litigation. McCandless v. Vaughn,
172 F.3d 255, 260 (3d Cir. 1999).17 Even if a state court refuses
to consider the claim on procedural grounds, it is still exhausted
as long as the state court had the opportunity to address it. Bond
v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989); Pursell v. Horn,
187 F.Supp.2d 260, 288 (W.D.Pa. 2002) (Smith, J.).

       Nara’s incompetency claim arises under the Due Process
clause of the Fourteenth Amendment. Due process prohibits a

       17.
          The Commonwealth suggests the Supreme Court’s
decision in Baldwin v. Reese may have limited the viability of
the McCandless analysis. We disagree. Baldwin held that,
“ordinarily a state prisoner does not fairly present a claim to a
state court if that court must look beyond a petition or a brief (or
similar document) that does not alert it to the presence of a
federal claim in order to find material, such as a lower court
opinion, that does so.” Baldwin, 541 U.S. 27, 32 (2004).
Baldwin concluded that the petitioner’s briefs to the state courts
in that case did not “fairly present” a federal claim because the
briefs cited no case that might alert the state court to the federal
nature of the claim, lacked a factual description supporting the
claim, and yet cited federal law in support of other claims. Id. at
33. These are among the same considerations set out in
McCandless.

                                22
court from accepting a guilty plea unless it is entered
“competently,” “knowingly and voluntarily.” Godinez v. Moran,
509 U.S. 389, 397-402 (1992). A criminal defendant is
competent to plead guilty if he has “sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding” and “has a rational as well as factual
understanding of the proceedings against him.” Godinez, 509
U.S. at 396 (citing Dusky v. United States, 362 U.S. 402 (1940));
United States v. Cole, 813 F.2d 43, 46 (3d Cir. 1987) (citing
United States ex rel McGough v. Hewitt, 528 F.2d 339, 342 n.2
(3d Cir. 1975)). Pennsylvania courts have consistently applied
the same standard. See, e.g., Com. v. Frey, 904 A.2d 866, 872
(Pa. 2006); Com. v. Marshall, 312 A.2d 6, 7 (Pa. 1973); Com. v.
Harris, 243 A.2d 408, 409 (Pa. 1968); Com. v. Smith, 469 A.2d
1104, 1107 (Pa. Super. 1983).
        Following his second PCRA petition,18 Nara gave the
Pennsylvania courts a full opportunity to address his federal
incompetency claim by repeatedly stating his claim “in terms so
particular as to call to mind a specific right protected by the
Constitution.” McCandless v. Vaughn, 172 F.3d at 260. Nara’s
second petition included a claim that his guilty plea was
“unlawfully induced.” Appendix at 436. Attorney Morrison
orally amended Nara’s pro se petition to specifically include the
argument that Nara was “not competent to make a
knowledgeable and willing plea at the time he entered it.”

       18.
         We turn to Nara’s second petition for exhaustion
purposes because he failed to “fairly present” his incompetency
claim to the Superior Court following the first post-conviction
proceeding. He did, however, present the claim throughout the
proceedings following his second and third petitions.

                               23
Appendix at 448. After Judge Franks granted Nara’s petition
and the Commonwealth appealed, Nara argued that he
established his mental incompetency to plead guilty, articulated
the test applied by both federal and state courts, and compared
the facts of his case to Com. v. Marshall, 312 A.2d 6 (1973).
Appendix at 885-87. When he again sought allocatur, Nara
specifically raised “the invalidity of his plea,” and, citing
Marshall, stated that he “was mentally ill and incompetent to
knowingly answer the plea court’s questions.” Appendix at 830.
Nara consistently presented the basic factual outline of a federal
claim. The Pennsylvania courts were not required to search
beyond the pleadings and briefs for a federal issue. Compare
Baldwin v. Reese, 541 U.S. 27 (2004), and Bronshtein v. Horn,
404 F.3d 700, 725-26 (3d Cir. 2005). We conclude Nara
properly exhausted his incompetency claim.

                      B. Procedural Default

       The procedural default doctrine prohibits federal courts
from reviewing a state court decision involving a federal
question if the state court decision is based on a rule of state law
that is independent of the federal question and adequate to
support the judgment. Gray v. Netherland, 518 U.S. 152, 162
(1996); Coleman v. Thompson, 501 U.S. 722, 732 (1991). A
state rule provides an adequate and independent basis for
precluding federal review if (1) the rule speaks in unmistakable
terms; (2) all state appellate courts refused to review the
petitioner’s claims on the merits; and (3) their refusal was
consistent with other decisions. Bronshtein v. Horn, 404 F.3d
700, 708 (3d Cir. 2005), cert. denied, Beard v. Bronshtein, 126
S.Ct. 1320 (2006); Doctor v. Walters, 96 F.3d 675, 683-84 (3d

                                24
Cir. 1996). The Commonwealth bears the burden of
demonstrating that Nara defaulted on his incompetency claim.
Netherland, 518 U.S. at 166 (internal citations omitted). We
agree with the District Court that the Commonwealth failed to
carry its burden.

                1. Former PA. R. CRIM. P. 321

        Nara’s first purported procedural default occurred when
he failed to file a motion to challenge his guilty plea within ten
days of entering it, pursuant to former PA. R. CRIM. P. 321. The
Superior Court first noted this alleged waiver following his
second PCRA proceeding. Appendix at 583. His third petition
for relief was denied based upon PA. R. CRIM. P. 321.
Pennsylvania courts, however, have consistently held rules of
waiver inapplicable to incompetency claims. Com. v. Brown,
872 A.2d 1139, 1153 (Pa. 2005); Com. v. Santiago, 855 A.2d
682, 692 n.9 (Pa. 2004); Com. v. Tyson, 402 A.2d 995, 997 (Pa.
1979). Indeed, it would be contradictory to conclude that,
regardless of his incompetency at the time of his guilty plea,
Nara could competently waive his right to challenge his guilty
plea just ten days later. See Santiago, 855 A.2d at 692, and Com.
v. Marshall, 318 A.2d 724 (Pa. 1974) (citing Pate v. Robinson,
383 U.S. 375, 384 (1966)).

               2. 42 PA. STAT. ANN. §9544(b)

        Following his second petition, the Superior Court held
that Nara waived his incompetency claim by failing to raise it in
his first post-conviction petition pursuant to 42 PA. STAT. ANN.
§9544(b). As we have noted, Nara did raise his incompetency

                               25
claim in his first petition. Regardless, even after the enactment
of the PCRA, Pennsylvania courts did not consistently bar
successive post-conviction petitions – like Nara’s – which
allege prior counsel was ineffective. See, e.g., Com. v. Allen,
732 A.2d 582, 587 (Pa. 1999); Com. v. Christy, 656 A.2d 877,
881 (Pa. 1995); Com. v. Cummings, 619 A.2d 316, 318 (Pa.
Super. 1993); Com. v. Dukeman, 605 A.2d 418, 421 (Pa. Super.
1992); see also Lambert v. Blackwell, 134 F.3d 506, 522 n.27
(3d Cir. 1998) (noting Commonwealth acknowledged
Pennsylvania courts will consider waived claims when raised
under the rubric of ineffective assistance of counsel).

               3. 42 PA. STAT. ANN. §9543(a)(3)
       Finally, following his second petition, the Superior Court
held that Nara was ineligible for post-conviction relief under 42
PA. STAT. ANN. §9543(a)(3). Section 9543(a)(3) bars post-
conviction relief unless a petitioner can show his claim was not
previously litigated and was not waived. When Nara brought his
second PCRA petition, his incompetency claim was not
“previously litigated” because the Superior Court did not reach
the merits. Com. v. Morales, 701 A.2d 516, 520 (Pa. 1997). His
alleged waivers were subject to the exceptions described above.
In any case, a petitioner can overcome failure to meet
§9543(a)(3)’s requirements where he shows his prior counsel
was ineffective, Morales, 701 A.2d at 520 (Pa. 1997) (citing
Com. v. Griffin, 644 A.2d 1170 (Pa. 1994)), or makes “a strong
prima facie showing that a miscarriage of justice may have
occurred.” Hull v. Kyler, 190 F.3d 88, 101 n.4 (3d Cir. 1999)
(quoting Com. v. Lawson, 549 A.2d 107, 112 (Pa. 1988)).




                               26
       Nara’s incompetency claim was not procedurally
defaulted, because Pennsylvania courts have frequently applied
exceptions to his alleged waivers under former PA. R. CRIM. P.
321 and the PCRA. The Pennsylvania appellate courts’ refusal
to review his incompetency claim on the merits was not
consistent with Pennsylvania law. We therefore proceed to the
merits of his claim.

                    C. Nara’s Competency

                1. Presumption of Correctness

      The District Court accorded a presumption of correctness
to the second PCRA court’s determination that Nara was
incompetent under 28 U.S.C. §2254(e)(1). Section 2254(e)(1)
provides, in relevant part:

       In a proceeding instituted by an application for a
       writ of habeas corpus by a person in custody
       pursuant to the judgment of a State court, a
       determination of a factual issue made by a State
       court shall be presumed to be correct. The
       applicant shall have the burden of rebutting the
       presumption of correctness by clear and
       convincing evidence.

28 U.S.C.A. §2254(e)(1) (2006); Demosthenes v. Baal, 495 U.S.
731, 735 (1990) (per curiam) (cited in Michael v. Horn, 459
F.3d 411, 414 n.3 (3d Cir. 2006)); White v. Horn, 112 F.3d 105,
112 n.7 (3d Cir. 1997). A state trial court’s determination of an
individual’s competency is entitled to a presumption of

                               27
correctness. Smith v. Freeman, 892 F.2d 331, 341 (3d Cir. 1989)
(citing Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per
curiam), and Sumner v. Mata, 449 U.S. 539, 546-47 (1981)); see
also Miller v. Fenton, 474 U.S. 104 (1985).

       The Commonwealth argues the District Court should not
have applied the presumption of correctness to the second
PCRA court’s findings because there was no “adjudication on
the merits” of Nara’s incompetency claim. We disagree. First,
the §2254(e)(1) presumption of correctness applies regardless of
whether there has been an “adjudication on the merits” for
purposes of §2254(d). Appel v. Horn, 250 F.3d 203, 210 (3d Cir.
2001). Second, during the second PCRA proceeding, Judge
Franks plainly did reach the merits of Nara’s incompetency
claim: he reviewed the lengthy plea colloquy transcript, held
two days of evidentiary hearings on the claim, observed expert
witness testimony and cross-examination, identified and applied
the correct legal principle, and specifically concluded Nara was
incompetent when he pleaded guilty. Compare Albrecht v. Horn,
471 F.3d 435, 446 (3d Cir. 2006) (stating that identification and
purported application of the correct legal principle constitutes an
“adjudication on the merits” for purposes of AEDPA).

       Finally, there is a “familiar and compelling” justification
for according presumptive weight to Judge Franks’
determination. Miller v. Fenton, 474 U.S. 104, 114 (1985). It is
a well-established principle of federal law that state trial judges
deserve substantial deference.

       Face to face with the living witnesses, the original
       trier of the facts holds a position of advantage

                                28
       from which appellate judges are excluded. In
       doubtful cases, the exercise of his power of
       observation often proves the most accurate
       method of ascertaining the truth...how can we say
       he is wrong? We never saw the witnesses.

Boyd v. Boyd, 169 N.E. 632, 634 (N.Y. 1930) (quoted in Oregon
Medical Society, 343 U.S. 326, 339 (1952), Maggio, 462 U.S. at
117, and Marshall v. Lonberger, 459 U.S. 422, 434 (1983)).
This principle is particularly relevant here, because witness
credibility and demeanor are crucial to resolving an individual’s
competency. Fenton, 474 U.S. at 116 -17 (citing Maggio, 462
U.S. at 117). A retrospective competency examination at this
stage – over twenty years later – would pose considerable
difficulties for a federal habeas court. Drope v. Missouri, 420
U.S. 162 (1975). Judge Franks, a learned colleague of a
coordinate court, was in a unique position from which he could
carefully assess witness credibility and demeanor in open court
against his extensive experience with the case. Even six years
after the plea colloquy, he was in a position “far superior to that
of federal judges reviewing an application for a writ of habeas
corpus.” Fenton, 474 U.S. at 114.

       The Commonwealth contends the District Court should
not have relied upon the second PCRA court’s factual findings
because the Pennsylvania Superior Court vacated the court’s
decision. When an appellate court vacates a lower court’s order,
it renders the lower court’s order null and void. United States
v. Ayres, 76 U.S. 608, 609 (1869); Allegheny County v.
Maryland Cas. Co., 132 F.2d 894, 896 (3d Cir. 1943); Kuppel
v. Auman, 529 A.2d 29, 31 (Pa. Super. 1987) (citing McGine v.

                                29
State Mut. Ben. Soc., 4 A.2d 537, 538 (Pa. Super. 1939)).
However, a state court’s factual determination may be given
effect even if its order has been rendered a nullity on other
grounds. Dickerson v. Vaughn, 90 F.3d 87, 90-91 (3d Cir. 1996)
(Weis, J.) (Superior Court’s factual determination entitled to
deference where reversal order by the Pennsylvania Supreme
Court left factual determination undisturbed); see also Lambert
v. Blackwell, 387 F.3d 210, 236-40 (3d Cir. 2004) (deferring to
state courts’ factual findings despite concluding that state courts
lacked jurisdiction under Pennsylvania law); Pursell v. Horn,
187 F.Supp.2d 260, 292, 308-12 (W.D.Pa. 2002) (according
deference to PCRA court’s factual findings where state appellate
court found PCRA court lacked jurisdiction); Com. v. Pate, 617
A.2d 754, 760 (Pa. Super. 1992). The Commonwealth
acknowledges a state PCRA trial court’s factual findings merit
deference unless a state appellate court invalidates those
findings. Here, Judge Franks’ determination that Nara was
incompetent was left undisturbed by the Pennsylvania Superior
Court, the Pennsylvania Supreme Court, and by Judge Franks
himself during the third post-conviction proceeding. We find no
plain error in the District Court’s conclusion that a presumption
of correctness applied to Judge Franks’ competency
determination.

                 2. Rebuttal of the Presumption

       Application of the presumption of correctness raises the
question of whether the federal habeas statute allows the
Commonwealth to rebut the presumption. The statute provides
habeas applicants an opportunity to challenge a state court’s
factual determination by “clear and convincing evidence.” 28

                                30
U.S.C.A. §2254(e)(1) (2006). It is silent as to whether a state
can rebut the presumption. Generally, where a statute authorizes
a designated party to take specific action, it is inappropriate to
presume that a party not so designated may also take it. Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1,
6-7 (2003). At the same time, we recognize that denying the
Commonwealth any opportunity to contest Judge Franks’
determination would seem to conflict with the overall design of
the federal habeas statute. We decline to decide this question,
because the record here confirms that the Commonwealth’s
attempt to rebut would fail.

        As stated supra, the standard for competency to plead
guilty is whether the criminal defendant was able to consult with
his lawyer with a reasonable degree of rational understanding
and whether he had a rational understanding of the nature and
object of the proceedings against him. Godinez, 509 U.S. at 396;
United States v. Cole, 813 F.2d 43, 46 (3d Cir. 1987); United
States ex rel. McGough v. Hewitt, 528 F.2d 339, 342 n.2 (3d Cir.
1975). Ordinarily, a defendant’s competency to plead guilty may
be established during the plea colloquy, and a competency
determination is necessary only when the court has reason to
doubt the defendant’s competency. Godinez, 509 U.S. at 402
n.13.

        Under Pennsylvania law, a guilty plea may nonetheless
be withdrawn, after a sentence has been imposed, on a showing
of manifest injustice. Com. v. Leidig, 850 A.2d 743, 746 (Pa.
Super. 2004); Com. v. Muhammad, 794 A.2d 378 (Pa. Super.
2002). A prisoner may show his plea resulted in manifest
injustice if he establishes he entered it involuntarily,

                               31
unknowingly or unintelligently. Leidig, 850 A.2d. at 746;
Muhammad, 794 A.2d at 383. To ascertain whether a plea was
given voluntarily, knowingly and intelligently, the court must
examine the plea colloquy and the totality of the circumstances
surrounding the entry of the plea. Com. v. Gribble, 863 A.2d
455, 474 n.16 (Pa. 2004) (stating, “when a collateral attack is
leveled against a record waiver, it is the totality of the
circumstances, and not the record waiver or plea colloquy,
which controls.”); Muhammad, 794 A.2d at 383-84 (citing Com.
v. Lewis, 708 A.2d 497, 501 (Pa. Super. 1998)).

       During his plea colloquy, Nara repeatedly indicated he
understood what was transpiring. See, e.g., Appendix at 112,
120, 124. The “totality of the circumstances,” reflected in Nara’s
medical records and Dr. Harika’s testimony, however, suggests
otherwise. Nara’s medical records indicate he was hospitalized
and medicated19 at state mental health institutions following
suicide attempts both before his arrest and shortly after his
sentencing, but was apparently left untreated during the
intervening months. Indeed, his condition during the four
months prior to the plea colloquy, and during the weeks prior to
sentencing, is entirely undocumented.

       Dr. Harika’s expert testimony provided essential insight
into Nara’s mental state during this undocumented period. Dr.
Harika analyzed Nara’s medical records and his statements at
the plea colloquy, and testified that Nara’s condition steadily

       19.
         Nara was treated with several anti-depressants and
tranquilizers used to treat schizophrenia before the murders and
throughout the two years after his sentencing.

                               32
worsened such that he was “psychotic” and “out of touch with
reality” when he pleaded guilty. The Commonwealth failed to
rebut his testimony, and has not presented any additional
evidence to contradict Harika’s testimony in subsequent
proceedings. Finally, we again emphasize the fact that Judge
Franks, who conducted an 85- minute colloquy with Nara and
held hearings during three separate post-conviction proceedings,
ultimately found Nara was incompetent when he pleaded guilty
and never reversed this finding. We find no plain error in the
District Court’s conclusion that Nara was incompetent when he
pleaded guilty.20

                        V. Conclusion

       In sum, because the Commonwealth failed to timely
object to the Magistrate Judge’s R&R, we have reviewed the
R&R, as adopted by the District Court, for plain error.

       We find no plain error in the District Court’s conclusion
that Nara “fairly presented” his incompetency claim to each
level of the Pennsylvania judiciary. Nor did it err by according
a presumption of correctness to Judge Franks’ competency
determination. Finally, we find no plain error in the District

       20.
         Even if we were to find an obvious error on the part of
the District Court, the Commonwealth has failed to show that
any such error has “seriously affected the fairness, integrity or
public reputation of judicial proceedings.” The Commonwealth
had a full opportunity to challenge Dr. Harika’s testimony
during the second PCRA proceeding, and it has been afforded
a full and fair opportunity to pursue its arguments.

                               33
Court’s conclusion that Nara’s guilty pleas were accepted in
violation of due process.

      We will affirm the District Court’s order.




                             34
