                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-1997

Lambert v. Blackwell
Precedential or Non-Precedential:

Docket 97-1281,97-1283,97-1287




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Recommended Citation
"Lambert v. Blackwell" (1997). 1997 Decisions. Paper 282.
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Filed December 29, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 97-1281, 97-1283 and 97-1287

LISA MICHELLE LAMBERT

v.

CHARLOTTE BLACKWELL, MRS., SUPERINTENDENT;
THE ATTORNEY GENERAL OF THE
STATE OF PENNSYLVANIA,

       Appellants

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 96-cv-06244)

Argued
October 21, 1997

Before: MANSMANN and GREENBERG, Circuit Judges ,
and ALARCON, Circuit Judge.*

(Filed December 29, 1997)



_________________________________________________________________
*Honorable Arthur L. Alarcon of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.
Peter S. Greenberg, Esquire
 (ARGUED)
Christina Rainville, Esquire
Jeannette M. Brian, Esquire
Diane L. Lisowski, Esquire
Schnader, Harrison, Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103

 COUNSEL FOR APPELLEE

Richard A. Sprague, Esquire
 (ARGUED)
Geoffrey R. Johnson, Esquire
Theodore J. Chylack, Esquire
Joseph R. Podraza, Jr., Esquire
T. Truxtun Hare, Esquire
David S. Lubin, Esquire
Deborah B. Miller, Esquire
Sprague & Sprague
Suite 400, Wellington Bldg.
135 South 19th Street
Philadelphia, PA 19103

Richard A. Sprague, Esquire
Alvin B. Lewis, Jr., Esquire
Edward R. Kennett, Esquire
Sprague & Lewis
The Christopher DeMuth Bldg.
116 East King Street
Lancaster, PA 17602

 COUNSEL FOR APPELLEES

                         2
D. Michael Fisher
 Attorney General of Pennsylvania
Jerome T. Foerster
 Senior Deputy Attorney General
 Appeals and Legal Services Section
Robert A. Graci
 Assistant Executive Deputy
Attorney General
Office of Attorney General of
 Pennsylvania
Law and Appeals
16th Floor, Strawberry Square
Harrisburg, PA 17120

Daniel E. Lungren
Attorney General of California
1300 I Street, Suite 125
Sacramento, CA 95814

M. Jane Brady
Attorney General of Delaware
820 North French Street
Wilmington, DE 19801

Richard P. Ieyoub
Attorney General of Louisiana
P.O. Box 94095
Baton Rouge, LA 70804-9095

W.A. Drew Edmondson
Attorney General of Oklahoma
2300 North Lincoln Boulevard,
 Suite 112
Oklahoma City, OK 73105-4894

                        3
       Charles M. Condon
       Attorney General of South Carolina
       P.O. Box 11549
       Rembert C. Dennis Building
       Columbia, SC 29211-1549

        COUNSEL FOR AMICUS
       APPELLANTS: COMMONWEALTH
       OF PENNSYLVANIA, STATE OF
       CALIFORNIA, STATE OF
       DELAWARE, STATE OF
       LOUISIANA, STATE OF
       OKLAHOMA, STATE OF
       SOUTH CAROLINA

       Donna G. Zucker
        Assistant District Attorney
       Ted McKnight
        President, Pennsylvania District
       Attorneys Association
       1421 Arch Street
       Philadelphia, PA 19102-1582

        COUNSEL FOR AMICUS CURIAE
       PENNSYLVANIA DISTRICT
       ATTORNEYS ASSOCIATION

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this appeal we are faced with the onerous task of
determining whether the district court, upon petition for
writ of habeas corpus, erred in granting the unconditional
release of one convicted of first degree murder by a state
trial judge. Under Rose v. Lundy, 455 U.S. 509, 522 (1982),
the district court is required to dismiss a federal habeas
petition filed pursuant to 28 U.S.C. S 2254 which contains
both unexhausted and exhausted claims. Because wefind
the petitioner has not yet pursued her remedies under the
Pennsylvania Post Conviction Relief Act, 42 Pa. Cons. Stat.
Ann. S 9542 et seq. (West 1997 Supp.), her federal habeas

                               4
petition includes unexhausted claims and, hence, the result
here is dictated by Rose v. Lundy, supra . Thus, we will
remand this case to the district court with an order to
dismiss the petition without prejudice so that the petitioner
can first present her unexhausted claims to the appropriate
Pennsylvania state court.

I.1

Laurie Show became romantically involved with Lisa
Lambert's boyfriend, Lawrence "Butch" Yunkin, for a brief
period in June of 1991. Thereafter, Show incurred the
wrath of Lambert, who accosted Show on several occasions.
On the morning of December 20, 1991, Show was brutally
murdered. Lambert and an accomplice, Tabitha Buck, were
subsequently charged with criminal homicide for the
murder of Show.2 Buck was convicted of second degree
murder by a jury of her peers; Yunkin, in exchange for his
truthful testimony against Lambert, pled guilty to hindering
apprehension.3
_________________________________________________________________

1. We note, as a preliminary matter, that Lambertfiled a motion to
dismiss this appeal on the basis that since the district court found she
was actually innocent of first degree murder, the Double Jeopardy
Clause of the Fifth Amendment bars the Commonwealth's appeal. By
separate order, we will deny this motion. As we make clear in this
opinion, the district court erred in reaching the issue of Lambert's
actual
innocence. Accordingly, we do not give weight to the district court's
factual findings in this appeal. Moreover, we are plainly authorized to
review the final order of the district court in a habeas case pursuant to
28 U.S.C. S 2253(a). Furthermore, a finding of actual innocence, as that
term has come to be used in federal habeas corpus jurisprudence, is not
the equivalent of a finding of not guilty by a jury or by a court at a
bench trial. We find, therefore, that the Double Jeopardy Clause does
not bar the Commonwealth's appeal.

2. At the time of her arrest, Lambert was six months pregnant with
Yunkin's child.

3. Several weeks after Lambert's murder trial was concluded; the
Commonwealth determined that Yunkin had perjured himself at
Lambert's trial. Consequently, Yunkin breached the plea agreement and
the Commonwealth charged him with third degree murder to which he
pled nolo contendere.

                               5
On July 20, 1992, after a seven-day bench trial in the
Court of Common Pleas of Lancaster County, Pennsylvania,
Lambert was convicted of first degree murder and criminal
conspiracy. Subsequently, Lambert was sentenced to life
imprisonment by the trial court. Lambert, through her trial
counsel, Roy Shirk, Esq., filed a Motion in Arrest of
Judgment and for New Trial, and Additional Reasons for
Post-Trial Motions, raising various allegations of trial error
and prosecutorial misconduct.4 On July 19, 1994, the trial
court issued an Opinion and Order denying Lambert's post-
trial motions. No appeal was taken from this order.
_________________________________________________________________

4. The issues raised in the first set of post-verdict motions filed by Roy
Shirk, Esq., included:

        Error to deny defendant's motion for change of venue;

        Error to deny defendant's motion for sanctions;

        Error to allow Tabitha Buck's statement into evidence;

        Error to allow the trier of fact to take notes during trial and
        potentially to use them during deliberation;

        Error to affirm and read the Commonwealth's points of charge Nos.
        3 and 4;

        Error not to grant a mistrial when the request for supplemental
        discovery of Laura Thomas was not granted;

        Error not to grant a mistrial when the request for supplemental
        discovery of Hazel Show was not granted;

        Error not to grant a mistrial when the request for supplemental
        discovery of Richard Kleinhans was not granted;

       Error not to grant a mistrial when the prosecution withheld
evidence
       that a jergo was discarded and that they were aware of its
location;

        Error to qualify Dr. Penades as an expert in forensic pathology
since
        he was not board certified;

        Error not to grant a mistrial when the prosecution withheld from
        discovery a portion of Yunkin's statement of February 4, 1992;

        Error not to grant a mistrial when the Assistant District Attorney
        asked witness Samuel J. Golub two questions beyond his area of
        expertise; and
Insufficient evidence existed to sustain the verdict.

                        6
Subsequently, Lambert, through new counsel, Jules
Epstein, Esq., filed a Motion for a New Trial based on
allegations of after-discovered evidence5 and ineffective
assistance of trial counsel.6 An evidentiary hearing on the
new motion was conducted over a two-day period in
November of 1994. On March 14, 1995, the state trial court
denied Lambert's motion for post-verdict relief. In June of
1995, Lambert appealed the judgment of sentence imposed
by the state trial court to the Superior Court of
Pennsylvania, raising essentially the same claims regarding
ineffective assistance of trial counsel and after-discovered
evidence.7 A three-judge panel of the Superior Court of
Pennsylvania affirmed the judgment of sentence on January
4, 1996. In her direct appeal to the Pennsylvania Supreme
Court filed on February 2, 1996, Lambert again raised the
same claims.8 Lambert's petition for allowance of appeal
_________________________________________________________________

5. The after-discovered evidence consisted of the testimony of Yunkin in
a court proceeding subsequent to Lambert's trial in which he stated he
was aware of the plans to harm Laurie Show; and, Yunkin's admission
of his involvement in the murder during the plea colloquy, which also
took place subsequent to Lambert's trial, resulting in a plea of nolo
contendere to third degree murder.

6. Lambert alleged trial counsel was ineffective in failing to present
evidence of good character/reputation; failing to present evidence and
witnesses to substantiate her testimony that she had been physically
and psychologically abused by Yunkin; failing to produce evidence that
Commonwealth witness Laura Thomas was on juvenile probation which
was crucial to the credibility determination; presenting a witness who
testified that Laurie Show's claim of date rape against Yunkin was false;
failing to present evidence of bad reputation for the veracity of witness
Laura Thomas; failing to move to suppress Lambert's inculpatory
statement to the police; failing to seek a new trial based upon new
evidence of Yunkin's nolo contendere plea to third degree murder; and,
in failing to impeach Yunkin with his statements to the police that he
knew of the plan to harm the victim before he dropped Lambert and
Buck off at Show's condominium.

7. In her appeal to the Pennsylvania Superior Court, Lambert argued her
counsel was ineffective for failing to introduce evidence of her good
character and of the abuse inflicted upon her by Yunkin; Lambert also
raised the after-discovered evidence of Yunkin's breach of his plea
agreement and perjury.

8. See note 7, supra.

                               7
was subsequently denied on July 2, 1996. Lambert did not
seek collateral review of any of her claims through the
Pennsylvania Post-Conviction Relief Act.

Lambert instituted the present federal habeas corpus
action by filing a pro se writ of habeas corpus on
September 12, 1996. The district court subsequently
appointed counsel to represent Lambert and directed
counsel to file an amended petition, which they did on
January 3, 1997. Lambert's first amended petition for writ
of habeas corpus incorporated the claims previously
presented to the state courts, but went further, advancing
the following grounds for relief: (1) Lambert was actually
innocent and no credible evidence supported the
prosecution's theory of her guilt or the findings of the state
trial court; (2) the misconduct9 of the prosecution and the
police created a situation of manifest injustice; (3) after-
discovered evidence10 created manifest injustice; and, (4)
trial counsel was ineffective in over 35 separate ways. In its
Answer to the First Amended Petition, the Commonwealth
responded that Lambert was not entitled to federal review
at this time since she had failed to exhaust her state court
remedies and had committed insurmountable procedural
default. In the alternative, the Commonwealth argued that
Lambert's petition should be denied on the merits. Further,
_________________________________________________________________

9. The alleged misconduct includes altering Lambert's statement to the
police; creating a false crime scene photograph to discredit her;
knowingly presenting perjured testimony and failing to take remedial
measures after the perjury was confirmed; knowingly presenting "expert"
testimony that was scientifically incredible while tampering with the
defense's expert; altering evidence and witness statements; failing to
disclose Brady and Giglio evidence; and "losing" other exculpatory
evidence.

10. The after-discovered evidence allegedly consists of alterations of
Lambert's statement; alteration of crime scene evidence; scientific
testing
of clothing worn by Yunkin; photographs of the crime scene which
revealed additional writing in blood by the victim that exculpates
Lambert; autopsy report notes revealing the time of the victim's death;
injuries incurred by the "real" killers, Yunkin and Buck; testing of blood
found on the victim's ring; statements made by Yunkin and Buck to
their friends; and, the subsequent admission by the prosecution that the
primary witness against Lambert--and one of the"real" killers--had
committed perjury at Lambert's trial.

                               8
the Commonwealth expressly stated in its Answer that it
was not waiving the exhaustion requirement in any manner.11

Despite the Commonwealth's objections to Lambert's
petition on the grounds of exhaustion and procedural
default, the district court determined that it would allow
broad discovery and would conduct an evidentiary hearing
on Lambert's claims of actual innocence and prosecutorial
misconduct while, at the same time, considering the
Commonwealth's procedural claims of exhaustion and
procedural default. The district court denied the
Commonwealth's objection that the evidentiary hearing was
prohibited by the Anti-Terrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. S 2241
et seq., citing the highly unusual circumstances of this
case. The evidentiary hearing commenced on March 31,
1997, and, after fourteen days of testimony, the district
court entered an order granting the writ, releasing Lambert
from custody, and barring the Commonwealth from
conducting a retrial of Lambert.

The district court issued its Order and Memorandum
Opinion on April 21, 1997.12 Lambert v. Blackwell, 962
F.Supp. 1521 (E.D. Pa. 1997). The court found that the
1995 amendment to the Pennsylvania Post Conviction
Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann.S 9543, which
eliminated the waiver exception for actual innocence or
procedural default (former sections 9543(a)(3)(ii) and (iii)),
left Lambert without a state forum in which to raise her
claims of error. The district court interpreted the
Pennsylvania legislature's elimination of the actual
_________________________________________________________________

11. The district court found, however, that the Commonwealth waived its
exhaustion and procedural default arguments at the evidentiary hearing
when counsel stated that relief was "warranted" in this case. N.T. at
2703, April 16, 1997. In so holding, the district court did not recognize
that the Commonwealth withdrew this concession the very next day. In
any event, the Commonwealth maintains that any acquiescence it may
have made regarding relief did not result in an express waiver of the
exhaustion issue. See also note 28, infra.

12. In finding that Lambert was actually innocent of the murder of
Laurie Show, the district court did not address the third and fourth
grounds raised in Lambert's habeas petition regarding after-discovered
evidence and ineffective assistance of counsel.

                               9
innocence and procedural default exceptions to waiver "as
an advertent decision after the Supreme Court's decision in
Schlup [v. Delo, 513 U.S. 298 (1995),] to place those issues
squarely into the federal forum." Lambert, 962 F.Supp. at
1553. Thus, the district court concluded that Lambert
exhausted all of the claims presented in her federal habeas
proceeding, with the exception of the after-discovered
evidence which "expand[ed] the degree of the violations"
brought to the attention of the state trial judge or confirmed
Lambert's contention that she is actually innocent. Id.

The court further opined that to the extent there may be
claims which a Pennsylvania court might view as not being
waived, the state proceedings would be ineffective to protect
Lambert's rights if the district court dismissed the petition.
Id. at 1554. Moreover, the court found that if it were to
dismiss this case as a mixed petition pursuant to Rose v.
Lundy, supra, "on the suspicion that perhaps its reading of
the PCRA was wrong," then Lambert would be deemed to
have taken her one bite of the apple under the AEDPA. Id.
Consequently, in order for Lambert to return to federal
court, the district court opined, she would need the
approval of the court of appeals and denial of such
application was unreviewable by the Supreme Court. The
district court felt that under these extraordinary
circumstances, such a result was constitutionally
intolerable.13 Id.

Finally, the district court explained that in such an
extraordinary case, the principles of comity allowed it to
excuse total exhaustion or procedural default in the face of
a manifestly unjust incarceration.14 Id. In any event, the
_________________________________________________________________

13. Subsequent to the issuance of the district court's opinion, we decided
Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997), holding that "when a
prior petition has been dismissed without prejudice for failure to exhaust
state remedies, [authorization from the court] is [not] necessary and the
petitioner may file his petition in the district court as if it were the
first
such filing."

14. At a status conference held on February 13, 1997, prior to the
evidentiary hearing, the court, after articulating its concerns with the
exhaustion issue, opined that the better approach was to analyze the
petitioner's claims under the doctrines of actual innocence and manifest

                               10
court found that the Commonwealth's concession at the
evidentiary hearing that Lambert was entitled to some relief
effected a waiver of the exhaustion objection.

The Commonwealth filed a timely notice of appeal on
April 22, 1997. We have jurisdiction over this appeal
pursuant to 28 U.S.C. SS 1291 and 2253.15 In a federal
habeas corpus proceeding, we exercise plenary review of the
district court's legal conclusions and apply a clearly
erroneous standard to the court's factual findings. Caswell
v. Ryan, 953 F.2d 853, 857 (3d Cir. 1992) (citing Bond v.
Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989)).

II.

We note at the outset that the parties do not dispute that
Lambert's petition includes claims which were not
presented to the state court.16 Unlike the district court,
however, we cannot dispense with consideration of the
exhaustion and procedural default claims in favor of
reaching the merits of Lambert's claim of actual innocence.17
_________________________________________________________________

injustice based upon prosecutorial misconduct, which are derived from
the Due Process Clause and not from any statute (such as the PCRA).
The district court thus intimated that it was avoiding the exhaustion
issue by proceeding to a due process analysis. The court further stated
that while it agreed with the general requirements of the AEDPA
regarding evidentiary hearings and unexhausted claims, this case
involved highly unusual circumstances and, thus, those provisions did
not apply.

15. Because the Commonwealth has taken the appeal in this proceeding,
a certificate of appealability is not required as a prerequisite to our
exercising appellate jurisdiction. Fed. R. App. P. 22(b).

16. Lambert argues in her brief, however, that since she has waived the
non-exhausted claims in state court, she has thus exhausted her state
remedies. As explained below, we do not agree with Lambert that the
non-exhausted claims were necessarily waived in state court.

17. We recognize that a panel of this court, on a motion by the
respondents for a stay of Lambert's release pending the appeal,
concluded that the respondents failed to show that they were likely to
succeed in their argument that the petition should be denied because of
Lambert's failure to exhaust her state court remedies. Of course, that

                               11
Rather, we find that Supreme Court precedent and the
AEDPA mandate that prior to determining the merits of her
petition, we must consider whether Lambert is required to
present her unexhausted claims to the Pennsylvania courts.
We turn, therefore, to a discussion of exhaustion of state
claims under the AEDPA.

A.

It is axiomatic that a federal habeas court may not grant
a petition for a writ of habeas corpus filed by a person
incarcerated from a judgment of a state court unless the
petitioner has first exhausted the remedies available in the
state courts. 28 U.S.C. S 2254(b)(1)(A); Toulson v. Beyer,
987 F.2d 984 (3d Cir. 1993). The exhaustion requirement is
excused, however, where no available state corrective
process exists or the particular circumstances of the case
render the state process ineffective to protect the
petitioner's rights. 28 U.S.C. SS 2254(b)(1)(B)(I) and (ii). A
petitioner will not be deemed to have exhausted the
available state court remedies so long as she has the right
under state law to raise, by any available procedure, the
question presented. 28 U.S.C. S 2254(c). A petitioner who
has raised an issue on direct appeal, however, is not
required to raise it again in a state post-conviction
proceeding. Evans v. Court of Common Pleas, Delaware
County, Pennsylvania, 959 F.2d 1227, 1230 (3d Cir. 1992)
(citing Swanger v. Zimmermann, 750 F.2d 291, 295 (3d Cir.
1984)). Thus, the federal habeas claim must have been
"fairly presented" to the state courts, i.e., it must be the
substantial equivalent of that presented to the state courts.
Id. at 1231 (citations omitted). In addition, the state court
_________________________________________________________________

inherently tentative conclusion, based on a record less complete than
that before us and not reached after the opportunity for the intensive
study available to a merits panel, is not binding on this panel. See Third
Circuit I.O.P. 9.1 (only the holding of a panel in a published opinion is
binding on subsequent panels). See also United States v. Houser, 804
F.2d 565, 568 (9th Cir. 1986). In any event, the motions panel did not
preclude the respondents from raising the exhaustion issue. Rather, it
merely opined that they were not likely to succeed on it. In fact, upon
fuller presentation and consideration, they have succeeded.

                                12
must have available to it the same method of legal analysis
as that to be employed in federal court. Id. The habeas
petitioner carries the burden of proving exhaustion of all
available state remedies. Toulson, 987 F.2d at 987. The
exhaustion requirement does not foreclose federal relief, but
merely postpones it. Id. at 986.

The Supreme Court has made clear that a section 2254
petition which includes unexhausted as well as exhausted
claims, i.e., a mixed petition, must be dismissed without
prejudice. Rose v. Lundy, 455 U.S. 509, 522 (1982). In
reaching this conclusion, the Court analyzed the policies
underlying section 2254 since it found that Congress's
intent was unclear from the statute or legislative history. Id.
at 516-17. In endorsing rigorous enforcement of the total
exhaustion rule, the Court acknowledged the preference
among federal jurists to allow state courts the initial
opportunity to review and correct alleged violations of
federal constitutional rights. This preference is derived from
principles of comity.18 Id. at 518. The Court further noted
that adoption of a total exhaustion rule causes a reduction
in piecemeal litigation, thereby increasing the likelihood
that all claims will be reviewed in a single proceeding. Id. at
520. Finally, the Court observed that the prisoner's interest
in obtaining speedy relief in federal court on his claims
would not be unreasonably impaired by requiring total
exhaustion. Id. at 520-22. Thus, Lundy teaches that if the
petitioner fails to satisfy the exhaustion requirement prior
to filing a federal habeas petition and none of the
exceptions apply, the federal court is precluded from
granting habeas relief to the petitioner.
_________________________________________________________________

18. The doctrine of comity " `teaches that one court should defer action
on causes properly within its jurisdiction until the courts of another
sovereignty with concurrent powers, and already cognizant of the
litigation, have had an opportunity to pass upon the matter.' " Rose v.
Lundy, 455 U.S. 509, 518 (1982) (quoting Darr v. Burford, 339 U.S. 200,
204 (1950)). Indeed, we opined in Toulson v. Beyer, 987 F.2d 984, 986
(3d Cir. 1993), that requiring exhaustion of state remedies "addresses
federalism and comity concerns by `afford[ing] the state courts a
meaningful opportunity to consider allegations of legal error without
interference from the federal judiciary.' " (Citations omitted.)

                               13
Five years later, the Supreme Court handed down its
decision in Granberry v. Greer, 481 U.S. 129 (1987). In
Granberry, the district court had dismissed the federal
habeas petition upon the state's motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. When
the petitioner appealed, the state for the first time
interposed the defense that the petitioner had not
exhausted his state remedies. The petitioner responded by
arguing that the state waived this defense by failing to raise
it in the district court. The Supreme Court granted
certiorari to consider whether the state's failure to raise the
exhaustion defense in the district court constituted a
waiver of that claim in the court of appeals. 481 U.S. at
130.

The Court held in Granberry that where the state has
failed to raise, in the district court, an arguably meritorious
nonexhaustion defense, through inadvertence or otherwise,
the court of appeals may appropriately examine the
nonexhaustion issue anew. Id. at 134. In determining
whether the interests of comity and federalism were better
served by addressing the merits despite non-exhaustion,
the Supreme Court delineated the following standard:

       If, for example, the case presents an issue on which an
       unresolved question of fact or of state law might have
       an important bearing, both comity and judicial
       efficiency may make it appropriate for the court to
       insist on complete exhaustion to make sure that it may
       ultimately review the issue on a fully informed basis.
       On the other hand, if it is perfectly clear that the
       applicant does not raise even a colorable federal claim,
       the interests of the petitioner, the warden, the state
       attorney general, the state courts, and the federal
       courts will be well served even if the State fails to raise
       the exhaustion defense, the district court denies the
       habeas petition, and the court of appeals affirms the
       judgment of the district court . . . .

Granberry v. Greer, 481 U.S. at 134-35. Thus, we learn
from Granberry that where a state fails to raise a
nonexhaustion defense in the district court, courts of
appeals should consider whether, under the particular facts
and circumstances presented, the interests of justice would

                               14
be served by addressing the merits of the habeas petition if
it is clear the petitioner has failed to state a colorable
federal claim, or by requiring exhaustion. Id. at 136. We
emphasize, however, our previous holding that Granberry
applies to "any claim before the court of appeals for which
the state neglected to raise non-exhaustion in the district
court." Keller v. Petsock, 853 F.2d 1122, 1128 n.6 (3d Cir.
1988). Clearly that is not the case before us. The
Commonwealth has aggressively asserted the
nonexhaustion defense first in the district court and now
on appeal. Indeed, in our most recent decisions applying
Granberry, the state had failed to raise the nonexhaustion
defense in the district court. See, e.g. , Smith v. Horn, 120
F.3d 400 (3d Cir. 1997); Evans v. Court of Common Pleas,
Delaware County, 959 F.2d 1227 (3d Cir. 1992); Keller v.
Petsock, supra.

Significantly, two changes in the federal habeas statute
are derived from the Supreme Court's decision in
Granberry. First, under the AEDPA, a district court may no
longer infer that a state has waived the nonexhaustion
defense from its failure to invoke the defense expressly.
Gaylor v. Harrelson, 962 F.Supp. 1498, 1499 & n.2 (N.D.
Ga. 1997). The revised statute now requires an express
waiver through counsel in order for the state to have waived
the nonexhaustion defense. 28 U.S.C. S 2544(b)(3). Second,
the AEDPA, in 28 U.S.C. S 2544(b)(2), codifies the holding
in Granberry by conferring upon the district court the
authority to deny a habeas petition on the merits despite
the petitioner's failure to exhaust state remedies. Hoxsie v.
Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert. denied, ___
U.S. ___, 118 S.Ct. 126 (1997) (emphasis added). Standing
alone, section 2544(b)(2) does not provide a standard for
determining when a court should dismiss a petition on the
merits rather than requiring complete exhaustion. Id. Thus,
the court of appeals in Hoxsie read section 2544(b)(2) in
conjunction with Granberry. We read the Granberry test as
whether "it is perfectly clear that the applicant does not
raise even a colorable federal claim." 481 U.S. at 135.

We cannot say that it is perfectly clear that Lambert has
not raised a colorable federal claim. The district court
obviously found substantial merit to Lambert's claims of

                               15
actual innocence and prosecutorial misconduct. These
claims present unresolved questions of fact and of state law
and, thus, the interests of comity and justice are better
served by requiring complete exhaustion.

We note that section 2544(b)(2) does not provide the
district court with the authority to grant relief on the merits
where the petitioner fails to exhaust state remedies. Thus,
a strict reading of the statute compels us to conclude that
if a question exists as to whether the petitioner has stated
a colorable federal claim, the district court may not
consider the merits of the claim if the petitioner has failed
to exhaust state remedies and none of the exceptions set
forth in sections 2544(b)(1)(B)(I) and (ii) applies. Lambert
argues, in contrast, that Granberry establishes that where
the district court has held a full trial and found a
miscarriage of justice, a failure to exhaust is excused. We
disagree. The particular language in Granberry to which
Lambert refers states:

       [I]f a full trial has been held in the district court and it
       is evident that a miscarriage of justice has occurred, it
       may also be appropriate for the court of appeals to hold
       that the nonexhaustion defense has been waived in
       order to avoid unnecessary delay in granting relief that
       is plainly warranted.

481 U.S. at 135. We note that, unlike in Granberry, the
state has not waived the nonexhaustion defense. Second,
the AEDPA now explicitly requires an express waiver by the
state before waiver will be deemed to have occurred.
Moreover, to accept Lambert's argument would require that
we view Granberry as authorizing a district court to waive
the nonexhaustion defense even though the state has
aggressively asserted that defense at all stages of the
proceedings. This conclusion is irreconcilable, not only with
the express waiver provision in section 2544(b)(3), but also
with common sense. The quoted passage from Granberry
only has meaning when placed in the context of a case in
which the state failed to raise the nonexhaustion defense
before the district court. Given the new express waiver
requirement of the AEDPA, it is doubtful that Granberry
continues to have any import in a situation other than
where the state has expressly waived the nonexhaustion

                               16
defense. We need not answer this question, however, as the
resolution of the case before us does not require it.

For these reasons, we also reject Lambert's contention
that exhaustion is excused based on the "special
circumstances rule" derived from Supreme Court
jurisprudence, specifically Granberry v. Greer , supra, and
Frisbie v. Collins, 342 U.S. 519 (1952).19 We agree with the
Commonwealth that Granberry relates only to the special
circumstance of the prosecution never having raised the
exhaustion defense prior to appeal so that the Supreme
Court permitted the court of appeals to rule on the merits
of the petition. After enactment of the AEDPA in 1996, 28
U.S.C. S 2254 imposes a duty on the courts to examine the
exhaustion issue and to reject a petition if it raises
unexhausted claims.

Lambert's reliance on Frisbie v. Collins, supra, is likewise
misplaced, as that decision does not support a finding of
exceptional circumstances here.20 In Frisbie, the Supreme
Court reiterated the general rule that the presence of
special circumstances will excuse non-exhaustion. 324 U.S.
at 520-21. Whether such circumstances exist is to be
determined by the district court conducting a factual
appraisal in each particular case. Id. at 521. The Court
refused to discuss the special circumstances found by the
_________________________________________________________________

19. Lambert maintains before us that since she has either raised or
waived all of her claims in state court, she did exhaust her state
remedies. Lambert is equating exhaustion with waiver, however, in that
she argues that since the unexhausted claims have been waived under
Pennsylvania law, after the 1995 amendments to the PCRA, she is
without a mechanism for post-conviction relief. This argument cannot
form the basis of a "special circumstance" excusing her failure to
exhaust since, as we find infra, that review of her unexhausted claims is
not clearly foreclosed under Pennsylvania law.

20. The Commonwealth submits that the so-called "special
circumstances" exception of Frisbie v. Collins, supra, upon which
Lambert relies to excuse nonexhaustion, "is so ill-defined that it must be
considered sui generis" and, in any event, did not survive the AEDPA
amendments to the federal habeas corpus statute. The Commonwealth
describes Frisbie as "a case notably lacking in guidance on the
parameters of the [special circumstances] exception." We agree with the
Commonwealth's analysis of Frisbie.

                                17
court of appeals for the reason that the circumstances were
so peculiar to the case that "a discussion of them could not
give precision to the `special circumstances' rule."21 Id. at
522.

Recently, we considered the section 2544 exhaustion
requirement with regard to a mixed petition where, as here,
the state asserted the nonexhaustion defense in the district
court. Christy v. Horn, 115 F.3d 201, 206 (3d Cir. 1997).
Acknowledging the Supreme Court's strong presumption in
favor of exhaustion, we also recognized that "in rare cases
exceptional circumstances of peculiar urgency may exist
which permit a federal court to entertain an unexhausted
claim." Id. at 206-07 (citations omitted). We explained that
such circumstances exist where "state remedies are
inadequate or fail to afford a full and fair adjudication of
the federal contentions raised, or where exhaustion in state
court would be `futile.' " Id. at 207 (citations omitted).
Applying this principle in Christy, we declined to find an
exceptional circumstance which would excuse
nonexhaustion. We found the mere risk that the state
courts would not stay the petitioner's execution while his
federal constitutional claims are being litigated did not
amount to an "unusual circumstance." The more
appropriate inquiry, we found, was to focus on the actuality
that state courts will refuse to stay an execution while
federal claims are pending. Id.

Applying our holding in Christy to Lambert's petition, we
turn our attention to the actuality that the state courts
would refuse to entertain Lambert's claims. As we discuss
below, we cannot say with certainty that state review of
Lambert's claims is precluded. Absent clear preclusion, we
do not find any exceptional circumstances which would
warrant consideration of Lambert's unexhausted claims in
federal court.
_________________________________________________________________

21. The petitioner in Frisbie v. Collins alleged that the complaint in the
state court action was defective and, consequently, a faulty warrant was
issued for his arrest. He further contends that he was subsequently
kidnaped by Michigan police in Chicago and brought back to Michigan
for trial in violation of federal constitutional and statutory law. 324
U.S.
at 521 n. 5.

                               18
Our conclusion is further buttressed by the holding of
our sister court of appeals in O'Guinn v. Dutton , 88 F.3d
1409 (6th Cir. 1996), cert. denied, #6D6D 6D# U.S. ___, 117 S.Ct.
742 (1997). There the unexhausted claim involved
allegations of prosecutorial misconduct stemming from
Brady violations. The court of appeals found that the state
courts had an important interest in reviewing a serious
constitutional claim involving the conduct of a state
prosecutor in withholding evidence in a state trial in which
the defendant was prosecuted for a violation of state law.
Id. at 1412. Accordingly, the court held that the "interests
of justice and comity [did] not weigh in favor of having [the
federal court] decide the question." Id. at 1413. Having
found that the case did not present any unusual or
exceptional circumstances, the court concluded that the
state courts should address the prosecutorial misconduct
claim in the first instance. Id.

In contrast, we find that the cases cited by Lambert,
Evans v. Court of Common Pleas, supra, and Moore v.
DeYoung, 515 F.2d 437 (3d Cir. 1975), do not support her
argument that special circumstances exist which would
excuse exhaustion. It is true that in Evans we held that
"[e]xhaustion is not a jurisdictional requirement, but rather
a rule of comity, and a federal court may in certain
circumstances decide the merits of a claim despite non-
exhaustion." 959 F.2d at 1231. We elaborated on the
circumstances which would support non-exhaustion: where
the petitioner has no opportunity to obtain relief in a state
court, or where the state corrective process is so deficient
as to render any effort to obtain relief futile. Id. (citing
Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986)).
Citing Granberry v. Greer, supra, we noted further that
non-exhaustion notwithstanding, a district court may deny
a habeas claim on its merits if it appears unequivocally that
the petitioner has not raised even a colorable federal claim.
Id. We thus proceeded to consider the merits of Evans'
claims based on our conclusion that Evans' federal due
process claim was "the substantial equivalent of that
presented to the state courts" and, thus, had been
adequately exhausted. Even though the state failed to raise
the exhaustion defense in state court, we relied on
Granberry for the authority to reach the merits of Evans'

                               19
claims. We subsequently affirmed the district court's denial
of federal habeas relief. 959 F.2d at 1237.

Unlike Evans, Lambert presents numerous claims which
are not the substantial equivalent of those presented to the
state court in the direct appeal of her murder conviction.
Her petition is more factually analogous to Gibson v.
Scheidemantel, supra. There the petitioner alleged an
ineffective assistance of counsel claim in state court, but he
asserted a different basis for this claim in the state
proceeding than that presented in his federal habeas claim.
Consequently, we held that the petitioner had not
exhausted his claim since the state courts could not be
expected to consider a claim that was never made. 805 F.2d
at 139.

Nor do we find that Lambert's position is supported, as
she contends, by our decision in Moore v. DeYoung, 515
F.2d 437 (3d Cir. 1975). There we acknowledged the
possibility that federal habeas review to enjoin a state
criminal proceeding prior to trial was possible despite non-
exhaustion if "extraordinary circumstances are present." Id.
at 443. In finding that Moore failed to present an
" `extraordinary circumstance' which would warrant pre-
trial, pre-exhaustion habeas corpus relief," we declined to
define the parameters of the "extraordinary circumstances"
exception, holding only that whatever the boundaries may
be, Moore's petition fell outside those limits. 22 Id. at 447.
We noted, however, that manifest shortcomings by the
prosecutor's office and negligence in conducting Moore's
prosecution did not "reveal that quality of delay,
harassment, bad faith or other intentional activity which, in
an appropriate situation, might constitute an `extraordinary
circumstance', justifying pre-exhaustion federal habeas
relief." Id. at 447 n. 12.
_________________________________________________________________

22. In his petition, Moore alleged that the constitutional right to a
speedy trial was so unique that it should bar not only a conviction but
trial as well. This unique quality, Moore contended, constituted an
"extraordinary circumstance." 515 F.2d at 446.

                               20
B.

Although we discount Lambert's reliance on Granberry,
Frisbie, Evans, and Moore to support a finding of
exceptional circumstances sufficient to excuse
nonexhaustion, our inquiry does not end there. As we
stated earlier, one of the exceptional circumstances in
which courts have dispensed with the exhaustion
requirement is if further state litigation would be futile.
Christy, 115 F.3d at 207. See also Twenty-Sixth Annual
Review of Criminal Procedure, 85 Geo. L. J. 775, 1521 & n.
2755 (1997). In making this determination, courts have
examined the totality of the circumstances surrounding
each petition. Id. at 1521 n. 2755. For example, the Court
of Appeals for the First Circuit found the exhaustion
requirement excused when a recent independent decision
by the highest state court clearly rendered appellate review
futile. Id. (citing Allen v. Attorney General of Maine, 80 F.3d
569, 573 (1st Cir. 1996)). Another court of appeals excused
the exhaustion requirement when it was clear that the
petitioner's claims would be deemed procedurally barred if
presented in the state court. Id. (citing Grey v. Hoke, 933
F.2d 117, 120 (2d Cir. 1991)). Some courts have been
reluctant to apply the futility exception, however, because
it has been criticized for potentially bypassing the state
courts. Id. at 1522 n. 2755 (citations omitted). Most
importantly, we recently applied our jurisprudence to hold
that unless a state court decision exists indicating that a
habeas petitioner is clearly precluded from state court
relief, the federal habeas claim should be dismissed for
nonexhaustion, even if it appears unlikely that the state
will address the merits of the petitioner's claim. Banks v.
Horn, 126 F.3d 206, 211 (3d Cir. 1997) (citing Doctor v.
Walters, 96 F.3d 675, 683 (3d Cir. 1996); Toulson, 987 F.2d
at 988-89; Peoples v. Fulcomer, 882 F.2d 828, 831-32 (3d
Cir. 1989)).

In Banks, we were faced with whether the Pennsylvania
Supreme Court, in death penalty cases, consistently or
regularly bars second or subsequent PCRA petitions which
may not meet the court's criteria for such petitions,
"includ[ing] the existence of `a strong prima facie showing
. . . that a miscarriage of justice may have occurred.' "

                               21
Banks v. Horn, 126 F.3d at 211 (citing Commonwealth v.
Beasley, 678 A.2d 773, 771 (Pa. 1996), cert. denied, ___
U.S. ___, 117 S.Ct. 1257 (1997)). We concluded, based on
our review of Pennsylvania case law, that the Pennsylvania
Supreme Court had established a practice of reaching the
merits of claims in PCRA petitions in capital cases
notwithstanding the failure of the petitioner to meet the
appropriate procedural requirements. Id. at 212-13.
Because we were not sure that the supreme court would
change this practice after the 1995 amendments to the
PCRA, we found that state review of Bank's unexhausted
claims was not foreclosed. Id. at 214.

In deciding Banks, we relied on Doctor v. Walters, supra,
which involved a defendant who fled during the lunch
recess of his criminal bench trial on the charge of
aggravated assault following the presentation of the
Commonwealth's case. When the defendant failed to return,
the trial court, without informing the defendant, his
counsel, or the Commonwealth, entered a guilty verdict
against Doctor. Upon his capture five years later, Doctor
was sentenced to a term of 49 to 98 months in prison. He
filed a timely direct appeal to the Pennsylvania Superior
Court which quashed the appeal without reaching the
merits based on the fugitive forfeiture rule.23 Both the
Pennsylvania Supreme Court and the United States
Supreme Court also declined to hear his appeals. In his
federal habeas petition, Doctor raised a Sixth Amendment
claim which had not been presented to any Pennsylvania
court. We found that although the Pennsylvania courts
would hold, on collateral review, that Doctor waived the
right to assert his Sixth Amendment claim on procedural
grounds, PCRA review was not clearly foreclosed since
Doctor may be able to show that a " `miscarriage of justice'
warranting `departure from the PCRA's stringent eligibility
requirements' " has occurred. 96 F.3d at 681-82 (citation
omitted).
_________________________________________________________________

23. Rule 1972(6) of the Pennsylvania Rules of Appellate Procedure
permits a Pennsylvania appellate court to quash an appeal because the
appellant is a fugitive. Doctor v. Walters, 96 F.3d 675, 678 (3d Cir.
1996).

                                22
Likewise, in Toulson v. Beyer, we considered whether it
would be futile to require the petitioner to exhaust his state
remedies first. 987 F.2d at 986. There the defendant was
convicted in a New Jersey court of various non-capital
offenses. After a series of unsuccessful direct appeals to the
New Jersey courts and the denial of his motion for post-
conviction relief by the state trial court, Toulsonfiled a
federal habeas petition containing unexhausted but
procedurally barred claims in addition to exhausted claims.
In examining pertinent New Jersey law, we found that it
was possible that a New Jersey court may allow state
review of otherwise procedurally barred claims based on
one of two statutory exceptions to the procedural bar rule.
987 F.2d at 988. Accordingly, we held that "[b]ecause no
state court has concluded that petitioner is procedurally
barred from raising his unexhausted claims and state law
does not clearly require a finding of default, . .. the district
court should have dismissed the petition without prejudice
for failure to exhaust state remedies." Id. at 989. Thus, our
precedent makes clear that Lambert must exhaust her state
remedies before she can seek federal habeas relief unless
such an attempt would be futile. Doctor, 96 F.3d at 681
(citing Toulson, 987 F.2d at 987).

Futility may be encountered where exhaustion is
impossible due to procedural default, i.e., the state court
refuses to hear the merits of the claim because either (1)
the defendant waived a PCRA claim she could have raised
in an earlier proceeding but failed to do so; or (2) some
other procedural bar exists, such as a statute of
limitations. Doctor, 96 F.3d at 681. Moreover, a federal
habeas court may excuse exhaustion because of a
procedurally barred claim in state court "only when state
law `clearly foreclose[s] state court review of [the]
unexhausted claims.' Toulson, 987 F.2d at 987." Doctor, 96
F.3d at 681. We further explained:

       If the federal court is uncertain how a state court
       would resolve a procedural default issue, it should
       dismiss the petition for failure to exhaust state
       remedies even if it is unlikely that the state court
       would consider the merits to ensure that, in the
       interests of comity and federalism, state courts are

                               23
       given every opportunity to address claims arising from
       state proceedings. See Vasquez v. Hillery, 474 U.S.
       254, 257, 106 S.Ct. 617, 620, 88 L.Ed.2d 598 (1986);
       Toulson, 987 F.2d at 987.

Id. We must determine, therefore, whether, in the case
before us, Pennsylvania collateral review is "clearly
foreclosed" such that further state proceedings are futile.

C.

In Pennsylvania, collateral review of a criminal conviction
is available under the Post Conviction Relief Act ("PCRA") of
1995, 42 Pa. Con. Stat. Ann. SS 9541-46 (West 1997 Supp.).24
The scope of the relief provided under the PCRA is limited
to "persons convicted of crimes they did not commit and
persons serving illegal sentences . . .".25 42 Pa. Con. Stat.
Ann. S 9542. Section 9542 further provides that the PCRA
"shall be the sole means of obtaining collateral relief and
encompasses all other common law and statutory remedies
for the same purpose that exist when [the PCRA] takes
effect, including habeas corpus and coram nobis." The
PCRA also imposes several eligibility criteria for relief. First,
the petitioner must plead and prove by a preponderance of
the evidence that she is, at the time relief is granted,
currently serving a sentence of imprisonment, or is on
probation or parole, or is awaiting execution of a death
sentence. 42 Pa. Con. Stat. Ann. S 9543(a)(1). Second, the
petitioner must prove by a preponderance of the evidence
that her conviction or sentence resulted from one or more
of seven categories of claims, only three of which are
relevant. We paraphrase them here:

        (1) The petitioner's rights under the Pennsylvania
_________________________________________________________________

24. The PCRA of 1995 became effective on January 16, 1996, and
applies to postconviction petitions filed on or after that date. The PCRA
was subsequently amended by Act No. 1997-33 (H.B. 87), effective June
25, 1997, but the changes are irrelevant to the dispute before us.

25. Because it provides a limited scope of relief, the PCRA of 1995 has
been described as "one of the most restrictive and narrow of all the
modern state postconviction remedies." Donald E. Wilkes, Jr., State
Postconviction Remedies and Relief, App. A, p. 760 (1996 Ed.).

                               24
       Constitution or the Constitution or laws of the United
       States were violated which, under the circumstances,
       so undermined the truth-determining process that no
       reliable adjudication of guilt or innocence could have
       taken place.

        (2) The petitioner received ineffective assistance of
       counsel which, under the circumstances, so
       undermined the truth-determining process that no
       reliable adjudication of guilt or innocence could have
       taken place.

        (3) Exculpatory evidence, which was unavailable at
       the time of trial, was subsequently discovered and
       would have changed the outcome of the trial if it had
       been introduced.

42 Pa. Con. Stat. Ann. S 9543(a)(2)(i), (ii), and (vi).

Next, the petitioner must show by a preponderance of the
evidence that the alleged error has not been previously
litigated or waived. 42 Pa. Con. Stat. Ann. S 9543(a)(3). "An
issue will be deemed previously litigated when `the highest
appellate court in which the petitioner could have had
review as a matter of right has ruled on the merits of the
issue,' " Commonwealth v. Morales, 701 A.2d 516, 1997 WL
578289, *1 (Pa. Sept. 17, 1997) (quoting 42 Pa. Con. Stat.
Ann. S 9544(a)(2)), or "it has been raised and decided in a
proceeding collaterally attacking the conviction or
sentence." 42 Pa. Con. Stat. Ann. S 9544(a)(3). In her
federal habeas petition, Lambert advances three claims
which were previously litigated in the direct appeal of her
conviction and sentence. Accordingly, Lambert is not
entitled to postconviction relief on those claims under the
PCRA and has thus exhausted her state remedies as to
these three claims.

Finally, by a preponderance of the evidence, the
petitioner must demonstrate that the failure to litigate an
issue previously was not the result of any rational, strategic
or tactical decision by counsel. 42 Pa. Con. Stat. Ann.
S 9544(a)(4). Neither the contentions of the parties nor the
evidence of record suggests that Lambert's trial counsel
strategically planned to exclude in her direct appeal some
of the claims now raised.

                               25
Particularly significant to this appeal is the PCRA
provision on waiver, which states, "an issue is waived if the
petitioner could have raised it but failed to do so before
trial, at trial, during unitary review, on appeal or in a prior
state postconviction proceeding." 42 Pa. Con. Stat. Ann.
S 9544(b). In this regard, the Pennsylvania courts have held
"that nearly all claims are waived under the PCRA since
nearly all claims potentially could have been raised on
direct appeal. This applies even if the first-time petitioner
never has obtained appellate review of his conviction."
Commonwealth v. Eaddy, 614 A.2d 1203, 1207-08
(Pa.Super. 1992), appeal denied, 626 A.2d 1155 (Pa. 1993).
Prior to 1995, the PCRA also provided two exceptions to the
waiver rule. If the alleged error either (1) resulted in the
conviction of an innocent person, or (2) did not constitute
a state procedural default barring federal habeas relief,
then the waiver was excused. 42 Pa. Con. Stat. Ann.
SS 9543(a)(3)(ii) and (iii) (West 1988). Neither of these two
exceptions, however, is available to Lambert since her
direct appeal was not final until after the effective date
of the 1995 amendment to the PCRA. While Lambert
maintains and the district court held that elimination of
these two exceptions in the 1995 amendment effectively
bars relief under the PCRA on all claims, we are not
convinced that this is necessarily the case.

In the past, the Pennsylvania Supreme Court has allowed
the petitioner, in limited circumstances, to overcome the
waiver provisions where he has made a strong prima facie
showing that a "miscarriage of justice" may have occurred.
Commonwealth v. Lawson, 549 A.2d 107, 112 (Pa. 1988). In
order to prevail under this theory, the petitioner must show
either: "(a) that the proceedings resulting in[the] conviction
were so unfair that a miscarriage of justice occurred which
no civilized society can tolerate, or (b) that [the petitioner]
is innocent of the crimes charged." Commonwealth v.
Szuchon, 633 A.2d 1098, 1100 (Pa. 1993) (citing Lawson,
549 A.2d at 112). In a concurring opinion, Justice
Papadakos provided the following edification on
"miscarriage of justice":

       A miscarriage of justice, like prejudice, can only occur
       where it is demonstrated that a particular omission or

                               26
       commission was so serious that it undermined the
       reliability of the outcome of the proceeding. Where a
       conviction can be shown to result from a breakdown in
       the adversary process, the conviction rendered is
       unreliable. Such a conviction is obviously prejudicial to
       the defendant and, if allowed to stand, is a miscarriage
       of justice.

Lawson, 549 A.2d at 112 (Papadakos, J., concurring).

Moreover, we noted in Doctor that allegations of a
miscarriage of justice have been permitted to override the
waiver provisions of the PCRA in the context of successive
PCRA petitions, which was the situation in Lawson, supra.
96 F.3d at 682 n. 6. We further noted that the
Pennsylvania courts, however, have not addressed whether
a showing of miscarriage of justice can be applied to
overcome the waiver provisions in an initial PCRA petition.
Id. In Doctor, we refused to find that collateral review was
foreclosed since we concluded that Pennsylvania case law
left open the possibility that a showing of miscarriage of
justice can overcome the waiver provisions in an initial
PCRA petition. Id. We thus concluded that a return to state
court would not be futile. Id. at 683.

In Banks, we reiterated our policy regarding review of
waived or procedurally defaulted claims, which we originally
stated in Toulson and applied in Doctor :

       [I]n the absence of a state court decision indicating
       that a habeas corpus petitioner is clearly precluded
       from state court relief, the district court should dismiss
       the claim for failure to exhaust even if it is not likely
       that the state court will consider petitioner's claim on
       the merits.

126 F.3d at 211. We have applied this policy to all habeas
corpus cases involving state convictions regardless of the
sentence imposed. Whether, in fact, state case law exists
which establishes unequivocally that state relief is
precluded would depend on the particular facts of the case.
Although factually Banks is distinguishable from Lambert's
situation, the general rule of Banks governs our resolution
of this dispute.26 Neither Lambert nor the district court
_________________________________________________________________

26. Lambert argues our decisions in Banks and Doctor are
distinguishable and, therefore, inapposite. Lambert attempts to

                               27
cites any authority to the contrary. The Commonwealth, on
the other hand, cites several decisions in which
Pennsylvania courts have expressed a willingness to depart
from the PCRA's stringent waiver standards for non-capital,
as well as capital cases, where actual innocence or manifest
injustice is alleged. See Commonwealth v. Moss , 689 A.2d
259, 262 (Pa.Super. 1997) (where there is a strong prima
facie showing that a miscarriage of justice may have
occurred in a rape conviction, court will consider the merits
of a fifth PCRA petition); Commonwealth v. Williams, 660
A.2d 614, 618-19 (Pa.Super. 1995), appeal denied , 674
A.2d 1071 (Pa. 1996) (although the court denied PCRA
_________________________________________________________________

distinguish Doctor on the basis that the petitioner failed to raise in the
state court the legal theory and facts supporting his habeas claim, and
that we were referring to the pre-amendment PCRA when we noted the
availability of a "miscarriage of justice" exception to the waiver rule.
Our
holding in Doctor is clear: Pennsylvania case law leaves "open the
possibility that a showing of miscarriage of justice can overcome the
waiver provisions in an initial PCRA petition." 96 F.3d at 682 n.6. In
reaching this conclusion, we were construing the PCRA as amended in
1995, as evidenced by our citation to the 1996 supplement and the
language of the statute as amended in 1995.

Lambert distinguishes Banks on the basis that it is a death penalty
case with a clearly existing avenue for state court review. In a letter
brief
to the court dated September 30, 1997, Lambert states:

       In other words, Banks, Toulson, and Doctor hold only that a
       petitioner should be returned to state court to pursue an avenue of
       review that clearly exists. The present case presents precisely the
       opposite situation. Here, the avenue of state review-- indeed, the
       very review opportunity that was available in Toulson and Doctor --
       has been permanently blockaded by an explicit act of the
       Pennsylvania legislature eliminating the waiver excuses and
       advertently sending the cases at issue, including Lambert, to
federal
       court where waiver excuses still exist; and the practice in death
       sentence cases of ignoring waivers that was available in Banks is
       inapplicable.

Further, Lambert states that "where the legislature has advertently
channeled the case at issue to federal court--the district court should
proceed to the cause and prejudice/miscarriage of justice inquiry under
Schlup [v. Delo, 513 U.S. 298 (1995)]." (Citing Carter v. Vaughn, 62 F.3d
591, 595 (3d Cir. 1995)).

                               28
relief to a defendant who pled nolo contendere to robbery, it
acknowledged that Pennsylvania courts will address the
merits of waived claims upon a showing of manifest
injustice); Commonwealth v. Fiore, 665 A.2d 1185, 1194
(Pa.Super. 1995), appeal denied, 675 A.2d 1243 (Pa. 1996)
(Hoffman, J., concurring, wrote separately "to emphasize
that there are circumstances where a departure from the
PCRA's stringent eligibility requirements is appropriate,
such as where there are extraordinary circumstances or a
miscarriage of justice.").

A showing of ineffective assistance of counsel may also
excuse waiver. Morales, 701 A.2d 516, 1997 WL 578289, *2
(citing Commonwealth v. Christy, 656 A.2d 877, 881 (Pa.),
cert. denied, ___ U.S. ___, 116 S.Ct. 194 (1995)) (ineffective
assistance of counsel could be a basis for post-conviction
relief only if the defendant had a constitutional right to
counsel in the proceeding in which he claimed
ineffectiveness); see also Commonwealth v. Buehl , 658 A.2d
771, 777 (Pa. 1995) (three members of a divided court
interpreted the PCRA to require a defendant claiming
ineffectiveness of counsel to meet a more demanding
standard of prejudice than if he had raised this issue on
direct appeal); Thomas M. Place, Ineffective Assistance of
Counsel Under the Pennsylvania Post Conviction Relief Act,
69 Temple L. Rev. 1389 (1996). Waiver of errors under the
PCRA will be excused for ineffective assistance of counsel if
the defendant had a constitutional right to counsel at the
stage in the proceedings where counsel's ineffectiveness
brought about the waiver. Place, supra, at 1410 (citing
Christy, 656 A.2d at 881) (additional citation omitted).
"Consequently, ineffectiveness of counsel will only excuse
waiver of errors for claims where counsel is ineffective at
trial and on direct appeal." Id. (citing Christy, supra). If the
underlying claim was previously litigated on appeal, post-
conviction relief is not available based on a claim of
ineffective assistance of counsel. Id. (citations omitted).
Moreover, an ineffectiveness claim " `must be raised at the
earliest stage in the proceedings at which the allegedly
ineffective counsel is no longer representing the
[defendant].' " Id. (citing Commonwealth v. Griffin, 644 A.2d
1167, 1170 (Pa. 1994)). Finally, it should be noted that
"[c]ounsel's performance in terms of waiver becomes an

                               29
issue only in those cases where new counsel represents the
defendant at post-trial motions. If the new counsel does not
preserve the issue of the trial counsel's ineffectiveness in
post-trial motions, the new counsel waives the issue unless
a court determines that post-trial counsel provided
ineffective representation." Id. (footnote omitted).27

Our review of Pennsylvania decisional law leads us to
conclude that it is unclear after the 1995 amendments to
the PCRA whether the Pennsylvania courts would allow a
showing of miscarriage of justice to overcome the waiver
provisions in a non-capital case upon an initial PCRA
petition. Indeed, we have not discovered cases addressing
this issue after the passage of the 1995 amendments.
Accordingly, we cannot say that requiring Lambert to seek
review of her claims in the state courts is futile. 28
_________________________________________________________________

27. Although neither party has addressed the issue of whether
ineffectiveness of counsel excused waiver, the Commonwealth
acknowledged in its letter brief dated September 30, 1997, Pennsylvania
decisional law holding that "PCRA courts will consider claims which
otherwise would be deemed waived when raised under the rubric of
ineffective assistance of counsel." Commonwealth v. K.M., 680 A.2d 1168,
1171 n. 8 (Pa.Super. 1996) (citing Commonwealth v. Griffin, 644 A.2d
1167 (Pa. 1994)). Moreover, it is possible that Lambert could argue in a
PCRA petition that second post-trial counsel provided ineffective
representation in not raising the unexhausted claims in her direct
appeal. Since Lambert is now represented by different counsel, arguably
she would be raising the unexhausted claims at the earliest stage in the
proceedings at which previous counsel provided allegedly ineffective
representation. The uncertainty surrounding the availability of this
exception to the waiver rule further supports dismissal of the habeas
petition to allow the state court the opportunity to rule in the first
instance.

28. We find the district court erred in concluding that the
Commonwealth waived the exhaustion defense when it temporarily
conceded during the evidentiary hearing that Lambert was entitled to
some relief. Considering the circumstances under which the concession
was made, i.e., the Commonwealth was forced to defend the petition on
the merits without the benefit of a ruling on its exhaustion defense prior
to the evidentiary hearing, the fact that the Commonwealth continuously
maintained that Lambert had failed to exhaust her state remedies at all
stages of the proceedings, and the requirement that the waiver be
expressly given, we cannot say the Commonwealth waived the
exhaustion defense.

                               30
III.

In seeking state collateral review of her nonexhausted
claims, Lambert has several options. It is possible that
under 42 Pa. Con. Stat. Ann. S 5103, Lambert may transfer
her federal proceeding to the appropriate Pennsylvania
court. In addition, Lambert may institute a PCRA action
utilizing one or more of the three exceptions to the PCRA
statute of limitations, which allows for the filing of a PCRA
petition at the present time. We discuss these options
briefly.

A.

The Pennsylvania Transfer Statute provides in pertinent
part:

       (a) General rule.--If an appeal or other matter is taken
       to or brought in a court . . . of this Commonwealth
       which does not have jurisdiction of the appeal or other
       matter, the court . . . shall not quash such appeal or
       dismiss the matter, but shall transfer the record
       thereof to the proper tribunal of this Commonwealth,
       where the appeal or other matter shall be treated as if
       originally filed in the transferee tribunal on the date
       when the appeal or other matter was first filed in a
       court . . . of this Commonwealth.

42 Pa. Con. Stat. Ann. S 5103(a) (West 1997 Supp.) In the
case of actions originally filed in any United States court,
the statute further provides:

       [Section 5103(a)] shall also apply to any matter
       transferred or remanded by any United States court for
       a district embracing any part of this Commonwealth. In
       order to preserve a claim under Chapter 55 (relating to
       limitation of time), a litigant who timely commences an
       action or proceeding in any United States court for a
       district embracing any part of this Commonwealth is
       not required to commence a protective action in a court
       . . . of this Commonwealth. Where a matter is filed in
       any United States court for a district embracing any
       part of this Commonwealth and the matter is
       dismissed by the United States court for lack of

                               31
       jurisdiction, any litigant in the matter filed may
       transfer the matter to a court . . . of this
       Commonwealth by complying with the transfer
       provisions set forth in [section 5103(b)(2)].

42 Pa. Con. Stat. Ann. S 5103(b)(1) (West 1997 Supp.).

Although the transfer act clearly applies when the
original court lacks jurisdiction over the appeal or other
matter, we believe it may also apply here where the district
court dismisses a federal habeas petition for failure to
exhaust state remedies.29 The language of section 5103(b)(1)
indicates that a purpose of the statute is to prevent the
barring of claims and other matters under the statute of
limitations when the original court lacked jurisdiction over
a matter which was timely filed. Applying the transfer act
under the facts here would be entirely consistent with the
purpose of the statute.

We hasten to add, however, that we are not endorsing the
application of the transfer statute in all federal habeas
actions dismissed for nonexhaustion. Rather, we suggest
that transfer may be appropriate where, as here, the
district court did not originally dismiss the petition for
failure to exhaust state remedies. Instead, the court
prematurely proceeded to adjudicate the merits of the claim
during which the one-year statute of limitations expired.
Under these unique circumstances, the Pennsylvania
transfer statute may apply and any action commenced by
Lambert under the PCRA would be treated as filed on
September 12, 1996, the date on which she filed her
petition for writ of habeas corpus in the district court.

B.

Lambert has yet another option. The 1995 amendment to
the PCRA enacted for the first time a one-year statute of
limitations.30 Since the effective date of the 1995 Act is
_________________________________________________________________

29. When a district court dismisses a federal habeas petition for
nonexhaustion, it nevertheless has jurisdiction. The dismissal is based
on principles of comity afforded state courts.

30. Prior to the 1995 amendment, the PCRA did not contain a
limitations provision for filing a PCRA petition.

                               32
January 16, 1996, and Lambert's direct appeal wasfinal on
July 2, 1996, under 42 Pa. Con. Stat. Ann. S 9545(b)(1),
she had until July 1, 1997 to file a PCRA petition.31 A literal
reading of section 9545 indicates that by failing tofile a
PCRA petition on or before July 1, 1997, Lambert may now
be barred from filing a PCRA petition on her unexhausted
claims. Section 9545 also contains three exceptions to the
one-year filing requirement. Essentially, the limitations
period will be excused where (1) the petitioner failed to raise
the claim previously due to interference by government
officials with the presentation of the claim in violation of
the constitutions and laws of the United States and
Pennsylvania; (2) the facts upon which the claim is based
were unknown to the petitioner and could not have been
discovered through due diligence; or (3) the claim involves
a constitutional right recognized by the Supreme Court of
the United States or of Pennsylvania subsequent to the
expiration of the statute of limitations and held to apply
retroactively. 42 Pa. Con. Stat. Ann. S 9545(b)(1)(i), (ii), and
(iii). Interestingly, the original version of the bill proposing
the 1995 amendments to the PCRA contained a fourth
exception to the one-year time limit which was eliminated
before final passage. That exception would have allowed a
waiver of the statute of limitations where "[t]here is a
compelling need to address the claim because of a
fundamentally unfair trial, illegal sentence or some other
manifest injustice." H.R. 179-66, 1st Spec. Sess., at 510
(Pa. 1995).32
_________________________________________________________________

31. Section 9545(b) states in relevant part:

        (1) Any petition under [the PCRA], including a second or
       subsequent petition, shall be filed within one year of the date the
       judgment becomes final. . . .

        (3) [A] judgment becomes final at the conclusion of direct review,
       including discretionary review in the Supreme Court of the United
       States and the Supreme Court of Pennsylvania, or at the expiration
       of time for seeking the review.

32. The debate on this amendment centered on the concerns of certain
representatives that by providing a "manifest injustice" exception, they
would be opening a Pandora's box for the Pennsylvania appellate courts.
H.R. 179-66, 1st Spec. Sess., at 510 (Pa. 1995). Mr. Piccola argued that

                               33
The possibility exists that Lambert may be able to plead
and prove one or more of the excuses to the statute of
limitations. For example, Lambert has alleged in her federal
habeas petition that she discovered certain exculpatory
evidence after her conviction for first degree murder.
Moreover, she cites numerous instances of alleged
prosecutorial misconduct which, if proven, may be
sufficient to fall within the first exception of
unconstitutional interference by government officials. We
note that to date, no Pennsylvania court has been asked to
decide under what circumstances it would excuse an
untimely PCRA petition under the new statute of limitations
provision.33 Thus, Lambert may be able to proceed under
the PCRA.
_________________________________________________________________

Pennsylvania case law does not provide guidance on what constitutes
"manifest injustice" and cautioned against passing these words into the
statute without defining them. Id. At 511. He further commented that
the current bill (S.B. 81) contained adequate protection for the criminal
defendant who finds new evidence after trial, as well as in many other
circumstances. Id. The "manifest injustice" amendment was eventually
defeated. Id. at 512. On the other hand, Mr. Thomas, who introduced the
amendment, argued that "the amendment provide[d] a protective
mechanism in situations where there is conduct that does not arise until
way beyond the statutory period," . . . . Id. at 510. He further
commented that "fairness would require that we provide an . . . avenue
of relief, in situations where individuals do not come face to face with
conduct that has resulted in either their incarceration or their harm
beyond that . . . statutory year that is provided for in this particular
bill."
Id. at 510-11. He opined that passage of the bill without the avenue of
review provided in the amendment would cause a disservice to the whole
judicial system. Id. at 511.

33. Under the prior statute which did not contain a statute of
limitations provision, the Pennsylvania courts were lenient in allowing
collateral review after long delays, especially in situations involving
ineffective assistance of counsel. See, e.g., Commonwealth v. Johnson,
532 A.2d 796 (Pa. 1987) (mere delay, standing alone, may not be
sufficient reason to reject PCRA petition summarily); Commonwealth v.
McCabe, 519 A.2d 497 (Pa.Super. 1986) (a PCRA petition filed six years
after the supreme court affirmed denial of his petition to set aside an
illegal sentence was not untimely); Commonwealth v. Taylor, 502 A.2d
195 (Pa.Super. 1985), appeal denied (1986) (unexplained delay in filing
first PCRA petition is a factor to be considered in assessing the merits
of
the claims raised in the petition, but is not a basis for refusing to
consider the claims by reason of laches and waiver).

                               34
IV.

One final matter bears mention. Each side has brought to
our attention serious factual issues concerning the district
court's finding that Lambert was actually innocent of first
degree murder. In light of our resolution of Lambert's
petition, we need not comment on Lambert's actual
innocence. Indeed, to do so would be to "deprive the state
courts of an `opportunity to correct their own errors, if
any,' " Doctor, 96 F.3d at 683 (citing Toulson, 987 F.2d at
989), by engaging in a premature examination of the verdict
prohibited by Congress under the AEDPA.

We do not, however, diminish the obvious sense of
outrage expressed by the prosecution nor that of the able
district judge who heard and evaluated the evidence
Lambert proffered. Resolution of these difficult questions
must nonetheless await the appropriate forum for the
constitutional balance our forefathers created to remain in
equipoise. Accordingly, we will vacate the order of the
district court granting the petition for writ of habeas corpus
and remand to the district court with the direction to
dismiss the petition without prejudice.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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