                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-16-2003

Lutz v. Brennan
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3768




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 01-3768
                                     ___________

                                 ROBERT A. LUTZ,
                                             Appellant

                                           v.

    EDWARD T. BRENNAN, SUPERINTENDENT OF STATE CORRECTIONAL
    INSTITUTE AT ALBION; MICHAEL FISHER, ATTORNEY GENERAL OF
                          PENNSYLVANIA.

                                     ___________

                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                   District Court Judge: The Honorable Donald J. Lee
                               (D.C. Civil No. 01-cv-00455)
                                      ___________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                    June 5, 2003

   Before: BARRY, FUENTES, Circuit Judges, and MCLAUGHLIN,* District Judge.

                            (Opinion Filed: June 16, 2003)
                             ________________________

                              OPINION OF THE COURT
                             ________________________



      *
       Hon. Mary A. McLaughlin, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:

       In 1992, a M ercer County, Pennsylvania jury convicted Robert Lutz of first degree

murder. After a seven-day jury trial, Lutz was sentenced to life imprisonment with no

possibility of parole. Following his sentencing, Lutz’s case became quite complicated

procedurally. We have set forth the procedural history of this case in detail below.1 After

exhausting all of the state remedies available to him, Lutz filed a petition for writ of habeas

corpus, pursuant to 28 U.S.C. § 2254, in the District Court. On September 6, 2001, the

District Court issued a final order dismissing the petition. On November 22, 2002, this Court

granted Lutz’s request for a certificate of appealability to address the following issues: (1)

whether he was denied due process and equal protection when his right to a direct appeal was

allegedly denied; (2) whether the District Court properly declined to dismiss the petition as

time-barred under 28 U.S.C. § 2244(d); and (3) whether this claim should have been denied

on the basis of the Commonwealth’s procedural default defense. We conclude that the

statute of limitations defense was waived by the Commonwealth, but because Lutz’s claim

of unconstitutional deprivation of direct appeal rights is procedurally defaulted, we will

affirm the denial of this habeas petition.

       We have appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(c)(1)(A). We

exercise plenary review over the District Court’s legal conclusions. McCandless v. Vaughn,




       1
        Because the facts of the underlying conviction are not relevant to the issues on
appeal and are familiar to the parties, we have not summarized those facts in this opinion.

                                              -2-
172 F.3d 255, 260 (3d Cir. 1999).

                               PROCEDURAL HISTORY

       Lutz was convicted in April, 1992. His trial counsel filed timely post-verdict motions

on May 4, 1992, and the trial court denied those motions on November 13, 1992. Despite

Lutz’s request, his attorney failed to appeal the denial of the post-verdict motions (i.e. file

a direct appeal) to the Superior Court.

       On December 23, 1992, however, Lutz filed several pro se motions seeking to amend

the trial court’s ruling on his post-verdict motions. The trial court viewed Lutz’s pro

se pleadings as a petition pursuant to the Pennsylvania Post Conviction Relief Act (“PCRA”),

and appointed Randall T. Hetrick to represent Lutz. Mr. Hetrick filed a PCRA petition on

Lutz’s behalf. On November 19, 1993, privately-retained counsel, Stanton D. Levinson,

replaced Hetrick as Lutz’s attorney of record. On September 23, 1994, the trial court held

a PCRA hearing. On March 8, 1995, the trial court granted Mr. Levinson’s motion to

withdraw. Five days later, the trial court issued an order and opinion reinstating Lutz’s right

to a direct appeal, nunc pro tunc, and denying the issues raised in the PCRA petition. At that

point in time, Lutz was unrepresented.

       On April 4, 1995, Lutz filed a pro se notice of appeal from the March 13, 1995 order,

but he failed to indicate that his pleading was actually a direct appeal. On July 17, 1995, the

trial court appointed Robert H. Isbell to represent Lutz. On October 10, 1995, the trial court

issued an order stating that no further opinions would be forthcoming because the opinions



                                              -3-
dated November 13, 1992, and March 13, 1995, addressed all of Lutz’s appellate arguments.

Soon thereafter, the trial court granted Mr. Isbell’s request to withdraw.

       Privately-retained counsel, Stephen J. Delpero, entered his appearance on December

5, 1995. Mr. Delpero filed an appellate brief on Lutz’s behalf in the Superior Court raising

seven issues. The Superior Court denied the appeal on April 1, 1996. Despite the fact that

the Superior Court characterized the matter as an appeal from the denial of a PCRA petition

rather than a direct appeal, it addressed the merits of each of the seven issues. Mr. Delpero

filed a timely petition for allowance of appeal to the Pennsylvania Supreme Court, but the

petition was denied.

       Lutz then filed a PCRA petition on January 13, 1997, before the Pennsylvania Court

of Common Pleas. William G. McConnell was appointed counsel for Lutz. PCRA hearings

were conducted on September 29, 1997, and October 7, 1997. The court denied relief on the

merits. Mr. McConnell filed a timely appeal to the Superior Court, and raised eight issues.

The Superior Court denied the appeal in January 2000, stating:

        Appellant’s first PCRA petition resulted in his appellate rights being
        reinstated nunc pro tunc, but all his other requests for post conviction relief
        were denied. Because appellant failed to file an appeal nunc pro tunc,
        although that relief was granted to him, his judgment of sentence became
        final at the expiration of time for seeking review, thirty days subsequent to
        March 8, 1995. Therefore, appellant had one year from April 8, 1995, to
        file his second petition. Appellant’s second petition was not filed until
        January 13, 1997, over two years after the judgment of sentence was final.
        Moreover, appellant’s petition does not allege, nor does the record reveal
        that any of the exceptions to the timeliness requirement of Section
        9545(b)(1) are applicable. Accordingly, the PCRA court did not err in
        dismissing appellant’s petition without a hearing.

                                              -4-
(App. 377-78)

       Mr. McConnell filed a motion for reconsideration, in which he argued that Lutz’s

previous counsel was ineffective for failing to file a direct appeal after having been given

leave to do so by the trial court. Despite prior counsel’s erroneous characterization of the

pleadings, Mr. McConnell argued that “it clearly appears from a review of the content and

issues raised in said appeal, that the same was both in actuality and substance a direct appeal

nunc pro tunc from the trial court’s Order denying post-verdict motions dates November 13,

1992.” Id. at 389. Mr. McConnell urged the Superior Court to conclude that Lutz’s prior

appeal was a direct appeal rather than an appeal from the denial of a PCRA petition. Id. The

motion was denied on March 16, 2000. Lutz filed a timely pro se petition for allowance of

appeal to the Pennsylvania Supreme Court, but that petition, too, was denied.

       In March of 2001, Lutz filed a petition for writ of habeas corpus raising four claims:

(1) denial of due process and equal protection when his right to a direct appeal was denied;

(2) ineffective assistance of trial counsel in failing to seek a jury instruction on self-defense;

(3) ineffective assistance of trial and appellate counsel in failing to object to the

Commonwealth’s questioning regarding Lutz’s post-arrest silence; and (4) ineffective

assistance of trial and appellate counsel in failing to object to the trial court’s failure to give

the jury a proper progression charge. Lutz requested an order temporarily granting the

petition for writ of habeas corpus and discharging him if the Commonwealth does not

reinstate his right to appeal within 120 days. The Commonwealth responded by arguing that



                                                -5-
the first claim was procedurally defaulted because Lutz never presented it to the state courts,

and that the remaining claims should be denied on the merits.

       Magistrate Judge Mitchell recommended on May 7, 2001, that the petition be denied.

Before addressing the claims raised by Lutz, the Magistrate Judge sua sponte raised the issue

of statute of limitations, and concluded that regardless of when the limitations period began

to run, Lutz would be entitled to equitable tolling on the “unique facts” of his case. The

Magistrate Judge then concluded that all of the claims in the petition were exhausted and

recommended denying relief on the merits. With respect to the first claim, the Magistrate

Judge found that Lutz “has not suffered any adverse consequences as a result of the

Pennsylvania courts’ disposition of his post-verdict petitions,” and thus any constitutional

error was harmless. Lutz filed objections to the report and recommendation, but the

Commonwealth did not.

       On September 5, 2001, the District Court adopted the Magistrate Judge’s

determination that the petition was timely filed under principles of equitable tolling. The

District Court rejected the Magistrate Judge’s exhaustion analysis with respect to Lutz’s first

claim, finding that Lutz never presented this argument to the state courts. Nonetheless, the

District Court proceeded to address the merits of the claim, and concluded that Lutz had not

been denied his right to counsel, right to effective assistance of counsel, or his right to a

direct appeal. (App. 44-46) Specifically, the District Court stated:

         To make a long story short, counsel for petitioner raised and briefed
         everything he could have in Superior Court, which reviewed everything he

                                              -6-
         raised as if on direct appeal, despite the “glitch” in his notice of appeal and
         Superior Court’s characterization of that appeal. Petitioner simply was not
         deprived of counsel at the critical briefing and deliberation stages of the
         appellate proceedings.

(App. 46-47) The District Court adopted the Magistrate Judge’s reasoning on the remaining

claims and denied relief.

                                         ANALYSIS

       This Court granted a certificate of appealability limited to the following issues: (1)

whether Lutz was denied due process and equal protection when his right to a direct appeal

was allegedly denied; (2) whether the District Court properly declined to dismiss the petition

as time-barred under 28 U.S.C. § 2244(d); and (3) whether this claim should have been

denied on the basis of the Commonwealth’s procedural default defense. We will begin by

addressing the time-bar issue and then turn to the procedural default issue. Because we

conclude that Lutz’s claim regarding the unconstitutional deprivation of a direct appeal is

procedurally defaulted, we will not address the merits of that claim.

       A. Statute of Limitations

       The District Court declined to dismiss this habeas petition as time-barred under 28

U.S.C. § 2244(d) under the principle of equitable tolling. In the certificate of appealability,

we ordered the parties to address that ruling, and informed the parties that the highly relevant

decision in Robinson v. Johnson, 283 F.3d 581 (3d Cir. 2002), had been withdrawn and that

a rehearing was pending. After the issuance of the certificate of appealability, this Court

issued a revised opinion in Robinson holding that “because the AEDPA limitations period

                                               -7-
is subject to equitable modifications such as tolling, it is also subject to other non-

jurisdictional, equitable considerations, such as waiver.” 313 F.3d 128, 134 (3d Cir. 2002).

The Robinson court also held that “affirmative defenses under the AEDPA should be treated

the same as affirmative defenses in other contexts, and, if not pleaded in the answer, they

must be raised at the earliest practicable moment thereafter.” Id. at 137. The Robinson

holding controls our decision on the statute of limitations issue in Lutz’s case.

       The Commonwealth did not raise a statute of limitations defense in its Answer to

Lutz’s habeas petition. The Commonwealth did not raise the defense before the Magistrate

Judge either. In fact, the Magistrate Judge sua sponte raised the defense, but nonetheless

determined that the petition was not time-barred under the principle of equitable tolling. The

Commonwealth did not object to the Magistrate Judge’s report and recommendation.

Because the Commonwealth failed to raise the affirmative time-bar defense in its Answer or

at any of the “earliest practicable moment[s]” thereafter, the defense is waived.            Id.

Accordingly, we will affirm the District Court’s ruling that Lutz’s habeas petition is not time-

barred, but for the reason of waiver rather than equitable tolling.

       B. Procedural Default

       The District Court noted that Lutz’s claim regarding denial of due process and equal

protection might be procedurally defaulted, but nonetheless proceeded to address the merits

of the claim. The Commonwealth argues on appeal that the District Court should have found

the claim to be procedurally defaulted rather than reviewing the merits. Lutz argues that his



                                              -8-
claim is not procedurally defaulted. He argues in the alternative that if this Court finds that

his claim is procedurally defaulted, the default should be excused in order to avoid a

fundamental miscarriage of justice.

       “As a general rule, federal courts may exercise the power to consider habeas

applications only where ‘it appears that the applicant has exhausted the remedies available

in the courts of the State.’” McCandless, 172 F.3d at 260 (quoting Walker v. Vaughn, 53

F.3d 609, 614 (3d Cir. 1995)). “When a claim is not exhausted because it has not been ‘fairly

presented’ to the state courts, but state procedural rules bar the applicant from seeking further

relief in state courts, the exhaustion requirement is satisfied because there is ‘absence of

available State corrective process.’” Id. (quoting 28 U.S.C. § 2254(b)). “In such cases,

however, applicants are considered to have procedurally defaulted their claims and federal

courts may not consider the merits of such claims unless the applicant establishes ‘cause and

prejudice’ or a ‘fundamental miscarriage of justice’ to excuse his or her default.” Id.

(quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Accordingly, in order to prevail

on its procedural default defense, the Commonwealth must establish that: (1) Lutz did not

“fairly present” his claim to the Pennsylvania courts; and (2) Pennsylvania’s procedural rules

bar Lutz from seeking further relief. If the Commonwealth meets its burden, Lutz must

establish “cause and prejudice” or a “fundamental miscarriage of justice” in order to excuse

his default.

       We must first determine whether Lutz “fairly presented” his claim to the Pennsylvania



                                               -9-
courts. “To ‘fairly present’ a claim, a petitioner must present a federal claim’s factual and

legal substance to the state courts in a manner that puts them on notice that a federal claim

is being asserted.” McCandless, 172 F.3d at 261 (citing Anderson v. Harless, 459 U.S. 4, 6

(1982); Picard v. Connor, 404 U.S. 270, 277-78 (1971)). It is not sufficient that a “somewhat

similar state-law claim was made,” Harless, 459 U.S. at 6, yet the petitioner need not have

cited “book and verse” of the federal constitution. Picard, 404 U.S. at 278.

       Lutz’s habeas claim is that he was deprived of his right to a direct appeal in violation

of the due process and equal protection clauses of the federal constitution. In his application

for reconsideration to the Pennsylvania Superior Court following its January 2000 decision,

however, Lutz made only the following arguments: a) that he had in fact or substance filed

a direct appeal nunc pro tunc following the trial court’s March 8, 1995 order; and b) the

erroneous styling of that appeal was the result of ineffective assistance of counsel.

       Neither of those arguments sufficed to put the state courts on notice of his federal

claim. See e.g. Duncan v. Henry, 513 U.S. 364, 366 (1995) (“If a habeas petitioner wishes

to claim that an evidentiary ruling at a state court trial denied him the due process of law

guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in

state court.”). In fact, Lutz’s first argument to the Superior Court is the direct opposite of his

habeas claim, and his second implicates a different constitutional amendment (the Sixth

Amendment) than that implicated by his habeas claim (the Fourteenth Amendment).

Accordingly, we find that Lutz did not “fairly present” his federal claim to the state courts.



                                              -10-
       Neither party disputes that Pennsylvania’s procedural rules bar Lutz from seeking

further relief.2 Accordingly, Lutz’s claim regarding the unconstitutionality of his allegedly

denied direct appeal is procedurally defaulted. The only remaining question is whether Lutz

has established a “fundamental miscarriage of justice” to excuse his default.3

       “To show a fundamental miscarriage of justice, a petitioner must demonstrate that he

is actually innocent of the crime . . .” Keller v. Larkins, 251 F.3d 408, 415-16 (3d Cir. 2001),

cert. denied, 543 U.S. 973 (2001). Lutz does not argue that he is actually innocent of the

crime for which he was convicted. Instead, he argues that the “miscarriage of justice” excuse


       2
         Even if Lutz were to file an additional PCRA petition, the Pennsylvania courts
would find it to be time-barred under the one-year limitation period set forth in 42
Pa.C.S.A. § 9545(b)(1), and he is outside of the sixty-day limitation for the invocation of
an exception to the filing limitation. 42 Pa.C.S.A. § 9545(b)(2). Because the limitations
are jurisdictional, the Pennsylvania courts do not have the power to address the merits of
an additional PCRA petition filed by Lutz. See Commonwealth v. Gamboa-Taylor, 562
Pa. 70, 77, 753 A.2d 780, 783 (2000).
       3
        Lutz had the option of attempting to establish “cause and prejudice” to excuse his
procedural default, but he did not avail himself of that option. We note, in any event, that
Lutz would not have been able to establish “cause.” “To show cause and prejudice, ‘a
petitioner must demonstrate some objective factor external to the defense that prevented
compliance with the state’s procedural requirements.’” Cristin v. Brennan, 281 F.3d 404,
412 (3d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. at 753). Examples of
objective factors external to the defense sufficient to demonstrate “cause” include
“interference by the state with the conduct of a defense or the previous unavailability of
the factual or legal basis of a claim.” Cristin, 281 F.3d at 420. There was no interference
by the Commonwealth with Lutz’s right to present his claim. The factual and legal
predicate for the claim was available as soon as the Superior Court issued its January
2000 decision. In sum, Lutz has not presented any argument, nor does the Court find one
available on the record, that would suffice to establish “cause.” See Murray v. Carrier,
477 U.S. 478, 486 (1986) (“[T]he mere fact that counsel failed to recognize the factual or
legal basis for a claim, or failed to raise the claim despite recognizing it, does not
constitute cause for a procedural default.”).

                                             -11-
encompasses an unconstitutional denial of direct appeal rights, and cites several non-binding

authorities for support. Lutz’s argument is unpersuasive. In Cristin v. Brennan, we held that

“[t]he miscarriage of justice inquiry is thus concerned with ‘actual innocence.’” 281 F.3d

404, 420 (3d Cir. 2002), cert. denied, __ U.S. __, 123 S. Ct. 195 (Oct. 27, 2002) (citing

Sawyer v. Whitley, 505 U.S. 333, 339 (1992)); see also Schlup v. Delo, 513 U.S. 298, 329

(1995).   To the extent that the scope of the “miscarriage of justice” excuse could be

expanded, this case does not present a justification for such an expansion. All of the

substantive issues Lutz would have raised on direct appeal have already been reviewed by

the Pennsylvania courts. Thus, Lutz has not established an excuse for his procedural default.

       Because we find that Lutz’s claim is procedurally defaulted, we will not address the

merits. We will affirm the District Court’s denial of the habeas corpus petition, but on the

ground of procedural default rather than on the ground provided by the District Court.

                                      CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s denial of Lutz’s petition

for a writ of habeas corpus.




TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.




                                                          /s/ Julio M. Fuentes
                                                          Circuit Judge

                                             -12-
