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


12-13-2007

Washington v. Sobina
Precedential or Non-Precedential: Precedential

Docket No. 05-4522




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                                       PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 05-4522


               RICHARD A. WASHINGTON

                                 v.

       RAYMOND J. SOBINA, SUPERINTENDENT;
           THE DISTRICT ATTORNEY OF
          THE COUNTY OF PHILADELPHIA;
           THE ATTORNEY GENERAL OF
          THE STATE OF PENNSYLVANIA,
                                  Appellants


       On Appeal from the United States District Court
           for the Eastern District of Pennsylvania
                    (D.C. No. 02-cv-07474)
          District Judge: Honorable Anita B. Brody


         Submitted Under Third Circuit LAR 34.1(a)
                     October 22, 2007

    Before: SLOVITER, CHAGARES, and HARDIMAN,
                     Circuit Judges

                 (Filed December 13, 2007 )
                            ____

Thomas W. Dolgenos
Susan E. Affronti
Office of District Attorney
Philadelphia, PA l9l07-3499

      Attorneys for Appellants
Richard A. Washington #DK-8177
Somerset, PA 15510

       Appellee Pro Se

                              ____

                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

       Federal judges reviewing habeas corpus matters often
face a difficult assignment. Frequently, the state court records
presented are in disarray or incomplete, the defendant was
unrepresented or inadequately represented in the state
proceedings, and the deference to be accorded is unclear, as it
may depend on whether the state court’s decision was based on a
finding of fact or conclusion of law. In the appeal before us, the
District Court undertook a meticulous examination of the record
and the applicable legal principles, but our decision hinges on
the characterization of the state court finding - one on which the
parties vigorously disagree.

                                I.

        Richard A. Washington was arrested on December 18,
1995, and thereafter charged in state court on numerous counts
in connection with the kidnapping of Asha Woodall, his
girlfriend, and the murder of Anthony Carney, who Washington
believed was having a relationship with Woodall. Washington
v. Sobina, 387 F. Supp. 2d 460, 462 (E.D. Pa. 2005). On
December 22, 1998, after the first trial ended in a mistrial, the
second jury found Washington guilty of criminal conspiracy,
possession of an instrument of crime, and robbery of a motor
vehicle. The jury also acquitted him of some charges, including
first degree murder, and was unable to reach a verdict on the




                                2
counts charging the lesser degrees of murder and kidnapping.1
On February 16, 1999, Washington was sentenced to five to ten
years imprisonment on the three charges for which he was
convicted.

        On February 19, 1999, Washington, acting pro se, filed a
post-sentence motion contesting his sentence without notifying
his attorney that he had done so. On March 5, 1999,
Washington’s attorney presented a notice of appeal from the
judgment of sentence, which was stamped by the clerk’s office
as “Received Accepted For Review Only Mar 5 1999 Criminal
Appeals Unit First Judicial District of PA.” App. at 91. There is
no docket entry for a notice of appeal. On March 15, 1999,
Washington’s attorney was ordered by the trial judge “to file of
record, a concise Statement of Matters Complained of on the
Appeal.” Wash. App. at 5. The letter from the judge stated that
“[u]pon receipt of your reply to this order, I will write my
Opinion forthwith.” Wash. App. at 5.

       On April 26, 1999, the trial court denied Washington’s
post-sentence motion. On April 30, 1999, the trial court issued
an “Order” setting forth a procedural history of Washington’s
post-sentence filings, which included, inter alia, the following:
“1. On 2/16/99, defendant was sentenced on the partial verdict of
12/22/98. 2. On 3/5/99, Appeal to Pennsylvania Superior Court
accepted for review only.” Wash. App. at 96.

       Washington filed a habeas corpus petition in the Superior
Court of Pennsylvania on November 8, 2001, which the court
denied on January 30, 2002, citing to “Municipal Publications v.
Court of Common Pleas, 489 A.2d 1286 (Pa. 1985) (stating that
the Supreme Court of Pennsylvania has original jurisdiction to



       1
          Washington’s third trial began on February 10, 2003, and
ended with a hung jury on February 21, 2003. Id. at 464. While
awaiting a fourth trial, Washington pled guilty to the untried
murder and kidnapping charges on May 9, 2006, and was sentenced
to a total of seven and one-half to twenty years imprisonment to run
concurrently with the sentence for the three counts of conviction.

                                 3
issue a writ on the lower court where no appeal is pending.)”.
Washington, 387 F. Supp. 2d at 464 & n.13 (emphasis added).
Washington filed a federal habeas corpus petition on February
19, 2002, which was summarily dismissed for non-exhaustion
because of the pendency of the state habeas petition.
Washington filed another state habeas corpus petition in the
Pennsylvania Supreme Court on March 12, 2002, which was
dismissed on June 4, 2002. On September 25, 2002, Washington
filed his second federal habeas corpus petition, which alleged
that his Sixth Amendment right to a speedy trial and his due
process right to a speedy appeal had been denied. It is this
petition that is the basis of this appeal.2 The District Court
appointed counsel for Washington.

        While the federal habeas petition was pending,
Washington, on August 11, 2003, again acting pro se, filed a
post-conviction review petition in state court, pursuant to the
Pennsylvania Post Conviction Relief Act (“PCRA”), alleging
that his right to appeal had been denied. The PCRA court
dismissed Washington’s PCRA petition on June 22, 2004. In an
opinion filed August 23, 2004, the PCRA judge (who was also
the trial judge) set forth the basis for the June 22, 2004 order.
See App. 81-90. The court reviewed the procedural history,
noting that the Commonwealth had not filed an appeal from the
order dismissing the first degree murder charge, and stated that
“[t]he case was delayed multiple times because of scheduling
issues and because an appeal was filed with respect to
[defendant’s] Robbery of Motor Vehicle conviction. The appeal
was ultimately withdrawn.” App. at 85. The PCRA court then
listed the procedural events from December 17, 1999 until
February 12, 2003, ending with the hung jury and the case being
continued for status listing on February 26, 2003. The court
continued with its review of the proceedings, stating that on June
15, 2004, it allowed Washington to proceed pro se with his



       2
         This appeal was filed by Superintendent Raymond J.
Sobina, the Office of the District Attorney of Philadelphia, and the
Attorney General of the State of Pennsylvania (“Commonwealth”
or “government”).

                                 4
PCRA claims at his request. The court then stated “[o]n June 22,
2004, this court dismissed [d]efendant’s PCRA claims for relief
as untimely.” App. at 86.

       In the next section of the opinion of the PCRA court,
under the heading “Legal Issue,” the court again discussed the
prior proceedings. The court stated:

              Defendant was convicted of the charges relevant to
       his PCRA petition on December 22, 1998 and sentenced
       on February 16, 1999. Defendant’s post-sentence
       motions were denied on April 15, 1999. Defendant then
       had 30 days in which to file an appeal. Pa. R. Crim. P.
       1410(A)(2). Defendant failed to do so. Therefore, the
       judgment in his case became final 30 days after April 15,
       1999. See Commonwealth v. Smith, 818 A.2d 494, 495
       (Pa. 2003); 42 Pa.C.S. § 9545(b)(1).

App. at 87 (emphasis added). The court continued:

               Defendant had one year from 30 days after April
       15, 1999 to file a PCRA petition. 42 Pa.C.S. §
       9545(b)(1). Defendant did not file his PCRA petition
       until August 11, 2003, more than two years after the
       judgment in his case became final relative to the instant
       charges. Therefore, in order for Defendant’s PCRA
       petition to be timely, Defendant would have to allege one
       of the three timeliness exceptions in 42 Pa.C.S. §
       9545(b)(1)(i)-(iii) . . . .

App. at 88.

        The PCRA court noted that Washington did not allege
any of the timeliness exceptions but stated that he raised by
implication a claim of government interference that the trial
court had effectively denied his right to appeal or bring a timely
PCRA petition by imposing sentence on him while other charges
against him were still pending. The PCRA court concluded that
the claim was without merit. Because Pennsylvania had no rule
on point, the court considered cases from other jurisdictions that

                                5
permitted appeals on less than all counts of a criminal indictment
even while other counts were still pending. It referred to, inter
alia, United States v. Abrams, 137 F.3d 704, 707 (2d Cir. 1998)
(noting majority approach permitting appeal from conviction and
sentence on less than all counts of an indictment when other
counts tried in same trial remained unresolved), and United
States v. Kaufmann, 985 F.2d 884, 891 (7th Cir. 1993)
(“[S]everal circuits have . . . entertained an appeal on one count
of a criminal indictment while other counts of the indictment
were unresolved.”) (citing United States v. Cicco, 938 F.2d 441,
442 (3d Cir. 1991)).

       Relying on these cases, the PCRA court rejected
Washington’s argument that the trial court could not have
sentenced him on some of the charges on which he was
convicted while others were still pending. It stated that
Washington “cannot now claim that his failure to properly
prosecute an appeal constitutes government interference based
upon unlikely speculation that Pennsylvania would adopt the
limited minority approach of barring appeals until all charges in
an indictment receive final judgment.” App. at 89. The PCRA
court concluded that Washington “failed to bring his PCRA
petition within the statutory time frame” and dismissed the
petition as untimely. App. at 90.

       Meanwhile, the matter was proceeding in federal court.
After the Magistrate Judge issued a Report and Recommendation
(“R&R”), recommending rejection of some of Washington’s
claims but acceptance of his claim that his speedy appeal right
was violated, both the Commonwealth and Washington filed
objections. Undoubtedly the PCRA court’s August 23, 2004
opinion left the District Court in a difficult position as to
whether Washington had failed to file or had withdrawn his
appeal. According to the District Court’s listing of the
sequential events, there was what is termed on the docket an
evidentiary hearing on January 18, 2005, at which the Court
determined, after consultation with the parties, that another
evidentiary hearing would be necessary. Instead of waiting for
the Superior Court decision on Washington’s appeal of the
denial of his PCRA petition, as the Commonwealth requested,

                                6
see App. 161-62, the District Court proceeded to conduct an
evidentiary hearing on May 20, 2005 at which only Washington
testified.

       A review of the testimony at that hearing shows that it
was focused on Washington’s speedy trial claim, as the only
references to the appeal were Washington’s statements that he
was trying to get to trial (on the still pending charges) so that he
could pursue an appeal (on the charges for which he was
convicted). See App. at 195-196. At the conclusion of the
hearing on May 20, 2005, the District Court granted the parties
permission to file two additional affidavits. Pursuant to that
order, Washington filed the affidavit of his trial counsel, Charles
Mirarchi, III, who stated that “[o]n March 7, 1999, I filed a
Notice of Appeal based on Judge Poserina’s February 16, 1999-
sentence. That notice has never been dismissed. I was told by
the Court that an appeal on a partial verdict could not be
prosecuted.” Wash. App. at 15-16.

        Thereafter, on September 12, 2005, again without waiting
for the Superior Court decision, the District Court issued its
opinion on Washington’s request for a writ of habeas corpus.
See Washington, 387 F. Supp. 2d at 460. The Court agreed with
the conclusion of the Magistrate Judge that Washington had
exhausted his claim and that Washington’s right to a speedy trial
had not been violated. Id. at 468, 473. The Court then turned to
Washington’s claim that his right to a speedy appeal had been
violated. The District Court rejected the government’s argument
that Washington had, in fact, never filed an effective notice of
appeal and therefore no appeal was currently pending. Id. at
475. The Court noted that the government thereafter argued that
the appeal was withdrawn and concluded that “the government
has apparently abandoned the argument in its objection that the
appeal was not effectively filed,” id. at 474, but proceeded to
consider the argument in any event. The District Court stated
that “[t]he state court record indicates that the court accepted
Washington’s notice of appeal,” rejected the government’s
contention that the state court could not possibly have accepted
Washington’s appeal because his post-sentence motion was
pending, and instead stated “it is equally likely that the court did

                                 7
not consider Washington’s pro se post-sentence motion to be
pending because Washington did not have the authority to file
pro se motions while represented by counsel.” Id. at 474-75.
The District Court then rejected the government’s contention
that the speedy appeal claim was invalid because Washington
failed to properly file a notice of appeal. The Court also rejected
the government’s argument that the notice of appeal had been
withdrawn because the District Court found “by clear and
convincing evidence that the appeal was not withdrawn.” Id. at
475. The Court then conditionally granted Washington’s
petition for writ of habeas corpus based on failure of his speedy
appeal right “unless the Pennsylvania Superior Court decides
Washington’s direct appeal by March 13, 2006.” Id. at 477.
That is the order the Commonwealth appeals to this court.3

       Significantly, however, after the District Court issued its
opinion, the Pennsylvania Superior Court on December 23,
2005, decided the appeal pending before it from the PCRA
court’s order dated June 22, 2004 dismissing Washington’s
PCRA petition as untimely filed. The Superior Court, although
displaying some impatience with the PCRA court in some
respects,4 nevertheless agreed with the PCRA court that
Washington’s PCRA petition was untimely filed. Although it
never mentioned the PCRA court’s statement that the appeal was
withdrawn, in its review of “the tortured procedural history of


       3
         Washington also cross-appealed the District Court’s denial
of his claim that he was denied the right to a speedy trial as to the
murder and kidnapping charges; that cross-appeal was dismissed
per curiam by this court. See Washington v. Sobina, 475 F.3d 162
(3d Cir. 2007) (holding right to speedy trial is non-jurisdictional
and therefore waived by voluntary and unconditional guilty plea).
       4
         The Superior Court noted, inter alia, that the PCRA court
dismissed the petition without the required twenty-day notice of
intention to dismiss, a rule it had held to be mandatory although
that was not raised on appeal, and that the PCRA court had failed
to comply with its order by failing to notify it of the determination
whether Washington’s waiver of counsel was proper. Neither of
these matters is relevant to the issue on appeal.

                                 8
this case” it reiterated that pursuant to the Pennsylvania PCRA
statute, any PCRA petition must be filed within one year of the
date the judgment becomes final. App. at 74. The Superior
Court stated that Washington’s judgment of sentence became
final on May 26, 1999, when the time period allowed for filing a
direct appeal expired, that a timely petition had to be filed by
May 26, 2000, and that Washington’s petition “would appear to
be untimely, as it was not filed until July 28, 2003.” App. at 78.
The court concluded that none of the statutory exceptions were
applicable, and “as [Washington] fails to successfully invoke any
of the time of filing exceptions contained in the Act, the petition
remains untimely filed.” App. at 79. Accordingly, the Superior
Court affirmed the order of the PCRA court dismissing
Washington’s PCRA petition as untimely filed.

                                II.

       Although Washington filed his federal habeas petition
under 28 U.S.C. § 2254, and the District Court exercised
jurisdiction over his petition under 28 U.S.C. § 2254(a), he now
claims that he should have filed his habeas petition under 28
U.S.C. § 2241 which would relieve him from the heightened
standards prescribed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). We reject that claim for the
reasons set forth in the margin.5 We have jurisdiction over the



       5
         Section 2254 confers jurisdiction on a federal court to
entertain writs of habeas corpus “in behalf of a person in custody
pursuant to the judgment of a State court.” Washington argues that
because the state trial court sentenced him on some charges while
other charges remained open, his appeal rights were never
triggered, and therefore the sentence is not a “judgment” under §
2254. Not only was this issue never raised in the District Court or
in Washington’s response brief to this court, but Washington’s
argument fails on its merits. We have held that a state prisoner
challenging the validity or execution of his state court sentence
must rely on the more specific provisions of § 2254 rather than §
2241. Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001).
Because Washington’s speedy appeal claim argues that the state

                                9
District Court’s final order pursuant to 28 U.S.C. §§ 1291 and
2253. We have plenary review over the District Court’s grant of
habeas corpus and review its factual findings for clear error.
Rolan v. Vaughn, 445 F.3d 671, 677 (3d Cir. 2006).

                                     III.

        Section 2254(e)(1) of AEDPA provides: “In a proceeding
instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a
determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.” 6 28 U.S.C. § 2254(e)(1).

        The touchstone of AEDPA is the requirement that federal
habeas courts should accord deference to the factual
determinations of the state courts. Both the PCRA court and the
Pennsylvania Superior Court found that Washington failed to file
his PCRA petition (alleging denial of his appeal rights) in
accordance with the time requirements of 42 Pa. Cons. Stat.
Ann. § 9545(b)(1). That statute requires a petitioner to file a
PCRA petition within one year of the date the judgment becomes
final, unless one of three statutory exceptions applies.7 The state


courts were too slow in resolving his appeal relating to the three
counts on which he was convicted, this claim constitutes a
challenge under § 2254.
         6
        This presumption applies regardless of whether there has
been an “adjudication on the merits” pursuant to § 2254(d). Nara
v. Frank, 488 F.3d 187, 200-01 (3d Cir. 2007).
         7
             These exceptions are:

   (i)       the failure to raise the claim previously was the result of
             interference by government officials with the presentation
             of the claim in violation of the Constitution or laws of this
             Commonwealth or the Constitution or laws of the United
             States;

                                     10
courts found that none of the statutory exceptions applied, and
the District Court did not hold otherwise.

        We turn from Washington’s failure to file a timely PCRA
petition to the central question before us, whether Washington
filed a timely notice of appeal for his purported direct appeal. It
is uncontested that Washington’s attorney handed a “Notice of
Appeal” to a member of the Clerk’s Office on March 5, 1999,
but there is no reference to any notice of appeal on the state
court docket. Based on its holding that no appeal was pending,
the PCRA court dismissed Washington’s PCRA petition as
untimely. The Commonwealth argues that this determination
must be given deference by the federal habeas court.

        The District Court declined to do so, and did not follow
the Commonwealth’s request to await the outcome of the
pending appeal to the Superior Court of the PCRA court’s
decision. Instead, the District Court rejected the
Commonwealth’s request that it stay the habeas proceeding to
allow the Superior Court to decide Washington’s appeal of the
PCRA court’s decision “[b]ecause Washington’s appeal is still
pending . . . [and therefore] his judgment has never become final
for purposes of a PCRA petition.” Washington, 387 F. Supp. 2d
at 476.

       This is troubling for several reasons. In the first place,
the District Court’s conclusion that “the state court lacks
authority to decide Washington’s PCRA petition,” id., runs



   (ii) the facts upon which the claim is predicated were
         unknown to the petitioner and could not have been
         ascertained by the exercise of due diligence; or
   (iii) the right asserted is a constitutional right that was
         recognized by the Supreme Court of the United States or
         the Supreme Court of Pennsylvania after the time period
         provided in this section and has been held by that court to
         apply retroactively.

42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i)-(iii).

                                 11
counter to its own discussion of the PCRA court’s decision. If
the District Court was saying that the PCRA court had no
jurisdiction because Washington’s direct appeal was still
outstanding, there was no reason for the District Court to have
considered the PCRA court’s opinion at all. Yet it did so at
some length. If the District Court was saying that the Superior
Court would have no jurisdiction over the appeal from the PCRA
court’s decision, the District Court was overlooking the
possibility that the Superior Court would have disagreed with the
PCRA court’s decision. We have made clear that in the event of
a conflict between the fact findings of the state trial court and the
state appellate court, deference should be given to the version
reached by the higher court. Dickerson v. Vaughn, 90 F.3d 87,
90 (3d Cir. 1996).

        For purposes of comity, it would have been better practice
for the District Court to have stayed the proceedings to allow the
Pennsylvania Superior Court to decide Washington’s appeal of
the PCRA decision. Although doing so was not necessary under
the exhaustion doctrine, “[a] federal district court ‘should give
careful consideration to the appropriate demands of comity in
effectuating its habeas corpus decree.’” Gibbs v. Frank, 500
F.3d 202, 210 (3d Cir. 2007) (citation omitted). Because
“important interests in comity and federalism require deference
to factual determinations made by ‘all state courts,’” Rolan, 445
F.3d at 679 (citation omitted), considerations of comity would
have been best served if the District Court had given the
Superior Court an opportunity to consider Washington’s appeal
before deciding the federal habeas petition. Had the District
Court awaited the Superior Court’s opinion, it would have noted
that the Superior Court did not refer to the statement by the
PCRA court that Washington’s appeal had been withdrawn.
Thus it would have been unnecessary for the District Court to
have considered that statement which it then found was
erroneous. Because the Superior Court did not state or intimate
that Washington’s appeal was withdrawn, we do not consider
that possibility.

      Instead, we focus only on the PCRA court’s
determination, affirmed by the Superior Court, that Washington

                                 12
did not file an effective notice of appeal. The District Court
rejected the government’s argument that the appeal was not
effectively filed by stating that “[t]he state court record indicates
that the court accepted Washington’s notice of appeal.”
Washington, 387 F. Supp. 2d at 474. Not only is that contrary to
the finding of both the PCRA court and the Superior Court, but
our review of the record convinces us that there is no basis for
the District Court’s contrary factual finding. In rejecting the
PCRA court’s findings, the District Court stated:

       While the government contends that the state court could
       not possibly have accepted Washington’s appeal because
       Washington’s post-sentence motion was pending, it is
       equally likely that the court did not consider
       Washington’s pro se post-sentence motion to be pending
       because Washington did not have the authority to file pro
       se motions while represented by counsel.

Id. at 474-75. There was no reason for conjecture by the District
Court. The fact remains that there is no docket entry showing a
filing of the notice of appeal, which explains why “[t]here is no
record of the state court rejecting Washington’s appeal,” an
omission the District Court believed was relevant. Id. at 474
n.47. The fact that the notice of appeal was marked “Received
Accepted for Review Only” further distinguishes the treatment
of that document from one that is filed.

       The only explanation we can find for the District Court’s
decision is that it apparently did not regard the finding of the
PCRA court that no appeal had been filed as entitled to
deference. However, in Thompson v. Keohane, 516 U.S. 99,
111-12 (1995), the Supreme Court differentiated “factual
issues” 8 from questions of law, and noted that issues as to “what
happened,” “scene- and action-setting questions,” as well as



       8
        Thompson was decided prior to the enactment of AEDPA,
and therefore its discussion of “factual issue” involved the
interpretation of 28 U.S.C. § 2254(d), the predecessor of §
2254(e)(1).

                                 13
matters that turn on the appraisal of witness credibility or
demeanor are clearly factual and thus warrant a presumption of
correctness under § 2254(e). Although the distinction between
factual and legal questions is “sometimes slippery,” id. at 111,
we have followed the Supreme Court’s definition of “factual
issues” as “basic, primary or historical facts: facts in the sense of
a recital of external events and the credibility of their narrators.”
See Berryman v. Morton, 100 F.3d 1089, 1094 (3d Cir. 1996)
(internal quotations and citations omitted). “It is these ‘factual
issues’ to which the statutory presumption of correctness
predominately relates.” Id. (citing Thompson, 516 U.S. at 110).

        Under the statutory standards governing the granting of
habeas relief, a state court’s factual findings must be rebutted by
clear and convincing evidence. See Lambert v. Blackwell, 387
F.3d 210, 234 (3d Cir. 2004) (citing 28 U.S.C. § 2254(e)(1)).
Deference accorded a state court’s determination of fact is not
limitless, and “does not by definition preclude relief,” Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003); nevertheless, the burden
is on the habeas petitioner to rebut the presumption of
correctness by clear and convincing evidence. It is not enough
to decide that the petitioner has advanced a plausible alternative
to the factual findings of the state court. See Martini v.
Hendricks, 348 F.3d 360, 368 (3d Cir. 2003).

        The District Court, in concluding that the PCRA court’s
determination that no notice of appeal was filed was incorrect,
failed to credit the PCRA court’s determination because, as the
District Court explained, the record was silent on the question.
It is precisely because the Superior Court noted that the notice of
appeal was accepted for review only but that there was no entry
on the docket for the notice of appeal that its determination that
no appeal was filed merits deference. Cf. Weeks v. Snyder, 219
F.3d 245, 259 (3d Cir. 2000) (“[An] implicit factual finding is
due the same highly [deferential] presumption of correctness
required by § 2254(e).”). Silence in the record is insufficient to
overcome that presumption, especially in light of the fact that the
judge who was involved in Washington’s sentencing was the
same judge who dismissed Washington’s PCRA petition. The
District Court erred in finding that there was clear and

                                 14
convincing evidence to overturn the state court determination
simply because there was a lack of evidence in the record stating
that the appeal had been dismissed.

        Moreover, the District Court failed to place the burden on
Washington, as required by § 2254(e)(1). Washington did not
meet that burden as he introduced nothing persuasive on the
issue.9 Instead, the District Court engaged in a speculative,
independent analysis to find that the notice of appeal was
properly filed, even though it was never docketed in state court
and the PCRA trial and appellate courts found that Washington
had failed to file it. The District Court determined that the
record indicated that the state court had accepted the notice of
appeal because there was never a dismissal of the notice, and it
stated that the fact that the state court ordered a concise
statement of matters complained of on appeal pursuant to Rule
1925(b) of the Rules of Appellate Procedure 10 “suggests that at
the time the order [of April 30, 1999, listing some of


       9
         We note that Washington’s trial counsel, Charles P.
Mirarchi, III, filed an affidavit with the District Court in which he
stated that the appeal had never been dismissed and that he was
told “that an appeal on a partial verdict could not be prosecuted.”
Wash. App. at 15-16. However, we do not find this assertion
convincing, as Washington attempted to take an appeal from his
sentence, not from the verdict. See Commonwealth v. O’Neill, 578
A.2d 1334, 1335 (Pa. Super. Ct. 1990) (“[I]t is well settled that in
criminal cases appeals lie from judgment of sentence rather than
from the verdict of guilt[.]”).
       10
           Rule 1925(b) states that where there has been a notice of
appeal, the lower court “may enter an order directing the appellant
to file of record in the trial court and serve on the judge a concise
statement of the errors complained of on the appeal.” Pa. R. App.
P. 1925(b). In this case, the state trial judge ordered counsel for
Washington to respond to his order within thirty days, or by April
15, 1999. The April 30, 1999 Order setting forth a procedural
history of Washington’s post-sentence filings listed the March 5
appeal accepted for review only and the March 15 order requesting
a concise statement.

                                 15
Washington’s procedural history] was issued . . . the appeal was
still pending.” Washington, 387 F. Supp. 2d at 474 n.47. But
see Satterfield v. Johnson, 434 F.3d 185, 192 (3d Cir. 2006)
(“The mere fact that a court reviewed an application before
dismissing it does not necessarily mean that an application was
‘properly filed.’”) (citing Pace v. DiGuglielmo, 544 U.S. 408,
414 (2005)).

        The District Court also addressed the fact that the state
trial court ruled on Washington’s pro se post-sentence motion,
which it could not do if an appeal was in fact filed. See Pa. R.
App. P. 1701(a) (“after an appeal is taken . . . the trial court . . .
may no longer proceed further in the matter”). Rather than infer
from this that the trial court believed no appeal was pending, the
District Court stated that “it is equally likely that the [state] court
did not consider Washington’s pro se post-sentence motion to be
pending because Washington did not have the authority to file
pro se motions while represented by counsel.” Washington, 387
F. Supp. 2d at 474-75 (citing Commonwealth v. Pursell, 724
A.2d 293, 301-02 (Pa. 1999)). There was no basis for this
hypothesis. Because the trial court ruled on Washington’s pro se
motion, the logical inference is that the notice of appeal had not
been accepted because otherwise the trial court would no longer
have had jurisdiction over the matter. See Pa. R. App. P.
1701(a).

       We therefore conclude that the District Court erred in
engaging in speculative, independent fact finding contrary to the
determinations of the PCRA and Superior Courts that
Washington failed to file a timely notice of appeal. The Court
should have accorded those findings a presumption of
correctness,11 and placed the burden on Washington to come



       11
         As further support for our position, we note that the United
States Supreme Court and this court have repeatedly held, in the
context of the AEDPA tolling provision, 28 U.S.C. § 2244(d)(2),
that when a postconviction petition is not timely under state law,
“‘that [is] the end of the matter’ for purposes of § 2244(d)(2).”
Pace, 544 U.S. at 414 (citation omitted); see also Allen v. Siebert,

                                  16
forward with clear and convincing evidence to the contrary.

       We feel compelled to note that much of the difficulty in
which Washington finds himself is of his own making. His
penchant for filing pro se pleadings while he had counsel served
to confuse the proceedings. Moreover, a fact not emphasized in
the Commonwealth’s brief but one that we find significant is
that Washington was on notice as early as January 30, 2002, that
the Superior Court believed that there was no appeal pending as
that was the reason it gave for dismissing Washington’s first
state habeas petition.

                                IV.

      For the above-stated reasons, we will vacate the District
Court’s order, remand to that Court, and direct that it deny
Washington’s Petition for a Writ of Habeas Corpus.
_____________________




___ U.S. ___, 128 S. Ct. 2, 4 (2007). “Once the Pennsylvania court
has so decided, it would be an undue interference for a federal
district court to decide otherwise.” Merritt v. Blaine, 326 F.3d 157,
168 (3d Cir. 2003).

       Arguably, the failure to file a timely appeal could be
considered a procedural default, but because the parties have not so
argued we do not analyze this appeal in those terms. See Trest v.
Cain, 522 U.S. 87, 89 (1997); Smith v. Horn, 120 F.3d 400, 409
(3d Cir. 1997).
