                                                                                                                           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Precedential or Non-Precedential: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 284.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/284


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Filed January 26, 1998

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

Present: SLOVITER, Chief Judge,
BECKER, STAPLETON, MANSMANN, GREENBERG,
SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS,
MCKEE and ALARCON,* Circuit Judges.

SUR PETITION FOR REHEARING
(Filed: January 26, 1998)

The petition for rehearing filed by appellee in the above
entitled case having been submitted to the judges who
participated in the decision of this court and to all other
available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of
the circuit in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing is
denied. Judges Nygaard, Roth, Lewis and McKee would
have granted rehearing. Attached is Judge Roth's Opinion
Sur Denial in which Judges Nygaard, Lewis and McKee
join.
_________________________________________________________________

*Senior Circuit Judge Alarcon voted only as to panel rehearing.
BY THE COURT,

/s/ Carol Los Mansmann

Circuit Judge

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Opinion Sur Denial of the Petition for Rehearing

ROTH, Circuit Judge,

I voted for rehearing in banc because I am profoundly
disturbed by the panel's refusal to consider the merits of
Lisa Michelle Lambert's petition for a writ of habeas corpus
and by the panel's decision to vacate the judgment of the
district court and to remand the case with instructions to
dismiss Lambert's petition. I am familiar with the merits of
the habeas proceeding from reading large portions of the
transcript of the proceedings before the district court. As a
result, I am aware of the evidence of prosecutorial
misconduct that occurred during Lambert's original trial. I
find it to be truly shocking. This misconduct included
suppression of key evidence, witness tampering, provision
of false testimony, and other flagrant violations of Lambert's
right to due process.

Once the district court had made factual findings
regarding the extent of prosecutorial misconduct,findings
that critically undermined the validity of the original verdict
against Lambert, I find it to be a miscarriage of justice for
this Court to turn its back upon the merits of her petition.

Moreover, I differ with the panel's conclusion that a
failure to exhaust was not excused by the facts of this case.
I find sufficient the district court's determination that the
Commonwealth had waived any exhaustion argument. This
finding of waiver was made on April 16, 1997, after the
Lancaster County Prosecutor conceded on the record that
relief was warranted. The district judge, who was present to
assess the statements and the demeanor of the prosecutor,
found that the Commonwealth's later attempt to retract the
concession was ineffective. Nevertheless, the panel's opinion
concludes that the district court erred in finding waiver
because of the circumstances in which the concession was
made. Panel Opinion at ___ [typescript at 32 n.28].
Because, however, the panel so carefully avoids any
consideration of the merits of the case, its opinion fails to
note that the Commonwealth's concession was made in the
aftermath of the shocking recollection by the victim's
mother, Hazel Show, that she had been encouraged by a
Lancaster County police officer to suppress critical

                               3
information that corroborated Lambert's account of the
events surrounding the murder of Laurie Show.

Indeed, even if the district court were to have erred in
reaching the issue of actual innocence, once there has been
a demonstration of a miscarriage of justice, such as I find
here, I cannot turn my back on that showing.

Moreover, even if I were to disregard the Commonwealth's
concession that relief was warranted, I believe that proof of
a miscarriage of justice to the extent uncovered in this case
requires a determination that the issue of exhaustion has
been waived. In Granberry v. Greer, a unanimous Court
established that "if 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 inexhaustion defense has been
waived in order to avoid unnecessary delay in granting
relief that is plainly warranted." 481 U.S. 129, 135 (1987).

I do not agree that the enactment of the Anti-Terrorism
and Effective Death Penalty Act of 1996 (AEDPA) has
eroded the Court's holding in Granberry. I do not agree
that, once such a demonstration of injustice has been
placed on the record, we can turn our backs on it under
the excuse of AEDPA.

Given the degree of misconduct uncovered during the
fourteen days of testimony before the district court, this is
unquestionably a case in which the interests of justice
demand that the exhaustion requirement be waived.

I will make no statement regarding the propriety of the
extent of the relief ordered by the district court. However, I
find it impossible to conclude that a habeas petitioner, who
has proven by clear and convincing evidence that she has
suffered a miscarriage of justice, must return to a prison
cell to start her petitions all over again. For the above
reasons, I believe that the panel should have reviewed on
the merits the district court's granting of the petition for
habeas corpus.

Judges Nygaard, Lewis and McKee join in this Opinion.

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A True Copy:
Teste:

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

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