                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                      No. 10-2764
                                    _______________

                                  LAWRENCE FISHER,
                                                 Appellant

                                            v.

                  GERALD L. ROZUM; DISTRICT ATTORNEY OF
                       THE COUNTY OF ALLEGHENY;
                     ATTORNEY GENERAL OF THE STATE
                             OF PENNSYLVANIA
                              _______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 3-06-cv-00220)
                         District Judge: Hon. Kim R. Gibson
                                   _______________

                                  Argued June 21, 2011

              BEFORE: BARRY, AMBRO and COWEN , Circuit Judges

                                  (Filed : August 3, 2011)


Lisa B. Freeland, Esq. (Argued)
Office of the Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222

      Counsel for Appellant
Ronald M. Wabby, Jr., Esq. (Argued)
Office of the District Attorney
436 Grant Street
401 Allegheny County Courthouse
Pittsburgh, PA 15219

       Counsel for Appellees
                                     _______________

                                        OPINION
                                     _______________


COWEN, Circuit Judge.

       Lawrence Fisher, who is currently serving a life sentence for a Pennsylvania first-

degree murder conviction, appeals from the order of the United States District Court for

the Western District of Pennsylvania dismissing his petition for a writ of habeas corpus

filed pursuant to 28 U.S.C. § 2254. We granted a certificate of appealability as to

whether Fisher established cause excusing his procedural default in failing to exhaust his

Brady claim in state court. We determine that there was cause. Therefore, we will vacate

the District Court‟s order insofar as it dismissed Fisher‟s Brady claim on the grounds that

he failed to establish cause. In turn, this matter will be remanded for the District Court to

determine whether Fisher also satisfied the applicable prejudice requirement.

                                              I.

       On January 29, 1995, Dwayne Hudgins was shot and killed. Beginning on

February 27, 1996, Fisher went on trial for this homicide in the Allegheny County Court

of Common Pleas. The Commonwealth presented, among other things, the eyewitness

testimony of the victim‟s cousin, Richard Marlon Epps, who identified Fisher as the
                                              2
shooter. On March 4, 1996, the jury returned a guilty verdict against Fisher on first-

degree murder and related charges. In May 1996, he was sentenced, inter alia, to a

mandatory term of life imprisonment for the murder conviction. The Pennsylvania

Superior Court affirmed Fisher‟s conviction, and the Pennsylvania Supreme Court denied

his petition for allowance of appeal on August 27, 1998. He then filed a petition under

the Pennsylvania Post Conviction Relief Act (“PCRA”) on August 2, 1999. However, the

trial court denied relief, the Pennsylvania Superior Court affirmed, and, on January 30,

2008, the Pennsylvania Supreme Court again denied allowance of appeal.

       Fisher filed a pro se § 2254 petition with the District Court on October 11, 2006.

On October 17, 2006, the Federal Public Defender was appointed to represent Fisher. On

May 24, 2007, Fisher filed an amended petition, claiming that the Commonwealth

suppressed impeachment evidence in violation of Fisher‟s due process rights under Brady

v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972), and Kyles

v. Whitley, 514 U.S. 419 (1995).

       Specifically, Fisher has asserted that the Commonwealth failed to disclose critical

Brady evidence concerning Epps. On May 1, 1995, his trial counsel (Patrick J.

Thomassey, Esq.) submitted a request for pre-trial discovery and inspection, specifically

demanding “[m]aterial evidence favorable to the accused” as well as “[i]nformation re:

eyewitness to crime.” (A52.) According to Fisher, the Commonwealth “failed to

provide any information tending to show an agreement with Epps.” (Appellant‟s Brief at

12 (citing A52, A60-A83).) In response to Fisher‟s subsequent discovery request filed in


                                             3
connection with his federal habeas proceeding, the Commonwealth provided him with a

copy of the materials that it purportedly furnished to Thomassey. The Commonwealth

does not assert that the produced materials included any information concerning an

agreement or understanding with Epps. However, in its answer to Fisher‟s amended

habeas petition, it did refuse to “conced[e] that the fact that the witness had pending

charges was not disclosed to the defense prior to [May 2007].” (Commonwealth‟s

Answer at 24 n.18.) More generally, the Commonwealth denies that any agreement or

understanding was reached with Epps, at least prior to Fisher‟s trial or in exchange for

Epps‟s testimony against Fisher.

       It appears that, on February 12, 1996, Epps entered an open guilty plea to several

felony charges that had been pending for more than a year in the Allegheny County Court

of Common Pleas. He purportedly faced a maximum penalty of 42 years of incarceration

and was originally scheduled to be sentenced on April 8, 1996. However, he did not

appear for sentencing as scheduled, was arrested pursuant to a warrant issued by the

sentencing court, and ultimately received a below-guideline sentence on July 30, 1996.

At this sentencing hearing, the prosecutor (Assistant District Attorney Lawrence Sachs,

Esq.) explained to the sentencing court that, since the guilty plea was entered, “the

defense counsel and myself have come to an accord with respect to a sentence that would

be acceptable to the Court.” (A77.) The prosecutor then went on to observe that Epps

“was a key witness in a homicide trial.” (A78.) Epps‟s own attorney (Perry Perrino,

Esq.) added that he “spoke with Nick Radoycis [who was the prosecutor at Fisher‟s trial]


                                              4
and . . . he said, if necessary he would come in and testify on behalf of Mr. Epps, and he

would say that if it had not been for Mr. Epps‟ testimony, which was key to the homicide

case, they would not have achieved a conviction.” (A78-A79.)

       On December 4, 2008, the Magistrate Judge recommended that the District Court

deny Fisher‟s claims for relief as well as his outstanding requests for discovery, an

evidentiary hearing, and a certificate of appealability. The Magistrate Judge specifically

determined that Fisher‟s Brady claim was procedurally defaulted and that Fisher failed to

establish cause excusing this default. She stated that: (1) the information concerning

Epps‟s sentencing was likely available during Fisher‟s direct appeal and certainly was

available during his PCRA proceeding; (2) even if the underlying facts were not

discovered until May 2007, a procedural default evidently would still occur because

“Pennsylvania law provides that newly-discovered evidence claims may be presented

through a second or subsequent PCRA petition if such claims are filed within sixty (60)

days of the time the evidence is discovered” (A4 n.1 (citing 42 Pa. Cons. Stat. §

9545(b)(2))); (3) unlike in the typical case, the cause inquiry here diverges from the

underlying merits of the Brady claim because the procedural default occurred after the

existence of the undisclosed Brady evidence was known to Fisher; and (4) in the end, “the

fact of initial suppression by the Commonwealth of an alleged deal with witness Epps is

not sufficient to establish cause for failure to raise a Brady claim after the fact of Epps

receiving consideration at sentencing for his testimony against Fisher became known”

(A5-A6 (citing Albrecht v. Horn, 485 F.3d 103, 130 (3d Cir. 2007))).


                                             5
       Fisher objected to the Magistrate Judge‟s report and recommendation, but, on

March 16, 2009, the District Court adopted it as its own, dismissed the habeas petition,

and denied a certificate of appealability. Fisher then moved to amend under Federal Rule

of Civil Procedure 59(e). On February 4, 2010, the District Court remanded the matter to

the Magistrate Judge for a proper determination as to whether Fisher made a showing of

actual innocence. On the other hand, it agreed with the Magistrate Judge that he failed to

establish cause with respect to his Brady claim.

       According to Fisher, he established cause because he was unaware of the

Commonwealth‟s dealings with Epps until May 2007 and that the Magistrate Judge

thereby erred in finding as a matter of fact that he knew about the undisclosed Brady

materials when he defaulted his Brady claim on direct appeal or during his PCRA

proceeding.   The District Court rejected this theory because, even if the materials

constituted newly discovered evidence, Petitioner still could have filed a second PCRA

petition under 42 Pa. Cons. Stat. § 9545(b)(2) within 60 days of his discovery. After

noting that Fisher never addressed the availability of this procedure in his Rule 59(e)

motion, the District Court added that, “[a]lthough the Magistrate Judge provided

alternative grounds for the absence of cause by citing 42 Pa.C.S.A. § 9545(b)(2), the

Court does not find fault with her conclusion that the Brady material „was likely available

during Fisher‟s direct appeal, and certainly was available during Fisher‟s state PCRA

proceeding.‟” (A25 (quoting A4).)

       On February 5, 2010, the Magistrate Judge again recommended that the habeas


                                             6
petition be dismissed. Fisher filed objections to the Magistrate Judge‟s supplemental

report and recommendation, specifically claiming that he could not return to the state

courts following his May 2007 discovery because of Pennsylvania‟s “public record”

doctrine. On May 11, 2010, the District Court adopted the supplemental report and

recommendation, dismissed the petition, and denied a certificate of appealability. Finding

them to be beyond the scope of the remand, the District Court specifically refused to

consider Fisher‟s repeated objections to its Brady ruling.

       Fisher filed a timely notice of appeal.       On October 29, 2010, we granted a

certificate of appealability as to whether Fisher established cause excusing his procedural

default in failing to exhaust his Brady claim.

                                             II.

       Fisher has never attempted to raise his Brady claim in the state courts.1 However,

the exhaustion requirement is inapplicable “where the state courts would not consider the

unexhausted claims because they are procedurally barred.” Slutzker v. Johnson, 393 F.3d

373, 380 (3d Cir. 2004) (citing Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)).

Given his assertion that he first discovered the facts underlying his claim in May 2007 as

well as the existence of a 60-day time limit for raising PCRA claims based on newly

discovered evidence, see 42 Pa. Cons. Stat. § 9545(b)(2), it is now clearly too late for


1
  The District Court possessed subject matter jurisdiction over this habeas proceeding
pursuant to 28 U.S.C. § 2254. This Court, having issued a certificate of appealability, has
appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. The parties further agree
that we exercise plenary review over the District Court‟s decision because it did not
conduct an evidentiary hearing. See, e.g., Lambert v. Beard, 633 F.3d 126, 130 (3d Cir.
                                                 7
Fisher to raise his Brady claim in the state courts, see, e.g., Slutzker, 393 F.3d at 380.

Therefore, the lack of exhaustion must be excused, but “[t]his excuse from the exhaustion

requirement does [Fisher] no good . . . unless he can avoid the concomitant doctrine of

procedural default.” Id. at 380-81 (citing Doctor, 96 F.3d at 683). For his part, Fisher

acknowledges that his Brady claim was procedurally defaulted and argues that he

established the requisite cause and prejudice to excuse his default.

         Generally speaking, “[t]o show „cause,‟ the petitioner „must demonstrate some

objective factor external to the defense that prevented compliance with the state‟s

procedural requirements.‟” Holloway v. Horn, 355 F.3d 707, 715 n.3 (3d Cir. 2004)

(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). In turn, a petitioner pursuing

a claim under Brady must establish, inter alia, that evidence favorable to the defense was

“suppressed by the State, either willfully or inadvertently.” Strickler v. Greene, 527 U.S.

263, 281-82 (1999). In the specific context of a Brady claim, the cause requirement

typically parallels the underlying suppression element. See, e.g., Banks v. Dretke, 540

U.S. 668, 691 (2004); Strickler, 527 U.S. at 282; Breakiron v. Horn, 642 F.3d 126, 132

n.6 (3d Cir. 2011). However, the inquiries may diverge in certain circumstances, such as

where the “facts supporting [the] Brady violation were known to [the] petitioner and [his]

claim could have been raised on direct appeal or his post conviction case.” (Appellant‟s

Brief at 28 (citing Albrecht, 485 F.3d at 130).) The District Court, in particular,

determined that, even if the Brady materials constituted newly discovered evidence,


2011).
                                               8
Fisher still could (and should) have filed a second PCRA petition. We note that the

PCRA does generally allow a petitioner to file second or subsequent petition if the

underlying facts were unknown to the petitioner and could not been ascertained by the

exercise of due diligence, 42 Pa. Cons. Stat. § 9545(b)(1)(ii), and if the petition was filed

within 60 days of the date the claim could have been presented, id. § 9545(b)(2).

       However, it appears that, under Pennsylvania law, this PCRA exception is

inapplicable where the newly discovered evidence is a matter of public record (and, inter

alia, was otherwise extant at the time that petitioner was actively represented by counsel).

See, e.g., Commonwealth v. Bennett, 930 A.2d 1264, 1275 & n.14 (Pa. 2007);

Commonwealth v. Chester, 895 A.2d 520, 523 (Pa. 2006); Commonwealth v. Whitney,

817 A.2d 473, 476 (Pa. 2003); Commonwealth v. Lark, 746 A.2d 585, 588 n.4, 590 (Pa.

2000); Commonwealth v. Taylor, 933 A.2d 1035, 1042 (Pa. Super. Ct. 2007). In its short

discussion of the public record doctrine in its appellate brief, the Commonwealth merely

admits that “[t]he existence of Mr. Epps‟s criminal charges and conviction would have

been public record,” and it then cryptically notes that “appellant‟s alleged Brady claim

would not have been, because the claim is wholly without merit and not evident in the

„public record.‟” (Appellee‟s Brief at 30.)

       In the end, we conclude that, pursuant to prior Pennsylvania case law, no state

corrective procedure was available to Fisher following his alleged May 2007 discovery

because, among other things, it was a matter of public record that Epps entered a guilty

plea shortly before Fisher‟s trial and that, shortly after this trial and apparently because of


                                               9
his testimony against Fisher himself, Epps received a below-guideline sentence.

Therefore, Fisher, like a typical petitioner seeking to raise a procedurally defaulted Brady

claim, need only show that the evidence was suppressed by the prosecution in order to

establish cause. We determine that Fisher satisfied his burden.

       We specifically observe that: (1) before the trial began, Fisher‟s attorney expressly

requested all material evidence favorable to the accused as well as information regarding

eyewitnesses to the crime; (2) the Commonwealth evidently failed to disclose any

information concerning any implication, promise, or understanding of leniency with

respect to Epps and his sentencing; and (3) the Commonwealth apparently confirmed

Fisher‟s reliance on its earlier disclosures as fulfilling its obligations under Brady by

failing to provide such information during either the direct appeal or the PCRA

proceeding and by its ongoing refusal to acknowledge that it failed to comply with Brady.

See, e.g.¸ Banks, 540 U.S. at 692-98; Strickler, 527 U.S. at 282-89; Breakiron, 642 F.3d

at 132 n.6. With respect to the Commonwealth‟s denial of any agreement, Fisher quite

reasonably points to what would appear to be, at the very least, a highly coincidental

sequence of events, with Epps entering a guilty plea to several felony charges shortly

before he was to testify against Fisher and then—shortly after his critical testimony—

receiving a below-guideline sentence. We also cannot overlook certain statements made

by the prosecutor and Epps‟s defense counsel at the sentencing hearing, which clearly

tended to indicate that some sort of understanding of leniency existed between the

Commonwealth and Epps with respect to his testimony against Fisher. Additionally, the


                                              10
Commonwealth acknowledges that it was not until May of 1997 that Fisher knew or

should have known of the alleged deal. We accordingly are not confronted with the

situation in which the petitioner arguably knew or should have known about allegedly

suppressed Brady evidence at the time of his or her trial, direct appeal, or state post-

conviction proceedings. See, e.g., Amadeo v. Zant, 486 U.S. 214, 222 (1988) (“If the

District Attorney‟s memorandum was not reasonably discoverable because it was

concealed by Putnam County officials, and if that concealment, rather than tactical

considerations, was the reason for the failure of petitioner‟s lawyers to raise the jury

challenge in the trial court, then petitioner established ample cause to excuse his

procedural default under this Court‟s precedents.”); United States v. Pelullo, 399 F.3d

197, 213 (3d Cir. 2005) (“Our jurisprudence has made clear that Brady does not compel

the government “„to furnish a defendant with information which he already has or, with

any reasonable diligence, he can obtain himself.”‟” (quoting United States v. Starusko,

729 F.2d 256, 262 (3d Cir. 1984))).

                                             III.

       For the foregoing reasons, we will vacate the District Court‟s order insofar as it

dismissed Fisher‟s Brady claim on the grounds that he failed to establish cause excusing

his procedural default. This matter will be remanded for the District Court to determine

whether Appellant also satisfied the applicable prejudice requirement.




                                              11
