                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-12-2004

Lambert v. Blackwell
Precedential or Non-Precedential: Precedential

Docket No. 03-2282




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"Lambert v. Blackwell" (2004). 2004 Decisions. Paper 173.
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                      PRECEDENTIAL         Peter S. Greenberg, Esquire (Argued)
                                           Nancy Winkelman, Esquire
   UNITED STATES COURT                     Jonathan S. Liss, Esquire
        OF APPEALS                         Han Nguyen, Esquire
   FOR THE THIRD CIRCUIT                   Schnader Harrison Segal & Lewis LLP
                                           1600 Market Street, Suite 3600
                                           Philadelphia, PA 19103
      Nos. 03-2282, 03-2383
                                             Counsel for Appellant/Cross-Appellee

  LISA MICHELLE LAMBERT,                   Gerald J. Pappert
                                           Attorney General
                         Appellant         William H. Ryan, Jr.
                                           Executive Deputy Attorney General,
                 v.                        Criminal Law Division
                                           Amy Zapp (Argued)
  CHARLOTTE BLACKWELL                      Senior Deputy Attorney General,
  (ADMINISTRATOR OF THE                    Capital Litigation Unit
EDNA MAHAN CORRECTIONAL                    Jerome T. Foerster
   FACILITY FOR WOM EN);                   Senior Deputy Attorney General,
THE ATTORNEY GENERAL OF                    Appeals and Legal Services Section
THE STATE OF PENNSYLVANIA                  Office of The Attorney General
                                           16 th Floor, Strawberry Square
                                           Harrisburg, PA 17120
        On Appeal from the
United States District Court for the         Counsel for Appellee/Cross-Appellant
 Eastern District of Pennsylvania
   (Dist. Court No. 01-cv-2511)
District Judge: Hon. Anita B. Brody              OPINION OF THE COURT


     Argued: January 12, 2004
                                                    TABLE OF CONTENTS
Before: ALITO, CHERTOFF, and
   BECKER, Circuit Judges.
                                           I. BACKGROUND . . . . . . . . . . . . . . 3
                                              A. The Trial . . . . . . . . . . . . . . . . . . 4
     (Filed: October 12, 2004)
                                                  1. The Commonwealth’s Case                  5
                                                  2. Lambert’s Case . . . . . . . . . . 9

                                       1
    B. Procedural History . . . . . . . . . 14                         c. Brady Violation
                                                                          Concerning the Rope . . 68
II. JURISDICTION AND
    STANDARD OF REVIEW . . . . . 18                                    d. Destruction of
                                                                          Evidence . . . . . . . . . . . 69
III. DISCUSSION . . . . . . . . . . . . . . . 19
                                                            IV.    CONCLUSION . . . . . . . . . . . . 69
    A. Exhaustion . . . . . . . . . . . . . . . . 20
    B. Deference . . . . . . . . . . . . . . . . . 23       CHERTOFF, Circuit Judge.
    C. The Merits . . . . . . . . . . . . . . . . 34               Before us, after a lengthy journey
        1. The Sweatpants . . . . . . . . . 35              up and down the state and federal justice
                                                            systems, is the habeas petition of Lisa
            a. Knowing Use of Perjured                      Michelle Lambert. Lambert is currently
               Testimony . . . . . . . . . . 35             serving a life sentence without the
            b. “Switching” Evidence . 39                    possibility of parole for first degree
                                                            murder. Judge Lawrence Stengel of the
        2. Evidence of Yunkin’s                             Court of Common Pleas for Lancaster
           Location During the                              County, Pennsylvania imposed the
           Murder . . . . . . . . . . . . . . . . 42        sentence on Lambert after he found
            a. Knowing Use of Perjured                      Lambert guilty at a bench trial held in July
               Testimony . . . . . . . . . . 44             of 1992.

            b. Suppression of Brady                                Lambert initially appealed her
               Material . . . . . . . . . . . . 49          conviction in the Pennsylvania state
                                                            courts, which rejected her claims on direct
        3. The “29 Questions” . . . . . . 51                appeal. She thereafter filed a petition for a
        4. The Crime Scene                                  writ of habeas corpus in federal district
           Photographs . . . . . . . . . . . . 54           court. After holding a hearing over the
                                                            course of three weeks, Judge Stewart
        5. The Dying Declaration . . . 57                   Dalzell of the Eastern District of
        6. The DA’s Contact with                            Pennsylvania found Lambert “actually
           Lambert’s Trial Expert . . . 59                  innocent” and granted her petition. He
                                                            specifically barred any retrial.
        7. The River Search . . . . . . . . 65
                                                                   Lambert was released into the
            a. Brady Violation                              custody of her attorneys on April 16,
               Concerning the Pink Bag                      1997, but her freedom was short-lived.
               and Sneaker . . . . . . . . . 65             Less than a year later, this Court vacated
            b. Knowing Use of Perjured                      the District Court’s judgment due to
               Testimony . . . . . . . . . . 67             Lambert’s failure to exhaust her available
                                                            state court remedies, namely collateral

                                                        2
review pursuant to the Pennsylvania Post          her release. But important institutional
Conviction Relief Act (“PCRA”). Lambert           concerns also infuse this case. A state
consequently returned to state court, where       court and a federal court reached
a PCRA Court (again Judge Stengel) held           diametrically opposed conclusions, and
a six-week hearing and determined in a            two federal courts took substantially
comprehensive opinion that relief under           different views of the state court
the PCRA was not warranted.                       proceedings. This unusual history
                                                  highlights the need to respect the limits of
       After the Pennsylvania Superior
                                                  federal habeas review, as well as the
Court affirmed the PCRA Court’s
                                                  principle of comity that informs that
decision, Lambert not surprisingly re-filed
                                                  review. Simply put, a habeas court reviews
her federal habeas petition. Judge Dalzell
                                                  a state conviction to determine whether a
held that the state courts’ findings were
                                                  state prisoner is in custody in violation of
null and void because they lacked
                                                  the Constitution or laws or treaties of the
jurisdiction to hear Lambert’s PCRA
                                                  United States; the federal court is not
petition. He then reinstated his findings
                                                  mandated to retry the case and substitute
from the 1997 habeas hearing and gave
                                                  its own verdict.
the parties a month to request additional
testimony on topics that the Court had not                We conclude that the PCRA Court
addressed in 1997. In the meantime, the           decision here was indeed entitled to
Commonwealth sought Judge Dalzell’s               deference. After carefully reviewing the
recusal.                                          entire record and applying that deference
                                                  de novo, we conclude that the PCRA
       Judge Dalzell e v e n tually
                                                  Court’s determinations were well-
acquiesced to the Commonwealth’s efforts
                                                  supported and require that we deny
at recusal, and the case was assigned to
                                                  Lambert habeas relief. Put more simply:
Judge Anita Brody of the Eastern District
                                                  Lambert’s trial was fair, amply supported,
of Pennsylvania. Judge Brody dismissed
                                                  and not infected by material error or
Lambert’s habeas petition afte r
                                                  injustice. We will affirm the denial of the
determining, contrary to Judge Dalzell’s
                                                  writ by Judge Brody.
ruling, that the PCRA Court’s findings
were not null and void and were entitled to       I.     BACKGROUND
deference under the Antiterrorism and
                                                         At the center of this contentious
Effective Death Penalty Act of 1996
                                                  case lies the brutal murder of Laurie
(“AEDPA”). Lambert now appeals from
                                                  Show. Show died from knif e
that judgment.
                                                  wounds—stabs to her back and slashes to
       This case presents a host of               her throat—inflicted on her by intruders in
sensitive issues. At one level are the very       her home on the morning of December 20,
serious allegations of prosecutorial              1991. She was fifteen years old at the time
misconduct that Lambert argues require            of her death.


                                              3
       The investigation of Show’s                         To be sure, the government and
murder quickly zeroed in on three                   defense agreed on broadly what happened:
individuals: Lisa Michelle Lambert,                 Yunkin and Lambert were romantically
Tabitha Faith Buck, and Lawrence                    involved and lived together, but their
Yunkin. The police arrested Lambert and             relationship entered an eight-day hiatus
Yunkin on outstanding warrants on the               over the summer of 1991. During those
day of Show’s murder. Upon questioning,             eight days, Yunkin dated Laurie Show.
they both admitted their involvement in
                                                           Lambert and Yunkin eventually
the attack on Show; and they both
                                                    resumed their relationship, and there was
implicated Buck.
                                                    real animosity between Lambert and
      The Lancaster County District                 Show. So, in July 1991, Lambert devised
Attorney eventually charged Lambert and             a plan to enlist the help of several other
Buck with criminal homicide and Yunkin              teenagers to humiliate Show by luring her
with hindering apprehension.1 Lambert               out of her home, cutting off her hair, and
waived her right to a jury trial, and a             tying her up to a pole within the City of
week-long bench trial was held before               Lancaster. The plan did not come to
Judge Lawrence Stengel of the Court of              fruition because two of the girls involved
Common Pleas for Lancaster County,                  eventually warned Show.
Pennsylvania.
                                                           Months later, on December 19,
       A.     The Trial                             1991, someone called Laurie Show’s
                                                    mother, Hazel Show, claiming to be her
       It hardly needs to be said that in our
                                                    daughter’s guidance counselor. The caller
adversarial system of justice, the opposing
                                                    scheduled a meeting with Hazel Show for
parties—in a criminal case, the
                                                    7 a.m. the following morning at the
prosecution and defense—typically
                                                    principal’s office of Laurie Show’s high
advance two radically different versions of
                                                    school.
events. This case is no exception.
                                                           The next morning Yunkin,
                                                    Lambert, and Buck drove to the
                                                    condominium complex where Show’s
       1
         The District Attorney entered into         home was located. They brought with
a plea bargain with Yunkin that                     them a knife from Yunkin’s and
conditioned the hindering apprehension              Lambert’s home and rope and two black
charge on his giving truthful testimony at          knit hats that Lambert had purchased the
Lambert’s trial. The Commonwealth                   previous day at K-Mart. Sometime around
revoked the original plea bargain because,          7 a.m., while Hazel Show was out to
as we explain more fully below, it                  attend the “meeting” she thought she
determined that Yunkin was not entirely             would have with her daughter’s “guidance
truthful. As a result, Yunkin eventually            counselor,” Laurie Show was home alone.
pled guilty to third degree murder.

                                                4
Lambert and Buck entered the Show                  government knowingly use perjured
residence. A struggle ensued during which          testimony and suppressed evidence
someone stabbed Show and slit her throat.          tending to support her version of events.
                                                   We therefore relate in some detail the
       Lambert, Buck, and Yunkin (whose
                                                   evidence the parties presented at trial and
precise whereabouts during and
                                                   the inferences they urged Judge Stengel to
involvement in the melee with Show, as
                                                   make from that evidence.
we explain more fully below, was disputed
at trial) drove away from the                             1.     The Commonwealth’s Case
condominium complex together. The three
                                                           The Commonwealth called several
of them devised an alibi, and Yunkin and
                                                   witnesses whose testimony tended to show
Lambert dropped Buck off at school.
                                                   that Lambert hated Show. Several testified
       Lambert and Yunkin then                     that they heard Lambert say numerous
proceeded to discard evidence from                 times that she wanted to kill Show. Two
Show’s murder. They washed clothes                 of Lambert and Yunkin’s neighbors
worn during the murder, put them in a              swore, for example, that Lambert
bag, and threw them into a dumpster                repeatedly said she wanted to “beat
behind K-Mart. They threw a bag                    [Show] up” and “get her out of the way
containing, among other things, the knife          and kill her.” App. 690, 701.2 Three
and rope into the Susquehanna River.               witnesses testified that they heard
                                                   Lambert, on at least one occasion, mention
       Within these general contours,
                                                   slitting Show’s throat.3
however, the government and defense
presented Judge Stengel with diverging                   Several witnesses related incidents
versions of what happened. The                     involving Lambert and Show that
Commonwealth argued that Lambert hated             occurred during the months leading to
Show and was deeply involved in the
planning and execution of Show’s murder.
Lambert argued that Yunkin and Buck                       2
                                                             Citations to the Appendix
were to blame and that she tried to prevent        (“App.”) refer to the record before Judge
them from murdering Show.                          Brody. Citations to the Appellate
       Our role is not, of course, to              Appendix (“Appellate App.”) refer to the
determine the veracity of either account.          appendices the parties submitted on appeal
Rather, we are confined to ascertaining            to this Court.
whether any constitutional error occurred                 3
                                                             Laura Thomas, Floyd Thomas
at Lambert’s trial. Yet the parties’ factual       (Laura’s father), and Kimona Warner
contentions at trial provide the necessary         testified about an incident in the backyard
framework for understanding Lambert’s              of the Thomas residence where Lambert
detailed claims of error. Many of her              said she was going to “cut” or “slit”
claims involve allegations that the                Show’s throat. App. 718-19, 739, 757.

                                               5
Show’s murder. A number of Lambert’s              parking lot with some friends, including
cohorts in the thwarted plan to abduct            Randy Rodriguez and Jacqueline
Show and tie her up to a pole in Lancaster,       Weakland. Weakland testified that as they
for example, testified about the plan.            stood talking next to Rodriguez’s truck,
                                                  Lambert — who was pregnant —
       Others testified about physical
                                                  approached Show and began screaming
altercations that occurred between
                                                  that Show had ruined her (Lambert) and
Lambert and Show. Hazel Show testified
                                                  her (as yet unborn) baby’s life. Rodriguez
about an incident that occurred in July of
                                                  testified that Lambert beat Show’s head
1991. While Hazel Show was waiting in
                                                  against the cab of his truck. According to
her car to pick up Laurie from her job at
                                                  Rodriguez, Lambert said that if she found
the mall, she saw Lambert grab Laurie and
                                                  out Show told the police about the
push her into a wall. Hazel Show reported
                                                  incident she had “friends that would take
what happened to the police.4
                                                  care of” Show and she would kill Show.
       Hazel Show also testified that on          App. 777. Weakland also testified that
August 20, 1991, Lambert approached               Lambert said she was going to kill Show.
Hazel and Laurie while they were out
                                                         Hazel Show learned what happened
shopping. Lambert “came up and started
                                                  and, despite Lambert’s threats, reported
screaming and yelling all kinds of
                                                  the incident to the police that same day.
obscenities and just being very vicious.”
                                                  The police did not begin to investigate the
App. 827. One thing Lambert screamed
                                                  incident, however, until December 16,
was that sexual relations had occurred
                                                  2001. John Bowman, of the East Lampeter
between Yunkin and Laurie Show during
                                                  Township Police Department, testified that
their brief relationship. Hazel Show told
                                                  he began by contacting Show and
Lambert that Yunkin had raped her
                                                  Weakland about the incident. He also
daughter Laurie, and that they might press
                                                  called Lambert’s parents to try to find her
charges if Lambert continued to harass
                                                  current address, which they were unable to
Laurie. In fact, Laurie Show had made a
                                                  provide to him.
report to police on July 31, 1991 that
Yunkin had date raped her.                               A friend of Yunkin’s, Lawrence
                                                  Lamparter, related an encounter he had
      Another altercation occurred in the
                                                  with Lambert on December 18, 2001, a
parking lot of the East Towne Mall on
                                                  couple of days before Show’s murder.
November 22, 1991. Show was in the
                                                  Lamparter ran into Lambert at the mall.
                                                  She told Lamparter that the police were
       4
         Sergeant Carl Harnish of the             looking for her because she had assaulted
Pennsylvania State Police testified that          Show. She also told him that Show was
upon her arrest Lambert admitted that she         going to charge Yunkin with rape and that
had physically assaulted Show in July of          “she was going to get Laurie.” App. 793.
1991.

                                              6
        The Commonwealth called Yunkin                   Lambert and Buck were not present
to the stand to testify about the events          when he arrived to pick them up, so he
surrounding Show’s murder. Yunkin                 drove around a little. He passed by their
testified that he drove Lambert to K-Mart         meeting spot on Oak View Road several
the night before the slaying, on December         times before Lambert and Buck showed
19, 1991. He waited in the car while she          up and got in the car. As they drove home,
purchased rope and two knit ski hats.             Yunkin asked Lambert what happened.
                                                  She told him “not to worry about it” and
       Lambert woke Yunkin up early the
                                                  that she would “tell [him] later if [he]
next morning. According to Yunkin,
                                                  needed to know.” App. 258.
Lambert put on a pair of his sweatpants,
one of his flannel shirts, and a “jergo” (a               The inhabitant of the apartment
hooded sweatshirt). He testified that             below the Shows’, Richard G. Kleinhaus,
Lambert often wore his clothes at the time        also testified at the trial. Kleinhaus said
because she was almost seven months               that he woke up at around 5:45 a.m. on the
pregnant.                                         morning of Show’s murder. From his
                                                  window, he saw Hazel Show leaving the
       They drove to pick up Tabatha
                                                  complex. Kleinhaus heard the front door
Buck, arriving at her house at
                                                  slam above him, followed by a scream and
approximately 6:30 a.m. Yunkin dropped
                                                  a thump on the floor of the bedroom. Six
Lambert and Buck off in a wooded area
                                                  or eight minutes later, he heard the door
along Oak View Road, a road that ran next
                                                  slam again. At that time, around ten or
to the condominium complex where
                                                  twelve minutes after seven o’clock, he
Laurie Show lived. Lambert told him to go
                                                  looked out the window and saw two
to a nearby McDonald’s restaurant,
                                                  people of identical height (approximately
Yunkin testified, and come back in a half
                                                  5' 7") exit the stairwell.
hour. Buck told him not to lock the doors
because they might have to make a fast                    The Commonwealth also elicited
getaway.                                          testimony from Frederick E. Fry, another
                                                  resident of the condominium complex. Fry
        Yunkin testified that he arrived at
                                                  testified that at 7:13 a.m. he was waiting
McDonald’s at 6:50 a.m. and waited for
                                                  in his car while he let the engine idle for a
the restaurant to open at 7 a.m. He bought
                                                  little while. As he backed his car out, Fry
some food when the McDonald’s opened
                                                  saw two individuals to his right. They
and then left to pick up Lambert and
                                                  passed in front of his car as he started
Buck. He stayed at McDonald’s for
                                                  forward, and he saw that one was a little
approximately fifteen minutes in total.5
                                                  shorter and heavier than the other. He

       5
            A McDonald’s employee
corroborated Yunkin’s testimony. She              and 7:15 a.m., and he stayed for
testified that she served Yunkin between 7        approximately fifteen or twenty minutes.

                                              7
estimated that the shorter was                     found clumps of hair on the floor of the
approximately 5'3" to 5'5" tall and the            apartment.
taller was approximately 5'5" to 5' 7" tall.
                                                          Dr. Enrique Penades, the doctor
He believed, based on his observations,
                                                   who performed the autopsy on Show,
that they were both women.6
                                                   described the wounds he observed and
        Hazel Show furnished particularly          offered opinions as to their cause: several
dramatic testimony. She arrived home at            bruises on Show’s head from a blunt
some time between 7:20 and 7:25 a.m.,              force; three cuts on her back due to stabs
after Laurie Show’s guidance counselor             from a knife, one of which penetrated
never showed up for the fictitious meeting         through the right lung; two wounds on her
appointment. She found her daughter lying          legs, including a cut to her thigh that
on the floor bleeding, and she yelled to her       penetrated to her pelvis; twenty one cuts
neighbor downstairs to call 911. There             on her hands, probably due to Show’s
was rope tied around Laurie Show’s neck,           efforts to grab the knife and hands of her
she testified, so she retrieved a knife from       assailant; and a big slashing wound on the
the kitchen to cut it. Laurie Show breathed        throat that was the result of at least three
deeply after the rope was cut, and her             strokes. He testified that the wounds to
mother held and cradled her. Hazel Show            Show’s neck and the deep wound to her
asked who had attacked her, and Laurie             back were fatal, and he believed Show
Show answered “Michelle did it.” App.              was alive not more than a half hour after
839. Lisa Lambert was also known by her            sustaining the wounds.
middle name -- Michelle.
                                                           Penades also testified that, despite
        Officer Robin Weaver of the East           the wounds to Show’s neck, he believed
Lampeter Township Police Department                she could say “Michelle did it”; “not in a
testified that at approximately 7:45 a.m. he       regular tone but a whispering, mumbling,
and Corporal Jan Fassnacht were the first          intelligently [sic] enough for someone
officers to arrive at the crime scene.             who is close to this person to understand
Several medical personnel had already              what [she] was saying.” App. 143. Dr.
arrived, however, and they were attending          Joseph S. Annese, another expert witness
to Laurie Show. Weaver observed a rope             for the Commonwealth, also offered his
around Show’s neck and saw wounds on               opinion that Show could speak the words
Show’s neck, leg, and hands. He also               “Michelle did it” despite the wounds she
                                                   sustained.
                                                          Yunkin testified that Lambert and
       6
        At the time of their arrest Yunkin         Buck took showers after the three of them
stood at 6'1" and weighed 190 pounds,              arrived home that morning. At that point,
Lambert stood at 5'6” and weighed 143              Lambert told him that Buck and Show
pounds, and Buck stood at 5'3" and                 were wrestling and Show accidentally got
weighed 160 pounds.

                                               8
stabbed in the back, causing a hissing             it.7 In the statement, Lambert admitted that
sound as if her lung were punctured.               it was her idea to go to Show’s apartment
Lambert said that she and Buck agreed to           because she wanted to talk to Show.
slit Show’s throat to put her out of her           According to Lambert’s statement, Buck
misery, but she never told Yunkin if they          went alone to knock on Show’s door
went through with it.                              because Show’s mother knew Lambert.
                                                   Lambert went into the apartment after she
       Yunkin testified that he and
                                                   heard someone answer and the door shut,
Lambert washed a bag of clothes that
                                                   and she found Buck struggling with Show.
Lambert and Buck had worn that morning
                                                   Buck attacked Show with a knife, Lambert
and threw them in a dumpster behind K-
                                                   told Solt, and she “just stood there”
Mart. Lambert later told him that she
                                                   because she “was so scared.” App. 470.
needed to get rid of another bag, and he
                                                   Eventually, Lambert said, she “couldn’t
drove her to the Susquehanna River where
                                                   look anymore and I turned away.” Id.
she threw a bag in. They later returned to
the river to get rid of the jergo that                    2.     Lambert’s Case
Lambert had worn.
                                                           Lambert based her case
        Several law enforcement officials          predominantly on her own testimony,
testified about finding Lambert, Yunkin,           during which she admitted several facts
and Buck at a local bowling alley that             tending to implicate her in Show’s murder.
night and bringing them in for                     She admitted to being angry at Show, for
questioning. According to their testimony,         example, ostensibly because Show had
Lambert’s story changed a few times over           made up rumors about her in order to
the course of questioning. Lambert first           create a rift between her and Yunkin.
told the police the alibi story she, Yunkin,       Similarly, Lambert conceded that she had
and Buck had devised.                              said she wanted to kill Show, but she
                                                   explained that she only meant it as a figure
       Raymond Solt of the Pennsylvania
                                                   of speech. She also admitted that on the
State Police eventually took over
                                                   morning of Show’s murder she brought
questioning Lambert. After again giving
                                                   along a bag containing a knife from her
the alibi story, Solt testified, Lambert
                                                   apartment, rope, ski hats, and sunglasses.
admitted to him that the story was false.
                                                   But Lambert brought these with her, she
Lambert eventually settled on a version of
                                                   testified, because she and Yunkin planned
events in which Buck was largely
                                                   on going to cut down a Christmas tree
responsible for Show’s murder. Solt and
                                                   later in the day. The ski hats—which
another officer transcribed Lambert’s
statement, and Lambert ultimately signed
                                                          7
                                                            Lambert testified at trial that the
                                                   written statement accurately reflected what
                                                   she told Solt.

                                               9
Lambert admitted to purchasing from K-              and beat her up enough to put her in the
Mart the night before, along with the               hospital. Buck explained that she had
rope—were intended to keep wood chips               called Hazel Show and set up a fake
out of their hair. They needed the knife to         meeting with Laurie Show’s guidance
cut the small branches off the base of the          counselor so that she would not be there
tree so it would fit into the stand. The            when they came to attack Show.
sunglasses were necessary to prevent them
                                                            Lambert told them that it was a
from getting pinkeye. And the rope was
                                                    “stupid” plan because Yunkin would get
for tying up the tree; indeed, Lambert
                                                    into almost as much trouble for beating up
testified that she purchased that particular
                                                    Show as he would for the rape charge. She
rope because it contained a picture of a
                                                    also told them that she did not want to be
man dragging a Christmas tree on its
                                                    involved in beating up Show because (at
packaging.
                                                    least she believed) Show was pregnant. As
        D e s p i t e these seem i n g ly           a result, Lambert suggested they do what
inculpatory admissions, Lambert                     they had planned on doing the previous
maintained that it was Yunkin and Buck              summer: cutting off Show’s hair and
who developed the plan to attack Show               humiliating her.
and she only learned of the plan the day
                                                            Buck and Yunkin eventually
before the attack. Moreover the plan, as
                                                    agreed, and the three of them settled on
far as she knew, never involved murdering
                                                    accosting Show as she left her apartment
Show.
                                                    and cutting her hair off. Thus, Lambert
       During the week leading to Show’s            testified, she put a pair of scissors in the
murder, Lambert testified, Yunkin                   bag containing the tools for cutting down
repeatedly told her and Buck that he was            the Christmas tree: the knife, ski hats, and
nervous that Show was going to press rape           rope.
charges against him. Yunkin and Buck
                                                            Yunkin and Lambert picked up
told Lambert that they had a plan to “get”
                                                    Buck early the next morning. During the
Show that would “keep her mouth shut.”
                                                    car ride to Show’s home, Buck looked
App. 1037. But they would not tell her
                                                    through the bag containing the knife, ski
exactly what their plan was.
                                                    hats, and rope and found that the scissors
       The night before Show’s murder,              were missing. Buck told Lambert that they
Lambert and Yunkin went to Buck’s                   could use the knife instead of scissors, and
house. There, Yunkin again expressed his            she cut off a piece of her own hair to
fear that Show would put him in jail by             demonstrate. Buck also cut off a piece of
accusing him of rape. Buck and Yunkin               the rope, explaining that they could use it
then told Lambert about their plan.                 to tie Show’s hands and feet together.
       They had decided to go to Show’s                   Yunkin developed a cough as they
house, knock on her door, pull her outside,         approached the entrance to Show’s

                                               10
condominium complex, and he decided to               from Show, but the knife (which she saw
go to McDonald’s to get a drink. Lambert             “bounce” off Show’s back) came close to
and Buck went on to Show’s apartment                 her face. Next, she pulled Show away
without him; Buck carried the knife and              from Buck. At that point, she heard a
rope.                                                “whooshing” sound (due apparently to a
                                                     puncture in Show’s lung) and saw blood
        The two of them waited for Show
                                                     on her hands. Lambert was afraid of
at the bottom of the stairway that led to the
                                                     blood; her knees went out from under her
floor where her apartment was located.
                                                     and she fell to the floor shaking.9
Buck became cold and decided to go and
ask Show what was taking her so long.                       Lambert began to crawl to the
Lambert heard Buck and Show talking.                 bedroom door. Show pleaded with
Then, Lambert testified, she heard some              Lambert not to leave her there, however,
scuffling and the door slam.                         so Lambert grabbed Show by the wrist and
                                                     pulled her toward the front door. But as
        Lambert called Buck but Buck did
                                                     Lambert stepped outside the apartment,
not answer, so she climbed the stairs and
                                                     still holding onto Show, Buck pulled
entered Show’s apartment. She found
                                                     Show back into the apartment.
Buck hitting Show on the floor. Lambert
grabbed Show’s ankles and told her to                       Lambert continued to flee the
calm down because they just wanted to                apartment. After she descended a couple
talk to her. Show freed herself and ran into         of steps, however, she collided with
the adjacent room, her bedroom. Buck                 Yunkin. Yunkin shook her and asked what
followed after her.                                  happened to her hands. She told him that
                                                     Buck stabbed Show. Yunkin exclaimed
        It was then, Lambert testified, that
                                                     “Oh, fuck,” took Lambert to the bottom of
Buck took out the knife. Lambert told
                                                     the stairs, told her to sit there, and
Buck to put the knife away, because she
                                                     bounded up the stairs toward Show’s
saw a pair of scissors they could use to cut
                                                     apartment. As she waited, Lambert heard
Show’s hair instead. But Buck did not
                                                     Yunkin yell “You fuck’n bitch,” and
listen and, after pulling Show down,
                                                     “Your ass is done now, bitch.”10
began to hack at Show’s hair with the
knife.8
                                                           9
      Lambert tried to rescue Show from                         In   addition to Lambert’s
Buck. First she tried to pull Buck away              testimony, the defense offered the
                                                     testimony of a doctor and nurse from the
                                                     hospital where Lambert gave birth to her
                                                     child that tended to show Lambert was
       8
          The defense offered testimony              afraid of blood.
that pieces of Show’s hair were found at
                                                           10
the crime scene, and an expert testified                     Lambert offered as evidence of
that the hair was cut off using a knife.             Yunkin’s presence in Show’s apartment a

                                                11
        Lambert eventually heard the front         Yunkin and Buck sang a mocking song
door slam. Yunkin bounded down the                 and laughed hysterically.
stairs and told Lambert he was going to
                                                           Lambert admitted that upon her
get the car; Buck followed, with blood on
                                                   arrest she told the police at least two false
her clothes and the knife in her hands. She
                                                   versions of what happened, the alibi story
stared at Lambert, and Lambert retreated.
                                                   and the version in which Buck was solely
Yunkin yelled “Tabby! Get her!” and
                                                   responsible for Show’s murder and
Lambert began to run.
                                                   Yunkin had little involvement. She told
       Lambert did not know where she              the police the latter story because Yunkin
was running, but she eventually came out           was afraid of going to prison for the rest
along a road. Yunkin sped out of the               of his life and he told Lambert that she
condominium complex and picked up                  would receive less time because she was a
Lambert and Buck. Yunkin was saying                pregnant woman. As a result, she agreed
“Oh, shit!” because he had passed Hazel            to cover up Yunkin’s involvement.
Show as he was driving out of the
                                                           To support her case, Lambert also
condominium complex and she had
                                                   relied (in addition to her own testimony)
looked right at him. He then pushed
                                                   on expert testimony concerning Show’s
Lambert’s head down because they were
                                                   death, evidence tending to show that
passing Show’s school bus.
                                                   Yunkin had violent propensities, and a
       The three of them drove to Lambert          document that allegedly passed between
and Yunkin’s home. Buck and Yunkin put             her and Yunkin while they were both in
their bloody clothes in the trash can. A           prison awaiting trial. The document was
dispute arose over whether Show was                comprised of twenty-nine questions posed
dead and, if so, who had killed her.               by Lambert to Yunkin with answers
Yunkin said that Buck had killed Show.             inscribed next to them. It contained, for
Buck said that Show was dead, but she              example, the following:
was not sure whether she or Yunkin had
                                                          6) [Question:] I don’t
killed her.
                                                          understand! Why not tell
        Eventually, Yunkin and Lambert                    about Laurie? Are you
met with Buck again and refined their alibi               afraid you couldn’t? Did she
story. They also came across a newspaper                  look scary dead—like
that contained news of Show’s death.                      Tressa? I want to go home
Upon learning the news, Lambert testified,                and have my baby twins!
                                                          What if one of them dies
                                                          because they need Mommy?
pearl earring found in the apartment.                     I don’t want to cover up for
Yunkin testified that it was Lambert’s                    you. I never should have
earring but he had also worn it on                        agreed, and I’m mad, and
occasion (about three times).

                                              12
       still sad! [Answer:] Yes and                exchanging with Lambert. App. 321. He
       Yes.                                        claimed, for example, that he had never
                                                   seen the sixth question or tenth question.
       7) [Question:] It’s not my
       fault that things went wrong                        Yunkin testified that in the
       (our prank) Friday morning!                 document that passed between him and
       Do you even care? I still                   Lambert, Lambert had written the
       blame you and Tabby!                        questions in pencil and he had written all
       [Answer:] Just wish it                      his answers in pencil and then traced over
       didn’t happen.                              every other word in ink so that they could
                                                   not be changed. But Lambert’s expert
       ....
                                                   testified that there was no indication of
       10) [Question:] I know I’m                  any pencil writing on the 29 Questions,
       not an angel, but, Lawrence,                and the questions and answers were
       I never get mad enough to                   written with two different pens. After the
       kill! Your temper blew,                     Commonwealth had an expert from the
       [and you] hurt her, this time               Pennsylvania State Police crime lab
       so bad that she can’t get                   examine the document, Lambert and the
       better. To me, it’s a surprise              government entered into a stipulation that
       it was on her, and she will                 there were no erasures or graphite on the
       never live again! I wanted                  document. The Commonwealth conceded
       to get god-damn Tabby                       that if its expert were called to the stand,
       away from her, [you] got in                 he would essentially agree with Lambert’s
       the bedroom and blew up                     expert.
       [and] went decided to do
                                                          To bolster her argument that the 29
       things your way—violent!
                                                   Questions showed it was Yunkin who
       That should’ve been me that
                                                   murdered Show, Lambert elicited
       you killed. I hate you!
                                                   testimony that Yunkin was a violent
       [Answer:] I don’t hate
                                                   individual. Yunkin himself testified that
       anyone. God said, it is
                                                   he had hit Lambert three times, though he
       wrong to hate.
                                                   said it was accidental all but once. And
PCRA Decision (attachment). Yunkin                 Lambert testified that Yunkin wanted to
admitted, upon cross examination, that he          fight an individual named Brad Heiser,
and Lambert had passed a document back             Show’s boyfriend at the time of her death.
and forth through the prison law library in
                                                           Lambert also called experts to
which he answered questions that she
                                                   testify to the circumstances surrounding
asked. He testified, however, that the
                                                   Show’s death. John C. Balshy, a crime
document presented to him at trial, the “29
                                                   scene expert, testified that the letters “T”
Questions,” appeared tampered with and
                                                   and “B” appeared written in blood on the
different from the document he recalled

                                              13
door next to where Show’s body lay when                    The sentencing phase ensued, and
she died. He opined that Show leaned over          Judge Stengel declined to impose the
and wrote the letters to identify Tabatha          death penalty. Instead, he sentenced
Buck as her assailant.                             Lambert for first degree murder to a
                                                   statutorily mandated term of life
        Lambert also offered expert
                                                   imprisonment without the possibility of
testimony tending to show that Show
                                                   parole.
could not have said “Michelle did it”
because she was probably unconscious                       The next day, Lambert filed a set of
and, in any case, physically unable to             motions for arrest of judgment and a new
articulate those words. Dr. Isidore                trial. Among her many arguments was that
Mihalakis testified that, given Show’s             the Commonwealth had offered
wounds, she would have become                      insufficient evidence to sustain the verdict.
unconscious “considerably less than a half         Judge Stengel denied Lambert’s motions
hour” after sustaining her injuries. App.          in a comprehensive opinion.
388. Moreover, Dr. Mihalakis testified
                                                            In the opinion, the Court
that the wounds to Show’s throat would
                                                   extensively canvassed the evidence at trial
have hindered her ability to speak. He also
                                                   and its factual findings. “The physical
testified that it was “extremely unlikely”
                                                   findings at the crime scene, the testimony
that a female could have wielded the knife
                                                   at trial of the defendant, the trial testimony
with enough strength to break the tip off,
                                                   of Hazel Show, the history of ill will
as had happened to the knife used to kill
                                                   between the defendant and the victim and
Show.
                                                   the circumstantial evidence developed at
       B.     Procedural History                   trial,” the Court held, “all lead to the
                                                   conclusion that defendant was guilty of
        Before resting her case, Lambert
                                                   the murder of Laurie Show.” App. 1628-
moved for a mistrial due to prosecutorial
                                                   29.
misconduct. She argued, among other
things, that the Commonwealth knowingly                   Further, the Court held that the
elicited perjured testimony from Yunkin            evidence that, according to Lambert,
regarding the 29 Questions. The Court              tended to show she did not murder
denied Lambert’s motion and, on July 27,           Show—such as the 29 Questions—was
1992, found Lambert guilty of first degree         insufficient to create a reasonable doubt as
murder and criminal conspiracy to commit           to her guilt. With respect to the 29
murder.11                                          Questions, the Court found that “[a]t best,
                                                   the questionnaire was inconclusive,” and
                                                   “[t]o simply say that the questionnaire
       11
          The Court also rejected
Lambert’s demurrers, made after the
Commonwealth rested its case, in which             failed to offer sufficient evidence for a
she argued that the Commonwealth had               conviction.

                                              14
could not be fully and satisfactorily                       agreement (in which he agreed to plead
explained does not mean that it created                     guilty to hindering apprehension) and
reasonable doubt.” App. 1629-30.                            Yunkin agreed to plead guilty to third
                                                            degree murder because the
       Lambert subsequently obtained
                                                            Commonwealth determined that he was
new counsel and filed a second set of post-
                                                            not fully truthful at trial—the Court
verdict motions on October 3, 1994. She
                                                            explained:
based her request for relief on claims of
after-discovered evidence and her trial                                   This issue boils
counsel’s ineffectiveness.12 After holding                        down to whether Mr.
a hearing, Judge Stengel again denied                             Yunkin’s testimony at the
Lambert’s post-verdict motions in another                         Lambert trial was credible.
comprehensive opinion dated March 14,                             Mr. Yunkin testified that he
1995.                                                             was not present in the Show
                                                                  condominium at the time of
       In the decision, the Court
                                                                  the killing. The testimony of
concluded that “[t]rial counsel’s
                                                                  independent witnesses
representation of Lisa Michelle Lambert
                                                                  would seem to establish that
was professional, diligent, and
                                                                  he was truthful in this
thoughtful.” App. 2076. With respect to
                                                                  regard. A manager at a
t h e a l l e g ed “ a f t e r - d i s c o v e r e d
                                                                  nearby McDonald’s saw
evidence”—evidence that the
                                                                  him at or about the time of
Commonwealth revoked Yunkin’s plea
                                                                  the murder, which
                                                                  supported his story that he
                                                                  dropped Ms. Lambert and
        12
            The trial court entertained                           Ms. Buck off along the road
Lambert’s second post-verdict motion                              near the Show residence and
because of a “loophole” that defense                              then went to McDonald’s
counsel, the prosecution, and the Court                           for breakfast.
intentionally created to “accommodate”
Lambert. Specifically, the Court sentenced                               Mr. Yunkin’s story
Lambert only on the first degree murder                           that he was not present at
charge even though she had also been                              the time of the killing was
convicted of criminal conspiracy. As a                            also supported by the
result, the appeal period from a judgment                         neighbors who saw two
of conviction from the criminal conspiracy                        figures of about the same
charge had not expired. The parties (and                          height walking together
the Court) apparently agreed that this                            across a large grassy area
allowed Lambert to introduce new                                  from the Show residence
evidence and seek a new trial. See App.                           toward the road. By height
2038; PCRA Decision 7 n.6.                                        and build they matched,

                                                       15
      generally, a description of                        Lambert filed a pro se petition for
      Ms. Lambert and Ms. Buck.                   a writ of habeas corpus in federal district
      Mr. Yunkin is significantly                 court on September 12, 1996. The case
      taller than either of those                 was assigned to Judge Dalzell, who
      two women and the                           appointed counsel to represent Lambert
      witnesses testified that the                and directed counsel to file an amended
      two figures seen walking                    petition.
      across the grassy area were
                                                          The subsequently-filed amended
      of about the same height,
                                                  petition advanced numerous grounds for
      that being in the 5'1" to 5'5"
                                                  relief, including claims that Lambert had
      range. Therefore, on the
                                                  not previously advanced in state court.
      subject of whether Mr.
                                                  The Commonwealth o bjected to
      Yunkin was in the Show
                                                  Lambert’s petition, arguing that she had
      residence at the time of the
                                                  failed to exhaust her state court remedies
      killing, Mr. Yunkin would
                                                  and had committed insurmountable
      appear to have been
                                                  procedural default.
      truthful. At least, his story
      was supported by                                   Judge     Dalzell      deferred
      independent witnesses.                      consideration of the Commonwealth’s
                                                  exhaustion argument while, in the
App. 2073. Yet “[a]s to whether Mr.
                                                  meantime, permitting broad discovery and
Yunkin was aware of the plan to do harm
                                                  conducting a fourteen-day evidentiary
to Ms. Show,” the Court explained, “he
                                                  hearing. At the end of the hearing, the
was decidedly incredible on this issue.”
                                                  District Court entered an order granting
Thus the Court held that the “after-
                                                  Lambert’s petition for a writ of habeas
discovered” evidence (Yunkin’s plea to
                                                  corpus, releasing Lambert from prison,
third degree murder) would not have had
                                                  and barring the Commonwealth from
any material effect on the outcome of the
                                                  retrying her. In an Order and
case because the facts adduced at trial
                                                  Memorandum Opinion that it issued a few
were fully consistent with his plea.
                                                  weeks later, on April 21, 1997, the Court
       Lambert appealed from the                  offered several bases for its conclusion
judgment denying her second set of post-          that the habeas statute’s exhaustion
verdict motions. The Pennsylvania                 requirement did not preclude the Court
Superior Court affirmed the trial court’s         from granting Lambert’s petition. See
judgment, and Lambert filed a petition            Lambert v. Blackwell, 962 F. Supp. 1521,
seeking allocatur from the Pennsylvania           1553-55 (E.D. Pa. 1997).
Supreme Court. The Supreme Court
                                                         This Court vacated the District
denied Lambert’s petition on July 2, 1996.
                                                  Court’s judgment, however, and found
                                                  that Lambert’s failure to exhaust available


                                             16
state court remedies required the District                The PCRA requires petitions to be
Court to dismiss her petition without             filed “within one year of the date the
prejudice. We held that Lambert had not           judgment becomes final,” except in certain
pursued her remedies under the PCRA for           statutorily defined circumstances. See 42
some of her claims and her habeas petition        Pa. Cons. Stat. § 9545(b). Lambert filed
therefore contained both exhausted and            her petition approximately sixteen months
unexhausted claims. Thus the Supreme              after her judgment of conviction became
Court’s decision in Rose v. Lundy, 455            final. It appears that the parties did not
U.S. 509 (1982), required the District            raise the statute of limitations as an issue
Court to dismiss such a “mixed petition.”         in front of the PCRA Court, however, and
See Lambert v. Blackwell, 134 F.3d 506            the Court did not address it.
(3d Cir. 1998).
                                                         The Superior Court determined
       Lambert filed a PCRA petition on           that, based largely on the Pennsylvania
February 2, 1998 in the Court of Common           Supreme Court’s interpretation of the
Pleas for Lancaster County.13 Lambert             PCRA in Commonwealth v. Fahy, 737
presented 257 claims for relief in the            A.2d 214 (1999), Lambert’s PCRA
PCRA Court: 157 allegations of                    petition was untimely.14 The Superior
prosecutorial misconduct, 72 allegations          Court decided to review the merits of the
of after-discovered evidence, and 28              PCRA Court’s decision, however, because
allegations of ineffective assistance of          “the Third Circuit Court of Appeals, the
counsel. The PCRA Court held eight                PCRA court, the Commonwealth and
weeks of hearings and, on August 24,              counsel did not have the benefit of” the
1998, issued a 322-page opinion in which          Pennsylvania Supreme Court’s decision in
it denied Lambert’s petition for relief.          Fahy (which was decided on August 27,
                                                  1999, about a year after the PCRA Court
       Lambert filed an appeal with the
Pennsylvania Superior Court, and the
Superior Court affirmed the judgment of
the PCRA Court on December 18, 2000.
See Commonwealth v. Lambert, 765 A.2d                    14
                                                              We opined in our decision
306 (Pa. Super. 2000). Before addressing          directing the District Court to dismiss
the merits of Lambert’s appeal, however,          Lambert’s petition without prejudice that
the Superior Court raised sua sponte the          Lambert’s PCRA petition could be timely
timeliness of Lambert’s PCRA petition.            for either of two reasons—by operation of
                                                  Pennsylvania’s transfer statute, 42 Pa.
                                                  C.S.A. § 5103, or any of the three
      13
          The Court of Common Pleas               statutory exceptions to the PCRA’s statute
Judge who presided over the 1992 bench            of limitations, 42 Pa. C.S.A. § 9545(b)(1).
trial, Judge Lawrence Stengel, also               See 134 F.3d at 522-24. The Superior
presided over the PCRA proceedings.               Court rejected each of these possibilities.

                                             17
issued its decision).15 After reviewing             Commonwealth’s fourth motion seeking
Lambert’s petition on the merits, the               his recusal. See Lambert v. Blackwell, 205
Superior Court affirmed the judgment of             F.R.D. 180 (E.D. Pa. 2002). Lambert’s
the PCRA Court. 765 A.2d at 363.                    petition was consequently transferred to
                                                    Judge Anita Brody of the Eastern District
       Lambert did not petition the
                                                    of Pennsylvania. After holding a hearing
Pennsylvania Supreme Court for an
                                                    on the Commonwealth’s motion to
allowance of an appeal from the Superior
                                                    dismiss, Judge Brody denied Lambert’s
Court’s judgment. Rather, she filed an
                                                    petition and dismissed it with prejudice.
amended petition for a writ of habeas
corpus in federal district court on January                Judge Brody concluded that,
29, 2001.                                           contrary to Judge Dalzell’s previous
                                                    decision, the PCRA C ourt’s
       The case again came before Judge
                                                    determinations were not null and void and
Dalzell, who determined that the
                                                    were entitled to deference under AEDPA.
proceedings before the PCRA Court and
                                                    After reviewing Lambert’s claims
Superior Court were null and void, and
                                                    accordingly, Judge Brody concluded that
therefore entitled to no deference, because
                                                    they were without merit. The District
those courts had no jurisdiction over
                                                    Court granted Lambert a certificate of
Lambert’s PCRA petition due to its
                                                    appealability, and Lambert timely
untimeliness. See Lambert v. Blackwell,
                                                    appealed. The Commonwealth also timely
175 F. Supp. 2d 776, 786-87 (E.D. Pa.
                                                    filed a cross-appeal.
2001). Accordingly, the District Court
reinstated its findings of fact and                 II.    JURISDICTION AND
conclusions of law from its earlier                        STANDARD OF REVIEW
decision granting Lambert’s petition for a
                                                            The District Court exercised
writ of habeas corpus, and the Court gave
                                                    jurisdiction under 28 U.S.C. § 2254, and
the parties approximately a month to
                                                    the District Court’s order dismissing
notify it if they sought additional
                                                    Lambert’s habeas petition is a final
discovery and a hearing. Id. at 791.
                                                    decision for purposes of 28 U.S.C. § 1291.
     On January 18, 2002, however,                  Yet Lambert must surmount an additional
Judge Dalzell gave way to the                       hurdle before we can properly exercise
                                                    appellate jurisdiction over her appeal. We
                                                    only have jurisdiction if this Court or a
       15
            In Fahy the Pennsylvania                District Court has properly issued a
Supreme Court held that since the PCRA’s            certificate of appealability pursuant to 28
time limits are jurisdictional, and not a           U.S.C. § 2253(c). See United States v.
mere statute of limitations, the filing
period can only be extended as permitted
by the statute and equitable principles such
as tolling cannot apply. 737 A.2d at 222.

                                               18
Cepero, 224 F.3d 256, 261-62 (3d Cir.                outcomes. Accordingly, a COA will be
2000) (en banc). 16                                  GRANTED.” Lambert v. Blackwell, 2003
                                                     WL 1718511, at *56 (E.D. Pa. April 1,
       A COA may issue only upon “a
                                                     2003).
substantial showing of the denial of a
constitutional right.” 28 U .S.C. §                          In the ordinary course, we would
2253(c)(2). If “a district court has rejected        remand to the District Court to clarify its
the constitutional claims on the merits, the         order to comply with the specificity
showing required to satisfy § 2253(c) is             requirements of 28 U.S.C. § 2253(c)(3).
straightforward: The petitioner must                 See Szuchon v. Lehman, 273 F.3d 299,
demonstrate that reasonable jurists would            311 n.5 (3d Cir. 2001). Where the parties
find the district court’s assessment of the          have fully briefed the substantive issues
constitutional claims debatable or wrong.”           before bringing to our attention that the
Slack v. McDaniel, 529 U.S. 473, 484                 COA was inadequately specific, however,
(2000). In addition, a COA must “indicate            this Court has viewed the District Court’s
which specific issue or issues satisfy” that         certificate as a nullity and construed the
standard. 28 U.S.C. § 2253(c)(3).                    petitioner’s notice of appeal as a request
                                                     for us to issue a COA. Id. We follow that
        Here, the District Court failed to
                                                     course here.
specify which of the voluminous issues
Lambert raised in her habeas petition                        Lambert has raised several issues
satisfy the standard for issuance of a COA.          on appeal. On each issue, two federal
The Court concluded: “Although in very               district court judges—albeit in different
different contexts, two federal judges have          procedural postures—reached differing
examined the claims of the petitioner                conclusions as to whether constitutional
Lambert and have reached different                   error at trial warranted granting habeas
                                                     relief. As to each of these issues, which we
                                                     discuss seriatim below, we will grant a
       16                                            COA. Because the District Court relied
           Only Lambert’s appeal must
satisfy the certificate of appealability             exclusively on the state court record and
standard. See Fed. R. App. P. 22(b)(3) (“A           did not hold an evidentiary hearing, our
certificate of appealability is not required         review is plenary. See Moore v. Morton,
when a state or its representative                   255 F.3d 95, 103 (3d Cir. 2001).
appeals.”); Lambert v. Blackwell, 134                III.   DISCUSSION
F.3d at 512 n.15. We exercise jurisdiction
over the Commonwealth’s cross-appeal                        Lambert and the Commonwealth
under 28 U.S.C. §§ 1291 and 2253. The                raise numerous issues in their cross-
Commonwealth challenges certain of the               appeals and offer several arguments, often
District Court’s legal conclusions, over             in the alternative, supporting their
which we exercise plenary review. Id. at             respective positions. We first address the
512.                                                 Commonwealth’s arguments that we

                                                19
cannot reach the merits of Lambert’s                it is now codified at 28 U.S.C. §
claims and must dismiss her petition for            2254(b)(1). That provision states:
procedural reasons. We have already
                                                           (b)(1) An application for a
rejected one of those arguments, that we
                                                           writ of habeas corpus on
lack jurisdiction because Lambert’s claims
                                                           behalf of a person in
do not warrant the issuance of a certificate
                                                           custody pursuant to the
of appealability. For the reasons explained
                                                           judgment of a State court
b e l o w, we also reject the
                                                           shall not be granted unless it
Commonwealth’s argument that Lambert
                                                           appears that—
failed to exhaust her available state
remedies because she did not seek                          (A) the applicant has
allocatur from the Pennsylvania Supreme                    exhausted the remedies
Court to appeal from the Superior Court’s                  available in the courts of the
judgment affirming the PCRA Court’s                        State; or
dismissal of her PCRA petition.17
                                                           (B)(i) there is an absence of
        We next address Lambert’s                          available State corrective
arguments regarding the amount of                          process; or
deference we must afford the state courts’
                                                    (ii) circumstances exist that render such
determinations in the PCRA proceedings.
                                                    process ineffective to protect the rights of
We conclude that we must defer to the
                                                    the applicant.
state courts’ determinations, and we apply
that deference to Lambert’s claims.                 28 U.S.C. § 2254(b)(1). The statute
                                                    further provides that “[a]n applicant shall
       A.     Exhaustion
                                                    not be deemed to have exhausted the
        A state prisoner must exhaust his           remedies available in the courts of the
state court remedies before a federal court         State, within the meaning of this section,
may grant him habeas relief. The Supreme            if he has the right under the law of the
Court first articulated this requirement in         State to raise, by any available procedure,
Ex parte Royall, 117 U.S. 241 (1886), and           the question presented.” 28 U.S.C. §
                                                    2254(c).18
       17
          The Commonwealth also argues
that if we accept Lambert’s argument that
the PCRA proceedings are null and void,
                                                           18
we must dismiss her petition as untimely.                    Yet “[a]n application for a writ of
As we describe below, we find that the              habeas corpus may be denied on the
PCRA proceedings are not null and void.             merits, notwithstanding the failure of the
The Comm onwealth’s timeliness                      applicant to exhaust the remedies available
argument is therefore moot and we need              in the courts of the State.” 28 U.S.C. §
not address it.                                     2254(b)(2).

                                               20
        The exhaustion doctrine “turns on           exhaustion doctrine requiring federal
an inquiry into what procedures are                 courts to ignore a state law or rule
‘available’ under state law.” O’Sullivan v.         providing that a given procedure is not
Boerckel, 526 U.S. 838, 847 (1999). And             available.” Id. at 847-48. Justice Souter
the Supreme Court has declined to                   interpreted this statement as leaving
interpret the “any available procedure”
                                                           open the possibility that a
language of § 2254(c) to require “a state
                                                           state prisoner is [] free to
prisoner to invoke any possible avenue of
                                                           skip a procedure even when
state court review.” Id. at 844 (emphasis in
                                                           a state court has
original). Thus “state prisoners do not
                                                           occasionally employed it to
have to invoke extraordinary remedies
                                                           provide relief, so long as the
when those remedies are alternatives to the
                                                           State has identified the
standard review process and where the
                                                           procedure as outside the
state courts have not provided relief
                                                           standard review process and
through those remedies in the past.” Id.
                                                           has plainly said that it need
(citing Wilwording v. Swenson, 404 U.S.
                                                           not be sought for the
249, 249-50 (1971) (per curiam)).
                                                           purpose of exhaustion. It is
“Section 2254(c) requires only that state
                                                           not obvious that either
prisoners give state courts a fair
                                                           comity or precedent requires
opportunity to act on their claims.” Id.
                                                           otherwise.
(emphasis in original).
                                                    Id. at 850 (Souter, J., concurring); see also
        In O’Sullivan, the Supreme Court
                                                    id. at 861 (Stevens, J., dissenting); id. at
held that a petitioner must seek review in
                                                    864 (Breyer, J., dissenting). As an
the Illinois Supreme Court in order to
                                                    example, Justice Souter pointed to the
satisfy the exhaustion requirement even
                                                    following pronouncement from the South
though the court’s review is discretionary.
                                                    Carolina Supreme Court:
The Court found that review in the Illinois
Supreme Court was a “normal, simple, and                   [I]n all appeals from
established part of the State’s appellate                  criminal convictions or
review process.” 526 U.S. at 845. As a                     post-conviction relief
result, the petitioner had to seek review in               matters, a litigant shall not
order to give the state courts a “full                     be required to petition for
opportunity to resolve any constitutional                  rehearing and certiorari
claims.” Id. In other words, “the creation                 following an adverse
of a discretionary review system does not,                 decision of the Court of
without more, make review in the Illinois                  Appeals in order to be
Supreme Court unavailable.” Id. at 848.                    deemed to have exhausted
                                                           all available state remedies
      The Court took pains, however, to
                                                           respecting a claim of error.
state that “there is nothing in the

                                               21
      Rather, when the claim has                         purposes of federal habeas
      been presented to the Court                        corpus relief.
      of Appeals or the Supreme
                                                         In recognition of the above,
      Court, and relief has been
                                                         we hereby declare that in all
      denied, the litigant shall be
                                                         appeals from criminal
      deemed to have exhausted
                                                         convic tions or post -
      all available state remedies.
                                                         conviction relief matters, a
In re Exhaustion of State Remedies in                    litigant shall not be required
Criminal and Post-Conviction Relief                      to petition for rehearing or
Cases, 471 S.E.2d 454 (S.C. 1990).                       allowance of appeal
                                                         following an adverse
       The Pennsylvania Supreme Court,
                                                         decision by the Superior
apparently taking its cue from Justice
                                                         Court in order to be deemed
Souter’s concurrence, issued the following
                                                         to have exhausted all
order on May 9, 2000:
                                                         available state remedies
      [W]e hereby recognize that                         respecting a claim of error.
      the Superior Court of                              When a claim has been
      Penn syl vania reviews                             denied relief in a final order,
      criminal as well as civil                          the litigant shall be deemed
      appeals. Further, review of a                      to have exhausted all
      final order of the Superior                        available state remedies for
      Court is not a matter of                           purposes of federal habeas
      right, but of sound judicial                       corpus relief. This Order
      discretion, and an appeal to                       shall be effective
      this court will be allowed                         immediately.
      only when there are special
                                                  In re Exhaustion of State Remedies in
      and important reasons
                                                  Criminal and Post-Conviction Relief
      therefor. Pa.R.A.P. 1114.
                                                  Cases, No. 218 Judicial Administration
      Further, we hereby
                                                  Docket No. 1 (Pa. May 9, 2000) (“Order
      recognize that criminal and
                                                  No. 218”). Several Pennsylvania district
      post-conviction relief
                                                  courts have held that due to Order No. 218
      litigants have petitioned and
                                                  a state prisoner need not petition the
      do routinely petition this
                                                  Pennsylvania Supreme Court for allocatur
      Court for allowance of
                                                  in order to exhaust state court remedies
      appeal upon Superior
                                                  and seek habeas relief in federal court. See
      Court's denial of relief in
                                                  Wilson v. Vaughn, 304 F. Supp. 2d 652
      order to exhaust all
                                                  (E.D. Pa. 2004); Lor v. Varner, 2003 WL
      available state remedies for
                                                  22845413 (E.D. Pa. Nov. 26, 2003);
                                                  Lambert v. Blackwell, 2003 WL 1718511

                                             22
(E.D. Pa. April 1, 2003); Leon v. Benning,             18, 2000. During the pendency of
2003 WL 21294901 (E.D. Pa. Feb. 24,                    Lambert’s appeal in the Superior Court,
2003); Mattis v. Vaughn, 128 F. Supp. 2d               the Pennsylvania Supreme Court issued
249 (E.D. Pa. 2001); Blasi v. Attorney                 Order No. 218. Consequently, she did not
General, 120 F. Supp. 2d 249 (M.D. Pa.                 seek an allowance of an appeal from the
2000). Other Circuits have reached similar             Pennsylvania Supreme Court within the
conclusions with regard to comparable                  necessary thirty-day time period. Instead,
state supreme court rules. See Adams v.                she filed a federal habeas petition on
Holland, 330 F.3d 398, 401-02 (6th Cir.                January 29, 2001. We conclude that, due
2003) (Tennessee); Randolph v. Kemna,                  to Order No 218, Lambert exhausted her
276 F.3d 401, 404 (8 th Cir. 2002)                     available state court remedies.
(Missouri); Swoopes v. Sublett, 196 F.3d
                                                              B.     Deference
1008, 1009-10 (9th Cir. 1999) (per curiam)
(Arizona). We reserved judgment on this                       AEDPA requires federal courts
issue in Wenger v. Frank, 266 F.3d 218,                collaterally reviewing state proceedings to
217-218 (3d Cir. 2001) and Villot v.                   afford considerable deference to state
Varner, 373 F.3d 327, 338 n.14 (3d Cir.                courts’ legal and factual determinations.
2004). We now hold that Order No. 218                  Specifically, it provides:
renders review from the Pennsylvania
                                                              (d) An application for a writ
Supreme Court “unavailable” for purposes
                                                              of habeas corpus on behalf
of exhausting state court remedies under §
                                                              of a person in custody
2254(c).
                                                              pursuant to the judgment of
         Order No. 218 serves to remove                       a State court shall not be
review of criminal and collateral appeals                     granted with respect to any
from the “normal” and “established”                           claim that was adjudicated
appellate review procedure in                                 on the merits in State court
Pennsylvania. As Judge Van Antwerpen                          proceedings unless the
put it in Mattis v. Vaughn, Order No. 218                     adjudication of the claim—
is the something “more” that makes the
                                                              (1) resulted in a decision
P e n n s y lvani a S u p r e m e C o u r t ’ s
                                                              that was contrary to, or
discretionary review system “unavailable.”
                                                              involved an unreasonable
128 F. Supp. 2d at 259. Consequently,
                                                              application of, clearly
petitioners need not seek review from the
                                                              established Federal law, as
Pennsylvania Supreme Court in order to
                                                              determined by the Supreme
give the Pennsylvania courts a “full
                                                              Court of the United States;
opportunity to resolve any constitutional
                                                              or
claims.”
                                                              (2) resulted in a decision
      Here, the Superior Court affirmed
                                                              that was based on an
the PCRA Court’s judgment on December

                                                  23
       unreasonable determination                     unreasonably refuses to extend that
       of the facts in light of the                   principle to a new context where it should
       evidence presented in the                      apply.” Id. at 407.
       State court proceeding.
                                                             The Supreme Court addressed
28 U.S.C. § 2254(d). In addition,“a                   AEDPA’s factual review provisions in
determination of a factual issue made by a            Miller-El v. Cockrell. There, the Supreme
State court shall be presumed to be                   Court interpreted § 2254(d)(2) to mean
correct” unless the petitioner rebuts “the            that “a decision adjudicated on the merits
presumption of correctness by clear and               in a state court and based on a factual
convincing evidence.” 28 U.S.C. §                     determination will not be overturned on
2254(e)(1).                                           factual grounds unless objectively
                                                      unreasonable in light of the evidence
        The Supreme Court interpreted §
                                                      presented in the state-court proceeding.”
2254(d)(1)’s deference to state legal
                                                      537 U.S. 322, 340 (2003). Yet “deference
determinations in Williams v. Taylor, 529
                                                      does not imply abandonment or abdication
U.S. 362 (2000). The Court interpreted
                                                      of judicial review.” Id. In other words,
AEDPA’s “clearly established Federal
                                                      “[d]eference does not by definition
law, as determined by the Supreme Court
                                                      preclude relief.” Id. Thus a federal habeas
of the United States” to mean “the
                                                      court can “disagree with a state court’s
holdings, as opposed to the dicta, of [the
                                                      credibility determination.” Id.; see also
Supreme] Court’s decisions as of the time
                                                      Wiggins v. Smith, 539 U.S. 519, 123 S. Ct.
of the relevant state-court decision.” Id. at
                                                      2527, 2539 (2003) (rejecting state court’s
412. A state-court decision is “contrary to”
                                                      factual determination under § 2254(e)(1)
clearly established federal law if the state
                                                      and 2254(d)(2)).
court (1) “contradicts the governing law
set forth in [the Supreme] Court’s cases”’                   Despite the Supreme Court’s
or (2) “confronts a set of facts that are             pronouncements in Miller-El and Wiggins,
materially indistinguishable from a                   a comprehensive interpretation of
decision of [the Supreme] Court and                   AEDPA’s factual review scheme has yet to
nevertheless arrives at a [different] result.”        emerge from the fede ral cou rts.
Id. at 405-06. A state-court decision                 Specifically, the relationship between the
“involve[s] an unreasonable application”              standards enunciated in § 2254(d)(2) and §
of clearly established federal law if the             2254(e)(1) remains unclear. See Green v.
state court (1) “identifies the correct               White, 232 F.3d 671, 672 n.3 (9 th Cir.
governing legal rule from [the Supreme]               2000).
Court’s cases but unreasonably applies it
                                                                On their face, we discern little
to the facts of the particular . . . case”; or
                                                      m a t e r i a l d i f f e r e n c e b e tw e e n a
(2) “unreasonably extends a legal principle
                                                      reasonableness determination and a
from [Supreme Court] precedent to a new
                                                      presumption of correctness as they express
context where it should not apply or

                                                 24
the same fundamental principle of                     somewhat diff eren t inquiries. The
deference to state court findings. Courts             fundamental prerequisite to granting the
have tended to lump the two provisions                writ on factual grounds is consideration of
together as generally indicative of the               the evidence relied upon in the state court
deference AEDPA requires of state court               proceeding. Section 2254(d)(2) mandates
factual determinations. See, e.g., Martini v.         the federal habeas court to assess whether
Hendricks, 348 F.3d 360, 363 (3d Cir.                 the state court’s determination was
2003); Hunterson v. DiSabato, 308 F.3d                reasonable or unreasonable given that
236, 245-46, 249-50 (3d Cir. 2002). Yet it            evidence. If the state court’s decision
is a cardinal rule of statutory interpretation        based on such a determination is
that we must “give effect, if possible, to            unreasonable in light of the evidence
every clause and word of a statute.”                  presented in the state court proceeding,
Williams v. Taylor, 529 U.S. at 404                   habeas relief is warranted.
(internal citations and quotations omitted);
                                                              Within this overarching standard, of
see also Kungys v. United States, 485 U.S.
                                                      course, a petitioner may attack specific
759, 778 (1988) (Scalia, J., plurality
                                                      factual determinations that were made by
opinion); Borman v. Raymark Indus., Inc.,
                                                      the state court, and that are subsidiary to
946 F.2d 1031, 1035 (3d Cir. 1991) (“It is
                                                      the ultimate decision. Here, section
an ‘elementary canon of construction that
                                                      2254(e)(1) comes into play, instructing
a statute should be interpreted so as not to
                                                      that the state court’s determination must be
render one part inoperative.’”) (quoting
                                                      afforded a presumption of correctness that
Colautti v. Franklin, 439 U.S. 379, 392
                                                      the petitioner can rebut only by clear and
(1979)). In fact, the language of §
                                                      convincing evidence. In this inquiry, a
2254(d)(2) and § 2254(e)(1) implies an
                                                      petitioner may develop clear and
important distinction: § 2254(d)(2)’s
                                                      convincing evidence by way of a hearing
reasonableness determination turns on a
                                                      in federal court as long as he satisfies the
consideration of the totality of the
                                                      necessary prerequisites. See 28 U.S.C. §
“evidence presented in the state-court
                                                      2254(e)(2). In the final analysis however,
p r o ceed ing ,” while § 2254 (e)(1)
                                                      even if a state court’s individual factual
contemplates a challenge to the state
                                                      determinations are overturned, what
court’s individual factual determinations,
                                                      factual findings remain to support the state
including a challenge based wholly or in
                                                      court decision must still be weighed under
part on evidence outside the state trial
                                                      the overarching standard of section
record. See generally Taylor v. Maddox,
                                                      2254(d)(2).19
366 F.3d 992, 999-1000 (9th Cir. 2004);
Valdez v. Cockrell, 274 F.3d 941, 951
n.17 (5th Cir. 2001).                                        19
                                                                   The two circuits that have
      We therefore read § 2254(d)(2) and              considered the interplay between section
§ 2254(e)(1) together as addressing two               2254(d)(2) and (e)(1) have intimated two
                                                      slightly different approaches to resolving

                                                 25
                                                             With these principles in mind, we
questions under the respective provisions.           turn to the specifics of this case. Lambert
In Valdez v. Cockrell, the Fifth Circuit             argues that we should not afford the
suggested that individual factual                    PCRA Court and Superior Court factual
challenges should be evaluated under                 determinations the deference set forth in §
(e)(1) first, and then, after they are               2254(d) and § 2254(e)(1), for two reasons.
resolved, the habeas court should consider           First, she argues that the PCRA Court and
the entirety of the record under (d)(2). 274         Superior Court decisions are null and
F.3d at 951 n.17. Somewhat more                      void—and therefore not entitled to
explicitly, the Ninth Circuit has said that          deference—because those courts lacked
the habeas court should evaluate the                 jurisdiction to entertain her untimely
totality of the record first under (d)(2),           PCRA petition.20 See Commonwealth v.
and, if it survives, cloak the state court’s
decision with a presumption of correctness
to “steel” it against challenges based on            however, two points are paramount. First,
new evidence, extrinsic to the state court           both (d)(2) and (e)(1) express the same
record.                                              fundamental principle of deference to state
        We adopt no rigid approach to                court findings. Second, before the writ can
habeas review of state fact-finding. In              be granted, petitioner must show an
some circumstances, a federal court may              unreasonable determination -- under (d)(2)
wish to consider subsidiary challenges to            -- in light of the entire record in the
individual fact-finding in the first instance        original state court trial.
applying the presumption of correctness as                  20
                                                               Lambert also argues that the law
instructed by (e)(1). Then, after deciding
                                                     of the case doctrine required Judge Brody
these challenges, the court will view the
                                                     to adhere to Judge Dalzell’s decision that
record under (d)(2) in light of its
                                                     the state court proceedings were null and
subsidiary decisions on the individual
                                                     void. “The law of the case doctrine limits
challenges. In other instances, a federal
                                                     the extent to which an issue will be
court could conclude that even if
                                                     reconsidered once the court has made a
petitioner prevailed on all of his individual
                                                     ruling on it.” Fagan v. City of Vineland, 22
factual challenges notwithstanding the
                                                     F.3d 1283, 1290 (3d Cir. 1994). “A court
(e)(1) presumption of their correctness, the
                                                     has the power to revisit prior decisions of
remaining record might still uphold the
                                                     its own or of a coordinate court in any
state court’s decision under the
                                                     circumstance, although as a rule courts
overarching standard of (d)(2). In that
                                                     should be loathe to do so in the absence of
event, presumably the (d)(2) inquiry
                                                     extraordinary circumstances such as where
would come first.
                                                     the initial decision was ‘clearly erroneous
       Whatever the order of inquiry,                and would work a manifest injustice.’”

                                                26
Fahy, 737 A.2d 214 (1999). Second,                          On its face, AEDPA does not
Lambert argues that the PCRA Court’s                 provide that a federal habeas court should,
factual determinations are not entitled to           before affording deference to state court
deference because the Court prohibited               determinations, evaluate the procedural
her from cross-examining witnesses at the            adequacy of state court proceedings or
PCRA hearing.21                                      whether the state court/ properly exercised
                                                     its jurisdiction. This omission is
                                                     particularly conspicuous in light of the
Christianson v. Colt Industries Operating            pre-AEDPA federal habeas statute.
Corp., 486 U.S. 800, 817 (1988) (quoting                    Before AEDPA amended the
Arizona v. California, 460 U.S. 605, 618 n.          federal habeas statute in 1996, state court
8 (1983)). In other words, the law of the            findings of fact were “presumed correct if
case doctrine does not limit a federal               there was (1) a hearing on the merits of a
court’s power, rather it directs its exercise        factual issue, (2) made by a state court of
of discretion. Public Interest Research              competent jurisdiction, (3) in a proceeding
Group of New Jersey, Inc. v. Magnesium               to which the petitioner and the state were
Elektron, Inc., 123 F.3d 111, 116 (3d Cir.           parties, (4) and the state court’s
1997).                                               determination is evidenced by a written
        Lambert’s argument that the                  finding, opinion, or other reliable and
District Court abused its discretion need            adequate indicia.” Carpenter v. Vaughn,
not detain us long. “[A] district court's            296 F.3d 138, 149 (3d Cir. 2002). This
adherence to law of the case cannot                  presumption did not apply if the petitioner
insulate an issue from appellate review.”            established, inter alia, that (i) “the
Christianson, 486 U.S. at 817. Conversely,           factfinding procedure employed by the
a district court’s decision not to adhere to         State court was not adequate to afford a
a coordinate court’s previous decision               full and fair hearing,” 28 U.S.C. §
cannot prevent us from deciding the issue            2254(d)(2) (1994) (superseded); or (ii)
on the merits. Whether the District Court            “the State court lacked jurisdiction of the
followed the first habeas court’s ruling or          subject matter or over the person of the
came to its own contrary conclusion (as it           applicant in the State court proceeding,”
did), we would still have to determine               28 U.S.C . § 2254(d )(4) (1994 )
what the correct decision is. See                    (superseded).22
Tischmann v. ITT/Sheraton Corp., 145
F.3d 561, 564-65 (2d Cir. 1998). The law
of the case doctrine is irrelevant to our            Her jurisdiction and cross-examination
decision. What matter are the merits.                arguments, of course, do not apply to
                                                     those findings.
       21
         Lambert does not argue that we
                                                            22
should not afford deference to Judge                             The pre-AEDPA          statute
Stengel’s findings made at the trial level.          provided, in relevant part:

                                                27
(d)   In    any    proceeding           (4) that the State court
                                        lacked jurisdiction of the
instituted in a Federal court
                                        subject matter or over the
by an application for a writ
                                        person of the applicant in
of habeas corpus by a
                                        the State court proceeding;
person in custody pursuant
to the judgment of a State              (5) that the applicant was an
court, a determination after            indigent and the State court,
a hearing on the merits of a            in deprivation of his
factual issue, made by a                constitutional right, failed to
State court of competent                appoint counsel to represent
jurisdiction in a proceeding            him in the State court
to which the applicant for              proceeding;
the writ and the State or an
                                        (6) that the applicant did not
officer or agent thereof were
                                        receive a full, fair, and
parties, evidenced by a
                                        adequate hearing in the
written finding, written
                                        State court proceeding; or
opinion, or other reliable
a n d a d e q u at e w r itten          (7) that the applicant was
indicia, shall be presumed to           o t h e rwise de nie d du e
be correct, unless the                  process of law in the State
applicant shall establish or it         court proceeding;
shall otherwise appear, or
                                        (8) or unless that part of the
the respondent shall admit—
                                        record of the State court
(1) that the merits of the              proceeding in which the
factual dispute were not                determination of such
resolved in the State court             factual issue was made,
hearing;                                pertinent to a determination
                                        of the sufficiency of the
(2) that the factfinding
                                        evidence to support such
procedure employed by the
                                        factual determination, is
State court was not adequate
                                        produced as provided for
to afford a full and fair
                                        hereinafter, and the Federal
hearing;
                                        court on a consideration of
(3) that the material facts             such part of the record as a
w e r e n o t a d e q u a t e ly        whole concludes that such
developed at the State court            factual determination is not
hearing;                                fairly supported by the

                                   28
        The current statute simply states          preserved by the defendant, the state court
that federal courts must defer to legal and        has not reached the merits of a claim
factual determinations “with respect to any        thereafter presented to a federal habeas
claim that was adjudicated on the merits in        court, the deferential standards provided
State court proceedings.” 28 U.S.C. §              by AEDPA . . . do not apply.” Holloway v.
2254(d). “We have interpreted § 2254(d)’s          Horn, 355 F.3d 707, 718 (3d Cir. 2004)
‘adjudication on the merits’ language to           (quoting Appel v. Horn, 250 F.3d 203,
mean that ‘when, although properly                 210 (3d Cir. 2001)).
                                                          AEDPA has changed the
                                                   procedural framework for deference in
               record.                             three ways. First, AEDPA now requires
                                                   federal courts to defer to state court legal
       And in an evidentiary
                                                   determinations, whereas federal courts
       hearing in the proceeding in
                                                   used to review state legal determinations
       the Federal court, when due
                                                   de novo. See, e.g., Ahmad v. Redman, 782
       proof of such factual
                                                   F.2d 409, 412 (3d Cir. 1986). Second, the
       determination has been
                                                   habeas statute no longer explicitly
       made, unless the existence
                                                   conditions federal deference to state court
       of one or more of the
                                                   factual findings on whether the state court
       circumstances respectively
                                                   held a hearing. See Mendiola v. Schomig,
       set forth in paragraphs
                                                   224 F.3d 589, 592-93 (7 th Cir. 2000).
       numbered (1) to (7),
                                                   Third, the statute no longer contains the
       inclusive, is shown by the
                                                   eight prerequisites to deference that
       applicant, otherwise
                                                   appeared in the superseded §§ 2254(d)(1)-
       appears, or is admitted by
                                                   (8). See Valdez v. Cockrell, 274 F.3d at
       the respondent, or unless the
                                                   951 (holding that a “full and fair hearing”
       court concludes pursuant to
                                                   is not a precondition to according
       the provisions of paragraph
                                                   2254(e)(1)’s presumption of correctness to
       numbered (8) that the record
                                                   a state habeas court’s findings of fact); but
       in the S tate court
                                                   see Valdez v. Cockrell, 274 F.3d at 966
       proceeding, considered as a
                                                   (Dennis, J., dissenting); 17A Charles A.
       whole, does not fairly
                                                   Wright & Arthur R. Miller, Federal
       s u p p o r t s u c h f a c tu a l
                                                   Practice and Procedure § 4265.2 (2d ed.
       determination, the burden
                                                   1994) (“Indeed the new statute does not
       shall rest upon the applicant
                                                   even require that the state court that made
       to establish by convincing
                                                   the determination have been a court of
       evidence that the factual
                                                   competent jurisdiction. Presumably the
       determination by the State
                                                   courts will continue to insist on that and it
       court was erroneous.
                                                   is likely that some of the other elements
28 U.S.C. § 2254(d) (1994) (superseded).

                                              29
that were in the old statute but not in the          state court properly        exercised     its
new one will be read back into it by the             jurisdiction.23
courts.”).
                                                             Similarly, the procedures a state
        On its face, therefore, the amended          court applies when adjudicating a
habeas statute appears to obviate any need           petitioner’s claims may also be relevant
to consider Lambert’s jurisdictional and             during habeas review. The extent to which
procedural arguments against our deferring           a state court afforded a defendant adequate
to the PCRA Court’s determinations;                  procedural means to develop a factual
AEDPA eliminated the threshold language              record—whether the defendant was
eliminating the presumption of correctness           afforded a “full and fair hearing,” to put it
when “the State court lacked jurisdiction”           in the parlance of the pre-AEDPA
or “the factfinding procedure employed by            statute—may well affect whether a state
the State court was not adequate to afford           court’s factual determination was
a full and fair hearing.” We decline to              “reasonable” in “light of the evidence
conclude, however, that state court                  presented in the State court proceeding” or
jurisdiction or procedures are entirely              whether the petitioner has adequately
irrelevant in a federal court’s habeas               rebutted a presumption that the state
review of state court determinations.                court’s determination is correct. See
                                                     Taylor v. Maddox, 366 F.3d 992, 1000-01
        Even under AEDPA, federal courts
                                                     (9th Cir. 2004); cf. Valdez v. Cockrell, 274
are to defer regarding claims “adjudicated
on the merits in State court proceedings.”
This implies that the claim must be                         23
                                                                This is somewhat different than
adjudicated by a court of competent                  the level of scrutiny we apply to state
jurisdiction, as opposed to a kangaroo               jurisdictional questions in the context of
court or an administrative body                      determining whether there is an adequate
masquerading as a court. At the same time,           and independent procedural bar to federal
however, AEDPA’s amendments to the                   habeas relief. See, e.g. Hull v. Kyler, 190
habeas statute surely lower the level of             F.3d 88, 100-03 (3d Cir. 1999). The
scrutiny a federal court is entitled to apply        Supreme Court has specifically delineated
to the issue of state court jurisdiction. For        the role of a federal habeas court in
purposes of applying deference under                 assessing whether a state court decision
section 2254(d) and (e), when a valid state          rests on an independent procedural bar.
court judgment exists a federal habeas               See Coleman v. Thompson, 501 U.S. 722
court should generally presume that the              (1991). In the instant case, however, we
                                                     deal with the jurisdictional issue in the
                                                     different context of deferring to state court
                                                     fact-finding -- an area in which Congress
                                                     spoke in AEDPA by facially eliminating
                                                     the requirement of a jurisdictional inquiry.

                                                30
F.3d at 951 n.17; Mendiola, 224 F.3d at               Rieser v. Glukowsky, 690 A.2d 742 (Pa.
592 (“If a state court’s finding rests on             Super. 1997)). But after AEDPA
thin air, the petitioner will have little             e l i m in a t e d j ur isd ic t io na lly- b a s e d
difficulty satisfying the standards for relief        challenges to state court decisions, a
under § 2254”); Weaver v. Thompson,                   federal habeas court has at most a
197 F.3d 359, 363 (9 th Cir. 1999)                    circumscribed role in reviewing whether a
(statements in the trial judge’s letter were          state court properly applied its own law
not “factual determinations” because they             when it explicitly decided to exercise
were not “subject to any of the usual                 jurisdiction.24
judicial procedures designed to ensure
accuracy”). In other words, the extent to
which a state court provides a “full and                      24
                                                                     “The United States Supreme
fair hearing” is no longer a threshold                Court has repeatedly declared that, in a
requirement before deference applies; but             federal habeas proceeding such as this,
it might be a consideration while applying            ‘state courts are the ultimate expositors of
deference under § 2254(d)(2) and §                    state law . . . and we are bound by their
2254(e)(1).                                           c o n s t r u ct i o n s e x c e p t in r a re
       We need not comprehensively or                 circumstances.’” Humanik v. Beyer, 871
exhaustively address how deeply a federal             F.2d 432, 436 (3d Cir. 1989) (quoting
habeas court may plumb the adequacy of                Mullaney v. Wilber, 421 U.S. 684, 691
state court jurisdiction and procedures in            (1975)). We reiterated this point in
deciding how to apply section 2254(d) and             Johnson v. Rosemeyer, where we
(e)(2). We conclude in the particular                 summarized our precedent as counseling
circumstances of this case that no                    that “a federal court in a habeas case must
jurisdictional concerns obviate the                   be most circumspect in re-examining state
application of AEDPA’s deferential                    c our t decisio ns,” a nd “ onl y in
scheme of review. Nor do any procedural               extraordinary circumstances should a
issues lower the level of deference we                federal district court in a habeas corpus
must afford.                                          case decline to follow the opinions of a
                                                      state intermediate court of appeal with
       First, the Pennsylvania courts
                                                      respect to state law rendered in earlier
affirmatively exercised jurisdiction over
                                                      proceedings involving the petitioner.” 117
Lambert’s PCRA petition. Judge Dalzell
                                                      F.3d 104, 114-15 (3d Cir. 1997); see also
concluded that the PCRA Court and
                                                      Poe v. Caspari, 39 F.3d 204, 207 (8 th Cir.
Superior Court lacked jurisdiction under
                                                      1994) (“Jurisdiction is no exception to the
Pennsylvania law and that, under
                                                      general rule that federal courts will not
Pennsylvania law, “‘[w]here a court lacks
                                                      engage in collateral review of state court
jurisdiction in a case, any judgment
                                                      decisions based on state law.”). Of course,
regarding the case is void.’” Lambert v.
                                                      in Humanik, Barry, Rosemeyer, and Poe,
Blackwell, 175 F. Supp. 2d at 787 (quoting
                                                      the state court determinations of state law

                                                 31
        To be sure, the Superior Court’s             Appellant the collateral relief she
decision appears to be internally                    requested. Order affirmed.” Id. at 363.
contradictory. The Court determined that             Whatever our residual ability to examine
Lambert’s PCRA petition was untimely                 state court jurisdiction in other instances,
and the PCRA Court had “no jurisdiction              the exercise of jurisdiction by the state
to address the substantive merits of the             court in this instance does not call into
petition.” Commonwealth v. Lambert, 765              question that adequacy of the state court
A.2d at 319. Yet the Court decided to                proceeding under section 2254(d) and
entertain Lambert’s appeal and review the            (e).25
PCRA Court’s judgment. Id. at 322-23.
                                                             We turn to Lambert’s second
That decision was motivated in part by a
                                                     argument. Several prosecutorial and law
recognition that the Pennsylvania Supreme
                                                     enforcement witnesses, who Lambert
Court decision in Commonwealth v. Fahy,
                                                     alleges engaged in extensive misconduct,
supra, that established a jurisdictional bar
                                                     testified at the PCRA hearing. Lambert
to untimely PCRA filings did not issue
                                                     argues that the PCRA Court refused to
until after Lambert had filed her PCRA
                                                     “allow Lambert to cross-examine the
application. In other words, the Superior
                                                     perpetrators of the prosecutorial
Court effectively determined to carve out
                                                     misconduct.” Lambert Br. 34. She
an exception to Fahy’s retroactive
application, at least in the somewhat
unusual circumstances of Lambert’s case.                    25
                                                               Our decision in In re James, 940
765 A.2d at 322-23. A federal court will             F.2d 46 (3d Cir. 1991), which Lambert
normally defer to a state court’s decision           cites in her brief, does not persuade us
about retroactivity of state decisions.              otherwise. There, we held that a federal
See Fiore v. White, 531 U.S. 225 (2001).             court may vacate a state court decision
       In short, the Superior Court decided          when the state court acts in violation of the
to retain and exercise jurisdiction. The             federal bankruptcy statute’s automatic stay
Superior Court’s opinion concluded by                provisions. See Raymark Indus., Inc. v.
stating: “Based upon the foregoing, we               Lai, 973 F.2d 1225, 1132 (3d Cir. 1992)
hold that Appellant has not met her burden           (construing In re James). We reached that
under the PCRA statute. Accordingly, we              conclusion because an automatic stay
affirm the PCRA court's order denying                obviates the state court’s jurisdiction and
                                                     renders its decision void ab initio. In re
                                                     James differs from this case (and most
went to the merits of the petitioners’               cases) because the state court’s
habeas claims. Here, the Superior Court’s            jurisdiction, or lack thereof, was a function
determination of state law regards whether           of federal law (the federal bankruptcy
as a jurisdictional matter state courts could        statute). Here, in contrast, the PCRA
entertain Lambert’s claims on collateral             Court’s jurisdiction is a matter of state
review. See note 23, supra.                          law.

                                                32
contends that the PCRA Court’s                      the Court’s factual determinations.26 That
credibility determination are not worthy of
deference because “credib ility
determinations of witnesses who are never                  26
                                                              We concur in the following
subjected to the crucible of cross-                 observations of the Pennsylvania Superior
examination are not entitled to deference.”         Court:
Id. She cites cases standing for the
proposition that cross-examination                         [T]he PCRA court
provides “the principal means by which                     permitted counsel to defend
the believability of a witness and the truth               Appellant's rights with zeal,
of his testimony are tested.” Davis v.                     bringing to the attention of
Alaska, 415 U.S. 308, 316 (1974).                          the court all of the errors
                                                           that, according to Appellant,
       We find Lambert’s argument, as                      caused her an unfair trial.
she frames it, extremely misleading.                       The PCRA court allowed
Cross-examination is “[t]he questioning of                 her to reiterate her claims
a witness at a trial or hearing by the party               and explore every avenue
opposed to the party who called the                        for relief. The PCRA court
witness to testify.” Black’s Law Dictionary                demonstrated remarkable
383 (7th ed. 1999). (emphasis added). The                  patience and thoroughness
PCRA Court did not preclude Lambert                        throughout the proceedings,
from cross-examining any witnesses.                        which provided for review
Rather, the Court applied Pennsylvania                     on appeal over eight
law on evidence and, except for one                        thousand pages of testimony
instance, did not allow Lambert to ask                     from trial and the PCRA
leading questions to the witnesses she                     hearing, along with other
called on direct examination. PCRA Court                   filings, as well as the PCRA
Decision 47-59. Lambert does not                           court's three hundred and
complain that she was not allowed to                       twenty (320) page main
cross-examine Commonwealth witnesses.                      opinion.
        More importantly, however, the              765 A.2d at 323. We also note that the
fact-finding process was not inexorably             PCRA Court allowed Lambert to impeach
undermined by the PCRA Court’s                      witnesses using testimony developed at
evidentiary determination. We have                  the 1997 federal habeas hearing, where
extensively reviewed the record of the              Judge Dalzell apparently let her attorneys
PCRA hearing. The PCRA Court’s                      ask leading questions. See, e.g., App.
decision not to allow Lambert to ask                3793. This further undermines any
leading questions of witnesses she called           suggestion that we should not defer to the
on direct examination in no way impugns             PCRA Court’s factual determinations due
                                                    to Lambert’s inability to “cross-examine”

                                               33
is not to say that in certain instances a           address them in turn.
court’s prohibition on asking leading
                                                           As a preliminary matter, we note
questions could not undermine to some
                                                    that Lambert relies on the same record in
extent a state court’s factual
                                                    her federal habeas proceedings as she did
determinations. This is simply not such a
                                                    in the state PCRA proceedings. She has
case.
                                                    made no attempt to augment the record.
       C.     The Merits                            We therefore simply apply § 2254(d)(2)’s
                                                    reasonableness standard to the PCRA
       We discern in Lambert’s brief
                                                    Court’s factual determinations. With
twelve claims supporting her petition for
                                                    respect to the trial court’s factual
a writ of habeas corpus. Those are the
                                                    determinations, however, we apply a two-
claims for which we grant a COA.27 We
                                                    tiered analysis because Lambert seeks to
                                                    rebut the trial court’s findings through
witnesses.
       27
           Lambert does not pursue on
                                                    Supp. at 1542. Yet at trial Lambert
appeal many of the numerous claims she
                                                    specifically acknowledged telling Solt
pursued at one point or another during the
                                                    what the handwritten portion of the
lengthy state and federal proceedings.
                                                    statement indicates—namely that she was
Lambert alleged before Judge Dalzell and
                                                    wearing Yunkin’s clothes—but she
the PCRA Court, for example, that
                                                    claimed she had lied to the police. When
Corporal Solt fabricated a portion of the
                                                    asked why she lied, Lambert explained
written statement that the Commonwealth
                                                    that she “thought if they found the clothes
claimed at trial represented what she told
                                                    they would know they were Lawrence’s
the police when they arrested her the day
                                                    clothes and he would get in trouble so I
of Show’s murder. As we explained
                                                    said I had them on.” App. 1218.
above, Solt testified that a fellow officer
transcribed Lambert’s statement and she                    On its face, then, Lambert’s
later signed it. A portion at the end of the        accusation of misconduct against Solt in
statement is handwritten, however, while            federal court is utterly belied by her own
most of the statement was typed. In the             testimony at trial. We assume that Lambert
handwritten portion, Lambert explained              does not pursue this claim, and others,
the route she took to flee the Show                 because she has taken the prudent course
apartment. She also said that she was               of only pursuing the arguments she
wearing black sweat pants and a red                 perceives as her strongest. Regardless, we
flannel shirt (i.e. Yunkin’s clothing).             only grant a COA on those issues Lambert
Appellate App. 1581-82. Lambert claimed             has briefed and pursued on appeal. We
before Judge Dalzell and the PCRA Court             observe that many of the claims raised in
that the police fabricated the handwritten          District Court were as ill-founded as the
portion. See Lambert v. Blackwell, 962 F.           fabrication claim we discuss here.

                                               34
evidence that was not before that court,              Napue v. Illinois, 360 U.S. 264, 269
namely evidence developed at the PCRA                 (1959); Pyle v. Kansas, 317 U.S. 213, 216
proceedings. Thus, when reviewing trial               (1942); Mooney v. Holohan, 294 U.S.
court factual determinations, we first                103, 112 (1935). In United States v.
determine whether they were reasonable in             Agurs, the Supreme Court characterized
light of the record before the trial court. If        this line of cases as finding it
reasonable, we then look to whether                   fundamentally unfair to the accused where
Lambert has rebutted the finding with                 “the prosecution’s case includes perjured
clear and convincing evidence adduced at              testimony and [] the prosecution knew, or
the PCRA hearing.                                     should have known, of the perjury.” 427
                                                      U.S. 97, 103 (1976). “The same is true
       1.      The Sweatpants
                                                      when the government, although not
        As we explained above, Yunkin                 soliciting false evidence, allows it to go
testified that Lambert wore his                       uncorrected when it appears at trial.”
sweatpants—which the police eventually                United States v. Biberfeld, 957 F.2d 98,
obtained and which contained Show’s                   102 (3d Cir. 1992) (citing Giglio, 405
blood on them—the morning of Show’s                   U.S. at 153).
murder. Lambert argues that the
                                                             In such circumstances, the
Commonwealth—specifically the
                                                      conviction must be set aside “if there is
prosecutor, John Kenneff—knew that
                                                      any reasonable likelihood that the false
Lambert did not wear Yunkin’s
                                                      testimony could have affected the
sweatpants that morning and nonetheless
                                                      judgment of the jury.” Id. In United States
elicited testimony from Yunkin to the
                                                      v. Bagley, the Court explained: “Although
contrary. She also argues that the
                                                      this rule is stated in terms that treat the
Commonwealth “switched” the sweatpants
                                                      knowing use of perjured testimony as
at the PCRA Hearing. That is, she argues
                                                      error subject to harmless error review, it
that the Commonwealth replaced the
                                                      may as easily be stated as a materiality
sweatpants from the trial with a different
                                                      standard under which the fact that
pair, which it offered into evidence at the
                                                      testimony is perjured is considered
PCRA Hearing and told the PCRA Court
                                                      material unless failure to disclose it would
were the same sweatpants as those from
                                                      be harmless beyond a reasonable doubt.”
the trial.
                                                      473 U.S. 667, 679-80 (1985).
       a.      Knowing Use of
                                                             Thus, in order to make out a
               Perjured Testimony
                                                      constitutional violation Lambert must
       The Supreme Court has long held                show that (1) Yunkin committed perjury;
that the state’s knowing use of perjured              (2) the government knew or should have
testimony to obtain a conviction violates             known of his perjury; (3) the testimony
the Fourteenth Amendment. See Giglio v.               went uncorrected; and (4) there is any
United States, 405 U.S. 150, 153 (1972);              reasonable likelihood that the false

                                                 35
testimony could have affected the verdict.          A. Correct.
The state trial court and PCRA Court
                                                    Q. The red flannel was
concluded that Lambert had in fact worn
                                                    yours.
Yunkin’s sweatpants and Yunkin
therefore did not perjure himself. These            A. Correct.
factual determinations preclude a finding
                                                    Q. The jergo was yours.
of constitutional error, and we review
them under the applicable AEDPA                     A. Correct.
standard.
                                                    Q. I’m going to show you
        At trial Lambert’s counsel, Roy             wha t’s been marked
Shirk, strongly urged Judge Stengel to              Commonwealth Exhibit 10.
conclude that Lambert did not wear                  That’s your jacket?
Yunkin’s clothes on the day of Show’s
                                                    A. Yes, it is. Extra large.
murder, and he developed testimony to
support this argument. He elicited                  Q. Extra large?
testimony from Yunkin’s friend, Vincent
                                                    A. Correct.
Orsi, that Yunkin would wear the
sweatpants “to bed, bumming around the              Q. I’m going to show you
house.” App. 950. Lambert testified that            wha t’s been marked
although she told the police that she wore          Commonwealth Exhibit 9.
a red flannel shirt and black sweatpants the        They are your sweat pants?
morning of Show’s murder, she had lied to
                                                    A. Yes.
them in order to protect Yunkin. To
contradict the reason Yunkin gave for why           Q. In fact you used to wear
Lambert wore his clothing—i.e., she was             them to bed and you used to
well into her pregnancy—Shirk elicited              wear them while you were
testimony that Lambert was barely                   lounging around. You used
“showing” at that stage of her pregnancy.           to wear these quite a bit,
And he had the following exchange with              didn’t you?
Yunkin on cross-examination:
                                                    A. Yes.
       Q. So basically what you are
                                                    Q. Now you indicated that
       telling us here this morning,
                                                    Michelle was pregnant at
       Michelle was wearing all
                                                    the time, is that correct?
       your clothing?
                                                    A. Yes.
       A. Correct.
                                                    Q. You indicated she was
       Q. The sweat pants were
                                                    seven months pregnant.
       yours.
                                                    A. Around there, yes.

                                               36
       Q. Around six months?                       Mr. Shirk: That is for a fray
                                                   in the morning that was
       A. Between six and seven.
                                                   going to last, whatever, an
       Q. She wasn’t really heavy                  hour or two, three, she
       at the time, was she? She                   would wear this for comfort;
       wasn’t showing a lot.                       and the clothing she put on
                                                   to wear the rest of the day,
       A. Not really, no.
                                                   or at least the clothing that
       Q. But it’s your testimony                  Detective—T rooper Solt
       that she left the house that                indicated he believed she
       day basically clothed in your               had on that evening, the
       clothing.                                   difference in size. She was
                                                   going to spend a lot more
       A. True.
                                                   time in this—(holding up a
App. 273-74.                                       sweater)—and she had to
                                                   wear that for comfort a few
       During his closing argument, Shirk
                                                   hours in the morning.
argued that all the evidence suggested that
Lambert did not wear Yunkin’s clothing.            (Holding up a pair of pants.)
The relevant portion of his closing went as
                                                   This is what she wore the
follows:
                                                   rest of the day, compared to
       The assumption we’re                        them.
       supposed to make is that my
                                                   You may sit down. Thank
       client, due to her pregnancy,
                                                   you.
       wore Mr. Yunkin’s clothes,
       perhaps to be more                          (Mr. Jeffries returned to the
       comfortable because she                     defense table.)
       was pregnant and obviously
                                                   Mr. Shirk: You Honor, I
       bigger than she normally is;
                                                   think even the clothing is
       although Chief Glick, in his
                                                   consistent with the
       testimony, indicated she
                                                   defendant’s testimony.
       really wasn’t showing that
       much. I find it, or the                     Vinnie Orsi suggested that
       defense finds it, incredible.               Mr. Yunkin wore them to
                                                   bed any time he was over
       Would you hold up that
                                                   there, wore them around
       jacket.
                                                   lei su re ly. M r. Yunki n
       Mr. Jeffries: (Complying                    admitted from the stand he
       with the request.)                          wore those sweat pants to
                                                   bed. Lisa Lambert, in her

                                              37
       testimony, said, interestingly                be no question raised by the fact that the
       enough, just off the cuff: He                 clothing appeared to be Mr. Yunkin’s.”
       got up that morning, had his                  App. 1633. As Judge Stengel later put it:
       sweat pants on, threw                         “The only real question was whether
       something on and away they                    [Lambert] could have worn sweatpants
       went.                                         owned by the larger Yunkin. This was
                                                     resolved by the court’s observations of the
       Probably very likely what
                                                     sweatpants, of Mr. Yunkin, of Ms.
       happened, he was getting up
                                                     Lambert, and the conclusion that Ms.
       early that morning, just kept
                                                     Lambert could certainly have worn the
       on his sweat pants, threw on
                                                     garment.” PCRA Decision 204.
       his red flannel, his jergo,
       and away they went. It                               Lambert urges us to conclude that
       would seem incredible that                    the trial court’s finding of fact was
       they got up that time in the                  unreasonable given the record before it
       morning and he wears these                    and that the only reasonable conclusion
       to bed all the time, he took                  was that Yunkin wore the sweatpants the
       them off to give them to her                  day of the murder. Her argument is this:
       to put on. Difficult to                       Since Yunkin was 6'1” tall and weighed
       believe. I think the clothing                 190 pounds and he admittedly wore the
       is consistent with her                        sweatpants at times, it was impossible for
       statement.                                    Lambert (who was 5'6” tall and weighed
                                                     143 pounds at the time) to have worn
App. 1289-90.
                                                     them.
        After Judge Stengel found Lambert
                                                            In order to accept Lambert’s
guilty, she again advanced her argument
                                                     argument, however, we must make several
regarding Yunkin’s sweatpants in her post-
                                                     speculative leaps that find no support in
verdict motion seeking an arrest of
                                                     the record. First, we must infer that it was
judgment and a new trial. Addressing the
                                                     physically impossible for Lambert to fit
argument that the evidence regarding the
                                                     into a pair of sweatpants that would have
sweatpants rendered the verdict against the
                                                     fit the larger Yunkin. Alternatively, we
weight of the evidence, Judge Stengel
                                                     must assume that people always wear
wrote: “[F]or defendant to argue that the
                                                     clothes that fit them perfectly—that is,
killer was wearing Mr. Yunkin’s clothing
                                                     people never wear clothes that are large on
and, therefore, must have been Mr. Yunkin
                                                     them—and that it is therefore unreasonable
is ludicrous. . . . The court listened to the
                                                     to conclude that either Lambert or Yunkin
testimony regarding the clothing, observed
                                                     wore sweatpants that did not properly fit
the size of the garments and the size of the
                                                     them. But neither of these suggestions is
people involved, i.e., Ms. Lambert, Ms.
                                                     supported by the record or common sense.
Buck and Mr. Yunkin, and found there to


                                                38
       The PCRA Court considered                      Commonwealth switched evidence and
Lambert’s argument and reached the same               produced different sweatpants than those
conclusion. “Petitioner suggests that the             used at trial.” Lambert Br. 41. The PCRA
sweatpants in 1992 were so large,” the                Court rejected Lambert’s argument,
Court explained, “that Ms. Lambert would              because it found that there was no “proof
be ‘swimming in them.’” But, the Court                that the sweatpants admitted into evidence
concluded, “[t]here is simply no testimony            as Commonwealth’s Exhibit 9 in 1992
or even any argument to this effect.”                 have ever been altered, changed, or
PCRA Decision 209-10.                                 substituted.” PCRA Decision 209.
       We agree with this conclusion.                          To support her “switching” claim
Against the weight of Lambert’s                       before the PCRA Court, Lambert offered
speculative argument is a conclusion by a             testimony that the sweatpants at the trial
finder of fact who had the opportunity of             tested positive for blood, while the
observing both Lam bert an d the                      sweatpants at the PCRA hearing did not.
sweatpants during the trial itself.                   In addition, a textile expert opined that the
Lambert’s counsel was free to argue that              sweatpants at the PCRA hearing were
Yunkin’s clothes were too big for Lambert             sized “boy’s extra large” and that a 6'1"
to wear, but the judge was free to disregard          individual who weighed one hundred and
those arguments and to base his findings              ninety pounds— Yunkin’s approximate
on his own observation.                               height and weight at the time of the
                                                      murder— could not fit into them.
       Thus Lambert’s claim that the
                                                      Lambert’s trial counsel, Roy Shirk, also
prosecution must have knowingly relied on
                                                      testified at the PCRA hearing that, to the
perjured testimony because the sweatpants
                                                      best of his recollection, the sweatpants at
did not fit collapses. Lambert’s vehement
                                                      the PCRA hearing were smaller than those
disagreement with the prosecutor’s theory
                                                      at trial. He also opined that the sweatpants
— and with the judge’s finding — does
                                                      at the PCRA hearing would not fit Yunkin.
not amount to a good faith basis to allege
perjury. There is simply no foundation in                     O n the oth er han d, the
the record for this allegation.                       Commonwealth offered evidence that the
                                                      officer who logged the contents of the bag
       b.      “Switching” Evidence
                                                      found in the dumpster behind K-Mart
         Lambert argues that she is                   listed the sweatpants that were eventually
nonetheless entitled to relief due to the             admitted into evidence at the trial as
Commonwealth’s misconduct at the PCRA                 “ladies dress ‘black’ sweatpants (appears
hearing. Specifically, Lambert argues that            small size).” App. 7015. This would tend
at the PCRA hearing, the Commonwealth                 to contradict Lambert’s bald assertion that
offered into evidence sweatpants that were            the sweatpants at trial were so huge that
different than those offered into evidence            she could not wear them. The forensic
at trial. In other words, she argues that “the        scientist who performed the test to check

                                                 39
for blood prior to the trial, Donald P.              Lambert’s conviction on evidence
Bloser, Jr., testified that the markings he          contradictory to that used to convict her
made on the sweatpants from trial still              violates ‘the most basic notions of due
appeared (albeit faded) on the sweatpants            process.’” Lambert Br. 41. In support of
at the PCRA hearing. Bloser also testified           this proposition, she cites Dunn v. United
that the sweatpants tested “very weak” for           States, 442 U.S. 100 (1979), Smith v.
blood prior to trial in 1992 and that he             Groose, 205 F.3d 1045 (8 th Cir. 2000), and
found no presence of blood when he                   Thompson v. Calderon, 120 F.2d 1045 (9 th
retested other evidence (such as the ski             Cir. 1997).
hats) that had also tested “very weak” for
                                                            In Dunn, the Court of Appeals had
blood in 1992. App. 2759.28 In addition, an
                                                     affirmed a conviction based on facts that
investigator from the Commonwealth,
                                                     had been adduced at trial but that neither
James Gallagher, testified about a
                                                     supported the offense charged in the
photograph he took using the sweatpants
                                                     indictment nor provided the foundation for
in evidence at the PCRA hearing. He took
                                                     the jury’s conviction. The Supreme Court
a photograph in which he laid the
                                                     held that “appellate courts are not free to
sweatpants against cardboard box lids that
                                                     revise the basis on which a defendant is
had also appeared in a photograph of the
                                                     convicted simply because the same result
sweatpants from trial. The Court
                                                     would likely obtain at trial.” 442 U.S. at
concluded that the two photographs looked
                                                     107. In other words, a defendant’s due
substantially similar.
                                                     process rights are violated when his
       Given the record before it, the               conviction is affirmed on an offense that
PCRA court’s factual determination that              he was not charged with and that was not
the sweatpants were not “switched” is                presented to the jury or court that tried
reasonable. There is substantial evidence            him.
in the record to support the conclusion,
                                                            Smith and Thompson involved
and the evidence to the contrary is
                                                     instances where the government offered
considerably weaker.
                                                     contradictory theories in two separate trials
      M ore important, Lam bert’ s                   to convict two individuals for the same
“switching” claim provides no basis for              crime. The Thompson court held that
habeas relief. She argues that “the                  “when no new significant evidence comes
Commonwealth’s attempt to uphold                     to light a prosecutor cannot, in order to
                                                     convict two defendants at separate trials,
                                                     offer inconsistent theories and facts
       28                                            regarding the same crime.” 120 F.3d at
          Bloser also testified that evidence
                                                     1058. The Smith court concluded that the
that tested “positive” for blood in 1992
                                                     “State’s use of factually contradictory
tested “very weak” for blood when he
                                                     theories constituted ‘foul blows’” and
tested it prior to the PCRA hearing. App.
                                                     “deprived [the defendant] of due process
2759.

                                                40
and rendered his trial fundamentally                       implausibility of the state's
unfair.” 205 F.3d at 1051.                                 account of the murder. The
                                                           Superior Court and
         To a certain degree Dunn and
                                                           Delaware Supreme Court
Smith/Thompson represent different sides
                                                           did not affirm his conviction
of the same coin. Dunn requires a certain
                                                           based on the state's theory
degree of vertical consistency (between
                                                           but mere ly found his
trial and appeal) in the theories the
                                                           i n e f f e c t i v e n e s s c l a im
government offers, while Smith and
                                                           unpersuasive. The state's
Thompson require a certain degree of
                                                           theory played a small role, if
horizontal consistency (between two
                                                           any, in the courts' reasoning.
trials). Both lines of cases are inapposite,
                                                           In this context Dunn and
however, because they do not provide a
                                                           [Cola v. Reardon, 787 F.2d
basis for habeas relief here.
                                                           681 (1 st Cir.), cert. denied,
        Lambert’s argument suffers from                    479 U.S. 930 (1986)] are
the same “fundamental flaw” that we                        simply not applicable.
identified in the petitioner’s argument in
                                                    Id. at 238.
Gattis v. Snyder, 278 F.3d 222 (3d Cir.
2002). There, we explained:                                Similarly, and more importantly,
                                                    habeas proceedings are not the appropriate
       The fundamental flaw in
                                                    forum for Lambert to pursue claims of
       Gattis' argument is that in
                                                    error at the PCRA proceeding. As we
       the decisions of which he
                                                    explained in Hassine v. Zimmerman, 160
       complains the state courts
                                                    F.3d 941 (3d Cir. 1998):
       did not “uphold [his]
       conviction on a charge that                         The federal courts are
       was neither alleged in an                           a uthor iz ed to provid e
       indictment nor presented to                         collateral relief where a
       a jury at trial.” [Dunn, 442                        petitioner is in state custody
       U.S. at 106]. The allegedly                         or under a federal sentence
       different theory of guilt was                       imposed in violation of the
       not presented on direct                             Constitution or the laws or
       appeal in support of his                            treaties of the United States.
       conviction but in the course                        28 U.S.C. §§ 2254, 2255.
       of a post-conviction hearing                        Thus, the federal role in
       held in connection with his                         reviewing an application for
       claim that counsel was                              habeas corpus is limited to
       ineffective for failing to                          evaluating what occurred in
       present expert testimony                            the state or federa l
       c o n c ern i n g       th e                        proceedings that actually led


                                               41
       to the petitioner's                          that she had seen Yunkin driving through
       conviction; what occurred in                 the Show condominium complex with two
       the petitioner's collateral                  passengers the morning of Show’s murder.
       proceeding does not enter                    Lambert argues this evidence shows that
       into the habeas calculation.                 the Commonwealth knowingly used
       We have often noted the                      perjured testimony, namely Yunkin’s
       general proposition that                     testimony that he never drove within the
       habeas proceedings are                       condominium complex that morning. She
       “hybrid actions”; they are                   also argues that the Commonwealth’s
       “independent civil                           failure to disclose Bayan’s statement prior
       dispositions of completed                    to the trial violated Brady v. Maryland,
       c r i m i n al proc eedin g s .”             373 U.S. 83 (1963).
       Federal habeas power is
                                                            The circumstances surrounding
       “limited . . . to a
                                                    Bayan’s statement were thoroughly
       determination of whether
                                                    canvassed at the PCRA hearing. Bayan
       there has been an improper
                                                    testified that on July 5, 1992, soon before
       detention by virtue of the
                                                    Lambert’s trial began, Detective Ronald
       state court judgment.”
                                                    Savage of the East Lampeter Township
Id. at 954-55 (internal citations omitted);         Police Department called her to discuss a
see also Morris v. Cain, 186 F.3d 581, 585          matter regarding her son. During the
n.6 (5 th Cir. 1999); Williams-Bey v.               conversation, Bayan (who lived in the
Trickey, 894 F.2d 314, 317 (8 th Cir. 1990).        same condominium complex as Show) told
To be sure, error in state collateral               Savage that on December 20, 1991 she had
proceedings may affect the deference we             seen a light-haired young man driving with
owe the court’s findings under § 2254(d)            two passengers along the road she lived on
and 2254(e)(1). But, as we admonished in            within the condominium complex.
Hassine, alleged errors in collateral
                                                           Savage visited Bayan two days later
proceedings, such as Lambert’s claim that
                                                    to take a statement from her. Bayan told
the prosecution “switched” the sweatpants,
                                                    him that as she was pulling out of her
are not a proper basis for habeas relief
                                                    driveway on Black Oak Drive, a circular
from the original conviction. It is the
                                                    road that passed through the condominium
original trial that is the “main event” for
                                                    complex, she saw three individuals drive
habeas purposes.
                                                    by in a brown car. The passengers were
       2.     Evidence of Yunkin’s                  talking and appeared to be in conflict, and
              Location During the Murder            the young man driving the car pushed
                                                    down the head of the person sitting in the
      Prior to the trial, an individual
                                                    front seat. Bayan provided a written
named Kathleen Bayan gave a statement to
                                                    statement that provided, in relevant part:
a Commonwealth investigator indicating


                                               42
        . . . . On pulling out                From      obse rving
of my drive (at 43 Black                glimpses of their faces the
Oak Drive) I observed a                 people in the car were of
brown “patchwork coupe”                 High School age or very
(mid 70's?) That looked like            young adults (16-22).
it migh t be in the
                                               There     were no
Ford/Mercury line. There
                                        headlights on, it was dawn
were three people inside.
                                        and it was light enough to
The person driving appeared
                                        see clearly.
to have light hair. And the
two passengers had dark                         The two passengers
clothing.          What      I          had on navy or black tops
r em e m be r e d w a s t h e           and I could not see their hair
movement inside the car.                yet it was all dark like their
One passenger was in the                clothing. So I would deduct
back [and] one in the front.            that it was a hood. The
The person in the front                 driver was male, but the
leaned over the seat toward             passengers w ere not
the back and arms were                  decernable [sic] as either
moving all over. The driver             sex.
would turn sideways during
                                               The car had patches
this time.
                                        where it may have had
       The driver also was              primer on it or a try at
going too fast for the curves           matching the paint of
and was not driving in a                “coppery brown”. It really
straight line. I remember               looked so out of place in our
thinking that the car looked            condo.
out of place in the
                                               I am almost positive
condominiu m and that
                                        (99.5%) that I recollect this
whoever was in it acted
                                        car passing my cul de sac
drunk for 7 A.M.
                                        while I was waiting to pull
          I left an extra couple        out. The brown car was
of car lengths between the              moving faster than our
brown car and mine. It                  residents drive and took the
e x i t ed T h e Oaks o n               curve at Sycamore Drive
Oakview Rd. To the light at             sharply. (There is a small
462 then made a right and               chance that the vehicle
went straight (?) down 462              could have made a U turn at
(sort of swerving).                     the end of Sycamore Drive

                                   43
       and that is where the car got              credible because he thought she had
       in front of me. But either                 emotional problems. Kenneff sent a letter
       way I remember thinking                    to Lambert’s counsel, Roy Shirk, stating:
       that the driver was not                    “It is my understanding that it is the
       driving safely.)                           defense contention that on December 20,
                                                  1991, shortly after 7:15 a.m., Yunkin
              I had never seen the
                                                  picked up Lambert at the wooded area near
       car in the complex before.
                                                  the intersection of the driveway to the
       There were no other cars
                                                  Oaks Apartment Complex and Oakview
       pulling out of the complex
                                                  Road. If my understanding is correct
       during this time.
                                                  please advise.” Appellate App. 1620.
                I did not see their               Kenneff testified that he sent this letter in
       faces clearly because of the               order to determine whether he had an
       distance, dirty windows, and               obligation to disclose Bayan’s statement.
       I have a perceptual disability
                                                          Kenneff knew that Yunkin planned
       that limits my span of focus
                                                  to testify that he picked up Lambert and
       (i.e. when I look at a license
                                                  Buck on Oak View Road— outside the
       plate and focus on the first
                                                  condominium complex—and Bayan’s
       letter, I cannot tell what the
                                                  statement was therefore inconsistent with
       last 3 figures are). . . .
                                                  Yunkin’s planned testimony. But Kenneff
               I would like to                    believed, according to his testimony, that
       apologize for not contacting               he had no obligation to disclose Bayan’s
       you all sooner. At first, I did            statement unless it corroborated the
       not realize there was a                    version of events Lambert planned to offer
       connection. Then when I                    at trial. And all the evidence other than
       did, the suspects were                     Bayan’s statement— including Lambert’s
       arrested [and] from what I                 statement to the police upon her
       read in the papers, there                  arrest—indicated that Yunkin had picked
       appeared to be enough                      Lambert and Buck up outside the
       evidence.                                  condominium complex. As a result, he did
                                                  not tell Shirk about the statement.
Appellate App. 1613-15. Bayan testified at
the PCRA hearing that she accidentally                   a.     Knowing Use of
omitted from her statement that she saw                         Perjured Testimony
the driver push down one of the
                                                          Lambert’s first argument based on
passenger’s heads.
                                                  Bayan’s statement is that since the
       Savage testified that he gave the          statement placed Yunkin in th e
written statement to John Kenneff and told        condominium complex and Yunkin
Kenneff that he believed Bayan was not            testified that he never entered the complex,


                                             44
the government knowingly elicited                      we explained above, in order to sustain a
perjured testimony from Yunkin. Lambert                claim of constitutional error Lambert must
would, in effect, have us find a due                   show that Yunkin actually perjured
process violation anytime a prosecutor                 himself and the government knew or
elicits testimony that contradicts testimony           should have known of his perjury. These
that the defense elicits. Discrepancy is not           are factual determinations. See, e.g., Ortiz
enough to prove perjury. There are many                v. Stewart, 149 F.3d 923, 936-37 (9 th Cir.
reasons testimony may be inconsistent;                 1998) (finding no constitutional violation
perjury is only one possible reason.29 As              because of factual finding that testimony
                                                       was not perjured); United States v.
                                                       Caballero, 277 F.3d 1235, 1244 (10 th Cir.
       29                                              2002) (finding no constitutional error
           This principle is illustrated by the
                                                       because of “the absolute lack of evidence
(perhaps apocryphal) anecdote told about
                                                       to show either the falsity of [the witness’s]
the legendary English barrister—later
                                                       testimony or the prosecutor's knowledge of
Lord Chancellor—F.E. Smith. Smith, then
                                                       false testimony”). 30
a young lawyer, was charged with assault
on a police officer arising out of an                        The PCRA Court declined to
altercation at Oxford. Defending himself               conclude that Yunkin perjured himself
at trial, Smith denied kicking the officer.            because the lion’s share of evidence
The prosecutor challenged th e
inconsistency between Smith’s testimony
and that of the policeman, asserting Smith                    the fifth is that the two
was necessarily accusing the latter of                        assertions though apparently
perjury.                                                      contradictory can none the
                                                              less be reconciled.
     As related by an observer at trial
(John Simon, also a future Lord                        Viscount Simon, Retrospect 36
Chancellor):                                           (Hutchinson 1952), quoted in John
                                                       Campbell, F.E. Smith 77 (Pimlico 1991).
              On the contrary, said
                                                              30
       F.E. sweetly, that is one of                               In the Supreme Court cases
       five possible explanations.                     establishing a due process violation for
                                                       knowing use of perjured testimony, it was
        ...
                                                       undisputed that the testimony at issue was
              One is that he is                        false and the prosecution knew of its
       committing perjury; the                         falsity. See, e.g., Napue, 360 U.S. at 269.
       second is that I am                             Thus the Supreme Court has not addressed
       committing perjury; the                         the level of prosecutorial knowledge
       third is that he is honestly                    necessary to constitute a constitutional
       mistaken; the fourth is that I                  violation. See Drake v. Portuondo, 321
       am honestly mistaken; and                       F.3d 338, 345 (3d Cir. 2003).

                                                  45
corroborated Yunkin’s testimony. PCRA
Decision 175. We conclude that the
PCRA’s Court’s decision was reasonable.                regarding Buck’s credibility:
        In reaching its conclusion, the                             Ms. Buck has
PCRA Court considered Lambert’s                              nothing to gain by lying
statement to the police upon her arrest,                     about Ms. Lambert’s
testimony from three condominium                             involvement in the death of
complex residents, and Buck’s testimony                      Laurie Show. In her
at the PCRA hearing. After the police                        testimony at the PCRA, she
arrested Lambert the day of Show’s                           had the candor and the
murder, she gave a statement consistent                      decency to accept
with being picked up on Oak View Road.                       responsibility for her own
She stated that after leaving Show’s                         role in the killing. She
apartment she ran through “two fields” and                   knows that she blocked
a “patch of woods,” stepped in a creek                       Laurie Show’s path as
(“like a little runoff”), fell in “the briars,”              Laurie tried to escape. She
and ended up on someone’s backyard.                          knows that she held
Similarly, three of Show’s neighbors                         Laurie’s legs down while
(Kleinhaus, Frederick Fry, and Patricia                      Ms. Lambert cut her throat.
Fry) testified at the trial that they saw two                In our close observation of
individuals of generally the same build                      Ms. Buck as she testified
walking in a direction consistent with                       and in our subsequent
Lambert and Buck being picked up on Oak                      consi deration of her
View Road.                                                   testimony, we find her
                                                             credible in her description
         Buck, who had not ever previously
                                                             of the murder. She has
testified in any court proceedings
                                                             acknowledged that she
regarding the events of December 20,
                                                             deserves her sentence
1991, testified at the PCRA hearing. Buck
                                                             because of her actions on
related that she and Lambert entered
                                                             December 20, 1991. She has
Show’s apartment and accosted Show.
                                                             acknowledged her guilt
Although Buck made several inculpatory
                                                             under oath in a courtroom in
admissions, she testified that it was
                                                             the same courthouse in
Lambert who stabbed Show and slit her
                                                             which her own PCRA
throat. 31 In addition, Buck stated that after
                                                             petition is pending. What
                                                             possible impact will this
                                                             admission have on her own
       31
           Because it goes to the                            PCRA claim that her trial
reasonableness of Judge Stengel’s factual                    resulted in a “fundamentally
determination, we note his conclusion                        unfair” conviction?

                                                  46
she and Lambert left Show’s apartment             her personal life.32 In addition, the PCRA
they proceeded toward a wooded area,              Court allowed Bayan to testify from
walked across a field, and ended up in            Florida via teleconference because she told
“some bushes, maybe a ditch” along Oak            the Court she needed to care for her
View Road. App. 10426-27.                         handicapped fiancé. Yet the Court
                                                  subsequently learned that there was an
       Furthermore, the PCRA Court
                                                  active warrant for her arrest in Lancaster
found that Bayan was not a credible
                                                  County for her failure to pay taxes. The
witness. The Court came to that conclusion
                                                  Court also found that Bayan’s perceptual
for several reasons. Bayan did not come
                                                  disab ility rendered her testimony
forward with her statement until several
                                                  questionable.33 Finally, Judge Stengel
months after the murder, for example, and
                                                  concluded that his personal observation of
she only told Savage about her
                                                  B a y a n w h i l e s h e t e s ti f i ed v i a
observations after engaging in lengthy and
                                                  teleconference was consistent with
seemingly irrelevant discussions regarding
                                                  Savage’s impression in 1992 that she was
                                                  not credible.
                                                         Lambert argues that the PCRA
                                                  Cou rt’s factual determination was


              Ms. Buck knows full                        32
      well that, when she took the                            Similarly, Bayan’s 1992
      stand to acknowledge,                       statement provided a substantial amount of
      under oath in a courtroom,                  information, regarding her son, that was
      that she actively participated              irrelevant to her account of what she
      in the killing of Laurie                    allegedly saw on December 20, 1991.
      S h o w , s h e s e v e r e ly              When the Commonwealth inquired about
      compromised any chance                      this at the PCRA hearing, Bayan stated
      that she has that a state or                that she “was going through a lot with [her
      federal court will be                       son] at the time” and wanted Savage “to
      inclined to find that she has               realize where I was coming from.” App.
      been wrongly convicted.                     8162.
      Her testimony will not take                        33
                                                             When Bayan focuses on a
      a day off her life sentence
                                                  particular object, she has difficulty
      and will not change the
                                                  focusing on and seeing the items that
      events of December 20,
                                                  surround that object. So, for example, if
      1991. We find her credible
                                                  she is “looking at one word, everything
      in her description of what
                                                  else around it just isn’t clear.” App. 8169.
      happened that morning.
                                                  As a result, she’s “a word-by-word
PCRA Decision 159-60.                             reader.” Id.

                                             47
unreasonable in light of other evidence in          App. 9210-11. She became upset when she
the record. Lambert Br. 52. Most notably,           was not able to jog her memory, and
Hazel Show testified at the PCRA hearing            Savage told her not to worry about it
that she recalled driving past Yunkin on            because they “had solid witnesses who
her way home the day of the murder and              could answer the questions about the flight
seeing Yunkin pushing down the head of a            that they took, the path that they took from
passenger in the front seat. But she did not        the condo.” Id. at 9212.
recall passing Yunkin until after she heard
                                                            The PCRA Court found that Hazel
Bayan testify at the 1997 habeas hearing.
                                                    Show’s recollection did not sufficiently
At the time of the trial in 1992, she only
                                                    corroborate Bayan’s testimony to establish
remembered “a flash of brownish color.”
                                                    that Yunkin perjured himself. This
App. 9210. She testified at the PCRA
                                                    conclusion was reasonable in light of the
hearing about the conversation she had
                                                    full record. First, as the Court noted, Hazel
with Savage a couple of days before the
                                                    Show could not rule out the possibility that
trial:
                                                    she saw the car on Oak View Road. In
       [Detective Savage] had told                  addition, Hazel Show did not recollect
       m e a n e i g h b o r la d y                 seeing Yunkin’s car until approximately
       mentioned that she had seen                  six years after the event occurred. In the
       a brown car leaving our                      intervening time she sat through a trial and
       complex.                                     habeas hearing where she heard testimony
                                                    regarding the events she eventually
              When he said that, I
                                                    recollected. These facts tend to diminish
       saw a flash of a brownish
                                                    the value of her testimony at the PCRA
       color and I said to him, a
                                                    hearing regarding seeing Yunkin’s car, and
       brownish color? And then
                                                    they bolster the reasonableness of the
       we went over this, had I
                                                    PCRA Court’s factual determination.
       seen a car? I wasn’t sure.
       Where was it? I wasn’t sure.                        Moreover, even if Hazel Show’s
       What type of car? Was                        testimony suff iciently corrob orate d
       anyone in it? And I had                      Bayan’s statement to show that Yunkin’s
       nothing in my memory                         testimony was incorrect, the testimony
       except when he said this                     does not tend to show that the government
       brown color, I just saw a                    knew or should have known of the perjury.
       flash of a brown car. Not                    At the time of the trial, all Hazel Show
       even knowing if it was a car                 recalled was a “flash of brown.” In light of
       or anything and I tried to jog               the substantial evidence supporting
       my memory to get more                        Yunkin’s testimony and questioning
       information but there wasn’t                 Bayan’s credibility, it was reasonable for
       anything there.                              the PCRA Court to conclude that the
                                                    government did not and should not have

                                               48
known Yunkin was perjuring himself                        addition, impeachment evidence, as well
(assuming, of course, that Hazel Show’s                   as exculpatory evidence, falls within the
testimony in 1997 and 1998 in fact                        Brady rule, see Giglio v. United States,
demonstrated he was lying).34 The                         405 U.S. 150, 154 (1972), because “[s]uch
existence of evidence tending to contradict               evidence is ‘evidence favorable to an
testimony the government elicits at trial                 accused.’” United States v. Bagley, 473
does not conclusively show that either the                U.S. 667 (1985) (quoting Brady, 373 U.S.
witness perjured himself or (if he did) that              at 87). Thus to establish a Brady violation
the government knew or should have                        requiring relief, a defendant must show
known of the perjury. The PCRA Court’s                    that (1) the government withheld evidence,
factual findings are dispositive.                         either willfully or inadvertently; (2) the
                                                          evidence was favorable, either because it
        b.      Suppression of
                                                          was exculpatory or of impeachment value;
                Brady Material
                                                          and (3) the withheld evidence was
          In Brady v. Maryland, the Supreme               material. See Banks v. Dretke, -- U.S. --,
Court held “that the suppression by the                   124 S. Ct. 1256, 1272 (2004); United
prosecution of evidence favorable to the                  States v. Palermo, 929 F.2d 967, 970 (3d
accused upon request violates due process                 Cir. 1991).
where the evidence is material either to
                                                                 The PCRA Court found that
guilt or to punishment, irrespective of the
                                                          Lambert had not made either of the latter
good faith or bad faith of the prosecution.”
                                                          two showings. With respect to the second
373 U.S. at 87. The Court subsequently
                                                          prerequisite, the Court found that Bayan’s
held that “a defendant’s failure to request
                                                          statement was not the type of evidence that
favorable evidence did not leave the
                                                          fell within the government’s duty to
Government free of all obligation,” and a
                                                          disclose under Brady. Specifically, the
Brady violation might arise “where the
                                                          Court held that “[a]bsent a specific request
G o v e r n m e nt f a i le d t o v o l u n te e r
                                                          by the defendant for exculpatory evidence,
exculpatory evidence never requested, or
                                                          a prosecutor has a duty to make evidence
requested only in a general way.” Kyles v.
                                                          available to the defense that is truly
Whitley, 514 U.S. 419, 433 (1995). In
                                                          exculpatory rather than merely favorable.”
                                                          PCRA Decision 170. And it found that the
                                                          evidence was not “truly exculpatory” in
        34
            The PCRA Court did not                        part because Lambert’s lawyer told the
explicitly make this factual determination,               prosecution that Lambert planned to
but it is implicit in its findings. And we                contend at trial that Yunkin had picked her
owe AEDPA deference to both express                       up on Oak View Road. Id. at 171-72. We
and implicit factual findings. See Weeks                  review this legal determination under §
v. Snyder, 219 F.3d 245, 258 (3d Cir.                     2254(d)(1) to determine whether it was
2000); Campbell v. Vaughn, 209 F.3d                       contrary to or an unreasonable application
280, 285-86 (3d Cir. 2000).

                                                     49
of clearly established federal law. See              435. Rather, “[t]he evidence is material
Hollman v. Wilson, 158 F.3d 177, 179 (3d             only if there is a reasonable probability
Cir. 1998).                                          that, had the evidence been disclosed to
                                                     the defense, the result of the proceeding
        This portion of the Court’s decision
                                                     would have been different.” Bagley, 473
was contrary to federal law, because the
                                                     U.S. at 682.35 In other words, the relevant
Supreme Court has “disavowed any
                                                     question is: “when viewed as a whole and
difference between exculpatory and
                                                     in light of the substance of the
impeachment evidence for Brady
                                                     prosecution's case, did the government's
purposes.” Kyles, 514 U.S. at 433 (citing
                                                     failure to provide . . . [the] Brady
Bagley, 473 U.S. at 667). Here, as in
                                                     impeachment evidence to the defense prior
United States v. Pelullo, “[w]e have no
                                                     to the [] trial lead to an untrustworthy
hesitation in concluding that the
                                                     guilty verdict . . . ?” See Pelullo, 105 F.3d
government inexplicably failed to abide by
                                                     at 23; see also Banks, 124 S. Ct. at 1276-
its obligation under Brady to disclose
                                                     77.
potential impeachment evidence.” 105
F.3d 117, 122 (3d Cir. 1997). While                         “Because it is contrary to
Bayan’s statement did not exculpate                  overwhelming evidence,” the PCRA Court
Lambert, it was inconsistent with Yunkin’s           held, “her story would have had no
testimony regarding his whereabouts                  impact.” PCRA Decision 175. In other
during the crime. Bayan could have been              words, “it did not so undermine the truth-
called, therefore, to contradict at least one        determining process that no reliable
aspect of Yunkin’s testimony, and perhaps,           adjudication of guilt or innocence could
therefore, to cast a larger doubt on his             have taken place.” Id. Since this too was a
credibility. And while Bayan’s own                   legal determination, we review it also
credibility might have been open to                  under § 2254(d)(1). We conclude that it
challenge, resolution of these kinds of              was neither contrary to nor an
credibility disputes should take place in the        unreasonable application of clearly
courtro om, and not throug h th e                    established federal law.
prosecutor’s unilateral decisionmaking.
                                                           The potential value of Bayan’s
         The PCRA Court concluded,                   statement as impeachment evidence was
however, that even if the government had
erred by not disclosing the evidence, the
withheld evidence was not material for                      35
                                                               The Kyles Court also noted that
Brady purposes. “[A] showing of
                                                     the materiality of “suppressed evidence [is
m a t e riality does not r e q u i r e a
                                                     to be] considered collectively, not
demonstration by a preponderance that
                                                     item-by-item.” 514 U.S. at 436. But we
disclosure of the suppressed evidence
                                                     need not follow that admonition here since
would have resulted ultimately in the
                                                     Bayan’s statement is the only evidence we
defendant’s acquittal.” Kyles, 514 U.S. at
                                                     find the government wrongfully withheld.

                                                50
negligible. There was substantial evidence          apartment that morning. Thus even if
at trial, including the testimony of Lambert        Bayan’s statement fully implicated Yunkin
herself, that tended to show Yunkin picked          in Show’s murder, it would not have
up Lambert and Buck on Oak View Drive.              sufficed to exculpate Lambert. There is no
In any case, there existed far stronger             reasonable probability that evidence
evidence regarding Yunkin’s truthfulness            showing Yunkin was driving within the
(or lack thereof). Indeed, the government           condominium complex, rather than on a
conceded in its closing that it believed            road adjacent to the complex, would have
Yunkin was not fully truthful in his                changed the result of the trial.
testimony. See App. 1315; supra, at
                                                           3.     The “29 Questions”
Section IV.C. “Suppressed evidence is not
material when it ‘merely furnishes an                       As we explained above, when
additional basis on which to impeach a              cross-examining Yunkin at trial Lambert’s
witness whose credibility has already been          counsel offered into evidence a document
shown to be questionable.’” United States           that she and Yunkin purportedly passed
v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996)           between each other while they were in jail.
(internal citation omitted).                        Yunkin acknowledged that he and Lambert
                                                    passed a document between them, but he
           Moreover, the materiality of the
                                                    also testified that the document he was
statement is negligible even if it would
                                                    presented with at trial—what we refer to as
have conclusively established that Yunkin
                                                    the “29 Questions”—w as not the
p i c k e d u p L a m b e r t within th e
                                                    document that he recalled passing back
condominium complex instead of on Oak
                                                    and forth with Lambert. Yunkin testified
View Road. Assuming that Bayan’s
                                                    that his handwriting appeared on the 29
statement had that probative value, it
                                                    Questions and some of the questions were
would have placed Yunkin somewhat
                                                    the same as he recalled from the document
closer to the scene of Show’s murder. But
                                                    he passed with Lambert, but he claimed
despite Lambert’s assertions to the
                                                    that he never saw some of the questions on
contrary, placing Yunkin driving within
                                                    the 29 Questions document.
the condominium complex does not
establish that he entered the Show                         As a preliminary matter, we note
apartment and committed the murder.                 that Lambert has made much of this
                                                    document as conclusively establishing her
       Finally, even if evidence showed
                                                    innocence. The trial judge, sitting as a
that Yunkin was in the apartment, the
                                                    finder of fact, found the document
evidence was sufficient to conclude that
                                                    unreliable and inconclusive. As a result, he
Lambert was guilty of murdering Show.
                                                    did not rely on it when he reached his
The evidence at trial overwhelmingly
                                                    verdict because he concluded that the
showed that Lambert had the motivation
                                                    document did not create reasonable doubt
(she hated Show), she supplied the murder
                                                    as to Lambert’s guilt. After reviewing the
weapon, and she entered Show’s

                                               51
record in some detail, we tend to agree                  Second, Lambert’s counsel asked
with the trial judge’s conclusion. And we          Yunkin about a portion of the document in
find fanciful Lambert’s assertion that the         which the following question and answer
only reasonable conclusion from the                appeared:
document is that Yunkin and Buck
                                                          5) [Question:] I think about
murdered Show and Lambert was not
                                                          Tressa and Laurie! I think
involved.
                                                          you guys are sick! I think
        Yet our opinion of the probative                  about her life you took! All
value of the document is irrelevant. Our                  those people at her funeral!
role is confined to determining whether                   And I know very well that
any constitutional error occurred at trial.               you don’t feel sad! You
Stripped of Lambert’s attempts to retry the               were happy, U weren’t sad
case in another forum, her claim regarding                Friday! Do you remember
the 29 Questions is this: Yunkin’s                        seeing [crossed out word]
testimony regarding the 29 Questions was                  dead? [Answer:] Yes, I
perjured and the prosecution knowingly                    remember seeing [crossed
elicited that testimony.                                  out word] dead.”
        Lambert specifically bases this            PCRA Opinion (attached). Yunkin
argument on two portions of Yunkin’s               testified that on the document he passed
testimony. First, Yunkin testified that            back and forth with Lambert he had
although the answers written on the 29             responded to a question by answering,
Questions appeared to be in his                    “Yes, I remember seeing Tressa dead,”
handwriting the 29 Questions was not the           because the question he was answering
document that passed between him and               asked, “Do you remember seeing Tressa
Lambert in prison. He testified that in the        dead? Do you remember going to her
document that had passed between him               funeral?” App. 329. Yunkin testified that
and Lambert, Lambert had written the               although the 29 Questions was not “the
questions in pencil and he had written all         o r igina l doc ume nt,” it wa s h is
his answers in pencil and then traced over         understanding the word crossed out in
every other word in ink so that they could         Question 5 was “Tressa.” App. 328-30.
not be changed. Yet Lambert’s expert               But Lambert’s expert testified that the
testified that the questions in the 29             crossed-out word was “Laurie.”
Questions were written in ink, and there
                                                          The PCRA Court found that the
was no indication of any writing in pencil
                                                   prosecution openly conceded to the trial
on the document. The expert also
                                                   court that it believed Yunkin was not fully
confirmed that the answers were written in
                                                   truthful in his testimony regarding the 29
Yunkin’s handwriting.
                                                   Questions. The Court explained:



                                              52
      Mr. Kenneff stipulated to                          it. I don’t think I held
      [the testimony of Lambert’s                        anything back about my
      expert] on the basis that he                       feelings about Mr. Yunkin.
      had the document examined                          I said in my openings he’s
      by a Pennsylvania State                            either lying, he’s stupid or
      Police examiner as well.                           he’s naive. Perhaps the
      There was never any effort                         evid ence in this case
      by the Commonwealth to                             suggests he’s all three.
      hide what Mr. Yunkin said
                                                         I’m not going to stand here
      or to somehow bolster what
                                                         and say that Mr. Yunkin was
      Mr. Yunkin said with expert
                                                         being truthful about [the 29
      testimony. Mr. Kenneff
                                                         Questions]. I can’t do that.
      freely and openly
                                                         There is no evidence to do
      acknowledged that this
                                                         that. What I can say about
      expert’s analysis of the
                                                         Mr. Yunkin and what I can
      document was consistent
                                                         say about wh at M iss
      with the defense expert and
                                                         Lambert needed to cover up
      these expert opinions were
                                                         for him is that logic says
      both inconsistent with Mr.
                                                         Yunkin was an accessory
      Yunkin’s testimony.
                                                         before the fact.
PCRA Decision 117-118.36 The Court’s
                                                  App. 1315. Later on in his closing
finding of fact was eminently reasonable
                                                  argument Kenneff stated: “Did Yunkin
in light of the record. In particular,
                                                  participate in the murder of Laurie? My
Kenneff made the following statement to
                                                  stomach says he did, my mind says he did.
the Court during closing arguments:
                                                  Did he participate in the way that Miss
      Mr. Yunkin. Is he guilty of                 Lambert says? The facts say no.” App.
      the crime of homicide?                      1319.
      Fortunately, neither of you
                                                         The PCRA Court’s factual finding,
      have to decide that in this
                                                  supported strongly by the record, precludes
      case nor do I have to argue
                                                  a determination that the prosecution
                                                  knowingly used false evidence to obtain a
                                                  conviction. It also precludes a finding that
      36
         The Court also noted: “Mr.               “the State, although not soliciting false
Kenneff never hid his belief that Mr.             evidence, allow[ed] it to go uncorrected
Yunkin was not being forthright about that        when it appear[ed].” Napue v. Illinois, 360
document. In truth, no one involved in the        U.S. at 269. To the contrary. The
1992 trial could quite figure out who             government fully and openly informed the
wrote what on that document and what it           Court that it believed Yunkin’s testimony
meant.” PCRA Decision 120.

                                             53
was not fully truthful. There was no                        4.     The Crime Scene
constitutional violation at trial regarding                        Photographs
the 29 Questions. The flaws in Yunkin’s
                                                            A photograph offered into evidence
testimony were fully aired at trial and
                                                     at Lambert’s trial showed Laurie Show
candidly acknowledged by the prosecution.
                                                     lying dead on the floor of her apartment.
        Lambert also argues that having              The photograph showed a telephone cord
conceded that a portion of Yunkin’s                  wrapped once around her leg near her
testimony was questionable, the prosecutor           ankle. Lambert contends that there was no
had an ethical obligation to characterize            telephone cord wrapped around Show’s
the entirety of testimony as perjury, and to         leg before law enforcement authorities
withdraw the witness. These contentions              became involved with the crime scene. She
have no merit. A prosecutor fully                    contends that several hours after Show’s
discharges his obligation when he                    body was removed from the crime scene,
discloses all inconsistent evidence to the           the police brought the corpse back to the
trier of fact and defense counsel. “[W]hile          apartment, wrapped a telephone cord
the government has a duty to be                      around its leg, and photographed the body.
forthcoming with favorable evidence, it is
                                                             Lambert claims that the police did
not required to draw inferences from that
                                                     this in order to discredit the statement she
evidence which defense counsel is in an
                                                     gave to the police upon her arrest. In her
equal position to draw . . . . When the road
                                                     statement, Lambert told the police a
to what defense counsel think is potential
                                                     version of events where “[Show] tried to
perjury is so plainly marked, the
                                                     grab the phone and [Buck] grabbed it away
government need not supply a map.”
                                                     and threw it down.” Appellate App. 1577.
United States v. Gaggi, 811 F.2d 47, 59
                                                     According to Lambert, the fabricated
(2d Cir. 1987). Nor is it true that a witness
                                                     crime scene photographs showing a
who fabricates in one area is incompetent
                                                     telephone cord around Show’s leg served
to testify about others. This concept is
                                                     to “discredit Lambert’s testimony that it
embodied in the common jury instruction
                                                     was Buck who struggled with Show, and
known as the “falsus in uno, falsus in
                                                     in doing so, threw a telephone across
omnibus” charge, which provides: “If you
                                                     Show’s room.” Lambert Br. 62.37
find that any witness testified falsely about
any material fact, you may disregard all of
his testimony, or you may accept such
                                                            37
parts of it as you wish to accept and                         Lambert also argues that the
exclude such parts of it as you wish to              government used the allegedly fabricated
exclude.” United States v. Rockwell, 781             photograph “to substantiate the
F.2d 985, 988 (3d Cir. 1986) (emphasis               Commonwealth’s theory at trial that Ms.
omitted).                                            Show’s legs were tied up and held down
                                                     as Lisa Lambert slit her throat.” Lambert
                                                     Br. 62-63. We have thoroughly reviewed

                                                54
        Lambert sought to prove to the              drawing is inconsistent, in certain respects,
PCRA Court that this misconduct occurred            with the photographs of the crime. The
through alleged inconsistencies between             drawing depicts the telephone cord near
the photograph and (1) a crime-scene                Show’s leg, for example, not touching or
drawing, and (2) testimony regarding the            wrapped around it as in the photograph.
crime scene. The PCRA Court flatly                  Similarly, the drawing depicts bloody
rejected this contention, finding that the          envelopes located closer to Show’s body
evidence did not nearly suffice to show             than they appear in the photograph. And
that the government engaged in such                 the photograph shows objects, such as a
outrageous c o nd u ct . T h e Court’s              coat and an electrical appliance, that do
conclusion was certainly reasonable in              not appear in the drawing. Lambert argues
light of the record. Indeed, the evidence in        that these inconsistencies—especially the
the record virtually compelled the Court to         location of the telephone—show that the
reach that conclusion.                              police fabricated the crime scene
                                                    photographs.
       Officer Robin Weaver composed
the crime scene drawing. The drawing                        Officer Weaver testified at the
presents a bird’s-eye view of the room              PCRA hearing and explained why the
where Show’s body was found and depicts             drawing was not entirely consistent with
the location of Show’s body, furniture, and         the photographs. Weaver testified that he
several miscellaneous objects. The                  was told to make a rough sketch of the
                                                    bedroom floor layout in order to depict the
                                                    location of evidence the police collected.
the record of the trial before Judge                He did not compose the drawing to scale.
Stengel, however, and nowhere have we               Nor did he depict everything that existed
discovered the Commonwealth urging any              in the room, since “[t]here were hundreds
such theory. Lambert’s characterization of          of items in the bedroom.” App. 4512. In
the trial is inexcusable. Lambert cites to a        addition, Weaver placed items in the
portion of Judge Dalzell’s 1997 opinion to          drawing (including the telephone) after
support this characterization. But the              Show’s body was removed from the room.
habeas court’s mistaken characterization
                                                           Officer Weaver’s testimony was
of the trial record does not give Lambert
                                                    sufficient for the PCRA Court to reject
carte blanche to do the same. Of course,
                                                    Lambert’s spurious allegations, but his
we are puzzled by how Judge Dalzell
                                                    testimony was not even necessary. We first
reached that conclusion (and several
                                                    note that Lambert seriously misrepresents
others). Perhaps the habeas court simply
                                                    the content of her statement to the
accepted Lambert’s characterization of the
                                                    police—the statement that allegedly
trial record. We have learned, from
                                                    provided the motive to fabricate evidence.
attempting to find support in the record for
                                                    She states in her brief that she told the
many of Lambert’s claims, that it is
                                                    police Buck “threw a telephone across
perilous to do that.

                                               55
Show’s room.” Lambert Br. 62. In her                 across the room, it would have been
actual statement to the police, however,             impossible for the phone to end up near
Lambert merely said that Buck grabbed the            Show’s body. But the crime scene drawing
phone from Show and “threw it down.”                 itself shows the telephone close to
Appellate App. 1577. This is an important            Lambert’s feet. Thus, on its face, it defeats
distinction.38                                       La m be r t’ s allega tions o f po lic e
                                                     misconduct: even if the police thought that
       And even if Lambert had told the
                                                     evidence showing the phone near Show
police initially that Buck threw the
                                                     would have discredited Lambert, there
telephone across the room—which she did
                                                     would have been no need for the police to
not—the crime scene drawing would not
                                                     stage a photograph. The drawing
support her extraordinary allegations that
                                                     accomplishes the same object. Whether or
police returned the body to the crime scene
                                                     not the cord was touching Show’s feet is
and rearranged it. Lambert apparently
                                                     immaterial. 39
contends that if Buck threw the telephone
                                                            Lambert further argues that
                                                     testimony from individuals who witnessed
       38                                            the crime scene on the day of Show’s
           To be sure, Lambert claimed at
                                                     murder establishes that the police
trial that Buck “threw [the phone] across
                                                     fabricated the crime scene photographs.
the room.” Appellate App. 631. But
                                                     Specifically, witnesses testified at the
Lambert’s testimony at trial months later is
                                                     PCRA hearing that they saw Show’s feet
irrelevant to her allegations that the police
                                                     at the crime scene and a telephone cord
doctored evidence to contradict her
                                                     was not wrapped around them. In addition,
original statement to the police. What is
                                                     witnesses testified that Show’s body lay
important, of course, is the content of her
statement to the police. The suggestion
that officers rearranged the crime scene to
anticipate testimony by Lambert that did                    39
                                                           In addition, we agree with the
not occur until months later would a
                                                     PCRA Court’s conclusion that “Ms.
require a finding that the police were
                                                     Buck’s throwing the telephone across the
clairvoyant.
                                                     room and the location of the cord around
        We are unpersuaded by Lambert’s              Laurie Show’s leg are not mutually
(and her counsel’s) attempts to create               exclusive.” PCRA Decision. 236. The
allegations of misconduct by selectively             Court explained: “It appears that the
relying on evidence from various                     telephone was close to the entrance of the
proceedings in Lambert’s lengthy route               bedroom, by the bed, when Laurie picked
through the criminal justice system: the             it up. If Ms. Buck threw it across the
pre-trial investigation, the 1992 trial, the         relatively small bedroom, it could easily
1997 habeas hearing, and the 1998 PCRA               have landed near the closet where Laurie’s
hearing.                                             body came to rest.” Id.

                                                56
parallel to the closet, while the photograph        only possible explanation for this is that
depicted her body at a slight angle.                the body had been returned to the crime
                                                    scene after it had been at the funeral home
       Lambert’s arguments hinge on an
                                                    so photos could be fabricated.” Lambert
unsupported view of crime scenes as
                                                    Br. 67.
antiseptic and static environments, and an
utterly unrealistic supposition about the                   The funeral director certainly
precision of witness observations and               testified that he cleaned Show’s face when
memories. We agree with the PCRA                    her family came to view her. He stated:
Court’s conclusion that “the telephone              “[W]hen I heard that the father and
could have been moved as the several                possibly other family members were
medical and police personnel tended to              coming in, I had taken a damp towel and
Laurie or processed the crime scene.”               had cleaned up her face and also covered
PCRA Decision 236. And slight                       her neck area.” Appellate App. 1492. He
inconsistencies between the body’s                  did not indicate, however, that he removed
position in the photograph and witness’s            all the blood from her face. And nothing
recollections (parallel to the closet versus        in his testimony is necessarily inconsistent
at a slight angle) do not establish an              with the observation at the autopsy the
elaborate conspiracy to implicate Lambert           next day that “[m]uch dried blood is seen
in Show’s murder.40                                 covering the face and the neck.” Appellate
                                                    App. 1551. Lambert urges us to draw the
       Finally, Lambert argues that
                                                    strongest possible inferences from
evidence regarding the presence of blood
                                                    relatively indecisive evidence and
on Show’s face shows that the police
                                                    conclude that the police engaged in
brought her body back to the crime scene
                                                    unconscionable acts of misconduct to
in order to fabricate the photographs.
                                                    fabricate evidence of marginal, if any,
Specifically, the funeral director where
                                                    utility in implicating Lambert. 41 The
Show’s body was taken on the afternoon
                                                    PCRA Court understandably declined to
following the murder testified that he
                                                    do so, and we unhesitatingly defer to its
removed blood from Show’s face when
                                                    reasonable determination.
her family came to view her. Yet the
autopsy report from the next morning                       5.     The Dying Declaration
indicated that “much dried blood” was on
                                                           At the trial, Hazel Show testified
Show’s face. Lambert argues that “[t]he
                                                    that Laurie Show said “Michelle did it” as
                                                    she lay dying in her mother’s arms.

       40
           We also note that the crime scene
                                                           41
drawing depicts Show’s body at a slight                       Indeed, we have come across no
angle to the closet. Apparently, Lambert            portion of the trial record where the
feels the drawing is accurate only insofar          Commonwealth used the photograph to
as it is inconsistent with the photograph.          discredit any of Lambert’s testimony.

                                               57
Lambert argued at trial that given the                    been presented in the PCRA
injuries Show sustained she could not have                hearing which would cause
said “Michelle did it,” either because she                this court to change its
had died before Hazel Show returned                       finding that Mrs. Show was
home or the injury to her neck rendered                   credible in 1992 when she
her unable to speak. Both the prosecution                 testified as to her daughter’s
and defense offered expert testimony to                   dying declaration.
support contrary conclusions.
                                                   PCRA Decision 116.
       The issue arose again at the PCRA
                                                           Now, in her habeas petition,
hearing. Lambert argued that expert
                                                   Lambert argues that the Commonwealth’s
testimony that was not offered at her trial
                                                   conduct at the PCRA hearing with regard
was “after-discovered evidence” that
                                                   to Show’s dying declaration constitutes a
would warrant relief under Pennsylvania’s
                                                   constitutional violation warranting habeas
PCRA statute. Once again, both Lambert
                                                   relief. Namely, she contends that “[t]he
and the Commonwealth offered conflicting
                                                   Commonwealth retained new experts in
expert testimony as to whether Show could
                                                   the PCRA proceeding and violated ‘the
have said “M ichelle did it.”
                                                   most basic notions of due process,’ by
        The PCRA Court held that the               proffering new testimony that was based
newly offered expert opinions did not              on disowning the very evidence on which
constitute “after discovered evidence,”            it had convicted Lambert in 1992.”
which under Pennsylvania law is evidence           Lambert Br. 69.
that (1) was unavailable at trial, (2) is
                                                          Of course, labeling a claim as a
exculpatory, and (3) would have changed
                                                   “fundamental due process violation” does
the outcome at trial. PCRA Decision 112
                                                   not actually substantiate a constitutional
(citing Commonwealth v. Reese, 663 A.2d
                                                   claim. Lambert fails to explain how
206 (Pa. Super. 1995)). After a lengthy
                                                   conduct at the PCRA hearing could
discussion of the various expert testimony,
                                                   feasibly warrant habeas relief. Rather, she
the Court concluded:
                                                   simply cites three cases: Dunn v. United
       No expert has established                   States, 442 U.S. 100 (1979), Smith v.
       that it would have been                     Groose, 205 F.3d 1045 (8 th Cir. 2000), and
       impossible for Laurie Show                  Thompson v. Calderon, 120 F.2d 1045 (9 th
       to speak. In fact, competent                Cir. 1997), rev’d on other grounds, 523
       and credib le expert                        U.S. 538 (1998).
       testimony proves in a clear
                                                          Indeed, she cites the same three
       and convincing way that the
                                                   cases that she contends support her claim
       dying declaration w as
                                                   that the Commonwealth’s “switching” of
       possible. No evidence was
                                                   the sweatpants warrants habeas relief. We
       presented in 1992 or has
                                                   have rejected that claim, and we reject her

                                              58
dying declaration arguments for the same             opinions offered by the government’s
reasons. The Commonwealth did not                    expert witnesses at the trial and PCRA
utilize the allegedly differing expert               hearing—though they all agreed on the
testimony to convict Lambert (as in                  ultimate conclusion that Show could speak
Sm ith/T h omps on) or uphold her                    the words “Michelle did it”—based on the
conviction on direct appeal (as in Dunn).            same evidence.
Rather, the state used the new testimony to
                                                            6.     The DA’s Contact with
show that Lambert had not offered after-
                                                                   Lambert’s Trial Expert
discovered evidence warranting relief
under the PCRA statute. See Gattis, 278                     The Commonwealth’s district
F.3d at 238. And in any case the                     attorney (Kenneff) contacted Lambert’s
Commonwealth’s conduct at the PCRA                   expert, Dr. Mihalakis, over the weekend
hearing is not a basis for habeas relief. 42         preceding the trial. Lambert contends that
                                                     in doing so the Commonwealth violated
        Even if error in the state collateral
                                                     her right to due process.
proceedings could support Lambert’s
claim for habeas relief, however, none                      Intimidation or threats from the
would be warranted here. In contrast to              government that dissuade a potential
Dunn, Smith, and Thompson, the                       witness from testifying may infringe a
government did not offer contradictory               defendant’s Fourteenth Amendment right
theories or facts at the trial and the PCRA          to due process and Sixth Amendment right
hearing. The government’s theory at both             to compulsory process. See Webb v.
proceedings was that Lambert entered                 Texas, 409 U.S. 95 (1972); United States
Show’s apartment on December 20, 1991                v. Morrison, 535 F.2d 223, 226-27 (3d Cir.
and participated in the murder. At both              1976); see also United States v.
proceedings they offered Hazel Show’s                Bieganowski, 313 F.3d 264, 291 (5 th Cir.
testimony that Laurie Show said “Michelle            2002); Newell v. Hanks, 283 F.3d 827,
did it.” The government relied on the same           837 (7th Cir. 2002); United States v.
evidence—an autopsy report and                       Emuegbunam, 268 F.3d 377, 400 (6th Cir.
photographs—at both proceedings. The                 2001); United States v. Vega-Figueroa,
only inconsistency was in some of the                234 F.3d 744, 751-52 (1 st Cir. 2000);
                                                     United States v. Vavages, 151 F.3d 1185,
                                                     1188 (9th Cir. 1998); United States v.
       42
          In addition, we are doubtful               Saunders, 943 F.2d 388, 392 (4 th Cir.
whether Lambert has properly exhausted               1991); United States v. Pinto, 850 F.2d
this claim. This appears to be the first             927, 932 (2d Cir. 1988). In order to violate
proceeding where she raised this claim.              the Constitution, the government’s conduct
We address it nonetheless because it is              must have “substantially interfered” with a
meritless and we can therefore dismiss it            witnesses’s choice to testify. See
under 28 U.S.C. § 2254(b)(2). See Gattis,            Bieganowski, 313 F.3d at 291; Newell,
278 F.3d at 237.

                                                59
283 F.3d at 837; Emuegbunam, 268 F.3d                      After Judge Stengel heard from
377 at 400; Vavages, 151 F.3d at 1188;              Shirk, Kenneff, and Mihalakis, the
Saunders, 943 F.2d at 392; Pinto, 850               following colloquy occurred:
F.2d at 932.
                                                          THE COURT: [Y]ou’ve
      Whether substantial interference                    done your examination and
occurred is a factual determination. See                  you have your opinions that
Bieganowski, 313 F.3d at 291; Vavages,                    you are going to state as
151 F.3d at 1188; Pinto, 850 F.2d at 932.                 part of this case, I take it.
On direct appeal we review a district
                                                          DR. MIHALAKIS: Yes. I
court’s determination regarding substantial
                                                          have a consultative letter.
interference for clear error. Here, we apply
the deferential standards of § 2254(d)(2)                 THE COURT: What is the
and § 2254(e)(1).                                         date of that letter? About
                                                          when was it written to him?
      The issue of Kenneff’s contact with
Mihalakis came up during the trial.                       DR.      MIHALAKIS:
Lambert filed a motion asking the Court to                (Looking at document.)
sanction the Commonwealth for Kenneff’s                   June 29.
pre-trial contact with Lambert’s expert
                                                          THE COURT: All right.
witness. Judge Stengel held a hearing in
                                                          And I take it that your
order to decide Lambert’s motion.
                                                          t e s t i m o ny w o u l d b e
       At the hearing, Kenneff indicated                  c o n s i s te n t wit h t h at
that he was upset upon learning,                          consultative letter.
approximately a week before trial, that
                                                          DR. MIHALAKIS: I would
Mihalakis was going to testify as a defense
                                                          hope so, yes.
witness. Mihalakis was under contract to
work as an expert for Lancaster County,                   THE COURT: Okay. Is
and Kenneff felt that as a result he would                there anything about the
be unable to discredit Mihalakis at trial.                discussion you had with Mr.
Kenneff contacted Mihalakis even though                   Kenneff that causes you to
Lambert’s attorney, Roy Shirk, would not                  not say what was in that
give his consent. Kenneff told Mihalakis                  letter?
about his concern, and Mihalakis offered
                                                          DR. MIHALAKIS: No, I
to withdraw if Judge Stengel found that
                                                          don’t believe so.
his contract with the County precluded
him from acting as an expert for Lambert.                 THE COURT: Did you feel
Kenneff told him not to withdraw because                  threatened or intimidated or
it would only cause a continuance.                        coerced by that discussion
                                                          you had with Mr. Kenneff?


                                               60
      DR. MIHALAKIS: No, sir,                            The PCRA Court reached the same
      I did not.                                 conclusion after hearing additional
                                                 evidence on the matter. The Court
      THE COURT: Okay.
                                                 concluded: “It was arguably improper
      DR. MIHALAKIS: Okay.                       conduct with some justification under the
      Mr. Shirk, are you aware of                circumstances. The bottom line is that it
      any rule of professional                   did not affect the witness’s testimony at
      conduct that prevents an                   trial. He testified consistent with his report
      attorney in a criminal case                and his testimony was no surprise to
      from contacting an expert or               petitioner’s counsel.” PCRA Decision
      a witness who would testify                195. The trial court’s determination was
      for the other side?                        reasonable given the record before it.
                                                 Lambert did not adduce evidence at the
      MR SHIRK: No, I’m not.
                                                 PCRA hearing that would rebut the trial
      THE COURT: Are you                         court’s factual finding, and the PCRA
      aware of any such rule?                    Court’s determination was reasonable
                                                 given the evidence before it.
      MR. KENEFF: I’m not
      aware of a rule.                                   Lambert’s trial counsel, Roy Shirk,
                                                 testified at the PCRA hearing regarding
      THE COURT: I’m not
                                                 the circumstances surrounding the
      aware of any such rule.
                                                 procurement of Mihalakis as an expert for
      Okay. Based upon my
                                                 Lambert. Shirk and Richard Jeffries, a
      review of the motion for
                                                 private investigator working for the
      sanctions before today and
                                                 defense, decided to seek Mihalakis’s
      before our hearing, this
                                                 services to offer an opinion about whether
      date, and based upon the
                                                 Show could have spoken after the attack.
      discussion we’ve had here
                                                 They asked Mihalakis to answer four
      on the record in chambers,
                                                 questions after reviewing a group of
      and the candid and frank
                                                 relevant materials, including Show’s
      comments of Doctor
                                                 autopsy report and crime scene
      Mihalakis, Mr. Shirk and
                                                 photographs:
      Mr. Kenneff, I’m going to
      deny the motion for                               1) How long would Laurie
      sanctions.                                        Show have lived after the
                                                        wounds were inflicted?
App. 374-75. The trial court found, in
effect, that the government had not                     2) What wounds were fatal?
substantially interfered with Mihalakis’s
                                                        3) Could Laurie Show say
choice to testify.
                                                        anything afterward; could



                                            61
       she have said, “Michelle did                            maneuver of insertion and
       it”?                                                    bending to the point of
                                                               breakage.
       4) How many persons were
       involved in the stabbing,                        App. 1636.
       one, two or more? Were
                                                               After reading Mihakalis’s report,
       they male or female and
                                                        Shirk determined that it would not be
       right or left handed? Any
                                                        worth hiring Mihalakis because “[q]uite
       signs of a male person being
                                                        frankly, it wasn’t going to help us a lot.”
       involved?
                                                        App. 6537-38. After speaking with
Appellate App. 1635. M ihakalis responded               Mihalakis a few times, however, Shirk felt
that the “neck wounds and the right back                that Mihalakis would be able to offer
wound are fatal wounds,” and that Show                  testimony that would support Lambert’s
“could have survived multiple minutes, but              case. Shirk explained:
I doubt very much whether she could have
                                                                      I’d like to be very
survived a full half hour.” He further
                                                               clear on this. He had
opined that Show’s wounds “would
                                                               indicated to me at all times
certainly limit but not totally eliminate
                                                               that he would not be able to
phonation, especially words and letters that
                                                               say, to a degree of medical
involve the tongue.” Finally, Mihalakis
                                                               certainty, that Laurie Show
offered an opinion based on the fact that
                                                               could not talk.
the tip of the knife used to kill Show had
broken off. He had taken an identical                                 However, he was
knife, placed it in a vise, and bent it until it               willing to testify that he
broke. He wrote the following:                                 believed that she did not.
                                                               That he didn’t think she
       By the time the knife broke,
                                                               could have. And the reason
       I was exerting considerable
                                                               he thought she would not
       force. While such force is
                                                               have been able to say what
       not beyond the capability of
                                                               she reportedly had said had
       an average male or female,
                                                               to do with certain vowels
       the fact remains that the
                                                               and so on and so forth . . .
       knife had to have been
       wedged someplace in the                                 Basically I expected from
       body, possibly even bony                                him, and this was not only
       tissue and then bent back in                            after one phone call, but it
       such a way as to break. . . .                           was after, as I indicated, two
       If it was so deeply wedged                              or three, testimony that he
       in bone, I doubt whether a                              would not say she could not
       girl could pull the entire                              talk, to a degree of medical


                                                   62
       certainty, but it certainly                           Yet Kenneff contacted Mihalakis
       was his impression, as an                     nonetheless. Mihalakis testified that
       expert, that she did not, and                 Kenneff sounded “displeased.” Kenneff
       that she did not for these                    testified that it was his understanding that
       reasons, and going into the                   Mihalakis could not testify for a defendant
       explanation of the vowels                     because he was under contract to be an
       and so on and so forth that                   expert for the Commonwealth. Mihalakis
       would have to have been                       told Kenneff that he thought he could
       used to say the words that                    contract to give his services to whomever
       were purportedly [sic] to                     he desired. “I express to him that I was
       have been said.                               surprised he was doing this,” Kenneff
                                                     testified, “I was concerned about our
              In    addit ion ,   I
                                                     ability to handle this case properly, given
       expected testimony from
                                                     his association with us.” App. 5089.
       him that he did not believe
                                                     Mihalakis offered to withdraw as a witness
       that a female could have
                                                     for Lambert “[i]f it was going to
       broken off the knife the way
                                                     complicate future cases,” but Kenneff told
       it was broken off.
                                                     him not to. App. 5509. They also spoke
               Now, that evolved                     generally “about the autopsy report and my
       over a period of, I don’t                     [Mihalakis’s] feelings and whether or not
       know, a week, a week and a                    you could enunciate anything.” App. 5506.
       half, or maybe not that long.
                                                              As described above, Shirk moved
       S e veral da ys a nyw ay.
                                                     for sanctions at trial and Judge Stengel
       Wherein he modified what
                                                     denied Shirk’s motion because he found
       appears to be here. It was
                                                     there was no indication that Kenneff’s
       done over the telephone and
                                                     conversation with Mihalakis had
       it was at that time I
                                                     intimidated him. Shirk conceded as much
       indicated that I wanted him
                                                     at trial, stating to Judge Stengel:
       to testify.
                                                                   I asked [Mihalakis]
App. 6538-39.
                                                            quite frankly if this would
       Shirk testified that Kenneff became                  affect his testimony in any
“angry” and “upset” when Shirk told him                     way, shape or form. I think
that Mihalakis was going to testify for the                 the exact word I used was
defense. Kenneff was angry because “the                     whether he would pull his
District Attorney’s office felt that they had               punches. He indicated to me
him under contract.” And he asked if Shirk                  he would not.
would mind if he telephoned M ihalakis.
                                                                  . . . [H]e indicated to
Shirk said he would rather Kenneff not
                                                            me that in no way, in any
call Mihalakis until after the trial.

                                                63
       way would it affect his                                    The Chael may have
       testimony Friday. I can                              been somewhat less clear
       honestly say to you at this                          and the da may have been
       point there is no way it has a                       somewhat less clear.
       chilling effect. He hadn’t
                                                     App. 390. Finally, Goldberg questioned
       been on the stand. I think
                                                     Mihalakis about the tip of the knife that
       he’s an honorable enough
                                                     had broken off and whether a woman
       man that it will not have a
                                                     could have broken the knife. M ihalakis
       chilling effect.
                                                     testified that “[t]he function of the break is
App. 369. Yet Shirk testified at the PCRA            not gender related, it is strength related,
hearing that he was, in fact, “angry” and            deliberateness related. If someone is strong
“surprised” by the content of Mihalakis’s            enough, they could certainly break the
testimony. App. 6540. And he and his co-             knife . . . .” App. 398. Yet he opined that
counsel, Alan Goldberg, decided to get               “[w]hile it is not beyond the realm of a
Mihalakis off the stand as soon as                   woman, it would really make it extremely
possible.                                            unlikely, very unlikely.” App. 399.
        The PRCA Court determined that                      Futhermore, the PCRA Court
Mihalakis’s testimony was consistent with            determined that Shirk had no reason to be
the report he had provided to the defense,           surprised by Mihalakis’s testimony.
and we agree. Mihalakis testified that               Mihalakis expressly stated before Judge
“[t]he cause of death is a cutting wound of          Stengel that he would testify consistently
the throat and a stab wound of the right             with the report and that his conversation
chest.” App. 380. And given her wounds,              with Kenneff would not prevent him from
he testified, it would have taken Show               saying “what was in the letter.” App. 374.
“multiple minutes” but “considerably less            Mihalakis’s statement should have
than a half hour” to die. App. 386. With             disabused Shirk of any notion that
respect to Show’s ability to say “M ichelle          Mihalakis might materially depart from his
did it,” Mihalakis testified that “[i]t would        opinions in the report.
have to be affected in part”:
                                                             To be sure, we do not believe that
               Ma is predominantly                   Kenneff’s contact with Mihalakis was
       a lip sound, and the tongue                   entirely appropriate. At the very least,
       and lips are controlled by a                  Kenneff displayed a lack of judgment. Yet
       different set of nerves so the                not every lapse of prosecutorial judgment
       ma sound should not’ve                        violates the Constitution. Here, Lambert
       been affected. If it was                      had to show that Kenneff substantially
       affected it was to a minor                    interfered with Mihalakis’s choice to
       degree.                                       testify. The PCRA Court’s conclusion that
                                                     there was not substantial interference was,


                                                64
given the evidence before it, well within           the government violated Brady by failing
the bounds of reason.                               to inform her that they found the pink bag
                                                    and sneaker. Second, she appears to argue
                                                    that the government knowingly elicited
                                                    false testimony at the trial that the police
                                                    never found a pink bag or sneakers. Third,
       7.     The River Search
                                                    she argues that the government violated
       After receiving information from             Brady by failing to inform Lambert that
Yunkin and Lambert regarding their                  the rope was found using a dog scented
disposal of evidence in the Susquehanna             with Buck’s sweater. Finally, Lambert
River, law enforcement officials                    appears to argue that the government
conducted a search of the river on                  violated her due process rights by
December 21, 1991. The police were                  destroying exculpatory evidence (the pink
specifically looking for “a pink plastic bag        bag and sneaker) prior to trial.
containing at least one pair of sneakers.”
                                                           a.     Brady Violation
Appellate App. 1561. They found a knife
                                                                  Concerning the Pink Bag
and a pink plastic bag. The police video-
                                                                  and Sneaker
taped the search and provided Lambert’s
counsel with an edited version of the tape.                Again, to make out a Brady
                                                    violation Lambert must show that (1) the
       The police conducted another, more
                                                    government withheld evidence, either
extensive search two days later, on
                                                    willfully or inadvertently; (2) the evidence
December 23, 1991.          Using a dog
                                                    was favorable, either because it was
“scented” with Buck’s sweater, the police
                                                    exculpatory or of impeachment value; and
found a piece of white nylon rope. The
                                                    (3) the withheld evidence was material.
police also found a sneaker. The December
                                                    See Banks, 124 S. Ct. at 1272. The PCRA
23 search was not video-taped.
                                                    Court found that the pink bag was not
       The police did not indicate in any           exculpatory and that, in any case, the
reports regarding the river searches that           police did not withhold the pink bag’s
they found a pink bag or a sneaker, nor did         discovery from Lambert. With respect to
they in any way inform Lambert about the            the sneaker, the Court found that it was not
finds. A police report provided to Lambert          exculpatory. Once again, the PCRA
indicated that the rope was found, but it           Court’s determinations were reasonable.43
did not indicate that it was found using a
dog scented with Buck’s sweater.
                                                           43
       We discern four arguments of                            Throughout this decision we
constitutional error from the unstructured          have found the PCRA Court’s factual
discussion of the river searches in                 determinations to be “reasonable,” which
Lambert’s brief. First, Lambert argues that         is the standard that we must apply under
                                                    AEDPA. We note, however, that

                                               65
         The edited version of the videotape          sneaker with the laces.” Appellate App.
provided to Lambert shows an empty pink               1157. More importantly, however, he
bag embedded in ice. Indeed, Lambert’s                testified:
counsel testified at the PCRA hearing that
                                                             The sneaker was stained
he saw the pink bag in the videotape but
                                                             brown from being in the
did not question police witnesses about it
                                                             mud. And around the sides
at trial because he “assumed it was a bag
                                                             of the sneakers it had what I
that had nothing to do with this case.”
                                                             would call black rot and
App. 6461, 6637. The pink bag was
                                                             threads in that area of black
therefore disclosed to Lambert. Needless
                                                             rot were beginning to rot
to say (though apparently we must), Brady
                                                             away from the material and
does not require the government to inform
                                                             I felt that the sneaker was in
a defendant about information that the
                                                             there for a lot longer than
defendant possesses. See United States v.
                                                             three days to get in that
Hill, 976 F.2d 132, 136 (3d Cir. 1992);
                                                             condition.
Fullwood v. Lee, 290 F.3d 663, 686 (3d
Cir. 2002) (“Certainly . . . information that         App. 3466-67. The government need not
is not merely available to the defendant but          provide a blanket disclosure to a defendant
is actually known by the defendant would              regarding all evidence found during an
fall outside of the Brady rule.”). Put                investigation. “[T]here is ‘no constitutional
differently, evidence is not “suppressed” if          requirement that the prosecution make a
the defendant knows about it and has it in            complete and detailed accounting to the
her possession.                                       defense of all police investigatory work on
                                                      a case.’” Agurs, 427 U.S. at 109 (quoting
       Detective Ronald Barley testified
                                                      Moore v. Illinois, 408 U.S. 786, 795
about the sneaker. He estimated that it was
                                                      (1992)). If the police had found a rusty
approximately a size six or seven sneaker,
                                                      Swiss army knife during the river search,
and it was a white “old type hightop
                                                      for example, it certainly would not have
                                                      violated Brady if they failed to disclose the
                                                      find to Lambert. The state does not have
reasonableness is a continuum. Some
                                                      an “‘obligation to communicate . . .
determinations might be more or less
                                                      speculative information.’” Id. at 110 n.16
rea s o n a b l e t h a n o t h e r s . S o me
                                                      (quoting Giles v. Maryland, 386 U.S. 66,
determinations on the “less reasonable”
                                                      98 (1967) (Fortas, J., concurring)).
side of the reasonableness continuum
might have been determinations that we                       Lambert argues that it was
would not have made in the first instance             unreasonable for the PCRA Court to credit
but that we must accept under AEDPA.                  Barley’s PCRA testimony because he “lied
None of the determinations the PCRA                   about not finding a sneaker or pink bag in
Court made, however, fall along that                  1992” and Lambert did not have the
stretch of the continuum.

                                                 66
opportunity to “cross-examine” him at the                 Q. Containing sneakers?
PCRA hearing. Lambert Br. 89. As we
                                                          A. That’s right.
describe below, however, the PCRA Court
reasonably found that Barley did not “lie.”               Q. That’s all it contained?
And, as we explained above, we do not
                                                          A. There was other items;
believe that Lambert’s inability to ask
                                                          did not know what else was
Barley leading questions obviates the
                                                          in it.
probative value of his testimony.
                                                          Q. Did you         ever   find
       b.       Knowing Use of
                                                          sneakers?
                Perjured Testimony
                                                          A. No.
       The following exchange occurred
when Lambert’s counsel cross-examined                     Q. Did you ever find a trash
Barley at trial:                                          bag?
       Q. How many items were                             A. No.
       you searching for [at the
                                                   App. 188. Examined in isolation, Barley’s
       river]?
                                                   testimony that he did not find “sneakers”
       A. Specifically, I      was                 or “a trash bag” appear to indicate that he
       looking for sneakers.                       did not find any trash bag or sneakers. The
                                                   PCRA Court read Barley’s testimony in
       Q. All right.
                                                   the context of Shirk’s questioning,
       A. We were not sure what                    however, and it concluded that Barley
       else we were looking for.                   testified that he had not found the pink bag
                                                   and sneakers that the police were seeking.
       Q. You were told there were
       sneakers there?                                     The Court made this determination
                                                   in part because Shirk similarly interpreted
       A. Supposedly, yes.
                                                   Barley’s testimony. Shirk testified at the
       Q. You weren’t told there                   PCRA hearing that he did not impeach
       was a knife and a rope                      Barley with the video of the river search,
       there?                                      which showed that they found a pink bag,
                                                   because he felt that the bag in the video
       A. No.
                                                   was not relevant to the case. As the PCRA
       Q. Were you told to look for                Court explained:
       a bag?
                                                          As Mr. Shirk’s testimony
       A. Yes, another trash bag.                         reveals, it is reasonable to
                                                          interpret Detective Barley’s
       Q. Another trash bag?
                                                          answer as a denial that a
       A. That’s correct.                                 trash bag with evidence in

                                              67
       it, i.e., Mr. Yunkin’s                       named John Forwood to come retrieve it.
       sneakers, the rope, the knife,               But the police report from the river search,
       two pairs of sunglasses and                  which was provided to Lambert, stated:
       the hats, was found during
                                                           A white sweater worn by
       the search.
                                                           def. Tabatha Buck was
PCRA Decision 217. We agree. Implicit                      brought to the scene by
assumptions often underlay conversational                  myself for use of the
exchanges, so that a participant in the                    bloodhound. . . . The dog
exchange can c o m municate more                           was unable to locate any
information than what his words would                      evidence. A foot search was
mean in isolation. See Henry E. Smith,                     conducted along the banks
The Language of Property: Form, Context,                   and wooded areas. At
and Audience, 55 Stan. L. Rev. 1105, 1131                  approx. 1045 hrs. John
(2003) (“More can be communicated than                     Forwood of W.E.S.T. found
what is explicitly said, and this can occur                white nylon rope on the
by means of conversational implicature.”)                  bank approx. 2 feet south
( c i ti n g P a u l G r ice, L o g i c a nd               from where the knife was
Conversation, in Studies in the Ways of                    found the previous day.
Words 22, 26 (1989)). Here, it was
                                                    Appellate App. 1563. Thus, Lambert never
reasonable for the PCRA Court to infer
                                                    learned that the rope was found using a
that when Barley responded to Shirk’s
                                                    dog scented with Buck’s sweater.
question he did not mean that he did not
find any bags or sneakers at all. Rather, he                The PCRA Court determined that
meant that he did not find bags and                 the government did not violate Brady by
sneakers within the parameters of those the         failing to turn over this evidence because
police were looking for; but the pink bag           the fact that the dog was scented with
he found was embedded in ice and the                Buck’s sweater was not exculpatory.
sneaker was decomposed. It follows from             Lambert argues that the PCRA Court’s
this determination that Barley did not              determination was erroneous because
“lie,” and the government did not                   Buck’s scent on the rope was “inconsistent
knowingly use perjured testimony.                   with the Commonwealth’s theory of the
                                                    case (that Lambert killed Show while
       c.     Brady Violation
                                                    Buck passively watched).” Lambert Br. 90.
              Concerning the Rope
                                                          But Lambert mischaracterizes the
        At the PCRA hearing, Allen Means
                                                    government’s position at trial. We have
explained how a bloodhound found the
                                                    come across no portion of the trial record
nylon rope after it was “scented” with
                                                    where the government contended that
Buck’s sweater. Means, the dog’s handler,
                                                    Buck “watched passively” while Lambert
testified that he called over an individual
                                                    murdered Show. The government never

                                               68
disputed that Buck was present in Show’s                     The PCRA Court determined that
apartment and involved in the murder, and             Barley discarded the sneaker because he
the presence of her scent on the rope                 felt that, given its decomposed state, it
neither inculpates nor exculpates Lambert.            could not have been Yunkin’s sneaker.
As the PCRA Court explained, “just                    Other than spurious allegations and
because Ms. Buck’s scent was on the rope              shadowy conspiracy theories, Lambert
does not mean that Ms. Lambert’s was not.             offers no evidence that suggests Barley
There was no testimony that the dog                   acted in bad faith.
attempted to trace Ms. Lambert’s scent and
                                                      IV.    CONCLUSION
failed. This ‘evidence’ that Ms. Buck’s
scent was on the rope does not exculpate                      After thoroughly examining
Ms. Lambert.” PCRA Decision 141. We                   Lambert’s claims, we find no merit in
agree. The PCRA Court’s determination                 them. To be sure, the Commonwealth
was not contrary to or an unreasonable                should have turned over Bayan’s
interpretation of federal law.                        statement to the defense prior to trial and
                                                      we do not endorse the prosecution’s pre-
       d.      Destruction of Evidence
                                                      trial contact with Lambert’s expert. But
        Lambert appears to argue that the             neither flaw warrants habeas relief.44
government violated the Constitution by
                                                              There lurks in the background of
failing to preserve the pink bag and
                                                      this decision the fact that one federal
sneaker. The Supreme Court’s decisions in
                                                      district judge -- Judge Dalzell -- found
California v. Trombetta, 467 U.S. 485
                                                      Lambert “actually innocent” and
(1984) and Arizona v. Youngblood, 488
                                                      characterized the government’s conduct as
U.S. 51 (1988) establish standards for
                                                      “the worst case of prosecutorial
determining whether the government has
                                                      misconduct in English-speaking
infringed on a defendant’s due process
                                                      experience.” Lambert v. Blackwell, 205
rights by failing to preserve evidence. See
                                                      F.R.D. 180, 182 (E.D. Pa. 2002). After a
United States v. Ramos, 17 F.3d 65, 69 (3d
                                                      comprehensive review of the record, we
Cir. 1994). Of relevance here is the
                                                      conclude that these findings are wholly
requirement of bad faith on the part of the
                                                      insupportable.
government. In Youngblood, the Supreme
Court held that “unless a criminal
defendant can show bad faith on the part
of the police, failure to preserve potentially
useful evidence does not constitute a                        44
                                                                  We also reject Lambert’s
denial of due process of law.”
                                                      argument that the writ should be granted
Youngblood, 488 U.S. at 58; see also
                                                      based on the “cumulative effect” of the
United States v. Stevens, 935 F.2d 1380,
                                                      alleged constitutional violations. The few
1387 (3d Cir. 1991).
                                                      errors we have identified, taken together,
                                                      had no material effect on the trial.

                                                 69
        The writ of habeas corpus, as               and finality mandated by the statute. We
implemented by the statute, empowers a              agree with Judge Brody that Lisa Michelle
federal court to overturn a state conviction        Lambert was not “actually innocent,” and
only when it is contrary to federal law or          was not the victim of a miscarriage of
an unreasonable application of law or               justice or gross prosecutorial misconduct.
determination of the facts. Comity and              A careful, dispassionate review of the
finality, as embodied in the statute and            entire record convincingly demonstrates
emphasized by the Supreme Court,                    that Lambert’s trial was fair,
mandate considerable deference to the               constitutionally correct, and well-
determination of the state fact-finder and          supported by the evidence. Accordingly,
appellate courts.                                   there is no reason to disturb the
                                                    conviction. We will affirm Judge Brody’s
        Regrettably, the initial habeas
                                                    denial of the writ.
decision here upended these fundamental
principles of comity and finality. In
concluding that Lambert was actually
innocent and that her prosecutors were
guilty of horrendous misconduct, Judge
Dalzell effectively permitted Lambert to
retry the criminal case -- with hindsight --
in a federal courtroom. Judge Dalzell’s
initial opinion reversed the traditional
approach to reviewing convictions, see
Glasser v. United States, 315 U.S. 60, 80
(1942) (every inference in favor of
verdict); he effectively drew every
inference against the verdict, and accepted
Lambert’s view that every discrepancy
between her version and the state’s
established that the state was acting in bad
faith. As a consequence, the first habeas
decision treated every dispute in testimony
as state perjury, and every minor
inconsistency as momentous. The costs of
this misguided approach in terms of
comity and finality are very substantial.
       By contrast, the decision of the
second District Judge -- Judge Brody --
properly weighed the evidence and applied
the law under the principles of federalism

                                               70
