Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
6-30-2004
Villot v. Varner Precedential or Non-Precedential: Precedential
Docket No. 01-1505
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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL 3103 Philmont Avenue Huntingdon Valley, PA 19106 UNITED STATES COURT OF APPEALS Counsel for Appellant FOR THE THIRD CIRCUIT
Marilyn F. Murray (Argued) No.:01-1505 Assistant District Attorney ______________ Robert M. Falin MOSES VILLOT, Assistant District Attorney Appellant Thomas W. Dolgenos Chief, Federal Litigation v. Ronald Eisenberg BENJAMIN VARNER; THE DISTRICT Deputy District Attorney ATTORNEY OF THE COUNTY OF PHILADELPHIA; Arnold H. Gordon THE ATTORNEY First Assistant District Attorney GENERAL OF THE STATE OF PENNSYLVANIA Lynn Abraham District Attorney ________________ Office of District Attorney Appeal from the United States 1421 Arch Street District Court Philadelphia, PA 19102 for the Eastern District of Pennsylvania (D.C. Civil Action No. Counsel for Appellees 00-cv-05512) District Judge: Honorable Eduardo C. Robreno OPINION
Argued on October 15, 2003 ROTH, Circuit Judge Before: SLOVITER, ROTH and STAPLETON, Circuit Judges Moses Villot pled guilty to a general murder charge in exchange for an agreement by the Commonwealth of (Opinion filed June 30, 2004 ) Pennsylvania not to seek the death penalty. At the sentencing hearing in the Court of Stephen J. Binhak, Esquire (Argued) Common Pleas, Villot was found to have committed first degree murder and he was a substantive element to the proof sentenced to life in prison. The present necessary to obtain federal relief. A appeal is from the denial of Villot’s § 2254 habeas petitioner’s inability to meet more petition for writ of habeas corpus, based restrictive state standards for relief cannot on three claims that his plea counsel result in a forfeiture of his federal provided ineffective assistance. Villot had constitutional claims. Accordingly, we unsuccessfully urged one of these claims conclude that these two collateral relief on direct appeal and all three of them in claims were not procedurally defaulted. his state petition for collateral relief. The District Court held that the two claims not We further hold that Villot’s third presented until Villot’s state collateral ineffective assistance claim is not proceeding were procedurally defaulted defaulted. Although Villot did not fully because Villot failed to satisfy 42 Pa. exhaust this claim on direct appeal, he did Cons. Stat. § 9543(a)(2)(iii), which fully exhaust all three claims by requires petitioners seeking collateral petitioning the Pennsylvania Supreme relief from guilty pleas to plead and prove Court for review of the Superior Court’s their innocence. The District Court also denial of collateral relief. Thus, Villot has held that the claim Villot presented on invoked “one complete round” of the direct appeal was procedurally defaulted normal state appellate review process with because Villot had failed to seek review in respect to each claim.1 O’Sullivan v. the Pennsylvania Supreme Court and would now be time-barred from doing so. 1 An argument could be made that A motions panel of this court Villot’s third ineffective assistance claim granted a certificate of appealability asking is defaulted, as was determined by the counsel to specifically address whether the Motions Panel in granting a certificate of innocence provision in § 9543(a)(2)(iii) is appealability on only the first two claims. an independent and adequate state Because Villot pursued the issue in the procedural ground. We now hold that this third claim to a further extent in his provision is a substantive requirement direct appeal (i.e., the Superior Court rather than a procedural rule and cannot, considered the ineffective assistance of therefore, give rise to a procedural default counsel claim on the merits of the of Villot’s federal claims. Under federal conflict of interest issue rather than law, proof of innocence is not a simply dismissing for failure to plead and prerequisite to relief from a guilty plea. prove actual innocence) than he did in The Commonwealth of Pennsylvania has, his PCRA petition, and then did not seek however, tacked on an innocence review of this determination by the provision as a substantive element Pennsylvania Supreme Court, the third necessary to prove in order to obtain relief claim could have been dismissed on from a guilty plea. But a state cannot add collateral review under 42 Pa. Const.
2 Boerckel, 526 U.S. 838, 845 (1999). counsel provided ineffective assistance at Accordingly, we will reverse the judgment the degree of guilt hearing due to a conflict of District Court and remand this case for of interest. Villot claimed that two of his consideration of the merits of all of plea counsel’s former clients were the Villot’s claims. murder victim and the only eye-witness called by the prosecution at the degree of II. Facts and Procedural History guilt hearing. The Superior Court denied the appeal and Villot did not seek review In October 1990, Moses Villot pled in the Pennsylvania Supreme Court. guilty in the Pennsylvania Court of Common Pleas to the murder of his In January 1997, Villot filed a pro brother-in-law. Following a degree of se petition for collateral relief under guilt hearing, Villot was found guilty of Pennsylvania’s Post-Conviction Relief Act first-degree murder and sentenced to a (PCRA), 42 Pa. Cons. Stat. § 9541 et seq, mandatory term of life imprisonment. 2 claiming that his plea counsel’s ineffective Shortly thereafter, Villot, represented by assistance “undermined the truth - new counsel, filed a timely motion to determining process” per § 9543(a)(2)(ii) withdraw his guilty plea, principally and “unlawfully induced” his guilty plea arguing that his plea counsel provided per § 9543(a)(2)(iii).3 Counsel was ineffective assistan ce. Fo llowin g evidentiary hearings in October 1991, the 3 Court of Common Pleas denied Villot’s The PCRA provides that a motion. Villot appealed to the Superior petitioner is eligible for relief if he pleads Court, arguing, inter alia, that his plea and proves by a preponderance of the evidence:
Stat. § 9543(a)(3), as having already (2) That the conviction or been litigated. The Superior Court did sentence resulted from one not, however, dismiss the third claim on or more of the following: this ground and, therefore, for the ... reasons we state in Section IV.C, infra, (ii) Ineffective assistance because the state court did not rely on the of counsel which, in the “already litigated” ground for dismissal, circumstances of the we will not do so in this appeal as a part particular case, so of our consideration of default. undermined the truth- 2 determining process that no Villot also pled guilty to two reliable adjudication of weapons offenses. His terms of guilt or innocence could imprisonment for these crimes run have taken place. concurrently with his life sentence for murder. (iii) A plea of guilty
3 appointed to represent Villot, but filed a with his guilty plea in his brief supporting no-merit letter per Commonwealth v. his PCRA appeal and held that Finley, 550 A.2d 213 (Pa. Super. Ct. “[o]bviously, Appellant is not innocent.” 4 1988). The Court of Common Pleas In November 1999, the Pennsylvania dismissed Villot’s petition without opinion Supreme Court denied Villot’s petition for and allowed appointed counsel to allowance of appeal. withdraw. In October 2000, Villot filed a 28 The Superior Court granted Villot U.S.C. § 2254 petition in the Eastern the right to appeal this decision nunc pro District of Pennsylvania, alleging the same tunc. Villot raised three ineffective three ineffective assistance claims he had assistance claims on appeal. First, he raised in his PCRA appeal. The claimed his plea counsel coerced him into Magistrate Judge held that Villot’s first pleading guilty. Second, he claimed that two claims were procedurally defaulted his plea counsel failed to adequately based on the Superior Court’s holding that interview him prior to advising him to Villot’s claims were “not cognizable.” plead guilty. Finally, he reiterated the The Magistrate Judge held, however, that conflict of interest claim described above. Villot’s third claim was insulated from the In July 1999, the Superior Court affirmed Superior Court’s holding because that the dismissal of his PCRA petition. The claim was properly exhausted on direct court noted that, pursuant to a 1995 appeal. The Magistrate Judge noted that amendment, the PCRA now requires a Villot failed to petition the Pennsylvania petitioner seeking relief from his guilty Supreme Court following the Superior plea to show not only that the plea was Court’s denial of his direct appeal, but “unlawfully induced” but also that he is held that this was no longer a required step innocent. 42 Pa. Const. Stat. § in the exhaustion process for habeas cases 9543(a)(2)(iii). The court held that arising in Pennsylvania. The Magistrate Villot’s claims were “not cognizable” Judge cited In re: Exhaustion of State under this section because Villot had failed to assert his innocence. The court further noted that Villot admitted facts consistent 4 While the Superior Court did not explicitly address Villot’s request for relief under the § 9543(a)(2)(ii) unlawfully induced where ineffective assistance of counsel the circumstances make it provision, Villot’s desire to withdraw his likely that the inducement guilty plea was based on ineffective caused the petitioner to assistance of counsel. Thus, the Superior plead guilty and the Court’s ruling necessarily implied that petitioner is innocent. Villot’s claim was also not cognizable 42 Pa. Cons. Stat. § 9543(a)(2). under § 9543(a)(2)(ii).
4 Remedies in Criminal and Post-Conviction A motions panel of this court issued R e l i e f C ases, No . 218 J udicia l a certificate of appealability per 28 U.S.C. Administration Docket No. 1 (Pa. M ay 9, § 2253(c) with respect to Villot’s first two 2000) (Order 218) of the Pennsylvania ineffective assistance claims but denied the Supreme Court, which provides that “in all certificate with respect to the conflict of appeals from criminal convictions . . . a interest claim, holding that this claim was litigant shall not be required to petition for clearly defaulted. The certificate rehearing or allowance of appeal following specifically sought briefing on whether the an adverse decision by the Superior Court Superior Court’s holding that Villot did in order to be deemed to have exhausted not satisfy § 9543(a)(2)(iii)’s innocence all available state remedies respecting a requirement constitutes “an ‘independent claim of error.” See Wenger v. Frank, 266 and adequate’ state law ground F.3d 218, 224-25 (3d Cir. 2001) (citing [precluding] review of [Villot’s] federal Order 218). Accordingly, the Magistrate claims” under the procedural default rule. Judge considered Villot’s conflict of As explained below, our consideration of interest claim on the merits, and ultimately Villot’s first two claims requires us also to recommended that the claim be denied. reconsider the motions panel’s earlier conclusion that his conflict of interest The District Judge adopted the claim was defaulted. M a g i s t r a t e J u d g e ’ s r ep o r t a n d recommendation with respect to the first III. Jurisdiction and Standard of two claims but held that the conflict of Review interest claim was also procedurally defaulted. The District Judge held that The District Court exercised Order 218, issued in May 2000, does not jurisdiction over Villot’s habeas petition apply retroactively and therefore did not under 28 U.S.C. §§ 2241 and 2254. We apply to Villot’s direct appeal, which was have jurisdiction to review the District denied by the Superior Court in May 1993. Court’s order denying Villot’s petition See Wenger, 266 F.3d at 226 (holding that under 28 U.S.C. § 1291. We exercise “Order 218 does not apply in cases in plenary review over the District Court’s which the time to petition for review by legal conclusions in a habeas proceeding, the state supreme court expired prior to the Caswell v. Ryan, 953 F.2d 853, 857 (3d date of the order”). The District Judge Cir. 1992), including its resolution of legal concluded, therefore, that Villot’s conflict questions arising from application of the of interest claim was procedurally procedural default doctrine. Hull v. Kyler, defaulted because the time to petition the 190 F.3d 88, 97 (3d Cir. 1999). Pennsylvania Supreme Court had long since expired. In February 2001, the IV. Discussion District Court dismissed the petition without reaching the merits. In our order granting Villot’s
5 request for a certificate of appealability we miscarriage of justice.” Harris v. Reed, asked the parties to consider whether the 489 U.S. 255, 262 (1989) (internal Superior Court’s holding that Villot did citations omitted). Villot does not claim not satisfy § 9543(a)(2)(iii)’s innocence that the “cause and prejudice” or requirement constitutes “an ‘independent “fundamental miscarriage of justice” and adequate’ state law ground exceptions excuse his failure to allege and [precluding] review of [Villot’s] federal prove his innocence in his PCRA claims.” We no longer need to address p r o c ee d i n g a s r e q u ir e d b y § this issue, however, because we now hold 9543(a)(2)(iii). Further, Villot does not that the innocence provision is substantive claim, and there is no basis to speculate, rather than procedural. By definition, the that the Superior Court’s holding was procedural default rule only applies to state interwoven with or based on federal law; it procedural rules. We further hold that is clear that the state court ruling was Villot’s non-compliance with certain state “independent.” Rather, the parties focus procedural rules, not discussed by the almost exclusively on whe ther § District Court, also does not support a 9543(a)(2)(iii)’s innocence clause is finding of procedural default because the “adequate” to support the Superior Court’s Superior Court did not rely on these judgment. See Szuchon v. Lehman, 273 grounds in concluding that Villot’s claims F.3d 299, 325 (3d Cir. 1999) (stating that were not cognizable under the PCRA. a procedural rule is adequate only if it is Finally, we hold that Villot properly “firmly established, readily ascertainable, exhausted all of his ineffective assistance and regularly followed”) (citing Ford v. claims in the PCRA proceeding, and Georgia, 498 U.S. 411, 423-24 (1991)). therefore the District Court must consider We need not reach this issue, however, the merits of all of them on remand. because we now hold that the innocence clause is a substantive requirement, not a A.Because § 9543(a)(2)(iii)’s innocence procedural rule, and therefore cannot give requirement is substantive rather than rise to a procedural default. procedural, it cannot give rise to procedural default of Villot’s federal Before 1995, § 9543(a)(2)(iii) claims. required a PCRA petitioner challenging the validity of his guilty plea to “plead and Under the procedural default rule, prove” that his plea was “unlawfully “an adequate and independent finding of induced where the circumstances make it procedural default will bar federal habeas likely that the inducement caused him to review of the federal claim, unless the plead guilty.” See Commonwealth v. habeas petitioner can show cause for the Banks, 656 A.2d 467, 470 (Pa. 1995) default and prejudice attributable thereto, (quoting former provision). Following the or demonstrate that failure to consider the 1995 amendment to this provision, the federal claim will result in a fundamental petitioner must now also “plead and
6 prove” that circumstances make it likely the substantive nature of the latter that “the petitioner is innocent.” 42 Pa. requirement. Second, the state implies that Cons. Stat. § 9 543 (a)(2)(iii); Villot could have satisfied the innocence Commonwealth v. Michael, 755 A.2d requirement simply by asserting his 1274, 1277 (Pa. 2000) (citing current innocence with no intention of actually provision). This clause plainly adds a demonstrating his lack of guilt. We reject substantive element to Pennsylvania’s test this bizarre position, which ignores the for obtaining collateral relief from guilty plain language of the statute and would pleas. Substantive law “creates, defines, reduce the innocence requirement to a and regulates rights and duties of parties.” meaningless formality. Finally, the state Black’s Law Dictionary 1429 (6 th ed. ignores the remainder of the Superior 1990). In contrast, procedural law Court’s opinion, in which the court noted “prescribes method[s] of enforcing rights certain admissions in Villot’s brief and or obtaining redress for their invasion.” held that Villot was “[o]bviously . . . not Id. at 1203. The Pennsylvania legislature innocent.” Thus, the Superior Court amended the definition of a PCRA reached the merits of Villot’s claim by petitioner’s right to collateral relief by holding that he could not satisfy the adding a new element, the innocence innocence requirement. requirement. Furthermore, the innocence Granted, given the structure of the requirement makes Pennsylvania’s test for statute defining eligibility for PCRA relief, evaluating ineffective assistance claims any substantive addition creates a related to guilty pleas more restrictive than corresponding procedural addition. The the federal test. 5 A § 2254 petitioner who first sentence of the act requires petitioners to “plead” as well as “prove” certain facts, including, of course, the claimed error. 5 We note that ineffective See 42 Pa. Cons. Stat. § 9543(a). At oral assistance claims based on the argument the state relied on this general performance or advice of plea counsel pleading requirement to argue that the may now be raised in PCRA proceedings innocence provision is procedural rather under subsection (a)(2)(ii), which does than substantive. Specifically, the state not require assertion or proof of noted that the Superior Court deemed innocence. At the time of the Superior Villot’s PCRA appeal “not cognizable” Court’s ruling on Villot’s PCRA appeal because he failed to allege his innocence. in July 1999, however, Pennsylvania’s First, this argument conflates the pleading lower courts had consistently held that requirement in the first sentence of § 9543 ineffective assistance claims relating to with the innocence requirement at guilty pleas were not cognizable under subsection (a)(2)(iii); the fact that the subsection (a)(2)(ii) because guilty pleas former rule is procedural does not change did not implicate the “truth-determining
7 claims that his counsel’s ineffective proceeded to trial instead of pleading assistance caused him to enter an guilty.” United States v. Nahodil, 36 F.3d involuntary or unknowing plea may obtain 323, 326 (3d Cir. 1994) (citing Hill v. collateral relief regardless of whether he Lockhart, 474 U.S. 52, 59 (1985)). In asserts or proves his innocence. To Nahodil, we indicated that a petitioner’s prevail, the petitioner must establish “that past assertions of innocence may help (i) his or her counsel’s representation fell substantiate his claim that he would have below an objective standard of proceeded to trial but for his counsel’s reasonableness demanded of attorneys in errors, 36 F.3d at 326-27, but we have criminal cases; and (ii) there is a never suggested that a failure to assert or reasonable probability that, but for prove innocence precludes a finding of counsel’s errors, he or she would have prejudice. Thus, by requiring a PCRA petitioner to “plead and prove” his innocence to obtain collateral relief from his guilty plea, subsection 9543(a)(2)(iii) process.” See Commonwealth v. tacks on an additional substantive element Woodrow, 743 A.2d 458, 460 (Pa. Super. on top of those required by federal law. Ct. 1999); Commonwealth v. Laszczynski, 715 A.2d 1185, 1187-88 The procedural default rule is an (Pa. Super. Ct. 1998); Commonwealth v. application of the independent and Shekerko, 639 A.2d 810, 813 (Pa. Super. adequate state ground doctrine. See Ct. 1994). The Superior Court’s decision Coleman v. Thompson, 501 U.S. 722, 729- in Villot’s case explicitly relied on 30 (1991). Under this doctrine, federal Laszczynski, and the Pennsylvania courts “will not review a question of Supreme Court denied Villot’s petition federal law decided by a state court if the for allowance of appeal. However, decision of that court rests on a state law though too late to help Villot, the court ground that is independent of the federal later overruled this line of decisions in question and adequate to support the Dadario v. Goldberg, holding that judgment.” Id. at 729 (citations omitted). subsection (a)(2)(ii) encompassed “all While the independent and adequate state constitutionally-cognizable claims of ground doctrine applies whether the state ineffective assistance of counsel,” law ground is substantive or procedural, including ineffective assistance claims id., the procedural default rule applies, by related to the defendant’s decision to definition, only to procedural rules. “The plead guilty or not. 773 A.2d 126, 127- [procedural default] doctrine applies to bar 28, 130-31 (Pa. 2001); see also federal habeas when a state court declined Commonwealth v. Hickman , 799 A.2d to address a prisoner’s federal claims 136, 141 (Pa. Super. Ct. 2002) (holding because the prisoner had failed to meet a that PCRA will afford relief if ineffective state procedural requirement. In these assistance of counsel caused defendant to cases, that state judgment rests on enter involuntary guilty plea).
8 independent and adequate procedural jurisdictional limits). grounds.” Id. (emphases added). This distinction between procedural and In fact, an interpretation of the substantive rules is perfectly consistent procedural default rule that extended to with the procedural default rule’s state substantive restrictions on federal rationale, which is that state courts should claims would violate the supremacy not be deprived of an opportunity to clause. See U.S. Const. art. VI. The states correct their own errors by the habeas have no obligation to provide collateral petitioner’s failure to abide by the state’s relief to convicted criminals at all, see reasonable procedural rules: Pennsylvania v. Finley, 481 U.S. 551, 557 (1987) (citation omitted), and the relief Just as in those cases in they elect to provide need not be co- which a state prisoner fails extensive with that provided by federal to exhaust state remedies, a statutory or constitutional law. Thus, the habeas petitioner who has Pennsylvania legislature was free to set a failed to meet the State’s higher bar for collateral relief from guilty procedural requirements for pleas than federal law provides.6 A presenting his federal claims holding that the procedural default rule has deprived the state courts applies in this case, however, would of an opportunity to address effectively impose Pennsylvania’s extra- those claims in the first constitutional restrictions on collateral instance. relief on federal habeas proceedings despite 28 U.S.C. § 2254(a), which Id. at 731-32 (emphasis added); see also authorizes relief whenever a prisoner is Rose v. Lundy, 455 U.S. 509, 518-19 held in custody “in violation of the (1982) (articulating similar rationale). Constitution or laws or treaties of the How ever, when a state tacks on United States.” substantive additions to federal claims, it is the state itself that has forfeited its Accordingly, we do not need to opportunity to consider the federal claims determine whether the Superior Court’s of the class of petitioners who cannot application of § 9543(a )(2)(iii)’s satisfy the additional state-created innocence requirement satisfies the s u b s t a n t iv e r e q u i r e m e n t . The “independent and adequate” state ground considerations of comity and federalism test because, even assuming it does, it underlying the procedural default rule have no application in such cases. See Coleman, 501 U.S. at 730 (explaining that 6 Of course, the scope of relief application of independent and adequate provided must be consistent with the state ground rule in habeas is grounded in state’s own constitutional law, but that comity and federalism concerns, not issue is not before the court.
9 cannot foreclose federal habeas review of defaulted under § 9543(a)(3), but we reject Villot’s ineffective assistance claims. this argument because the Superior Court did not rely on § 9543(a)(3) in denying B.Villot’s habeas petition is not Villot’s PCRA appeal. procedurally defaulted because of his non-compliance with § 9543(a)(3). First, it seems clear that the Superior Court could have held that some Section 9543(a)(2)(iii) provided a or all of Villot’s PCRA claims were either substantive basis for the Superior Court’s previously litigated or waived. There is no holding that Villot’s claims were “not doubt that Villot’s conflict of interest cognizable” under the PCRA. However, it claim was previously litigated in both appears that the Superior Court could have Villot’s motion to withdraw his guilty plea also denied relief on procedural grounds. and on direct appeal. Next, Villot’s claim Specifically, the court could have held that that his plea counsel failed to adequately Villot failed to comply with 42 Pa. Const. interview him and investigate his case Stat. § 9543(a)(3), which provides that a could have been deemed waived by the PCRA petitioner must plead and prove Superior Court because it was not raised “[t]hat the allegation of error has not been before the trial court or on direct appeal.8 previously litigated or waived.” 7 Although the state does not rely on § 9543(a)(3) directly, in both its brief and at oral 8 Until recently, defendants in argument it placed great emphasis on its Pennsylvania had to raise any ineffective contention that Villot waived two of his assistance claims “at the earliest stage in ineffective assistance claims by failing to the proceedings at which the counsel raise them prior to his PCRA proceeding. whose effectiveness is being challenged We treat this as an argument that Villot’s no longer represents the defendant,” or claims should be considered procedurally else these claims would be considered waived. Commonwealth v. Hubbard, 372 A.2d 687, 695 n.6 (Pa. 1977). 7 A claim has been previously Because Villot obtained new counsel litigated if “the highest court in which before he made his motion to withdraw the petitioner could have had review as a his guilty plea, he was obligated to raise matter of right has ruled on the merits of any ineffective assistance claims in that the issue.” 42 Pa. Cons. Stat. § motion. The Pennsylvania Supreme 9544(a)(2). A claim has been waived “if Court overruled Hubbard in 2002, the petitioner could have raised it but holding that “as a general rule, a failed to do so before trial, at trial, during petitioner should wait to raise claims of unitary review, on appeal or in a prior ineffective assistance of trial counsel state postconviction proceeding.” Id. at § until collateral review.” Commonwealth 9544(b). v. Grant, 813 A.2d 726, 738 (Pa. 2002).
10 Finally, with respect to Villot’s claim that If the state is correct, this claim could also his plea counsel coerced him into pleading have been deemed “previously litigated.” guilty, the state argues that this is just a If the state is incorrect and this claim is variation on his conflict of interest claim.9 considered distinct, the Superior Court might have held that this claim was waived because Villot did not raise it in his motion “Thus, any ineffectiveness claim will be to withdraw his guilty plea or on direct waived only after a petitioner has had the appeal. opportunity to raise that claim on collateral review and has failed to avail Thus, if the Superior Court had himself of that opportunity.” Id. The barred review of some or all of Villot’s court also held that the new rule would claims on the basis of § 9543(a)(3) rather be applied retroactively to cases currently than, or in addition to, its ruling based on pending on direct appeal in which § 9543(a)(2)(iii), it could be argued that ineffective assistance claims had been the procedurally barred claims were raised and preserved, but not to cases defaulted for purposes of federal habeas pending on collateral review. Id. at 738- review.10 However, “a federal claimant’s 39 & n.16. Of course, Villot’s direct and procedural default precludes federal collateral state proceedings had long habeas review . . . only if the last state been closed by the time Grant was court rendering a judgment in the case issued, so the new rule has no application rests its judgment on the procedural here. default.” 11 Harris v. Reed, 489 U.S. 255, 9 Villot’s counsel does not explain the basis of this claim in his briefing to the exact claims themselves. See this court, but the gist of the claim can be Commonwealth v. Carpenter, 725 A.2d gleaned from Villot’s pro se brief in the 154, 166-67 (Pa. 1999) (citation district court and the M agistrate Judge’s omitted). report and recommendation. Villot claims that his plea counsel pressured 10 This statement is qualified him to plead guilty so that counsel could because we cannot and need not avoid cross-examining Adam Romero, definitively state that Villot could not the chief prosecution witness and have raised any valid objections to counsel’s former client, at trial. If this is application of the procedural default rule the extent of Villot’s claim, it is simply a had the Superior Court relied on § re-statement of Villot’s conflict of 9543(a)(3) to deny his PCRA appeal. interest claim. The Pennsylvania 11 Supreme Court has held that the This rule is inapplicable where the “previously litigated” prong of state court has not been presented with subsection (a)(3) bars simple variations the federal claim. Harris, 489 U.S. at of previously litigated claims as well as 263 n.9. In that event, the federal habeas
11 262 (1989) (emphasis added). If the state the Pennsylvania Supreme Court’s refusal court does not actually enforce the to review the Superior Court’s order is procedural rule in question, the “federal presumed to rest on the same ground. court implies no disrespect for the state by Comity does not require, nor would it entertaining the claim.” County Court of justify, any endeavor by this Court to Ulster County, N.Y. v. Allen, 442 U.S. 140, substitute an unmentioned procedural 154 (1979); see also Smith v. Freeman, ground in place of subsection (a)(2)(iii) in 892 F.2d 331, 336 (3d Cir. 1989) (relying order to hold Villot’s claims procedurally on Harris and Ulster to hold that a claim defaulted in federal court. was not procedurally barred under a certain state procedural rule where the C.Villot’s conflict of interest claim was Pennsylvania courts did not rely on this not defaulted because of the manner in rule and addressed the merits of the which it was concluded by the state in petition instead). The Superior Court’s the PCRA proceeding. opinion rejecting Villot’s PCRA appeal rests exclusively on subsection (a)(2)(iii), and does not mention § 9543(a)(3) or any In its order granting Villot’s other procedural basis for its ruling.12 certificate of appealability with respect to Under the presumption established in Ylst two of his ineffective assistance claims, v. Nunnemaker, 501 U.S. 797, 803 (1991), the motions panel denied the certificate with respect to his ineffective assistance claim based on an alleged conflict of court may hold the claim procedurally interest. The motions panel agreed with defaulted “if it is clear that the state court the District Court that this claim was would hold the claim procedurally procedurally defaulted because Villot barred.” Id. But since the PCRA courts failed to fully exhaust it on direct appeal were presented with Villot’s federal by seeking review in the Pennsylvania claims, the Harris rule and not its Supreme Court and would now be time- exception applies. barred from doing so. That ruling, 12 however, failed to account for the fact that In contrast, in Cabrera v. Barbo, Villot presented this same claim, along 175 F.3d 307, 310-13, (3d Cir. 1999), with his other two ineffective assistance the case principally relied on by the state claims, to Pennsylvania’s highest court at oral argument, the New Jersey state following the Superior Court’s denial of courts explicitly relied on a state waiver his PCRA appeal. We now hold that all rule in denying a prisoner’s state petition three of Villot’s ineffective assistance for post-conviction relief. Therefore, claims were properly exhausted during the Cabrera’s holding that the prisoner’s claims were procedurally defaulted in federal court is inapplicable to the instant case.
12 PCRA proceedings. 13 Before a federal court may grant a § 2254 habeas petition, the state prisoner must exhaust his available state court 13 remedies. 28 U.S.C. § 2254(b)(1); We may not consider issues on O’Sullivan, 526 U.S. at 842. “The appeal that are not within the scope of exhaustion doctrine is designed to give the the certificate of appealability (COA). state courts a full and fair opportunity to 28 U.S.C. § 2253(c)(3); Third Circuit resolve federal constitutional claims before Local Appellate Rule 22.1(b); Miller v. those claims are presented to the federal Dragovich, 311 F.3d 574, 577 (3d Cir. courts.” Id. at 845. The prisoner typically 2002); Hiivala v. Wood, 195 F.3d 1098, exhausts his federal claims by fairly 1102-03 (9th Cir. 1999). However, the presenting each claim at each stage of the merits panel may expand the scope of the state’s established appellate review COA beyond the scope announced by the process. Id. However, when the state motions panel. See 3d Cir. LAR 22.1(b); refuses to consider the merits of the Hiivala, 195 F.3d at 1103-04 (explaining prisoner’s claims because the petitioner that the “law of the case” doctrine does has failed to comply with the state’s not preclude the merits panel from procedural requirements, his claim is expanding the scope of a COA granted nonetheless technically exhausted because by the motions panel because the proper “there is an absence of available State scope of a COA is a jurisdictional issue). corrective process,” 28 U .S.C . § The fact that Villot did not request 2254(b)(1)(B)(I), despite the fact that the expansion is not controlling — the merits petitioner has “deprived the state courts of panel may expand the COA sua sponte. an opportunity to address [the federal] See 3d Cir. LAR 22.1(b) (contemplating claims in the first instance. Coleman, 501 sua sponte expansion); United States v. U.S. at 732. Thus, the procedural default Morgan, 244 F.3d 674, 675 (8th Cir. rule avoids frustration of the purpose 2001) (en banc) (holding that Eighth behind the exhaustion requirement by Circuit hearing panel may “consider sua sponte issues beyond those specified in a certificate of appealability, whether the certificate was issued by a district court claim. We note that while our expansion or by an administrative panel of [the of the COA in this case is technically sua Eighth Circuit]”); cf. Robinson v. sponte because Villot did not ask us to Johnson, 313 F.3d 128, 133 (3d Cir. revisit the motion panel’s ruling denying 2002) (citing Dunn v. Colleran, 247 F.3d the COA as to his conflict of interest 450, 456 (3d Cir.2001), for the claim, the effect of our revision is simply proposition that a district court may grant to consider each of Villot’s claims on the a COA sua sponte). Accordingly, we basis of the same legal theory, not to exercise our discretion to expand the include a new issue not envisioned by the COA to cover Villot’s conflict of interest parties.
13 precluding federal review of procedurally other two claims to the Pennsylvania barred claims unless the petitioner can Supreme Court following the Superior establish “cause and prejudice” or a Court’s denial of his PCRA appeal. A “fundamental miscarriage of justice” to prisoner is only required to invoke “one excuse the procedural default. Id.; complete round” of the state’s established Whitney v. Horn, 280 F.3d 240, 250 (3d appellate process to satisfy the exhaustion Cir. 2002) (citation omitted). requirement, O’Sullivan, 526 U.S. at 845 (emphasis added), and Villot did so during The District Court correctly ruled his PCRA proceedings. that Villot did not fully exhaust his conflict of interest claim on direct appeal because If § 9543(a)(2)(iii)’s innocence he did not petition the Pennsylvania provision were procedural rather than Supreme Court for review of the Superior substantive, then the District Court’s Court’s denial of his appeal.14 However, ruling would have been correct. As Villot presented both this claim and his explained above, a procedurally barred claim is technically exhausted but not properly exhausted because the state 14 In O'Sullivan the Supreme Court courts are not given a fair opportunity to held that AEDPA’s exhaustion address the federal claim on the merits. provisions require state prisoners to “file See O’Sullivan, 526 U.S. at 848. If § petitions for discretionary review when 9543(a)(2)(iii)’s innocence provision were that review is part of the ordinary a procedural bar then Villot would have appellate review procedure in the State.” lost his only opportunity to properly 526 U.S. at 847. In May 2000 the exhaust his federal claims when he failed Supreme Court of Pennsylvania issued to petition the state’s highest court Order 218 which endeavored to eliminate following his direct appeal. Because we petitions for discretionary review from have held that this provision is substantive, the ordinary appellate review procedure. however, see supra Part IV.A., and See Wenger v. Frank, 266 F.3d 218, 220, because the Superior Court did not deny 224-25 (3d Cir. 2001) (providing text of Villot’s PCRA appeal on any procedural Order 218). As was the case in Wenger, ground, see supra Part IV.B., we hold that we need not consider the effect of Order Villot properly exhausted his ineffective 218 on AEDPA’s exhaustion assistance claims by presenting them to the requirement in this case because Villot’s state’s highest court during his PCRA time to petition for discretionary review proceedings. elapsed years before the date of the V. Conclusion order. See 266 F.3d at 226 (“Order 218 does not apply in cases in which the time For the reasons stated above, we to petition for review by the state will reverse the District Court’s dismissal supreme court expired prior to the date of of Villot’s habeas petition and remand this the order.”)
14 case for consideration of the merits of all three of Villot’s claims.15
15 The state has invited us to address the merits of Villot’s claims in the first instance on appeal should we decide, as we have, that Villot’s claims were not defaulted. The state argues that we have the power to address the merits in the first instance under 28 U.S.C. § 2254(b)(2), which authorizes federal courts to deny habeas petitions on the merits “notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.” Although § 2254(b)(2) does not, by its terms, apply to the procedural default context, in Hameen v. Delaware, 212 F.3d 226, 251-52 (3d Cir. 2000), we relied on this section to reach the merits of a habeas petition rather than consider whether the issue had been procedurally defaulted in the state courts. However, we need not decide whether we can or should follow the state’s suggestion, because the record on appeal is insufficient to permit a thorough review of Villot’s claims. We have not been provided with a transcript of the evidentiary hearing held in the Superior Court on Villot’s motion to withdraw his guilty plea. Further, the transcript of the degree of guilt hearing is incomplete — specifically, the pages of the transcript containing the testimony of Adam Romero, witness for the prosecution and Villot’s plea counsel’s former client, are missing.