Villot v. Varner

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Precedential or Non-Precedential: Precedential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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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.
15