Graham Spanier v. Director Dauphin County Probat

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 19-2228
______
GRAHAM B. SPANIER
v.
DIRECTOR DAUPHIN COUNTY PROBATION
SERVICES;
ATTORNEY GENERAL PENNSYLVANIA,
Appellants
______
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 3-19-cv-00523)
Magistrate Judge: Honorable Karoline Mehalchick
______
Argued June 16, 2020
Before: CHAGARES, PORTER and FISHER, Circuit
Judges.
(Filed: December 1, 2020)
Kimberly A. Boyer-Cohen
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103
Ronald Eisenberg [ARGUED]
Office of Attorney General of Pennsylvania
1600 Arch Street, Suite 300
Philadelphia, PA 19103
Counsel for Appellants
Bruce P. Merenstein [ARGUED]
Samuel W. Silver
Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103
Counsel for Appellee
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
This case stems from the disturbing child sex abuse
scandal involving the football program at the Pennsylvania
State University. In 2017, Penn State’s former president,
Graham Spanier, was convicted of child endangerment for his
role in the decision not to report the suspected abuse to state
2
authorities. Spanier and other university administrators made
that decision in 2001. However, after their decision and before
Spanier’s trial—in 2007, to be exact—the Pennsylvania
legislature amended the statutory definition of child
endangerment and its statute of limitations. Although Spanier’s
conduct preceded these amendments, the jury was instructed in
language that tracked the post-amendment statute.
Spanier challenged his state-court conviction through a
petition for a writ of habeas corpus, arguing that his rights
under the Due Process and Ex Post Facto Clauses were
violated. He also argued that his due process rights were
violated by the application of an exception to the statute of
limitations. The District Court granted Spanier’s petition and
vacated his conviction. The Commonwealth appeals. We will
reverse.
In 1998, a woman called the Penn State police to
complain that her eleven-year-old son had showered with Jerry
Sandusky, who was the well-known defensive coordinator for
Penn State’s football team. The boy was involved with the
Second Mile program, a charitable organization Sandusky
founded that helped vulnerable youth. The police chief brought
news of the complaint to Gary Schultz, Penn State’s Senior
Vice President for Finance and Business. The chief kept
Schultz informed, and Schultz in turn told Spanier the details
of the investigation as it unfolded. Schultz also told Timothy
Curley, the university’s Athletic Director, about the
investigation.
Both the Penn State police and the Pennsylvania
Department of Public Welfare investigated the complaint.
Ultimately, those entities concluded that sexual assault could
3
not be proven, and the DA did not file charges. Spanier was
copied on two emails about the investigation: one at the
beginning and one saying it had concluded.
In 1999, Sandusky retired. He was granted emeritus
status, and he still had access to Penn State football facilities.
He also remained actively involved with Second Mile.
On Friday, February 9, 2001, around 8:00 or 8:30 in the
evening, graduate assistant coach Michael McQueary went to
the football building. He saw Sandusky and a boy he estimated
to be “[r]oughly 10 to 12 years old” naked together in the
shower, clearly engaged in sexual activity. App. 806. Shaken,
he immediately spoke with his father and a family friend. The
next morning, Saturday, February 10, McQueary told longtime
head football coach Joe Paterno. Paterno asked to meet with
Athletic Director Curley and Senior Vice President Schultz.
The three men spoke a day later, on Sunday, February 11.
Paterno reported what McQueary had told him, but he used the
terms “horseplay” and “wrestling” to describe what McQueary
saw. App. 1056. Later that day, Schultz asked Penn State’s
general counsel for advice. Counsel recommended that the
University report the incident to the Department of Public
Welfare.
On Monday, February 12, Curley and Schultz reported
the situation to Spanier. According to Schultz’s
contemporaneous notes, the three men “reviewed 1998
history,” i.e., the 1998 investigation; they “agreed [Curley] will
. . . advise [Paterno] we think [Curley] should meet [with]
[Sandusky] on Friday”; they decided that “unless [Sandusky]
‘confesses’ to having a problem, [Curley] will indicate we need
to have DPW [the Department of Public Welfare] review the
matter”; and “[Curley] will keep [Schultz] posted.” App. 1379.
The next week, Curley and Schultz asked McQueary to
meet with them, and McQueary again described what he had
4
seen. McQueary testified, “I told them that I saw Jerry
molesting a boy, that what he was doing in a shower with a
minor on the Friday night was sexual, it was over the line.”
App. 816. McQueary vigorously denied ever using the word
“horseplay” to describe the incident to anyone.
Two weeks later, on Sunday, February 25, 2001, Curley
and Schultz again met with Spanier. After the meeting, Schultz
found an online listing of Second Mile’s board of directors,
printed it out, and wrote three action items on the back: “Tell
Chair of Board of Second Mile,” “Report to Dept of Welfare,”
and “Tell [Sandusky] to avoid bringing children alone into
[football] Bldg.” App. 1151, 1393-94. Schultz emailed Curley
the next day to confirm that Curley “[had] the ball” on these
next steps. App. 1382, 1143-44.
On Tuesday, February 27, however, Curley emailed
Spanier and Schultz and shared that he’d had a change of heart:
After giving it more thought and talking it over
with Joe [Paterno] yesterday—I am
uncomfortable with what we agreed were the
next steps. I am having trouble with going to
everyone, but the person involved. I think I
would be more comfortable meeting with the
person and tell[ing] him about the information
we received. I would plan to tell him we are
aware of the first situation [the 1998 incident]. I
would indicate we feel there is a problem and we
want to assist the individual to get professional
help. Also, we feel a responsibility at some point
soon to inform his organization [Second Mile]
and . . . maybe the other one [child protective
services] about the situation. If he is cooperative
we would work with him to handle informing the
organization [Second Mile]. If not, we do not
5
have a choice and will inform the two groups.
Additionally, I will let him know that his guests
[Second Mile children] are not permitted to use
our facilities. I need some help on this one. What
do you think about this approach?
App. 1386, 1075-81. Spanier responded:
This approach is acceptable to me. It requires
you to go a step further and means that your
conversation will be all the more difficult, but I
admire your willingness to do that and I am
supportive. The only downside for us is if the
message isn’t heard and acted upon, and we then
become vulnerable for not having reported it.
But that can be assessed down the road. The
approach you outline is humane and a reasonable
way to proceed.
App. 1386, 1082-83. As agreed, Curley spoke with Sandusky
and Second Mile’s executive director. Then Curley circled
back to Spanier and “told him I took care of what I was
supposed to do and everything was okay.” App. 1092. The
Department of Public Welfare was never notified.
After this point in early 2001, the Sandusky saga went
quiet—at least as far as Penn State’s administration was
concerned. But that was not the experience of the children
Sandusky continued to abuse. In 2008, Clinton County
Children and Youth Services received another report and the
Commonwealth began another investigation. As a result of this
investigation, Sandusky was convicted of crimes related to his
abuse of several children, including four he abused after 2001.
6
Before turning to the procedural history of this appeal,
we first introduce its legal backdrop, which is encapsulated in
Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015). This
discussion is necessary to explain the circumstances of
Spanier’s conviction.
William Lynn, a Roman Catholic priest, was the
Secretary for Clergy of the Archdiocese of Philadelphia in the
1990s and early 2000s. Id. at 798. He “was responsible for . . .
handling clergy sexual abuse issues,” acting as the “‘point
man’ in the investigation into . . . allegations of clergy sexual
abuse of minors within the Archdiocese.” Id. at 798-99. While
Lynn was Secretary for Clergy, priests in the diocese sexually
abused children. Some children were victimized by priests
who, Lynn knew, had abused other children in the past. Id. at
799-806.
In 2002, a grand jury was empaneled at the request of
the Philadelphia District Attorney to investigate clergy sex
abuse in the diocese. Id. at 806-07. The grand jury’s report
concluded that the 1995 version of the Pennsylvania child
endangerment statute, 18 Pa. C.S. § 4304, which was then in
effect, “allowed church officials such as [Lynn] to escape
criminal liability.” Id. at 807. The grand jury explained that the
statute was “too narrow to support a successful prosecution of
the decision-makers who were running the Archdiocese. The
statute confines its coverage to parents, guardians, and other
persons ‘supervising the welfare of a child.’ High level
Archdiocesan officials, however, were far removed from any
direct contact with children.” Id. (citation omitted).
Based on its understanding of the statute, the grand jury
did not recommend criminal charges against Lynn. Instead, it
7
recommended amending the child endangerment statute “to
encompass conduct by individuals in an employer or
supervising capacity.” Id. “[T]he legislature obliged, and
amended the . . . statute, effective January 27, 2007.” Id. The
2007 amendment added new language, which is underlined
here:
(a) Offense defined.--
(1) A parent, guardian or other person
supervising the welfare of a child under
18 years of age, or a person that employs
or supervises such a person, commits an
offense if he knowingly endangers the
welfare of the child by violating a duty of
care, protection or support.
(2) A person commits an offense if the
person, in an official capacity, prevents or
interferes with the making of a report of
suspected child abuse under 23 Pa.C.S.
Ch. 63 (relating to child protective
services).
(3) As used in this subsection, the term
“person supervising the welfare of a
child” means a person other than a parent
or guardian that provides care, education,
training or control of a child.
(b) Grading.--An offense under this section
constitutes a misdemeanor of the first degree.
However, where there is a course of conduct of
endangering the welfare of a child, the offense
constitutes a felony of the third degree.
8
18 Pa. C.S. § 4304 (2007) (emphasis added). The Pennsylvania
legislature also amended the statute of limitations for § 4304,
adding the underlined language:
(a) General rule.--Except as otherwise provided
in this subchapter, a prosecution for an offense
must be commenced within two years after it is
committed. . . .
(c) Exceptions.--If the period prescribed in
subsection (a) . . . has expired, a prosecution may
nevertheless be commenced for: . . .
(3) Any sexual offense committed against
a minor who is less than 18 years of age
any time up to the later of the period of
limitation provided by law after the minor
has reached 18 years of age or the date the
minor reaches 50 years of age. As used in
this paragraph, the term “sexual offense”
[includes] a crime under . . . [18 Pa. C.S.]
Section 4304 (relating to endangering
welfare of children).
42 Pa. C.S. § 5552 (2007) (emphasis added).
Despite the grand jury’s hesitations about charging
Lynn under the 1995 statute, the Commonwealth decided to do
so in 2011. Lynn, 114 A.3d at 807-08. Lynn was convicted and
he appealed, arguing that the evidence was insufficient because
he did not supervise children and therefore was not within the
scope of the 1995 statute. Id. at 815-16. The Superior Court
agreed and reversed the conviction. Id. at 817.
The Pennsylvania Supreme Court reversed the Superior
Court, ruling that Lynn’s conviction under the 1995 statute was
not erroneous. The Court observed that despite the usual rule
of lenity, child endangerment statutes “are written expansively
9
by the legislature ‘to cover a broad range of conduct in order
to safeguard the welfare and security of our children,’” and
should be construed to effectuate that broad purpose. Id. at 818
(quoting Commonwealth v. Marlin, 305 A.2d 14, 18 (Pa.
1973)); see also id. at 822. The 1995 statute covers “[a] parent,
guardian or other person supervising the welfare of a child,” 18
Pa. C.S. § 4304(a), and the Supreme Court held that “the
statute is plain and unambiguous that it is not the child that
[Lynn] must have been supervising, but the child’s welfare.”
Id. at 823. The Court reasoned that “the requirement of
supervision is not limited to only certain forms of supervision,
such as direct or actual,” but “[b]y its plain terms . . .
encompasses all forms of supervision of a child’s welfare.” Id.
at 824. “[S]upervision,” the Court explained, “is routinely
accomplished through subordinates, and is no less supervisory
if it does not involve personal encounters with the children.
Like [Lynn], school principals and managers of day care
centers supervise the welfare of the children under their care
through their management of others.” Id. Lynn came within the
purview of the statute because, “by his own concession, he
supervised the welfare of the children of the Archdiocese.” Id.
The Court said that the views of the grand jury and the
DA (who declined to prosecute Lynn under the 1995 statute)
did not “prove the meaning of the . . . statute, which is
determined by analyzing [its] plain language.” Id. at 827. The
Court also discounted the subsequent amendment of § 4304,
invoking Pennsylvania’s statutory interpretation statute, which
provides that legislative history is not taken into account when
a statute’s language is clear. Id. (citing 1 Pa. C.S. § 1921). The
Court added that “while the former version of a statute is
relevant to discern the legislative intent of a later version when
the statutory language is ambiguous, the inverse is not true.”
Id. In other words, while the 1995 version of the statute might
10
illuminate the meaning of the 2007 statute, the 2007 statute
could not illuminate the meaning of the 1995 statute.
Concluding that Lynn’s conduct fit within the plain language
of the 1995 statute, the Pennsylvania Supreme Court reversed
the Superior Court and held there was sufficient evidence to
convict. Id.
The Commonwealth filed a criminal complaint against
Spanier in 2012—five years after the statutory amendments
described above, but before the Pennsylvania Supreme Court
held in Lynn that the pre-amendment child endangerment
statute did not require “personal encounters with . . . children.”
114 A.3d at 824. Spanier moved to quash the complaint,
arguing that the charges should be dismissed because the
allegedly wrongful acts were committed in 2001 and the
normal two-year statute of limitations expired in 2003. The
Commonwealth responded that Spanier engaged in a course of
conduct endangering child welfare until 2012, and therefore he
“was charged well within the applicable statute of limitation.”
App. 498. The trial court rejected Spanier’s limitation
argument, and in 2017, two years after Lynn, the case went to
trial. 1
The count that became Count 1 charged that Spanier,
“being a parent, guardian, or a person supervising the welfare
of various children under 18 years of age, knowingly
1
We omit the procedural history of the case between
2012 and 2017, which involved (among other things) an
interlocutory appeal regarding whether the testimony of Penn
State’s former general counsel was admissible. See
Commonwealth v. Spanier, 132 A.3d 481, 482 (Pa. Super. Ct.
2016). What transpired during that time is not relevant to the
issues we address in this appeal.
11
endangered the welfare of said children.” App. 417. This
language tracked the 1995 statute because it omitted the phrase
added in 2007, “or a person that employs or supervises such a
person.” The statutory reference, however, was 18 Pa. C.S.
§ 4304(a)(1). App. 417. In the 1995 statute, there was no
paragraph (a)(1); the 2007 amendment had changed the
structure of the statute to create paragraph (a)(1). Thus, the
language of the criminal information reflected the 1995 statute,
but its statutory reference reflected the 2007 statute. 2
At the start of trial, the judge instructed the jury using
the language of the 1995 statute. App. 704 (“elements of the
first count” include that “the defendant was, at the time he
endangered the welfare of a child, a parent, guardian, or person
supervising the welfare of the child”). At the charge conference
near the end of trial, Spanier’s attorney objected that the final
instruction the judge planned to give “has the language of the
current [2007] statute, and, as we’ve said throughout this case,
we think the [1995] language should apply.” App. 1215. The
court ultimately rejected this argument, and at the end of trial,
it instructed the jury using the language of the amended, 2007
statute:
The defendant has been charged with
endangering the welfare of a child. To find the
defendant guilty of this offense, you must find
that each of the following elements has been
proven beyond a reasonable doubt. . . .
[T]hat the defendant was at the time a parent,
guardian, person supervising the welfare of a
2
Spanier was acquitted of Count 2 (preventing or
interfering with a report of child abuse) and Count 3
(conspiracy to endanger the welfare of a child), so those counts
form no part of his habeas petition or this appeal.
12
child under the age of 18, or a person that
employs or supervises such a person. The term
“person supervising the welfare of a child”
means a person other than a parent or guardian
that provides care, education, training, or control
of a child.
App. 1306-07 (emphasis added, indicating language added in
2007 statutory amendment). The jury found Spanier guilty of
this count. But, when asked on the verdict slip whether there
was a “Course of Conduct (Yes or No),” the jury answered
“no.” App. 1397. Because there was no course of conduct,
Spanier was convicted of a misdemeanor. See 18 Pa. C.S.
§ 4304(b) (“An offense under this section constitutes a
misdemeanor of the first degree. However, where there is a
course of conduct . . . , the offense constitutes a felony of the
third degree.”). Spanier was sentenced to two months of
incarceration, two months of house arrest, and two years of
probation.
In its post-trial opinion, the trial court concluded there
was no error in instructing the jury using the 2007 statutory
language. It rested this conclusion on Lynn, reasoning that,
even under the 1995 statute, supervising the welfare of a child
was not limited to direct supervision. App. 1533, 1539. The
court also concluded that the prosecution was not barred by the
statute of limitations because, under the amended, 2007
version of 42 Pa. C.S. § 5552(c), the statute would not run until
the child McQueary saw in the shower turned 50 years old.
McQueary testified that the child was 10 to 12 years old, so the
statute would run in “approximately the year 2039.” App.
1526. Notably, as explained above, the Commonwealth had not
relied on pre- or post-amendment § 5552(c) before or during
trial; it had argued that there was no problem with the normal
§ 5552(a) two-year statute of limitations because Spanier’s
13
course of conduct lasted until 2012. The jury’s finding that
there was no course of conduct took that argument off the table
and brought § 5552(c) into play.
On appeal, the Superior Court relied on Lynn to affirm
Spanier’s conviction. Commonwealth v. Spanier, 192 A.3d
141, 150-54 (Pa. Super. Ct. 2018). The Court also rejected
Spanier’s statute of limitations argument, concluding that there
was no due process violation in the Commonwealth’s reliance
on the § 5552(c) statute of limitations. Id. at 145-48. Spanier’s
petition for allowance of appeal in the Pennsylvania Supreme
Court was denied.
Spanier had the right to continue pursuing relief in state
court under Pennsylvania’s Post-Conviction Review Act, but
he chose instead to file a petition for a writ of habeas corpus in
federal court under 28 U.S.C. § 2254. The District Court
granted the petition, holding that Spanier’s conviction violated
the Ex Post Facto and Due Process Clauses. Spanier v. Libby,
No. 3:19-CV-523, 2019 WL 1930155, at *15, 18 (M.D. Pa.
Apr. 30, 2019). However, it concluded that the application of
the § 5552(c) statute of limitations did not violate due process.
Id. at *19. The Commonwealth appeals.
3
The state courts rejected Spanier’s argument that his
conviction violated the Ex Post Facto Clause. They relied on
Lynn, 114 A.3d at 796, to rule that Spanier’s conduct was
criminalized by the 1995 version of the statute, which was in
effect when he committed the conduct. The District Court
3
The District Court had jurisdiction under 28 U.S.C.
§ 2254(a). This Court has jurisdiction under 28
U.S.C. §§ 1291, 2253(a).
14
analyzed the Ex Post Facto Clause together with the Due
Process Clause and held that the state courts’ application of
Lynn violated both. Spanier, 2019 WL 1930155, at *7-15. We
begin by addressing the District Court’s ex post facto holding.
The Ex Post Facto Clause provides that “[n]o State shall
. . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10,
cl. 1 (emphasis added). Passage of a law is strictly a legislative
function, so “[t]he Ex Post Facto Clause, by its own terms, does
not apply to courts.” Rogers v. Tennessee, 532 U.S. 451, 460
(2001). Rather, “[a]s the text of the Clause makes clear, it ‘is a
limitation upon the powers of the Legislature . . . .’” Id. at 456(quoting Marks v. United States, 430 U.S. 188, 191 (1977)).
Here, the Pennsylvania General Assembly did not provide that
the 2007 version of the statute would apply retroactively. See
18 Pa. C.S. § 4304 (2007); Act of Nov. 29, 2006, No. 2006-
179, 2006 Pa. Laws 1581, 1589 (providing that amendments to
§ 4304 “shall take effect in 60 days”). Therefore, there was no
ex post facto violation.
The real problem, according to Spanier and the District
Court, is how the state courts construed the child endangerment
statute through their application of the Pennsylvania Supreme
Court’s Lynn decision. Where a state court unforeseeably
applies a law retroactively, that is a due process problem. Bouie
v. City of Columbia, 378 U.S. 347, 353-54 (1964) (“If a state
legislature is barred by the Ex Post Facto Clause from passing
[an unforeseeable retroactive enlargement of a law] . . . , it
must follow that a State Supreme Court is barred by the Due
Process Clause from achieving precisely the same result by
judicial construction.”). Any constitutional violation that
occurred here would be a due process error, not an ex post facto
error. We proceed, then, to the due process analysis.
15
The Due Process Clause requires that a criminal statute
“give fair warning of the conduct that it makes a crime.” Id. at
350. A statute cannot give fair warning, of course, where it is
“vague or overbroad.” Id. at 351. The required fair warning
also might be lacking where a statute, which is “precise on its
face,” is “unforeseeably and retroactively expanded by judicial
construction.” Id. at 352. But not every after-announced
change in criminal law is a due process violation. Instead, due
process is violated where a state court’s interpretation of a
criminal statute is “unexpected and indefensible by reference
to the law which had been expressed prior to the conduct in
issue.” Id. at 354. This formulation preserves the necessary
balance. It gives state courts “leeway” as they perform their
work of judicial interpretation, but also “adequately respects
the due process concern with fundamental fairness and protects
against vindictive or arbitrary judicial lawmaking by
safeguarding defendants against unjustified and unpredictable
breaks with prior law.” Rogers, 532 U.S. at 461-62.
This appeal requires us to decide whether the
Pennsylvania Superior Court’s affirmance of Spanier’s
conviction, based on its construction of the 1995 statute, was
“unexpected and indefensible.” Bouie, 378 U.S. at 354. For the
reasons we will explain, we conclude it was not, and therefore
habeas relief is not warranted. First, though, we must consider
whether Spanier’s claim was properly before the District
Court.
1. Exhaustion
The Commonwealth argues that Spanier should not
have received habeas relief because he did not follow the
statutory directive to “exhaust[] the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(1)(A). A claim is
exhausted when the petitioner raises it on direct appeal, “fairly
16
present[ing] . . . [its] factual and legal substance . . . in a
manner that puts [state courts] on notice that a federal claim is
being asserted.” Bennett v. Superintendent, 886 F.3d 268, 280
(3d Cir. 2018) (internal quotation marks omitted) (quoting
McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999)). The
petitioner must “cit[e] the relevant provision of the United
States Constitution and federal cases supporting his argument.”
Id. at 281. Because due process takes a variety of forms, we
evaluate exhaustion with reference to the particular kind of due
process claim at issue. See Gray v. Netherland, 518 U.S. 152,
164-65 (1996) (separately analyzing exhaustion of due process
claims that rested on distinct bodies of case law “aris[ing] in
widely differing contexts”).
The Commonwealth argues that Spanier failed to
exhaust his claim because, on direct appeal of his conviction,
he cited United States v. Marcus, 560 U.S. 258, 263-64 (2010),
and Marks, 430 U.S. at 191-92. The Commonwealth contends
that he needed to cite Rogers, 532 U.S. at 461. However,
Marcus, Marks, and Rogers deal with the same kind of due
process violation—retroactive application of a change in
criminal law through judicial decision-making—at different
stages of a case. Marcus and Marks deal with trial error.
Marcus, 560 U.S. at 264 (holding that due process is violated
“if the jury . . . was not instructed about [a criminal statute’s]
enactment date” and convicts a defendant for “noncriminal,
preenactment conduct”); Marks, 430 U.S. at 196 (holding that
due process is violated if the trial court instructs the jury based
on the current interpretation of a statute, rather than the
interpretation that controlled at the time of the allegedly
criminal acts). Rogers deals with the same kind of error on
appeal. 532 U.S. at 454-56 (considering whether state appeals
court violated due process by retroactively abolishing a
common-law defense the defendant had relied on).
17
The Commonwealth, citing Gray, 518 U.S. at 164,
argues that Spanier did not exhaust the particular kind of due
process claim he now asserts. The different types of due
process claims involved in Gray, however, were supported by
separate lines of cases. 518 U.S. at 164. Here, by contrast, a
single line of cases stemming from Bouie supports the due
process arguments Spanier made both on direct appeal and in
the District Court on habeas. Unlike the defendant in Gray,
Spanier presented the “factual and legal substance” of his claim
to the state courts and “cit[ed] the relevant provision of the
United States Constitution and federal cases supporting his
argument.” Bennett, 886 F.3d at 280-81 (citation omitted).
Therefore, his claim is exhausted.
2. Merits
Spanier argued on direct appeal that the jury instruction
regarding child endangerment was erroneous because it was
based on the 2007 version of the statute rather than the 1995
version. The trial court charged the jury that it should convict
Spanier if it found that, in addition to knowingly violating a
duty of care, protection, or support to a child, Spanier was “at
the time a parent, guardian, person supervising the welfare of
a child under the age of 18, or a person that employs or
supervises such a person.” App. 1307 (emphasis added,
indicating language added in 2007 statutory amendment). The
Pennsylvania Superior Court held that, “[o]n the facts of this
case” and “[g]iven . . . the Lynn Court’s treatment of the pre-
2007 version of § 4304,” there was no reversible error.
Spanier, 192 A.3d at 154. On habeas review, the District Court
concluded that the Superior Court’s application of Lynn to
affirm Spanier’s conviction violated due process. Spanier,
2019 WL 1930155, at *15-17.
At the threshold, the Commonwealth argues that this
issue is not cognizable in habeas corpus litigation because we
18
are “bound to accept” a state supreme court’s construction of
its own state’s statutes. Missouri v. Hunter, 459 U.S. 359, 368
(1983). This argument fails. While we are indeed bound by the
Pennsylvania Supreme Court’s construction of Pennsylvania
statutes, we are not bound by Pennsylvania courts’ conclusions
regarding violations of the United States Constitution. See id.Whether the 2007 statute was impermissibly applied to Spanier
has clear federal due process dimensions, and we do not defer
to the Pennsylvania courts’ holdings on this point.
To determine whether the District Court erred in
holding there was a due process violation, we must decide
whether the state court decision—here, the Pennsylvania
Superior Court’s affirmance of Spanier’s conviction, based on
its interpretation of Lynn—“was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). The Supreme Court has emphasized that
“[t]his standard . . . is ‘difficult to meet’: . . . [the petitioner]
must show that the challenged state-court ruling rested on ‘an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.’” Metrish
v. Lancaster, 569 U.S. 351, 357-58 (2013) (quoting Harrington
v. Richter, 562 U.S. 86, 102-03 (2011)). “‘[C]learly established
Federal law’ under § 2254(d)(1) is the governing legal
principle or principles set forth by the Supreme Court at the
time the state court renders its decision.” Lockyer v. Andrade,
538 U.S. 63, 71-72 (2003). Therefore, we consider Supreme
Court decisions up to 2018, when the Pennsylvania Superior
Court affirmed Spanier’s conviction.
In the 1964 Bouie case, individuals conducting a sit-in
at a segregated lunch counter were convicted of criminal
trespass under a state statute that forbade uninvited entry “after
notice . . . prohibiting such entry.” 378 U.S. at 348-49 (quoting
19
S.C. Code Ann. § 16-386 (1960 Cum. Supp.). Soon after, the
South Carolina Supreme Court issued an opinion in a different
case, Mitchell, holding that the statute also prohibited
remaining on property after being told to leave. Id. at 350 n.2
(citing City of Charleston v. Mitchell, 123 S.E.2d 512 (S.C.
1961)). Then, when the Bouie defendants appealed their
convictions, the South Carolina Supreme Court affirmed on the
basis of Mitchell. Id. at 350. The U.S. Supreme Court reversed,
stating that Mitchell’s broader interpretation was “clearly at
variance with the statutory language” and, furthermore, in the
95 years leading up to Mitchell, state cases “uniformly
emphasized the notice-before-entry requirement, and gave not
the slightest indication that that requirement could be satisfied
by proof of the different act of remaining on the land after
being told to leave.” Id. at 356-57. Mitchell was an
“unexpected and indefensible” interpretation of the statute in
light of prior law, and therefore its application to affirm the
conviction was a due process violation. Id. at 354 (citation
omitted).
This case is like Bouie in that the state appellate court
applied state supreme court precedent post-dating the conduct
in question (here, Lynn) to affirm the conviction. See id. at 350.
However, the South Carolina statute at issue in Bouie was
unlike the 1995 Pennsylvania child endangerment statute in at
least one important way. The South Carolina trespassing
statute was “precise on its face”: it applied to “entry upon the
lands of another . . . after notice . . . prohibiting such entry.” Id.
at 351-52 (quoting S.C. Code § 16-386). The 1995
Pennsylvania child endangerment statute is not similarly
precise: its language, “parent, guardian or other person
supervising the welfare of a child,” 18 Pa. C.S. § 4304(a),
leaves room for—and even necessitates—judicial
interpretation. This language raises, among other questions, the
20
issues of what is meant by “supervising” and who is a “person
supervising the welfare of a child.” Therefore, the
Pennsylvania courts’ work to interpret the child endangerment
statute is hardly unforeseeable, as was the South Carolina
Supreme Court’s sudden expansion of that state’s
unambiguous trespassing statute.
We next consider the 2001 opinion in Rogers v.
Tennessee. There, the defendant stabbed a man who died of the
injury fifteen months later, and the defendant was then
convicted of murder. 532 U.S. at 454. The defendant appealed
on the basis of the common law rule under which there could
be no murder conviction unless the victim died within a year
and a day. Id. at 453-54. On appeal, the Tennessee Supreme
Court abolished the rule and affirmed the conviction. Id. at 455.
The U.S. Supreme Court reiterated that due process is violated
only by “judicial interpretations of criminal statutes . . . that are
‘unexpected and indefensible,’” because state courts need
“substantial leeway . . . as they engage in the daily task of
formulating and passing upon” common law doctrines. Id. at
461-62 (quoting Bouie, 378 U.S. at 354). The state court’s
ruling “was not unexpected and indefensible” because the year
and a day rule was “widely viewed as an outdated relic of the
common law,” id. at 462, had never served as the basis of a
decision, and was mentioned in state case law only three times
in dicta, id. at 464. Therefore, there was no due process
violation. Id. at 467.
The principles enunciated in Rogers are certainly
relevant here: state courts need leeway to engage in their work,
and federal courts should not hold routinely that this work
violates due process. Id. at 461-62. But the Tennessee court
struck down an outmoded common law rule that was never
really established in Tennessee law. See id. at 462-64. That
decision bears little resemblance to the Pennsylvania Superior
21
Court’s interpretation of the child endangerment statute based
on its reading of Lynn. Therefore, the outcome in Rogers is not
especially illuminating here.
The final relevant Supreme Court case is Metrish v.
Lancaster, issued in 2013. There, the defendant was convicted
of first-degree murder. 569 U.S. at 354. He invoked
Michigan’s “diminished capacity” defense, which applied to
individuals who were not insane, but whose mental illness
“negat[ed] the mens rea element of first-degree murder.” Id. At
the time of the killing, the defense was well established.
Although the Michigan Supreme Court had not recognized it,
the intermediate appellate court had done so repeatedly, and
the pattern jury instructions included the defense. Id. at 355-
57.
After the killing, but before the defendant’s trial, the
Michigan Supreme Court addressed the defense for the first
time in People v. Carpenter, 627 N.W.2d 276 (Mich. 2001).
The Michigan Supreme Court eliminated the defense. It
explained that the Michigan legislature had enacted a
“‘comprehensive statutory scheme’ . . . to govern defenses
based on mental illness.” Metrish, 569 U.S. at 364 (quoting
Carpenter, 627 N.W.2d at 282). The diminished capacity
defense, which had existed before the statute was enacted but
was not mentioned in the statute, was—the Michigan Supreme
Court concluded—“incompatible” with the statutory scheme.
Id. at 363, 365. Later, when the defendant appealed, the state’s
intermediate appellate court held that applying Carpenter
retroactively did not violate due process because “Carpenter
concerned an unambiguous statute that was interpreted by the
[Michigan] Supreme Court for the first time.” Id. at 365
(internal quotation marks and citation omitted). The U.S.
Supreme Court agreed there was no due process violation. Id.
22
The Court noted that it reached the same outcome—no
due process violation—in both Metrish and Rogers, even
though the defense eliminated in Rogers was “outdated” and
“widely rejected,” while the defense eliminated in Metrish was
widely recognized. Id. at 365-67 (citation omitted).
Acknowledging that different outcomes might have been
expected based on the different statuses of the two defenses,
the Court explained that merely because the Michigan defense
was widely recognized was “hardly sufficient to warrant
federal habeas relief under 28 U.S.C. § 2254(d)(1)’s
demanding standard.” Id. at 367. The habeas standard is so
rigorous that relief is not available merely because the state
supreme court announces a new rule of law. Rather, the new
rule must be “unexpected and indefensible by reference to
[existing] law.” Id. at 368 (quoting Rogers, 532 U.S. at 462).
The Michigan Supreme Court’s Carpenter decision did not
meet this definition. The U.S. Supreme Court noted that it had
“never found a due process violation in circumstances
remotely resembling [those]—i.e., where [1] a state supreme
court, squarely addressing a particular issue for the first time,
[2] rejected a consistent line of lower court decisions [3] based
on the supreme court’s reasonable interpretation of the
language of a controlling statute.” Metrish, 569 U.S. at 367-68.
Here, as in Metrish, [1] the Pennsylvania Supreme
Court, in Lynn, squarely addressed for the first time the
application of the 1995 statute to those who supervised the
welfare of children without supervising the children
themselves. According to the District Court and Spanier, Lynn
[2] rejected a consistent line of Pennsylvania Superior Court
decisions that applied the 1995 version of the child
endangerment statute only to defendants who were directly
involved with children. Spanier, 2019 WL 1930155, at *14.
And Lynn is [3] the state supreme court’s reasonable
23
interpretation of the language of the statute. 4 As in Metrish, the
state appellate court held that retroactively applying the state
supreme court decision, Lynn, did not violate due process. See
Spanier, 192 A.3d at 153-54. Based on these parallels, Metrish
weighs against a finding that there was a due process violation
here.
We must now decide, in light of Bouie, Rogers, and
Metrish, whether the Pennsylvania Superior Court’s
affirmance of Spanier’s conviction “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). The District Court, on habeas
review, concluded that the Superior Court’s decision met this
standard. Spanier, 2019 WL 1930155, at *15. The Court also
held that the jury instruction permitted a conviction either
because Spanier supervised the welfare of a child by
“provid[ing] care, education, training, or control,” or because
he was “a person that employs or supervises such a person.”
Id. at *17 (quoting jury instructions). According to the District
Court, the second option was available only under the amended
2007 statute, and permitting a conviction on that alternative
basis violated due process by relieving the Commonwealth of
its burden to prove every element of the 1995 statute. Id.
4
The District Court did not conclude that Lynn was
unexpected and indefensible; it concluded that the Superior
Court’s affirmance of Spanier’s conviction was. Spanier, 2019
WL 1930155, at *15. Similarly, Spanier does not attack Lynn.
Instead, he argues that “the state courts in his case
misinterpreted Lynn” and incorrectly interpreted “the 1995
statute as including language added in 2007.” Appellee’s Br.
40 n.10.
24
The Commonwealth argues that the District Court erred
and that the application of Lynn to affirm Spanier’s conviction
was not unexpected and indefensible. Spanier’s response
aligns with the District Court. He says Lynn held that the 1995
statute required the defendant to have supervised the welfare
of a child either directly or indirectly, and that the 2007 statute
added another category of persons who could be liable: those
who are “not supervising the welfare of a child,” even
indirectly, but are “employing or supervising someone else
who was doing so.” Appellee’s Br. 43. He argues that his due
process rights were violated because the jury could have
convicted him based on a finding that he fit in the new
category.
However, due process was violated here only if the
Superior Court’s affirmance of Spanier’s conviction was an
“unexpected and indefensible” interpretation of the child
endangerment statute in light of prior law, i.e., Lynn. See
Bouie, 378 U.S. at 354 (citation omitted). We conclude that it
was not. The Superior Court extensively reviewed the Lynn
decision before holding that it was not error to instruct the jury
using the language of the 2007 statute. Spanier, 192 A.3d at
150-54. The Court began by noting Lynn’s commentary that
the child endangerment statute “is protective in nature, and
must be construed to effectuate its broad purpose of sheltering
children from harm.” Id. at 150 (quoting Lynn, 114 A.3d at
818). Such statutes “are written expansively by the legislature
to cover a broad range of conduct in order to safeguard the
welfare and security of our children.” Id. (quoting Lynn, 114
A.3d at 818). Therefore, “[t]he common sense of the
community, as well as the sense of decency, propriety and the
morality which most people entertain is sufficient to apply the
statute to each particular case, and to individuate what
25
particular conduct is rendered criminal by it.” Id. at 151
(quoting Lynn, 114 A.3d at 818).
The Superior Court rejected Spanier’s argument that he
was positioned differently than Lynn, a diocesan official who
was “responsible for protecting children from sexual abuse.”
Id. at 152. The Court held that Spanier “oversaw and approved
the university’s woefully deficient response” to the abuse
allegations, so the fact that his official duties did not include
addressing child abuse did “not undermine or preclude a
conclusion that he was supervising the welfare of a child.” Id.
at 153. To support this conclusion, the Superior Court quoted
Lynn’s holding that the 1995 statute, “[b]y its plain terms, . . .
encompasses all forms of supervision of a child’s welfare.” Id.
at 152 (quoting Lynn, 114 A.3d at 824).
The Superior Court also was unpersuaded by Spanier’s
argument that his case is distinguishable from Lynn because he
“did not supervise persons who interacted directly with the
minor in question, as did the Lynn defendant or as would a
school principal or daycare manager.” Id. The Superior Court
pointed out that “[t]he Lynn Court held that it is the child’s
welfare that is supervised” under the child endangerment
statute. Id. Because Spanier “supervised his school’s response
to repeated allegations of on-campus abuse of a minor by a
high-status former employee with access to campus facilities[,]
[h]e was clearly supervising a child’s welfare pursuant to
Lynn.” Id.
Finally, the Superior Court addressed Spanier’s
argument that the jury instruction was erroneous and stated
that, “[g]iven our analysis of . . . the Lynn Court’s treatment of
the pre-2007 version of [the statute], we discern no reversible
error.” Id. at 154. The Superior Court held that “the language
added [to the statute] in 2007 or, more appropriately, the
language not included in the pre-2007 version, does not alter
26
the result here.” Id. It concluded that “[o]n the facts of this case,
the trial court’s instruction on the 2007 version of the . . .
statute did not result in an inaccurate statement of the law.” Id.
Although the Superior Court did not say it in so many words,
the import of its holding is that the “employs or supervises”
language included in the jury instruction accurately reflected
the meaning of the 1995 statute. See id. This analysis flows
directly from its careful reading of Lynn. We cannot agree with
Spanier that the Superior Court “misinterpreted Lynn” and
incorrectly construed “the 1995 statute as including language
added in 2007.” Appellee’s Br. 40 n.10.
We acknowledge that, in some respects, this case is like
Bouie—where there was a due process violation in the
application of a state supreme court decision that changed the
meaning of a state statute. Bouie, 378 U.S. at 361. But in other
respects, this case is like Metrish—where there was no due
process violation in the application of a state supreme court
decision that struck down a widely relied-upon defense to
criminal liability. Metrish, 569 U.S. at 365. Because of the
equipoise in the case law, the habeas standard is particularly
important here: the writ may not be granted unless the state
court decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law.” 28 U.S.C.
§ 2254(d)(1). There can be no “possibility for fairminded
disagreement.” Metrish, 569 U.S. at 357-58 (quoting
Harrington v. Richter, 562 U.S. 86, 102-03 (2011)). “[T]he
petitioner must demonstrate that Supreme Court precedent
requires [a] contrary outcome” to the state court decision.
Rosen v. Superintendent, 972 F.3d 245, 252 (3d Cir. 2020)
(quoting Matteo v. Superintendent, 171 F.3d 877, 888 (3d Cir.
1999) (en banc)). Here, Bouie and Metrish point in different
directions, creating more than a possibility for fairminded
disagreement. Therefore, we must reverse in light of “28
27
U.S.C. § 2254(d)(1)’s demanding standard.” Metrish, 569 U.S.
at 367.
The District Court cited Bouie and Rogers, but did not
examine them closely. Spanier, 2019 WL 1930155, at *12. Nor
did it mention Metrish. The Court pointed to the 2005 grand
jury report discussed in Lynn, which declined to recommend
charging Lynn under the 1995 version of the child
endangerment statute and instead recommended that the statute
be amended. Id. at *15. The Lynn opinion, however, clarifies
that “[t]he decisions of neither the grand jury nor a prior
District Attorney [who chose not to charge Lynn under the
1995 statute] prove the meaning of the . . . statute, which is
determined by” plain-language analysis. Lynn, 114 A.3d at
826-27. Following this holding, we conclude that the
subsequent grand jury report is not persuasive evidence of the
meaning of the 1995 statute, and therefore does not
demonstrate that the application of Lynn was “unexpected and
indefensible.” See Bouie, 378 U.S. at 354.
Even if we agreed with Spanier that the jury instruction
improperly reflected the 2007 statute, we would still reverse.
“[N]ot every ambiguity, inconsistency, or deficiency in a jury
instruction rises to the level of a due process violation.”
Middleton v. McNeil, 541 U.S. 433, 437 (2004). We consider
the instruction “in the context of the instructions as a whole and
the trial record,” asking “‘whether there is a reasonable
likelihood that the jury has applied the challenged instruction
in a way’ that violates the Constitution.” Estelle v. McGuire,
502 U.S. 62, 72 (1991) (quoting Boyde v. California, 494 U.S.
370, 380 (1990)).
There is not a reasonable likelihood that the jury
convicted Spanier on the basis of the contested jury instruction
language—that is, by finding that he was “a person that
employs or supervises” someone who is supervising the
28
welfare of a child. App. 1307. The jury instruction at the
beginning of the trial reflected the 1995 statute and did not
include the “employs or supervises” language. App. 704. In his
opening statement, Spanier followed suit, emphasizing that to
convict, the jury would need to “find that [Spanier] knowingly
endangered the welfare of a child by violating a duty of care,
protection or support, to a child whose welfare he was
supervising.” App. 739. And the Commonwealth’s theory of
the case was that Spanier himself supervised the welfare of a
child, not that he employed or supervised such a person.
Although the prosecutor argued in closing that “[t]he buck
stopped with” Spanier and that he was “the top of the food
chain,” her repeated theme was that if Spanier, Schultz, and
Curley had “call[ed] the authorities and let the authorities
investigate it, . . . [t]hey wouldn’t have been responsible. But
they took it upon themselves.” App. 1282. She continued with
the theme that Spanier assumed responsibility for supervising
the welfare of a child:
[Spanier, Schultz, and Curley] don’t have a duty
to support this child, but their duty of care and
protection came when they took it. When they
decided in their little group that they weren’t
going to call the outside agency, that they
weren’t going to tell their own University police,
but that they themselves, the three of them, were
going to be the cabal that was going to keep him
under control. They took that responsibility.
They can’t hide from it now. They took it upon
themselves . . . .
And, again, that’s a person supervising the
welfare of a child under the age of 18. They
chose that. They didn’t have to. It’s a choice that
Graham Spanier made.
29
App. 1290. Therefore, it is not reasonably likely that the jury
convicted Spanier because he employed someone who
supervised the welfare of a child—rather than because he
himself supervised the welfare of a child.
On direct appeal, the Pennsylvania Superior Court took
care to note how the record showed that Spanier himself was
supervising the welfare of a child. It stated multiple times that
because Spanier “personally oversaw [the university’s]
response” to the abuse allegations, he “was clearly supervising
a child’s welfare pursuant to Lynn.” Spanier, 192 A.3d at 153-
54. The Court reached its conclusion that there was no error in
the jury instruction in light of “the facts of this case.” Id. at 154.
We agree with, and defer to, the Superior Court’s reasonable
reading of the record. See Waddington v. Sarausad, 555 U.S.
179, 193-94 (2009) (holding that even if the jury instruction
was ambiguous, the state courts reasonably concluded, after
reviewing the trial record, that the jury’s conviction was not
based on the incorrect understanding of the law that the
defendant said the instruction had conveyed).
In sum, we conclude that there was no due process error
with regard to the jury instruction. Under clearly established
federal law, state courts have considerable latitude to rule on
the meaning of statutes, and this latitude extends to announcing
a new rule of law to uphold a conviction—so long as the new
rule is not unexpected and indefensible. In addition, there is not
a reasonable likelihood that the jury convicted based on the
contested language in the jury instruction. Given the
demanding standard on habeas corpus review of state-court
convictions, we conclude that the District Court erred in
granting the petition.
The District Court held that Spanier’s due process rights
were not violated by the application of the statute of limitations
30
provided in 42 Pa. C.S. § 5552(c). Spanier, 2019 WL 1930155,
at *19. Spanier argues that this was error, and that we may
affirm the grant of his habeas petition on the alternative basis
that the application of the statute indeed violated due process.
See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (“We
. . . may affirm the District Court’s judgment on any basis
supported by the record.”). We disagree that the application of
the statute of limitations provides a basis to affirm.
Spanier’s limitation argument turns on the multi-part
structure of the statute, 42 Pa. C.S. § 5552, and on its 2007
amendment. At the time of Spanier’s crimes, in 2001,
Pennsylvania’s “[g]eneral” criminal statute of limitations was
two years, but there was an “[e]xception[]” for “[a]ny sexual
offense committed against a minor”: such a prosecution might
be commenced “any time up to the period of limitation
provided by law after the minor has reached 18 years of age,”
that is, until the victim’s twentieth birthday. 42 Pa. C.S.
§ 5552(a), (c)(3) (2000). In 2007, when the child
endangerment statute and its limitations rule were amended,
the legislature added another exception: prosecution may be
commenced “up to the later of the period of limitation provided
by law after the minor has reached 18 years of age or the date
the minor reaches 50 years of age.” Id. § 5552(c)(3) (2007)
(emphasis added).
When the Commonwealth began prosecuting Spanier in
2012, its theory was that the general two-year statute of
limitations controlled. The Commonwealth argued that
Spanier endangered the welfare of children through a course of
conduct that extended from 2001 (when he and Schultz and
Curley decided not to report Sandusky to the authorities) until
2012 (when Sandusky was convicted). But the jury rejected
that theory. Although it found Spanier guilty of endangering
the welfare of a child, it indicated on the verdict slip that
31
Spanier had not engaged in a course of conduct. That meant
Spanier was convicted solely for his actions in 2001—eleven
years before the prosecution began. Therefore, the § 5552(a)
two-year statute of limitations could not control. Nevertheless,
the trial court held there was no limitations problem, pointing
to the § 5552(c) exception, which the Commonwealth had not
invoked at any point before the verdict.
This lengthy setup brings us to Spanier’s argument: he
contends that his due process rights were violated because he
did not have notice, prior to the verdict, that the § 5552(c)
exception might apply. He argues that if he had known the
Commonwealth would rely on § 5552(c)(3), he would have
investigated and put on evidence regarding the age of the boy
McQueary saw in the shower. McQueary testified that the boy
was “[r]oughly 10 to 12 years old” at the time, App. 806, but if
the boy was actually fourteen, he would have turned 20—and
the statute of limitations would have run—in 2006, before the
January 2007 amendment. In that scenario, the prosecution
would be time-barred. See Commonwealth v. Harvey, 542 A.2d
1027, 1030 (Pa. Super. Ct. 1988) (en banc) (if “the prior statute
of limitations has run before the new statute of limitations
becomes effective[,] . . . the cause of action has expired, and
the new statute of limitations cannot serve to revive it”).
The Pennsylvania Superior Court concluded that
Spanier’s due process rights were not violated as a matter of
state law. Under “[e]stablished Pennsylvania law,” a defendant
may be convicted of an uncharged offense that is “a lesser-
included offense of the charged crime.” Spanier, 192 A.3d at
146 (quoting Commonwealth v. Houck, 102 A.3d 443, 449-50
(Pa. Super. Ct. 2014)). Therefore, the Superior Court held, the
charge of felony endangerment (i.e., a course of conduct of
endangerment) put Spanier “on notice that he was liable to be
convicted of misdemeanor [endangerment]” (i.e.,
32
endangerment without a course of conduct). Id. In addition, the
Court held, the complaint was filed “well outside of the general
two-year limitations period of § 5552(a),” so “it was plainly
evident . . . that § 5552(c)(3) would govern the limitations
period for a misdemeanor [endangerment] prosecution.” Id. at
146-47.
The Superior Court also observed that § 5552(c)(3) is
not a tolling provision (those are codified in § 5554, titled
“Tolling of statute”). Id. at 149; see also 42 Pa. C.S. § 5552(c)
(2000) (providing “Exceptions” to the general rule and not
mentioning tolling). Therefore, Pennsylvania’s rule requiring
notice of intent to rely on a tolling provision did not apply.
Spanier, 192 A.3d at 149. “The purpose of this rule is to apprise
a defendant that he must defend not only against the crime
itself, but also against the limitation of prosecution.” Id. at 148.
The rule is crucial where the prosecution will have to prove
separate “fact(s) . . . to toll the statute of limitations.” Id. In
Spanier’s case, however, “the prosecution for misdemeanor
[endangerment] was not dependent upon proof of any facts
outside those already alleged in the complaint.” Id. at 148-49.
Therefore, “notice requirements under due process were not
violated here.” Id. at 149.
Under the deferential habeas standard, we may not grant
relief unless the Superior Court’s opinion “was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). Spanier says the decision
violated his clearly established due process right to notice of
the charges to permit the preparation of his defense. The
Superior Court’s cogent opinion explains that Spanier received
notice commensurate with due process. Spanier, 192 A.3d at
146-49. Spanier ignores that opinion. He continues to refer to
§ 5552(c)(3) as a “toll[ing]” provision, Appellant’s Br. 58,
33
although it is not, 192 A.3d at 148-49. Nor does he explain,
given Pennsylvania law regarding lesser-included offenses,
why the complaint failed to put him on notice that § 5552(c)
might apply. Therefore, Spanier does not show that the
Superior Court’s reasoning contradicts clearly established
federal law. The District Court correctly ruled that the statute
of limitations issue is not a basis for habeas relief.
For these reasons, we will reverse the grant of Spanier’s
habeas corpus petition.
34