Lambert v. Blackwell

Citation134 F.3d 506
Decision Date26 January 1998
Docket Number97-1287,Nos. 97-1281,97-1283,s. 97-1281
PartiesLisa Michelle LAMBERT, v. Charlotte BLACKWELL, Mrs., Superintendent; The Attorney General of the State Of Pennsylvania, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Peter S. Greenberg (argued), Christina Rainville, Jeannette M. Brian, Diane L. Lisowski, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for Appellee.

Richard A. Sprague (argued), Geoffrey R. Johnson, Theodore J. Chylack, Joseph R. Podraza, Jr., T. Truxtun Hare, David S. Lubin, Deborah B. Miller, Sprague & Sprague D. Michael Fisher, Attorney General of Pennsylvania, Jerome T. Foerster, Senior Deputy Attorney General, Appeals and Legal Services Section, Robert A. Graci Assistant Executive Deputy Attorney General, Office of Attorney General of Pennsylvania Law and Appeals, Harrisburg, PA, Daniel E. Lungren, Attorney General of California, Sacramento, CA, M. Jane Brady, Attorney General of Delaware, Wilmington, DE, Richard P. Ieyoub, Attorney General of Louisiana, Baton Rouge, LA, W.A. Drew Edmondson, Attorney General of Oklahoma, Oklahoma City, OK, Charles M. Condon, Attorney General of South Carolina, Columbia, SC, for Amicus Appellants: Commonwealth of Pennsylvania, State of California, State of Delaware, State of Louisiana, State of Oklahoma, State of South Carolina.

Philadelphia, PA, Richard A. Sprague, Alvin B. Lewis, Jr., Edward R. Kennett, Sprague & Lewis, Lancaster, PA , for Appellants.

Donna G. Zucker, Assistant District Attorney, Ted McKnight, President, Pennsylvania District Attorneys Association, Philadelphia, PA, for Amicus Curiae Pennsylvania District Attorneys Association.

Before: MANSMANN and GREENBERG, Circuit Judges, and ALARCON, Circuit Judge. *


MANSMANN, Circuit Judge.

In this appeal we are faced with the onerous task of determining whether the district court, upon petition for writ of habeas corpus, erred in granting the unconditional release of one convicted of first degree murder by a state trial judge. Under Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982), the district court is required to dismiss a federal habeas petition filed pursuant to 28 U.S.C. § 2254 which contains both unexhausted and exhausted claims. Because we find the petitioner has not yet pursued her remedies under the Pennsylvania Post Conviction Relief Act, 42 Pa. Cons.Stat. Ann. § 9542 et seq. (West 1997 Supp.), her federal habeas petition includes unexhausted claims and, hence, the result here is dictated by Rose v. Lundy, supra . Thus, we will remand this case to the district court with an order to dismiss the petition without prejudice so that the petitioner can first present her unexhausted claims to the appropriate Pennsylvania state court.

I. 1

Laurie Show became romantically involved with Lisa Lambert's boyfriend, Lawrence "Butch" Yunkin, for a brief period in June of 1991. Thereafter, Show incurred the wrath of Lambert, who accosted Show on several occasions. On the morning of December 20, 1991, Show was brutally murdered. Lambert and an accomplice, Tabitha Buck, were subsequently charged with criminal homicide for the murder of Show. 2 Buck was convicted of second degree murder by a jury of her peers; Yunkin, in exchange for his truthful testimony against Lambert, pled guilty to hindering apprehension. 3

On July 20, 1992, after a seven-day bench trial in the Court of Common Pleas of Lancaster County, Pennsylvania, Lambert was convicted of first degree murder and criminal conspiracy. Subsequently, Lambert was sentenced to life imprisonment by the trial court. Lambert, through her trial counsel, Roy Shirk, Esq., filed a Motion in Arrest of Judgment and for New Trial, and Additional Reasons for Post-Trial Motions, raising various allegations of trial error and prosecutorial misconduct. 4 On July 19, 1994, the trial court issued an Opinion and Order denying Lambert's posttrial motions. No appeal was taken from this order.

Subsequently, Lambert, through new counsel, Jules Epstein, Esq., filed a Motion for a New Trial based on allegations of after-discovered evidence 5 and ineffective assistance of trial counsel. 6 An evidentiary hearing on the new motion was conducted over a two-day period in November of 1994. On March 14, 1995, the state trial court denied Lambert's motion for post-verdict relief. In June of 1995, Lambert appealed the judgment of sentence imposed by the state trial court to the Superior Court of Pennsylvania, raising essentially the same claims regarding ineffective assistance of trial counsel and after-discovered evidence. 7 A three-judge panel of the Superior Court of Pennsylvania affirmed the judgment of sentence on January 4, 1996. In her direct appeal to the Pennsylvania Supreme Court filed on February 2, 1996, Lambert again raised the same claims. 8 Lambert's petition for allowance of appeal was subsequently denied on July 2, 1996. Lambert did not seek collateral review of any of her claims through the Pennsylvania Post-Conviction Relief Act.

Lambert instituted the present federal habeas corpus action by filing a pro se writ of habeas corpus on September 12, 1996. The district court subsequently appointed counsel to represent Lambert and directed counsel to file an amended petition, which they did on January 3, 1997. Lambert's first amended petition for writ of habeas corpus incorporated the claims previously presented to the state courts, but went further, advancing the following grounds for relief: (1) Lambert was actually innocent and no credible evidence supported the prosecution's theory of her guilt or the findings of the state trial court; (2) the misconduct 9 of the prosecution and the police created a situation of manifest injustice; (3) after discovered evidence 10 created manifest injustice; and, (4) trial counsel was ineffective in over 35 separate ways. In its Answer to the First Amended Petition, the Commonwealth responded that Lambert was not entitled to federal review at this time since she had failed to exhaust her state court remedies and had committed insurmountable procedural default. In the alternative, the Commonwealth argued that Lambert's petition should be denied on the merits. Further, the Commonwealth expressly stated in its Answer that it was not waiving the exhaustion requirement in any manner. 11

Despite the Commonwealth's objections to Lambert's petition on the grounds of exhaustion and procedural default, the district court determined that it would allow broad discovery and would conduct an evidentiary hearing on Lambert's claims of actual innocence and prosecutorial misconduct while, at the same time, considering the Commonwealth's procedural claims of exhaustion and procedural default. The district court denied the Commonwealth's objection that the evidentiary hearing was prohibited by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2241 et seq., citing the highly unusual circumstances of this case. The evidentiary hearing commenced on March 31, 1997, and, after fourteen days of testimony, the district court entered an order granting the writ, releasing Lambert from custody, and barring the Commonwealth from conducting a retrial of Lambert.

The district court issued its Order and Memorandum Opinion on April 21, 1997. 12 Lambert v. Blackwell, 962 F.Supp. 1521 (E.D.Pa.1997). The court found that the 1995 amendment to the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons.Stat. Ann. § 9543, which eliminated the waiver exception for actual innocence or procedural default (former sections 9543(a)(3)(ii) and (iii)), left Lambert without a state forum in which to raise her claims of error. The district court interpreted the Pennsylvania legislature's elimination of the actual innocence The court further opined that to the extent there may be claims which a Pennsylvania court might view as not being waived, the state proceedings would be ineffective to protect Lambert's rights if the district court dismissed the petition. Id. at 1554. Moreover, the court found that if it were to dismiss this case as a mixed petition pursuant to Rose v. Lundy, supra, "on the suspicion that perhaps its reading of the PCRA was wrong," then Lambert would be deemed to have taken her one bite of the apple under the AEDPA. Id. Consequently, in order for Lambert to return to federal court, the district court opined, she would need the approval of the court of appeals and denial of such application was unreviewable by the Supreme Court. The district court felt that under these extraordinary circumstances, such a result was constitutionally intolerable. 13 Id.

                and procedural default exceptions to waiver "as an advertent decision after the Supreme Court's decision in Schlup [v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995),] to place those issues squarely into the federal forum."  Lambert, 962 F.Supp. at 1553.   Thus, the district court concluded that Lambert exhausted all of the claims presented in her federal habeas proceeding, with the exception of the after-discovered evidence which "expand[ed] the degree of the violations" brought to the attention of the state trial judge or confirmed Lambert's contention that she is actually innocent.  Id

Finally, the district court explained that in such an extraordinary case, the principles of comity allowed it to excuse total exhaustion or procedural default in the face of a manifestly unjust incarceration. 14 Id. In any event, the court found that the Commonwealth's concession at the evidentiary hearing that Lambert was entitled to some relief effected a waiver of the exhaustion objection.

The Commonwealth filed a timely notice of appeal on April 22, 1997. We have jurisdiction over this appeal pursuant to 28 U.S.C. §§ 1291 and 2253. 15 In a federal habeas corpus...

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