Lambert v. Blackwell

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

10-12-2004

Lambert v. Blackwell
Precedential or Non-Precedential: Precedential

Docket No. 03-2282

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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