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November 21, 2001


The opinion of the court was delivered by: Dalzell, District Judge


Before us is the respondents' motion to dismiss or, in the alternative, to strike the petition Lisa Michelle Lambert filed in this 28 U.S.C. § 2254 habeas action. Also pending is the third iteration of a motion for recusal of the assigned judge.*fn1 In addition, we ordered the parties to brief three threshold issues, which they have done.

Specifically, we asked the parties to submit their views first on the effect of Pennsylvania Supreme Court Order No. 218, Jud. Admin. Doc. No. 1 (May 9, 2000) (hereinafter "Order No. 218"), on the exhaustion question. Second, we asked for the parties' positions as to the effect of Commonwealth v. Fahy, 737 A.2d 214 (Pa. 1999) upon the deference, if any, this Court must, under the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254, here accord Pennsylvania courts' findings and conclusions under the Pennsylvania Post-Conviction Relief Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. Lastly, we asked for their views as to the present effect, if any, of this Court's findings and conclusions in our April, 1997 adjudication, 962 F. Supp. 1521 (E.D.Pa. 1997).

This memorandum considers those motions and issues (the respondents elected to address the three issues as part of their motion to dismiss). In order to place these threshold questions and Lambert's petition in proper context, we begin with a digest of this case's long history.

I. Procedural History

On September 12, 1996, Lisa Michelle Lambert filed her pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We appointed counsel for her on October 4, 1996, and on January 3, 1997, in accordance with the leave we granted in our October 4 Order, these lawyers filed the first amended petition on Lambert's behalf.

After a conference with the parties' counsel on January 16, 1997, we granted Lambert's motion for permission to take certain discovery. We conducted a lengthy hearing in April, 1997, during which new evidence came to light regarding the investigation and prosecution of Lambert's case in state court. Based on this new evidence, and with the consent on the record of the District Attorney, we released Lambert into the custody of her lawyers on April 16, 1997.

The next day, the respondents (hereinafter "the Commonwealth") rescinded their consent, and sought Lambert's reincarceration. We denied this request, and the Court of Appeals the same day denied the Commonwealth's petition for stay or vacation of our Order releasing Lambert. In re: Commonwealth of Pennsylvania, No. 97-1280 (3d Cir. Apr. 17, 1997). In our opinion of April 21, 1997, we found over twenty instances of prosecutorial misconduct and granted Lambert's petition for a writ of habeas corpus, freeing her from all fetters of custody. Lambert v. Blackwell, 962 F. Supp. 1521 (E.D.Pa. 1997).

On the same day we announced our decision, we on the record denied the Commonwealth's oral motion for a stay of Lambert's release pending appeal. On May 9, 1997, the Court of Appeals, after review of the record before us,*fn2 again denied the Commonwealth's motion to stay Lambert's release. See Lambert v. Blackwell, slip. op. in Nos. 97-1281, 1283 and 1287 (3d Cir. May 9, 1997). On December 29, 1997, another panel of the Court of Appeals reversed, Lambert v. Blackwell, 134 F.3d 506 (3d Cir. 1997); that panel vacated and remanded the case for failure to exhaust state remedies. On January 26, 1998, the Court of Appeals, over the dissent of Judge Roth (which three other judges joined), denied Lambert's petition for rehearing en banc. Id. at 525-26. In anticipation of her imminent return to custody, Lambert filed her petition under the Pennsylvania Post-Conviction Relief Act ("PCRA") on February 2, 1998. On February 3, 1998, pursuant to the Court of Appeals's mandate, we dismissed Lambert's first amended petition without prejudice. On February 4, 1998, Lambert surrendered. She then filed a petition for a writ of certiorari on April 23, 1998, U.S. Sup. Ct. No. 97-8812.

The PCRA court denied Lambert relief on August 24, 1998, and she then appealed to the Pennsylvania Superior Court. Lambert filed her second amended petition for writ of habeas corpus with us on March 30, 1999, but we took no action because of the ongoing state proceedings and the pending certiorari petition.

The Superior Court denied Lambert relief on December 18, 2000, Commonwealth v. Lambert, 765 A.2d 306 (2000), and on January 29, 2001, she filed with us her third amended petition for a writ of habeas corpus. On March 19, 2001, the United States Supreme Court denied Lambert's petition for a writ of certiorari. Lambert v. Blackwell, ___ U.S. ___, 121 S.Ct. 1353 (2001). On May 21, 2001, in response to our Order of May 11, 2001, Lambert refiled her third amended petition under a new civil action number, C.A. No. 01-2511.

The Commonwealth then filed its third motion for recusal of assigned judge,*fn3 and on July 16, 2001, it filed the instant motion to dismiss the petition, or in the alternative to strike the petition, arguing that it is untimely and fails to conform to this Court's local rules.

II. Timeliness

Since Congress's adoption of the Anti-Terrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996), a state petitioner must file his or her federal habeas petition within a year of the date "on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). In this case, Lambert's state court conviction became final on September 30, 1996 when her time for filing a petition for a writ of certiorari expired. The Commonwealth argues that based on this date, Lambert had until September 30, 1997 to file a "proper" federal habeas petition, but did not do so. Commonwealth's Br. at 3.

The Commonwealth's position on this question is puzzling in several respects. First, the Commonwealth glances by the fact that Lambert did file a petition under 28 U.S.C. § 2254 on September 12, 1996, and an amended one on January 3, 1997. True, the ambit of her claims rapidly widened with time, but the habeas rules explicitly contemplate that the court may, as we did, allow "the record [to] be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition." R. Governing § 2254 Cases in the U.S. D. Cts. 7(a) (hereinafter "Habeas Rules") in 2001 Fed. Crim. Code and Rules (West).

The Commonwealth contends that the timeliness of Lambert's first and amended petitions was snuffed out when the Court of Appeals ultimately reversed on comity grounds. As we shall demonstrate below, the Commonwealth's proffered fiction founders on its confusion regarding the application of the limitation provisions of the AEDPA as they apply here. Specifically, the Commonwealth seems to ignore 28 U.S.C. § 2244(d)(1)*fn4, which provides that the limitation period shall run from "the latest" of four dates, including "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D).*fn5

As to this last provision of the statute, it is well to recall that we granted Lambert's first motion for permission to take certain discovery on January 16, 1997. During the ensuing discovery period, Lambert assembled much of what became the factual predicates of her claims that were elucidated in the documents and testimony as it was adduced in the April, 1997 hearing. The most dramatic example of such revelations that month was when the mother of the murdered victim disclosed on April 16, 1997 that she saw Yunkin driving out of her development on December 20, 1991 — crucial evidence that only became available when this testimony was made. Thus, Lambert discovered this factual predicate of her claims only on that day, and accordingly her one-year period only began to run (at least as to that aspect of her claims) on April 16, 1997.*fn6

Of course, we do not mean to place exclusive reliance on this one disclosure. As noted, new information came out each day of the hearing, often in unexpected ways like the one cited. We emphasize the April 16 disclosure, however, because it was material enough to lead the Commonwealth that day thrice to acknowledge on the record, through the District Attorney himself, that "relief is warranted". N.T. at 2703 (Apr. 16, 1997); see also id. at 2701 and 2704.

It is also fundamental to recall that Lambert was unconditionally released from all forms of custody on April 21, 1997. She was then jurisdictionally ineligible to file a new or amended petition in the federal system. See 28 U.S.C. § 2254(a) (federal courts have jurisdiction "in behalf of a person in custody") (emphasis added). Cf. Commonwealth v. Ahlborn, 683 A.2d 632, 641 (Pa.Super. 1996), aff'd 699 A.2d 718 (Pa. 1997) (holding that "petitions not filed prior to the petitioner's unconditional release from custody are not cognizable under the PCRA and our courts are without jurisdiction to hear such petitions."). No fiction, however vigorously applied, can change the physical reality that Lambert was not in any form of custody from April 21, 1997 to February 4, 1998.

Thus, when Lambert returned to custody on February 4, 1998, as little as five days of her one-year period had expired, i.e., from the April 16, 1997 disclosure to April 21, 1997 when she became jurisdictionally disabled from filing any petition in federal court. At most, only two hundred and three days elapsed from September 30, 1996 to April 21, 1997.

On August 24, 1998, the PCRA court denied Lambert relief. Lambert appealed to the Superior Court, which held on December 18, 2000 that Pennsylvania courts did not have jurisdiction under the PCRA to consider Lambert's petition. Commonwealth v. Lambert, supra, 765 A.2d at 322. Lambert then filed her post-exhaustion habeas petition on January 29, 2001,*fn7 well within either the 360-day or 152-day remainder of her one-year limit.

Thus, even if there were merit to the idea of a fictional snuffing out of Lambert's earlier petitions, her petition is in all events timely. We will therefore deny the Commonwealth's motion to dismiss on this ground.

III. Failure to Conform to Local Rules

In its motion to strike the petition, the Commonwealth contends that Lambert's petition fails to conform with our local rules.*fn8 Specifically, the Commonwealth states that the petition is not on the proper form, does not set forth each ground for relief and the relevant material facts for each, and "does not even identify the crime(s) of which she stands convicted." Commonwealth Br. at 10. The Commonwealth argues that we should therefore strike Lambert's petition and order her to submit a proper petition in conformity with the local rules.

The local rules the Commonwealth cites, Local R.Civ.P. 9.4(1)(a) — (m) (E.D.Pa.), and also Habeas Rule 2(c), contemplate pro se petitions. This premise is confirmed by the Advisory Committee Note from the 1976 adoption of Habeas Rule 2(c), which refers, inter alia, to the "lengthy and often illegible petitions" prisoners "submitted to judges who have had to spend hours deciphering them," a concern inapplicable to counselled petitions. See Habeas Rule 2(c) advisory committee note, 2001 Fed. Crim. Code and Rules at 196 (West). These local rules were promulgated for the convenience of the Court, and presupposed the pro se petitioner who appears in the vast majority of these cases. Moreover, as Lambert argues, Lambert's counselled petition was filed in compliance with our Order of May 11, 2001, and the Commonwealth did not object to that Order at the time.*fn9

In the alternative, Lambert offers to "file the form that the Commonwealth is so desirous of receiving" and "file if the Court desires a supplement to her petition in which she will reformulate Exhibit K and will set out in numbered paragraphs, with record citations and with appropriate legal authority, the detailed basis for her claims." Pet.'s Resp. to Mot. to Dismiss at 19. We find, however, that taking this course would elevate form over substance and require counsel for both Lambert and the Commonwealth to engage in additional, repetitive work to duplicate and respond to material already painstakingly covered in the pending petition.*fn10 We will therefore deny the Commonwealth's motion to strike.

IV. Exhaustion After Order No. 218

Under federal habeas law, a petitioner must as a general rule exhaust all state remedies before pursuing federal relief. See Rose v. Lundy, 455 U.S. 509, 515 (1982) (holding that "state remedies ...

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